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BABULAL VARDHARJI GURJAR Vs. VEER GURJAR ALUMINIUM INDUSTRIES PVT LTD. MR. SUNDRARAJAN DEVANATHAN, IRP LTD. AND ANOTHER | 1. Appeal admitted. 2. Heard learned counsel for the parties. 3. This appeal takes exception to the judgment and order dated 17.09.2018 passed by the National Company Law Appellate Tribunal at New Delhi, in Company Appeal (AT) (Insolvency) No. 549/2018. 4. The National Company Law Appellate Tribunal dismissed the appeal preferred by the appellant against the order passed by the National Company Law Tribunal, Mumbai admitting the application bearing No. CP (IB) - 488/I & BP/MB/2018 vide order dated 09.08.2018. 5. For the nature of order that we propose to pass, it is not necessary to reproduce the factual matrix of the case. Suffice it to observe that the respondent filed the aforementioned Company Petition before the National Company Law Tribunal under Section 7 of the I.& B. Code. The same was admitted on 09.08.2018 and consequential directions came to be issued in the matter. In the appeal preferred before the National Company Law Appellate Tribunal, one of the grounds agitated in the appeal memo was that the claim of the respondent was admittedly barred by time. For, admittedly, the default was committed on 08.07.2011 whereas the petition had been filed in March 2018. 6. Although, we find that the ground articulated in the appeal memo is vague, but, as the objection regarding limitation goes to the root of the matter and touches upon the jurisdiction of the National Company Law Tribunal to proceed with the claim of the respondent; and since the recent decision of this Court in B.K. Educational Services Pvt. Ltd. Vs. Paras Gupta & Associates - AIR 2018 SC 5601 has held that the question of limitation is applicable even to applications filed under Section 7 of the I.& B. Code, it would be just and necessary to answer the said objection appropriately, in accordance with law. 7. Indisputably, neither the National Company Law Tribunal nor the National Company Law Appellate Tribunal, in the present case, has examined the said contention. Indeed, according to the respondent, the plea of claim being barred by limitation is unstatable and, to buttress this argument, the respondent has relied upon the entries in the books of account of the appellant and other related documents. However, that is a matter which ought to be agitated before the National Company Law Appellate Tribunal in the first place. | 1[ds]6. Although, we find that the ground articulated in the appeal memo is vague, but, as the objection regarding limitation goes to the root of the matter and touches upon the jurisdiction of the National Company Law Tribunal to proceed with the claim of the respondent; and since the recent decision of this Court in B.K. Educational Services Pvt. Ltd. Vs. Paras Gupta & Associates - AIR 2018 SC 5601 has held that the question of limitation is applicable even to applications filed under Section 7 of the I.& B. Code, it would be just and necessary to answer the said objection appropriately, in accordance with law.7. Indisputably, neither the National Company Law Tribunal nor the National Company Law Appellate Tribunal, in the present case, has examined the said contention. Indeed, according to the respondent, the plea of claim being barred by limitation is unstatable and, to buttress this argument, the respondent has relied upon the entries in the books of account of the appellant and other related documents. However, that is a matter which ought to be agitated before the National Company Law Appellate Tribunal in the first place. | 1 | 440 | 218 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
1. Appeal admitted. 2. Heard learned counsel for the parties. 3. This appeal takes exception to the judgment and order dated 17.09.2018 passed by the National Company Law Appellate Tribunal at New Delhi, in Company Appeal (AT) (Insolvency) No. 549/2018. 4. The National Company Law Appellate Tribunal dismissed the appeal preferred by the appellant against the order passed by the National Company Law Tribunal, Mumbai admitting the application bearing No. CP (IB) - 488/I & BP/MB/2018 vide order dated 09.08.2018. 5. For the nature of order that we propose to pass, it is not necessary to reproduce the factual matrix of the case. Suffice it to observe that the respondent filed the aforementioned Company Petition before the National Company Law Tribunal under Section 7 of the I.& B. Code. The same was admitted on 09.08.2018 and consequential directions came to be issued in the matter. In the appeal preferred before the National Company Law Appellate Tribunal, one of the grounds agitated in the appeal memo was that the claim of the respondent was admittedly barred by time. For, admittedly, the default was committed on 08.07.2011 whereas the petition had been filed in March 2018. 6. Although, we find that the ground articulated in the appeal memo is vague, but, as the objection regarding limitation goes to the root of the matter and touches upon the jurisdiction of the National Company Law Tribunal to proceed with the claim of the respondent; and since the recent decision of this Court in B.K. Educational Services Pvt. Ltd. Vs. Paras Gupta & Associates - AIR 2018 SC 5601 has held that the question of limitation is applicable even to applications filed under Section 7 of the I.& B. Code, it would be just and necessary to answer the said objection appropriately, in accordance with law. 7. Indisputably, neither the National Company Law Tribunal nor the National Company Law Appellate Tribunal, in the present case, has examined the said contention. Indeed, according to the respondent, the plea of claim being barred by limitation is unstatable and, to buttress this argument, the respondent has relied upon the entries in the books of account of the appellant and other related documents. However, that is a matter which ought to be agitated before the National Company Law Appellate Tribunal in the first place.
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### Explanation:
6. Although, we find that the ground articulated in the appeal memo is vague, but, as the objection regarding limitation goes to the root of the matter and touches upon the jurisdiction of the National Company Law Tribunal to proceed with the claim of the respondent; and since the recent decision of this Court in B.K. Educational Services Pvt. Ltd. Vs. Paras Gupta & Associates - AIR 2018 SC 5601 has held that the question of limitation is applicable even to applications filed under Section 7 of the I.& B. Code, it would be just and necessary to answer the said objection appropriately, in accordance with law.7. Indisputably, neither the National Company Law Tribunal nor the National Company Law Appellate Tribunal, in the present case, has examined the said contention. Indeed, according to the respondent, the plea of claim being barred by limitation is unstatable and, to buttress this argument, the respondent has relied upon the entries in the books of account of the appellant and other related documents. However, that is a matter which ought to be agitated before the National Company Law Appellate Tribunal in the first place.
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SURINDER NATH KESAR Vs. BOARD OF SCHOOL EDUCATION | preceding the interruption should not be less than five years duration. In cases where there are two or more interruptions, the total service, pensionary benefits in respect of which shall be lost if the interruptions are not condoned should not be less than five years. (3) The interruption should not be of more than one years duration. In cases where there are two or more interruptions, the total period of all interruptions to be condoned should not exceed one year. As the service of the petitioner preceding the interruption was less than five years, the break cannot be condoned in terms of this rule. No other provision was brought to my notice on the basis of which the break can be condoned so as to entitle the petitioner to claim pension after counting his previous service in the Industries Department. 10. Rule 4.23 does not permit condonation of interruption of more than one years duration, hence the case of the appellant was not covered under Rule 4.23. It was due to this reason that a letter was written by the Government for obtaining relaxation under Rule 4.23. In letter dated 24.08.2000 of Director, Secondary Education Haryana, Chandigarh (Annexure P-15) it was provided that relaxation be obtained in Rule 4.23 of Punjab Civil Services Rules Volume II from Finance Department through Commissioner and Secretary, Haryana Govt. Education Department. In letter dated 24.08.2000, following was stated:- As such in view of the audit objection you are requested to kindly obtained relaxation in Rule 4.23 of Punjab CSR Vol. II from Finance Department through Commissioner and Secretary Haryana Govt. Education Department and the same may be sent to this office. 11. The relaxation from Rule 4.23 as claimed by the appellant was not acceded to by the Government, which was communicated by letter dated 24.08.2001 of Director, Secondary Education Haryana, Chandigarh. It is useful to extract the said letter, which has been brought on record as Annexure P-16, which is to the following effect:- From Director,Secondary Education Haryana,Chandigarh. To, Secretary,Board of School EducationHaryana, Bhiwani. Letter No.5/37-99-E(2) Dt. Chandigarh 24.8.2001 Subject : Regarding granting of benefit of past service to Sh. Surinder Nath Kesar, Proof Reader. With reference to your letter No.334- 35 dt. 31.07.2001 on the subject noted above. In this matter the Finance Department has declined to accept the proposal of this Department and has suggested that the pay of the employee be fixed under Foot Note 6 of Rule 7.18 of CSR Vol. II. Sd/-Assistant Director Schools-1for Director Secondary Education Haryana,Chandigarh. 12. From the above, it is clear that the case of the appellant was not covered by Rule 4.23 and further the request for granting relaxation by the Government from Rule 4.23 was not acceded to. When the State has refused to grant relaxation in the rule, the refusal by the respondent for adding the period of interruption for pensionary benefit cannot be faulted. 13. Insofar as the submission of the learned counsel for the appellant that Board has resolved to condone the interruption and it was only after five years, the claim is denied by the Government, it is relevant to notice that in the resolution of the Board dated 31.05.1994, it was provided that regarding giving benefit of the past service, the opinion of the State Government be obtained. Further, although the Board passed resolution on 31.03.1995 to add the period subject to appellant depositing the provident fund, gratuity and leave encashment, the amount sought to be deposited in pursuance of the resolution of the Board was not accepted due to certain audit objection and when the appellant deposited the amount on 15.05.2000, the Board was directed to obtain relaxation in Rule 4.23 since the appellants case for condonation of interruption was not covered by Rule 4.23. The Government having subsequently refused the relaxation in Rule 4.23, the benefit was denied. Insofar as letter dated 27.05.1997 from Financial Commissioner & Secretary regarding giving the benefit of past service, it was also mentioned that the case is not covered by Rule 4.23 PCSR Volume II and clarification was called from the Board. Letter dated 05.12.1994, which was also a letter from Financial Commissioner & Secretary was based on Rule 4.22, which mentioned that period of break in service of the appellant be condoned which can only be treated as leave without pay, which can only be counted for seniority and pension. The said letter cannot come to the rescue of the appellant since it did not refer to Rule 4.23, which was relevant and Rule 4.22, which referred to interruption in period of absence and the period from 02.02.1988 to 02.08.1994 was not period of absence but was a period when the appellant had already taken voluntary retirement, the said letter also does not come to rescue of the appellant. Further subsequent correspondences with the Board and the Government clearly indicate that rule, which was relevant was Rule 4.23 as applicable in the State of Haryana and the proposal for relaxation from Rule 4.23 was not acceded to by the Government as communicated by Director of Secondary Education Haryana by letter dated 24.08.2001. 14. At no stage, the Government condoned the interruption between 02.02.1988 to 02.08.1994. Although, learned Single Judge has dismissed the writ petition, which judgment has been affirmed by the Division Bench but High Court having not considered the relevant rule, i.e., Rule 4.23 as applicable in the State of Haryana, which rule, we have noticed above, the dismissal of the writ petition has to be sustained but on the reasons as given above. 15. When the Statute does not permit condonation of interruption of period from 02.02.1988 to 02.08.1994 and the proposal for granting relaxation in Rule 4.23 had been refused, we cannot find any fault in the decision of the respondent refusing to grant the benefit of condonation by adding the earlier period. The appellants period after fresh appointment from 03.08.1994 being less than qualifying service of 10 years, he was not entitled for pension. | 0[ds]12. From the above, it is clear that the case of the appellant was not covered by Rule 4.23 and further the request for granting relaxation by the Government from Rule 4.23 was not acceded to. When the State has refused to grant relaxation in the rule, the refusal by the respondent for adding the period of interruption for pensionary benefit cannot be faulted13. Insofar as the submission of the learned counsel for the appellant that Board has resolved to condone the interruption and it was only after five years, the claim is denied by the Government, it is relevant to notice that in the resolution of the Board dated 31.05.1994, it was provided that regarding giving benefit of the past service, the opinion of the State Government be obtained. Further, although the Board passed resolution on 31.03.1995 to add the period subject to appellant depositing the provident fund, gratuity and leave encashment, the amount sought to be deposited in pursuance of the resolution of the Board was not accepted due to certain audit objection and when the appellant deposited the amount on 15.05.2000, the Board was directed to obtain relaxation in Rule 4.23 since the appellants case for condonation of interruption was not covered by Rule 4.23. The Government having subsequently refused the relaxation in Rule 4.23, the benefit was denied. Insofar as letter dated 27.05.1997 from Financial Commissioner & Secretary regarding giving the benefit of past service, it was also mentioned that the case is not covered by Rule 4.23 PCSR Volume II and clarification was called from the Board. Letter dated 05.12.1994, which was also a letter from Financial Commissioner & Secretary was based on Rule 4.22, which mentioned that period of break in service of the appellant be condoned which can only be treated as leave without pay, which can only be counted for seniority and pension. The said letter cannot come to the rescue of the appellant since it did not refer to Rule 4.23, which was relevant and Rule 4.22, which referred to interruption in period of absence and the period from 02.02.1988 to 02.08.1994 was not period of absence but was a period when the appellant had already taken voluntary retirement, the said letter also does not come to rescue of the appellant. Further subsequent correspondences with the Board and the Government clearly indicate that rule, which was relevant was Rule 4.23 as applicable in the State of Haryana and the proposal for relaxation from Rule 4.23 was not acceded to by the Government as communicated by Director of Secondary Education Haryana by letter dated 24.08.200114. At no stage, the Government condoned the interruption between 02.02.1988 to 02.08.1994. Although, learned Single Judge has dismissed the writ petition, which judgment has been affirmed by the Division Bench but High Court having not considered the relevant rule, i.e., Rule 4.23 as applicable in the State of Haryana, which rule, we have noticed above, the dismissal of the writ petition has to be sustained but on the reasons as given above15. When the Statute does not permit condonation of interruption of period from 02.02.1988 to 02.08.1994 and the proposal for granting relaxation in Rule 4.23 had been refused, we cannot find any fault in the decision of the respondent refusing to grant the benefit of condonation by adding the earlier period. The appellants period after fresh appointment from 03.08.1994 being less than qualifying service of 10 years, he was not entitled for pension. | 0 | 3,508 | 627 | ### Instruction:
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### Input:
preceding the interruption should not be less than five years duration. In cases where there are two or more interruptions, the total service, pensionary benefits in respect of which shall be lost if the interruptions are not condoned should not be less than five years. (3) The interruption should not be of more than one years duration. In cases where there are two or more interruptions, the total period of all interruptions to be condoned should not exceed one year. As the service of the petitioner preceding the interruption was less than five years, the break cannot be condoned in terms of this rule. No other provision was brought to my notice on the basis of which the break can be condoned so as to entitle the petitioner to claim pension after counting his previous service in the Industries Department. 10. Rule 4.23 does not permit condonation of interruption of more than one years duration, hence the case of the appellant was not covered under Rule 4.23. It was due to this reason that a letter was written by the Government for obtaining relaxation under Rule 4.23. In letter dated 24.08.2000 of Director, Secondary Education Haryana, Chandigarh (Annexure P-15) it was provided that relaxation be obtained in Rule 4.23 of Punjab Civil Services Rules Volume II from Finance Department through Commissioner and Secretary, Haryana Govt. Education Department. In letter dated 24.08.2000, following was stated:- As such in view of the audit objection you are requested to kindly obtained relaxation in Rule 4.23 of Punjab CSR Vol. II from Finance Department through Commissioner and Secretary Haryana Govt. Education Department and the same may be sent to this office. 11. The relaxation from Rule 4.23 as claimed by the appellant was not acceded to by the Government, which was communicated by letter dated 24.08.2001 of Director, Secondary Education Haryana, Chandigarh. It is useful to extract the said letter, which has been brought on record as Annexure P-16, which is to the following effect:- From Director,Secondary Education Haryana,Chandigarh. To, Secretary,Board of School EducationHaryana, Bhiwani. Letter No.5/37-99-E(2) Dt. Chandigarh 24.8.2001 Subject : Regarding granting of benefit of past service to Sh. Surinder Nath Kesar, Proof Reader. With reference to your letter No.334- 35 dt. 31.07.2001 on the subject noted above. In this matter the Finance Department has declined to accept the proposal of this Department and has suggested that the pay of the employee be fixed under Foot Note 6 of Rule 7.18 of CSR Vol. II. Sd/-Assistant Director Schools-1for Director Secondary Education Haryana,Chandigarh. 12. From the above, it is clear that the case of the appellant was not covered by Rule 4.23 and further the request for granting relaxation by the Government from Rule 4.23 was not acceded to. When the State has refused to grant relaxation in the rule, the refusal by the respondent for adding the period of interruption for pensionary benefit cannot be faulted. 13. Insofar as the submission of the learned counsel for the appellant that Board has resolved to condone the interruption and it was only after five years, the claim is denied by the Government, it is relevant to notice that in the resolution of the Board dated 31.05.1994, it was provided that regarding giving benefit of the past service, the opinion of the State Government be obtained. Further, although the Board passed resolution on 31.03.1995 to add the period subject to appellant depositing the provident fund, gratuity and leave encashment, the amount sought to be deposited in pursuance of the resolution of the Board was not accepted due to certain audit objection and when the appellant deposited the amount on 15.05.2000, the Board was directed to obtain relaxation in Rule 4.23 since the appellants case for condonation of interruption was not covered by Rule 4.23. The Government having subsequently refused the relaxation in Rule 4.23, the benefit was denied. Insofar as letter dated 27.05.1997 from Financial Commissioner & Secretary regarding giving the benefit of past service, it was also mentioned that the case is not covered by Rule 4.23 PCSR Volume II and clarification was called from the Board. Letter dated 05.12.1994, which was also a letter from Financial Commissioner & Secretary was based on Rule 4.22, which mentioned that period of break in service of the appellant be condoned which can only be treated as leave without pay, which can only be counted for seniority and pension. The said letter cannot come to the rescue of the appellant since it did not refer to Rule 4.23, which was relevant and Rule 4.22, which referred to interruption in period of absence and the period from 02.02.1988 to 02.08.1994 was not period of absence but was a period when the appellant had already taken voluntary retirement, the said letter also does not come to rescue of the appellant. Further subsequent correspondences with the Board and the Government clearly indicate that rule, which was relevant was Rule 4.23 as applicable in the State of Haryana and the proposal for relaxation from Rule 4.23 was not acceded to by the Government as communicated by Director of Secondary Education Haryana by letter dated 24.08.2001. 14. At no stage, the Government condoned the interruption between 02.02.1988 to 02.08.1994. Although, learned Single Judge has dismissed the writ petition, which judgment has been affirmed by the Division Bench but High Court having not considered the relevant rule, i.e., Rule 4.23 as applicable in the State of Haryana, which rule, we have noticed above, the dismissal of the writ petition has to be sustained but on the reasons as given above. 15. When the Statute does not permit condonation of interruption of period from 02.02.1988 to 02.08.1994 and the proposal for granting relaxation in Rule 4.23 had been refused, we cannot find any fault in the decision of the respondent refusing to grant the benefit of condonation by adding the earlier period. The appellants period after fresh appointment from 03.08.1994 being less than qualifying service of 10 years, he was not entitled for pension.
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0
### Explanation:
12. From the above, it is clear that the case of the appellant was not covered by Rule 4.23 and further the request for granting relaxation by the Government from Rule 4.23 was not acceded to. When the State has refused to grant relaxation in the rule, the refusal by the respondent for adding the period of interruption for pensionary benefit cannot be faulted13. Insofar as the submission of the learned counsel for the appellant that Board has resolved to condone the interruption and it was only after five years, the claim is denied by the Government, it is relevant to notice that in the resolution of the Board dated 31.05.1994, it was provided that regarding giving benefit of the past service, the opinion of the State Government be obtained. Further, although the Board passed resolution on 31.03.1995 to add the period subject to appellant depositing the provident fund, gratuity and leave encashment, the amount sought to be deposited in pursuance of the resolution of the Board was not accepted due to certain audit objection and when the appellant deposited the amount on 15.05.2000, the Board was directed to obtain relaxation in Rule 4.23 since the appellants case for condonation of interruption was not covered by Rule 4.23. The Government having subsequently refused the relaxation in Rule 4.23, the benefit was denied. Insofar as letter dated 27.05.1997 from Financial Commissioner & Secretary regarding giving the benefit of past service, it was also mentioned that the case is not covered by Rule 4.23 PCSR Volume II and clarification was called from the Board. Letter dated 05.12.1994, which was also a letter from Financial Commissioner & Secretary was based on Rule 4.22, which mentioned that period of break in service of the appellant be condoned which can only be treated as leave without pay, which can only be counted for seniority and pension. The said letter cannot come to the rescue of the appellant since it did not refer to Rule 4.23, which was relevant and Rule 4.22, which referred to interruption in period of absence and the period from 02.02.1988 to 02.08.1994 was not period of absence but was a period when the appellant had already taken voluntary retirement, the said letter also does not come to rescue of the appellant. Further subsequent correspondences with the Board and the Government clearly indicate that rule, which was relevant was Rule 4.23 as applicable in the State of Haryana and the proposal for relaxation from Rule 4.23 was not acceded to by the Government as communicated by Director of Secondary Education Haryana by letter dated 24.08.200114. At no stage, the Government condoned the interruption between 02.02.1988 to 02.08.1994. Although, learned Single Judge has dismissed the writ petition, which judgment has been affirmed by the Division Bench but High Court having not considered the relevant rule, i.e., Rule 4.23 as applicable in the State of Haryana, which rule, we have noticed above, the dismissal of the writ petition has to be sustained but on the reasons as given above15. When the Statute does not permit condonation of interruption of period from 02.02.1988 to 02.08.1994 and the proposal for granting relaxation in Rule 4.23 had been refused, we cannot find any fault in the decision of the respondent refusing to grant the benefit of condonation by adding the earlier period. The appellants period after fresh appointment from 03.08.1994 being less than qualifying service of 10 years, he was not entitled for pension.
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In Re: United India Insurance Co. Ltd. and Ors Vs. | India, in the year 2000, the 4 state-run, general insurance companies namely National Insurance Company Ltd, New India Assurance company limited, Oriental Insurance Company Ltd, and United India Insurance Company Ltd, started functioning independently. 4 That the said insurance companies formed an informal association known as the General Insurers (Public Sector) Association of India, with headquarters at Delhi. 5. GIPSA was set up simply as a forum for facilitating consultations and deliberations amongst its member companies on matters of common interest mandated to it by them without having any administrative, supervisory, controlling or statutory authority over the public sector insurance companies. 6. That the GIPSA is not a public authority and neither is the same statutory authority/body.? 12. The High Court in its judgment has noticed three schedules of fee issued by GIPSA, they are: (i) Circular dated 21.02.2005 noticing that GIPSA had approved the revised fees schedule of advocates/investigators w.e.f. 01.11.2004; (ii) Circular dated 09.01.2009 issued in pursuance of approved and revised fees schedule by GIPSA w.e.f. 01.01.2009; and (iii) Circular dated 18.03.2014 issued by GIPSA approving the advocates/investigators fee w.e.f. 01.04.2014. The High Court itself has noticed that there are no issues with regard to Circulars issued with regard to fee structure enforced from 2009 and 2014. The High Court noticed that the only issue is with regard to Circular dated 21.02.2005 of GIPSA regarding the revised fees schedule of advocates/investigators w.e.f. 01.11.2004. It has come on the record that w.e.f. 01.11.2004, the fee was fixed as Rs.7,500/-, which was not adopted in toto by the companies and based on Inter Company Coordination Committee meeting dated 16.03.2005 of the Chandigarh Regional Officers, fee was revised reducing from Rs.7,500/- to Rs.5,000/- for appeals filed by claimants against the MACT awards and Rs. 6,000/- for appeals filed on behalf of companies against MACT, which was to be enforced w.e.f. 01.04.2005. The High Court has noticed the said fact in Page 15 of the judgment. The High Court itself at Page 16 noticed following:-?The dispute, therefore, that now survives is with respect to the first Circular that was issued and according to the advocates, they are liable to be paid Rs.7500/- for each case irrespective of the fact whether the appeal had been filed by the claimants or by the companies; besides, there is no concept of half fee being paid at the time of filing the appeal and the balance fee at the time of disposal of the appeal even as per the Schedule of the Insurance Companies. Moreover, fee is also liable to be paid to the advocates who put in appearances before the Lok Adalats/Mediation Centers as also in cases where notices are accepted on the asking of the Court.? 13. From the above, it is clear that in so far as the payment of fee as per Circular issued of 2009 and 2014 is concerned, there was no issue raised. The companies themselves in the reply had stated that they are adhering to the said circulars and there was no complaint on behalf of the empanelled advocates regarding non-adherence of Circulars of 2009 and 2014. The Public Interest Litigation was registered suo moto by the High Court in 2015. At the time of registration of the Public Interest Litigation or when the order passed by the learned Single Judge on 12.09.2014, the fees schedule as enforced from circulars of 2009 and 2014 was very much in vogue and being adhered to. At that point of time, there was no occasion for the High Court to entertain the dispute as to whether the fee structure as enforced by GIPSA w.e.f. 01.11.2004 should have been followed and advocates should have been paid accordingly or advocates were rightly paid the fee as per the modified decision dated 16.03.2005, which decision was taken in the meeting of all the four insurance companies at regional level. The issue relating to non-payment of fee of empanelled advocates as per Circular dated 01.11.2004 could not have been undertaken in the Public Interest Litigation, more so, when the same was replaced by subsequent circulars of 2009 and 2014, which circulars were adhered to by the insurance companies. Adjudicating the said issue by the High Court was wholly uncalled for in the suo moto Public Interest Litigation, which cannot be in any manner held to be affecting the case of the ?poor litigants?, which was the main reason for the learned Single Judge to direct for suo moto registration of Public Interest Litigation. 14. We, thus, are of the view that entertainment of the issue regarding payment of fee as per circular dated 21.02.2005 by GIPSA or subsequently modified by proceeding dated 16.03.2005 w.e.f. 01.04.2005 ought not to have been gone in the writ petition and directions by the learned Single Judge in the above regard deserves to be set aside. 15. We may notice that although various issues relating to entertainability of the suo moto Public Interest Litigation by the High Court, enforceable by circulars issued by GIPSA, the issue of payment of fee to the empanelled advocates, has been raised before us. Learned counsel for the parties have also in support of their submissions relied on various judgments of this Court, but for the purpose of this case, we need not go into the above issues and we leave the said questions open to be considered in appropriate case. As we have observed above that the writ petition, which was entertained as a Public Interest Litigation, the stand taken by the insurance companies that they are adhering with the fee structure enforced from 2009 and 2014, which was not even objected by the learned counsel, who was appearing on behalf of the advocates, was sufficient enough to close the writ petition without entering into the issue pertaining to the earlier circular issued regarding fee structure w.e.f. 01.11.2004. We have decided these appeals on its own facts, which may not be referred to and relied as a precedent since, we have expressly left questions open. | 1[ds]8. A perusal of the order passed by the learned Single Judge of the High Court dated 12.09.2014 as extracted above indicates that learned Single Judge directed for suo moto registration of a Public Interest Litigation to look into the matter so that much relief could come about to the poor litigants, the reason, which mainly impelled the learned Single Judge to direct for registration of a Public Interest Litigation was a factum ofe of empanelled lawyers of the insurance companies when hearing of FAO No. 2604 of 2013 was fixed. The counsel representing the four insurance companies before the learned Single Judge brought their plight to the notice of learned Single JudgeThe High Court exercises its extraordinary jurisdiction under Article 226 when an element of public law exists. When learned Single Judge found that empanelled advocates are not appearing in the court, the learned Single Judge found that the said issue involved a public element, which ultimately affects the administration of justice and hence the learned Single Judge directed for registration of the Public Interest Litigation for the reasons as noticed by the learned Single Judge in his order dated 12.09.2014. We, at this stage, are not inclined to enter into the correctness or otherwise of the order directing for registration of Public Interest Litigation. The judgment challenged before us is the Division Bench judgment of Punjab & Haryana High Court dated 09.12.2016, which was passed in the Public Interest Litigation disposing of the writ petition. We, thus, confine our discussions only to the said order, leaving the question of registration of Public Interest Litigation open, in facts of the present case12. The High Court in its judgment has noticed three schedules of fee issued by GIPSA, they are: (i) Circular dated 21.02.2005 noticing that GIPSA had approved the revised fees schedule of advocates/investigators w.e.f. 01.11.2004; (ii) Circular dated 09.01.2009 issued in pursuance of approved and revised fees schedule by GIPSA w.e.f. 01.01.2009; and (iii) Circular dated 18.03.2014 issued by GIPSA approving the advocates/investigators fee w.e.f. 01.04.2014. The High Court itself has noticed that there are no issues with regard to Circulars issued with regard to fee structure enforced from 2009 and 2014. The High Court noticed that the only issue is with regard to Circular dated 21.02.2005 of GIPSA regarding the revised fees schedule of advocates/investigators w.e.f. 01.11.2004. It has come on the record that w.e.f. 01.11.2004, the fee was fixed as, which was not adopted in toto by the companies and based on Inter Company Coordination Committee meeting dated 16.03.2005 of the Chandigarh Regional Officers, fee was revised reducing from Rs.7,500/tofor appeals filed by claimants against the MACT awards and Rs. 6,000/for appeals filed on behalf of companies against MACT, which wastobe enforced w.e.f. 01.04.2005. The High Court has noticed the said fact in Page 15 of the judgment. The High Court itself at Page 16 noticed following:?The dispute, therefore, that now survives is with respecttothe first Circular that was issued and accordingtothe advocates, they are liabletobe paid Rs.7500/for each case irrespective of the fact whether the appeal had been filed by the claimants or by the companies; besides, there is no concept of half fee being paid at the time of filing the appeal and the balance fee at the time of disposal of the appeal even as per the Schedule of the Insurance Companies. Moreover, fee is also liabletobe paidtothe advocates who put in appearances before the Lok Adalats/Mediation Centers as also in cases where notices are accepted on the asking of the Court.?13. From the above, it is clear that in so far as the payment of fee as per Circular issued of 2009 and 2014 is concerned, there was no issue raised. The companies themselves in the reply had stated that they are adheringtothe said circulars and there was no complaint on behalf of the empanelled advocates regardinge of Circulars of 2009 and 2014. The Public Interest Litigation was registered suoby the High Court in 2015. At the time of registration of the Public Interest Litigation or when the order passed by the learned Single Judge on 12.09.2014, the fees schedule as enforced from circulars of 2009 and 2014 was very much in vogue and being adhered. At that point of time, there was no occasion for the High Courttoentertain the dispute astowhether the fee structure as enforced by GIPSA w.e.f. 01.11.2004 should have been followed and advocates should have been paid accordingly or advocates were rightly paid the fee as per the modified decision dated 16.03.2005, which decision was taken in the meeting of all the four insurance companies at regional level. The issue relatingtot of fee of empanelled advocates as per Circular dated 01.11.2004 could not have been undertaken in the Public Interest Litigation, more so, when the same was replaced by subsequent circulars of 2009 and 2014, which circulars were adheredtoby the insurance companies. Adjudicating the said issue by the High Court was wholly uncalled for in the suoPublic Interest Litigation, which cannot be in any manner heldtobe affecting the case of the ?poor litigants?, which was the main reason for the learned Single Judgetodirect for suoregistration of Public Interest Litigation14. We, thus, are of the view that entertainment of the issue regarding payment of fee as per circular dated21.02.2005 by GIPSA or subsequently modified by proceeding dated 16.03.2005 w.e.f. 01.04.2005 ought nottohave been gone in the writ petition and directions by the learned Single Judge in the above regard deservestobe set aside15. We may notice that although various issues relatingtoentertainability of the suoPublic Interest Litigation by the High Court, enforceable by circulars issued by GIPSA, the issue of payment of feetothe empanelled advocates, has been raised before us. Learned counsel for the parties have also in support of their submissions relied on various judgments of this Court, but for the purpose of this case, we need not gothe above issues and we leave the said questions opentobe considered in appropriate case. As we have observed above that the writ petition, which was entertained as a Public Interest Litigation, the stand taken by the insurance companies that they are adhering with the fee structure enforced from 2009 and 2014, which was not even objected by the learned counsel, who was appearing on behalf of the advocates, was sufficient enoughtoclose the writ petition without enteringthe issue pertainingtothe earlier circular issued regarding fee structure w.e.f. 01.11.2004. We have decided these appeals on its own facts, which may not be referredtoand relied as a precedent since, we have expressly left questions open. | 1 | 3,824 | 1,193 | ### 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:
India, in the year 2000, the 4 state-run, general insurance companies namely National Insurance Company Ltd, New India Assurance company limited, Oriental Insurance Company Ltd, and United India Insurance Company Ltd, started functioning independently. 4 That the said insurance companies formed an informal association known as the General Insurers (Public Sector) Association of India, with headquarters at Delhi. 5. GIPSA was set up simply as a forum for facilitating consultations and deliberations amongst its member companies on matters of common interest mandated to it by them without having any administrative, supervisory, controlling or statutory authority over the public sector insurance companies. 6. That the GIPSA is not a public authority and neither is the same statutory authority/body.? 12. The High Court in its judgment has noticed three schedules of fee issued by GIPSA, they are: (i) Circular dated 21.02.2005 noticing that GIPSA had approved the revised fees schedule of advocates/investigators w.e.f. 01.11.2004; (ii) Circular dated 09.01.2009 issued in pursuance of approved and revised fees schedule by GIPSA w.e.f. 01.01.2009; and (iii) Circular dated 18.03.2014 issued by GIPSA approving the advocates/investigators fee w.e.f. 01.04.2014. The High Court itself has noticed that there are no issues with regard to Circulars issued with regard to fee structure enforced from 2009 and 2014. The High Court noticed that the only issue is with regard to Circular dated 21.02.2005 of GIPSA regarding the revised fees schedule of advocates/investigators w.e.f. 01.11.2004. It has come on the record that w.e.f. 01.11.2004, the fee was fixed as Rs.7,500/-, which was not adopted in toto by the companies and based on Inter Company Coordination Committee meeting dated 16.03.2005 of the Chandigarh Regional Officers, fee was revised reducing from Rs.7,500/- to Rs.5,000/- for appeals filed by claimants against the MACT awards and Rs. 6,000/- for appeals filed on behalf of companies against MACT, which was to be enforced w.e.f. 01.04.2005. The High Court has noticed the said fact in Page 15 of the judgment. The High Court itself at Page 16 noticed following:-?The dispute, therefore, that now survives is with respect to the first Circular that was issued and according to the advocates, they are liable to be paid Rs.7500/- for each case irrespective of the fact whether the appeal had been filed by the claimants or by the companies; besides, there is no concept of half fee being paid at the time of filing the appeal and the balance fee at the time of disposal of the appeal even as per the Schedule of the Insurance Companies. Moreover, fee is also liable to be paid to the advocates who put in appearances before the Lok Adalats/Mediation Centers as also in cases where notices are accepted on the asking of the Court.? 13. From the above, it is clear that in so far as the payment of fee as per Circular issued of 2009 and 2014 is concerned, there was no issue raised. The companies themselves in the reply had stated that they are adhering to the said circulars and there was no complaint on behalf of the empanelled advocates regarding non-adherence of Circulars of 2009 and 2014. The Public Interest Litigation was registered suo moto by the High Court in 2015. At the time of registration of the Public Interest Litigation or when the order passed by the learned Single Judge on 12.09.2014, the fees schedule as enforced from circulars of 2009 and 2014 was very much in vogue and being adhered to. At that point of time, there was no occasion for the High Court to entertain the dispute as to whether the fee structure as enforced by GIPSA w.e.f. 01.11.2004 should have been followed and advocates should have been paid accordingly or advocates were rightly paid the fee as per the modified decision dated 16.03.2005, which decision was taken in the meeting of all the four insurance companies at regional level. The issue relating to non-payment of fee of empanelled advocates as per Circular dated 01.11.2004 could not have been undertaken in the Public Interest Litigation, more so, when the same was replaced by subsequent circulars of 2009 and 2014, which circulars were adhered to by the insurance companies. Adjudicating the said issue by the High Court was wholly uncalled for in the suo moto Public Interest Litigation, which cannot be in any manner held to be affecting the case of the ?poor litigants?, which was the main reason for the learned Single Judge to direct for suo moto registration of Public Interest Litigation. 14. We, thus, are of the view that entertainment of the issue regarding payment of fee as per circular dated 21.02.2005 by GIPSA or subsequently modified by proceeding dated 16.03.2005 w.e.f. 01.04.2005 ought not to have been gone in the writ petition and directions by the learned Single Judge in the above regard deserves to be set aside. 15. We may notice that although various issues relating to entertainability of the suo moto Public Interest Litigation by the High Court, enforceable by circulars issued by GIPSA, the issue of payment of fee to the empanelled advocates, has been raised before us. Learned counsel for the parties have also in support of their submissions relied on various judgments of this Court, but for the purpose of this case, we need not go into the above issues and we leave the said questions open to be considered in appropriate case. As we have observed above that the writ petition, which was entertained as a Public Interest Litigation, the stand taken by the insurance companies that they are adhering with the fee structure enforced from 2009 and 2014, which was not even objected by the learned counsel, who was appearing on behalf of the advocates, was sufficient enough to close the writ petition without entering into the issue pertaining to the earlier circular issued regarding fee structure w.e.f. 01.11.2004. We have decided these appeals on its own facts, which may not be referred to and relied as a precedent since, we have expressly left questions open.
### Response:
1
### Explanation:
was fixed. The counsel representing the four insurance companies before the learned Single Judge brought their plight to the notice of learned Single JudgeThe High Court exercises its extraordinary jurisdiction under Article 226 when an element of public law exists. When learned Single Judge found that empanelled advocates are not appearing in the court, the learned Single Judge found that the said issue involved a public element, which ultimately affects the administration of justice and hence the learned Single Judge directed for registration of the Public Interest Litigation for the reasons as noticed by the learned Single Judge in his order dated 12.09.2014. We, at this stage, are not inclined to enter into the correctness or otherwise of the order directing for registration of Public Interest Litigation. The judgment challenged before us is the Division Bench judgment of Punjab & Haryana High Court dated 09.12.2016, which was passed in the Public Interest Litigation disposing of the writ petition. We, thus, confine our discussions only to the said order, leaving the question of registration of Public Interest Litigation open, in facts of the present case12. The High Court in its judgment has noticed three schedules of fee issued by GIPSA, they are: (i) Circular dated 21.02.2005 noticing that GIPSA had approved the revised fees schedule of advocates/investigators w.e.f. 01.11.2004; (ii) Circular dated 09.01.2009 issued in pursuance of approved and revised fees schedule by GIPSA w.e.f. 01.01.2009; and (iii) Circular dated 18.03.2014 issued by GIPSA approving the advocates/investigators fee w.e.f. 01.04.2014. The High Court itself has noticed that there are no issues with regard to Circulars issued with regard to fee structure enforced from 2009 and 2014. The High Court noticed that the only issue is with regard to Circular dated 21.02.2005 of GIPSA regarding the revised fees schedule of advocates/investigators w.e.f. 01.11.2004. It has come on the record that w.e.f. 01.11.2004, the fee was fixed as, which was not adopted in toto by the companies and based on Inter Company Coordination Committee meeting dated 16.03.2005 of the Chandigarh Regional Officers, fee was revised reducing from Rs.7,500/tofor appeals filed by claimants against the MACT awards and Rs. 6,000/for appeals filed on behalf of companies against MACT, which wastobe enforced w.e.f. 01.04.2005. The High Court has noticed the said fact in Page 15 of the judgment. The High Court itself at Page 16 noticed following:?The dispute, therefore, that now survives is with respecttothe first Circular that was issued and accordingtothe advocates, they are liabletobe paid Rs.7500/for each case irrespective of the fact whether the appeal had been filed by the claimants or by the companies; besides, there is no concept of half fee being paid at the time of filing the appeal and the balance fee at the time of disposal of the appeal even as per the Schedule of the Insurance Companies. Moreover, fee is also liabletobe paidtothe advocates who put in appearances before the Lok Adalats/Mediation Centers as also in cases where notices are accepted on the asking of the Court.?13. From the above, it is clear that in so far as the payment of fee as per Circular issued of 2009 and 2014 is concerned, there was no issue raised. The companies themselves in the reply had stated that they are adheringtothe said circulars and there was no complaint on behalf of the empanelled advocates regardinge of Circulars of 2009 and 2014. The Public Interest Litigation was registered suoby the High Court in 2015. At the time of registration of the Public Interest Litigation or when the order passed by the learned Single Judge on 12.09.2014, the fees schedule as enforced from circulars of 2009 and 2014 was very much in vogue and being adhered. At that point of time, there was no occasion for the High Courttoentertain the dispute astowhether the fee structure as enforced by GIPSA w.e.f. 01.11.2004 should have been followed and advocates should have been paid accordingly or advocates were rightly paid the fee as per the modified decision dated 16.03.2005, which decision was taken in the meeting of all the four insurance companies at regional level. The issue relatingtot of fee of empanelled advocates as per Circular dated 01.11.2004 could not have been undertaken in the Public Interest Litigation, more so, when the same was replaced by subsequent circulars of 2009 and 2014, which circulars were adheredtoby the insurance companies. Adjudicating the said issue by the High Court was wholly uncalled for in the suoPublic Interest Litigation, which cannot be in any manner heldtobe affecting the case of the ?poor litigants?, which was the main reason for the learned Single Judgetodirect for suoregistration of Public Interest Litigation14. We, thus, are of the view that entertainment of the issue regarding payment of fee as per circular dated21.02.2005 by GIPSA or subsequently modified by proceeding dated 16.03.2005 w.e.f. 01.04.2005 ought nottohave been gone in the writ petition and directions by the learned Single Judge in the above regard deservestobe set aside15. We may notice that although various issues relatingtoentertainability of the suoPublic Interest Litigation by the High Court, enforceable by circulars issued by GIPSA, the issue of payment of feetothe empanelled advocates, has been raised before us. Learned counsel for the parties have also in support of their submissions relied on various judgments of this Court, but for the purpose of this case, we need not gothe above issues and we leave the said questions opentobe considered in appropriate case. As we have observed above that the writ petition, which was entertained as a Public Interest Litigation, the stand taken by the insurance companies that they are adhering with the fee structure enforced from 2009 and 2014, which was not even objected by the learned counsel, who was appearing on behalf of the advocates, was sufficient enoughtoclose the writ petition without enteringthe issue pertainingtothe earlier circular issued regarding fee structure w.e.f. 01.11.2004. We have decided these appeals on its own facts, which may not be referredtoand relied as a precedent since, we have expressly left questions open.
|
Estate Officer Vs. Colonel H.V. Mankotia (Retired) | the court, from which the reference has been received under sub-section (1) for disposal in accordance with law. (6) Where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, in a matter referred to in subsection (2), that Lok Adalat shall advice the parties to seek remedy in a court. (7) Where the record of the case is returned under subsection (5) to the court, such court shall proceed to deal with such case from the stage which was reached before such reference under sub-section (1). 6.1 As per sub-section (5) of Section 19, a Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or a settlement between the parties to a dispute in respect of (i) any case pending before; or (ii) any matter which is falling within the jurisdiction of, and is not brought before, any court for which the Lok Adalat is organised. As per sub-section (1) of Section 20 where in any case referred to in clause (i) of sub-section (5) of Section 19- (i) (a) the parties thereof agree; or (i) (b) one of the parties thereof makes an application to the court, for referring the case to the Lok Adalat for settlement and if such court is prima facie satisfied that there are chances of such settlement or (ii) the court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat, the court shall refer the case to the Lok Adalat. It further provides that no case shall be referred to the Lok Adalat under sub-clause (b) of clause (i) or clause (ii) by such court except after giving a reasonable opportunity of being heard to the parties. 6.2 As per sub-section (3) of Section 20 where any case is referred to a Lok Adalat under sub-section (1) or where a reference is made to it under sub-section (2), the Lok Adalat shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties. Sub-section (5) of Section 20 further provides that where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, the record of the case shall be returned by it to the court, from which the reference has been received under sub-section (1) for disposal in accordance with law. 7. Thus, a fair reading of the aforesaid provisions of the Legal Services Authorities Act, 1987 makes it clear that the jurisdiction of the Lok Adalat would be to determine and to arrive at a compromise or a settlement between the parties to a dispute and once the aforesaid settlement / compromise fails and no compromise or settlement could be arrived at between the parties, the Lok Adalat has to return the case to the Court from which the reference has been received for disposal in accordance with law and in any case, the Lok Adalat has no jurisdiction at all to decide the matter on meris once it is found that compromise or settlement could not be arrived at between the parties. 8. Identical question came to be considered by this Court in the case of State of Punjab and Ors. Vs. Ganpat Raj (supra) and after considering Section 20 of the Act, 1987, it is observed and held in paragraph 7 as under:- 7. The specific language used in sub-section (3) of Section 20 makes it clear that the Lok Adalat can dispose of a matter by way of a compromise or settlement between the parties. Two crucial terms in sub-sections (3) and (5) of Section 20 are compromise and settlement. The former expression means settlement of differences by mutual concessions. It is an agreement reached by adjustment of conflicting or opposing claims by reciprocal modification of demands. As per Termes de la Ley, compromise is a mutual promise of two or more parties that are at controversy. As per Bouvier it is an agreement between two or more persons, who, to avoid a law suit, amicably settle their differences, on such terms as they can agree upon. The word compromise implies some element of accommodation on each side. It is not apt to describe total surrender. (See NFU Development Trust Ltd., Re [(1973) 1 All ER 135 : (1972) 1 WLR 1548 (Ch D)] ). A compromise is always bilateral and means mutual adjustment. Settlement is termination of legal proceedings by mutual consent. The case at hand did not involve compromise or settlement and could not have been disposed of by the Lok Adalat. If no compromise or settlement is or could be arrived at, no order can be passed by the Lok Adalat. Therefore, the disposal of Civil Writ Petition No. 943 of 2000 filed by the respondent is clearly impermissible. 9. In view of the above, the impugned order passed by the Lok Adalat dismissing the writ petition on merits is unsustainable and deserves to be quashed and set aside. The submission made by the learned counsel appearing on behalf of the respondent that once the matter was placed before the Lok Adalat with consent, thereafter the entire matter is at large before the Lok Adalat and, therefore, the Lok Adalat is justified in disposing the matter on merits has no substance and the same is required to be rejected outright. The consent to place the matter before the Lok Adalat was to arrive at a settlement and or a compromise between the parties and not for placing the matter before the Lok Adalat for deciding the matter on merits. Once there is no compromise and/or a settlement between the parties before the Lok Adalat, as provided in sub-section (5) of Section 20, the matter has to be returned to the Court from where the matter was referred to Lok Adalat for deciding the matter on merits by the concerned court. | 1[ds]7. Thus, a fair reading of the aforesaid provisions of the Legal Services Authorities Act, 1987 makes it clear that the jurisdiction of the Lok Adalat would be to determine and to arrive at a compromise or a settlement between the parties to a dispute and once the aforesaid settlement / compromise fails and no compromise or settlement could be arrived at between the parties, the Lok Adalat has to return the case to the Court from which the reference has been received for disposal in accordance with law and in any case, the Lok Adalat has no jurisdiction at all to decide the matter on meris once it is found that compromise or settlement could not be arrived at between the parties.8. Identical question came to be considered by this Court in the case of State of Punjab and Ors. Vs. Ganpat Raj (supra) and after considering Section 20 of the Act, 1987, it is observed and held in paragraph 7 as under:-7. The specific language used in sub-section (3) of Section 20 makes it clear that the Lok Adalat can dispose of a matter by way of a compromise or settlement between the parties. Two crucial terms in sub-sections (3) and (5) of Section 20 are compromise and settlement. The former expression means settlement of differences by mutual concessions. It is an agreement reached by adjustment of conflicting or opposing claims by reciprocal modification of demands. As per Termes de la Ley, compromise is a mutual promise of two or more parties that are at controversy. As per Bouvier it is an agreement between two or more persons, who, to avoid a law suit, amicably settle their differences, on such terms as they can agree upon. The word compromise implies some element of accommodation on each side. It is not apt to describe total surrender. (See NFU Development Trust Ltd., Re [(1973) 1 All ER 135 : (1972) 1 WLR 1548 (Ch D)] ). A compromise is always bilateral and means mutual adjustment. Settlement is termination of legal proceedings by mutual consent. The case at hand did not involve compromise or settlement and could not have been disposed of by the Lok Adalat. If no compromise or settlement is or could be arrived at, no order can be passed by the Lok Adalat. Therefore, the disposal of Civil Writ Petition No. 943 of 2000 filed by the respondent is clearly impermissible.9. In view of the above, the impugned order passed by the Lok Adalat dismissing the writ petition on merits is unsustainable and deserves to be quashed and set aside. The submission made by the learned counsel appearing on behalf of the respondent that once the matter was placed before the Lok Adalat with consent, thereafter the entire matter is at large before the Lok Adalat and, therefore, the Lok Adalat is justified in disposing the matter on merits has no substance and the same is required to be rejected outright. The consent to place the matter before the Lok Adalat was to arrive at a settlement and or a compromise between the parties and not for placing the matter before the Lok Adalat for deciding the matter on merits. Once there is no compromise and/or a settlement between the parties before the Lok Adalat, as provided in sub-section (5) of Section 20, the matter has to be returned to the Court from where the matter was referred to Lok Adalat for deciding the matter on merits by the concerned court. | 1 | 2,607 | 651 | ### 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:
the court, from which the reference has been received under sub-section (1) for disposal in accordance with law. (6) Where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, in a matter referred to in subsection (2), that Lok Adalat shall advice the parties to seek remedy in a court. (7) Where the record of the case is returned under subsection (5) to the court, such court shall proceed to deal with such case from the stage which was reached before such reference under sub-section (1). 6.1 As per sub-section (5) of Section 19, a Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or a settlement between the parties to a dispute in respect of (i) any case pending before; or (ii) any matter which is falling within the jurisdiction of, and is not brought before, any court for which the Lok Adalat is organised. As per sub-section (1) of Section 20 where in any case referred to in clause (i) of sub-section (5) of Section 19- (i) (a) the parties thereof agree; or (i) (b) one of the parties thereof makes an application to the court, for referring the case to the Lok Adalat for settlement and if such court is prima facie satisfied that there are chances of such settlement or (ii) the court is satisfied that the matter is an appropriate one to be taken cognizance of by the Lok Adalat, the court shall refer the case to the Lok Adalat. It further provides that no case shall be referred to the Lok Adalat under sub-clause (b) of clause (i) or clause (ii) by such court except after giving a reasonable opportunity of being heard to the parties. 6.2 As per sub-section (3) of Section 20 where any case is referred to a Lok Adalat under sub-section (1) or where a reference is made to it under sub-section (2), the Lok Adalat shall proceed to dispose of the case or matter and arrive at a compromise or settlement between the parties. Sub-section (5) of Section 20 further provides that where no award is made by the Lok Adalat on the ground that no compromise or settlement could be arrived at between the parties, the record of the case shall be returned by it to the court, from which the reference has been received under sub-section (1) for disposal in accordance with law. 7. Thus, a fair reading of the aforesaid provisions of the Legal Services Authorities Act, 1987 makes it clear that the jurisdiction of the Lok Adalat would be to determine and to arrive at a compromise or a settlement between the parties to a dispute and once the aforesaid settlement / compromise fails and no compromise or settlement could be arrived at between the parties, the Lok Adalat has to return the case to the Court from which the reference has been received for disposal in accordance with law and in any case, the Lok Adalat has no jurisdiction at all to decide the matter on meris once it is found that compromise or settlement could not be arrived at between the parties. 8. Identical question came to be considered by this Court in the case of State of Punjab and Ors. Vs. Ganpat Raj (supra) and after considering Section 20 of the Act, 1987, it is observed and held in paragraph 7 as under:- 7. The specific language used in sub-section (3) of Section 20 makes it clear that the Lok Adalat can dispose of a matter by way of a compromise or settlement between the parties. Two crucial terms in sub-sections (3) and (5) of Section 20 are compromise and settlement. The former expression means settlement of differences by mutual concessions. It is an agreement reached by adjustment of conflicting or opposing claims by reciprocal modification of demands. As per Termes de la Ley, compromise is a mutual promise of two or more parties that are at controversy. As per Bouvier it is an agreement between two or more persons, who, to avoid a law suit, amicably settle their differences, on such terms as they can agree upon. The word compromise implies some element of accommodation on each side. It is not apt to describe total surrender. (See NFU Development Trust Ltd., Re [(1973) 1 All ER 135 : (1972) 1 WLR 1548 (Ch D)] ). A compromise is always bilateral and means mutual adjustment. Settlement is termination of legal proceedings by mutual consent. The case at hand did not involve compromise or settlement and could not have been disposed of by the Lok Adalat. If no compromise or settlement is or could be arrived at, no order can be passed by the Lok Adalat. Therefore, the disposal of Civil Writ Petition No. 943 of 2000 filed by the respondent is clearly impermissible. 9. In view of the above, the impugned order passed by the Lok Adalat dismissing the writ petition on merits is unsustainable and deserves to be quashed and set aside. The submission made by the learned counsel appearing on behalf of the respondent that once the matter was placed before the Lok Adalat with consent, thereafter the entire matter is at large before the Lok Adalat and, therefore, the Lok Adalat is justified in disposing the matter on merits has no substance and the same is required to be rejected outright. The consent to place the matter before the Lok Adalat was to arrive at a settlement and or a compromise between the parties and not for placing the matter before the Lok Adalat for deciding the matter on merits. Once there is no compromise and/or a settlement between the parties before the Lok Adalat, as provided in sub-section (5) of Section 20, the matter has to be returned to the Court from where the matter was referred to Lok Adalat for deciding the matter on merits by the concerned court.
### Response:
1
### Explanation:
7. Thus, a fair reading of the aforesaid provisions of the Legal Services Authorities Act, 1987 makes it clear that the jurisdiction of the Lok Adalat would be to determine and to arrive at a compromise or a settlement between the parties to a dispute and once the aforesaid settlement / compromise fails and no compromise or settlement could be arrived at between the parties, the Lok Adalat has to return the case to the Court from which the reference has been received for disposal in accordance with law and in any case, the Lok Adalat has no jurisdiction at all to decide the matter on meris once it is found that compromise or settlement could not be arrived at between the parties.8. Identical question came to be considered by this Court in the case of State of Punjab and Ors. Vs. Ganpat Raj (supra) and after considering Section 20 of the Act, 1987, it is observed and held in paragraph 7 as under:-7. The specific language used in sub-section (3) of Section 20 makes it clear that the Lok Adalat can dispose of a matter by way of a compromise or settlement between the parties. Two crucial terms in sub-sections (3) and (5) of Section 20 are compromise and settlement. The former expression means settlement of differences by mutual concessions. It is an agreement reached by adjustment of conflicting or opposing claims by reciprocal modification of demands. As per Termes de la Ley, compromise is a mutual promise of two or more parties that are at controversy. As per Bouvier it is an agreement between two or more persons, who, to avoid a law suit, amicably settle their differences, on such terms as they can agree upon. The word compromise implies some element of accommodation on each side. It is not apt to describe total surrender. (See NFU Development Trust Ltd., Re [(1973) 1 All ER 135 : (1972) 1 WLR 1548 (Ch D)] ). A compromise is always bilateral and means mutual adjustment. Settlement is termination of legal proceedings by mutual consent. The case at hand did not involve compromise or settlement and could not have been disposed of by the Lok Adalat. If no compromise or settlement is or could be arrived at, no order can be passed by the Lok Adalat. Therefore, the disposal of Civil Writ Petition No. 943 of 2000 filed by the respondent is clearly impermissible.9. In view of the above, the impugned order passed by the Lok Adalat dismissing the writ petition on merits is unsustainable and deserves to be quashed and set aside. The submission made by the learned counsel appearing on behalf of the respondent that once the matter was placed before the Lok Adalat with consent, thereafter the entire matter is at large before the Lok Adalat and, therefore, the Lok Adalat is justified in disposing the matter on merits has no substance and the same is required to be rejected outright. The consent to place the matter before the Lok Adalat was to arrive at a settlement and or a compromise between the parties and not for placing the matter before the Lok Adalat for deciding the matter on merits. Once there is no compromise and/or a settlement between the parties before the Lok Adalat, as provided in sub-section (5) of Section 20, the matter has to be returned to the Court from where the matter was referred to Lok Adalat for deciding the matter on merits by the concerned court.
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G B Mahajan Vs. The Jalgaon Municipal Council | frequently cited passage (though most commonly cited only by its nickname) in administrative law. It explains how reasonableness, in its classic formulation, covers a multitude of sins. These various errors commonly result from paying too much attention to the mere words of the Act and too little to its general scheme and purpose, and from the fallacy that unrestricted language naturally confers unfettered discretion. Unreasonableness has thus become a generalised rubric covering not only sheer absurdity or caprice, but merging into illegitimate motives and purposes, a wide category of errors commonly described as irrelevant considerations, and mistakes and misunderstandings which can be classed as self-misdirection, or addressing oneself to the wrong question... ... " The point to note is that a thing is not unreasonable in the legal sense merely because the Court thinks it is unwise. Some observations of Lord Scarman in Nottinghamshire County Council v. Secretary of State for Environment, (1986 AC 240 at 247) might usefully be recalled: "... But I cannot accept that it is constitutionally appropriate, save in very exceptional circumstances, for the Courts to intervene on the ground of "unreasonableness" to quash guidance framed by the Secretary of State and by necessary implication approved by the House of Commons, the guidance being concerned with the limits of public expenditure by local authorities and the incidence of the tax burden as between taxpayers and ratepayers. Unless and until a statute provides otherwise, or it is established that the Secretary of State has abused his power, these are matters of political judgment for him and for the House of Commons. they are not for the judges or your Lordships House in its judicial capacity." "For myself, I refuse in this case to examine the detail of the guidance or its consequences. My reasons. are these. Such an examination by a Court would be justified only if a prima facie case were to be shown for holding that the Secretary of State had acted in bad faith, or for an improper motive, or that the consequences of his guidance were so absurd that he must have taken leave of his senses... ...." When Lord Denning MR stated in the Court of Appeal that "Not only must (the probationer-Counseller) be given a fair hearing, but the decision itself must be fair and reasonable" (emphasis supplied), the House of Lords thought that the statement of the learned Master of the Rolls, if allowed to pass into law, would wrongly transform the remedy of judicial review, as the statement would imply that the Court can itself sit, as in appeal, in judgment of the reasonableness of the decision instead of on the correctness of the "decision making process". "The purpose of judicial review", it was stated : "... . is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the Court." ( 20. ) While it is true that principles of judicial review apply to the exercise by a government body of its contractual powers, the inherent limitations on the scope of the inquiry are themselves a part of those principles. For instance, in a matter even as between the parties, there must be shown a public law element to the contractual decision before judicial review is invoked. In the present case the material placed before the Court falls far short of what the law requires to justify interference. ( 21. ) In regard to the allegation that the Project Scheme was tailored to suit respondent 6 alone or that the project as put to tender did not admit of tenders on fixed comparable parameters, we find no merit. Sri K. K. Singhvi submitted that the tender papers were prepared by reputed architects and the precise points on which comparative quotations were invited were specifically incorporated in the tender-papers. The point again is that no other tenderer expressed any grievance. The tenders were such that the tenderer could identify the terms which form the basis of comparative evaluation. The charge of arbitrariness cannot be upheld. Tests to be applied in a given case may be influenced by the extent to which a decision is supported by a democratic unanimity which evidences the decision - granted, of course, the power.( 22. ) Sri R. K. Jain stated that the scheme enables respondent 6 to resort to certain well-known financial malpractices for tax-evasion now known to be rampant when properties change hands. Sri Jain said that the Court ought to take judicial notice of so rampant and pervasive an evil and interdict anything that tends to promote such unhealthy economic trends. While it is true that large scale tax-evasion and evils of unaccounted money bedevils the nations economic discipline and that with the increasing erosion of morality in public life and the serious personal degradations for unjust gains one sees all-round, the situation is, indeed, serious. But we fail to see what the Court can do in a case like this. The present argument proceeds on two assumptions. The first is that respondent No. 6 has, in fact, indulged in such practices in the matter of disposal of occupancy-rights. This is a mere allegation which is emphatically repudiated by respondent No. 6. The second is that the accommodation in this commercial complex is such good competitive selling proposition that there is great demand and limited supply enabling respondent 6 to exploit the situation. This again is a matter of mere allegation. To condemn the municipal authoritys decision, otherwise valid, on the ground alone that the developer is likely to resort to transactions of unaccounted money would, as a judicial remedy, be plainly unthinkable. Contention (d) requires to be and is also held against appellants.( 23. ) On a consideration of the matter, we think that the conclusion reached by the High Court does not call for interference. | 0[ds]( 12. ) Re: Contention (a) The mode of financing of the project is stated to be unconventional one and does not accord with any recognised or accepted norms of functioning and financial discipline of Governmental bodies. It is urged that while the Municipal Council could have engaged a contractor to execute the work against payment in accordance with well accepted procedures for Government contracts or could have executed the works itself departmentally. It is said that the method now chosen for the development involves a policy impermissible for a Government body. This contention of the appellants, as a legal contention is not somewhat vague and does not admit oflegal contours. As we apprehend the contention, it pertains to the legality or propriety of aHowever, reliance was placed on certain observations of this Court in Ramana Dayanand Shetty v. International Airport Authority (1979 (3) SCR 1014 : (AIR 1979 SC 1628 ) and Kasturilal Laxmi Reddy v. State of J and K (1980 (3) SCR 1338 ): (AIR 1980 SC 1992 ). In those cases relied this Court pointed out that with the growth of a welfare state and with the Government assuming a pluralist role as provider of social welfare services and with the corresponding increase in the magnitude of the governmental functions and the consequent evolution of new forms of wealth and new forms of property, the scope for conferment of largesse by Government had increased and the discretion of Government in the disposal of such properties, rights or privileges should not be unlimited and15. ) We hold that Contention (a) does not justify quashing of the impugned Resolution of the Municipal Council.(17. ) On a consideration of the matter we find no substance in contentions (b) and (c) either(21. ) In regard to the allegation that the Project Scheme was tailored to suit respondent 6 alone or that the project as put to tender did not admit of tenders on fixed comparable parameters, we find no merit. Sri K. K. Singhvi submitted that the tender papers were prepared by reputed architects and the precise points on which comparative quotations were invited were specifically incorporated in theThe point again is that no other tenderer expressed any grievance. The tenders were such that the tenderer could identify the terms which form the basis of comparative evaluation. The charge of arbitrariness cannot be upheld. Tests to be applied in a given case may be influenced by the extent to which a decision is supported by a democratic unanimity which evidences the decisiongranted, of course, the power.( 22. ) Sri R. K. Jain stated that the scheme enables respondent 6 to resort to certainfinancial malpractices fornow known to be rampant when properties change hands. Sri Jain said that the Court ought to take judicial notice of so rampant and pervasive an evil and interdict anything that tends to promote such unhealthy economic trends. While it is true that large scaleand evils of unaccounted money bedevils the nations economic discipline and that with the increasing erosion of morality in public life and the serious personal degradations for unjust gains one seesthe situation is, indeed, serious. But we fail to see what the Court can do in a case like this. The present argument proceeds on two assumptions. The first is that respondent No. 6 has, in fact, indulged in such practices in the matter of disposal ofThis is a mere allegation which is emphatically repudiated by respondent No. 6. The second is that the accommodation in this commercial complex is such good competitive selling proposition that there is great demand and limited supply enabling respondent 6 to exploit the situation. This again is a matter of mere allegation. To condemn the municipal authoritys decision, otherwise valid, on the ground alone that the developer is likely to resort to transactions of unaccounted money would, as a judicial remedy, be plainly unthinkable. Contention (d) requires to be and is also held against appellants.( 23. ) On a consideration of the matter, we think that the conclusion reached by the High Court does not call for interference. | 0 | 8,911 | 759 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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frequently cited passage (though most commonly cited only by its nickname) in administrative law. It explains how reasonableness, in its classic formulation, covers a multitude of sins. These various errors commonly result from paying too much attention to the mere words of the Act and too little to its general scheme and purpose, and from the fallacy that unrestricted language naturally confers unfettered discretion. Unreasonableness has thus become a generalised rubric covering not only sheer absurdity or caprice, but merging into illegitimate motives and purposes, a wide category of errors commonly described as irrelevant considerations, and mistakes and misunderstandings which can be classed as self-misdirection, or addressing oneself to the wrong question... ... " The point to note is that a thing is not unreasonable in the legal sense merely because the Court thinks it is unwise. Some observations of Lord Scarman in Nottinghamshire County Council v. Secretary of State for Environment, (1986 AC 240 at 247) might usefully be recalled: "... But I cannot accept that it is constitutionally appropriate, save in very exceptional circumstances, for the Courts to intervene on the ground of "unreasonableness" to quash guidance framed by the Secretary of State and by necessary implication approved by the House of Commons, the guidance being concerned with the limits of public expenditure by local authorities and the incidence of the tax burden as between taxpayers and ratepayers. Unless and until a statute provides otherwise, or it is established that the Secretary of State has abused his power, these are matters of political judgment for him and for the House of Commons. they are not for the judges or your Lordships House in its judicial capacity." "For myself, I refuse in this case to examine the detail of the guidance or its consequences. My reasons. are these. Such an examination by a Court would be justified only if a prima facie case were to be shown for holding that the Secretary of State had acted in bad faith, or for an improper motive, or that the consequences of his guidance were so absurd that he must have taken leave of his senses... ...." When Lord Denning MR stated in the Court of Appeal that "Not only must (the probationer-Counseller) be given a fair hearing, but the decision itself must be fair and reasonable" (emphasis supplied), the House of Lords thought that the statement of the learned Master of the Rolls, if allowed to pass into law, would wrongly transform the remedy of judicial review, as the statement would imply that the Court can itself sit, as in appeal, in judgment of the reasonableness of the decision instead of on the correctness of the "decision making process". "The purpose of judicial review", it was stated : "... . is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the Court." ( 20. ) While it is true that principles of judicial review apply to the exercise by a government body of its contractual powers, the inherent limitations on the scope of the inquiry are themselves a part of those principles. For instance, in a matter even as between the parties, there must be shown a public law element to the contractual decision before judicial review is invoked. In the present case the material placed before the Court falls far short of what the law requires to justify interference. ( 21. ) In regard to the allegation that the Project Scheme was tailored to suit respondent 6 alone or that the project as put to tender did not admit of tenders on fixed comparable parameters, we find no merit. Sri K. K. Singhvi submitted that the tender papers were prepared by reputed architects and the precise points on which comparative quotations were invited were specifically incorporated in the tender-papers. The point again is that no other tenderer expressed any grievance. The tenders were such that the tenderer could identify the terms which form the basis of comparative evaluation. The charge of arbitrariness cannot be upheld. Tests to be applied in a given case may be influenced by the extent to which a decision is supported by a democratic unanimity which evidences the decision - granted, of course, the power.( 22. ) Sri R. K. Jain stated that the scheme enables respondent 6 to resort to certain well-known financial malpractices for tax-evasion now known to be rampant when properties change hands. Sri Jain said that the Court ought to take judicial notice of so rampant and pervasive an evil and interdict anything that tends to promote such unhealthy economic trends. While it is true that large scale tax-evasion and evils of unaccounted money bedevils the nations economic discipline and that with the increasing erosion of morality in public life and the serious personal degradations for unjust gains one sees all-round, the situation is, indeed, serious. But we fail to see what the Court can do in a case like this. The present argument proceeds on two assumptions. The first is that respondent No. 6 has, in fact, indulged in such practices in the matter of disposal of occupancy-rights. This is a mere allegation which is emphatically repudiated by respondent No. 6. The second is that the accommodation in this commercial complex is such good competitive selling proposition that there is great demand and limited supply enabling respondent 6 to exploit the situation. This again is a matter of mere allegation. To condemn the municipal authoritys decision, otherwise valid, on the ground alone that the developer is likely to resort to transactions of unaccounted money would, as a judicial remedy, be plainly unthinkable. Contention (d) requires to be and is also held against appellants.( 23. ) On a consideration of the matter, we think that the conclusion reached by the High Court does not call for interference.
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( 12. ) Re: Contention (a) The mode of financing of the project is stated to be unconventional one and does not accord with any recognised or accepted norms of functioning and financial discipline of Governmental bodies. It is urged that while the Municipal Council could have engaged a contractor to execute the work against payment in accordance with well accepted procedures for Government contracts or could have executed the works itself departmentally. It is said that the method now chosen for the development involves a policy impermissible for a Government body. This contention of the appellants, as a legal contention is not somewhat vague and does not admit oflegal contours. As we apprehend the contention, it pertains to the legality or propriety of aHowever, reliance was placed on certain observations of this Court in Ramana Dayanand Shetty v. International Airport Authority (1979 (3) SCR 1014 : (AIR 1979 SC 1628 ) and Kasturilal Laxmi Reddy v. State of J and K (1980 (3) SCR 1338 ): (AIR 1980 SC 1992 ). In those cases relied this Court pointed out that with the growth of a welfare state and with the Government assuming a pluralist role as provider of social welfare services and with the corresponding increase in the magnitude of the governmental functions and the consequent evolution of new forms of wealth and new forms of property, the scope for conferment of largesse by Government had increased and the discretion of Government in the disposal of such properties, rights or privileges should not be unlimited and15. ) We hold that Contention (a) does not justify quashing of the impugned Resolution of the Municipal Council.(17. ) On a consideration of the matter we find no substance in contentions (b) and (c) either(21. ) In regard to the allegation that the Project Scheme was tailored to suit respondent 6 alone or that the project as put to tender did not admit of tenders on fixed comparable parameters, we find no merit. Sri K. K. Singhvi submitted that the tender papers were prepared by reputed architects and the precise points on which comparative quotations were invited were specifically incorporated in theThe point again is that no other tenderer expressed any grievance. The tenders were such that the tenderer could identify the terms which form the basis of comparative evaluation. The charge of arbitrariness cannot be upheld. Tests to be applied in a given case may be influenced by the extent to which a decision is supported by a democratic unanimity which evidences the decisiongranted, of course, the power.( 22. ) Sri R. K. Jain stated that the scheme enables respondent 6 to resort to certainfinancial malpractices fornow known to be rampant when properties change hands. Sri Jain said that the Court ought to take judicial notice of so rampant and pervasive an evil and interdict anything that tends to promote such unhealthy economic trends. While it is true that large scaleand evils of unaccounted money bedevils the nations economic discipline and that with the increasing erosion of morality in public life and the serious personal degradations for unjust gains one seesthe situation is, indeed, serious. But we fail to see what the Court can do in a case like this. The present argument proceeds on two assumptions. The first is that respondent No. 6 has, in fact, indulged in such practices in the matter of disposal ofThis is a mere allegation which is emphatically repudiated by respondent No. 6. The second is that the accommodation in this commercial complex is such good competitive selling proposition that there is great demand and limited supply enabling respondent 6 to exploit the situation. This again is a matter of mere allegation. To condemn the municipal authoritys decision, otherwise valid, on the ground alone that the developer is likely to resort to transactions of unaccounted money would, as a judicial remedy, be plainly unthinkable. Contention (d) requires to be and is also held against appellants.( 23. ) On a consideration of the matter, we think that the conclusion reached by the High Court does not call for interference.
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The Atlas Cycle Industries Ltd. & Another Vs. The State of Haryana & Another | controversy in the present appeals is solved by finding out as to whether the notification dated 3 November, 1942 imposing octroi within the limits of the Sonepat Municipality became applicable by reason of the provisions contained in Section 5 (4) of the Act. It is noticeable at the outset that Section 5 (4) of the Act speaks of rules, bye-laws, orders, directions and powers and does not significantly mention notifications. It is apposite to consider Sections 6,7 and 8 of the Act which deal with the effect of exclusion of local area from the Municipality. In the case of exclusion of an area from the Municipality it is provided in Section 8 (1)(a) of the Act that "This Act and all notifications, rules, bye-laws, orders, directions and powers issued, made or conferred under the Act, shall cease to apply thereto". When the Act provided for notifications ceasing to apply in the case of exclusion of local areas, and in the immediately preceding Section 5 refrained from using the word notifications becoming applicable in the case of inclusion of areas the legislative intent is unambiguous and crystal clear that notifications could not become applicable to an included area on the strength of Section 5 (4) of the Act.22. The word notification cannot be said to be synonymous with rules, bye-laws, orders, directions and powers for two reasons. First, the Act in the present case speaks of notifications for imposition of tax and uses the word notification separately from the other words "rules, bye-laws, orders, directions and powers". In the case of exclusion of areas, the Act speaks of notification ceasing to apply to excluded areas whereas in the case of inclusion of areas the Act significantly omits any notification being applicable to such area. Secondly the General Clauses Act in section 21 speaks of power to issue notifications, orders, rules or bye-laws and it is, therefore, apparent that the power to issue notifications, orders, rules or bye-laws refers to different and separate methods of expression of exercise of power under the statute. Sec. 62(10) of the Act speaks of notification of the imposition of tax. Such a notification is the statutory basis of imposition and levy of tax.23. Bye-laws are entirely different from notifications imposing tax as will be manifest from Sec. 188 of the Act. Under that section the committee may by bye-laws as mentioned in Clause (g) thereof fix limits for the purpose of collecting octroi where collection of octroi has been sanctioned and may prescribe routes by which articles which are subject to octroi may be imported into Municipality. Bye-laws fixing the limits and prescribing the routes by which articles which are subject to octroi may be imported obviously cannot be equated with notification of imposition of octroi.24. In the present appeals, the High Court came to the conclusion that by reason of the provisions contained in Section 5 (4) of the Act taxes would automatically become leviable to new areas added to the Municipal limits. The High Court fell into the error of holding that taxes became automatically leviable in new areas. The High Court relied on the decision of this Court in Bagalkot City Municipality v. Bagalkot Cement Co., (1963) Supp (1) SCR 710 = (AIR 1963 SC 771 ) to support the conclusion of taxes becoming automatically leviable in extended areas on the ground that by reason of the provisions contained in Section 5 (4) of the Act the inhabitants of the included area would suffer all the burdens that are inherent in their inclusion within the Municipal limits. This conclusion of the High Court is not supported either by the decision of this Court or by the provisions of the statute. In the first place, a taxing provision always receives a strict interpretation for the obvious reason that there must be clear and express language imposing a tax and the date from which such tax shall come into effect. Notifications under the Act are the only authority and mandate for imposition and charge of tax. Notifications are not made applicable to included areas under Section 5 (4) of the Act.There cannot be any taxation by implication. Secondly, in the Bagalkot City Municipality case, 1963 Supp (1) SCR 710 = (AIR 1963 SC 771 ) (supra) there was no provision comparable to Section 5 (4) of the Act and this Court did not decide that taxes would become automatically leviable. On the contrary, this Court in the Bagalkot City Municipality case, 1963 Supp (1) SCR 710 = (AIR 1963 SC 771 ) (supra) in interpreting the words Municipal District occurring in a bye-law did not extend the meaning of the Municipal District to include areas which were subsequent to the making of the bye-law added within the limits of the Municipal District. The reason given by this Court was that the expression Municipal District in the bye-law referred to the Municipal District as existing when the bye-law was framed. The words Municipal District in the bye-law were not construed to relate to extended areas. In the Bagalkot City Municipality case, 1963 Supp (1) SCR 710 = (AIR 1963 SC 771 )(supra). Section 48 of the Municipal Act provided that a bye-law could be made only with the sanction of the Government. The further provisions of Section 48 in the Bagalkot City Municipality case, 1963 Supp (1) SCR 710 = (AIR 1963 SC 771 ) (supra) required publication of a proposed bye-law for the information of the persons likely to be affected thereby. The lack of publication of the bye-law to the Bagalkot Cement Company affected by the bye-law was held to be an additional reason for refusing to extend the meaning of the words Municipal District to include extended areas. There is no such aspect in the present appeals. The Bagalkot City Municipality case, 1963 Supp (1) SCR 710 = (AIR 1963 SC 771 )(supra) is, therefore, of no aid in interpreting Section 5 (4) of the Act in the manner the High Court did. | 1[ds]21. The controversy in the present appeals is solved by finding out as to whether the notification dated 3 November, 1942 imposing octroi within the limits of the Sonepat Municipality became applicable by reason of the provisions contained in Section 5 (4) of the Act. It is noticeable at the outset that Section 5 (4) of the Act speaks of rules, bye-laws, orders, directions and powers and does not significantly mention notifications. It is apposite to consider Sections 6,7 and 8 of the Act which deal with the effect of exclusion of local area from the Municipality. In the case of exclusion of an area from the Municipality it is provided in Section 8 (1)(a) of the Act that "This Act and all notifications, rules, bye-laws, orders, directions and powers issued, made or conferred under the Act, shall cease to apply thereto". When the Act provided for notifications ceasing to apply in the case of exclusion of local areas, and in the immediately preceding Section 5 refrained from using the word notifications becoming applicable in the case of inclusion of areas the legislative intent is unambiguous and crystal clear that notifications could not become applicable to an included area on the strength of Section 5 (4) of the Act.22. The word notification cannot be said to be synonymous with rules, bye-laws, orders, directions and powers for two reasons. First, the Act in the present case speaks of notifications for imposition of tax and uses the word notification separately from the other words "rules, bye-laws, orders, directions and powers". In the case of exclusion of areas, the Act speaks of notification ceasing to apply to excluded areas whereas in the case of inclusion of areas the Act significantly omits any notification being applicable to such area. Secondly the General Clauses Act in section 21 speaks of power to issue notifications, orders, rules or bye-laws and it is, therefore, apparent that the power to issue notifications, orders, rules or bye-laws refers to different and separate methods of expression of exercise of power under the statute. Sec. 62(10) of the Act speaks of notification of the imposition of tax. Such a notification is the statutory basis of imposition and levy of tax.23. Bye-laws are entirely different from notifications imposing tax as will be manifest from Sec. 188 of the Act. Under that section the committee may by bye-laws as mentioned in Clause (g) thereof fix limits for the purpose of collecting octroi where collection of octroi has been sanctioned and may prescribe routes by which articles which are subject to octroi may be imported into Municipality. Bye-laws fixing the limits and prescribing the routes by which articles which are subject to octroi may be imported obviously cannot be equated with notification of imposition of octroi.24. In the present appeals, the High Court came to the conclusion that by reason of the provisions contained in Section 5 (4) of the Act taxes would automatically become leviable to new areas added to the Municipal limits. The High Court fell into the error of holding that taxes became automatically leviable in new areas. The High Court relied on the decision of this Court in Bagalkot City Municipality v. Bagalkot Cement Co., (1963) Supp (1) SCR 710 = (AIR 1963 SC 771 ) to support the conclusion of taxes becoming automatically leviable in extended areas on the ground that by reason of the provisions contained in Section 5 (4) of the Act the inhabitants of the included area would suffer all the burdens that are inherent in their inclusion within the Municipal limits. This conclusion of the High Court is not supported either by the decision of this Court or by the provisions of the statute. In the first place, a taxing provision always receives a strict interpretation for the obvious reason that there must be clear and express language imposing a tax and the date from which such tax shall come into effect. Notifications under the Act are the only authority and mandate for imposition and charge of tax. Notifications are not made applicable to included areas under Section 5 (4) of the Act.There cannot be any taxation by implication. Secondly, in the Bagalkot City Municipality case, 1963 Supp (1) SCR 710 = (AIR 1963 SC 771 ) (supra) there was no provision comparable to Section 5 (4) of the Act and this Court did not decide that taxes would become automatically leviable. On the contrary, this Court in the Bagalkot City Municipality case, 1963 Supp (1) SCR 710 = (AIR 1963 SC 771 ) (supra) in interpreting the words Municipal District occurring in a bye-law did not extend the meaning of the Municipal District to include areas which were subsequent to the making of the bye-law added within the limits of the Municipal District. The reason given by this Court was that the expression Municipal District in the bye-law referred to the Municipal District as existing when the bye-law was framed. The words Municipal District in the bye-law were not construed to relate to extended areas. In the Bagalkot City Municipality case, 1963 Supp (1) SCR 710 = (AIR 1963 SC 771 )(supra). Section 48 of the Municipal Act provided that a bye-law could be made only with the sanction of the Government. The further provisions of Section 48 in the Bagalkot City Municipality case, 1963 Supp (1) SCR 710 = (AIR 1963 SC 771 ) (supra) required publication of a proposed bye-law for the information of the persons likely to be affected thereby. The lack of publication of the bye-law to the Bagalkot Cement Company affected by the bye-law was held to be an additional reason for refusing to extend the meaning of the words Municipal District to include extended areas. There is no such aspect in the present appeals. The Bagalkot City Municipality case, 1963 Supp (1) SCR 710 = (AIR 1963 SC 771 )(supra) is, therefore, of no aid in interpreting Section 5 (4) of the Act in the manner the High Court62 consists of 12Broadly stated, under Section 62 of the Act a Municipal Committee passes a resolution proposing the imposition of any tax under Section 61. When such a resolution has been passed the committee shall publish a notice defining the class of persons or description of property proposed to be taxed, the amount or rate of the tax to be imposed, and the system of assessment to be adopted. Any inhabitant objecting to the proposed tax may within thirty days from the publication of the notice submit his objection in writing to the committee. If the committee decided to amend its proposals it shall publish the amended proposal along with a notice indicating that they are in modification of those previously published for objection. Objections may within thirty days be received to the amended proposal and the committee shall then consider the objections.In the case of tax falling under S. 61 (1)(b) to (f) of the Act the Municipal Committee after settlement of the proposals shall direct that the tax be imposed and forward a copy of the order through the Deputy Commissioner to the State Government. These orders will be attracted by the provisions of Section 5 (4) of the Act to the included areas. But orders by themselves are not the authority for imposition of tax.12. In the case of tax falling under Section 61 (1)(b) to (f) of the Act the State Government on receipt of the order shall notify under Section 62 (10) of the Act the imposition of the tax in accordance with such order and shall in the notification specify a date not less than one month from the date of the notification, on which the tax shall come into force. Therefore, in the absence of notification falling within the ambit of Section 5(4) of the Act the Municipality will not be competent to levy or collect tax.13. In the case of a proposed tax under Section 61 (1)(a) of the Act the Municipality has to submit proposals together with the objection, if any, made in connection therewith to the Deputy Commissioner. The Deputy Commissioner after considering the objections may either refuse to sanction the proposals or return them to the Municipality for further consideration or sanction them without modification or with such modification not involving an increase of the amount to be imposed, as he deems fit and then forward the same to the State Government a copy of the proposals and his order of sanction.14. In the case of tax falling under Section 61 (1)(a) of the Act the State Government on receipt of the order of sanction of the Deputy Commissioner shall notify the imposition of the tax in accordance with such order and in the notification shall specify a date not less than one month from the date of the notification, on which the tax shall come into force.15. In the case of tax falling under Section 61 (2) of the Act the Municipality has to submit proposals together with objections to the Deputy Commissioner. The Deputy Commissioner shall submit proposals and objections with his recommendation to the State Government. The State Government on receiving the proposals for taxation under Section 61 (2) of the Act may sanction or refuse to sanction the same or return them to the committee for further consideration.16. In the case of tax falling under Section 61 (2) of the Act when the State Government on receipt of the proposals and objections along with the recommendation of the Deputy Commissioner sanctions the imposition of the tax the State Government under Section 62 (10) of the Act shall notify the imposition of the tax and shall in the notification specify a date not less than one month from the date of the notification, on which the tax shall come into force.17. Inasmuch as the provisions of S. 5(4) of the Act render the order of the relevant authorities sanctioning proposal of Municipality for levy of octroi applicable to the included area, there cannot be any question of following the procedure for inviting objections to the proposed tax contemplated in Section 62. It may also be stated here that a contention was advanced on behalf of the appellants that the applicability of octroi to the included area would offend Article 14 of the Constitution by reason of denial to the persons within the included area of right to object to the tax. The provisions contained in Section 5 of the Act and, in particular,(2) thereof, confer on inhabitants within the area proposed to be included the right to object to the alteration proposed and submit objections in writing. The inhabitants would thereby have the opportunity of objecting not only to the incidence of tax as a result of the inclusion.18. Section 62 of the Act consists of 12ns deal with three matters. The first fivedeal with the procedure for proposals of tax, objections by inhabitants and final consideration of objections by the committee. Theseform part of a stage anterior to sanction by the relevant authorities of proposals for tax.19.(6) to (9) of Section 62 of the Act deal with the order of sanction by the appropriate authorities of the proposals for tax. These orders are not the provisions by which tax is imposed. These orders are sanction for imposition of tax. These orders are attracted by virtue of the provisions contained in Section 5 (4) of the Act to the included areas. But in the absence of notification by the Government under Section 62 (10) of the Act there is no imposition of tax.20. Section 62 (10) of the Act indicates that there is imposition of tax only when the State Government shall notify the imposition of the tax and shall in the notification specify a date on which the tax shall come into force. In the absence of imposition of tax by a notification under Section 62 (10) of the Act the Municipality is not competent to impose, levy or collect tax. Section 62 (12) of the Act enacts that a notification of the imposition of tax shall be conclusive evidence that the tax has been imposed in accordance with the provisions of the Act. It is the notification under the statute which is conclusive evidence of the imposition of tax. | 1 | 3,216 | 2,294 | ### 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:
controversy in the present appeals is solved by finding out as to whether the notification dated 3 November, 1942 imposing octroi within the limits of the Sonepat Municipality became applicable by reason of the provisions contained in Section 5 (4) of the Act. It is noticeable at the outset that Section 5 (4) of the Act speaks of rules, bye-laws, orders, directions and powers and does not significantly mention notifications. It is apposite to consider Sections 6,7 and 8 of the Act which deal with the effect of exclusion of local area from the Municipality. In the case of exclusion of an area from the Municipality it is provided in Section 8 (1)(a) of the Act that "This Act and all notifications, rules, bye-laws, orders, directions and powers issued, made or conferred under the Act, shall cease to apply thereto". When the Act provided for notifications ceasing to apply in the case of exclusion of local areas, and in the immediately preceding Section 5 refrained from using the word notifications becoming applicable in the case of inclusion of areas the legislative intent is unambiguous and crystal clear that notifications could not become applicable to an included area on the strength of Section 5 (4) of the Act.22. The word notification cannot be said to be synonymous with rules, bye-laws, orders, directions and powers for two reasons. First, the Act in the present case speaks of notifications for imposition of tax and uses the word notification separately from the other words "rules, bye-laws, orders, directions and powers". In the case of exclusion of areas, the Act speaks of notification ceasing to apply to excluded areas whereas in the case of inclusion of areas the Act significantly omits any notification being applicable to such area. Secondly the General Clauses Act in section 21 speaks of power to issue notifications, orders, rules or bye-laws and it is, therefore, apparent that the power to issue notifications, orders, rules or bye-laws refers to different and separate methods of expression of exercise of power under the statute. Sec. 62(10) of the Act speaks of notification of the imposition of tax. Such a notification is the statutory basis of imposition and levy of tax.23. Bye-laws are entirely different from notifications imposing tax as will be manifest from Sec. 188 of the Act. Under that section the committee may by bye-laws as mentioned in Clause (g) thereof fix limits for the purpose of collecting octroi where collection of octroi has been sanctioned and may prescribe routes by which articles which are subject to octroi may be imported into Municipality. Bye-laws fixing the limits and prescribing the routes by which articles which are subject to octroi may be imported obviously cannot be equated with notification of imposition of octroi.24. In the present appeals, the High Court came to the conclusion that by reason of the provisions contained in Section 5 (4) of the Act taxes would automatically become leviable to new areas added to the Municipal limits. The High Court fell into the error of holding that taxes became automatically leviable in new areas. The High Court relied on the decision of this Court in Bagalkot City Municipality v. Bagalkot Cement Co., (1963) Supp (1) SCR 710 = (AIR 1963 SC 771 ) to support the conclusion of taxes becoming automatically leviable in extended areas on the ground that by reason of the provisions contained in Section 5 (4) of the Act the inhabitants of the included area would suffer all the burdens that are inherent in their inclusion within the Municipal limits. This conclusion of the High Court is not supported either by the decision of this Court or by the provisions of the statute. In the first place, a taxing provision always receives a strict interpretation for the obvious reason that there must be clear and express language imposing a tax and the date from which such tax shall come into effect. Notifications under the Act are the only authority and mandate for imposition and charge of tax. Notifications are not made applicable to included areas under Section 5 (4) of the Act.There cannot be any taxation by implication. Secondly, in the Bagalkot City Municipality case, 1963 Supp (1) SCR 710 = (AIR 1963 SC 771 ) (supra) there was no provision comparable to Section 5 (4) of the Act and this Court did not decide that taxes would become automatically leviable. On the contrary, this Court in the Bagalkot City Municipality case, 1963 Supp (1) SCR 710 = (AIR 1963 SC 771 ) (supra) in interpreting the words Municipal District occurring in a bye-law did not extend the meaning of the Municipal District to include areas which were subsequent to the making of the bye-law added within the limits of the Municipal District. The reason given by this Court was that the expression Municipal District in the bye-law referred to the Municipal District as existing when the bye-law was framed. The words Municipal District in the bye-law were not construed to relate to extended areas. In the Bagalkot City Municipality case, 1963 Supp (1) SCR 710 = (AIR 1963 SC 771 )(supra). Section 48 of the Municipal Act provided that a bye-law could be made only with the sanction of the Government. The further provisions of Section 48 in the Bagalkot City Municipality case, 1963 Supp (1) SCR 710 = (AIR 1963 SC 771 ) (supra) required publication of a proposed bye-law for the information of the persons likely to be affected thereby. The lack of publication of the bye-law to the Bagalkot Cement Company affected by the bye-law was held to be an additional reason for refusing to extend the meaning of the words Municipal District to include extended areas. There is no such aspect in the present appeals. The Bagalkot City Municipality case, 1963 Supp (1) SCR 710 = (AIR 1963 SC 771 )(supra) is, therefore, of no aid in interpreting Section 5 (4) of the Act in the manner the High Court did.
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### Explanation:
of property proposed to be taxed, the amount or rate of the tax to be imposed, and the system of assessment to be adopted. Any inhabitant objecting to the proposed tax may within thirty days from the publication of the notice submit his objection in writing to the committee. If the committee decided to amend its proposals it shall publish the amended proposal along with a notice indicating that they are in modification of those previously published for objection. Objections may within thirty days be received to the amended proposal and the committee shall then consider the objections.In the case of tax falling under S. 61 (1)(b) to (f) of the Act the Municipal Committee after settlement of the proposals shall direct that the tax be imposed and forward a copy of the order through the Deputy Commissioner to the State Government. These orders will be attracted by the provisions of Section 5 (4) of the Act to the included areas. But orders by themselves are not the authority for imposition of tax.12. In the case of tax falling under Section 61 (1)(b) to (f) of the Act the State Government on receipt of the order shall notify under Section 62 (10) of the Act the imposition of the tax in accordance with such order and shall in the notification specify a date not less than one month from the date of the notification, on which the tax shall come into force. Therefore, in the absence of notification falling within the ambit of Section 5(4) of the Act the Municipality will not be competent to levy or collect tax.13. In the case of a proposed tax under Section 61 (1)(a) of the Act the Municipality has to submit proposals together with the objection, if any, made in connection therewith to the Deputy Commissioner. The Deputy Commissioner after considering the objections may either refuse to sanction the proposals or return them to the Municipality for further consideration or sanction them without modification or with such modification not involving an increase of the amount to be imposed, as he deems fit and then forward the same to the State Government a copy of the proposals and his order of sanction.14. In the case of tax falling under Section 61 (1)(a) of the Act the State Government on receipt of the order of sanction of the Deputy Commissioner shall notify the imposition of the tax in accordance with such order and in the notification shall specify a date not less than one month from the date of the notification, on which the tax shall come into force.15. In the case of tax falling under Section 61 (2) of the Act the Municipality has to submit proposals together with objections to the Deputy Commissioner. The Deputy Commissioner shall submit proposals and objections with his recommendation to the State Government. The State Government on receiving the proposals for taxation under Section 61 (2) of the Act may sanction or refuse to sanction the same or return them to the committee for further consideration.16. In the case of tax falling under Section 61 (2) of the Act when the State Government on receipt of the proposals and objections along with the recommendation of the Deputy Commissioner sanctions the imposition of the tax the State Government under Section 62 (10) of the Act shall notify the imposition of the tax and shall in the notification specify a date not less than one month from the date of the notification, on which the tax shall come into force.17. Inasmuch as the provisions of S. 5(4) of the Act render the order of the relevant authorities sanctioning proposal of Municipality for levy of octroi applicable to the included area, there cannot be any question of following the procedure for inviting objections to the proposed tax contemplated in Section 62. It may also be stated here that a contention was advanced on behalf of the appellants that the applicability of octroi to the included area would offend Article 14 of the Constitution by reason of denial to the persons within the included area of right to object to the tax. The provisions contained in Section 5 of the Act and, in particular,(2) thereof, confer on inhabitants within the area proposed to be included the right to object to the alteration proposed and submit objections in writing. The inhabitants would thereby have the opportunity of objecting not only to the incidence of tax as a result of the inclusion.18. Section 62 of the Act consists of 12ns deal with three matters. The first fivedeal with the procedure for proposals of tax, objections by inhabitants and final consideration of objections by the committee. Theseform part of a stage anterior to sanction by the relevant authorities of proposals for tax.19.(6) to (9) of Section 62 of the Act deal with the order of sanction by the appropriate authorities of the proposals for tax. These orders are not the provisions by which tax is imposed. These orders are sanction for imposition of tax. These orders are attracted by virtue of the provisions contained in Section 5 (4) of the Act to the included areas. But in the absence of notification by the Government under Section 62 (10) of the Act there is no imposition of tax.20. Section 62 (10) of the Act indicates that there is imposition of tax only when the State Government shall notify the imposition of the tax and shall in the notification specify a date on which the tax shall come into force. In the absence of imposition of tax by a notification under Section 62 (10) of the Act the Municipality is not competent to impose, levy or collect tax. Section 62 (12) of the Act enacts that a notification of the imposition of tax shall be conclusive evidence that the tax has been imposed in accordance with the provisions of the Act. It is the notification under the statute which is conclusive evidence of the imposition of tax.
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Raja Jagdish Pratap Sahi Vs. State Of Uttar Pradesh | can be taken. This section was amended by S. 21 of the Indian Income-tax (Amendment) Act, 1953, by which the following explanation was added:"Explanation.- A proceeding for the recovery of any sum shall be deemed to have commenced within the meaning of this section, if some action is taken to recover the whole or any part of the sum within the period hereinbefore referred to, and for the removal of doubts it is hereby declared that the several modes of recovery specified in this section are neither mutually exclusive, nor affect in any way any other law for the time being in force relating to the recovery of debts due to Government, and it shall be lawful for the Income-tax Officer, if for any special reasons to be recorded he so thinks fit, to have recourse to any such mode of recovery notwithstanding that the tax due is being recovered from an assessee by any other mode."It is manifest that this explanation does not in any way confer a right on the Revenue to recover arrears of tax by any mode other than those provided under that Act. That right which the State or the Revenue has for recovering arrears of tax which is a debt due to it, is a general right conferred on it under the law either by a suit or by some other method open to it. Section 32, though it does not have an Explanation analogous to S. 46 nonetheless does not preclude either specifically or by necessary implication a right to recover the arrears of tax due by a suit. The method prescribed in this section is one of the modes of recovery which is a summary remedy. It is, however, open to the State to adopt any method available to it for the recovery of tax in the same way as it would be open to it to recover ordinary debt due to it. It can institute a suit and obtain a decree with costs against the assessee or other persons liable to pay.It could also probably, without obtaining a decree or attachment, apply to a Court for the payment of dues if there are funds lying to the credit of the assessee in the Court, or it may perhaps demand payment in the hands of the receiver appointed in respect of any property of the assessee, if due notice to all the parties interested in the funds is given. On these aspects, however, we do not propose to express any views. As already observed, after an assessment is made upon the assessee quantifying the tax due from him and a demand for the payment thereof is issued within the period specified therein, it creates a debt payable by the assessee in favour of the State. It is well established that once a debt is created, the State has the right to recover it by any of the modes open to it under the general law, unless as a matter of policy only a specific mode to the exclusion of any other is prescribed by the law. No such prohibition is enhanced in S. 32 of the Act.5. Even prior to the amendment of sub-s. (7) of S. 46 of the 1922 Act, several High Courts in this country had taken this view. In Manickam Chettiar v. Income-tax Officer, Madurai, 6 ITR 180 = (AIR 1938 Mad 360) a Full Bench of the Madras High Court was dealing with the right of the Crown to obtain payment of arrears of tax due from the assessees properties sold in execution of a decree where the questions were, firstly, whether the Government was entitled to claim a priority, and secondly, whether, as a matter of procedure, the petition by the Income-tax Officer to the Civil Court for payment to him from the amounts to the credit of the assessee, was sustainable. It was contended before the Full Bench, as it is contended before us, on the analogous provisions of Section 32 of the Income-tax Act of 1922, that inasmuch as S. 46 of that Act provides modes for the recovery of income-tax, the Crown is not entitled to adopt any different method. This contention was repelled. Leach, C. J., observed at p. 185:"This section, however, does not profess to be exhaustive and it cannot without express words to that effect take away from the Crown the right of enforcing payment by any other method open to it. Therefore, I do not regard Section 46 as imposing a bar to an application of the nature of the one we are now concerned with."Varadachariar, J., had expressed a doubt as to the procedure for recovery, but he had however no doubt that the Crown had a priority for the recovery of debt due to it, and consequently agreed in favour of the view expressed by Leach, C. J. Mockett, J., also agreed with this view. This case was considered by Harris, C. J. and Chatterjee, J. of the Patna High Court in Inder Chand v. Secretary of State, AIR 1942 Pat 87 . In this case the Patna High Court was considering whether the Crown as a Creditor has the ordinary right of suit against the assessee. Following the Full Bench judgment of the Madras High Court, it was held that a suit was maintainable. The contention of Mr. P. R. Das, learned counsel for the appellant, that the only method by which income-tax may be recovered is that laid down in Section 46, was repelled by Chatterjee, J. In Chaganti Raghava Reddy v. State of Andhra Pradesh, AIR 1959 Andh Pra 631 the Andhra Pradesh High Court also took a similar view. On principle as well as on the consistent view of the High Courts, it is beyond doubt that where a taxing statute provides for a summary mode of recovery and is not exhaustive, it will be open to the State to have recourse to any other mode open to it under the general law. | 0[ds]It is true that Section 232 of the Income-tax Act of 1961 provides that the modes of recovery under that Act are not exhaustive, but this clarification, which it is, does not imply that it is only by virtue of a specific provision that the legislature has conferred this right upon the Revenue where it did not earlier possess. Under S. 46 (2) of the Act of 1922, the Income-tax Officer may forward to the Collector a certificate under his signature specifying the amount the arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue. Sub-section (7) of the said section prescribes a period of limitation of one year from the last day of the financial year in which any demand is made under the Act, and thereafter no proceedings for the recovery can beis manifest that this explanation does not in any way confer a right on the Revenue to recover arrears of tax by any mode other than those provided under that Act. That right which the State or the Revenue has for recovering arrears of tax which is a debt due to it, is a general right conferred on it under the law either by a suit or by some other method open to it. Section 32, though it does not have an Explanation analogous to S. 46 nonetheless does not preclude either specifically or by necessary implication a right to recover the arrears of tax due by a suit. The method prescribed in this section is one of the modes of recovery which is a summary remedy. It is, however, open to the State to adopt any method available to it for the recovery of tax in the same way as it would be open to it to recover ordinary debt due to it. It can institute a suit and obtain a decree with costs against the assessee or other persons liable to pay.It could also probably, without obtaining a decree or attachment, apply to a Court for the payment of dues if there are funds lying to the credit of the assessee in the Court, or it may perhaps demand payment in the hands of the receiver appointed in respect of any property of the assessee, if due notice to all the parties interested in the funds is given. On these aspects, however, we do not propose to express any views. As already observed, after an assessment is made upon the assessee quantifying the tax due from him and a demand for the payment thereof is issued within the period specified therein, it creates a debt payable by the assessee in favour of the State. It is well established that once a debt is created, the State has the right to recover it by any of the modes open to it under the general law, unless as a matter of policy only a specific mode to the exclusion of any other is prescribed by the law. No such prohibition is enhanced in S. 32 of theJ., had expressed a doubt as to the procedure for recovery, but he had however no doubt that the Crown had a priority for the recovery of debt due to it, and consequently agreed in favour of the view expressed by Leach, C. J. Mockett, J., also agreed with this view. This case was considered by Harris, C. J. and Chatterjee, J. of the Patna High Court in Inder Chand v. Secretary of State, AIR 1942 Pat 87 . In this case the Patna High Court was considering whether the Crown as a Creditor has the ordinary right of suit against the assessee. Following the Full Bench judgment of the Madras High Court, it was held that a suit was maintainable. The contention of Mr. P. R. Das, learned counsel for the appellant, that the only method by which income-tax may be recovered is that laid down in Section 46, was repelled by Chatterjee, J. In Chaganti Raghava Reddy v. State of Andhra Pradesh, AIR 1959 Andh Pra 631 the Andhra Pradesh High Court also took a similar view. On principle as well as on the consistent view of the High Courts, it is beyond doubt that where a taxing statute provides for a summary mode of recovery and is not exhaustive, it will be open to the State to have recourse to any other mode open to it under the general law. | 0 | 2,002 | 820 | ### 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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can be taken. This section was amended by S. 21 of the Indian Income-tax (Amendment) Act, 1953, by which the following explanation was added:"Explanation.- A proceeding for the recovery of any sum shall be deemed to have commenced within the meaning of this section, if some action is taken to recover the whole or any part of the sum within the period hereinbefore referred to, and for the removal of doubts it is hereby declared that the several modes of recovery specified in this section are neither mutually exclusive, nor affect in any way any other law for the time being in force relating to the recovery of debts due to Government, and it shall be lawful for the Income-tax Officer, if for any special reasons to be recorded he so thinks fit, to have recourse to any such mode of recovery notwithstanding that the tax due is being recovered from an assessee by any other mode."It is manifest that this explanation does not in any way confer a right on the Revenue to recover arrears of tax by any mode other than those provided under that Act. That right which the State or the Revenue has for recovering arrears of tax which is a debt due to it, is a general right conferred on it under the law either by a suit or by some other method open to it. Section 32, though it does not have an Explanation analogous to S. 46 nonetheless does not preclude either specifically or by necessary implication a right to recover the arrears of tax due by a suit. The method prescribed in this section is one of the modes of recovery which is a summary remedy. It is, however, open to the State to adopt any method available to it for the recovery of tax in the same way as it would be open to it to recover ordinary debt due to it. It can institute a suit and obtain a decree with costs against the assessee or other persons liable to pay.It could also probably, without obtaining a decree or attachment, apply to a Court for the payment of dues if there are funds lying to the credit of the assessee in the Court, or it may perhaps demand payment in the hands of the receiver appointed in respect of any property of the assessee, if due notice to all the parties interested in the funds is given. On these aspects, however, we do not propose to express any views. As already observed, after an assessment is made upon the assessee quantifying the tax due from him and a demand for the payment thereof is issued within the period specified therein, it creates a debt payable by the assessee in favour of the State. It is well established that once a debt is created, the State has the right to recover it by any of the modes open to it under the general law, unless as a matter of policy only a specific mode to the exclusion of any other is prescribed by the law. No such prohibition is enhanced in S. 32 of the Act.5. Even prior to the amendment of sub-s. (7) of S. 46 of the 1922 Act, several High Courts in this country had taken this view. In Manickam Chettiar v. Income-tax Officer, Madurai, 6 ITR 180 = (AIR 1938 Mad 360) a Full Bench of the Madras High Court was dealing with the right of the Crown to obtain payment of arrears of tax due from the assessees properties sold in execution of a decree where the questions were, firstly, whether the Government was entitled to claim a priority, and secondly, whether, as a matter of procedure, the petition by the Income-tax Officer to the Civil Court for payment to him from the amounts to the credit of the assessee, was sustainable. It was contended before the Full Bench, as it is contended before us, on the analogous provisions of Section 32 of the Income-tax Act of 1922, that inasmuch as S. 46 of that Act provides modes for the recovery of income-tax, the Crown is not entitled to adopt any different method. This contention was repelled. Leach, C. J., observed at p. 185:"This section, however, does not profess to be exhaustive and it cannot without express words to that effect take away from the Crown the right of enforcing payment by any other method open to it. Therefore, I do not regard Section 46 as imposing a bar to an application of the nature of the one we are now concerned with."Varadachariar, J., had expressed a doubt as to the procedure for recovery, but he had however no doubt that the Crown had a priority for the recovery of debt due to it, and consequently agreed in favour of the view expressed by Leach, C. J. Mockett, J., also agreed with this view. This case was considered by Harris, C. J. and Chatterjee, J. of the Patna High Court in Inder Chand v. Secretary of State, AIR 1942 Pat 87 . In this case the Patna High Court was considering whether the Crown as a Creditor has the ordinary right of suit against the assessee. Following the Full Bench judgment of the Madras High Court, it was held that a suit was maintainable. The contention of Mr. P. R. Das, learned counsel for the appellant, that the only method by which income-tax may be recovered is that laid down in Section 46, was repelled by Chatterjee, J. In Chaganti Raghava Reddy v. State of Andhra Pradesh, AIR 1959 Andh Pra 631 the Andhra Pradesh High Court also took a similar view. On principle as well as on the consistent view of the High Courts, it is beyond doubt that where a taxing statute provides for a summary mode of recovery and is not exhaustive, it will be open to the State to have recourse to any other mode open to it under the general law.
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### Explanation:
It is true that Section 232 of the Income-tax Act of 1961 provides that the modes of recovery under that Act are not exhaustive, but this clarification, which it is, does not imply that it is only by virtue of a specific provision that the legislature has conferred this right upon the Revenue where it did not earlier possess. Under S. 46 (2) of the Act of 1922, the Income-tax Officer may forward to the Collector a certificate under his signature specifying the amount the arrears due from an assessee, and the Collector, on receipt of such certificate, shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue. Sub-section (7) of the said section prescribes a period of limitation of one year from the last day of the financial year in which any demand is made under the Act, and thereafter no proceedings for the recovery can beis manifest that this explanation does not in any way confer a right on the Revenue to recover arrears of tax by any mode other than those provided under that Act. That right which the State or the Revenue has for recovering arrears of tax which is a debt due to it, is a general right conferred on it under the law either by a suit or by some other method open to it. Section 32, though it does not have an Explanation analogous to S. 46 nonetheless does not preclude either specifically or by necessary implication a right to recover the arrears of tax due by a suit. The method prescribed in this section is one of the modes of recovery which is a summary remedy. It is, however, open to the State to adopt any method available to it for the recovery of tax in the same way as it would be open to it to recover ordinary debt due to it. It can institute a suit and obtain a decree with costs against the assessee or other persons liable to pay.It could also probably, without obtaining a decree or attachment, apply to a Court for the payment of dues if there are funds lying to the credit of the assessee in the Court, or it may perhaps demand payment in the hands of the receiver appointed in respect of any property of the assessee, if due notice to all the parties interested in the funds is given. On these aspects, however, we do not propose to express any views. As already observed, after an assessment is made upon the assessee quantifying the tax due from him and a demand for the payment thereof is issued within the period specified therein, it creates a debt payable by the assessee in favour of the State. It is well established that once a debt is created, the State has the right to recover it by any of the modes open to it under the general law, unless as a matter of policy only a specific mode to the exclusion of any other is prescribed by the law. No such prohibition is enhanced in S. 32 of theJ., had expressed a doubt as to the procedure for recovery, but he had however no doubt that the Crown had a priority for the recovery of debt due to it, and consequently agreed in favour of the view expressed by Leach, C. J. Mockett, J., also agreed with this view. This case was considered by Harris, C. J. and Chatterjee, J. of the Patna High Court in Inder Chand v. Secretary of State, AIR 1942 Pat 87 . In this case the Patna High Court was considering whether the Crown as a Creditor has the ordinary right of suit against the assessee. Following the Full Bench judgment of the Madras High Court, it was held that a suit was maintainable. The contention of Mr. P. R. Das, learned counsel for the appellant, that the only method by which income-tax may be recovered is that laid down in Section 46, was repelled by Chatterjee, J. In Chaganti Raghava Reddy v. State of Andhra Pradesh, AIR 1959 Andh Pra 631 the Andhra Pradesh High Court also took a similar view. On principle as well as on the consistent view of the High Courts, it is beyond doubt that where a taxing statute provides for a summary mode of recovery and is not exhaustive, it will be open to the State to have recourse to any other mode open to it under the general law.
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Union Of India Vs. Ram Charan & Others | sufficient cause from continuing the suit. The period of limitation prescribed for making such an application is three months, under Art. 171 of the First Schedule to the Limitation Act. This is a sufficiently long period and appears to have been fixed by the legislature on the expectancy that ordinarily the plaintiff would be able to learn of the death of the defendant and of the persons who are his legal representatives within that period. The legislature might have expected that ordinarily the interval between two successive hearings of a suit will be much within three months and the absence of any defendant within that period at a certain hearing may be accounted by his counsel or some relation to be due to his death or may make the plaintiff inquisitive about the reasons for the other partys absence. The legislature further seems to have taken into account that there may be cases where the plaintiff may not know of the death of the defendant as ordinarily expected and, therefore, not only provided a further period of two months under art. 176 for an application to set aside the abatement of the suit but also made the provisions of s. 5 of the Limitation Act applicable to such applications. Thus the plaintiff is allowed sufficient time to make an application to set aside the abatement which, if exceeding five months, be considered justified by the Court in the proved circumstances of the case. It would be futile to lay down precisely as to what considerations would constitute sufficient cause for setting aside the abatement or for the plaintiffs not applying to bring the legal representatives of the deceased defendant on the record or would be held to be sufficient cause for not making an application to set aside the abatement within the time prescribed. But it can be said that the delay in the making of such applications should not be for reasons which indicate the plaintiffs negligence in not taking certain steps which he could have and should have taken. What would be such necessary steps would again depend on the circumstances of a particular case and each case will have to be decided by the Court on the facts and circumstances of the case. Any statement of illustrative circumstances or facts can tend to be a curb on the free exercise of its mind by the Court in determining whether the facts and circumstances of a particular case amount to `sufficient cause or not Courts have to use their discretion in the matter soundly in the interests of justice.It will serve no useful purpose to refer to the cases relied on for the appellant in support of its contention that the appellants ignorance of the death of the respondent is sufficient cause for allowing its application for the setting aside of the abatement and that in any case it would be sufficient cause if its ignorance had not been due to its culpable negligence or mala fides. We have shown above that the mere statement that the appellant was ignorant of the death of the respondent, cannot be sufficient and that it is for the appellant, in the first instance, to allege why he did not know of the death of the respondent earlier or why he could not know about it despite his efforts, if he had made any efforts on having some cause to apprehend that the respondent might have died. The correctness of his reasons can be challenged by the other party. The Court will then decide how far those reasons have been established and suffice to hold that the appellant had sufficient cause for not making an application to bring the legal representatives of the deceased respondent earlier on the record.11. In the present case, the appellant had adopted a very wrong attitude from the very beginning. In its application dated March 17, it merely said that Ram Charan died on July 21, 1957, and that Shri Bhatia, the Divisional Engineer, Telegraphs, Ambala Cantonment, learnt about it on February 3, 1958. Shri Bhatia did not say anything more in his affidavit and did not verify it on the basis of his personal knowledge. Why he did not do so is difficult to imagine if. he came to know of the death on February 3, 1958. He was the best person to say that this statement was true to his knowledge, rather than true to his belief. Further, it appears from the judgment of the High Court that no further information was conveyed in the application dated May 13, 1958 which is not on the record. The most damaging thing for the appellant is that the application came up for bearing before the learned Single judge and at that time the stand taken by it was that limitation for such an application starts not from the date of death of the respondent but from the date of the appellants knowledge of the death of the respondent. The appellants case seems to have been that no abatement had actually taken place as the limitation started from February 3, 1958, when the appellants officer knew of the death of the respondent and the application was made within 3 months of that date. It appears to be due to such an attitude of the appellant that the application dated March 17, 1958 purported to be simply under r. 4 O. XXII and did not purport to be under r. 9 of the said Order as well and that no specific prayer was made for setting aside the abatement. The limitation for an application to set aside abatement of a suit does start on the death of the deceased respondent. Article 171, First Schedule to the Limitation Act provides that. It does not Provide the limitation to start from the date of the appellants knowledge thereof. The stand taken by the appellant was absolutely unjustified and betrayed complete lack of knowledge of the simple provision of the Limitation Act. | 0[ds]It may be mentioned that in view of r. 11 of O.XXII, the words plaintiff, defendant and suitin that Order include appellant, respondent and`appeal respectively. The consequence of the abatement of the suit against the defendant is that no fresh suit can be brought on the same cause of action. Sub-rule (1) of r. 9 bars a fresh suit. The only remedy open to the plaintiff or the person claiming to be the legal representative of the deceased plaintiff is to get the abatement of the suit set aside and this he can do by making an application for that purpose within time. The Court will set aside the abatement if it is proved that the applicant was prevented by any sufficient cause from continuing the suit. This means that the applicant had to allege and establish facts which, in the view of the Court, be a sufficient reason for his not making the application for bringing on record the legal representatives of the deceased within time. If no such facts are alleged, . none can be established and, in that case the Court cannot set aside the abatement of the suit unless the very circumstances of the case make it so obvious that the Court be in a position to hold that there was sufficient cause for the applicants not continuing the suit by taking necessary steps within the period of limitation.Such would be a very rare case. This means that the bare statement of the applicant that he came to know of the death of the other party more than three months after the death will not (SCR at page 478) ordinarily be sufficient for the Courts holding that the applicant had sufficient cause for not impleading the legal representatives within time. If the mere fact that the applicant had known of the death belatedly was sufficient for the Court to set aside the abatement, the legislature would have. expressed itself differently and would not have required the applicant to prove that he was prevented by any sufficient cause from continuing the suit. The period of limitation prescribed for making such an application is three months, under Art. 171 of the First Schedule to the Limitation Act. This is a sufficiently long period and appears to have been fixed by the legislature on the expectancy that ordinarily the plaintiff would be able to learn of the death of the defendant and of the persons who are his legal representatives within that period. The legislature might have expected that ordinarily the interval between two successive hearings of a suit will be much within three months and the absence of any defendant within that period at a certain hearing may be accounted by his counsel or some relation to be due to his death or may make the plaintiff inquisitive about the reasons for the other partys absence. The legislature further seems to have taken into account that there may be cases where the plaintiff may not know of the death of the defendant as ordinarily expected and, therefore, not only provided a further period of two months under art. 176 for an application to set aside the abatement of the suit but also made the provisions of s. 5 of the Limitation Act applicable to such applications. Thus the plaintiff is allowed sufficient time to make an application to set aside the abatement which, if exceeding five months, be considered justified by the Court in the proved circumstances of the case. It would be futile to lay down precisely as to what considerations would constitute sufficient cause for setting aside the abatement or for the plaintiffs not applying to bring the legal representatives of the deceased defendant on the record or would be held to be sufficient cause for not making an application to set aside the abatement within the time prescribed. But it can be said that the delay in the making of such applications should not be for reasons which indicate the plaintiffs negligence in not taking certain steps which he could have and should have taken. What would be such necessary steps would again depend on the circumstances of a particular case and each case will have to be decided by the Court on the facts and circumstances of the case. Any statement of illustrative circumstances or facts can tend to be a curb on the free exercise of its mind by the Court in determining whether the facts and circumstances of a particular case amount to `sufficient cause or not Courts have to use their discretion in the matter soundly in the interests of justice.It will serve no useful purpose to refer to the cases relied on for the appellant in support of its contention that the appellants ignorance of the death of the respondent is sufficient cause for allowing its application for the setting aside of the abatement and that in any case it would be sufficient cause if its ignorance had not been due to its culpable negligence or mala fides. We have shown above that the mere statement that the appellant was ignorant of the death of the respondent, cannot be sufficient and that it is for the appellant, in the first instance, to allege why he did not know of the death of the respondent earlier or why he could not know about it despite his efforts, if he had made any efforts on having some cause to apprehend that the respondent might have died. The correctness of his reasons can be challenged by the other party. The Court will then decide how far those reasons have been established and suffice to hold that the appellant had sufficient cause for not making an application to bring the legal representatives of the deceased respondent earlier on thethe present case, the appellant had adopted a very wrong attitude from the very beginning. In its application dated March 17, it merely said that Ram Charan died on July 21, 1957, and that Shri Bhatia, the Divisional Engineer, Telegraphs, Ambala Cantonment, learnt about it on February 3, 1958. Shri Bhatia did not say anything more in his affidavit and did not verify it on the basis of his personal knowledge. Why he did not do so is difficult to imagine if. he came to know of the death on February 3, 1958. He was the best person to say that this statement was true to his knowledge, rather than true to his belief. Further, it appears from the judgment of the High Court that no further information was conveyed in the application dated May 13, 1958 which is not on the record. The most damaging thing for the appellant is that the application came up for bearing before the learned Single judge and at that time the stand taken by it was that limitation for such an application starts not from the date of death of the respondent but from the date of the appellants knowledge of the death of the respondent. The appellants case seems to have been that no abatement had actually taken place as the limitation started from February 3, 1958, when the appellants officer knew of the death of the respondent and the application was made within 3 months of that date. It appears to be due to such an attitude of the appellant that the application dated March 17, 1958 purported to be simply under r. 4 O. XXII and did not purport to be under r. 9 of the said Order as well and that no specific prayer was made for setting aside the abatement. The limitation for an application to set aside abatement of a suit does start on the death of the deceased respondent. Article 171, First Schedule to the Limitation Act provides that. It does not Provide the limitation to start from the date of the appellants knowledge thereof. The stand taken by the appellant was absolutely unjustified and betrayed complete lack of knowledge of the simple provision of the Limitation Act. | 0 | 3,885 | 1,420 | ### Instruction:
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sufficient cause from continuing the suit. The period of limitation prescribed for making such an application is three months, under Art. 171 of the First Schedule to the Limitation Act. This is a sufficiently long period and appears to have been fixed by the legislature on the expectancy that ordinarily the plaintiff would be able to learn of the death of the defendant and of the persons who are his legal representatives within that period. The legislature might have expected that ordinarily the interval between two successive hearings of a suit will be much within three months and the absence of any defendant within that period at a certain hearing may be accounted by his counsel or some relation to be due to his death or may make the plaintiff inquisitive about the reasons for the other partys absence. The legislature further seems to have taken into account that there may be cases where the plaintiff may not know of the death of the defendant as ordinarily expected and, therefore, not only provided a further period of two months under art. 176 for an application to set aside the abatement of the suit but also made the provisions of s. 5 of the Limitation Act applicable to such applications. Thus the plaintiff is allowed sufficient time to make an application to set aside the abatement which, if exceeding five months, be considered justified by the Court in the proved circumstances of the case. It would be futile to lay down precisely as to what considerations would constitute sufficient cause for setting aside the abatement or for the plaintiffs not applying to bring the legal representatives of the deceased defendant on the record or would be held to be sufficient cause for not making an application to set aside the abatement within the time prescribed. But it can be said that the delay in the making of such applications should not be for reasons which indicate the plaintiffs negligence in not taking certain steps which he could have and should have taken. What would be such necessary steps would again depend on the circumstances of a particular case and each case will have to be decided by the Court on the facts and circumstances of the case. Any statement of illustrative circumstances or facts can tend to be a curb on the free exercise of its mind by the Court in determining whether the facts and circumstances of a particular case amount to `sufficient cause or not Courts have to use their discretion in the matter soundly in the interests of justice.It will serve no useful purpose to refer to the cases relied on for the appellant in support of its contention that the appellants ignorance of the death of the respondent is sufficient cause for allowing its application for the setting aside of the abatement and that in any case it would be sufficient cause if its ignorance had not been due to its culpable negligence or mala fides. We have shown above that the mere statement that the appellant was ignorant of the death of the respondent, cannot be sufficient and that it is for the appellant, in the first instance, to allege why he did not know of the death of the respondent earlier or why he could not know about it despite his efforts, if he had made any efforts on having some cause to apprehend that the respondent might have died. The correctness of his reasons can be challenged by the other party. The Court will then decide how far those reasons have been established and suffice to hold that the appellant had sufficient cause for not making an application to bring the legal representatives of the deceased respondent earlier on the record.11. In the present case, the appellant had adopted a very wrong attitude from the very beginning. In its application dated March 17, it merely said that Ram Charan died on July 21, 1957, and that Shri Bhatia, the Divisional Engineer, Telegraphs, Ambala Cantonment, learnt about it on February 3, 1958. Shri Bhatia did not say anything more in his affidavit and did not verify it on the basis of his personal knowledge. Why he did not do so is difficult to imagine if. he came to know of the death on February 3, 1958. He was the best person to say that this statement was true to his knowledge, rather than true to his belief. Further, it appears from the judgment of the High Court that no further information was conveyed in the application dated May 13, 1958 which is not on the record. The most damaging thing for the appellant is that the application came up for bearing before the learned Single judge and at that time the stand taken by it was that limitation for such an application starts not from the date of death of the respondent but from the date of the appellants knowledge of the death of the respondent. The appellants case seems to have been that no abatement had actually taken place as the limitation started from February 3, 1958, when the appellants officer knew of the death of the respondent and the application was made within 3 months of that date. It appears to be due to such an attitude of the appellant that the application dated March 17, 1958 purported to be simply under r. 4 O. XXII and did not purport to be under r. 9 of the said Order as well and that no specific prayer was made for setting aside the abatement. The limitation for an application to set aside abatement of a suit does start on the death of the deceased respondent. Article 171, First Schedule to the Limitation Act provides that. It does not Provide the limitation to start from the date of the appellants knowledge thereof. The stand taken by the appellant was absolutely unjustified and betrayed complete lack of knowledge of the simple provision of the Limitation Act.
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prevented by any sufficient cause from continuing the suit. The period of limitation prescribed for making such an application is three months, under Art. 171 of the First Schedule to the Limitation Act. This is a sufficiently long period and appears to have been fixed by the legislature on the expectancy that ordinarily the plaintiff would be able to learn of the death of the defendant and of the persons who are his legal representatives within that period. The legislature might have expected that ordinarily the interval between two successive hearings of a suit will be much within three months and the absence of any defendant within that period at a certain hearing may be accounted by his counsel or some relation to be due to his death or may make the plaintiff inquisitive about the reasons for the other partys absence. The legislature further seems to have taken into account that there may be cases where the plaintiff may not know of the death of the defendant as ordinarily expected and, therefore, not only provided a further period of two months under art. 176 for an application to set aside the abatement of the suit but also made the provisions of s. 5 of the Limitation Act applicable to such applications. Thus the plaintiff is allowed sufficient time to make an application to set aside the abatement which, if exceeding five months, be considered justified by the Court in the proved circumstances of the case. It would be futile to lay down precisely as to what considerations would constitute sufficient cause for setting aside the abatement or for the plaintiffs not applying to bring the legal representatives of the deceased defendant on the record or would be held to be sufficient cause for not making an application to set aside the abatement within the time prescribed. But it can be said that the delay in the making of such applications should not be for reasons which indicate the plaintiffs negligence in not taking certain steps which he could have and should have taken. What would be such necessary steps would again depend on the circumstances of a particular case and each case will have to be decided by the Court on the facts and circumstances of the case. Any statement of illustrative circumstances or facts can tend to be a curb on the free exercise of its mind by the Court in determining whether the facts and circumstances of a particular case amount to `sufficient cause or not Courts have to use their discretion in the matter soundly in the interests of justice.It will serve no useful purpose to refer to the cases relied on for the appellant in support of its contention that the appellants ignorance of the death of the respondent is sufficient cause for allowing its application for the setting aside of the abatement and that in any case it would be sufficient cause if its ignorance had not been due to its culpable negligence or mala fides. We have shown above that the mere statement that the appellant was ignorant of the death of the respondent, cannot be sufficient and that it is for the appellant, in the first instance, to allege why he did not know of the death of the respondent earlier or why he could not know about it despite his efforts, if he had made any efforts on having some cause to apprehend that the respondent might have died. The correctness of his reasons can be challenged by the other party. The Court will then decide how far those reasons have been established and suffice to hold that the appellant had sufficient cause for not making an application to bring the legal representatives of the deceased respondent earlier on thethe present case, the appellant had adopted a very wrong attitude from the very beginning. In its application dated March 17, it merely said that Ram Charan died on July 21, 1957, and that Shri Bhatia, the Divisional Engineer, Telegraphs, Ambala Cantonment, learnt about it on February 3, 1958. Shri Bhatia did not say anything more in his affidavit and did not verify it on the basis of his personal knowledge. Why he did not do so is difficult to imagine if. he came to know of the death on February 3, 1958. He was the best person to say that this statement was true to his knowledge, rather than true to his belief. Further, it appears from the judgment of the High Court that no further information was conveyed in the application dated May 13, 1958 which is not on the record. The most damaging thing for the appellant is that the application came up for bearing before the learned Single judge and at that time the stand taken by it was that limitation for such an application starts not from the date of death of the respondent but from the date of the appellants knowledge of the death of the respondent. The appellants case seems to have been that no abatement had actually taken place as the limitation started from February 3, 1958, when the appellants officer knew of the death of the respondent and the application was made within 3 months of that date. It appears to be due to such an attitude of the appellant that the application dated March 17, 1958 purported to be simply under r. 4 O. XXII and did not purport to be under r. 9 of the said Order as well and that no specific prayer was made for setting aside the abatement. The limitation for an application to set aside abatement of a suit does start on the death of the deceased respondent. Article 171, First Schedule to the Limitation Act provides that. It does not Provide the limitation to start from the date of the appellants knowledge thereof. The stand taken by the appellant was absolutely unjustified and betrayed complete lack of knowledge of the simple provision of the Limitation Act.
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Chhana Rani Saha Vs. Mani Pal @ Kaltu Pal | from others. The trial Court, therefore, allowed the application and conferred the right, title and interest of the land in question on the appellant along with possession of the suit land.4. The Appellate Court reversed the aforesaid order on the ground that the appellant is not a co-sharer of the land and further that the vendor Bijindra Burman did not sell a portion or share of the land but has sold the entire land in question.5. The High Court has agreed with the Appellate Court and has held likewise. Hence, this appeal.6. Mr. Soumya Chakraborty, learned counsel appearing for the appellant, pointed out that the finding of the High Court is entirely mis-directed, in that the High Court has denied the appellants claim on the sole ground that the appellant is not a co-sharer of the land in question and the vendor has not attempted to sell a portion of the said land but has admittedly purported to sell the entire land. According to Shri Chakraborty, the High Court fell into the error because it ignored the fact that the appellant had claimed the land as contiguous owner of the land and a contiguous owner of land also has a right to assert pre-emption. Section 8 reads as follows:"8. Right of purcahse by co-sharer or contiguous tenant.- (1) If a portion or share of a plot of land of a raiyat is transferred to any person other than a co-sharer of a raiyat in the plot of land, the bargardar in the plot of land may, within three months of the date of such transfer, or any co-sharer of a raiyat in the plot of land may, within three months of the service of the notice given under sub-section (5) of section 5, or any raiyat possessing land adjoining such plot of land may, within four months of the date of such tranfer, apply to the Munsif having territorial jurisdiction, for transfer of the said portion or share of the plot of land to him, subject to the limit mentioned in section 14M, on deposit of the consideration money together with a further sum of ten per cent of that amount:Provided that if the bargadar in the plot of land, a co-sharer of raiyat in a plot of land and a raiyat possessing land adjoining such plot of land apply for such transfer, the bargadar shall have the prior right to have such portion or share of the plot of land transferred to him, and in such a case, the deposit made by others shall be refunded to them:Provided further that where the bargadar does not apply for such transfer and a co-sharer of a raiyat in the plot of land and a raiyat possessing land adjoining such plot of land both apply for such transfer, the former shall have the prior right to have such portion or share of the plot of land transferred to him, and in such a case, the deposit made by the latter shall be refunded to him:Provided also that as amongst raiyats possessing lands adjoining such plot of land preference shall be given to the raiyat having the longest common boundary with the land transferred.(2) Nothing in this section shall apply to-(a) a transfer by exchange or by partition, or(b) a transfer by bequest or gift, or hiba-bil-ewaz, or(c) a mortgage mention in section 7,(d) a tranfer for charitable or religious purposes or both without reservation of any pecuniary benefit for any individual, or(e) a transfer of land in favour of a bargadar in respect of such land if after such tranfer, the transferee holds as a raiyat land not exceeding one acre (or 0.4047 hectare) in area in the aggregate.EXPLANATION.- All orders passed and the consequences thereof under sections 8,9 and 10 shall be subject to the provisions of Chapter IIB.(3) Every application pending before a Revenue Officer at the commencement of section 7 of the West Bengal Land Reforms (Amendment) Act, 1972 shall, on such commencement, stand transferred to, and disposed of by, the Munsif having jurisdiction in relation to the area in which the land is situated and on such transfer every such application shall be dealt with from the setage at which it was so transferred and shall be disposed of in accordance with the provision of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972."7. Section 8 confers a right of pre-emption on a bargardar that is a tenant of the land, or a co-sharer of the raiyat who owns the land and on any other raiyat possessing land adjoining such plot of land. One of the conditions on which a right of pre-emption may be claimed is where a portion or share of land or any other raiyat is transferred to any person other than a co-sharer of a raiyat in the plot of the land. That is to say, if a land is held by two co-sharers and one of the co-sharers seeks to transfer a portion or share belonging to him to another person, the other co-sharer may claim a right of pre-emption. But this, however, does not exhaust the entire section. A similar right of pre-emption is also conferred on a raiyat, who possesses an adjoining plot of land, This is the appellants case. There is no dispute that the appellant is a raiyat possessing adjoining plot of land and was entitled to assert his right of pre-emption. In fact he was rightly allowed the ownership of the land in question by the trial Court, since it was found the vendor did not give due notice of sale of the land to the appellant and, in fact, did not wish to sell the land to the appellant. This aspect of the matter has been completely overlooked by the High Court, which has decided the case only on the basis that the vendor did not transfer a portion or share of the land in question and the appellant was not a co-sharer. | 1[ds]7. Section 8 confers a right ofon a bargardar that is a tenant of the land, or aof the raiyat who owns the land and on any other raiyat possessing land adjoining such plot of land. One of the conditions on which a right ofmay be claimed is where a portion or share of land or any other raiyat is transferred to any person other than aof a raiyat in the plot of the land. That is to say, if a land is held by twoand one of theseeks to transfer a portion or share belonging to him to another person, the othermay claim a right ofBut this, however, does not exhaust the entire section. A similar right ofis also conferred on a raiyat, who possesses an adjoining plot of land, This is the appellants case. There is no dispute that the appellant is a raiyat possessing adjoining plot of land and was entitled to assert his right ofIn fact he was rightly allowed the ownership of the land in question by the trial Court, since it was found the vendor did not give due notice of sale of the land to the appellant and, in fact, did not wish to sell the land to the appellant. This aspect of the matter has been completely overlooked by the High Court, which has decided the case only on the basis that the vendor did not transfer a portion or share of the land in question and the appellant was not a | 1 | 1,438 | 271 | ### 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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from others. The trial Court, therefore, allowed the application and conferred the right, title and interest of the land in question on the appellant along with possession of the suit land.4. The Appellate Court reversed the aforesaid order on the ground that the appellant is not a co-sharer of the land and further that the vendor Bijindra Burman did not sell a portion or share of the land but has sold the entire land in question.5. The High Court has agreed with the Appellate Court and has held likewise. Hence, this appeal.6. Mr. Soumya Chakraborty, learned counsel appearing for the appellant, pointed out that the finding of the High Court is entirely mis-directed, in that the High Court has denied the appellants claim on the sole ground that the appellant is not a co-sharer of the land in question and the vendor has not attempted to sell a portion of the said land but has admittedly purported to sell the entire land. According to Shri Chakraborty, the High Court fell into the error because it ignored the fact that the appellant had claimed the land as contiguous owner of the land and a contiguous owner of land also has a right to assert pre-emption. Section 8 reads as follows:"8. Right of purcahse by co-sharer or contiguous tenant.- (1) If a portion or share of a plot of land of a raiyat is transferred to any person other than a co-sharer of a raiyat in the plot of land, the bargardar in the plot of land may, within three months of the date of such transfer, or any co-sharer of a raiyat in the plot of land may, within three months of the service of the notice given under sub-section (5) of section 5, or any raiyat possessing land adjoining such plot of land may, within four months of the date of such tranfer, apply to the Munsif having territorial jurisdiction, for transfer of the said portion or share of the plot of land to him, subject to the limit mentioned in section 14M, on deposit of the consideration money together with a further sum of ten per cent of that amount:Provided that if the bargadar in the plot of land, a co-sharer of raiyat in a plot of land and a raiyat possessing land adjoining such plot of land apply for such transfer, the bargadar shall have the prior right to have such portion or share of the plot of land transferred to him, and in such a case, the deposit made by others shall be refunded to them:Provided further that where the bargadar does not apply for such transfer and a co-sharer of a raiyat in the plot of land and a raiyat possessing land adjoining such plot of land both apply for such transfer, the former shall have the prior right to have such portion or share of the plot of land transferred to him, and in such a case, the deposit made by the latter shall be refunded to him:Provided also that as amongst raiyats possessing lands adjoining such plot of land preference shall be given to the raiyat having the longest common boundary with the land transferred.(2) Nothing in this section shall apply to-(a) a transfer by exchange or by partition, or(b) a transfer by bequest or gift, or hiba-bil-ewaz, or(c) a mortgage mention in section 7,(d) a tranfer for charitable or religious purposes or both without reservation of any pecuniary benefit for any individual, or(e) a transfer of land in favour of a bargadar in respect of such land if after such tranfer, the transferee holds as a raiyat land not exceeding one acre (or 0.4047 hectare) in area in the aggregate.EXPLANATION.- All orders passed and the consequences thereof under sections 8,9 and 10 shall be subject to the provisions of Chapter IIB.(3) Every application pending before a Revenue Officer at the commencement of section 7 of the West Bengal Land Reforms (Amendment) Act, 1972 shall, on such commencement, stand transferred to, and disposed of by, the Munsif having jurisdiction in relation to the area in which the land is situated and on such transfer every such application shall be dealt with from the setage at which it was so transferred and shall be disposed of in accordance with the provision of this Act, as amended by the West Bengal Land Reforms (Amendment) Act, 1972."7. Section 8 confers a right of pre-emption on a bargardar that is a tenant of the land, or a co-sharer of the raiyat who owns the land and on any other raiyat possessing land adjoining such plot of land. One of the conditions on which a right of pre-emption may be claimed is where a portion or share of land or any other raiyat is transferred to any person other than a co-sharer of a raiyat in the plot of the land. That is to say, if a land is held by two co-sharers and one of the co-sharers seeks to transfer a portion or share belonging to him to another person, the other co-sharer may claim a right of pre-emption. But this, however, does not exhaust the entire section. A similar right of pre-emption is also conferred on a raiyat, who possesses an adjoining plot of land, This is the appellants case. There is no dispute that the appellant is a raiyat possessing adjoining plot of land and was entitled to assert his right of pre-emption. In fact he was rightly allowed the ownership of the land in question by the trial Court, since it was found the vendor did not give due notice of sale of the land to the appellant and, in fact, did not wish to sell the land to the appellant. This aspect of the matter has been completely overlooked by the High Court, which has decided the case only on the basis that the vendor did not transfer a portion or share of the land in question and the appellant was not a co-sharer.
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### Explanation:
7. Section 8 confers a right ofon a bargardar that is a tenant of the land, or aof the raiyat who owns the land and on any other raiyat possessing land adjoining such plot of land. One of the conditions on which a right ofmay be claimed is where a portion or share of land or any other raiyat is transferred to any person other than aof a raiyat in the plot of the land. That is to say, if a land is held by twoand one of theseeks to transfer a portion or share belonging to him to another person, the othermay claim a right ofBut this, however, does not exhaust the entire section. A similar right ofis also conferred on a raiyat, who possesses an adjoining plot of land, This is the appellants case. There is no dispute that the appellant is a raiyat possessing adjoining plot of land and was entitled to assert his right ofIn fact he was rightly allowed the ownership of the land in question by the trial Court, since it was found the vendor did not give due notice of sale of the land to the appellant and, in fact, did not wish to sell the land to the appellant. This aspect of the matter has been completely overlooked by the High Court, which has decided the case only on the basis that the vendor did not transfer a portion or share of the land in question and the appellant was not a
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Srinivasa Enterprises and Others Vs. Union of India Etc | meticulous exceptions and has to proceed on broad categorisations, not singular individualisations.9. We give short shrift to the next contention based upon Art. 14. Broadly presented, the argument is that conventional chits and prize chits are substantially similar and, therefore, permission to continue conventional chits and prohibition of prize chits altogether may be discriminatory. We do not agree. Not only do the definitions show the differentiation between the two schemes, but the Raj Report also brings out the fact that conventional chits and prize chits are different categories with different financial features and different damaging effects . We see no force in the plea of violation of Art. 14.10. Equally untenable is the contention that there is a discriminatory exemption from the operation of the prohibition in regard to those categories of prize chits which fall within s. 11. It runs thus:11. Nothing contained in this Act shall apply to any prize chit or money circulation scheme promoted by-(a) a State Government or any officer or authority on its behalf; or(b) a company wholly owned by a State Government which does not carry on any business other than the conducting of a prize chit or money circulation scheme whether it is in the nature of a conventional c hit or otherwise; or(c) a banking company as defined in clause (c) of section 5 of the Banking Regulation Act, 1949, or a banking institution notified by the Central Government under section 51 of tha t Act or the State Bank of India constituted under section 3 of the State Bank of India Act, 1955, or a subsidiary bank constituted under section 3 of the State Bank of India (Subsidiary Banks) Act, 1959, or a corresponding new bank constituted under Section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, or a Regional Rural Bank established under section 3 of the Regional Rural Banks Act, 1976 or a co- operative bank as defined in clause (bii) of section 2 of the Reserve Bank of India Act, 1934; or(d) any charitable or educational institution notified in this behalf by the State Government, in consultation with the Reserve Bank.12. A bare reading of that provision makes it clear that the exempted categories do not possess the vices of private prize chits. For one thing, what ar e exempted are prize chits and money circulation schemes promoted by or controlled by the State Governments, the Central Government or the State Bank of India or the Reserve Bank. Even Rural Banks and Co-operatives covered by s. 11, are subject to public control. Likewise, charitable and educational institutions are exempted only if they are notified by the State Government in consultation with the Reserve Bank. There are enough arguments to justify the different classification of these items and their exemption cannot be called in question on the ground of violation of Art. 14. Reasonable classification wins absolution from the charge of discrimination if the differentia has a nexus with the statutory object.13. The final submission of Shri Venugopal was regarding legislative competency. He urged that legislation regarding lottery falls within the State List (Entry 34, List II) and Parliament cannot enact such a law under Entry 7 of List I II. Relying upon State of Bombay v. R.M.D. Chamarbugwala counsel contended that the present legislation was aimed at prize chits and intended to ban lotteries. Such an anti-lottery law could not be sustained under Entry 7 of the List III. We are not persuaded that in pith and substance the present legislation is one against lotteries. It deals with a special species of contracts with sinister features, although one such feature is the award of prizes to subscribers. While motives cannot validate or invalidate a legislation the core of the subject matter must govern competency. So viewed, it is easy to accept the submission of the Union of India that Parliament wanted to restrict and prohibit certain types of contracts because of the noxious element of gambling and lottery implicit therein and apt to entice the credulous and uncautious. We do not think it necessary to expand on the subject and the incidental impact on lotteries does not affect the vires of the Act .Judicial validation of a social legislation only keeps the path clear for enforcement. Spraying legislative socio- moral pesticides cannot serve any purpose unless the target area is relentlessly hit. We hope that this legislation enacted in response to expert recommendation and popular clamour will be implemented by dynamic State action.14. We wish to make it clear that the possible hardship that bona fide prize chit promoters may suffer on account of the total prohibition clamped down by this legislation can be relieved against by the Central Government acting under s. 12. The learned Solicitor General assured the court that the Union of India would take ameliorative measure to avoid unjust hardship, especially because it h ad power to do so under s. 12.15. Mr. M. M. Abdul Khader appearing in Writ Petition No. 1152 of 1979 argued that in his case ornaments and vessels were given as prizes and if strictly construed, his clients scheme did not fall within the scope of the Act. He wanted the court to declare so but we decline to do so, since under Art. 32 this Courts function is not to give advisory opinion to petitioners but to pronounce upon transgression of fundamental rights by State action. While there is no merit in his submission of procedural unreasonableness in the provisions of the Act, it is perfectly open to the writ petitioner to urge his plea that the Act does not apply to his scheme if he were prosecuted. We leave the matter at that Shri Parekh, as intervener, Shri Kanta Rao, appearing in Writ Petition No. 1546/79, Shri Subba Rao pressing Writ Petition No. 138/79 and Shri K.R.R. Pillai in W.P. No. 1152/79 have adopted the leading arguments of Shri Venugopal which we have rejected. All of them must share the same fate.16. | 0[ds]Surely, Art. 19(6) permits reasonable restrictions in the interest of the general public on the exercise of the right conferred by Art. 19(1)(g). It is a constitutional truism restrictions, in extreme cases, may be pushed to the point of prohibition if any lesser strategy will not achieve the purpose. Fundamental rights are fundamental, and so, no ban can be glibly imposed unless effective alternatives are unavailable. Counsel on both sides cited rulings for the two sides of the proposition but it is an act of supererogation to load judgments with or profusion precedential erudition to make out what is plain,twin requirements of Art. 19(6) are (a) the reasonableness of the restriction upon the fundamental right to trade, and (b) the measure of the reasonableness being the compelling need to promote the interest of the general public. Public interest, of course, there is. But the controversy rages round the compulsive necessity to extinguish the prize chit enterprises altogether as distinguished fromthem with severe conditions geared to protection of public interest. We have already indicated that the Raj Report does recommend a total ban on prize chits. In matters of economics, sociology and other specialised subjects, courts should not embark upon views of halflit infallibility and reject what economists or social scientists have, after detailed studies, commended as the correct course of action. True, the final word is with the court in constitutional matters but judges hesitate to rush in where even specialists fear to tread. If experts fall out, court, perforce, must guide itself and pronounce upon the matter from the constitutional angle, since the final verdict, where constitutional contraventions are complained of, belongs to the judicial arm. The alternative proposals to save the public from prize chit rackets attractively presented by Shri Venugopal do not impress us. In many situations, the poor and unwary have to be saved from the seducing processes resorted by unscrupulous racketeers who glamourize and prey upon the gambling instinct to get rich quick through prizes. So long as there is the resistless spell of a chance though small, of securing a prize, though on paper, people chase the prospect by subscribing to the speculative scheme only to lose what they had. Can you save moths from the fire except by putting out the fatal glow ? Once this prize facet of the chit scheme is given up, it becomes substantially a conventional chit and the ban of the law ceases to operate. We are unable to persuade ourselves that the State is wrong in its assertion, based upon expert opinions that a complete ban of prize c hits is anor excessive blow. Therefore, we decline to strike down the legislation on the score of Art. 19(1)(f) and (g) of the Constitution.We may not be taken to mean that every prize chit promoter is aIn deed, Shri Venugopal persuasively presented the case of his client to make us feel that responsible business was being done by the petitioner. May be. But when a general evil is sought to be suppressed some martyrs may have to suffer for the legislature cannot easily make meticulous exceptions and has to proceed on broad categorisations, not singulardo not agree. Not only do the definitions show the differentiation between the two schemes, but the Raj Report also brings out the fact that conventional chits and prize chits are different categories with different financial features and different damaging effects . We see no force in the plea of violation of Art.bare reading of that provision makes it clear that the exempted categories do not possess the vices of private prize chits. For one thing, what ar e exempted are prize chits and money circulation schemes promoted by or controlled by the State Governments, the Central Government or the State Bank of India or the Reserve Bank. Even Rural Banks andcovered by s. 11, are subject to public control. Likewise, charitable and educational institutions are exempted only if they are notified by the State Government in consultation with the Reserve Bank. There are enough arguments to justify the different classification of these items and their exemption cannot be called in question on the ground of violation of Art. 14. Reasonable classification wins absolution from the charge of discrimination if the differentia has a nexus with the statutoryare not persuaded that in pith and substance the present legislation is one against lotteries. It deals with a special species of contracts with sinister features, although one such feature is the award of prizes to subscribers. While motives cannot validate or invalidate a legislation the core of the subject matter must govern competency. So viewed, it is easy to accept the submission of the Union of India that Parliament wanted to restrict and prohibit certain types of contracts because of the noxious element of gambling and lottery implicit therein and apt to entice the credulous and uncautious. We do not think it necessary to expand on the subject and the incidental impact on lotteries does not affect the vires of the Act .Judicial validation of a social legislation only keeps the path clear for enforcement. Spraying legislative sociomoral pesticides cannot serve any purpose unless the target area is relentlessly hit. We hope that this legislation enacted in response to expert recommendation and popular clamour will be implemented by dynamic Statewish to make it clear that the possible hardship that bona fide prize chit promoters may suffer on account of the total prohibition clamped down by this legislation can be relieved against by the Central Government acting under s. 12. The learned Solicitor General assured the court that the Union of India would take ameliorative measure to avoid unjust hardship, especially because it h ad power to do so under s.wanted the court to declare so but we decline to do so, since under Art. 32 this Courts function is not to give advisory opinion to petitioners but to pronounce upon transgression of fundamental rights by State action. While there is no merit in his submission of procedural unreasonableness in the provisions of the Act, it is perfectly open to the writ petitioner to urge his plea that the Act does not apply to his scheme if he were prosecuted. We leave the matter at that Shri Parekh, as intervener, Shri Kanta Rao, appearing in Writ Petition No. 1546/79, Shri Subba Rao pressing Writ Petition No. 138/79 and Shri K.R.R. Pillai in W.P. No. 1152/79 have adopted the leading arguments of Shri Venugopal which we have rejected. All of them must share the same fate. | 0 | 4,568 | 1,209 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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meticulous exceptions and has to proceed on broad categorisations, not singular individualisations.9. We give short shrift to the next contention based upon Art. 14. Broadly presented, the argument is that conventional chits and prize chits are substantially similar and, therefore, permission to continue conventional chits and prohibition of prize chits altogether may be discriminatory. We do not agree. Not only do the definitions show the differentiation between the two schemes, but the Raj Report also brings out the fact that conventional chits and prize chits are different categories with different financial features and different damaging effects . We see no force in the plea of violation of Art. 14.10. Equally untenable is the contention that there is a discriminatory exemption from the operation of the prohibition in regard to those categories of prize chits which fall within s. 11. It runs thus:11. Nothing contained in this Act shall apply to any prize chit or money circulation scheme promoted by-(a) a State Government or any officer or authority on its behalf; or(b) a company wholly owned by a State Government which does not carry on any business other than the conducting of a prize chit or money circulation scheme whether it is in the nature of a conventional c hit or otherwise; or(c) a banking company as defined in clause (c) of section 5 of the Banking Regulation Act, 1949, or a banking institution notified by the Central Government under section 51 of tha t Act or the State Bank of India constituted under section 3 of the State Bank of India Act, 1955, or a subsidiary bank constituted under section 3 of the State Bank of India (Subsidiary Banks) Act, 1959, or a corresponding new bank constituted under Section 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, or a Regional Rural Bank established under section 3 of the Regional Rural Banks Act, 1976 or a co- operative bank as defined in clause (bii) of section 2 of the Reserve Bank of India Act, 1934; or(d) any charitable or educational institution notified in this behalf by the State Government, in consultation with the Reserve Bank.12. A bare reading of that provision makes it clear that the exempted categories do not possess the vices of private prize chits. For one thing, what ar e exempted are prize chits and money circulation schemes promoted by or controlled by the State Governments, the Central Government or the State Bank of India or the Reserve Bank. Even Rural Banks and Co-operatives covered by s. 11, are subject to public control. Likewise, charitable and educational institutions are exempted only if they are notified by the State Government in consultation with the Reserve Bank. There are enough arguments to justify the different classification of these items and their exemption cannot be called in question on the ground of violation of Art. 14. Reasonable classification wins absolution from the charge of discrimination if the differentia has a nexus with the statutory object.13. The final submission of Shri Venugopal was regarding legislative competency. He urged that legislation regarding lottery falls within the State List (Entry 34, List II) and Parliament cannot enact such a law under Entry 7 of List I II. Relying upon State of Bombay v. R.M.D. Chamarbugwala counsel contended that the present legislation was aimed at prize chits and intended to ban lotteries. Such an anti-lottery law could not be sustained under Entry 7 of the List III. We are not persuaded that in pith and substance the present legislation is one against lotteries. It deals with a special species of contracts with sinister features, although one such feature is the award of prizes to subscribers. While motives cannot validate or invalidate a legislation the core of the subject matter must govern competency. So viewed, it is easy to accept the submission of the Union of India that Parliament wanted to restrict and prohibit certain types of contracts because of the noxious element of gambling and lottery implicit therein and apt to entice the credulous and uncautious. We do not think it necessary to expand on the subject and the incidental impact on lotteries does not affect the vires of the Act .Judicial validation of a social legislation only keeps the path clear for enforcement. Spraying legislative socio- moral pesticides cannot serve any purpose unless the target area is relentlessly hit. We hope that this legislation enacted in response to expert recommendation and popular clamour will be implemented by dynamic State action.14. We wish to make it clear that the possible hardship that bona fide prize chit promoters may suffer on account of the total prohibition clamped down by this legislation can be relieved against by the Central Government acting under s. 12. The learned Solicitor General assured the court that the Union of India would take ameliorative measure to avoid unjust hardship, especially because it h ad power to do so under s. 12.15. Mr. M. M. Abdul Khader appearing in Writ Petition No. 1152 of 1979 argued that in his case ornaments and vessels were given as prizes and if strictly construed, his clients scheme did not fall within the scope of the Act. He wanted the court to declare so but we decline to do so, since under Art. 32 this Courts function is not to give advisory opinion to petitioners but to pronounce upon transgression of fundamental rights by State action. While there is no merit in his submission of procedural unreasonableness in the provisions of the Act, it is perfectly open to the writ petitioner to urge his plea that the Act does not apply to his scheme if he were prosecuted. We leave the matter at that Shri Parekh, as intervener, Shri Kanta Rao, appearing in Writ Petition No. 1546/79, Shri Subba Rao pressing Writ Petition No. 138/79 and Shri K.R.R. Pillai in W.P. No. 1152/79 have adopted the leading arguments of Shri Venugopal which we have rejected. All of them must share the same fate.16.
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### Explanation:
judgments with or profusion precedential erudition to make out what is plain,twin requirements of Art. 19(6) are (a) the reasonableness of the restriction upon the fundamental right to trade, and (b) the measure of the reasonableness being the compelling need to promote the interest of the general public. Public interest, of course, there is. But the controversy rages round the compulsive necessity to extinguish the prize chit enterprises altogether as distinguished fromthem with severe conditions geared to protection of public interest. We have already indicated that the Raj Report does recommend a total ban on prize chits. In matters of economics, sociology and other specialised subjects, courts should not embark upon views of halflit infallibility and reject what economists or social scientists have, after detailed studies, commended as the correct course of action. True, the final word is with the court in constitutional matters but judges hesitate to rush in where even specialists fear to tread. If experts fall out, court, perforce, must guide itself and pronounce upon the matter from the constitutional angle, since the final verdict, where constitutional contraventions are complained of, belongs to the judicial arm. The alternative proposals to save the public from prize chit rackets attractively presented by Shri Venugopal do not impress us. In many situations, the poor and unwary have to be saved from the seducing processes resorted by unscrupulous racketeers who glamourize and prey upon the gambling instinct to get rich quick through prizes. So long as there is the resistless spell of a chance though small, of securing a prize, though on paper, people chase the prospect by subscribing to the speculative scheme only to lose what they had. Can you save moths from the fire except by putting out the fatal glow ? Once this prize facet of the chit scheme is given up, it becomes substantially a conventional chit and the ban of the law ceases to operate. We are unable to persuade ourselves that the State is wrong in its assertion, based upon expert opinions that a complete ban of prize c hits is anor excessive blow. Therefore, we decline to strike down the legislation on the score of Art. 19(1)(f) and (g) of the Constitution.We may not be taken to mean that every prize chit promoter is aIn deed, Shri Venugopal persuasively presented the case of his client to make us feel that responsible business was being done by the petitioner. May be. But when a general evil is sought to be suppressed some martyrs may have to suffer for the legislature cannot easily make meticulous exceptions and has to proceed on broad categorisations, not singulardo not agree. Not only do the definitions show the differentiation between the two schemes, but the Raj Report also brings out the fact that conventional chits and prize chits are different categories with different financial features and different damaging effects . We see no force in the plea of violation of Art.bare reading of that provision makes it clear that the exempted categories do not possess the vices of private prize chits. For one thing, what ar e exempted are prize chits and money circulation schemes promoted by or controlled by the State Governments, the Central Government or the State Bank of India or the Reserve Bank. Even Rural Banks andcovered by s. 11, are subject to public control. Likewise, charitable and educational institutions are exempted only if they are notified by the State Government in consultation with the Reserve Bank. There are enough arguments to justify the different classification of these items and their exemption cannot be called in question on the ground of violation of Art. 14. Reasonable classification wins absolution from the charge of discrimination if the differentia has a nexus with the statutoryare not persuaded that in pith and substance the present legislation is one against lotteries. It deals with a special species of contracts with sinister features, although one such feature is the award of prizes to subscribers. While motives cannot validate or invalidate a legislation the core of the subject matter must govern competency. So viewed, it is easy to accept the submission of the Union of India that Parliament wanted to restrict and prohibit certain types of contracts because of the noxious element of gambling and lottery implicit therein and apt to entice the credulous and uncautious. We do not think it necessary to expand on the subject and the incidental impact on lotteries does not affect the vires of the Act .Judicial validation of a social legislation only keeps the path clear for enforcement. Spraying legislative sociomoral pesticides cannot serve any purpose unless the target area is relentlessly hit. We hope that this legislation enacted in response to expert recommendation and popular clamour will be implemented by dynamic Statewish to make it clear that the possible hardship that bona fide prize chit promoters may suffer on account of the total prohibition clamped down by this legislation can be relieved against by the Central Government acting under s. 12. The learned Solicitor General assured the court that the Union of India would take ameliorative measure to avoid unjust hardship, especially because it h ad power to do so under s.wanted the court to declare so but we decline to do so, since under Art. 32 this Courts function is not to give advisory opinion to petitioners but to pronounce upon transgression of fundamental rights by State action. While there is no merit in his submission of procedural unreasonableness in the provisions of the Act, it is perfectly open to the writ petitioner to urge his plea that the Act does not apply to his scheme if he were prosecuted. We leave the matter at that Shri Parekh, as intervener, Shri Kanta Rao, appearing in Writ Petition No. 1546/79, Shri Subba Rao pressing Writ Petition No. 138/79 and Shri K.R.R. Pillai in W.P. No. 1152/79 have adopted the leading arguments of Shri Venugopal which we have rejected. All of them must share the same fate.
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Honda Siel Cars India Ltd Vs. Commissioner Of Income Tax, Ghaziabad | The very purpose of Agreement between the two companies was to set up a joint venture company with aim and objective to establish a unit for manufacture of automobiles and part thereof. As a result of this agreement, assessee company was incorporated which entered into TCA in question for technical collaboration. This technical collaboration included not only transfer of technical information, but, complete assistance, actual, factual and on the spot, for establishment of plant, machinery etc. so as to bring in existence manufacturing unit for the products. Thus, a new business was set up with the technical know-how provided by HMCL, Japan and lumpsum royalty, though in five instalments, was paid therefor.23. No doubt, this technical know-how is for the limited period i.e. for the tenure of the agreement. However, it is important to note that in case of termination of the Agreement, joint venture itself would come to an end and there may not be any further continuation of manufacture of product with technical know-how of foreign collaborator. The High Court has, thus, rightly observed that virtually life of manufacture of product in the plant and machinery, establishes with assistance of foreign company, is co-extensive with the agreement. The Agreement is framed in a manner so as to given a colour of licence for a limited period having no enduring nature but when a close scrutiny into the said Agreement is undertaken, it shows otherwise. It is significant to note in this behalf that the Agreement provides that in the event of expiration or otherwise termination, whatsoever, licensee, i.e., joint venture company/ Assessee shall discontinue manufacture, sale and other disposition of products, parts and residuary products. All these things then shall be at the option of licensor. In other words, licensee in such contingency would hand over unsold product and parts to licensor for sale by him. In case licensor does not exercise such an option and the product is allowed to be sold by licensee, it would continue to pay royalty as per rates agreed under the agreement. Clauses 19 and 21, in our view, make the Agreement in question, i.e., establishment of plant, machinery and manufacture of product with the help of technical know-how, co-extensive, in continuance of Agreement. The Agreement also has a clause of renewal which, in our view, in totality of terms and conditions, will make the unit continue so long as manufacture of product in plant and machinery, established with aid and assistance of foreign company, will continue. Since, it is found that the Agreement in question was crucial for setting up of the plant project in question for manufacturing of the goods, the expenditure in the form of royalty paid would be in the nature of capital expenditure and not revenue expenditure. The Tribunal is conclusion that it is only the other three memoranda which were necessary for setting up the manufacturing facilities and payment thereunder would qualify as capital expenditure, and not the payment of technical fees/royalty on the ground that this Agreement was not in connection with the setting up of a plant or manufacturing facilities, is not correct. It would be interesting to note that even the Tribunal had nurtured doubt on the nature of this expenditure as TCA was signed simultaneously with the other memoranda to facilitate setting up of a new factory and not improvising the earlier set up. This doubt has expressed by the ITAT itself in the following words:""Our doubt was why the payment, at least of the lump sum technical know-how fees, cannot be considered as being connected to the initial starting up of the business and hence not allowable since the know-how was bring obtained for the first time and was crucial to the setting up of the business of the assessee which undisputedly was to manufacture Honda cars in India. It may be recalled that this was also the view taken by the Assessing Officer. Further, the assessee was not already in the manufacture of cars and was commencing such an activity for the first time. It was not a case of a business already in existence. The payment was an "once for all" payment, though staggered over a period of years."24. However, discussion that follows thereafter suggests that the ITAT was satisfied with the explanation of the assessee that the High Courts have always applied the test as to whether the expenditure, whether incurred at the time of setting up of business or later, was for acquisition of the technical know-how or was only for the use of know-how for a particular period. ITAT felt satisfied with the said explanation and held that the expenditure was revenue in nature. It is at this stage that the Tribunal erred in not approaching the issue in right perspective.25. Coming to the judgment of the Delhi High Court in the case of this very assessee, it would be noticed that in that case, technical know-how was obtained for improvising scooter segment, which unit was already in existence. On the contrary, in present case, the TCA was for setting up of new plant for the first time to manufacture cars. The Delhi High Court specifically noted this fact in para 14 of the judgment. While analysing the agreement in that case which was for providing technical know-how in relation to the product i.e. two wheelers and three wheelers and the purpose was to introduce `new models of the said product developed by the Japanese Company, the High Court noted that the agreement specifically recorded that the respondent assessee was already engaged in the business of manufacturing, assembling, selling and otherwise dealing with two/three wheelers and their parts as a joint venture. It referred to the earlier collaboration agreement dated January 24, 1984 and the subsequent amendment thereto which conferred and had granted to the respondent assessee a right and licence to manufacture, assemble, sell, distribute, repair and service two/three wheelers. The aforesaid distinction between the two Agreements has made all the difference in the results. | 0[ds]13. We have considered the respective submissions of counsel for the parties on either side. First thing which is discernible in the impugned judgment of the High Court is that the High Court has proceeded entirely on the basis that technicalwas used for setting up of a plant for manufacture of automobiles. Judgment of the ITAT, on the other hand, reveals that it had arrived at a contrary conclusion.14. Record reveals that simultaneously with the signing of TCA, certain other agreements were also entered into between HMCL, Japan and the assessee on May 21, 1996.When we apply the aforesaid parameters to the facts of the present case, the conclusion drawn by the High Court that expenditure incurred was of capital nature, appears to be unblemished. Admittedly, there was no existing business and, thus, question of improvising the existing technicalby borrowing the technicalof the HMCL, Japan did not arise. The assessee was not in existence at all and it was the result of joint venture of HMCL, Japan and M/s. HSCIL, India. The very purpose of Agreement between the two companies was to set up a joint venture company with aim and objective to establish a unit for manufacture of automobiles and part thereof. As a result of this agreement, assessee company was incorporated which entered into TCA in question for technical collaboration. This technical collaboration included not only transfer of technical information, but, complete assistance, actual, factual and on the spot, for establishment of plant, machinery etc. so as to bring in existence manufacturing unit for the products. Thus, a new business was set up with the technicalprovided by HMCL, Japan and lumpsum royalty, though in five instalments, was paid therefor.23. No doubt, this technicalis for the limited period i.e. for the tenure of the agreement. However, it is important to note that in case of termination of the Agreement, joint venture itself would come to an end and there may not be any further continuation of manufacture of product with technicalof foreign collaborator. The High Court has, thus, rightly observed that virtually life of manufacture of product in the plant and machinery, establishes with assistance of foreign company, iswith the agreement. The Agreement is framed in a manner so as to given a colour of licence for a limited period having no enduring nature but when a close scrutiny into the said Agreement is undertaken, it shows otherwise. It is significant to note in this behalf that the Agreement provides that in the event of expiration or otherwise termination, whatsoever, licensee, i.e., joint venture company/ Assessee shall discontinue manufacture, sale and other disposition of products, parts and residuary products. All these things then shall be at the option of licensor. In other words, licensee in such contingency would hand over unsold product and parts to licensor for sale by him. In case licensor does not exercise such an option and the product is allowed to be sold by licensee, it would continue to pay royalty as per rates agreed under the agreement. Clauses 19 and 21, in our view, make the Agreement in question, i.e., establishment of plant, machinery and manufacture of product with the help of technical, in continuance of Agreement. The Agreement also has a clause of renewal which, in our view, in totality of terms and conditions, will make the unit continue so long as manufacture of product in plant and machinery, established with aid and assistance of foreign company, will continue. Since, it is found that the Agreement in question was crucial for setting up of the plant project in question for manufacturing of the goods, the expenditure in the form of royalty paid would be in the nature of capital expenditure and not revenue expenditure. The Tribunal is conclusion that it is only the other three memoranda which were necessary for setting up the manufacturing facilities and payment thereunder would qualify as capital expenditure, and not the payment of technical fees/royalty on the ground that this Agreement was not in connection with the setting up of a plant or manufacturing facilities, is not correct. It would be interesting to note that even the Tribunal had nurtured doubt on the nature of this expenditure as TCA was signed simultaneously with the other memoranda to facilitate setting up of a new factory and not improvising the earlier set up. This doubt has expressed by the ITAT itself in the followingdoubt was why the payment, at least of the lump sum technicalfees, cannot be considered as being connected to the initial starting up of the business and hence not allowable since thewas bring obtained for the first time and was crucial to the setting up of the business of the assessee which undisputedly was to manufacture Honda cars in India. It may be recalled that this was also the view taken by the Assessing Officer. Further, the assessee was not already in the manufacture of cars and was commencing such an activity for the first time. It was not a case of a business already in existence. The payment was an "once for all" payment, though staggered over a period of years.However, discussion that follows thereafter suggests that the ITAT was satisfied with the explanation of the assessee that the High Courts have always applied the test as to whether the expenditure, whether incurred at the time of setting up of business or later, was for acquisition of the technicalor was only for the use offor a particular period. ITAT felt satisfied with the said explanation and held that the expenditure was revenue in nature. It is at this stage that the Tribunal erred in not approaching the issue in right perspective.25. Coming to the judgment of the Delhi High Court in the case of this very assessee, it would be noticed that in that case, technicalwas obtained for improvising scooter segment, which unit was already in existence. On the contrary, in present case, the TCA was for setting up of new plant for the first time to manufacture cars. The Delhi High Court specifically noted this fact in para 14 of the judgment. While analysing the agreement in that case which was for providing technicalin relation to the product i.e. two wheelers and three wheelers and the purpose was to introduce `new models of the said product developed by the Japanese Company, the High Court noted that the agreement specifically recorded that the respondent assessee was already engaged in the business of manufacturing, assembling, selling and otherwise dealing with two/three wheelers and their parts as a joint venture. It referred to the earlier collaboration agreement dated January 24,he subsequent amendment thereto which conferred and had granted to the respondent assessee a right and licence to manufacture, assemble, sell, distribute, repair and service two/three wheelers. The aforesaid distinction between the two Agreements has made all the difference in the results. | 0 | 7,759 | 1,268 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
The very purpose of Agreement between the two companies was to set up a joint venture company with aim and objective to establish a unit for manufacture of automobiles and part thereof. As a result of this agreement, assessee company was incorporated which entered into TCA in question for technical collaboration. This technical collaboration included not only transfer of technical information, but, complete assistance, actual, factual and on the spot, for establishment of plant, machinery etc. so as to bring in existence manufacturing unit for the products. Thus, a new business was set up with the technical know-how provided by HMCL, Japan and lumpsum royalty, though in five instalments, was paid therefor.23. No doubt, this technical know-how is for the limited period i.e. for the tenure of the agreement. However, it is important to note that in case of termination of the Agreement, joint venture itself would come to an end and there may not be any further continuation of manufacture of product with technical know-how of foreign collaborator. The High Court has, thus, rightly observed that virtually life of manufacture of product in the plant and machinery, establishes with assistance of foreign company, is co-extensive with the agreement. The Agreement is framed in a manner so as to given a colour of licence for a limited period having no enduring nature but when a close scrutiny into the said Agreement is undertaken, it shows otherwise. It is significant to note in this behalf that the Agreement provides that in the event of expiration or otherwise termination, whatsoever, licensee, i.e., joint venture company/ Assessee shall discontinue manufacture, sale and other disposition of products, parts and residuary products. All these things then shall be at the option of licensor. In other words, licensee in such contingency would hand over unsold product and parts to licensor for sale by him. In case licensor does not exercise such an option and the product is allowed to be sold by licensee, it would continue to pay royalty as per rates agreed under the agreement. Clauses 19 and 21, in our view, make the Agreement in question, i.e., establishment of plant, machinery and manufacture of product with the help of technical know-how, co-extensive, in continuance of Agreement. The Agreement also has a clause of renewal which, in our view, in totality of terms and conditions, will make the unit continue so long as manufacture of product in plant and machinery, established with aid and assistance of foreign company, will continue. Since, it is found that the Agreement in question was crucial for setting up of the plant project in question for manufacturing of the goods, the expenditure in the form of royalty paid would be in the nature of capital expenditure and not revenue expenditure. The Tribunal is conclusion that it is only the other three memoranda which were necessary for setting up the manufacturing facilities and payment thereunder would qualify as capital expenditure, and not the payment of technical fees/royalty on the ground that this Agreement was not in connection with the setting up of a plant or manufacturing facilities, is not correct. It would be interesting to note that even the Tribunal had nurtured doubt on the nature of this expenditure as TCA was signed simultaneously with the other memoranda to facilitate setting up of a new factory and not improvising the earlier set up. This doubt has expressed by the ITAT itself in the following words:""Our doubt was why the payment, at least of the lump sum technical know-how fees, cannot be considered as being connected to the initial starting up of the business and hence not allowable since the know-how was bring obtained for the first time and was crucial to the setting up of the business of the assessee which undisputedly was to manufacture Honda cars in India. It may be recalled that this was also the view taken by the Assessing Officer. Further, the assessee was not already in the manufacture of cars and was commencing such an activity for the first time. It was not a case of a business already in existence. The payment was an "once for all" payment, though staggered over a period of years."24. However, discussion that follows thereafter suggests that the ITAT was satisfied with the explanation of the assessee that the High Courts have always applied the test as to whether the expenditure, whether incurred at the time of setting up of business or later, was for acquisition of the technical know-how or was only for the use of know-how for a particular period. ITAT felt satisfied with the said explanation and held that the expenditure was revenue in nature. It is at this stage that the Tribunal erred in not approaching the issue in right perspective.25. Coming to the judgment of the Delhi High Court in the case of this very assessee, it would be noticed that in that case, technical know-how was obtained for improvising scooter segment, which unit was already in existence. On the contrary, in present case, the TCA was for setting up of new plant for the first time to manufacture cars. The Delhi High Court specifically noted this fact in para 14 of the judgment. While analysing the agreement in that case which was for providing technical know-how in relation to the product i.e. two wheelers and three wheelers and the purpose was to introduce `new models of the said product developed by the Japanese Company, the High Court noted that the agreement specifically recorded that the respondent assessee was already engaged in the business of manufacturing, assembling, selling and otherwise dealing with two/three wheelers and their parts as a joint venture. It referred to the earlier collaboration agreement dated January 24, 1984 and the subsequent amendment thereto which conferred and had granted to the respondent assessee a right and licence to manufacture, assemble, sell, distribute, repair and service two/three wheelers. The aforesaid distinction between the two Agreements has made all the difference in the results.
### Response:
0
### Explanation:
HMCL, Japan did not arise. The assessee was not in existence at all and it was the result of joint venture of HMCL, Japan and M/s. HSCIL, India. The very purpose of Agreement between the two companies was to set up a joint venture company with aim and objective to establish a unit for manufacture of automobiles and part thereof. As a result of this agreement, assessee company was incorporated which entered into TCA in question for technical collaboration. This technical collaboration included not only transfer of technical information, but, complete assistance, actual, factual and on the spot, for establishment of plant, machinery etc. so as to bring in existence manufacturing unit for the products. Thus, a new business was set up with the technicalprovided by HMCL, Japan and lumpsum royalty, though in five instalments, was paid therefor.23. No doubt, this technicalis for the limited period i.e. for the tenure of the agreement. However, it is important to note that in case of termination of the Agreement, joint venture itself would come to an end and there may not be any further continuation of manufacture of product with technicalof foreign collaborator. The High Court has, thus, rightly observed that virtually life of manufacture of product in the plant and machinery, establishes with assistance of foreign company, iswith the agreement. The Agreement is framed in a manner so as to given a colour of licence for a limited period having no enduring nature but when a close scrutiny into the said Agreement is undertaken, it shows otherwise. It is significant to note in this behalf that the Agreement provides that in the event of expiration or otherwise termination, whatsoever, licensee, i.e., joint venture company/ Assessee shall discontinue manufacture, sale and other disposition of products, parts and residuary products. All these things then shall be at the option of licensor. In other words, licensee in such contingency would hand over unsold product and parts to licensor for sale by him. In case licensor does not exercise such an option and the product is allowed to be sold by licensee, it would continue to pay royalty as per rates agreed under the agreement. Clauses 19 and 21, in our view, make the Agreement in question, i.e., establishment of plant, machinery and manufacture of product with the help of technical, in continuance of Agreement. The Agreement also has a clause of renewal which, in our view, in totality of terms and conditions, will make the unit continue so long as manufacture of product in plant and machinery, established with aid and assistance of foreign company, will continue. Since, it is found that the Agreement in question was crucial for setting up of the plant project in question for manufacturing of the goods, the expenditure in the form of royalty paid would be in the nature of capital expenditure and not revenue expenditure. The Tribunal is conclusion that it is only the other three memoranda which were necessary for setting up the manufacturing facilities and payment thereunder would qualify as capital expenditure, and not the payment of technical fees/royalty on the ground that this Agreement was not in connection with the setting up of a plant or manufacturing facilities, is not correct. It would be interesting to note that even the Tribunal had nurtured doubt on the nature of this expenditure as TCA was signed simultaneously with the other memoranda to facilitate setting up of a new factory and not improvising the earlier set up. This doubt has expressed by the ITAT itself in the followingdoubt was why the payment, at least of the lump sum technicalfees, cannot be considered as being connected to the initial starting up of the business and hence not allowable since thewas bring obtained for the first time and was crucial to the setting up of the business of the assessee which undisputedly was to manufacture Honda cars in India. It may be recalled that this was also the view taken by the Assessing Officer. Further, the assessee was not already in the manufacture of cars and was commencing such an activity for the first time. It was not a case of a business already in existence. The payment was an "once for all" payment, though staggered over a period of years.However, discussion that follows thereafter suggests that the ITAT was satisfied with the explanation of the assessee that the High Courts have always applied the test as to whether the expenditure, whether incurred at the time of setting up of business or later, was for acquisition of the technicalor was only for the use offor a particular period. ITAT felt satisfied with the said explanation and held that the expenditure was revenue in nature. It is at this stage that the Tribunal erred in not approaching the issue in right perspective.25. Coming to the judgment of the Delhi High Court in the case of this very assessee, it would be noticed that in that case, technicalwas obtained for improvising scooter segment, which unit was already in existence. On the contrary, in present case, the TCA was for setting up of new plant for the first time to manufacture cars. The Delhi High Court specifically noted this fact in para 14 of the judgment. While analysing the agreement in that case which was for providing technicalin relation to the product i.e. two wheelers and three wheelers and the purpose was to introduce `new models of the said product developed by the Japanese Company, the High Court noted that the agreement specifically recorded that the respondent assessee was already engaged in the business of manufacturing, assembling, selling and otherwise dealing with two/three wheelers and their parts as a joint venture. It referred to the earlier collaboration agreement dated January 24,he subsequent amendment thereto which conferred and had granted to the respondent assessee a right and licence to manufacture, assemble, sell, distribute, repair and service two/three wheelers. The aforesaid distinction between the two Agreements has made all the difference in the results.
|
R. C. Chandiok & Anr Vs. Chuni Lal Sabharwal & Ors | any stage were not ready and willing to perform their part of the contract. The High Court had taken another aspect of readiness and willingness into consideration, namely, the possession of sufficient funds by the appellants at the material time for payment of the balance of the sale price. Romesh Chand P.W. 6 had stated that his father was a Head Master since 1922 in a High School and he was also doing import business. He gave up service in 1934. The son joined the father in his business in the year 1928 and his other brother appellant No. 2 also joined that business some years ago. The bank account was produced which showed that between July. 18, 1955 and December 31, 1955 the appellants father had in his account a credit of over Rs. 15,000/but thereafter between January 1956 and March 1956 an amount of Rupees 16,000/- odd had been withdrawn. According to the High Court after these dates there was nothing to show that the appellants had any funds. The evidence of Ramesh Chand P.W. 6 that the family had an amount of Rs. 40,000/- lying at their house was not believed. Now in the first place the relevant period for determining whether the appellants were in a position to pay the balance of the sale price was after November 1956 when sanction had been obtained by the respondents for transfer of the plot from the Rehabilitation Ministry. The appellants had admittedly paid without any difficulty Rs. 7,500/- as earnest money and the bank account of the father showed various credit and debit entries from time to time. On March 5, 1956 an amount of Rs. 12,720/had been withdrawn by a cheque in favour of Romesh Chand P. W. 6. According to his statement this amount was withdrawn because his father was very ill and it was decided to withdraw the amount at that time. It was deposited with his mother and remained with her throughout. There is no material or evidence to show trial this amount had been expended or spent and that the statement of Romesh Chand was false on the point. Even if the version that Rs. 40,000/- in cash were lying at the house of the appellant is discarded at least an amount of Rs. 12,720/- must have been available at the material and relevant time. The appellants were carrying on business and there is nothing to indicate that they were not in a position to arrange for the remaining sum to make up the total of Rs. 15,000/-.We are, therefore, unable to accept that the appellants. Who had all along been trying their utmost to purchase the plot did not have the necessary funds or could not arrange for them when the sale deed had to be executed and registered after the sanction had been obtained. 8. Coming to the last point the High Court has held that the appellants were disentitled to a decree for specific performance because a statement was made at the Bar that during the pendency of the appeal they had executed the decree of the trial Court and an amount at Rs. 7,500/- had been deposited by the respondents pursuant to the execution proceedings. It is true that the appellant could not accept satisfaction of the decree of the trial Court and yet prefer an appeal against that decree. That may well have brought them within the principle that when the plaintiff has elected to proceed in some other manner than for specific performance he cannot ask for the latter relief. This is what Scrutton, L. J. said in Dexters, Limited v. Hill Crest Oil Com. Bradford Ltd., (1926) 1 KB 348 at p. 358:"So, in my opinion, you cannot take the benefit of a judgment as being good and then appeal against it as being bad." It was further observed:"It startles me to hear it argued that a person can say the judgment is wrong and at the same time accept payment under the judgment as being right." This illustrates the rule that a party cannot approbate and reprobate at the same time. These propositions are so well known that no possible exception can be taken to them. In the present case, however, the above rule cannot apply because the appellants had by consistent and unequivocal conduct, made it clear that they were not willing to accept the judgment of the trial Court as correct. It has already been mentioned at a previous stage that after the decision of the trial court the appellants had even applied on March 31, 1958 for an injunction restraining the respondents from selling or otherwise disposing of the plot as it was apprehended that they were trying to do so. It was stated in this application that the plaintiffs would be preferring an appeal but it would take time to secure certified copies. An appeal was in fact preferred and seriously pressed before the High Court on the relief relating to specific performance. This relief is discretionary but not arbitrary and discretion must be exercised in accordance with the sound and reasonable judicial principles. We are unable to hold that the conduct of the appellants, which is always an important element for consideration, was such that it precluded them from obtaining a decree for specific performance. 9. It is common ground that the plot in dispute has been transferred by the respondents and therefore the proper form of the decree would be the same as indicated at page 369 in Lala Durge Prasad v. Lala Deep Chand, 1954 SCR 360 = (AIR 1954 SC 75 ) viz.. "to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor, all he does is to pass on his title to the plaintiff. | 1[ds]6. We are unable to concur with the reasoning or the conclusions of the High Court on the above main points. It is significant that the lease deed was not executed in favour of the respondents by the Government until May 21, 1956. So long as their own title was incomplete there was no question of the sale being completed. It is also undisputed that according to the conditions of the lease the respondents were bound to obtain the sanction of the Rehabilitation Ministry before transferring the plot to any one else. The respondents were fully aware and conscious of this situation much earlier and that is the reason why on5 it was agreed while extending the period for execution of the sale deed that the same shall be got executed after receipt of the sanction. The statement contained in Exhibit7 that that the execution of the sale deed"by us cannot be complete without the said sanction" was unqualified and unequivocal. The respondents further undertook to inform the appellants as soon as sanction was received and there after the sale deed had to be executed within a week and got registered on payment of the balance amount of consideration. We are wholly unable to understand how in the presence of Exhibit7 it was possible to hold that the appellants were bound to get the sale completed even before any information was received from the respondents about the sanction having been obtained. It is quite obvious from the letter Exhibit8 dated June 15, 1956 that the respondents were having second thoughts and wanted to wriggle out of the agreement because presumably they wanted to transfer it for better consideration to some one else or to transfer it in favour of their own relation as is stated to have been done later. The respondents never applied for any sanction after August 11, 1955 and took up the position that they were not prepared to wait indefinitely in the matter and were therefore cancelling the agreement "for want of certainty."We are completely at a loss to understand this attitude nor has any light been thrown on the uncertainty contemplated in the aforesaid letter. It does not appear that there would have been any difficulty in obtaining the sanction if the respondents had made any attempt to obtain it. This is obvious from the fact that when they actually applied for sanction on November 11, 1956 it was granted after almost a week. The statement contained in Exhibit0 dated July 4, 1956 that the sanction was not forthcoming has not been, substantiated by any cogent evidence as no document was placed on the record to show that any attempt was made to obtain sanction prior to November 11. 1956. Be that as it may the respondents could not call upon the appellants to complete the sale and pay the balance money until the undertaking given in Exhibit7 dated August 11, 1955 had been fulfilled by them. The sanction was given in November 1956 and even then the respondents did not inform the appellants about it so as to enable them to perform their part of the agreement of sale. There was no question of time having ever been made the essence of the contract by the letters sent by the respondents nor could it be said that the appellants had failed to perform their part of the agreement within a reasonable time.The appellants were carrying on business and there is nothing to indicate that they were not in a position to arrange for the remaining sum to make up the total of Rs.e are, therefore, unable to accept that the appellants. Who had all along been trying their utmost to purchase the plot did not have the necessary funds or could not arrange for them when the sale deed had to be executed and registered after the sanction had been obtained8. Coming to the last point the High Court has held that the appellants were disentitled to a decree for specific performance because a statement was made at the Bar that during the pendency of the appeal they had executed the decree of the trial Court and an amount at Rs. 7,500/had been deposited by the respondents pursuant to the execution proceedings. It is true that the appellant could not accept satisfaction of the decree of the trial Court and yet prefer an appeal against that decree. That may well have brought them within the principle that when the plaintiff has elected to proceed in some other manner than for specific performance he cannot ask for the latter reliefIn the present case, however, the above rule cannot apply because the appellants had by consistent and unequivocal conduct, made it clear that they were not willing to accept the judgment of the trial Court as correct. It has already been mentioned at a previous stage that after the decision of the trial court the appellants had even applied on March 31, 1958 for an injunction restraining the respondents from selling or otherwise disposing of the plot as it was apprehended that they were trying to do so. It was stated in this application that the plaintiffs would be preferring an appeal but it would take time to secure certified copies. An appeal was in fact preferred and seriously pressed before the High Court on the relief relating to specific performance. This relief is discretionary but not arbitrary and discretion must be exercised in accordance with the sound and reasonable judicial principles. We are unable to hold that the conduct of the appellants, which is always an important element for consideration, was such that it precluded them from obtaining a decree for specific performance9. It is common ground that the plot in dispute has been transferred by the respondents and therefore the proper form of the decree would be the same as indicated at page 369 in Lala Durge Prasad v. Lala Deep Chand, 1954 SCR 360 = (AIR 1954 SC 75 ) viz.. "to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor, all he does is to pass on his title to the plaintiff. | 1 | 3,853 | 1,126 | ### 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:
any stage were not ready and willing to perform their part of the contract. The High Court had taken another aspect of readiness and willingness into consideration, namely, the possession of sufficient funds by the appellants at the material time for payment of the balance of the sale price. Romesh Chand P.W. 6 had stated that his father was a Head Master since 1922 in a High School and he was also doing import business. He gave up service in 1934. The son joined the father in his business in the year 1928 and his other brother appellant No. 2 also joined that business some years ago. The bank account was produced which showed that between July. 18, 1955 and December 31, 1955 the appellants father had in his account a credit of over Rs. 15,000/but thereafter between January 1956 and March 1956 an amount of Rupees 16,000/- odd had been withdrawn. According to the High Court after these dates there was nothing to show that the appellants had any funds. The evidence of Ramesh Chand P.W. 6 that the family had an amount of Rs. 40,000/- lying at their house was not believed. Now in the first place the relevant period for determining whether the appellants were in a position to pay the balance of the sale price was after November 1956 when sanction had been obtained by the respondents for transfer of the plot from the Rehabilitation Ministry. The appellants had admittedly paid without any difficulty Rs. 7,500/- as earnest money and the bank account of the father showed various credit and debit entries from time to time. On March 5, 1956 an amount of Rs. 12,720/had been withdrawn by a cheque in favour of Romesh Chand P. W. 6. According to his statement this amount was withdrawn because his father was very ill and it was decided to withdraw the amount at that time. It was deposited with his mother and remained with her throughout. There is no material or evidence to show trial this amount had been expended or spent and that the statement of Romesh Chand was false on the point. Even if the version that Rs. 40,000/- in cash were lying at the house of the appellant is discarded at least an amount of Rs. 12,720/- must have been available at the material and relevant time. The appellants were carrying on business and there is nothing to indicate that they were not in a position to arrange for the remaining sum to make up the total of Rs. 15,000/-.We are, therefore, unable to accept that the appellants. Who had all along been trying their utmost to purchase the plot did not have the necessary funds or could not arrange for them when the sale deed had to be executed and registered after the sanction had been obtained. 8. Coming to the last point the High Court has held that the appellants were disentitled to a decree for specific performance because a statement was made at the Bar that during the pendency of the appeal they had executed the decree of the trial Court and an amount at Rs. 7,500/- had been deposited by the respondents pursuant to the execution proceedings. It is true that the appellant could not accept satisfaction of the decree of the trial Court and yet prefer an appeal against that decree. That may well have brought them within the principle that when the plaintiff has elected to proceed in some other manner than for specific performance he cannot ask for the latter relief. This is what Scrutton, L. J. said in Dexters, Limited v. Hill Crest Oil Com. Bradford Ltd., (1926) 1 KB 348 at p. 358:"So, in my opinion, you cannot take the benefit of a judgment as being good and then appeal against it as being bad." It was further observed:"It startles me to hear it argued that a person can say the judgment is wrong and at the same time accept payment under the judgment as being right." This illustrates the rule that a party cannot approbate and reprobate at the same time. These propositions are so well known that no possible exception can be taken to them. In the present case, however, the above rule cannot apply because the appellants had by consistent and unequivocal conduct, made it clear that they were not willing to accept the judgment of the trial Court as correct. It has already been mentioned at a previous stage that after the decision of the trial court the appellants had even applied on March 31, 1958 for an injunction restraining the respondents from selling or otherwise disposing of the plot as it was apprehended that they were trying to do so. It was stated in this application that the plaintiffs would be preferring an appeal but it would take time to secure certified copies. An appeal was in fact preferred and seriously pressed before the High Court on the relief relating to specific performance. This relief is discretionary but not arbitrary and discretion must be exercised in accordance with the sound and reasonable judicial principles. We are unable to hold that the conduct of the appellants, which is always an important element for consideration, was such that it precluded them from obtaining a decree for specific performance. 9. It is common ground that the plot in dispute has been transferred by the respondents and therefore the proper form of the decree would be the same as indicated at page 369 in Lala Durge Prasad v. Lala Deep Chand, 1954 SCR 360 = (AIR 1954 SC 75 ) viz.. "to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor, all he does is to pass on his title to the plaintiff.
### Response:
1
### Explanation:
according to the conditions of the lease the respondents were bound to obtain the sanction of the Rehabilitation Ministry before transferring the plot to any one else. The respondents were fully aware and conscious of this situation much earlier and that is the reason why on5 it was agreed while extending the period for execution of the sale deed that the same shall be got executed after receipt of the sanction. The statement contained in Exhibit7 that that the execution of the sale deed"by us cannot be complete without the said sanction" was unqualified and unequivocal. The respondents further undertook to inform the appellants as soon as sanction was received and there after the sale deed had to be executed within a week and got registered on payment of the balance amount of consideration. We are wholly unable to understand how in the presence of Exhibit7 it was possible to hold that the appellants were bound to get the sale completed even before any information was received from the respondents about the sanction having been obtained. It is quite obvious from the letter Exhibit8 dated June 15, 1956 that the respondents were having second thoughts and wanted to wriggle out of the agreement because presumably they wanted to transfer it for better consideration to some one else or to transfer it in favour of their own relation as is stated to have been done later. The respondents never applied for any sanction after August 11, 1955 and took up the position that they were not prepared to wait indefinitely in the matter and were therefore cancelling the agreement "for want of certainty."We are completely at a loss to understand this attitude nor has any light been thrown on the uncertainty contemplated in the aforesaid letter. It does not appear that there would have been any difficulty in obtaining the sanction if the respondents had made any attempt to obtain it. This is obvious from the fact that when they actually applied for sanction on November 11, 1956 it was granted after almost a week. The statement contained in Exhibit0 dated July 4, 1956 that the sanction was not forthcoming has not been, substantiated by any cogent evidence as no document was placed on the record to show that any attempt was made to obtain sanction prior to November 11. 1956. Be that as it may the respondents could not call upon the appellants to complete the sale and pay the balance money until the undertaking given in Exhibit7 dated August 11, 1955 had been fulfilled by them. The sanction was given in November 1956 and even then the respondents did not inform the appellants about it so as to enable them to perform their part of the agreement of sale. There was no question of time having ever been made the essence of the contract by the letters sent by the respondents nor could it be said that the appellants had failed to perform their part of the agreement within a reasonable time.The appellants were carrying on business and there is nothing to indicate that they were not in a position to arrange for the remaining sum to make up the total of Rs.e are, therefore, unable to accept that the appellants. Who had all along been trying their utmost to purchase the plot did not have the necessary funds or could not arrange for them when the sale deed had to be executed and registered after the sanction had been obtained8. Coming to the last point the High Court has held that the appellants were disentitled to a decree for specific performance because a statement was made at the Bar that during the pendency of the appeal they had executed the decree of the trial Court and an amount at Rs. 7,500/had been deposited by the respondents pursuant to the execution proceedings. It is true that the appellant could not accept satisfaction of the decree of the trial Court and yet prefer an appeal against that decree. That may well have brought them within the principle that when the plaintiff has elected to proceed in some other manner than for specific performance he cannot ask for the latter reliefIn the present case, however, the above rule cannot apply because the appellants had by consistent and unequivocal conduct, made it clear that they were not willing to accept the judgment of the trial Court as correct. It has already been mentioned at a previous stage that after the decision of the trial court the appellants had even applied on March 31, 1958 for an injunction restraining the respondents from selling or otherwise disposing of the plot as it was apprehended that they were trying to do so. It was stated in this application that the plaintiffs would be preferring an appeal but it would take time to secure certified copies. An appeal was in fact preferred and seriously pressed before the High Court on the relief relating to specific performance. This relief is discretionary but not arbitrary and discretion must be exercised in accordance with the sound and reasonable judicial principles. We are unable to hold that the conduct of the appellants, which is always an important element for consideration, was such that it precluded them from obtaining a decree for specific performance9. It is common ground that the plot in dispute has been transferred by the respondents and therefore the proper form of the decree would be the same as indicated at page 369 in Lala Durge Prasad v. Lala Deep Chand, 1954 SCR 360 = (AIR 1954 SC 75 ) viz.. "to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor, all he does is to pass on his title to the plaintiff.
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BHARTIBEN NAYABHA KER Vs. SIDABHA PETHABHA MANKE | CORRIGENDUM1 After the judgment was delivered on 5 April 2018, the matter has been mentioned for correcting certain typographical mistakes in the judgment. We accordingly correct the judgment dated 5 April 2018 to the following extent:(i) The last sentence of paragraph 4 shall stand corrected to read as follows:?Second, it has been urged that there was no justification for the High Court to reduce the award of interest from 12% p.a. to 9% p.a.? (ii) Paragraph 6 of the judgment shall stand substituted with the following paragraph:?We find no reason to interfere with the award of interest at 9% p.a. by the High Court.? Dr D Y CHANDRACHUD, J1. The present appeal arises from a judgment of a learned Single Judge dated 15 March 2016, in a first appeal from the decision of the Motor Accident Claims Tribunal (MACT), Jamnagar.2. The appellants are heirs and legal representatives of Nayabha Mapbha Ker who died as a result of a motor accident on 18 July 1993. He was travelling in a jeep bearing Registration No GBI-7896 which was being driven by the fourth respondent towards Mithapur. At about 3.00 am the first respondent who REPORTABLE was driving a truck bearing Registration No.GJ-10-T-747, came from the opposite direction and dashed against the jeep. Nayabha was seriously injured and died during the course of the accident. His heirs filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 before the MACT, Jamnagar seeking compensation in the amount of Rs 13 lakhs. By its award dated 19 July 1999 the Tribunal allowed the claim in the amount of Rs 7,78,000 together with interest at the rate of 12 % per annum. The appellants filed a first appeal before the High Court of Gujarat. The High Court, by its impugned judgment, allowed an additional amount of Rs 33,000 under the head of loss of life, expenses and consortium but reduced the rate of interest from 12 % p.a. to 9% p.a. Aggrieved by the judgment of the High Court, the claimants are in appeal.3. The deceased was 41 years old at the time of the accident. He had acquired a B.A. and B.Ed. qualification. For seven years, he had served as President of the Taluka Panchayat. The deceased owned agricultural land. The Tribunal assessed the annual income of the deceased at Rs.81,000 comprised of his agricultural income and income from other sources. Applying a multiplier of 12, the Tribunal computed an amount of Rs. 7.56 lakhs towards the loss of dependency. A total amount of Rs 7.78 lakhs was awarded inclusive of conventional heads. In appeal, the High Court came to the conclusion that the total income would work out to Rs 92,000 out of which one fourth would be deducted for personal expenses. Applying a multiplier of 14, the High Court awarded an additional amount of Rs 33,000. However, the rate of interest has been reduced to 9% per annum.4. Basically two submissions have been urged on behalf of the appellants. First, it has been urged that the High Court did not allow for future prospects for which provision has to be made in view of the law settled by a Constitution Bench of this Court in National Insurance Company Limited v Pranay Sethi 1 . Second, it has been urged that there was no justification for the High Court to reduce the award of interest from 9% p.a. to 6% p.a.5. The High Court has computed the total income of the deceased at Rs 91,800 (Rs 55,000 being the income from agriculture and Rs 36,800 being the income from salary). In view of the decision of the Constitution Bench in Pranay Sethi (supra), an addition of 25% is warranted, on account of future prospects having regard to the age of the deceased. The total income, after accounting for future prospects at 25% would work out to Rs 1,14,000 per annum. An amount of one fourth would have to be reduced on account of personal expenses. The net income would work out to Rs 85,500. Applying a multiplier of 14 the total compensation would work out to Rs 11,97,000. Adding a further amount of Rs 70,000 under conventional heads as stipulated in the judgment in Pranay Sethi (supra), the total compensation payable would work out to Rs 12,67,000.6. We find no reason or justification for the High Court to reduce the award of interest to 6% p.a.. The rate of interest of 9% p.a. fixed by the Tribunal is restored.7. | 1[ds]The High Court has computed the total income of the deceased at Rs 91,800 (Rs 55,000 being the income from agriculture and Rs 36,800 being the income from salary). In view of the decision of the Constitution Bench in Pranay Sethi (supra), an addition of 25% is warranted, on account of future prospects having regard to the age of the deceased. The total income, after accounting for future prospects at 25% would work out to Rs 1,14,000 per annum. An amount of one fourth would have to be reduced on account of personal expenses. The net income would work out to Rs 85,500. Applying a multiplier of 14 the total compensation would work out to Rs 11,97,000. Adding a further amount of Rs 70,000 under conventional heads as stipulated in the judgmentin Pranay Sethi (supra), the total compensation payable would work out to Rs 12,67,000.6We find no reason or justification for the High Court to reduce the award of interest to 6% p.a.. The rate of interest of 9% p.a. fixed by the Tribunal is restored. | 1 | 845 | 203 | ### Instruction:
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CORRIGENDUM1 After the judgment was delivered on 5 April 2018, the matter has been mentioned for correcting certain typographical mistakes in the judgment. We accordingly correct the judgment dated 5 April 2018 to the following extent:(i) The last sentence of paragraph 4 shall stand corrected to read as follows:?Second, it has been urged that there was no justification for the High Court to reduce the award of interest from 12% p.a. to 9% p.a.? (ii) Paragraph 6 of the judgment shall stand substituted with the following paragraph:?We find no reason to interfere with the award of interest at 9% p.a. by the High Court.? Dr D Y CHANDRACHUD, J1. The present appeal arises from a judgment of a learned Single Judge dated 15 March 2016, in a first appeal from the decision of the Motor Accident Claims Tribunal (MACT), Jamnagar.2. The appellants are heirs and legal representatives of Nayabha Mapbha Ker who died as a result of a motor accident on 18 July 1993. He was travelling in a jeep bearing Registration No GBI-7896 which was being driven by the fourth respondent towards Mithapur. At about 3.00 am the first respondent who REPORTABLE was driving a truck bearing Registration No.GJ-10-T-747, came from the opposite direction and dashed against the jeep. Nayabha was seriously injured and died during the course of the accident. His heirs filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 before the MACT, Jamnagar seeking compensation in the amount of Rs 13 lakhs. By its award dated 19 July 1999 the Tribunal allowed the claim in the amount of Rs 7,78,000 together with interest at the rate of 12 % per annum. The appellants filed a first appeal before the High Court of Gujarat. The High Court, by its impugned judgment, allowed an additional amount of Rs 33,000 under the head of loss of life, expenses and consortium but reduced the rate of interest from 12 % p.a. to 9% p.a. Aggrieved by the judgment of the High Court, the claimants are in appeal.3. The deceased was 41 years old at the time of the accident. He had acquired a B.A. and B.Ed. qualification. For seven years, he had served as President of the Taluka Panchayat. The deceased owned agricultural land. The Tribunal assessed the annual income of the deceased at Rs.81,000 comprised of his agricultural income and income from other sources. Applying a multiplier of 12, the Tribunal computed an amount of Rs. 7.56 lakhs towards the loss of dependency. A total amount of Rs 7.78 lakhs was awarded inclusive of conventional heads. In appeal, the High Court came to the conclusion that the total income would work out to Rs 92,000 out of which one fourth would be deducted for personal expenses. Applying a multiplier of 14, the High Court awarded an additional amount of Rs 33,000. However, the rate of interest has been reduced to 9% per annum.4. Basically two submissions have been urged on behalf of the appellants. First, it has been urged that the High Court did not allow for future prospects for which provision has to be made in view of the law settled by a Constitution Bench of this Court in National Insurance Company Limited v Pranay Sethi 1 . Second, it has been urged that there was no justification for the High Court to reduce the award of interest from 9% p.a. to 6% p.a.5. The High Court has computed the total income of the deceased at Rs 91,800 (Rs 55,000 being the income from agriculture and Rs 36,800 being the income from salary). In view of the decision of the Constitution Bench in Pranay Sethi (supra), an addition of 25% is warranted, on account of future prospects having regard to the age of the deceased. The total income, after accounting for future prospects at 25% would work out to Rs 1,14,000 per annum. An amount of one fourth would have to be reduced on account of personal expenses. The net income would work out to Rs 85,500. Applying a multiplier of 14 the total compensation would work out to Rs 11,97,000. Adding a further amount of Rs 70,000 under conventional heads as stipulated in the judgment in Pranay Sethi (supra), the total compensation payable would work out to Rs 12,67,000.6. We find no reason or justification for the High Court to reduce the award of interest to 6% p.a.. The rate of interest of 9% p.a. fixed by the Tribunal is restored.7.
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### Explanation:
The High Court has computed the total income of the deceased at Rs 91,800 (Rs 55,000 being the income from agriculture and Rs 36,800 being the income from salary). In view of the decision of the Constitution Bench in Pranay Sethi (supra), an addition of 25% is warranted, on account of future prospects having regard to the age of the deceased. The total income, after accounting for future prospects at 25% would work out to Rs 1,14,000 per annum. An amount of one fourth would have to be reduced on account of personal expenses. The net income would work out to Rs 85,500. Applying a multiplier of 14 the total compensation would work out to Rs 11,97,000. Adding a further amount of Rs 70,000 under conventional heads as stipulated in the judgmentin Pranay Sethi (supra), the total compensation payable would work out to Rs 12,67,000.6We find no reason or justification for the High Court to reduce the award of interest to 6% p.a.. The rate of interest of 9% p.a. fixed by the Tribunal is restored.
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Rajasthan Housing Board Vs. New Pink City Nirman Sahka.Sam.Ld | an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order made on behalf of the Government. A reading of the Letter dated 6-12-2001 shows that it was neither expressed in the name of the Governor nor was it authenticated in the manner prescribed by the rules. That letter merely speaks of the discussion made by the Committee and the decision taken by it. By no stretch of imagination the same can be treated as a policy decision of the Government within the meaning of Article 166 of the Constitution.54. We are further of the view that even if the instructions contained in the Letter dated 6-12-2001 could be treated as policy decision of the Government, the High Court should have quashed the same because the said policy was clearly contrary to the law declared by this Court in Radhey Shyam case (supra) and Daulat Mal Jain case (supra) and was a crude attempt by the political functionaries concerned of the State to legalise what had already been declared illegal by this Court.” 52. Thus, it is apparent that the circular in question cannot be pressed into service by the Society. Apart from inapplicability, it is also apparent that the very purpose of issuing such circulars is not to benefit the purchaser who has acquired the right after issuance of notification under section 4 of Rajasthan Land Acquisition Act, and in violation of mandate of section 42. Consequently, the High Court had no jurisdiction to direct allotment of land. Even Khatedars were not entitled to such direction/benefit as the circulars are not applicable in such cases. 53. We may refer to the decision in Hari Ram & Anr. v. State of Haryana & Ors. [2010 (3) SCC 621 ] relied upon on behalf of the Society in which this Court considered passing of different orders, in respect of persons similarly situated, relating to same acquisition proceedings. The action was held to be violative of Article 14 being discriminatory. There is no doubt about it that different standards cannot be applied for withdrawal from acquisition. The present is not such a case. The circular is not applicable. We cannot direct the State to act upon the circulars which are not applicable. Under the Code that all actions of the State are to be fair and legitimate, we cannot create negative equality and confer a benefit that too on the strength of a concessional statement which is not provided by circular. Concession made by the counsel in Ratni Devi’s case (supra) cannot widen scope of circular. 54. We may also refer to other decisions relied upon in Usha Stud and Agricultural Farms Pvt. Ltd. & Ors. v. State of Haryana & Ors. [2013 (4) SCC 210 ] laying down that once a State Government has taken a conscious decision to release the land, there would be no justification whatsoever for the State for not according similar treatment to the appellants is also of no avail to the Society. 55. Coming to the quantum of compensation to be awarded in the instant case, it was submitted on behalf of the Society and Khatedars in respective appeals that the compensation determined by the High Court is on lower side. Adequate compensation has not been determined. It was submitted that oral evidence which was relied upon by the Reference Court ought to have been acted upon by the High Court. It was contended that the oral evidence cannot be ignored. By virtue of decisions in State of Gujarat & Ors. v. Rama Rana & Ors. [1997 (2) SCC 693 ], Satyanarayana & Ors. v. Bhu Arjan Adhikari & Ors. [2011 (15) SCC 133 ] and Ramanlal Deochand Shah v. State of Maharashtra & Anr. [2013 (14) SCC 50 ]. 56. The price of the land per sq. yd. was determined by the Reference Court. The documentary evidence which has been referred to by the Reference Court comprises of Ex. 1 agreement dated 26.8.1982 at the rate of Rs.135 per sq.yd., Ex. 3 agreement dated 7.1.1982 at the rate of Rs.165 per sq.yd., agreement dated 28.9.1981 at the rate of Rs.135 per sq.yd. for 244 sq.yd. and agreement dated 5.5.1979 at the rate of Rs.94 per sq.yd. Certain transactions of 1983 were also referred which have to be ignored being subsequent to the date of notification under section 4. However, referring to the oral statement of the witnesses in which value was stated to be much more, the Reference Court has arrived at the conclusion of Rs.260 per sq.yd. The Single Bench of the High Court considered and referred to both the oral and documentary evidence. Ex.1 agreement dated 26.8.1982 about the sale of plot No.55 situated in Krishna Vihar Gopalpura @ Rs.115/- per sq. yds., Ex.3 is agreement to sale of land of 200 sq. yds. Agreement dated 7.1.1982 at the rate of Rs.165/- per sq. yds. Situated at Maharani Farm Duragapura. Ex.4-A agreement to sale of 244 sq. yds. dated 29.8.1981 @ Rs.135/- per sq.yds. situated at Brijalpur from Krishnapuri Housing Society, Ex.5 agreement dated 24.7.1982 of 18000 sq.yds. of land @ Rs.125/- per sq.yds. for a total amount of Rs.22,55,000/- entered between Meena Kumari Housing Society and trustee Devi Shanker Tiwari, Ex. 7 Agreement dated 16.9.1983 about the sale of land measuring 147 sq. yds. for Rs.22,100/- approx. @ Rs.150/- per sq. yds. and the land situated in gram panchayat Bhagyawas, Ex.8 agreement dated 5.5.1979 of 34,000 sq.yds. @ Rs.90-94 per sq. yds. 57. It also considered oral evidence in detail and has not relied upon the same and has arrived at the average price to be Rs.135 per sq.yd. making certain deduction as large area has been acquired. In case area in question had been developed, certain area was bound to go in the development. Thus, deduction which has been made to arrive at the figure of Rs.100 per sq.yd. is proper. | 1[ds]Admittedly, possession from the Society had been taken on 22.5.1982. The Society submitted the objections before the LAO on 20.7.1982. While rejecting the objections on 4.9.1982, the Special Officer, Urban Development Authority, LAO, had unilaterally observed that the acquisition cannot be said to be in violation of the provisions contained in Article 300A of the Constitution of India, the Society has no ownership of the land, it has no interest in the land. Thus, it has no right to raise the objection. The said order had attained finality and the award was passed on 30.11.1982. In the award so passed, it has also been mentioned that an Advocate had appeared on behalf of the Khatedars and wanted to file objections regarding compensation.In the instant case, notice under section 12(2) was issued to the Society by the Special Officer on 31.12.1988, treating the Society as ‘personand informing that an award had been passed on 30.11.1982 in accordance with section 11 of the Land Acquisition Act. On the strength of the aforesaid notices it was urged on behalf of the Society that the limitation to seek the reference would commence from the date of receipt of the notices issued and received on 31.12.1988. The reference sought was within the period of limitation.In the instant case it is apparent that the Housing Society had preferred objections and was aware of the land acquisition process and determination of compensation and has filed objections which stood rejected on 4.9.1982. Thus, the constructive knowledge of the award is fairly attributable to it when it was so passed. Constructive notice in legal fiction signifies that the individual person should know as a reasonable person would have.It is also apparent that the Society had actively participated in the other pending cases with respect to determination of compensation in which award had been passed on 2.1.1989. Thus the reference sought on the strength of the notice under section 12(2) issued and received on 31.12.1988 would not provide limitation to the Society for seeking reference with respect to the four cases in which the award was passed on 30.11.1982 as notice to it was wholly unnecessary in view of rejection of its objection on the ground that it was not having right, title or interest in the land. Thus it could not be said to be ‘personin view of the order dated 4.9.1982. The notice was issued for reasons best known to the Special Officer. It is surprising how and for what reasons notice was issued after six years. We need not go into this aspect any further as we are of the opinion that in the facts and circumstances, the Society had a constructive notice of the award dated 30.11.1982. Thus, in view of the conjoint reading of sections 12(2) and 18(2) of the Rajasthan Land Acquisition Act, it was not open to the LAO to refer the case to the civil court on the basis of the time barredthe counter affidavit filed on behalf of the Society, the factum that Khatedars areand belongs to Scheduled Caste, has not been denied. Before the Reference Court also, the stand of the State Government was that as the Khatedars belong to Scheduled Caste, the transaction was prohibited by section 42 of the Rajasthan Tenancy Act. On behalf of the Society, it was submitted in counter affidavit that as it is a Society, the rigor of provisions of section 42 is not attracted and it had relied upon the circular dated 1.9.1984 issued by the Government of Rajasthan for regularisation of the land sold in violation of section 42 of the Rajasthan Tenancy Act. The Society has failed to deny clear and categorical averments,makes the aforesaid facts undisputed one. There is not even an evasive denial that Khatedars do not belong to Scheduled Caste. Even in the additional affidavit filed on behalf of the Society in the wake of the rejoinder filed by the petitioner in reply to the counter affidavit of respondent No.2, the caste of the original Khatedars has not been disputed. Thus, we are of the considered opinion that the original Khatedars areby caste which is a Scheduled Caste and they are entitled to the protection of the provisions contained in section 42 of the Rajasthan Tenancy Act.In the instant case, the transaction is ab initio void that is right from its inception and is not voidable at the volition by virtue of the specific language used in section 42 of the Rajasthan Tenancy Act. There is declaration that such transaction of sale of holdingAs the provision is declaratory, no further declaration is required to declare prohibited transaction a nullity. No right accrues to a person on the basis of such a transaction. The person who enters into an agreement to purchase the same, is aware of the consequences of the provision carved out in order to protect weaker sections of Scheduled Castes and Scheduled Tribes. The right to claim compensation accrues from right, title or interest in the land. When such right, title or interest in land is inalienable to non-SC/ST, obviously the agreements entered into by the Society with the Khatedars are clearly void and decrees obtained on the basis of the agreement are violative of the mandate of section 42 of the Rajasthan Tenancy Act and are a nullity. Such a prohibited transaction opposed to public policy, cannot be enforced. Any other interpretation would be defeasive of the very intent and protection carved out under section 42 as per the mandate of Article 46 of the Constitution, in favour of the poor castes and downtrodden persons, included in the Schedules to Articles 341 and 342 of the Constitution of India.The right to claim compensation cannot be enforced by the Society on the basis of such transaction as that would defeat the very object of the Act and the constitutional provisions including such castes and tribes under the protective umbrella of the Schedules to Articles 341 and 342, they cannot be deprived of right to obtain the compensation of the land legally held by them and they cannot be made to fall prey to unscrupulous devices of land grabbers. The right to claim compensation is based on right, title or interest in the land, cannot be transferred by virtue of the mandate of section 42 to a juristic person like the Society. It is the duty of the State to ensure that the benefit reaches to such persons directly and not usurped by intermeddlers as what is intended by the protection of the right to hold property of SC/ST, cannot be taken away by disbursing the compensation to Society. Persons of SC/ST, as the case may be, are the only rightful claimants to disbursal of compensation and such right cannot be tinkered with by void transaction as the purpose of compensation is theof Scheduled Castes orfrom that, voidity of the transaction can be looked into in these proceedings also when right to claim compensation is asserted by the Society and from factual conspectus of the instant case it is apparent that Khatedars belong to Scheduled Castes and they cannot be deprived of their right to claim compensation, intendment of section 42 can be effectuated in these proceedings.When we consider the aforesaid submission, it is apparent that the right to hold property cannot be taken away except in accordance with the provisions of the statute but in the instant case, we are of the considered view that the right to hold property albeit had not been acquired by the Society, transction was ab initio void and a nullity. On the other hand, the land has been acquired by the State Government and even the right to claim compensation was denied to the Society in the award passed on 30.11.1982 by rejecting their objections. The recourse to section 175 was not required as already held by us.It is apparent from para 1 that the Circular is applicable in the matter of land acquisition when the Khatedars surrendered their lands.In the instant case, even the prevalent instructions which have been modified did not confer any right on the Society or the Khatedars to claim the developed land. It was not a case of surrender of land; thus there was no question of the provisions of the circular being applied as the circular was in the form of guidelines for future acquisitions where Khatedars surrendered their lands and award has not been passed. For the aforesaid reasons, the aforesaid circular could not have been pressed into service by the Society and that too at the appellate stage before the Division Bench. The Division Bench has gravely erred in law while issuing the aforesaid directions which were wholly unwarranted and uncalled for.Thus, it is apparent that the circular in question cannot be pressed into service by the Society. Apart from inapplicability, it is also apparent that the very purpose of issuing such circulars is not to benefit the purchaser who has acquired the right after issuance of notification under section 4 of Rajasthan Land Acquisition Act, and in violation of mandate of section 42. Consequently, the High Court had no jurisdiction to direct allotment of land. Even Khatedars were not entitled to such direction/benefit as the circulars are not applicable in such cases.Coming to the quantum of compensation to be awarded in the instant case, it was submitted on behalf of the Society and Khatedars in respective appeals that the compensation determined by the High Court is on lower side. Adequate compensation has not been determined. It was submitted that oral evidence which was relied upon by the Reference Court ought to have been acted upon by the High Court. It was contended that the oral evidence cannot be ignored.The High Court has rejected the application under Order 1 Rule 10 filed by the Khatedars. In the facts of this case, particularly when the issue of violation of section 42 of Rajasthan Tenancy Act was raised by the State Government and reference was also as to the award passed in 1982 in favour of Khatedars in which the Society was denied the right to receive compensation. Obviously, Khatedars were required to be heard as the adjudication of their right was involved in the matter to decide to whom the compensation is payable, and whether the Society was entitled to claim compensation on the basis of void transaction. It was also submitted before us that the Khatedars have sought reference under section 30 against the Society, that question can be decided in those proceedings. However, the factual matrix and its determination of the question as to entitlement of Society is necessary in the instant case, as such we have decided it. More so, the plight of downtrodden class of the Scheduled Castes Khatedars cannot be prolonged and considering the provisions which have been enacted for their protection, and the constitutional mandate, we are inclined to exercise our power to set at rest the dispute between the parties and hold that only Khatedars, in case some of them have died, their legal representatives would be entitled to receive the compensation which has been determined in the instant case. | 1 | 15,153 | 1,999 | ### Instruction:
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an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order made on behalf of the Government. A reading of the Letter dated 6-12-2001 shows that it was neither expressed in the name of the Governor nor was it authenticated in the manner prescribed by the rules. That letter merely speaks of the discussion made by the Committee and the decision taken by it. By no stretch of imagination the same can be treated as a policy decision of the Government within the meaning of Article 166 of the Constitution.54. We are further of the view that even if the instructions contained in the Letter dated 6-12-2001 could be treated as policy decision of the Government, the High Court should have quashed the same because the said policy was clearly contrary to the law declared by this Court in Radhey Shyam case (supra) and Daulat Mal Jain case (supra) and was a crude attempt by the political functionaries concerned of the State to legalise what had already been declared illegal by this Court.” 52. Thus, it is apparent that the circular in question cannot be pressed into service by the Society. Apart from inapplicability, it is also apparent that the very purpose of issuing such circulars is not to benefit the purchaser who has acquired the right after issuance of notification under section 4 of Rajasthan Land Acquisition Act, and in violation of mandate of section 42. Consequently, the High Court had no jurisdiction to direct allotment of land. Even Khatedars were not entitled to such direction/benefit as the circulars are not applicable in such cases. 53. We may refer to the decision in Hari Ram & Anr. v. State of Haryana & Ors. [2010 (3) SCC 621 ] relied upon on behalf of the Society in which this Court considered passing of different orders, in respect of persons similarly situated, relating to same acquisition proceedings. The action was held to be violative of Article 14 being discriminatory. There is no doubt about it that different standards cannot be applied for withdrawal from acquisition. The present is not such a case. The circular is not applicable. We cannot direct the State to act upon the circulars which are not applicable. Under the Code that all actions of the State are to be fair and legitimate, we cannot create negative equality and confer a benefit that too on the strength of a concessional statement which is not provided by circular. Concession made by the counsel in Ratni Devi’s case (supra) cannot widen scope of circular. 54. We may also refer to other decisions relied upon in Usha Stud and Agricultural Farms Pvt. Ltd. & Ors. v. State of Haryana & Ors. [2013 (4) SCC 210 ] laying down that once a State Government has taken a conscious decision to release the land, there would be no justification whatsoever for the State for not according similar treatment to the appellants is also of no avail to the Society. 55. Coming to the quantum of compensation to be awarded in the instant case, it was submitted on behalf of the Society and Khatedars in respective appeals that the compensation determined by the High Court is on lower side. Adequate compensation has not been determined. It was submitted that oral evidence which was relied upon by the Reference Court ought to have been acted upon by the High Court. It was contended that the oral evidence cannot be ignored. By virtue of decisions in State of Gujarat & Ors. v. Rama Rana & Ors. [1997 (2) SCC 693 ], Satyanarayana & Ors. v. Bhu Arjan Adhikari & Ors. [2011 (15) SCC 133 ] and Ramanlal Deochand Shah v. State of Maharashtra & Anr. [2013 (14) SCC 50 ]. 56. The price of the land per sq. yd. was determined by the Reference Court. The documentary evidence which has been referred to by the Reference Court comprises of Ex. 1 agreement dated 26.8.1982 at the rate of Rs.135 per sq.yd., Ex. 3 agreement dated 7.1.1982 at the rate of Rs.165 per sq.yd., agreement dated 28.9.1981 at the rate of Rs.135 per sq.yd. for 244 sq.yd. and agreement dated 5.5.1979 at the rate of Rs.94 per sq.yd. Certain transactions of 1983 were also referred which have to be ignored being subsequent to the date of notification under section 4. However, referring to the oral statement of the witnesses in which value was stated to be much more, the Reference Court has arrived at the conclusion of Rs.260 per sq.yd. The Single Bench of the High Court considered and referred to both the oral and documentary evidence. Ex.1 agreement dated 26.8.1982 about the sale of plot No.55 situated in Krishna Vihar Gopalpura @ Rs.115/- per sq. yds., Ex.3 is agreement to sale of land of 200 sq. yds. Agreement dated 7.1.1982 at the rate of Rs.165/- per sq. yds. Situated at Maharani Farm Duragapura. Ex.4-A agreement to sale of 244 sq. yds. dated 29.8.1981 @ Rs.135/- per sq.yds. situated at Brijalpur from Krishnapuri Housing Society, Ex.5 agreement dated 24.7.1982 of 18000 sq.yds. of land @ Rs.125/- per sq.yds. for a total amount of Rs.22,55,000/- entered between Meena Kumari Housing Society and trustee Devi Shanker Tiwari, Ex. 7 Agreement dated 16.9.1983 about the sale of land measuring 147 sq. yds. for Rs.22,100/- approx. @ Rs.150/- per sq. yds. and the land situated in gram panchayat Bhagyawas, Ex.8 agreement dated 5.5.1979 of 34,000 sq.yds. @ Rs.90-94 per sq. yds. 57. It also considered oral evidence in detail and has not relied upon the same and has arrived at the average price to be Rs.135 per sq.yd. making certain deduction as large area has been acquired. In case area in question had been developed, certain area was bound to go in the development. Thus, deduction which has been made to arrive at the figure of Rs.100 per sq.yd. is proper.
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### Explanation:
are clearly void and decrees obtained on the basis of the agreement are violative of the mandate of section 42 of the Rajasthan Tenancy Act and are a nullity. Such a prohibited transaction opposed to public policy, cannot be enforced. Any other interpretation would be defeasive of the very intent and protection carved out under section 42 as per the mandate of Article 46 of the Constitution, in favour of the poor castes and downtrodden persons, included in the Schedules to Articles 341 and 342 of the Constitution of India.The right to claim compensation cannot be enforced by the Society on the basis of such transaction as that would defeat the very object of the Act and the constitutional provisions including such castes and tribes under the protective umbrella of the Schedules to Articles 341 and 342, they cannot be deprived of right to obtain the compensation of the land legally held by them and they cannot be made to fall prey to unscrupulous devices of land grabbers. The right to claim compensation is based on right, title or interest in the land, cannot be transferred by virtue of the mandate of section 42 to a juristic person like the Society. It is the duty of the State to ensure that the benefit reaches to such persons directly and not usurped by intermeddlers as what is intended by the protection of the right to hold property of SC/ST, cannot be taken away by disbursing the compensation to Society. Persons of SC/ST, as the case may be, are the only rightful claimants to disbursal of compensation and such right cannot be tinkered with by void transaction as the purpose of compensation is theof Scheduled Castes orfrom that, voidity of the transaction can be looked into in these proceedings also when right to claim compensation is asserted by the Society and from factual conspectus of the instant case it is apparent that Khatedars belong to Scheduled Castes and they cannot be deprived of their right to claim compensation, intendment of section 42 can be effectuated in these proceedings.When we consider the aforesaid submission, it is apparent that the right to hold property cannot be taken away except in accordance with the provisions of the statute but in the instant case, we are of the considered view that the right to hold property albeit had not been acquired by the Society, transction was ab initio void and a nullity. On the other hand, the land has been acquired by the State Government and even the right to claim compensation was denied to the Society in the award passed on 30.11.1982 by rejecting their objections. The recourse to section 175 was not required as already held by us.It is apparent from para 1 that the Circular is applicable in the matter of land acquisition when the Khatedars surrendered their lands.In the instant case, even the prevalent instructions which have been modified did not confer any right on the Society or the Khatedars to claim the developed land. It was not a case of surrender of land; thus there was no question of the provisions of the circular being applied as the circular was in the form of guidelines for future acquisitions where Khatedars surrendered their lands and award has not been passed. For the aforesaid reasons, the aforesaid circular could not have been pressed into service by the Society and that too at the appellate stage before the Division Bench. The Division Bench has gravely erred in law while issuing the aforesaid directions which were wholly unwarranted and uncalled for.Thus, it is apparent that the circular in question cannot be pressed into service by the Society. Apart from inapplicability, it is also apparent that the very purpose of issuing such circulars is not to benefit the purchaser who has acquired the right after issuance of notification under section 4 of Rajasthan Land Acquisition Act, and in violation of mandate of section 42. Consequently, the High Court had no jurisdiction to direct allotment of land. Even Khatedars were not entitled to such direction/benefit as the circulars are not applicable in such cases.Coming to the quantum of compensation to be awarded in the instant case, it was submitted on behalf of the Society and Khatedars in respective appeals that the compensation determined by the High Court is on lower side. Adequate compensation has not been determined. It was submitted that oral evidence which was relied upon by the Reference Court ought to have been acted upon by the High Court. It was contended that the oral evidence cannot be ignored.The High Court has rejected the application under Order 1 Rule 10 filed by the Khatedars. In the facts of this case, particularly when the issue of violation of section 42 of Rajasthan Tenancy Act was raised by the State Government and reference was also as to the award passed in 1982 in favour of Khatedars in which the Society was denied the right to receive compensation. Obviously, Khatedars were required to be heard as the adjudication of their right was involved in the matter to decide to whom the compensation is payable, and whether the Society was entitled to claim compensation on the basis of void transaction. It was also submitted before us that the Khatedars have sought reference under section 30 against the Society, that question can be decided in those proceedings. However, the factual matrix and its determination of the question as to entitlement of Society is necessary in the instant case, as such we have decided it. More so, the plight of downtrodden class of the Scheduled Castes Khatedars cannot be prolonged and considering the provisions which have been enacted for their protection, and the constitutional mandate, we are inclined to exercise our power to set at rest the dispute between the parties and hold that only Khatedars, in case some of them have died, their legal representatives would be entitled to receive the compensation which has been determined in the instant case.
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Prakash Chand Sharma and Others Vs. Narendra Nath Sharma | if Babu Ram. The amount of loans covered by these two bonds were very small compared to the advance of loan by Bhagwati Prasad. This clearly establishes that the parties had separate dealings not because they were members of the joint family but in all probability as separated members. Ext. A-29 is a copy of the plaint instituted on February 28, 1923 by Narendra Nath who was then a minor under the guardianship of Babu Lal in respect of realization of certain mortgage dues - a mortgage which had been excited in favour of Bhagwati Prasad alone. Had this property been a joint family property as was the case of the plaintiffs the suit would gave been instituted not on behalf of Narendra Nath. Ext. A-3 is the copy of an order dated January 21, 1935 showing that Narendra Nath under the guardianship of his mother had filed certain objection for release of certain property and the objection was allowed. Similarly Ext. A-31 is a bond dated April 16, 1935 executed by Ram Saran and his sons.6. A very important document on record is Ext. A-26, copy of the statement of Ram Saran made on May 11, 1951 only 10 days after the institution of the suit in some proceedings in the court of Tehsildar of Anupshahr. Ram Said in his deposition : "My family and that of Narendra has not been joint since 1921". This was a very damaging admission on behalf of the plaintiffs. Ram Saran did not examine himself in the suit to explain this admission. The reason for his non-examination was not accepted by the High Court. The said admission clearly showed that at least since 1921 the parties were separate, yet the suit for partition of the properties by metes and bounds was not instituted after about three decades. No such case was made out in the plaint that the parties were separate from 1921. The plaint was drafted in a suppressive manner to claim partition as if the parties were joint till the institution of the suit. Nor was it disclosed in the plaint as to who became the karta of the allegedly joint family after the death of Bhagwati Prasad.7. Exts. A-818 and A-819 are copies of registers of assessments of tax of the notified area of Anupshahr, the parties ancestral place of residence. Separate assessments were made in the names of Bhagwati Prasad and Ram Saran. The house property of Ram Saran compared to that of Bhagwati Prasad was very small. All the documents relied upon on behalf of the defendant clearly supported his case of separation and partition long long ago.8. As against the numerous documents relied upon on behalf of the defendant the plaintiffs field and relied upon documents which did not prove or probabilise their case at all. We may briefly refer to some of the documents to which our attention was drawn by the learned Counsel for the appellants. Ext. 2 is a copy of the decree dated May 12, 1904 in favour of Bhagwati Prasad, Ram Saran and Babu Ram in respect of a right of easement. Ext. R is a copy of the sale deed dated July 16, 1895 in favour of Raman Lal. Comparing the boundaries given in Ext. 2 with those in Ext. R, it was found that the decree was in respect of this ancestral house. It did not, therefore, advance the case of plaintiffs at all. Ext. 7 is a copy of the judgment dated March 28, 1935 in a certain suit in favour of one Ganga Ram against Babu Lal and others. Learn Counsel for the appellants tried to show from the judgment under issue No. 6 that the plea of separation setup by Bhagwatis son was not accepted by the trial Court. But on appeal the judgment was reversed and the suit was dismissed. A copy of the appellant judgment is Ext. 3. Instead of improving the case of separation. Ext. 8 is a copy of judgment in another suit filled by Mr. Ganga Ram against Babu Lal and others. This is dated May 8, 1936. The suit was decreed by the trial Court rejecting the plea of separation set up by Narendra. But it was dismissed by the High Court as admitted by Babu Lal in his evidence. Exts. 45 to 50, Ext. 57, Ext. 60 are letters written inter se between the three brothers during the lifetime of Bhagwati Prasad - mostly between 1910 to 1920. The contents of these letters do show that in the kiln business all the three brothers were taking interest. Instructions were being given by Bhagwati Prasad to his brothers in connection with the management of the business. On carefully going through these letters, we found that the other two brothers may have some sort of interest in the kiln business carried on by Bhagwati Prasad. That interest could be because they were erstwhile members of the family or because they were taken as working partners servants. There was no statement in any of the letters to indicate that the business was that of a joint family of the three brothers of that Bhagwati Prasad was joint with his brothers. In agreement with the High Court we hold that the said letters do not lend any appreciable support to the case of the plaintiffs. Similarly there are some letters Ext. 64, 65 and A-9 either written by third person whom some of the brothers or by Bhagwati Prasad. They stand on the same footing as their other letters. Lastly our attention was drawn to a copy of a statement of accounts of income and expenses of the family from the year 1922 to 1928. Such a sheet of paper containing the accounts of six years neither inspired any confidence nor on its face after examining the accounts we found anything in support of the plaintiffs case.9. We therefore come to the conclusion that the High Court was right in dismissing the plaintiffs suit. | 0[ds]3. We have heard learned for the parties who took us through the relevant documents in the case. The documentary evidence clearly establishes the case of the defendant and negatives that of the plaintiffs. We fully agree with the conclusion arrived at by the High Court on the basis of the said documents. The documents relied upon by the plaintiffs did not prove their case at all. It is not necessary for us to repeat all that has been said by the High court in its judgment.As against the numerous documents relied upon on behalf of the defendant the plaintiffs field and relied upon documents which did not prove or probabilise their case at all. We may briefly refer to some of the documents to which our attention was drawn by the learned Counsel for the appellants. Ext. 2 is a copy of the decree dated May 12, 1904 in favour of Bhagwati Prasad, Ram Saran and Babu Ram in respect of a right of easement. Ext. R is a copy of the sale deed dated July 16, 1895 in favour of Raman Lal. Comparing the boundaries given in Ext. 2 with those in Ext. R, it was found that the decree was in respect of this ancestral house. It did not, therefore, advance the case of plaintiffs at all. Ext. 7 is a copy of the judgment dated March 28, 1935 in a certain suit in favour of one Ganga Ram against Babu Lal and others. Learn Counsel for the appellants tried to show from the judgment under issue No. 6 that the plea of separation setup by Bhagwatis son was not accepted by the trial Court. But on appeal the judgment was reversed and the suit was dismissed. A copy of the appellant judgment is Ext. 3. Instead of improving the case of separation. Ext. 8 is a copy of judgment in another suit filled by Mr. Ganga Ram against Babu Lal and others. This is dated May 8, 1936. The suit was decreed by the trial Court rejecting the plea of separation set up by Narendra. But it was dismissed by the High Court as admitted by Babu Lal in his evidence. Exts. 45 to 50, Ext. 57, Ext. 60 are letters written inter se between the three brothers during the lifetime of Bhagwati Prasadmostly between 1910 to 1920. The contents of these letters do show that in the kiln business all the three brothers were taking interest. Instructions were being given by Bhagwati Prasad to his brothers in connection with the management of the business. On carefully going through these letters, we found that the other two brothers may have some sort of interest in the kiln business carried on by Bhagwati Prasad. That interest could be because they were erstwhile members of the family or because they were taken as working partners servants. There was no statement in any of the letters to indicate that the business was that of a joint family of the three brothers of that Bhagwati Prasad was joint with his brothers. In agreement with the High Court we hold that the said letters do not lend any appreciable support to the case of the plaintiffs. Similarly there are some letters Ext. 64, 65 andeither written by third person whom some of the brothers or by Bhagwati Prasad. They stand on the same footing as their other letters. Lastly our attention was drawn to a copy of a statement of accounts of income and expenses of the family from the year 1922 to 1928. Such a sheet of paper containing the accounts of six years neither inspired any confidence nor on its face after examining the accounts we found anything in support of the plaintiffs case.9. We therefore come to the conclusion that the High Court was right in dismissing the plaintiffs suit. | 0 | 1,832 | 702 | ### Instruction:
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if Babu Ram. The amount of loans covered by these two bonds were very small compared to the advance of loan by Bhagwati Prasad. This clearly establishes that the parties had separate dealings not because they were members of the joint family but in all probability as separated members. Ext. A-29 is a copy of the plaint instituted on February 28, 1923 by Narendra Nath who was then a minor under the guardianship of Babu Lal in respect of realization of certain mortgage dues - a mortgage which had been excited in favour of Bhagwati Prasad alone. Had this property been a joint family property as was the case of the plaintiffs the suit would gave been instituted not on behalf of Narendra Nath. Ext. A-3 is the copy of an order dated January 21, 1935 showing that Narendra Nath under the guardianship of his mother had filed certain objection for release of certain property and the objection was allowed. Similarly Ext. A-31 is a bond dated April 16, 1935 executed by Ram Saran and his sons.6. A very important document on record is Ext. A-26, copy of the statement of Ram Saran made on May 11, 1951 only 10 days after the institution of the suit in some proceedings in the court of Tehsildar of Anupshahr. Ram Said in his deposition : "My family and that of Narendra has not been joint since 1921". This was a very damaging admission on behalf of the plaintiffs. Ram Saran did not examine himself in the suit to explain this admission. The reason for his non-examination was not accepted by the High Court. The said admission clearly showed that at least since 1921 the parties were separate, yet the suit for partition of the properties by metes and bounds was not instituted after about three decades. No such case was made out in the plaint that the parties were separate from 1921. The plaint was drafted in a suppressive manner to claim partition as if the parties were joint till the institution of the suit. Nor was it disclosed in the plaint as to who became the karta of the allegedly joint family after the death of Bhagwati Prasad.7. Exts. A-818 and A-819 are copies of registers of assessments of tax of the notified area of Anupshahr, the parties ancestral place of residence. Separate assessments were made in the names of Bhagwati Prasad and Ram Saran. The house property of Ram Saran compared to that of Bhagwati Prasad was very small. All the documents relied upon on behalf of the defendant clearly supported his case of separation and partition long long ago.8. As against the numerous documents relied upon on behalf of the defendant the plaintiffs field and relied upon documents which did not prove or probabilise their case at all. We may briefly refer to some of the documents to which our attention was drawn by the learned Counsel for the appellants. Ext. 2 is a copy of the decree dated May 12, 1904 in favour of Bhagwati Prasad, Ram Saran and Babu Ram in respect of a right of easement. Ext. R is a copy of the sale deed dated July 16, 1895 in favour of Raman Lal. Comparing the boundaries given in Ext. 2 with those in Ext. R, it was found that the decree was in respect of this ancestral house. It did not, therefore, advance the case of plaintiffs at all. Ext. 7 is a copy of the judgment dated March 28, 1935 in a certain suit in favour of one Ganga Ram against Babu Lal and others. Learn Counsel for the appellants tried to show from the judgment under issue No. 6 that the plea of separation setup by Bhagwatis son was not accepted by the trial Court. But on appeal the judgment was reversed and the suit was dismissed. A copy of the appellant judgment is Ext. 3. Instead of improving the case of separation. Ext. 8 is a copy of judgment in another suit filled by Mr. Ganga Ram against Babu Lal and others. This is dated May 8, 1936. The suit was decreed by the trial Court rejecting the plea of separation set up by Narendra. But it was dismissed by the High Court as admitted by Babu Lal in his evidence. Exts. 45 to 50, Ext. 57, Ext. 60 are letters written inter se between the three brothers during the lifetime of Bhagwati Prasad - mostly between 1910 to 1920. The contents of these letters do show that in the kiln business all the three brothers were taking interest. Instructions were being given by Bhagwati Prasad to his brothers in connection with the management of the business. On carefully going through these letters, we found that the other two brothers may have some sort of interest in the kiln business carried on by Bhagwati Prasad. That interest could be because they were erstwhile members of the family or because they were taken as working partners servants. There was no statement in any of the letters to indicate that the business was that of a joint family of the three brothers of that Bhagwati Prasad was joint with his brothers. In agreement with the High Court we hold that the said letters do not lend any appreciable support to the case of the plaintiffs. Similarly there are some letters Ext. 64, 65 and A-9 either written by third person whom some of the brothers or by Bhagwati Prasad. They stand on the same footing as their other letters. Lastly our attention was drawn to a copy of a statement of accounts of income and expenses of the family from the year 1922 to 1928. Such a sheet of paper containing the accounts of six years neither inspired any confidence nor on its face after examining the accounts we found anything in support of the plaintiffs case.9. We therefore come to the conclusion that the High Court was right in dismissing the plaintiffs suit.
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3. We have heard learned for the parties who took us through the relevant documents in the case. The documentary evidence clearly establishes the case of the defendant and negatives that of the plaintiffs. We fully agree with the conclusion arrived at by the High Court on the basis of the said documents. The documents relied upon by the plaintiffs did not prove their case at all. It is not necessary for us to repeat all that has been said by the High court in its judgment.As against the numerous documents relied upon on behalf of the defendant the plaintiffs field and relied upon documents which did not prove or probabilise their case at all. We may briefly refer to some of the documents to which our attention was drawn by the learned Counsel for the appellants. Ext. 2 is a copy of the decree dated May 12, 1904 in favour of Bhagwati Prasad, Ram Saran and Babu Ram in respect of a right of easement. Ext. R is a copy of the sale deed dated July 16, 1895 in favour of Raman Lal. Comparing the boundaries given in Ext. 2 with those in Ext. R, it was found that the decree was in respect of this ancestral house. It did not, therefore, advance the case of plaintiffs at all. Ext. 7 is a copy of the judgment dated March 28, 1935 in a certain suit in favour of one Ganga Ram against Babu Lal and others. Learn Counsel for the appellants tried to show from the judgment under issue No. 6 that the plea of separation setup by Bhagwatis son was not accepted by the trial Court. But on appeal the judgment was reversed and the suit was dismissed. A copy of the appellant judgment is Ext. 3. Instead of improving the case of separation. Ext. 8 is a copy of judgment in another suit filled by Mr. Ganga Ram against Babu Lal and others. This is dated May 8, 1936. The suit was decreed by the trial Court rejecting the plea of separation set up by Narendra. But it was dismissed by the High Court as admitted by Babu Lal in his evidence. Exts. 45 to 50, Ext. 57, Ext. 60 are letters written inter se between the three brothers during the lifetime of Bhagwati Prasadmostly between 1910 to 1920. The contents of these letters do show that in the kiln business all the three brothers were taking interest. Instructions were being given by Bhagwati Prasad to his brothers in connection with the management of the business. On carefully going through these letters, we found that the other two brothers may have some sort of interest in the kiln business carried on by Bhagwati Prasad. That interest could be because they were erstwhile members of the family or because they were taken as working partners servants. There was no statement in any of the letters to indicate that the business was that of a joint family of the three brothers of that Bhagwati Prasad was joint with his brothers. In agreement with the High Court we hold that the said letters do not lend any appreciable support to the case of the plaintiffs. Similarly there are some letters Ext. 64, 65 andeither written by third person whom some of the brothers or by Bhagwati Prasad. They stand on the same footing as their other letters. Lastly our attention was drawn to a copy of a statement of accounts of income and expenses of the family from the year 1922 to 1928. Such a sheet of paper containing the accounts of six years neither inspired any confidence nor on its face after examining the accounts we found anything in support of the plaintiffs case.9. We therefore come to the conclusion that the High Court was right in dismissing the plaintiffs suit.
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Yes Bank Limited Vs. Madhu Ashok Kapur & Others | expressed in the recent past about the functioning of the commercial banks in the country in the context of our economic growth and planned development. The resources of the banking system need to be distributed equitably and purposefully in conformity with the developmental requirements so that priority sectors receive their due share and particular clients or groups of clients are not favoured in the matter of distribution of credit. A number of steps, both administrative and legislative are proposed to be taken to secure this objective by extending effective social control over banks. The main object of the Bill is to amend the Banking Regulation Act to incorporate certain new provisions towards achieving this purpose.2. The more important new provisions of the Bill connected with the management of the banks relate to the reconstitution of their Boards of directors and appointment of full-time chairmen. Every banking company will have to reconstitute its Board of directors so that the majority of persons on the board have special knowledge or practical experience in agriculture, rural economy, small-scale industries, co-operation, banking, finance and other matters which are useful to a banking company and should not have substantial interest or active association with large or medium-sized industrial or business undertakings. The chairman of each bank will be required to be a professional banker and a fulltime chief executive officer. It will be open to the Reserve Bank to reconstitute the Board of directors or to appoint a new chairman if it proves to be necessary. ... ... ... ... "34. The object of the Legislature was not to exclude the challenge to the appointment of directors altogether. The object of section 10A was to provide for the nature of the constitution of the Board of directors of a banking company. The object was to ensure that a requisite percentage of the Board of directors hold the qualifications prescribed in sub-section (2) and to exclude the possibility of any conflict of interest of the nature stipulated in clause (b) of sub-section (2). The Legislature provided for a percentage of the total member of the Board of directors to consist of persons having a particular academic background and/or the requisite experience and/or possessing the requisite knowledge as stipulated in sub-clause (a) of sub-section (2) of section 10A. The Legislature was obviously of the view that such a composition of a Board of directors was necessary in the interest of banking companies and, therefore, provided for the same. The intention, therefore, was to ensure that the Board of directors comprises of a percentage of directors with the requisite qualifications and/or experience and/or knowledge. The intention was not to interfere with the machinery provided under the Companies Act regarding the appointment and removal of directors. Nor was it to denude the civil courts of their jurisdiction to decide disputes relating to the validity of the appointments of directors on the Board of a banking company.35. Section 10-A has, however, curtailed the jurisdiction of the civil courts, but only to a limited extent. As we mentioned earlier, we will restrict this judgment by deciding only the question that arises in this case. We, therefore, have not dealt with the entire extent to which sub-section (6) applies. For the purpose of this case, it is necessary only to decide whether the jurisdiction of civil courts to decide a challenge to the appointment of directors made other than pursuant to or under sub-sections (3), (4) or (5) of section 10-A is ousted. The words "under this section" in sub-section (6) make it clear that the Legislature never intended to curtail the jurisdiction of civil courts at least to the extent suggested on behalf of the appellant. Had it been so, section 10A and in particular, sub-section (6) thereof would have been worded entirely differently.36. Mr. Cooper initially agreed that the appointment of a director must be not only in accordance with law, but even in accordance with the Articles of Association of the company and in accordance with all contractual terms and conditions between the shareholders or any other relevant parties. He, however, submitted that the question whether the requirements were met can only be decided by the Reserve Bank of India and not by the civil court. In the written submissions, however, it is contended that the provisions of section 10A are aimed at stopping a challenge to the appointment of directors at the threshold and that if the directors are appointed such that the constitution of the Board complies with sub-section (2), all the directors are insulated from any challenge.Mr. Cooper also submitted that the words "duly held" would only require the due procedure for the appointment of directors to have been followed and cannot mean anything beyond following the due process and procedure as laid down by the law i.e. the Companies Act. He submitted that the words "duly held" cannot mean anything falling beyond the due process and procedure as laid down by the Companies Act. Once the procedure is followed, the appointment of a director cannot be challenged on any other ground whatsoever, including that it was contrary to any provision of law or contract. So long as the appointment is legally valid, following the legal procedure mandated under the Companies Act and in compliance with section 10A of The Banking Regulation Act, a court cannot assume jurisdiction to consider the validity of such appointment / election. To do otherwise would enable a court in every case to ignore the bar of jurisdiction under section 10A since all challenges would necessarily be made on the basis of an allegation that an appointment/election has not been duly made or duly held.37. Although we are sceptical about the correctness of these submissions, we refrain from dealing with them as it is not necessary to do so having held that the bar in sub-section (6) does not operate in respect of appointments made in compliance with the requirements under sub-section (2) and not under sub-sections (3), (4) and (5). | 0[ds]Mr. Cooper firstly submitted that civil courts have no jurisdiction to entertain a challenge to the appointment of directors of companies incorporated under the provisions of the Companies Act, 1956.The submission is not well founded. It is not necessary to deal with the submission in any detail as it is answered against the appellant by a judgment of a Division Bench of th is Court in SantoshPoddarAnr. v. Kamalkumar Poddar (1992) 3 Bom.C.R. 310.In the present case although the irregularities in holding meetings or the holding or cessation of the office of a Director may have to be decided with reference to the Companies Act, that Act has not prescribed a forum where such a relief can be sought. In the absence of such prescription, the ordinary Civil Courts are competent to deal with such disputes. Hence the present suits were correctly filed originally in the City Civil Court.23. The learned Single Judge, while deciding the appeals from orders however, placed reliance on a judgment of this Court in the case of Vithalrao Narayanrao Patil v. Maharashtra State Seeds Corporation Ltd., and anr., reported in 68 Company Cases 608 . In that case the learned Single Judge of this Court (at Nagpur) held that in view of section 10 of the Companies Act only the High Court can entertain any dispute in respect of the affairs of the Company. We do not agree with this interpretation of the learned Single Judge for reasons set out earlier.Mr. Cooper, however, relied upon the judgment of a learned single Judge in the case of KhetanIndustries Pvt. Ltd.. v. Manju Ravindraprasad Khetan AIR 1995 Bom. 43 .We are, in any event, in agreement with the learned single Judge that the bar of jurisdiction of civil court is not to be readily inferred and that a Court would normally lean in favour of a construction which would uphold the retention of the jurisdiction of a civil court. In this view of the matter, it is not necessary to refer to the other judgments which have been referred to by the learned single Judge. The contention that the jurisdiction of this Court to entertain a challenge to the appointment of defendant Nos.7 to 12 as directors in view of the provisions of the Companies Act, 1956, is rejected.We will restrict ourselves to the point that falls for consideration. We will presume that with the appointment of defendant Nos.7 to 12 the "composition" of the Board of directors of defendant No.6 was in compliance with the provisions of(2) of section 10A.Defendant Nos.7 to 12 were, however, not appointed under(3), (4) or (5) of section 10A. We are unable to agree with Mr. Coopers submission that the jurisdiction of civil courts to entertain a suit challenging the appointment of a director made even otherwise than under(3), (4) and (5) of section 10A is barred in view of(6) of section 10A.21. The appointments of defendant Nos.7 to 12 were not under(3) of section 10A. It is not the appellants case that the appointments were made on account of the requirements as laid down in(2) not having been fulfilled at any time. There was no question, therefore, of the Board of directors of the appellant reconstituting the Board so as to ensure that the requirements of(2) were fulfilled. In other words, the appointments of defendant Nos.7 to 12 were not in the course of reconstituting the Board of directors of the appellant. The appointments were made keeping in mind and in conformity with the provisions of section 10A. The appointments were not under(3) of section 10A.22. There was no question in the present case of reconstituting the Board by retiring any director or directors. This is not even the appellants case.(4) of section 10A, therefore, is not relevant to this case.23. It is not the appellants case that defendant Nos.7 to 12 were appointed under(5) of section 10A. No action was taken by the Reserve Bank of India. The Reserve Bank has not even come into the picture. The question of the Reserve Bank forming an opinion as contemplated under(5) that the composition of the Board of directors of the appellant did not fulfill the requirements of(2) did not arise. Defendant Nos.7 to 12 were, therefore, not appointed pursuant to any opportunity being given by the Reserve Bank to the appellant to reconstitute its Board so as to ensure that the requirements of sectionare fulfilled. Nor were the appointments of defendant Nos.7 to 12 made by the Reserve Bank under(5).24. The learned Judge rightly held that the appointments of defendant Nos.7 to 12 were not under(3) or (4) of section 10A. The resolutions appointing them have been referred to earlier. None of them indicate that the appointments were made under(3) or (4). The parties led evidence even in respect of the preliminary issues. The learned Judges attention was not invited to any evidence, oral or documentary, to indicate that the appointments were under(3) or (4). Nor was our attention invited to any evidence, oral or documentary, in this regard. Even the minutes of the meeting at which the appointments were made do not suggest that the appointments were made pursuant to or in accordance withThese minutes do not make the appointments at the AGM under(3), (4) or (5) of section 10A.The committees only acted in an advisory capacity to defendant No.6. The views expressed in the minutes do not militate against our finding that the appointments were not made under(3), (4) or (5) of section 10A.They merely state that their appointment would not violate the provisions of sectionThe constitution of a Board of directors of a banking company must comply with the provisions of section 10A(2). When a Board of directors complies with the provisions of section 10A(2) the appointments of the directors are not made under section 10A but in compliance or in conformity with the provisions of(2) of Section 10A. What(6) bars is the calling into question in any court an appointment, removal or reconstitution duly made and every election duly held "under this section" and not appointments, removal or reconstitution or election in accordance or in conformity with the section.28. The contention that this view would render the term "election" in(6) otiose is incorrect. It is based on the erroneous presumption that a director cannot be elected where the provisions of(3), (4) and (5) apply. In a case under(5), there can be an election. Under(5), where the Reserve Bank of India is of the opinion that the composition of the Board of directors of a banking company does not fulfill the requirements of(2), it may direct the banking company to so reconstitute its Board of directors as to ensure that the requirements of(2) are fulfilled. The direction, therefore to reconstitute the Board to make it compliant with the provisions of(2) is to the banking company and not to the Board of directors. The banking company, like any other company, can make appointments at a general meeting. At the general meeting, a director would be elected. Furthermore, under(5), if the banking company does not comply with the direction of the Reserve Bank, then, in that event, the Reserve Bank may, after determining, by lots drawn in such manner as may be prescribed, remove such person from the office of the director of the banking company and with a view to comply with the provisions of section 10A(2), appoint a suitable person as a member of the Board of Directors in the place of the person so removed. In such an event, the person so appointed shall be deemed to have been duly elected by the banking company as its director. Therefore, elections and deemed elections are contemplated under(5) itself. The view that we take, therefore, does not render the term "election" inMr. Cooper furnished the same illustration as he did before the learned single Judge in support of his contention that a view, contrary to the one submitted by him would lead to an anomalous situation. For example, he said, assuming a bank is required to appoint only one director under, but appoints five directors who meet the qualifications in the same meeting, it would be difficult to say which of these directors comes within the "protected appointment" under(3)."32. The illustration does not substantiate his submission regarding the interpretation of section 10A. There is no anomaly. The company can always pass separate resolutions thereby indicating which of the directors is appointed to ensure compliance with(3). Assuming that a director is entitled to protection, it would be that director then who would be entitled to the same. As the learned Judge rightly held, when a banking company elects its Board as a whole in compliance with section 10A (2), the appointments are not under section 10A and there is no question of any of the directors having a protected status under(6) thereof. As and when the provisions of(3), (4) and/or (5) come into play, the appointments can always be identified.as, however, curtailed the jurisdiction of the civil courts, but only to a limited extent. As we mentioned earlier, we will restrict this judgment by deciding only the question that arises in this case. We, therefore, have not dealt with the entire extent to which(6) applies. For the purpose of this case, it is necessary only to decide whether the jurisdiction of civil courts to decide a challenge to the appointment of directors made other than pursuant to or under(3), (4) or (5) of section 10Ais ousted. The words "under this section" in(6) make it clear that the Legislature never intended to curtail the jurisdiction of civil courts at least to the extent suggested on behalf of the appellant. Had it been so, section 10A and in particular,(6) thereof would have been worded entirely differently.Mr. Cooper initially agreed that the appointment of a director must be not only in accordance with law, but even in accordance with the Articles of Association of the company and in accordance with all contractual terms and conditions between the shareholders or any other relevant parties. He, however, submitted that the question whether the requirements were met can only be decided by the Reserve Bank of India and not by the civil court. In the written submissions, however, it is contended that the provisions of section 10A are aimed at stopping a challenge to the appointment of directors at the threshold and that if the directors are appointed such that the constitution of the Board complies with(2), all the directors are insulated from any challenge.Mr.Cooper also submitted that the words "duly held" would only require the due procedure for the appointment of directors to have been followed and cannot mean anything beyond following the due process and procedure as laid down by the law i.e. the Companies Act. He submitted that the words "duly held" cannot mean anything falling beyond the due process and procedure as laid down by the CompaniesOnce the procedure is followed, the appointment of a director cannot be challenged on any other ground whatsoever, including that it was contrary to any provision of law or contract. So long as the appointment is legally valid, following the legal procedure mandated under the Companies Act and in compliance with section10A of The Banking Regulation Act,a court cannot assume jurisdiction to consider the validity of such appointment / election. To do otherwise would enable a court in every case to ignore the bar of jurisdiction under section 10A since all challenges would necessarily be made on the basis of an allegation that an appointment/election has not been duly made or duly held.37. Although we are sceptical about the correctness of these submissions, we refrain from dealing with them as it is not necessary to do so having held that the bar in(6) does not operate in respect of appointments made in compliance with the requirements under(2) and not under(3), (4) and (5). | 0 | 7,927 | 2,343 | ### Instruction:
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expressed in the recent past about the functioning of the commercial banks in the country in the context of our economic growth and planned development. The resources of the banking system need to be distributed equitably and purposefully in conformity with the developmental requirements so that priority sectors receive their due share and particular clients or groups of clients are not favoured in the matter of distribution of credit. A number of steps, both administrative and legislative are proposed to be taken to secure this objective by extending effective social control over banks. The main object of the Bill is to amend the Banking Regulation Act to incorporate certain new provisions towards achieving this purpose.2. The more important new provisions of the Bill connected with the management of the banks relate to the reconstitution of their Boards of directors and appointment of full-time chairmen. Every banking company will have to reconstitute its Board of directors so that the majority of persons on the board have special knowledge or practical experience in agriculture, rural economy, small-scale industries, co-operation, banking, finance and other matters which are useful to a banking company and should not have substantial interest or active association with large or medium-sized industrial or business undertakings. The chairman of each bank will be required to be a professional banker and a fulltime chief executive officer. It will be open to the Reserve Bank to reconstitute the Board of directors or to appoint a new chairman if it proves to be necessary. ... ... ... ... "34. The object of the Legislature was not to exclude the challenge to the appointment of directors altogether. The object of section 10A was to provide for the nature of the constitution of the Board of directors of a banking company. The object was to ensure that a requisite percentage of the Board of directors hold the qualifications prescribed in sub-section (2) and to exclude the possibility of any conflict of interest of the nature stipulated in clause (b) of sub-section (2). The Legislature provided for a percentage of the total member of the Board of directors to consist of persons having a particular academic background and/or the requisite experience and/or possessing the requisite knowledge as stipulated in sub-clause (a) of sub-section (2) of section 10A. The Legislature was obviously of the view that such a composition of a Board of directors was necessary in the interest of banking companies and, therefore, provided for the same. The intention, therefore, was to ensure that the Board of directors comprises of a percentage of directors with the requisite qualifications and/or experience and/or knowledge. The intention was not to interfere with the machinery provided under the Companies Act regarding the appointment and removal of directors. Nor was it to denude the civil courts of their jurisdiction to decide disputes relating to the validity of the appointments of directors on the Board of a banking company.35. Section 10-A has, however, curtailed the jurisdiction of the civil courts, but only to a limited extent. As we mentioned earlier, we will restrict this judgment by deciding only the question that arises in this case. We, therefore, have not dealt with the entire extent to which sub-section (6) applies. For the purpose of this case, it is necessary only to decide whether the jurisdiction of civil courts to decide a challenge to the appointment of directors made other than pursuant to or under sub-sections (3), (4) or (5) of section 10-A is ousted. The words "under this section" in sub-section (6) make it clear that the Legislature never intended to curtail the jurisdiction of civil courts at least to the extent suggested on behalf of the appellant. Had it been so, section 10A and in particular, sub-section (6) thereof would have been worded entirely differently.36. Mr. Cooper initially agreed that the appointment of a director must be not only in accordance with law, but even in accordance with the Articles of Association of the company and in accordance with all contractual terms and conditions between the shareholders or any other relevant parties. He, however, submitted that the question whether the requirements were met can only be decided by the Reserve Bank of India and not by the civil court. In the written submissions, however, it is contended that the provisions of section 10A are aimed at stopping a challenge to the appointment of directors at the threshold and that if the directors are appointed such that the constitution of the Board complies with sub-section (2), all the directors are insulated from any challenge.Mr. Cooper also submitted that the words "duly held" would only require the due procedure for the appointment of directors to have been followed and cannot mean anything beyond following the due process and procedure as laid down by the law i.e. the Companies Act. He submitted that the words "duly held" cannot mean anything falling beyond the due process and procedure as laid down by the Companies Act. Once the procedure is followed, the appointment of a director cannot be challenged on any other ground whatsoever, including that it was contrary to any provision of law or contract. So long as the appointment is legally valid, following the legal procedure mandated under the Companies Act and in compliance with section 10A of The Banking Regulation Act, a court cannot assume jurisdiction to consider the validity of such appointment / election. To do otherwise would enable a court in every case to ignore the bar of jurisdiction under section 10A since all challenges would necessarily be made on the basis of an allegation that an appointment/election has not been duly made or duly held.37. Although we are sceptical about the correctness of these submissions, we refrain from dealing with them as it is not necessary to do so having held that the bar in sub-section (6) does not operate in respect of appointments made in compliance with the requirements under sub-section (2) and not under sub-sections (3), (4) and (5).
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of(2) of Section 10A. What(6) bars is the calling into question in any court an appointment, removal or reconstitution duly made and every election duly held "under this section" and not appointments, removal or reconstitution or election in accordance or in conformity with the section.28. The contention that this view would render the term "election" in(6) otiose is incorrect. It is based on the erroneous presumption that a director cannot be elected where the provisions of(3), (4) and (5) apply. In a case under(5), there can be an election. Under(5), where the Reserve Bank of India is of the opinion that the composition of the Board of directors of a banking company does not fulfill the requirements of(2), it may direct the banking company to so reconstitute its Board of directors as to ensure that the requirements of(2) are fulfilled. The direction, therefore to reconstitute the Board to make it compliant with the provisions of(2) is to the banking company and not to the Board of directors. The banking company, like any other company, can make appointments at a general meeting. At the general meeting, a director would be elected. Furthermore, under(5), if the banking company does not comply with the direction of the Reserve Bank, then, in that event, the Reserve Bank may, after determining, by lots drawn in such manner as may be prescribed, remove such person from the office of the director of the banking company and with a view to comply with the provisions of section 10A(2), appoint a suitable person as a member of the Board of Directors in the place of the person so removed. In such an event, the person so appointed shall be deemed to have been duly elected by the banking company as its director. Therefore, elections and deemed elections are contemplated under(5) itself. The view that we take, therefore, does not render the term "election" inMr. Cooper furnished the same illustration as he did before the learned single Judge in support of his contention that a view, contrary to the one submitted by him would lead to an anomalous situation. For example, he said, assuming a bank is required to appoint only one director under, but appoints five directors who meet the qualifications in the same meeting, it would be difficult to say which of these directors comes within the "protected appointment" under(3)."32. The illustration does not substantiate his submission regarding the interpretation of section 10A. There is no anomaly. The company can always pass separate resolutions thereby indicating which of the directors is appointed to ensure compliance with(3). Assuming that a director is entitled to protection, it would be that director then who would be entitled to the same. As the learned Judge rightly held, when a banking company elects its Board as a whole in compliance with section 10A (2), the appointments are not under section 10A and there is no question of any of the directors having a protected status under(6) thereof. As and when the provisions of(3), (4) and/or (5) come into play, the appointments can always be identified.as, however, curtailed the jurisdiction of the civil courts, but only to a limited extent. As we mentioned earlier, we will restrict this judgment by deciding only the question that arises in this case. We, therefore, have not dealt with the entire extent to which(6) applies. For the purpose of this case, it is necessary only to decide whether the jurisdiction of civil courts to decide a challenge to the appointment of directors made other than pursuant to or under(3), (4) or (5) of section 10Ais ousted. The words "under this section" in(6) make it clear that the Legislature never intended to curtail the jurisdiction of civil courts at least to the extent suggested on behalf of the appellant. Had it been so, section 10A and in particular,(6) thereof would have been worded entirely differently.Mr. Cooper initially agreed that the appointment of a director must be not only in accordance with law, but even in accordance with the Articles of Association of the company and in accordance with all contractual terms and conditions between the shareholders or any other relevant parties. He, however, submitted that the question whether the requirements were met can only be decided by the Reserve Bank of India and not by the civil court. In the written submissions, however, it is contended that the provisions of section 10A are aimed at stopping a challenge to the appointment of directors at the threshold and that if the directors are appointed such that the constitution of the Board complies with(2), all the directors are insulated from any challenge.Mr.Cooper also submitted that the words "duly held" would only require the due procedure for the appointment of directors to have been followed and cannot mean anything beyond following the due process and procedure as laid down by the law i.e. the Companies Act. He submitted that the words "duly held" cannot mean anything falling beyond the due process and procedure as laid down by the CompaniesOnce the procedure is followed, the appointment of a director cannot be challenged on any other ground whatsoever, including that it was contrary to any provision of law or contract. So long as the appointment is legally valid, following the legal procedure mandated under the Companies Act and in compliance with section10A of The Banking Regulation Act,a court cannot assume jurisdiction to consider the validity of such appointment / election. To do otherwise would enable a court in every case to ignore the bar of jurisdiction under section 10A since all challenges would necessarily be made on the basis of an allegation that an appointment/election has not been duly made or duly held.37. Although we are sceptical about the correctness of these submissions, we refrain from dealing with them as it is not necessary to do so having held that the bar in(6) does not operate in respect of appointments made in compliance with the requirements under(2) and not under(3), (4) and (5).
|
Kirloskar Oil Engines Limited Vs. Union of India | rotary. The expression "thrust washers" means a washers used at one or each end of a plain journal bearing in order to take light-duty thrust loads, and the expression "thrust Half-Washer" means one half of a split thrust washer. "Thin walled bearing line" is defined as a bearing liner in which the wall thickness is sufficiently small for the geometrical truth of the working surface to depend on the accuracy of the bore surface of the housing, while "bearing Liner" means in a journal bearing, the tubular element (often in halves) whose inner surface is the bearing bore. In IS: 4757-1968, the expression "wrapped Bush" has been defined as a bush with a longitudinal split in one place. (It is called "wrapped" because it is formed from a strip). The Assistant Collector and the Appellate Authority relied upon this specification to conclude that the function performed by thrust washers and wrapped bushes are the same as those performed by bearings and, therefore thrust washers and wrapped bushes must be treated as thin walled bearings provided the same are in accordance with the specifications given in IS: 4774-1968. It is not in dispute that thrust washers and wrapped bushes manufactured by the Company are in accordance with specifications under IS: 4774-1968, i.e. in the nominal diameter range 16 to 150 mm. Shri Nankani submitted that I. S. I. specifications refer to thin walled bearings in Section 1 and covered by the dimensions in Tables Nos. 2 to 5 whereas thrust half washers are dealt in Section 2 of the Indian Standard Specification and this differentiation proves that thrust half washers are not thin walled bearings. It is not possible to accede to the submission. Merely because the dimensions are set out in different tables cannot lead to the conclusion that thrust washers and wrapped bushes are not thin walled bearings. Indeed, as mentioned hereinabove, the standard specifies requirements both for groove bearings and ungrooved bearings and thrust washers are identical. The nominal diameter range of adjective thin wall is to apply to all the three bearings, viz. thrust half washers, thrust washers and wrapped bushes. The thrust washers and wrapped bushes have been defined as bearing liners and if used as bearings themselves and if they satisfy the requirement of wall thickness being proportionately small for the bore surface of the housing and, therefore, can well be treated as thin walled bearings. In our judgment, the view taken by the Assistant Collector and confirmed by the Appellate Authority cannot be described as perverse, unreasonable or entirely unsustainable. In the decision reported in A. I. R. 1963, supreme Court 1319 (Collector of Customs, Madras v. K. Ganga Setty) observed: "it is primarily for the Import Control authorities to determine the head or entry in tariff schedule under which any particular commodity fell; but if in doing so, these authorities adopted a construction which no reasonable person could adopt i. e. if the construction is perverse, then it is a case in which the Court is competent to interfere. In other words, if there were two constructions which an entry could reasonably bear, and one of them which was in favour of revenue was adopted, the Court has no jurisdiction to interfere merely because the other interpretation favorable to the subject appeals to the Court as the better one to adopt."It is, therefore, clear that even assuming that the view, other than one, taken by the Assistant collector and confirmed by the Appellate Authority is possible, still, it is not permissible in exercise of writ jurisdiction to disturb the conclusion of the Authorities below. We are unable to accept the claim of the Company that the view taken by the Assistant Collector is either perverse or entirely unsustainable for lack of material. The Company did not care to produce any evidence to establish how the goods are known in the trade circle or in common parlance and it is futile now to suggest that because other view is possible, the order of the authorities below should be set aside. In our judgment, the contention of the learned counsel that thrust washers, thrust half washers and wrapped bushes are not thin walled bearings cannot be accepted. ( 8 ) THE second contention of the learned counsel that the demand cannot be made in respect of clearance of the goods from August 7, 1978 but can only be from September 23, 1978 deserves acceptance. The decision of the authorities below that the decision to treat thrust washers and wrapped bushes as thin walled bearings was taken at the conference held between the representatives of the Government of India and the trade on February 9, 1978 and the decision was accepted by the Government of India on August 7, 1978 and, therefore, the Company is liable to pay excise duty from that date cannot be accepted. The decision was communicated to the Company only on the September 23, 1978 and the liability to pay excise duty can arise only from that day. Shri Desai very rightly did not support the conclusion of the Assistant Collector on this count. The demand made under demand notice dated October 16, 1978 is, therefore, required to be limited only in respect of clearance of goods from September 23, 1978 onwards.( 9 ) SHRI Nankani submitted that the demand notice dated November 24, 1981 served by the superintendent of Central Excise under Section 11a of the Act is invalid because the demand is made for the period commencing from July, 1980 to August, 1981 and the demand prior to the period of six months from the date of service of notice is not valid. We are unable to accept the submission because this demand is made only as a consequence of the decision given by the assistant Collector and confirmed by the Appellate Authority. The demand being in consequence to the adjudication that thrust washers and wrapped bushes are thin walled bearings, in our judgment, the limitation will not be attracted. | 1[ds]It cannot be disputed for a moment that the Assistant Collector and the Appellate Authority while exercisingpowers cannot fetter the discretion with the direction contained in the trade notice or by trade advice and the discretion must vest only upon the material available with the Department to determine how the goods should be classified. It is now well settled that the burden to establish that certain goods can be classified and excise duty can be levied under a particular tariff item is entirely on the Department. It is also well settled that for classifying the goods for the purpose of levying duty, evidence can be led as to how the goods are known in the trade parlance. In the present case, the Company led no evidence as to how the goods are known by the traders dealing in these goods in the market. The only material available to the Assistant Collector and the appellate authority was Indian Standard specifications and which was produced by the company. The contention of Shri Nankani that the Indian Standard Specification reflects trade understanding is not accurate. Merely because the Committee constituted for determining the standard by Indian Standard Institution includes the representatives of the trade cannot lead to the conclusion that the Indian Standards Specification reflects the trade understanding and it is not necessary for the Company to lead any evidence to establish how the goods are known in the trade parlance. The reliance by Shri Nankani in this connection on the decision in the case of collector of Central Excise, Kanpur v. Krishna Carbon Co. reported in 1988 (38) E. L. T. 480 is entirely incorrect. The learned counsel referred to the observation made in paragraph 11 of the judgment but we are unable to conclude foam reading of this paragraph that the Supreme Court held that the Indian Standard Specifications reflect trade understanding. What the Court observed was that Indian Standard Specifications can also be considered as evidence for ascertaining classification of the goods. The contention of Shri Nankani that the Supreme Court has held in 1987 (32) E. L. T. 3 that there is difference between bearings and bushes and, therefore, the orders passed by the authorities below treating thrust washers and wrapped bushes as thin walled bearings should be set aside is entirely incorrect. It is not in dispute in the present case and that fact has been repeatedly stated by the Company in the petition that thrust washers and wrapped bushes are bearings and the only contention raised is that they are not thin walled bearings. It is, therefore, futile to claim that this question is determined by the Supreme Court. We are not concerned in the present case as to whether there is distinction between the bearings and the bushes but required to answer the question as to whether the bearings in the present case can be treated as thin walled bearings.( 7 ) AS mentioned hereinabove, the authorities below have relied upon Indian Standard specifications which was produced by the Company to hold that the bearings are thin walled bearings. Turning to the IS: 4774/ 1968, paragraph 0. 2 sets out that the walled bearings were originally developed for use in the automobile engine due to their advantages, such as facility of replacement, smaller weight and space required. Paragraph 1. 1 sets out that the standard specified requirements for:(a), grooved bearing in the nominal diameter range 16 to 150 mm; (b), ungrooved bearing in the nominal diameter, range 16 to 150 mm; and (c)rs in the nominal diameter range 16 to 150 mm. Paragraph 2 gives definitions of various words and the expression "bearing" means an element of mechanism which allows a force to be transmitted between two relatively moving parts. The expression "journal bearing" means a plain bearing in which the relatively sliding surfaces are cylindrical and the motion is rotary. The expression "thrust washers" means a washers used at one or each end of a plain journal bearing in order to takethrust loads, and the expression "thrustmeans one half of a split thrust washer. "Thin walled bearing line" is defined as a bearing liner in which the wall thickness is sufficiently small for the geometrical truth of the working surface to depend on the accuracy of the bore surface of the housing, while "bearing Liner" means in a journal bearing, the tubular element (often in halves) whose inner surface is the bearing bore. In IS:the expression "wrapped Bush" has been defined as a bush with a longitudinal split in one place. (It is called "wrapped" because it is formed from a strip). The Assistant Collector and the Appellate Authority relied upon this specification to conclude that the function performed by thrust washers and wrapped bushes are the same as those performed by bearings and, therefore thrust washers and wrapped bushes must be treated as thin walled bearings provided the same are in accordance with the specifications given in IS:It is not in dispute that thrust washers and wrapped bushes manufactured by the Company are in accordance with specifications under IS:i.e. in the nominal diameter range 16 to 150 mm. Shri Nankani submitted that I. S. I. specifications refer to thin walled bearings in Section 1 and covered by the dimensions in Tables Nos. 2 to 5 whereas thrust half washers are dealt in Section 2 of the Indian Standard Specification and this differentiation proves that thrust half washers are not thin walled bearings. It is not possible to accede to the submission. Merely because the dimensions are set out in different tables cannot lead to the conclusion that thrust washers and wrapped bushes are not thin walled bearings. Indeed, as mentioned hereinabove, the standard specifies requirements both for groove bearings and ungrooved bearings and thrust washers are identical. The nominal diameter range of adjective thin wall is to apply to all the three bearings, viz. thrust half washers, thrust washers and wrapped bushes. The thrust washers and wrapped bushes have been defined as bearing liners and if used as bearings themselves and if they satisfy the requirement of wall thickness being proportionately small for the bore surface of the housing and, therefore, can well be treated as thin walled bearings. In our judgment, the view taken by the Assistant Collector and confirmed by the Appellate Authority cannot be described as perverse, unreasonable or entirely unsustainable. In the decision reported in A. I. R. 1963, supreme Court 1319 (Collector of Customs, Madras v. K. Ganga Setty) observed: "it is primarily for the Import Control authorities to determine the head or entry in tariff schedule under which any particular commodity fell; but if in doing so, these authorities adopted a construction which no reasonable person could adopt i. e. if the construction is perverse, then it is a case in which the Court is competent to interfere. In other words, if there were two constructions which an entry could reasonably bear, and one of them which was in favour of revenue was adopted, the Court has no jurisdiction to interfere merely because the other interpretation favorable to the subject appeals to the Court as the better one to adopt."It is, therefore, clear that even assuming that the view, other than one, taken by the Assistant collector and confirmed by the Appellate Authority is possible, still, it is not permissible in exercise of writ jurisdiction to disturb the conclusion of the Authorities below. We are unable to accept the claim of the Company that the view taken by the Assistant Collector is either perverse or entirely unsustainable for lack of material. The Company did not care to produce any evidence to establish how the goods are known in the trade circle or in common parlance and it is futile now to suggest that because other view is possible, the order of the authorities below should be set aside. In our judgment, the contention of the learned counsel that thrust washers, thrust half washers and wrapped bushes are not thin walled bearings cannot be8 ) THE second contention of the learned counsel that the demand cannot be made in respect of clearance of the goods from August 7, 1978 but can only be from September 23, 1978 deserves acceptance. The decision of the authorities below that the decision to treat thrust washers and wrapped bushes as thin walled bearings was taken at the conference held between the representatives of the Government of India and the trade on February 9, 1978 and the decision was accepted by the Government of India on August 7, 1978 and, therefore, the Company is liable to pay excise duty from that date cannot be accepted. The decision was communicated to the Company only on the September 23, 1978 and the liability to pay excise duty can arise only from that day. Shri Desai very rightly did not support the conclusion of the Assistant Collector on this count. The demand made under demand notice dated October 16, 1978 is, therefore, required to be limited only in respect of clearance of goods from September 23, 1978are unable to accept the submission because this demand is made only as a consequence of the decision given by the assistant Collector and confirmed by the Appellate Authority. The demand being in consequence to the adjudication that thrust washers and wrapped bushes are thin walled bearings, in our judgment, the limitation will not be attracted. | 1 | 4,112 | 1,728 | ### Instruction:
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rotary. The expression "thrust washers" means a washers used at one or each end of a plain journal bearing in order to take light-duty thrust loads, and the expression "thrust Half-Washer" means one half of a split thrust washer. "Thin walled bearing line" is defined as a bearing liner in which the wall thickness is sufficiently small for the geometrical truth of the working surface to depend on the accuracy of the bore surface of the housing, while "bearing Liner" means in a journal bearing, the tubular element (often in halves) whose inner surface is the bearing bore. In IS: 4757-1968, the expression "wrapped Bush" has been defined as a bush with a longitudinal split in one place. (It is called "wrapped" because it is formed from a strip). The Assistant Collector and the Appellate Authority relied upon this specification to conclude that the function performed by thrust washers and wrapped bushes are the same as those performed by bearings and, therefore thrust washers and wrapped bushes must be treated as thin walled bearings provided the same are in accordance with the specifications given in IS: 4774-1968. It is not in dispute that thrust washers and wrapped bushes manufactured by the Company are in accordance with specifications under IS: 4774-1968, i.e. in the nominal diameter range 16 to 150 mm. Shri Nankani submitted that I. S. I. specifications refer to thin walled bearings in Section 1 and covered by the dimensions in Tables Nos. 2 to 5 whereas thrust half washers are dealt in Section 2 of the Indian Standard Specification and this differentiation proves that thrust half washers are not thin walled bearings. It is not possible to accede to the submission. Merely because the dimensions are set out in different tables cannot lead to the conclusion that thrust washers and wrapped bushes are not thin walled bearings. Indeed, as mentioned hereinabove, the standard specifies requirements both for groove bearings and ungrooved bearings and thrust washers are identical. The nominal diameter range of adjective thin wall is to apply to all the three bearings, viz. thrust half washers, thrust washers and wrapped bushes. The thrust washers and wrapped bushes have been defined as bearing liners and if used as bearings themselves and if they satisfy the requirement of wall thickness being proportionately small for the bore surface of the housing and, therefore, can well be treated as thin walled bearings. In our judgment, the view taken by the Assistant Collector and confirmed by the Appellate Authority cannot be described as perverse, unreasonable or entirely unsustainable. In the decision reported in A. I. R. 1963, supreme Court 1319 (Collector of Customs, Madras v. K. Ganga Setty) observed: "it is primarily for the Import Control authorities to determine the head or entry in tariff schedule under which any particular commodity fell; but if in doing so, these authorities adopted a construction which no reasonable person could adopt i. e. if the construction is perverse, then it is a case in which the Court is competent to interfere. In other words, if there were two constructions which an entry could reasonably bear, and one of them which was in favour of revenue was adopted, the Court has no jurisdiction to interfere merely because the other interpretation favorable to the subject appeals to the Court as the better one to adopt."It is, therefore, clear that even assuming that the view, other than one, taken by the Assistant collector and confirmed by the Appellate Authority is possible, still, it is not permissible in exercise of writ jurisdiction to disturb the conclusion of the Authorities below. We are unable to accept the claim of the Company that the view taken by the Assistant Collector is either perverse or entirely unsustainable for lack of material. The Company did not care to produce any evidence to establish how the goods are known in the trade circle or in common parlance and it is futile now to suggest that because other view is possible, the order of the authorities below should be set aside. In our judgment, the contention of the learned counsel that thrust washers, thrust half washers and wrapped bushes are not thin walled bearings cannot be accepted. ( 8 ) THE second contention of the learned counsel that the demand cannot be made in respect of clearance of the goods from August 7, 1978 but can only be from September 23, 1978 deserves acceptance. The decision of the authorities below that the decision to treat thrust washers and wrapped bushes as thin walled bearings was taken at the conference held between the representatives of the Government of India and the trade on February 9, 1978 and the decision was accepted by the Government of India on August 7, 1978 and, therefore, the Company is liable to pay excise duty from that date cannot be accepted. The decision was communicated to the Company only on the September 23, 1978 and the liability to pay excise duty can arise only from that day. Shri Desai very rightly did not support the conclusion of the Assistant Collector on this count. The demand made under demand notice dated October 16, 1978 is, therefore, required to be limited only in respect of clearance of goods from September 23, 1978 onwards.( 9 ) SHRI Nankani submitted that the demand notice dated November 24, 1981 served by the superintendent of Central Excise under Section 11a of the Act is invalid because the demand is made for the period commencing from July, 1980 to August, 1981 and the demand prior to the period of six months from the date of service of notice is not valid. We are unable to accept the submission because this demand is made only as a consequence of the decision given by the assistant Collector and confirmed by the Appellate Authority. The demand being in consequence to the adjudication that thrust washers and wrapped bushes are thin walled bearings, in our judgment, the limitation will not be attracted.
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### Explanation:
the nominal diameter range 16 to 150 mm; (b), ungrooved bearing in the nominal diameter, range 16 to 150 mm; and (c)rs in the nominal diameter range 16 to 150 mm. Paragraph 2 gives definitions of various words and the expression "bearing" means an element of mechanism which allows a force to be transmitted between two relatively moving parts. The expression "journal bearing" means a plain bearing in which the relatively sliding surfaces are cylindrical and the motion is rotary. The expression "thrust washers" means a washers used at one or each end of a plain journal bearing in order to takethrust loads, and the expression "thrustmeans one half of a split thrust washer. "Thin walled bearing line" is defined as a bearing liner in which the wall thickness is sufficiently small for the geometrical truth of the working surface to depend on the accuracy of the bore surface of the housing, while "bearing Liner" means in a journal bearing, the tubular element (often in halves) whose inner surface is the bearing bore. In IS:the expression "wrapped Bush" has been defined as a bush with a longitudinal split in one place. (It is called "wrapped" because it is formed from a strip). The Assistant Collector and the Appellate Authority relied upon this specification to conclude that the function performed by thrust washers and wrapped bushes are the same as those performed by bearings and, therefore thrust washers and wrapped bushes must be treated as thin walled bearings provided the same are in accordance with the specifications given in IS:It is not in dispute that thrust washers and wrapped bushes manufactured by the Company are in accordance with specifications under IS:i.e. in the nominal diameter range 16 to 150 mm. Shri Nankani submitted that I. S. I. specifications refer to thin walled bearings in Section 1 and covered by the dimensions in Tables Nos. 2 to 5 whereas thrust half washers are dealt in Section 2 of the Indian Standard Specification and this differentiation proves that thrust half washers are not thin walled bearings. It is not possible to accede to the submission. Merely because the dimensions are set out in different tables cannot lead to the conclusion that thrust washers and wrapped bushes are not thin walled bearings. Indeed, as mentioned hereinabove, the standard specifies requirements both for groove bearings and ungrooved bearings and thrust washers are identical. The nominal diameter range of adjective thin wall is to apply to all the three bearings, viz. thrust half washers, thrust washers and wrapped bushes. The thrust washers and wrapped bushes have been defined as bearing liners and if used as bearings themselves and if they satisfy the requirement of wall thickness being proportionately small for the bore surface of the housing and, therefore, can well be treated as thin walled bearings. In our judgment, the view taken by the Assistant Collector and confirmed by the Appellate Authority cannot be described as perverse, unreasonable or entirely unsustainable. In the decision reported in A. I. R. 1963, supreme Court 1319 (Collector of Customs, Madras v. K. Ganga Setty) observed: "it is primarily for the Import Control authorities to determine the head or entry in tariff schedule under which any particular commodity fell; but if in doing so, these authorities adopted a construction which no reasonable person could adopt i. e. if the construction is perverse, then it is a case in which the Court is competent to interfere. In other words, if there were two constructions which an entry could reasonably bear, and one of them which was in favour of revenue was adopted, the Court has no jurisdiction to interfere merely because the other interpretation favorable to the subject appeals to the Court as the better one to adopt."It is, therefore, clear that even assuming that the view, other than one, taken by the Assistant collector and confirmed by the Appellate Authority is possible, still, it is not permissible in exercise of writ jurisdiction to disturb the conclusion of the Authorities below. We are unable to accept the claim of the Company that the view taken by the Assistant Collector is either perverse or entirely unsustainable for lack of material. The Company did not care to produce any evidence to establish how the goods are known in the trade circle or in common parlance and it is futile now to suggest that because other view is possible, the order of the authorities below should be set aside. In our judgment, the contention of the learned counsel that thrust washers, thrust half washers and wrapped bushes are not thin walled bearings cannot be8 ) THE second contention of the learned counsel that the demand cannot be made in respect of clearance of the goods from August 7, 1978 but can only be from September 23, 1978 deserves acceptance. The decision of the authorities below that the decision to treat thrust washers and wrapped bushes as thin walled bearings was taken at the conference held between the representatives of the Government of India and the trade on February 9, 1978 and the decision was accepted by the Government of India on August 7, 1978 and, therefore, the Company is liable to pay excise duty from that date cannot be accepted. The decision was communicated to the Company only on the September 23, 1978 and the liability to pay excise duty can arise only from that day. Shri Desai very rightly did not support the conclusion of the Assistant Collector on this count. The demand made under demand notice dated October 16, 1978 is, therefore, required to be limited only in respect of clearance of goods from September 23, 1978are unable to accept the submission because this demand is made only as a consequence of the decision given by the assistant Collector and confirmed by the Appellate Authority. The demand being in consequence to the adjudication that thrust washers and wrapped bushes are thin walled bearings, in our judgment, the limitation will not be attracted.
|
M/S. Nagindas K. & Bros. & Others Vs. The Official Liquidator, High Court & Others | the company in liquidation was closed without any business activity. No income has been fetched from the properties which were in the hands of the Liquidator and the Central Bank, as a secured creditor had been paying the security charges and incurring expenses for several years;(iii) In view of the overriding provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 the D.R.T. has exclusive jurisdiction in respect of the subject matter of the recovery proceedings. It was not open to the Company Court to dispose of the immovable property of the company in liquidation;(iv) The D.R.T. had already passed an order permitting Central Bank to settle its claim in terms of the proposed settlement and the order had not been stayed by the D.R.A.T. It was not open to the Company court to sit in appeal against the order passed by the DRT and the validity of that order could not be questioned in the proceedings before the Company court;(v) The rights of the Appellant, if any, was to challenge the order passed by the D.R.T. and the Appellant had already taken recourse to that remedy;(vi) The reliefs claimed by Central Bank in proceedings before the Company court were only consequential to the orders passed by the D.R.T., which have not been stayed or set aside;(vii) Central Bank in whose favour the leasehold rights of the company in liquidation were mortgaged and which was required to spend substantial amounts towards security charges and towards other expenses was entitled to execute the decree and recover its dues by appropriating the sale proceeds. No order restraining the decree holder from selling the property and appropriating the sale proceeds towards its dues in satisfaction of the decree could be passed by the Company Court;(viii) The Appellant had not made a bona fide proposal. The Appellant proposed to deposit an amount of Rs.1.75 Crores in 2012 subject to the condition that the bank shall give up all its claims not only in respect of the leasehold properties, but also in respect of free hold properties, though the claim of the bank was in excess of Rs.25 Crorers. The Appellant had not taken any steps to clear the liabilities of the company in liquidation and the offer made before the Company court was not bonafide.On these grounds, the company application came to be dismissed.10. Learned Senior Counsel appearing on behalf of the Appellant submits that the Official Liquidator could not have given his consent to the proposed settlement by which Central Bank accepted an amount of Rs.1.40 Crores towards satisfaction of its mortgage debt, without any enquiry into the valuation of the leasehold rights. The Official Liquidator, it was urged, was duty bound to realize the best price and cannot agree to a slump sale. The Appellant has executed a personal guarantee and is therefore interested in ensuing that the best possible price for the sale of the assets of the company in liquidation is realised.11. Central Bank holds a decree in its favour which was passed as far back as on 30 November 1996. The leasehold rights of the company in liquidation constitute the mortgage security of the bank. In the order of the Company Court dated 16 December 2004, the learned Company Judge had made it clear that the properties which formed the subject of the security in favour of the bank would have to be sold and disposed of by the recovery officer in the proceedings before the D.R.T. and hence, it was not open to the Liquidator to seek sanction for the sale of the secured assets. The Liquidator was directed to hold the properties subject to the orders that may be passed by the D.R.T. This order was consistent with the scheme of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and having due regard to the judgment of the Supreme Court in Allahabad Bank vs. Canara Bank AIR (2000 (SC) 1535 ). The Central Banks application has been allowed by the D.R.T. The Appellant has sought to question the correctness of the order passed by the D.R.T before the D.R.A.T. The Appeal was dismissed for non-removal of objections and an application for restoration is now pending.12. The Company application, which the Liquidator moved before the Company Judge and which resulted in the passing of the order dated 12 February 2013 was merely consequential to the order passed by the D.R.T. The learned Company Judge was in our view right in coming to the conclusion that it would lie outside the jurisdiction of the Company court to sit in appeal over the order passed by the D.R.T., particularly having regard to the position that the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 provides for a self contained remedy for challenging orders passed by the Debt Recovery Tribunal. In that appeal, it is open to the Appellant to question the order of the Tribunal on all counts as may be available in law, including the grounds which were sought to be raised in regard to valuation. The appeal was dismissed as the Appellant failed to remain present on more than six occasions. But, we do not make any observations in regard to the application for restoration and which will be disposed of on merits. The learned Company Judge was, in our view, justified in coming to the conclusion that the remedy of the Appellant must lie before the DRAT where the Appellant has invoked its remedy. The Appellant had no bona fide offer to make before the Company Judge, even assuming that such an offer could have been made before the Company Court. Central Bank has dues exceeding Rs.25 Crores and it was called upon by the Appellant to settle the entirety of its claim and to release even its free hold properties against the amount of Rs.1.75 Crores which was unacceptable.13. For all these reasons, we find no error in the order of the learned Single Judge. | 0[ds]12. The Company application, which the Liquidator moved before the Company Judge and which resulted in the passing of the order dated 12 February 2013 was merely consequential to the order passed by the D.R.T. The learned Company Judge was in our view right in coming to the conclusion that it would lie outside the jurisdiction of the Company court to sit in appeal over the order passed by the D.R.T., particularly having regard to the position that the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 provides for a self contained remedy for challenging orders passed by the Debt Recovery Tribunal. In that appeal, it is open to the Appellant to question the order of the Tribunal on all counts as may be available in law, including the grounds which were sought to be raised in regard to valuation. The appeal was dismissed as the Appellant failed to remain present on more than six occasions. But, we do not make any observations in regard to the application for restoration and which will be disposed of on merits. The learned Company Judge was, in our view, justified in coming to the conclusion that the remedy of the Appellant must lie before the DRAT where the Appellant has invoked its remedy. The Appellant had no bona fide offer to make before the Company Judge, even assuming that such an offer could have been made before the Company Court. Central Bank has dues exceeding Rs.25 Crores and it was called upon by the Appellant to settle the entirety of its claim and to release even its free hold properties against the amount of Rs.1.75 Crores which was unacceptable.13. For all these reasons, we find no error in the order of the learned Single Judge. | 0 | 2,363 | 319 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the company in liquidation was closed without any business activity. No income has been fetched from the properties which were in the hands of the Liquidator and the Central Bank, as a secured creditor had been paying the security charges and incurring expenses for several years;(iii) In view of the overriding provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 the D.R.T. has exclusive jurisdiction in respect of the subject matter of the recovery proceedings. It was not open to the Company Court to dispose of the immovable property of the company in liquidation;(iv) The D.R.T. had already passed an order permitting Central Bank to settle its claim in terms of the proposed settlement and the order had not been stayed by the D.R.A.T. It was not open to the Company court to sit in appeal against the order passed by the DRT and the validity of that order could not be questioned in the proceedings before the Company court;(v) The rights of the Appellant, if any, was to challenge the order passed by the D.R.T. and the Appellant had already taken recourse to that remedy;(vi) The reliefs claimed by Central Bank in proceedings before the Company court were only consequential to the orders passed by the D.R.T., which have not been stayed or set aside;(vii) Central Bank in whose favour the leasehold rights of the company in liquidation were mortgaged and which was required to spend substantial amounts towards security charges and towards other expenses was entitled to execute the decree and recover its dues by appropriating the sale proceeds. No order restraining the decree holder from selling the property and appropriating the sale proceeds towards its dues in satisfaction of the decree could be passed by the Company Court;(viii) The Appellant had not made a bona fide proposal. The Appellant proposed to deposit an amount of Rs.1.75 Crores in 2012 subject to the condition that the bank shall give up all its claims not only in respect of the leasehold properties, but also in respect of free hold properties, though the claim of the bank was in excess of Rs.25 Crorers. The Appellant had not taken any steps to clear the liabilities of the company in liquidation and the offer made before the Company court was not bonafide.On these grounds, the company application came to be dismissed.10. Learned Senior Counsel appearing on behalf of the Appellant submits that the Official Liquidator could not have given his consent to the proposed settlement by which Central Bank accepted an amount of Rs.1.40 Crores towards satisfaction of its mortgage debt, without any enquiry into the valuation of the leasehold rights. The Official Liquidator, it was urged, was duty bound to realize the best price and cannot agree to a slump sale. The Appellant has executed a personal guarantee and is therefore interested in ensuing that the best possible price for the sale of the assets of the company in liquidation is realised.11. Central Bank holds a decree in its favour which was passed as far back as on 30 November 1996. The leasehold rights of the company in liquidation constitute the mortgage security of the bank. In the order of the Company Court dated 16 December 2004, the learned Company Judge had made it clear that the properties which formed the subject of the security in favour of the bank would have to be sold and disposed of by the recovery officer in the proceedings before the D.R.T. and hence, it was not open to the Liquidator to seek sanction for the sale of the secured assets. The Liquidator was directed to hold the properties subject to the orders that may be passed by the D.R.T. This order was consistent with the scheme of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and having due regard to the judgment of the Supreme Court in Allahabad Bank vs. Canara Bank AIR (2000 (SC) 1535 ). The Central Banks application has been allowed by the D.R.T. The Appellant has sought to question the correctness of the order passed by the D.R.T before the D.R.A.T. The Appeal was dismissed for non-removal of objections and an application for restoration is now pending.12. The Company application, which the Liquidator moved before the Company Judge and which resulted in the passing of the order dated 12 February 2013 was merely consequential to the order passed by the D.R.T. The learned Company Judge was in our view right in coming to the conclusion that it would lie outside the jurisdiction of the Company court to sit in appeal over the order passed by the D.R.T., particularly having regard to the position that the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 provides for a self contained remedy for challenging orders passed by the Debt Recovery Tribunal. In that appeal, it is open to the Appellant to question the order of the Tribunal on all counts as may be available in law, including the grounds which were sought to be raised in regard to valuation. The appeal was dismissed as the Appellant failed to remain present on more than six occasions. But, we do not make any observations in regard to the application for restoration and which will be disposed of on merits. The learned Company Judge was, in our view, justified in coming to the conclusion that the remedy of the Appellant must lie before the DRAT where the Appellant has invoked its remedy. The Appellant had no bona fide offer to make before the Company Judge, even assuming that such an offer could have been made before the Company Court. Central Bank has dues exceeding Rs.25 Crores and it was called upon by the Appellant to settle the entirety of its claim and to release even its free hold properties against the amount of Rs.1.75 Crores which was unacceptable.13. For all these reasons, we find no error in the order of the learned Single Judge.
### Response:
0
### Explanation:
12. The Company application, which the Liquidator moved before the Company Judge and which resulted in the passing of the order dated 12 February 2013 was merely consequential to the order passed by the D.R.T. The learned Company Judge was in our view right in coming to the conclusion that it would lie outside the jurisdiction of the Company court to sit in appeal over the order passed by the D.R.T., particularly having regard to the position that the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 provides for a self contained remedy for challenging orders passed by the Debt Recovery Tribunal. In that appeal, it is open to the Appellant to question the order of the Tribunal on all counts as may be available in law, including the grounds which were sought to be raised in regard to valuation. The appeal was dismissed as the Appellant failed to remain present on more than six occasions. But, we do not make any observations in regard to the application for restoration and which will be disposed of on merits. The learned Company Judge was, in our view, justified in coming to the conclusion that the remedy of the Appellant must lie before the DRAT where the Appellant has invoked its remedy. The Appellant had no bona fide offer to make before the Company Judge, even assuming that such an offer could have been made before the Company Court. Central Bank has dues exceeding Rs.25 Crores and it was called upon by the Appellant to settle the entirety of its claim and to release even its free hold properties against the amount of Rs.1.75 Crores which was unacceptable.13. For all these reasons, we find no error in the order of the learned Single Judge.
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Radhy Shyam Vs. Shyam Behari Singh | 85 (FB)), the High Court of Delhi also has held that the expression judgment in Cl. 10 of the Letters Patent of the Lahore High Court not only meant a judgment having the effect of a decree, but any Order which affected the merits of a controversy between the parties by determining some disputed right or liability. 6. In Shankarlal Aggarwal v. Shankarlal Poddar, (1964) 1 SCR 717 = (AIR 1965 SC 507 ), the question was whether an order passed by a single Judge of the High Court confirming an auction sale during the winding up proceedings of the company was appealable. Since the Court held that such an order was appealable under Section 202 of the Indian Companies Act, 1913, it did not go into the question whether it was a judgment within the meaning of Cl. 15 of the Letters Patent. The decision, therefore, does not help. Similarly, Mohan Lal Magan Lal Thacker v. State of Gujarat, (1968) 2 SCR 685 = (AIR 1968 SC 733 ) and Tarapore and Co. v. M/s. V/o. Tractors Export, Moscow, (1969) 2 SCR 699 = (AIR 1970 SC 1168 ) also are strictly not relevant as they were decisions on the meaning of the expression final order in Articles 133 and 134 (1) (e) of the Constitution and nut on the interpretation of the term judgment in the Letters Patent of the High Courts. 7. There can be no doubt that an application under O. XXI, Rule 90 to set aside an auction sale concerns the rights of a person declared to be the purchaser. If the application is allowed, the sale is set aside and the purchaser is deprived of his right to have the sale confirmed by the Court under Rule 92. Such a right is a valuable right, in that, upon such confirmation the sale becomes absolute and the rights of ownership in the property so sold become vested in him. A decision in such a proceeding, therefore, must be said to be one determining the right of the auction purchaser to have the sale confirmed and made absolute and of the judgment-debtor conferred by Rule 90 to have it set aside and a resale ordered. In our view an order in a proceeding under Order XXI, Rule 90 is a judgment inasmuch as such a proceeding raises a controversy between the parties therein affecting their valuable rights and the order allowing the application certainly deprives the purchaser of rights accrued to him as a result of the auction-sale. We, therefore, agree with the High Court that a Letters Patent appeal lay against the order of the learned single Judge. 8. Rule 90 of U. XXI of the Code, as amended by the Allahabad High Court, inter alia, provides that no sale shall be set aside on the ground of irregularity or even fraud unless upon the facts proved the Court is satisfied that the applicant has sustained injury by reason of such gularity or fraud. Mere proof of a material irregularity such as the one under Rule 69 and inadequacy of price realised in such a sale, in other words injury, is, therefore, not sufficient. What has to be established is there was not only inadequacy of the price but that that inadequacy was caused by reason of the material irregularity or fraud. A connection has thus to be established between the inadequacy of the price and the material irregularity. 9. The learned single Judge found that the appellant had been prejudiced inasmuch as the said sale realised only Rs. 8000/- though the value of the appellants share was Rs. 20,000/-. This view was founded upon a report made by the Amin of the Executive Court in which that officer had valued the said share at Rs. 20,000/-. The Division Bench, however, held, and in our view rightly, that the learned single Judge was in error in relying upon that report. The record clearly shows that no notice was given to the respondent of the appellants application to have a commissioner appointed to value the property. The trial Court appointed the Amin as commissioner without any such notice and behind the back of the respondent. The Amin made his valuation without giving an opportunity to the respondent to be heard. No opportunity was ever given to the respondent to raise any objection to the said valuation. The report was filed in the trial Court without any notice to the respondent. Indeed no reference was made to the report in the trial court so that the trial court could not give any chance to the respondent to raise any contention against it. It was for the first time brought out before the learned single Judge who accepted if and held on the strength of it that the price realised at the sale was grossly inadequate. In these circumstances the Division Bench rightly held that the learned single Judge erred in relying on such a report. 10. Barring the report no evidence whatsoever was led by the appellant to show that his share in the said property was worth Rs. 20,000/-, and that therefore the price realised at the auction was inadequate. The Division Bench was, in our view, right in holding that the appellant had failed to show inadequacy of the price or that such inadequacy was occasioned by the said material irregularity. 11. When it was realised that the contention as to the inadequacy of price cannot be sustained, counsel tried to argue that the said sale fetched Rs. 8000/- only as the proclamation for sale had set out the value of the appellants share at that amount only. No such grievance was made before the trial court, nor was such a grievance incorporated in the memorandum of appeal before the High Court. Also, no such ground has been taken in the special leave petition before this Court. Obviously, the appellant could not raise such a contention before the High Court, much less before this Court. | 0[ds]Some of these decisions, however, are under Sections 109 and 110 of theCode of Civil Procedure and Articles 133 and 134 of the Constitution which would have no bearing on the construction of Clause 10 of the Letters Patent. But before we enter into the controversy as to the meaning of the term judgment in Cl. 10 it would be necessary to remember that the respondent having been declared as the highest bidder became the purchaser of the appellants one fourth share in the said property. No doubt the sale had to be confirmed by the Court under Rule 92 of Order XXI before it could become absolute and in the meantime the appellant could apply under Rule 90 to have it set aside. If the Court, on such an application, were to pass an order setting aside the sale, such an order would clearly affect the rights accrued to by the respondent as a result of the sale. On the other hand, if the application were to be dismissed, such dismissal affects the right of the judgment-debtor under Rule 90. The application under that Rule and the order made thereon, therefore, are not merely procedural matters but are matters affecting the rights of both the auction purchaser and the judgment-debtor7. There can be no doubt that an application under O. XXI, Rule 90 to set aside an auction sale concerns the rights of a person declared to be the purchaser. If the application is allowed, the sale is set aside and the purchaser is deprived of his right to have the sale confirmed by the Court under Rule 92. Such a right is a valuable right, in that, upon such confirmation the sale becomes absolute and the rights of ownership in the property so sold become vested in him. A decision in such a proceeding, therefore, must be said to be one determining the right of the auction purchaser to have the sale confirmed and made absolute and of the judgment-debtor conferred by Rule 90 to have it set aside and a resale ordered. In our view an order in a proceeding under Order XXI, Rule 90 is a judgment inasmuch as such a proceeding raises a controversy between the parties therein affecting their valuable rights and the order allowing the application certainly deprives the purchaser of rights accrued to him as a result of the auction-sale. We, therefore, agree with the High Court that a Letters Patent appeal lay against the order of the learned single Judge8. Rule 90 of U. XXI of the Code, as amended by the Allahabad High Court, inter alia, provides that no sale shall be set aside on the ground of irregularity or even fraud unless upon the facts proved the Court is satisfied that the applicant has sustained injury by reason of such gularity or fraud. Mere proof of a material irregularity such as the one under Rule 69 and inadequacy of price realised in such a sale, in other words injury, is, therefore, not sufficient. What has to be established is there was not only inadequacy of the price but that that inadequacy was caused by reason of the material irregularity or fraud. A connection has thus to be established between the inadequacy of the price and the material irregularity9. The learned single Judge found that the appellant had been prejudiced inasmuch as the said sale realised only Rs. 8000/- though the value of the appellants share was Rs. 20,000/-. This view was founded upon a report made by the Amin of the Executive Court in which that officer had valued the said share at Rs. 20,000/-. The Division Bench, however, held, and in our view rightly, that the learned single Judge was in error in relying upon that report. The record clearly shows that no notice was given to the respondent of the appellants application to have a commissioner appointed to value the property. The trial Court appointed the Amin as commissioner without any such notice and behind the back of the respondent. The Amin made his valuation without giving an opportunity to the respondent to be heard. No opportunity was ever given to the respondent to raise any objection to the said valuation. The report was filed in the trial Court without any notice to the respondent. Indeed no reference was made to the report in the trial court so that the trial court could not give any chance to the respondent to raise any contention against it. It was for the first time brought out before the learned single Judge who accepted if and held on the strength of it that the price realised at the sale was grossly inadequate. In these circumstances the Division Bench rightly held that the learned single Judge erred in relying on such a report10. Barring the report no evidence whatsoever was led by the appellant to show that his share in the said property was worth Rs. 20,000/-, and that therefore the price realised at the auction was inadequate. The Division Bench was, in our view, right in holding that the appellant had failed to show inadequacy of the price or that such inadequacy was occasioned by the said material irregularity11. When it was realised that the contention as to the inadequacy of price cannot be sustained, counsel tried to argue that the said sale fetched Rs. 8000/- only as the proclamation for sale had set out the value of the appellants share at that amount only. No such grievance was made before the trial court, nor was such a grievance incorporated in the memorandum of appeal before the High Court. Also, no such ground has been taken in the special leave petition before this Court. Obviously, the appellant could not raise such a contention before the High Court, much less before this Court. | 0 | 3,532 | 1,053 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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85 (FB)), the High Court of Delhi also has held that the expression judgment in Cl. 10 of the Letters Patent of the Lahore High Court not only meant a judgment having the effect of a decree, but any Order which affected the merits of a controversy between the parties by determining some disputed right or liability. 6. In Shankarlal Aggarwal v. Shankarlal Poddar, (1964) 1 SCR 717 = (AIR 1965 SC 507 ), the question was whether an order passed by a single Judge of the High Court confirming an auction sale during the winding up proceedings of the company was appealable. Since the Court held that such an order was appealable under Section 202 of the Indian Companies Act, 1913, it did not go into the question whether it was a judgment within the meaning of Cl. 15 of the Letters Patent. The decision, therefore, does not help. Similarly, Mohan Lal Magan Lal Thacker v. State of Gujarat, (1968) 2 SCR 685 = (AIR 1968 SC 733 ) and Tarapore and Co. v. M/s. V/o. Tractors Export, Moscow, (1969) 2 SCR 699 = (AIR 1970 SC 1168 ) also are strictly not relevant as they were decisions on the meaning of the expression final order in Articles 133 and 134 (1) (e) of the Constitution and nut on the interpretation of the term judgment in the Letters Patent of the High Courts. 7. There can be no doubt that an application under O. XXI, Rule 90 to set aside an auction sale concerns the rights of a person declared to be the purchaser. If the application is allowed, the sale is set aside and the purchaser is deprived of his right to have the sale confirmed by the Court under Rule 92. Such a right is a valuable right, in that, upon such confirmation the sale becomes absolute and the rights of ownership in the property so sold become vested in him. A decision in such a proceeding, therefore, must be said to be one determining the right of the auction purchaser to have the sale confirmed and made absolute and of the judgment-debtor conferred by Rule 90 to have it set aside and a resale ordered. In our view an order in a proceeding under Order XXI, Rule 90 is a judgment inasmuch as such a proceeding raises a controversy between the parties therein affecting their valuable rights and the order allowing the application certainly deprives the purchaser of rights accrued to him as a result of the auction-sale. We, therefore, agree with the High Court that a Letters Patent appeal lay against the order of the learned single Judge. 8. Rule 90 of U. XXI of the Code, as amended by the Allahabad High Court, inter alia, provides that no sale shall be set aside on the ground of irregularity or even fraud unless upon the facts proved the Court is satisfied that the applicant has sustained injury by reason of such gularity or fraud. Mere proof of a material irregularity such as the one under Rule 69 and inadequacy of price realised in such a sale, in other words injury, is, therefore, not sufficient. What has to be established is there was not only inadequacy of the price but that that inadequacy was caused by reason of the material irregularity or fraud. A connection has thus to be established between the inadequacy of the price and the material irregularity. 9. The learned single Judge found that the appellant had been prejudiced inasmuch as the said sale realised only Rs. 8000/- though the value of the appellants share was Rs. 20,000/-. This view was founded upon a report made by the Amin of the Executive Court in which that officer had valued the said share at Rs. 20,000/-. The Division Bench, however, held, and in our view rightly, that the learned single Judge was in error in relying upon that report. The record clearly shows that no notice was given to the respondent of the appellants application to have a commissioner appointed to value the property. The trial Court appointed the Amin as commissioner without any such notice and behind the back of the respondent. The Amin made his valuation without giving an opportunity to the respondent to be heard. No opportunity was ever given to the respondent to raise any objection to the said valuation. The report was filed in the trial Court without any notice to the respondent. Indeed no reference was made to the report in the trial court so that the trial court could not give any chance to the respondent to raise any contention against it. It was for the first time brought out before the learned single Judge who accepted if and held on the strength of it that the price realised at the sale was grossly inadequate. In these circumstances the Division Bench rightly held that the learned single Judge erred in relying on such a report. 10. Barring the report no evidence whatsoever was led by the appellant to show that his share in the said property was worth Rs. 20,000/-, and that therefore the price realised at the auction was inadequate. The Division Bench was, in our view, right in holding that the appellant had failed to show inadequacy of the price or that such inadequacy was occasioned by the said material irregularity. 11. When it was realised that the contention as to the inadequacy of price cannot be sustained, counsel tried to argue that the said sale fetched Rs. 8000/- only as the proclamation for sale had set out the value of the appellants share at that amount only. No such grievance was made before the trial court, nor was such a grievance incorporated in the memorandum of appeal before the High Court. Also, no such ground has been taken in the special leave petition before this Court. Obviously, the appellant could not raise such a contention before the High Court, much less before this Court.
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### Explanation:
Some of these decisions, however, are under Sections 109 and 110 of theCode of Civil Procedure and Articles 133 and 134 of the Constitution which would have no bearing on the construction of Clause 10 of the Letters Patent. But before we enter into the controversy as to the meaning of the term judgment in Cl. 10 it would be necessary to remember that the respondent having been declared as the highest bidder became the purchaser of the appellants one fourth share in the said property. No doubt the sale had to be confirmed by the Court under Rule 92 of Order XXI before it could become absolute and in the meantime the appellant could apply under Rule 90 to have it set aside. If the Court, on such an application, were to pass an order setting aside the sale, such an order would clearly affect the rights accrued to by the respondent as a result of the sale. On the other hand, if the application were to be dismissed, such dismissal affects the right of the judgment-debtor under Rule 90. The application under that Rule and the order made thereon, therefore, are not merely procedural matters but are matters affecting the rights of both the auction purchaser and the judgment-debtor7. There can be no doubt that an application under O. XXI, Rule 90 to set aside an auction sale concerns the rights of a person declared to be the purchaser. If the application is allowed, the sale is set aside and the purchaser is deprived of his right to have the sale confirmed by the Court under Rule 92. Such a right is a valuable right, in that, upon such confirmation the sale becomes absolute and the rights of ownership in the property so sold become vested in him. A decision in such a proceeding, therefore, must be said to be one determining the right of the auction purchaser to have the sale confirmed and made absolute and of the judgment-debtor conferred by Rule 90 to have it set aside and a resale ordered. In our view an order in a proceeding under Order XXI, Rule 90 is a judgment inasmuch as such a proceeding raises a controversy between the parties therein affecting their valuable rights and the order allowing the application certainly deprives the purchaser of rights accrued to him as a result of the auction-sale. We, therefore, agree with the High Court that a Letters Patent appeal lay against the order of the learned single Judge8. Rule 90 of U. XXI of the Code, as amended by the Allahabad High Court, inter alia, provides that no sale shall be set aside on the ground of irregularity or even fraud unless upon the facts proved the Court is satisfied that the applicant has sustained injury by reason of such gularity or fraud. Mere proof of a material irregularity such as the one under Rule 69 and inadequacy of price realised in such a sale, in other words injury, is, therefore, not sufficient. What has to be established is there was not only inadequacy of the price but that that inadequacy was caused by reason of the material irregularity or fraud. A connection has thus to be established between the inadequacy of the price and the material irregularity9. The learned single Judge found that the appellant had been prejudiced inasmuch as the said sale realised only Rs. 8000/- though the value of the appellants share was Rs. 20,000/-. This view was founded upon a report made by the Amin of the Executive Court in which that officer had valued the said share at Rs. 20,000/-. The Division Bench, however, held, and in our view rightly, that the learned single Judge was in error in relying upon that report. The record clearly shows that no notice was given to the respondent of the appellants application to have a commissioner appointed to value the property. The trial Court appointed the Amin as commissioner without any such notice and behind the back of the respondent. The Amin made his valuation without giving an opportunity to the respondent to be heard. No opportunity was ever given to the respondent to raise any objection to the said valuation. The report was filed in the trial Court without any notice to the respondent. Indeed no reference was made to the report in the trial court so that the trial court could not give any chance to the respondent to raise any contention against it. It was for the first time brought out before the learned single Judge who accepted if and held on the strength of it that the price realised at the sale was grossly inadequate. In these circumstances the Division Bench rightly held that the learned single Judge erred in relying on such a report10. Barring the report no evidence whatsoever was led by the appellant to show that his share in the said property was worth Rs. 20,000/-, and that therefore the price realised at the auction was inadequate. The Division Bench was, in our view, right in holding that the appellant had failed to show inadequacy of the price or that such inadequacy was occasioned by the said material irregularity11. When it was realised that the contention as to the inadequacy of price cannot be sustained, counsel tried to argue that the said sale fetched Rs. 8000/- only as the proclamation for sale had set out the value of the appellants share at that amount only. No such grievance was made before the trial court, nor was such a grievance incorporated in the memorandum of appeal before the High Court. Also, no such ground has been taken in the special leave petition before this Court. Obviously, the appellant could not raise such a contention before the High Court, much less before this Court.
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Balaji Vs. Income Tax Officer, Special Investigation Circle | 42 and 46 to 54 of 1958, D/- 9-12-1960) : (AIR 1961 SC 552 ). There, the petitioners impugned the constitutionality of the Travancore-Cochin Land Tax Act, XV of 1955, as amended by the Travancore-Cochin Land Tax (Amendment) Act, X of 1957, and Sinha, C. J., speaking for the Court held that the Act was void as infringing not only Art. 14 of the Constitution but also Art. 19 (1) (f) thereof. The learned Chief Justice, after considering the relevant provisions of the Act and having regard to the unreasonable nature of the restrictions, came to the conclusion that the provisions of the Act were unconstitutional, viewed from the angle of the provisions of Art. 19 (1) (f) of the Constitution.13. We cannot, therefore, accept the broad contention of the learned Additional Solicitor General that a tax law cannot be questioned on the ground that it infringes Art. 10 of the Constitution.14. Even so the learned Additional Solicitor General contended that the provisions of S. 16 (3) (a) (i) and (ii) of the Act constituted only reasonable restrictions on the exercise of the rights conferred under Art. 19 (1) (f) and (g) of the Constitution, in the interest of the general public.15. Learned counsel for the petitioner argued that the restrictions are not reasonable for the following reasons : (i) the husband is made to pay tax on the income which his wife derived from the business, that is, a tax is levied on one person on the income of another; (2) such an imposition not only prevents a husband from taking his wife as a partner in his business but also prevents a wife, who has got a business of her own, from taking her husband as a partner in the business; (3) the husband has to pay a tax at a rate higher than that he would have to pay if the income of the wife was not added to his income; (4) the same situation is created inter se between a parent and his minor children vis-a-vis their joint business. Learned counsel, therefore, contended that the provisions prevented the honest pooling of resources of the members of a family so intimately connected with each other to the detriment of the family prosperity, and that it amounted to an unreasonable restriction on the said fundamental rights. There is some plausibility in this argument, but if an overall picture of the situation is taken, the reasonableness of the restrictions will be apparent. In the State of Madras v. V. G. Row, 1952 S C R 597 :(AIR 1952 S C l96), Patanjali Sastri, C. J., lays down the following test of reasonableness :"The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict."So judged, can it be said that the restrictions imposed under the impugned provisions are not reasonable? The object sought to be achieved was to prevent the prevalent abuse, namely evasion of tax by an individual doing business under a partnership nominally entered with his wife or minor children. The scope of the provisions is limited only to a few of the intimate members of a family who ordinarily are under the protection of the assessee and are dependants of him. The persons selected by the provisions, namely, wife and mirror children. cannot also be ordinarily expected to carry on their business independently with their own funds, when the husband or the father is alive and when they are under his protection. Doubtless some of the said partnerships may be genuine and the wife or minor children may have contributed capital to the business; but the provisions do not in any way affect their rights and even the liability inter se between the husband and the wife or the minor children, as the case may be, in respect of the tax paid. It is true that in computing the total income of an individual for the purpose of assessment, their income in their capacity as partners shall be included in the income of the individual; but the section does not prevent the husband or the father, as the case may be, from debiting against them in the partnership accounts that part of the tax referable to the share or shares of their income. It may be that a father or a husband may have to pay tax at a higher rate than ordinarily he would have to pay if the addition of the wifes or childrens income to his own brings his total income to a higher slab. But it may not necessarily be so in a case where the income of the former is not appreciable; even if it is appreciable, he can debit a part of the excess payment to his wife and children. In short, the firm, though registered, would be treated as a distinct unit of assessment, with the difference that, unlike in the case of a registered firm, the entire income of the unit is added to the personal income of the father or the husband, as the case may be. This mode of taxation may be a little hard on a husband or a father in the case of genuine partnership with wife or minor children, but. that is offset, to a large extent, by the beneficent results that flow there from to the public, namely, the prevention of evasion of income-tax, and also by the fact that, by and large, the additional payment of tax made on the income of the wife or the minor children will ultimately be borne by them in the final accounting between them. In these circumstances, we cannot say that the provisions of S. 16 (3) of the Act impose an unreasonable restriction on the fundamental rights of the petitioner under Art.19 (1) (f) and (g) of the Constitution. | 0[ds]A husband or a father could nominally take his wife or his minor sons in partnership with him so that the tax burden might be lightened, for if the income was divided between a number of people, the income derived by an individual therefrom might fall under the limits of taxable income or under a less onerous slab. This device enables an assessee to secure the entire income of the business but at the same time to evade income-tax which he would have otherwise been liable to pay. The Income-tax Enquiry Commission of 1936 made certain recommendation to prevent evasion of tax in such cases. The Legislature accepted those recommendations and the loopholes were sought to be plugged by enacting the said sub-section-Sub-section (3) (a) (i) and (ii) was therefore enacted for preventing evasion of tax and was well within the competence of the Federaldecisions of this Court permitted classification if there was reasonable basis for the differentiation. It was held that what Art. 14 prohibited was class legislation and not reasonable classification for the purpose of legislation. Two conditions were laid down for passing the test of permissible classification, namely, (i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group, and (ii) that the differentia must have rational relation to the object sought to be achieved by the statute in question. Under the impugned sub-section, an individual is taxed on the income of his wife or his minor children, if he carries on business in partnership with his wife or if he admits his minor sons to the benefits of the partnership whereas an individual, if he carries on business in partnership with a third party, whether a man or a woman, or even with his major children or if he and his wife or children carry on business separately, will be liable only to pay tax on his share of the partnership income, that is, for the purpose of this sub-section, the former is put in a category different from the latter. It cannot be said that there is no differentia between the twosaid differentia has no rational relation to the object sought to be achieved by the statute in question. It was asked how, from the standpoint of imposition of tax, the difference between an individual and his wife doing business in partnership and between an individual and his wife doing business separately, and an individual doing business in partnership with his wife and an individual doing business in partnership with a third party, male or female, and between an individual who has admitted his minor children to the partnership business and an individual who is doing business in partnership with his major children or outsiders, would have any reasonable basis. This argument ignores the object of the legislation. We have held that the object of the legislation was to prevent evasion of tax.A similar device would not ordinarily be resorted to by individuals by entering into partnership with persons other than those mentioned in the sub-section, as it would involve a risk of the third party turning round and asserting his own rights. The Legislature, therefore, selected for the purpose of classification only that group of persons who in fact are used as a cloak to perpetrate fraud onis a greater scope for fraudulent evasion by constituting fictitious partnership along with ones wife and minor children than in a case of separate income of the spouses derived from different sources. That apart, the present social and economic position of women in India as compared with their compeers in America, even as it existed in 1931, is so low that it would be inappropriate to apply the decision made in America to a similar case arising in India. A wife in India, particularly if she be illiterate - a large majority of them are illiterate - would ordinarily be in economic matters a tool in the hands of her husband. Many things are done in her name without her knowledge of the same. When the Legislature of this country, which is assumed to know the conditions of the people and their requirements, with the awareness of this particular widespread fraudulent device in the matter of evasion of taxes, made a law to prevent the said fraud, it is difficult for this Court in the absence of any counterbalancing circumstances to hold, on the analogy drawn from American decisions, that the need for such a law is not in existence. On the contrary, there is a direct decision of the Madras High Court in 1954-26 I T R 137 : (AIR 1954 Mad l120), sustaining the said provision on the ground of reasonable16 (3) (a) of the Act must, therefore, pass both the tests and if it violates any of the provisions of Art. 19, to the extent it is inconsistent with the said provisions, it will be void. This view is in consonance with that expressed by this Court in K. Thathunni Moopil Nair v. State of Kerala, (Petns. Nos. 13 to 24, 42 and 46 to 54 of 1958, D/- 9-12-1960) : (AIR 1961 SC 552 ). There, the petitioners impugned the constitutionality of the Travancore-Cochin Land Tax Act, XV of 1955, as amended by the Travancore-Cochin Land Tax (Amendment) Act, X of 1957, and Sinha, C. J., speaking for the Court held that the Act was void as infringing not only Art. 14 of the Constitution but also Art. 19 (1) (f) thereof. The learned Chief Justice, after considering the relevant provisions of the Act and having regard to the unreasonable nature of the restrictions, came to the conclusion that the provisions of the Act were unconstitutional, viewed from the angle of the provisions of Art. 19 (1) (f) of the Constitution.13. We cannot, therefore, accept the broad contention of the learned Additional Solicitor General that a tax law cannot be questioned on the ground that it infringes Art. 10 of thescope of the provisions is limited only to a few of the intimate members of a family who ordinarily are under the protection of the assessee and are dependants of him. The persons selected by the provisions, namely, wife and mirror children. cannot also be ordinarily expected to carry on their business independently with their own funds, when the husband or the father is alive and when they are under his protection. Doubtless some of the said partnerships may be genuine and the wife or minor children may have contributed capital to the business; but the provisions do not in any way affect their rights and even the liability inter se between the husband and the wife or the minor children, as the case may be, in respect of the tax paid. It is true that in computing the total income of an individual for the purpose of assessment, their income in their capacity as partners shall be included in the income of the individual; but the section does not prevent the husband or the father, as the case may be, from debiting against them in the partnership accounts that part of the tax referable to the share or shares of their income. It may be that a father or a husband may have to pay tax at a higher rate than ordinarily he would have to pay if the addition of the wifes or childrens income to his own brings his total income to a higher slab. But it may not necessarily be so in a case where the income of the former is not appreciable; even if it is appreciable, he can debit a part of the excess payment to his wife and children. In short, the firm, though registered, would be treated as a distinct unit of assessment, with the difference that, unlike in the case of a registered firm, the entire income of the unit is added to the personal income of the father or the husband, as the case may be. This mode of taxation may be a little hard on a husband or a father in the case of genuine partnership with wife or minor children, but. that is offset, to a large extent, by the beneficent results that flow there from to the public, namely, the prevention of evasion of income-tax, and also by the fact that, by and large, the additional payment of tax made on the income of the wife or the minor children will ultimately be borne by them in the final accounting between them. In these circumstances, we cannot say that the provisions of S. 16 (3) of the Act impose an unreasonable restriction on the fundamental rights of the petitioner under Art.19 (1) (f) and (g) of the Constitution. | 0 | 5,276 | 1,632 | ### 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:
42 and 46 to 54 of 1958, D/- 9-12-1960) : (AIR 1961 SC 552 ). There, the petitioners impugned the constitutionality of the Travancore-Cochin Land Tax Act, XV of 1955, as amended by the Travancore-Cochin Land Tax (Amendment) Act, X of 1957, and Sinha, C. J., speaking for the Court held that the Act was void as infringing not only Art. 14 of the Constitution but also Art. 19 (1) (f) thereof. The learned Chief Justice, after considering the relevant provisions of the Act and having regard to the unreasonable nature of the restrictions, came to the conclusion that the provisions of the Act were unconstitutional, viewed from the angle of the provisions of Art. 19 (1) (f) of the Constitution.13. We cannot, therefore, accept the broad contention of the learned Additional Solicitor General that a tax law cannot be questioned on the ground that it infringes Art. 10 of the Constitution.14. Even so the learned Additional Solicitor General contended that the provisions of S. 16 (3) (a) (i) and (ii) of the Act constituted only reasonable restrictions on the exercise of the rights conferred under Art. 19 (1) (f) and (g) of the Constitution, in the interest of the general public.15. Learned counsel for the petitioner argued that the restrictions are not reasonable for the following reasons : (i) the husband is made to pay tax on the income which his wife derived from the business, that is, a tax is levied on one person on the income of another; (2) such an imposition not only prevents a husband from taking his wife as a partner in his business but also prevents a wife, who has got a business of her own, from taking her husband as a partner in the business; (3) the husband has to pay a tax at a rate higher than that he would have to pay if the income of the wife was not added to his income; (4) the same situation is created inter se between a parent and his minor children vis-a-vis their joint business. Learned counsel, therefore, contended that the provisions prevented the honest pooling of resources of the members of a family so intimately connected with each other to the detriment of the family prosperity, and that it amounted to an unreasonable restriction on the said fundamental rights. There is some plausibility in this argument, but if an overall picture of the situation is taken, the reasonableness of the restrictions will be apparent. In the State of Madras v. V. G. Row, 1952 S C R 597 :(AIR 1952 S C l96), Patanjali Sastri, C. J., lays down the following test of reasonableness :"The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict."So judged, can it be said that the restrictions imposed under the impugned provisions are not reasonable? The object sought to be achieved was to prevent the prevalent abuse, namely evasion of tax by an individual doing business under a partnership nominally entered with his wife or minor children. The scope of the provisions is limited only to a few of the intimate members of a family who ordinarily are under the protection of the assessee and are dependants of him. The persons selected by the provisions, namely, wife and mirror children. cannot also be ordinarily expected to carry on their business independently with their own funds, when the husband or the father is alive and when they are under his protection. Doubtless some of the said partnerships may be genuine and the wife or minor children may have contributed capital to the business; but the provisions do not in any way affect their rights and even the liability inter se between the husband and the wife or the minor children, as the case may be, in respect of the tax paid. It is true that in computing the total income of an individual for the purpose of assessment, their income in their capacity as partners shall be included in the income of the individual; but the section does not prevent the husband or the father, as the case may be, from debiting against them in the partnership accounts that part of the tax referable to the share or shares of their income. It may be that a father or a husband may have to pay tax at a higher rate than ordinarily he would have to pay if the addition of the wifes or childrens income to his own brings his total income to a higher slab. But it may not necessarily be so in a case where the income of the former is not appreciable; even if it is appreciable, he can debit a part of the excess payment to his wife and children. In short, the firm, though registered, would be treated as a distinct unit of assessment, with the difference that, unlike in the case of a registered firm, the entire income of the unit is added to the personal income of the father or the husband, as the case may be. This mode of taxation may be a little hard on a husband or a father in the case of genuine partnership with wife or minor children, but. that is offset, to a large extent, by the beneficent results that flow there from to the public, namely, the prevention of evasion of income-tax, and also by the fact that, by and large, the additional payment of tax made on the income of the wife or the minor children will ultimately be borne by them in the final accounting between them. In these circumstances, we cannot say that the provisions of S. 16 (3) of the Act impose an unreasonable restriction on the fundamental rights of the petitioner under Art.19 (1) (f) and (g) of the Constitution.
### Response:
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### Explanation:
outsiders, would have any reasonable basis. This argument ignores the object of the legislation. We have held that the object of the legislation was to prevent evasion of tax.A similar device would not ordinarily be resorted to by individuals by entering into partnership with persons other than those mentioned in the sub-section, as it would involve a risk of the third party turning round and asserting his own rights. The Legislature, therefore, selected for the purpose of classification only that group of persons who in fact are used as a cloak to perpetrate fraud onis a greater scope for fraudulent evasion by constituting fictitious partnership along with ones wife and minor children than in a case of separate income of the spouses derived from different sources. That apart, the present social and economic position of women in India as compared with their compeers in America, even as it existed in 1931, is so low that it would be inappropriate to apply the decision made in America to a similar case arising in India. A wife in India, particularly if she be illiterate - a large majority of them are illiterate - would ordinarily be in economic matters a tool in the hands of her husband. Many things are done in her name without her knowledge of the same. When the Legislature of this country, which is assumed to know the conditions of the people and their requirements, with the awareness of this particular widespread fraudulent device in the matter of evasion of taxes, made a law to prevent the said fraud, it is difficult for this Court in the absence of any counterbalancing circumstances to hold, on the analogy drawn from American decisions, that the need for such a law is not in existence. On the contrary, there is a direct decision of the Madras High Court in 1954-26 I T R 137 : (AIR 1954 Mad l120), sustaining the said provision on the ground of reasonable16 (3) (a) of the Act must, therefore, pass both the tests and if it violates any of the provisions of Art. 19, to the extent it is inconsistent with the said provisions, it will be void. This view is in consonance with that expressed by this Court in K. Thathunni Moopil Nair v. State of Kerala, (Petns. Nos. 13 to 24, 42 and 46 to 54 of 1958, D/- 9-12-1960) : (AIR 1961 SC 552 ). There, the petitioners impugned the constitutionality of the Travancore-Cochin Land Tax Act, XV of 1955, as amended by the Travancore-Cochin Land Tax (Amendment) Act, X of 1957, and Sinha, C. J., speaking for the Court held that the Act was void as infringing not only Art. 14 of the Constitution but also Art. 19 (1) (f) thereof. The learned Chief Justice, after considering the relevant provisions of the Act and having regard to the unreasonable nature of the restrictions, came to the conclusion that the provisions of the Act were unconstitutional, viewed from the angle of the provisions of Art. 19 (1) (f) of the Constitution.13. We cannot, therefore, accept the broad contention of the learned Additional Solicitor General that a tax law cannot be questioned on the ground that it infringes Art. 10 of thescope of the provisions is limited only to a few of the intimate members of a family who ordinarily are under the protection of the assessee and are dependants of him. The persons selected by the provisions, namely, wife and mirror children. cannot also be ordinarily expected to carry on their business independently with their own funds, when the husband or the father is alive and when they are under his protection. Doubtless some of the said partnerships may be genuine and the wife or minor children may have contributed capital to the business; but the provisions do not in any way affect their rights and even the liability inter se between the husband and the wife or the minor children, as the case may be, in respect of the tax paid. It is true that in computing the total income of an individual for the purpose of assessment, their income in their capacity as partners shall be included in the income of the individual; but the section does not prevent the husband or the father, as the case may be, from debiting against them in the partnership accounts that part of the tax referable to the share or shares of their income. It may be that a father or a husband may have to pay tax at a higher rate than ordinarily he would have to pay if the addition of the wifes or childrens income to his own brings his total income to a higher slab. But it may not necessarily be so in a case where the income of the former is not appreciable; even if it is appreciable, he can debit a part of the excess payment to his wife and children. In short, the firm, though registered, would be treated as a distinct unit of assessment, with the difference that, unlike in the case of a registered firm, the entire income of the unit is added to the personal income of the father or the husband, as the case may be. This mode of taxation may be a little hard on a husband or a father in the case of genuine partnership with wife or minor children, but. that is offset, to a large extent, by the beneficent results that flow there from to the public, namely, the prevention of evasion of income-tax, and also by the fact that, by and large, the additional payment of tax made on the income of the wife or the minor children will ultimately be borne by them in the final accounting between them. In these circumstances, we cannot say that the provisions of S. 16 (3) of the Act impose an unreasonable restriction on the fundamental rights of the petitioner under Art.19 (1) (f) and (g) of the Constitution.
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THE CHIEF EXECUTIVE OFFICER, BHILAI STEEL PLANT, BHILAI Vs. MAHESH KUMAR GONNADE & ORS | benefit on the basis of certificate which has been cancelled by the High Power Caste Scrutiny Committee. 11. While applying the ratio of Milind as above, the High Court, however, failed to take note of the following clarification given in Dattatray (supra), regarding the ratio in Milind: - 5. ………But the said decision has no application to a case which does not relate to an admission to an educational institution, but relates to securing employment by wrongly claiming the benefit of reservation meant for Scheduled Tribes. When a person secures employment by making a false claim regarding caste/tribe, he deprives a legitimate candidate belonging to Scheduled Caste/Tribe, of employment. In such a situation, the proper course is to cancel the employment obtained on the basis of the false certificate so that the post may be filled up by a candidate who is entitled to the benefit of reservation. 12. The pronouncement in Dattatray clearly suggests that the High Court misapplied the ratio in Milind, since the appointment of the respondent no. 1 as Management Trainee (Technical), cannot be compared to the education and appointment of a medical doctor. 13. It must also be borne in mind that the Division Bench of the Chhattisgarh High Court in the common judgment in Writ Appeal No.531 of 2016 (State of Chhattisgarh & Ors. vs. Dinesh Kumar Sonkusre) had made the following observations: - 40. It would be pertinent to mention that the State of Chhattisgarh was formed w.e.f. 01.11.2000 and the judgment in Milind (supra) was rendered on 28.11.2000 and the protection can only be given to those who were actually Halba-Koshti or Koshti for the State of Madhya Pradesh and Chhattisgarh prior to 28.11.2000 and were therefore treated as Halbas. 41. Having held so, we want to clarify that the notification dated 11.1.2016 is not bad in law. It will however have to be read in the context of the law laid down by the Apex Court in various judgements as explained by us above. This notification may not apply to those petitioners who have obtained jobs prior to 28.11.2000 provided they have obtained Scheduled Tribe certificate bona fide and without suppression or misrepresentation of any facts. In case, a person is not a Halba Koshti in relation to State of Madhya Pradesh, then that person is not entitled to any protection of law. If a person has obtained a false certificate by misrepresentation of facts or providing wrong information, then that the person is also not entitled to any protection. It is only those who were actually Halba Koshti or Koshti believed that they were members of Halba, a Scheduled Tribe and who got jobs prior to 28.11.2000, are entitled to such protection. This protection cannot be extended to all and sundry. To give an example if Halba Koshti from the State of Maharashtra had shifted to State of Madhya Pradesh, then he would not be Halba Koshti belonging to Madhya Pradesh and as such, his certificate would be totally false and such a person would not be entitled to any protection. 14. As we notice, the High Court disregarded the Governments circular dated 11.01.2016 whereby the previous circular (01.10.2011) was cancelled with the specific observation that Milinds judgment was clarified subsequently in Dattatray, by declaring that when a person secures appointment on the basis of a false certificate, he cannot be permitted to retain the benefit of wrongful appointment. In fact, necessary actions were expected to be taken against those who secured unmerited appointment on the basis of false caste certificate. Pertinently, the respondent no.1 could have (but never did) challenge, the circular dated 11.01.2016 which required the Government to cancel such unmerited appointment. 15. As noted earlier, the respondent no.1 secured employment to a post earmarked for the reserved category, and there is a clear finding by the Caste Scrutiny Committee that the respondent no.1 does not belong to the Halba ST category. The Halba ST certificate (11.09.1987) on the basis of which the respondent No.1 secured employment was cancelled by the Committee on 15.07.2015, and such finding of the Caste Scrutiny Committee remain unchallenged till date. As a consequence, the respondent no.1 is disentitled to claim any equitable relief by virtue of his long service, particularly when he, despite the notice, avoided the proceedings of the Caste Scrutiny Committee. Also conspicuously, he does not challenge the adverse finding against him. Moreover, it is not the claim of the Respondent no.1 that he belongs to the ST category nor did he ever challenge the clarificatory circular (11.01.2016) which cancels the earlier circular (01.10.2011). In such circumstances, an opportunity to the respondent no.1 would be futile because he could not have claimed that he belongs to the ST category since his Halba caste certificate (issued on 11.09.1987) stood cancelled by the Committee. Consequently, as an OBC person, the respondent no.1 could not have been permitted to continue in a post meant for the ST category. The High Court, therefore, should not have granted relief by invoking the principles of natural justice, and by adverting to the ratio in Milind (supra) which was not applicable to the respondent no.1, and which eventually was clarified in Dattatray (supra). 16. The above would show that the High Court clearly fell into an error by granting relief to the respondent no.1 who is disentitled to claim any right to continue in a post earmarked for the ST category. The ratio in Milind (supra) was incorrectly applied in the impugned judgment since it is not the case of the respondent no.1 that he belongs to the ST category. According to our understanding of the circumstances, the High Court instead of granting equitable relief to the Respondent no. 1, should have held that he cannot continue to usurp the benefits meant for a ST category person. Indeed the Division Bench should have said the game is up as was pronounced by Shakespeare in the play Cymbeline when the character stood exposed for what he actually was. | 1[ds]9. At the outset, given that the Jagdish (supra) as relied on by respondent nos.2 & 3 was pronounced on 06.07.2017, almost 6 months after the impugned judgment on 09.01.2017, the same could not have been considered by the High Court.10. As can be seen, the High Court granted relief to the respondent no.1 by referring to the decision in Milind (supra) with the following words: -15. For the aforesaid, we are of the considered view that the impugned judgment rendered by the Central Administrative Tribunal, refusing to extend benefit of Milinds judgment to the petitioners deserves to be and is hereby set-aside. Consequently, the petitioners termination vide order dated 24.10.2015 is also set-aside. The petitioner would be entitled to all the consequential benefits on or after 24.10.2015 including seniority and back wages. However, the petitioner shall not be entitled to any interest on the arrears of salary nor any further benefit on the basis of certificate which has been cancelled by the High Power Caste Scrutiny Committee.11. While applying the ratio of Milind as above, the High Court, however, failed to take note of the following clarification given in Dattatray (supra), regarding the ratio in Milind: -5. ………But the said decision has no application to a case which does not relate to an admission to an educational institution, but relates to securing employment by wrongly claiming the benefit of reservation meant for Scheduled Tribes. When a person secures employment by making a false claim regarding caste/tribe, he deprives a legitimate candidate belonging to Scheduled Caste/Tribe, of employment. In such a situation, the proper course is to cancel the employment obtained on the basis of the false certificate so that the post may be filled up by a candidate who is entitled to the benefit of reservation.12. The pronouncement in Dattatray clearly suggests that the High Court misapplied the ratio in Milind, since the appointment of the respondent no. 1 as Management Trainee (Technical), cannot be compared to the education and appointment of a medical doctor.13. It must also be borne in mind that the Division Bench of the Chhattisgarh High Court in the common judgment in Writ Appeal No.531 of 2016 (State of Chhattisgarh & Ors. vs. Dinesh Kumar Sonkusre) had made the following observations: -40. It would be pertinent to mention that the State of Chhattisgarh was formed w.e.f. 01.11.2000 and the judgment in Milind (supra) was rendered on 28.11.2000 and the protection can only be given to those who were actually Halba-Koshti or Koshti for the State of Madhya Pradesh and Chhattisgarh prior to 28.11.2000 and were therefore treated as Halbas.41. Having held so, we want to clarify that the notification dated 11.1.2016 is not bad in law. It will however have to be read in the context of the law laid down by the Apex Court in various judgements as explained by us above. This notification may not apply to those petitioners who have obtained jobs prior to 28.11.2000 provided they have obtained Scheduled Tribe certificate bona fide and without suppression or misrepresentation of any facts. In case, a person is not a Halba Koshti in relation to State of Madhya Pradesh, then that person is not entitled to any protection of law. If a person has obtained a false certificate by misrepresentation of facts or providing wrong information, then that the person is also not entitled to any protection. It is only those who were actually Halba Koshti or Koshti believed that they were members of Halba, a Scheduled Tribe and who got jobs prior to 28.11.2000, are entitled to such protection. This protection cannot be extended to all and sundry. To give an example if Halba Koshti from the State of Maharashtra had shifted to State of Madhya Pradesh, then he would not be Halba Koshti belonging to Madhya Pradesh and as such, his certificate would be totally false and such a person would not be entitled to any protection.14. As we notice, the High Court disregarded the Governments circular dated 11.01.2016 whereby the previous circular (01.10.2011) was cancelled with the specific observation that Milinds judgment was clarified subsequently in Dattatray, by declaring that when a person secures appointment on the basis of a false certificate, he cannot be permitted to retain the benefit of wrongful appointment. In fact, necessary actions were expected to be taken against those who secured unmerited appointment on the basis of false caste certificate. Pertinently, the respondent no.1 could have (but never did) challenge, the circular dated 11.01.2016 which required the Government to cancel such unmerited appointment.15. As noted earlier, the respondent no.1 secured employment to a post earmarked for the reserved category, and there is a clear finding by the Caste Scrutiny Committee that the respondent no.1 does not belong to the Halba ST category. The Halba ST certificate (11.09.1987) on the basis of which the respondent No.1 secured employment was cancelled by the Committee on 15.07.2015, and such finding of the Caste Scrutiny Committee remain unchallenged till date. As a consequence, the respondent no.1 is disentitled to claim any equitable relief by virtue of his long service, particularly when he, despite the notice, avoided the proceedings of the Caste Scrutiny Committee. Also conspicuously, he does not challenge the adverse finding against him. Moreover, it is not the claim of the Respondent no.1 that he belongs to the ST category nor did he ever challenge the clarificatory circular (11.01.2016) which cancels the earlier circular (01.10.2011). In such circumstances, an opportunity to the respondent no.1 would be futile because he could not have claimed that he belongs to the ST category since his Halba caste certificate (issued on 11.09.1987) stood cancelled by the Committee. Consequently, as an OBC person, the respondent no.1 could not have been permitted to continue in a post meant for the ST category. The High Court, therefore, should not have granted relief by invoking the principles of natural justice, and by adverting to the ratio in Milind (supra) which was not applicable to the respondent no.1, and which eventually was clarified in Dattatray (supra).16. The above would show that the High Court clearly fell into an error by granting relief to the respondent no.1 who is disentitled to claim any right to continue in a post earmarked for the ST category. The ratio in Milind (supra) was incorrectly applied in the impugned judgment since it is not the case of the respondent no.1 that he belongs to the ST category. According to our understanding of the circumstances, the High Court instead of granting equitable relief to the Respondent no. 1, should have held that he cannot continue to usurp the benefits meant for a ST category person. Indeed the Division Bench should have said the game is up as was pronounced by Shakespeare in the play Cymbeline when the character stood exposed for what he actually was. | 1 | 2,746 | 1,275 | ### 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:
benefit on the basis of certificate which has been cancelled by the High Power Caste Scrutiny Committee. 11. While applying the ratio of Milind as above, the High Court, however, failed to take note of the following clarification given in Dattatray (supra), regarding the ratio in Milind: - 5. ………But the said decision has no application to a case which does not relate to an admission to an educational institution, but relates to securing employment by wrongly claiming the benefit of reservation meant for Scheduled Tribes. When a person secures employment by making a false claim regarding caste/tribe, he deprives a legitimate candidate belonging to Scheduled Caste/Tribe, of employment. In such a situation, the proper course is to cancel the employment obtained on the basis of the false certificate so that the post may be filled up by a candidate who is entitled to the benefit of reservation. 12. The pronouncement in Dattatray clearly suggests that the High Court misapplied the ratio in Milind, since the appointment of the respondent no. 1 as Management Trainee (Technical), cannot be compared to the education and appointment of a medical doctor. 13. It must also be borne in mind that the Division Bench of the Chhattisgarh High Court in the common judgment in Writ Appeal No.531 of 2016 (State of Chhattisgarh & Ors. vs. Dinesh Kumar Sonkusre) had made the following observations: - 40. It would be pertinent to mention that the State of Chhattisgarh was formed w.e.f. 01.11.2000 and the judgment in Milind (supra) was rendered on 28.11.2000 and the protection can only be given to those who were actually Halba-Koshti or Koshti for the State of Madhya Pradesh and Chhattisgarh prior to 28.11.2000 and were therefore treated as Halbas. 41. Having held so, we want to clarify that the notification dated 11.1.2016 is not bad in law. It will however have to be read in the context of the law laid down by the Apex Court in various judgements as explained by us above. This notification may not apply to those petitioners who have obtained jobs prior to 28.11.2000 provided they have obtained Scheduled Tribe certificate bona fide and without suppression or misrepresentation of any facts. In case, a person is not a Halba Koshti in relation to State of Madhya Pradesh, then that person is not entitled to any protection of law. If a person has obtained a false certificate by misrepresentation of facts or providing wrong information, then that the person is also not entitled to any protection. It is only those who were actually Halba Koshti or Koshti believed that they were members of Halba, a Scheduled Tribe and who got jobs prior to 28.11.2000, are entitled to such protection. This protection cannot be extended to all and sundry. To give an example if Halba Koshti from the State of Maharashtra had shifted to State of Madhya Pradesh, then he would not be Halba Koshti belonging to Madhya Pradesh and as such, his certificate would be totally false and such a person would not be entitled to any protection. 14. As we notice, the High Court disregarded the Governments circular dated 11.01.2016 whereby the previous circular (01.10.2011) was cancelled with the specific observation that Milinds judgment was clarified subsequently in Dattatray, by declaring that when a person secures appointment on the basis of a false certificate, he cannot be permitted to retain the benefit of wrongful appointment. In fact, necessary actions were expected to be taken against those who secured unmerited appointment on the basis of false caste certificate. Pertinently, the respondent no.1 could have (but never did) challenge, the circular dated 11.01.2016 which required the Government to cancel such unmerited appointment. 15. As noted earlier, the respondent no.1 secured employment to a post earmarked for the reserved category, and there is a clear finding by the Caste Scrutiny Committee that the respondent no.1 does not belong to the Halba ST category. The Halba ST certificate (11.09.1987) on the basis of which the respondent No.1 secured employment was cancelled by the Committee on 15.07.2015, and such finding of the Caste Scrutiny Committee remain unchallenged till date. As a consequence, the respondent no.1 is disentitled to claim any equitable relief by virtue of his long service, particularly when he, despite the notice, avoided the proceedings of the Caste Scrutiny Committee. Also conspicuously, he does not challenge the adverse finding against him. Moreover, it is not the claim of the Respondent no.1 that he belongs to the ST category nor did he ever challenge the clarificatory circular (11.01.2016) which cancels the earlier circular (01.10.2011). In such circumstances, an opportunity to the respondent no.1 would be futile because he could not have claimed that he belongs to the ST category since his Halba caste certificate (issued on 11.09.1987) stood cancelled by the Committee. Consequently, as an OBC person, the respondent no.1 could not have been permitted to continue in a post meant for the ST category. The High Court, therefore, should not have granted relief by invoking the principles of natural justice, and by adverting to the ratio in Milind (supra) which was not applicable to the respondent no.1, and which eventually was clarified in Dattatray (supra). 16. The above would show that the High Court clearly fell into an error by granting relief to the respondent no.1 who is disentitled to claim any right to continue in a post earmarked for the ST category. The ratio in Milind (supra) was incorrectly applied in the impugned judgment since it is not the case of the respondent no.1 that he belongs to the ST category. According to our understanding of the circumstances, the High Court instead of granting equitable relief to the Respondent no. 1, should have held that he cannot continue to usurp the benefits meant for a ST category person. Indeed the Division Bench should have said the game is up as was pronounced by Shakespeare in the play Cymbeline when the character stood exposed for what he actually was.
### Response:
1
### Explanation:
interest on the arrears of salary nor any further benefit on the basis of certificate which has been cancelled by the High Power Caste Scrutiny Committee.11. While applying the ratio of Milind as above, the High Court, however, failed to take note of the following clarification given in Dattatray (supra), regarding the ratio in Milind: -5. ………But the said decision has no application to a case which does not relate to an admission to an educational institution, but relates to securing employment by wrongly claiming the benefit of reservation meant for Scheduled Tribes. When a person secures employment by making a false claim regarding caste/tribe, he deprives a legitimate candidate belonging to Scheduled Caste/Tribe, of employment. In such a situation, the proper course is to cancel the employment obtained on the basis of the false certificate so that the post may be filled up by a candidate who is entitled to the benefit of reservation.12. The pronouncement in Dattatray clearly suggests that the High Court misapplied the ratio in Milind, since the appointment of the respondent no. 1 as Management Trainee (Technical), cannot be compared to the education and appointment of a medical doctor.13. It must also be borne in mind that the Division Bench of the Chhattisgarh High Court in the common judgment in Writ Appeal No.531 of 2016 (State of Chhattisgarh & Ors. vs. Dinesh Kumar Sonkusre) had made the following observations: -40. It would be pertinent to mention that the State of Chhattisgarh was formed w.e.f. 01.11.2000 and the judgment in Milind (supra) was rendered on 28.11.2000 and the protection can only be given to those who were actually Halba-Koshti or Koshti for the State of Madhya Pradesh and Chhattisgarh prior to 28.11.2000 and were therefore treated as Halbas.41. Having held so, we want to clarify that the notification dated 11.1.2016 is not bad in law. It will however have to be read in the context of the law laid down by the Apex Court in various judgements as explained by us above. This notification may not apply to those petitioners who have obtained jobs prior to 28.11.2000 provided they have obtained Scheduled Tribe certificate bona fide and without suppression or misrepresentation of any facts. In case, a person is not a Halba Koshti in relation to State of Madhya Pradesh, then that person is not entitled to any protection of law. If a person has obtained a false certificate by misrepresentation of facts or providing wrong information, then that the person is also not entitled to any protection. It is only those who were actually Halba Koshti or Koshti believed that they were members of Halba, a Scheduled Tribe and who got jobs prior to 28.11.2000, are entitled to such protection. This protection cannot be extended to all and sundry. To give an example if Halba Koshti from the State of Maharashtra had shifted to State of Madhya Pradesh, then he would not be Halba Koshti belonging to Madhya Pradesh and as such, his certificate would be totally false and such a person would not be entitled to any protection.14. As we notice, the High Court disregarded the Governments circular dated 11.01.2016 whereby the previous circular (01.10.2011) was cancelled with the specific observation that Milinds judgment was clarified subsequently in Dattatray, by declaring that when a person secures appointment on the basis of a false certificate, he cannot be permitted to retain the benefit of wrongful appointment. In fact, necessary actions were expected to be taken against those who secured unmerited appointment on the basis of false caste certificate. Pertinently, the respondent no.1 could have (but never did) challenge, the circular dated 11.01.2016 which required the Government to cancel such unmerited appointment.15. As noted earlier, the respondent no.1 secured employment to a post earmarked for the reserved category, and there is a clear finding by the Caste Scrutiny Committee that the respondent no.1 does not belong to the Halba ST category. The Halba ST certificate (11.09.1987) on the basis of which the respondent No.1 secured employment was cancelled by the Committee on 15.07.2015, and such finding of the Caste Scrutiny Committee remain unchallenged till date. As a consequence, the respondent no.1 is disentitled to claim any equitable relief by virtue of his long service, particularly when he, despite the notice, avoided the proceedings of the Caste Scrutiny Committee. Also conspicuously, he does not challenge the adverse finding against him. Moreover, it is not the claim of the Respondent no.1 that he belongs to the ST category nor did he ever challenge the clarificatory circular (11.01.2016) which cancels the earlier circular (01.10.2011). In such circumstances, an opportunity to the respondent no.1 would be futile because he could not have claimed that he belongs to the ST category since his Halba caste certificate (issued on 11.09.1987) stood cancelled by the Committee. Consequently, as an OBC person, the respondent no.1 could not have been permitted to continue in a post meant for the ST category. The High Court, therefore, should not have granted relief by invoking the principles of natural justice, and by adverting to the ratio in Milind (supra) which was not applicable to the respondent no.1, and which eventually was clarified in Dattatray (supra).16. The above would show that the High Court clearly fell into an error by granting relief to the respondent no.1 who is disentitled to claim any right to continue in a post earmarked for the ST category. The ratio in Milind (supra) was incorrectly applied in the impugned judgment since it is not the case of the respondent no.1 that he belongs to the ST category. According to our understanding of the circumstances, the High Court instead of granting equitable relief to the Respondent no. 1, should have held that he cannot continue to usurp the benefits meant for a ST category person. Indeed the Division Bench should have said the game is up as was pronounced by Shakespeare in the play Cymbeline when the character stood exposed for what he actually was.
|
The First Additional Income-Tax Officer, Mysore Vs. H.N.S. Iyengar | . . . . . . . . . . . . . . . . . ." It is quite clear from this section that according in the Finance Act 1948, the income-tax was to be charged at the rates specified in the Schedule attached thereto for the year beginning on the 1st day of April, 1948, and the assessment was for the year ending on March 31, 1949 under sub-secs. (2) and (3) Thus according to the Indian Finance Act assessment was to be made for the year ending March 31, 1949 at rates specified for the year beginning April 1 1948. 6. Coming now to S. 22(1) it is there provided thatS. 22 (1) "The Income-tax Officer shall, on or before the 1st day of May in each year give notice by publication in the press and by publication in the prescribed manner, requiring every person whose total income during the previous year exceeded the maximum amount which is not chargeable to income-tax to furnish, within such period not being less than sixty days as may be specified in the notice a return, in the prescribed manner, setting forth (along with such other particulars as may be required by the notice) his total income and total world income during that year: . . . . . . . . . . . . . . . . . . . . . . . . . . ." It shows, therefore, that a return has to be made for the year of assessment in regard to the total income during the previous year which is the accounting year; in other words income-tax is assessed for the assessment year on total income of the previous year. 7. When under S. 34 (l)(a) a return is required the return has to be made under S. 22 for any year, and when the reference is to omission to make a return of the income under S. 22 for any year, the year is the assessment year, although the income which is declared relates to the previous year. The reference in cl. (a) of sub-s (1) to S. 22 of the Act therefore makes the meaning of the phrase "for any year"" referable to an assessment year. The clause makes it clear that an assessee can be called upon to make a full and true disclosure of all materials necessary for his assessment of that year which necessarily must mean an assessment year and it is in our opinion erroneous to say that a return under S. 22 of the assessees income for any year would have a different meaning in the first part from that dealing with the full and true disclosure of all material facts necessary for the assessment for that year. 8. With due respect to the learned Judges of the High Court who gave the decision, the view taken by them as to the meaning of "any year" was erroneous, and the correct way of interpreting S. 34 (1)(a) is that the words "for any year" mean for any assessment year and not for any accounting year because, as we have said above, the assessment is for the assessment year although of the income which accrued in the previous year. It may be added that the previous year for different heads of income falling under different sections of the Indian Income-tax Act may vary and it could not have been the intention of the Legislature to give different starting points of limitation for different sources of income. Reading the various sections of the Indian Income Tax Act which are set out above and the provisions of Indian Finance Act 1948 it is clear that the words "that year" in S. 34(1) (a) have reference to the assessment year and not the accounting year. 9. Our attention was drawn to a judgment of this court in Pannalal Nandlal v. Commr. of Income-tax. Bombay City, (1961) 41 ITR 76 : (AIR 1961 SC 446 ). In that case it was held that once a notice is given in the prescribed manner under S. 22(1) of the Income-tax Act every person whose income exceeds the maximum amount, exempt from tax, is obliged to submit a return, and, if he does not do so it will be deemed that there was an omission on his part within S. 34(1) (a). The question now debated was not raised there but it was observed that the notices had been issued within eight years from the end of the years of assessment and if cl. 1(a) of S. 34 was applied the assessment was not barred by the law of Limitation. It was also observed at Page 79 (of ITR) : (at p. 448 of AIR) that "the appellant not having submitted a return in pursuance of the notice issued under S. 22(1) the Income-tax Officer was competent under S. 34(1)(a) to issue notice at any time within eight years of the end of the year of assessment for assessing him to tax". 10. The appellant also relied upon C. W. Spencer v. Income-tax Officer, Madras, (1957) 31 ITR 107 : ((S) AIR 1957 Mad 133). It was there observed :"The period of limitation, whether it is eight years for cases falling under S. 34(1)(a) or four years falling under S. 34(1)(b), has to be computed from the end of that year. Though the expression "year" has not been further defined by S. 34 itself, it should be clear from the context to the section itself that the year referred to is the assessment year and has no reference to the accounting year, which is elsewhere specified by the Act itself as the previous year." 11. In our opinion therefore, the view taken by the Madras High Court in C. W. Spencers case, (1957) 31 ITR 107 : ( (S) AIR 1957 Mad 133 ) is the correct view and the view taken by the learned judges of the Mysore High Court is erroneous. | 1[ds]It is quite clear from this section that according in the Finance Act 1948, the income-tax was to be charged at the rates specified in the Schedule attached thereto for the year beginning on the 1st day of April, 1948, and the assessment was for the year ending on March 31, 1949 under sub-secs. (2) and (3) Thus according to the Indian Finance Act assessment was to be made for the year ending March 31, 1949 at rates specified for the year beginning April 1 1948It shows, therefore, that a return has to be made for the year of assessment in regard to the total income during the previous year which is the accounting year; in other words income-tax is assessed for the assessment year on total income of the previous yearyear. The clause makes it clear that an assessee can be called upon to make a full and true disclosure of all materials necessary for his assessment of that year which necessarily must mean an assessment year and it is in our opinion erroneous to say that a return under S. 22 of the assessees income for any year would have a different meaning in the first part from that dealing with the full and true disclosure of all material facts necessary for the assessment for that year8. With due respect to the learned Judges of the High Court who gave the decision, the view taken by them as to the meaning of "any year" was erroneous, and the correct way of interpreting S. 34 (1)(a) is that the words "for any year" mean for any assessment year and not for any accounting year because, as we have said above, the assessment is for the assessment year although of the income which accrued in the previous year. It may be added that the previous year for different heads of income falling under different sections of the Indian Income-tax Act may vary and it could not have been the intention of the Legislature to give different starting points of limitation for different sources of income. Reading the various sections of the Indian Income Tax Act which are set out above and the provisions of Indian Finance Act 1948 it is clear that the words "that year" in S. 34(1) (a) have reference to the assessment year and not the accounting yearIn our opinion therefore, the view taken by the Madras High Court in C. W. Spencers case, (1957) 31 ITR 107 : ( (S) AIR 1957 Mad 133 ) is the correct view and the view taken by the learned judges of the Mysore High Court is erroneous. | 1 | 2,124 | 486 | ### 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:
. . . . . . . . . . . . . . . . . ." It is quite clear from this section that according in the Finance Act 1948, the income-tax was to be charged at the rates specified in the Schedule attached thereto for the year beginning on the 1st day of April, 1948, and the assessment was for the year ending on March 31, 1949 under sub-secs. (2) and (3) Thus according to the Indian Finance Act assessment was to be made for the year ending March 31, 1949 at rates specified for the year beginning April 1 1948. 6. Coming now to S. 22(1) it is there provided thatS. 22 (1) "The Income-tax Officer shall, on or before the 1st day of May in each year give notice by publication in the press and by publication in the prescribed manner, requiring every person whose total income during the previous year exceeded the maximum amount which is not chargeable to income-tax to furnish, within such period not being less than sixty days as may be specified in the notice a return, in the prescribed manner, setting forth (along with such other particulars as may be required by the notice) his total income and total world income during that year: . . . . . . . . . . . . . . . . . . . . . . . . . . ." It shows, therefore, that a return has to be made for the year of assessment in regard to the total income during the previous year which is the accounting year; in other words income-tax is assessed for the assessment year on total income of the previous year. 7. When under S. 34 (l)(a) a return is required the return has to be made under S. 22 for any year, and when the reference is to omission to make a return of the income under S. 22 for any year, the year is the assessment year, although the income which is declared relates to the previous year. The reference in cl. (a) of sub-s (1) to S. 22 of the Act therefore makes the meaning of the phrase "for any year"" referable to an assessment year. The clause makes it clear that an assessee can be called upon to make a full and true disclosure of all materials necessary for his assessment of that year which necessarily must mean an assessment year and it is in our opinion erroneous to say that a return under S. 22 of the assessees income for any year would have a different meaning in the first part from that dealing with the full and true disclosure of all material facts necessary for the assessment for that year. 8. With due respect to the learned Judges of the High Court who gave the decision, the view taken by them as to the meaning of "any year" was erroneous, and the correct way of interpreting S. 34 (1)(a) is that the words "for any year" mean for any assessment year and not for any accounting year because, as we have said above, the assessment is for the assessment year although of the income which accrued in the previous year. It may be added that the previous year for different heads of income falling under different sections of the Indian Income-tax Act may vary and it could not have been the intention of the Legislature to give different starting points of limitation for different sources of income. Reading the various sections of the Indian Income Tax Act which are set out above and the provisions of Indian Finance Act 1948 it is clear that the words "that year" in S. 34(1) (a) have reference to the assessment year and not the accounting year. 9. Our attention was drawn to a judgment of this court in Pannalal Nandlal v. Commr. of Income-tax. Bombay City, (1961) 41 ITR 76 : (AIR 1961 SC 446 ). In that case it was held that once a notice is given in the prescribed manner under S. 22(1) of the Income-tax Act every person whose income exceeds the maximum amount, exempt from tax, is obliged to submit a return, and, if he does not do so it will be deemed that there was an omission on his part within S. 34(1) (a). The question now debated was not raised there but it was observed that the notices had been issued within eight years from the end of the years of assessment and if cl. 1(a) of S. 34 was applied the assessment was not barred by the law of Limitation. It was also observed at Page 79 (of ITR) : (at p. 448 of AIR) that "the appellant not having submitted a return in pursuance of the notice issued under S. 22(1) the Income-tax Officer was competent under S. 34(1)(a) to issue notice at any time within eight years of the end of the year of assessment for assessing him to tax". 10. The appellant also relied upon C. W. Spencer v. Income-tax Officer, Madras, (1957) 31 ITR 107 : ((S) AIR 1957 Mad 133). It was there observed :"The period of limitation, whether it is eight years for cases falling under S. 34(1)(a) or four years falling under S. 34(1)(b), has to be computed from the end of that year. Though the expression "year" has not been further defined by S. 34 itself, it should be clear from the context to the section itself that the year referred to is the assessment year and has no reference to the accounting year, which is elsewhere specified by the Act itself as the previous year." 11. In our opinion therefore, the view taken by the Madras High Court in C. W. Spencers case, (1957) 31 ITR 107 : ( (S) AIR 1957 Mad 133 ) is the correct view and the view taken by the learned judges of the Mysore High Court is erroneous.
### Response:
1
### Explanation:
It is quite clear from this section that according in the Finance Act 1948, the income-tax was to be charged at the rates specified in the Schedule attached thereto for the year beginning on the 1st day of April, 1948, and the assessment was for the year ending on March 31, 1949 under sub-secs. (2) and (3) Thus according to the Indian Finance Act assessment was to be made for the year ending March 31, 1949 at rates specified for the year beginning April 1 1948It shows, therefore, that a return has to be made for the year of assessment in regard to the total income during the previous year which is the accounting year; in other words income-tax is assessed for the assessment year on total income of the previous yearyear. The clause makes it clear that an assessee can be called upon to make a full and true disclosure of all materials necessary for his assessment of that year which necessarily must mean an assessment year and it is in our opinion erroneous to say that a return under S. 22 of the assessees income for any year would have a different meaning in the first part from that dealing with the full and true disclosure of all material facts necessary for the assessment for that year8. With due respect to the learned Judges of the High Court who gave the decision, the view taken by them as to the meaning of "any year" was erroneous, and the correct way of interpreting S. 34 (1)(a) is that the words "for any year" mean for any assessment year and not for any accounting year because, as we have said above, the assessment is for the assessment year although of the income which accrued in the previous year. It may be added that the previous year for different heads of income falling under different sections of the Indian Income-tax Act may vary and it could not have been the intention of the Legislature to give different starting points of limitation for different sources of income. Reading the various sections of the Indian Income Tax Act which are set out above and the provisions of Indian Finance Act 1948 it is clear that the words "that year" in S. 34(1) (a) have reference to the assessment year and not the accounting yearIn our opinion therefore, the view taken by the Madras High Court in C. W. Spencers case, (1957) 31 ITR 107 : ( (S) AIR 1957 Mad 133 ) is the correct view and the view taken by the learned judges of the Mysore High Court is erroneous.
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Engineering Kamgar Union Vs. M/S. Electro Steels Castings Ltd | If the proposal made by the State is limited qua the repugnancy of the State law and law or laws specified in the said proposal, then it cannot be said that the assent was granted qua the repugnancy between, the State law and other laws for which no assent was sought for. Take for illustration that a particular provision, namely, Section 3 of the State law is repugnant to enactment A made by Parliament, other provision namely Section 4 is repugnant to some provisions of enactment B made by Parliament and Sections 5 and 6 are repugnant to some provisions of enactment C and the State submits proposal seeking assent mentioning repugnancy between the State law and provisions of enactments A and B without mentioning anything with regard to enactment C. In this set of circumstances, if the assent of the President is obtained , the State law with regard to enactments A and B would prevail but with regard to C, there is no proposal and hence there is no consideration or assent. Proposal by the State pointing out repugnancy between the State law and of the law enacted by the Parliament is a sine qua non of consideration and assent. If there is no proposal, no question of consideration or assent arises. For finding out whether assent given by the President is restricted or unrestricted, the letter written or the proposal made by the State Government for obtaining assent is required to be looked into." 38. The question, however, is to be considered having regard to the fact situation obtaining herein. The conflict between the Central Act and the State Act was apparent. The State of Uttar Pradesh inserted Section 6V by Act No. 26 of 1983 being conscious of the fact that an Act had been passed to the contrary by the Parliament in terms of Act No. 46 of 1982. So long Chapter V-B was applicable to an industrial establishment engaging 300 or more persons, the State did not insert any provision and allowed the Parliament to occupy the field relating to layoff, retrenchment and closure of industrial undertakings. Only when the number of workmen having regard to the legislative policy as would appear from the Statements of Objects and Reasons was brought down to 100 from 300 for the purpose of applicability of Chapter V-B of the Central Act, the amendment was brought in by the State. The provisions contained in Section 6V by reason of the 1983 Amendment by the Legislature of the State of Uttar Pradesh must have made consciously in relation whereto only the legislation was reserved for the Presidential Assent. If the contention of the appellant was that the assent of the President was obtained without clearly informing him the purpose for which the same was sought for, it was necessary for them to raise such a plea in this behalf in the writ petition. Not only such a plea had not been raised in the writ petition or before the High Court, of such plea has been raised even in the Special Leave Petition. We agree with Mr. Jayant Bhushan that in such a situation, the appellant should not be permitted to raise the said question. We would, therefore, proceed on the presumption that the State amended the Act having regard to the provisions of the Central Act and the Presidential Assent was sought for only on account thereof. 39. Section 114(e) of the Union Evidence Act raises a presumption that all official acts must have been performed regularly. Section 114(f) of the said Act raises a presumption that the common course of business has been followed in particular cases. The said presumptions, therefore, would apply in this case also. In any event, we do not find any reason to allow the appellant to raise the said plea before this Court for the first time. Effect of Non-Obstante Clause: 40. The contention of Mr. Banerjee to the effect that Section 25J of the Central Act has been incorporated by reference in Section 25S cannot be accepted. Section 25S does not introduce a non-obstante clauses as regard Chapter V-A. Furthermore, Section 25J is not a part of Chapter V-B. By reason of Section 25S, the provisions of Chapter V-A were made applicable only in relation to certain establishments referred to in Chapter V-B. The Parliament has deliberately used the words so far as may be which would also indicate that provisions of Chapter V-B were to apply to the industrial establishments mentioned in Chapter V-A. The non-obstante clause contained in Section 25J does not apply to the entire Chapter V-B. Applicability of Chapter V-A in relation to the industrial establishments covered by Chapter V-B in terms of Section 25J vis-a-vis Section 25S is permissible but the contention cannot be taken any further so as to make Section 250 of the Central Act prevail over the State Act by taking recourse to the non-obstante clause. Non-obstante clause contained in Section 25J is, thus, required to be kept confined to Chapter V-A only and in that view of the matter we have no hesitation in holding that Chapter V-B does not have an overriding effect over the State Act.41. In any event, such a question could have arisen for consideration if the Central Act and the State Act had been enacted in terms of different entries of List I and List II of the Seventh Schedule of the Constitution of India. In this case, admittedly both the Central Act and the State Act had been enacted in terms of Entry 22 of List III of the Seventh Schedule of Constitution of India. In case of any conflict therefor the constitutional Scheme contained in Article 254 will have to be applied. Even if Section 255 of the State Act is read to have an overriding effect. Undoubtedly the provisions of the supreme lax shall prevail over a statute. A non-obstante clause contained in a statute cannot override the provisions of the Constitution of India.Conclusion: | 0[ds]. It may be true that the reason for amending Chapter V-B of the Central Act by reason of Act No. 46 of 1982 inter alia was to extend the beneficent provisions to workmen of small establishments by reducing the existing employment limit thence from 300 to 100. But it is equally true that the State Act was amended by Act No. 26 of 1983 after the amendment of the Central Act. It is not in dispute that Section 25K and Section 250 of the Central Act are in pari materia with Sections 6V and 6W of the State Act. We must also notice that whereas the Central Act received the Presidents Assent on 31.8.1982, the State Act received the Presidents Assent on 10.10.1983. It is also not in dispute that by reason of the State Act the Chapter relating to layoff retrenchment and closure was made applicable in relation to an industrial establishment wherein not less than 300 workmen are employed. The amending Act of 1982 was published in Gazette of India on 1.9.1982 and was given effect to form 21.8.1984 whereas the State Act was published in the U.P. Gazette on 12.10.1983 and was given effect to fromjurisdiction of the State Legislature to enact a law by a Parliamentary legislation is not impermissible. Subject to the provisions contained in Article 254 of the Constitution of India, both will operate in their respective fields. The Constitutional Scheme in this behalf is absolutely clear and unambiguous. In this case, this Court is not concerned with the conflicting legislations operating in the same field by reason of enactments made by the Parliament and the State in exercise of their respective legislative powers contained in List I and List II of the Seventh Schedule of Constitution of India but admittedly the field being the same, a question wouldas regard the effect of the one Act over the other in the event it is found that there exists a conflict. For the said purpose, it is not necessary that the conflict would be direct only in a case wherein the provisions of one Act would have to be disobeyed if the provisions of the other is followed. The conflict may exist even where both the laws lead to different legal results.Keeping in view the plain language used in Article 252(2) of the Constitution of India we are of the opinion that the State Act in the fact and circumstances of this case, keeping in view the Presidential Assent given thereto shall prevail over the Centralcontention of Mr. Banerjee to the effect that Section 25J of the Central Act has been incorporated by reference in Section 25S cannot be accepted. Section 25S does not introduce a non-obstante clauses as regard Chapter V-A. Furthermore, Section 25J is not a part of Chapter V-B. By reason of Section 25S, the provisions of Chapter V-A were made applicable only in relation to certain establishments referred to in Chapter V-B. The Parliament has deliberately used the words so far as may be which would also indicate that provisions of Chapter V-B were to apply to the industrial establishments mentioned in Chapter V-A. The non-obstante clause contained in Section 25J does not apply to the entire Chapter V-B. Applicability of Chapter V-A in relation to the industrial establishments covered by Chapter V-B in terms of Section 25J vis-a-vis Section 25S is permissible but the contention cannot be taken any further so as to make Section 250 of the Central Act prevail over the State Act by taking recourse to the non-obstante clause. Non-obstante clause contained in Section 25J is, thus, required to be kept confined to Chapter V-A only and in that view of the matter we have no hesitation in holding that Chapter V-B does not have an overriding effect over the State Act.41. In any event, such a question could have arisen for consideration if the Central Act and the State Act had been enacted in terms of different entries of List I and List II of the Seventh Schedule of the Constitution of India. In this case, admittedly both the Central Act and the State Act had been enacted in terms of Entry 22 of List III of the Seventh Schedule of Constitution of India. In case of any conflict therefor the constitutional Scheme contained in Article 254 will have to be applied. Even if Section 255 of the State Act is read to have an overriding effect. Undoubtedly the provisions of the supreme lax shall prevail over a statute. A non-obstante clause contained in a statute cannot override the provisions of the Constitution of India. | 0 | 7,670 | 819 | ### 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:
If the proposal made by the State is limited qua the repugnancy of the State law and law or laws specified in the said proposal, then it cannot be said that the assent was granted qua the repugnancy between, the State law and other laws for which no assent was sought for. Take for illustration that a particular provision, namely, Section 3 of the State law is repugnant to enactment A made by Parliament, other provision namely Section 4 is repugnant to some provisions of enactment B made by Parliament and Sections 5 and 6 are repugnant to some provisions of enactment C and the State submits proposal seeking assent mentioning repugnancy between the State law and provisions of enactments A and B without mentioning anything with regard to enactment C. In this set of circumstances, if the assent of the President is obtained , the State law with regard to enactments A and B would prevail but with regard to C, there is no proposal and hence there is no consideration or assent. Proposal by the State pointing out repugnancy between the State law and of the law enacted by the Parliament is a sine qua non of consideration and assent. If there is no proposal, no question of consideration or assent arises. For finding out whether assent given by the President is restricted or unrestricted, the letter written or the proposal made by the State Government for obtaining assent is required to be looked into." 38. The question, however, is to be considered having regard to the fact situation obtaining herein. The conflict between the Central Act and the State Act was apparent. The State of Uttar Pradesh inserted Section 6V by Act No. 26 of 1983 being conscious of the fact that an Act had been passed to the contrary by the Parliament in terms of Act No. 46 of 1982. So long Chapter V-B was applicable to an industrial establishment engaging 300 or more persons, the State did not insert any provision and allowed the Parliament to occupy the field relating to layoff, retrenchment and closure of industrial undertakings. Only when the number of workmen having regard to the legislative policy as would appear from the Statements of Objects and Reasons was brought down to 100 from 300 for the purpose of applicability of Chapter V-B of the Central Act, the amendment was brought in by the State. The provisions contained in Section 6V by reason of the 1983 Amendment by the Legislature of the State of Uttar Pradesh must have made consciously in relation whereto only the legislation was reserved for the Presidential Assent. If the contention of the appellant was that the assent of the President was obtained without clearly informing him the purpose for which the same was sought for, it was necessary for them to raise such a plea in this behalf in the writ petition. Not only such a plea had not been raised in the writ petition or before the High Court, of such plea has been raised even in the Special Leave Petition. We agree with Mr. Jayant Bhushan that in such a situation, the appellant should not be permitted to raise the said question. We would, therefore, proceed on the presumption that the State amended the Act having regard to the provisions of the Central Act and the Presidential Assent was sought for only on account thereof. 39. Section 114(e) of the Union Evidence Act raises a presumption that all official acts must have been performed regularly. Section 114(f) of the said Act raises a presumption that the common course of business has been followed in particular cases. The said presumptions, therefore, would apply in this case also. In any event, we do not find any reason to allow the appellant to raise the said plea before this Court for the first time. Effect of Non-Obstante Clause: 40. The contention of Mr. Banerjee to the effect that Section 25J of the Central Act has been incorporated by reference in Section 25S cannot be accepted. Section 25S does not introduce a non-obstante clauses as regard Chapter V-A. Furthermore, Section 25J is not a part of Chapter V-B. By reason of Section 25S, the provisions of Chapter V-A were made applicable only in relation to certain establishments referred to in Chapter V-B. The Parliament has deliberately used the words so far as may be which would also indicate that provisions of Chapter V-B were to apply to the industrial establishments mentioned in Chapter V-A. The non-obstante clause contained in Section 25J does not apply to the entire Chapter V-B. Applicability of Chapter V-A in relation to the industrial establishments covered by Chapter V-B in terms of Section 25J vis-a-vis Section 25S is permissible but the contention cannot be taken any further so as to make Section 250 of the Central Act prevail over the State Act by taking recourse to the non-obstante clause. Non-obstante clause contained in Section 25J is, thus, required to be kept confined to Chapter V-A only and in that view of the matter we have no hesitation in holding that Chapter V-B does not have an overriding effect over the State Act.41. In any event, such a question could have arisen for consideration if the Central Act and the State Act had been enacted in terms of different entries of List I and List II of the Seventh Schedule of the Constitution of India. In this case, admittedly both the Central Act and the State Act had been enacted in terms of Entry 22 of List III of the Seventh Schedule of Constitution of India. In case of any conflict therefor the constitutional Scheme contained in Article 254 will have to be applied. Even if Section 255 of the State Act is read to have an overriding effect. Undoubtedly the provisions of the supreme lax shall prevail over a statute. A non-obstante clause contained in a statute cannot override the provisions of the Constitution of India.Conclusion:
### Response:
0
### Explanation:
. It may be true that the reason for amending Chapter V-B of the Central Act by reason of Act No. 46 of 1982 inter alia was to extend the beneficent provisions to workmen of small establishments by reducing the existing employment limit thence from 300 to 100. But it is equally true that the State Act was amended by Act No. 26 of 1983 after the amendment of the Central Act. It is not in dispute that Section 25K and Section 250 of the Central Act are in pari materia with Sections 6V and 6W of the State Act. We must also notice that whereas the Central Act received the Presidents Assent on 31.8.1982, the State Act received the Presidents Assent on 10.10.1983. It is also not in dispute that by reason of the State Act the Chapter relating to layoff retrenchment and closure was made applicable in relation to an industrial establishment wherein not less than 300 workmen are employed. The amending Act of 1982 was published in Gazette of India on 1.9.1982 and was given effect to form 21.8.1984 whereas the State Act was published in the U.P. Gazette on 12.10.1983 and was given effect to fromjurisdiction of the State Legislature to enact a law by a Parliamentary legislation is not impermissible. Subject to the provisions contained in Article 254 of the Constitution of India, both will operate in their respective fields. The Constitutional Scheme in this behalf is absolutely clear and unambiguous. In this case, this Court is not concerned with the conflicting legislations operating in the same field by reason of enactments made by the Parliament and the State in exercise of their respective legislative powers contained in List I and List II of the Seventh Schedule of Constitution of India but admittedly the field being the same, a question wouldas regard the effect of the one Act over the other in the event it is found that there exists a conflict. For the said purpose, it is not necessary that the conflict would be direct only in a case wherein the provisions of one Act would have to be disobeyed if the provisions of the other is followed. The conflict may exist even where both the laws lead to different legal results.Keeping in view the plain language used in Article 252(2) of the Constitution of India we are of the opinion that the State Act in the fact and circumstances of this case, keeping in view the Presidential Assent given thereto shall prevail over the Centralcontention of Mr. Banerjee to the effect that Section 25J of the Central Act has been incorporated by reference in Section 25S cannot be accepted. Section 25S does not introduce a non-obstante clauses as regard Chapter V-A. Furthermore, Section 25J is not a part of Chapter V-B. By reason of Section 25S, the provisions of Chapter V-A were made applicable only in relation to certain establishments referred to in Chapter V-B. The Parliament has deliberately used the words so far as may be which would also indicate that provisions of Chapter V-B were to apply to the industrial establishments mentioned in Chapter V-A. The non-obstante clause contained in Section 25J does not apply to the entire Chapter V-B. Applicability of Chapter V-A in relation to the industrial establishments covered by Chapter V-B in terms of Section 25J vis-a-vis Section 25S is permissible but the contention cannot be taken any further so as to make Section 250 of the Central Act prevail over the State Act by taking recourse to the non-obstante clause. Non-obstante clause contained in Section 25J is, thus, required to be kept confined to Chapter V-A only and in that view of the matter we have no hesitation in holding that Chapter V-B does not have an overriding effect over the State Act.41. In any event, such a question could have arisen for consideration if the Central Act and the State Act had been enacted in terms of different entries of List I and List II of the Seventh Schedule of the Constitution of India. In this case, admittedly both the Central Act and the State Act had been enacted in terms of Entry 22 of List III of the Seventh Schedule of Constitution of India. In case of any conflict therefor the constitutional Scheme contained in Article 254 will have to be applied. Even if Section 255 of the State Act is read to have an overriding effect. Undoubtedly the provisions of the supreme lax shall prevail over a statute. A non-obstante clause contained in a statute cannot override the provisions of the Constitution of India.
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OMKAR SINHA & ANR Vs. SAHADAT KHAN & ORS | Thereafter, as is true with any Government decision, of the nature involved, it is a time consuming affair. What is relevant is the legality of the matter and therefore, for the validity of the matter if it is a Government order, it has to be an order of the Governor, which he agrees with the learned senior counsel for the appellants, was passed only with the issuance of order dated 11.06.2012. He would further point out that the Court may not overlook the fact that the case of the writ petitioners in the writ petition was not based essentially on the withdrawal of the order dated 17.10.1977 by order dated 14.05.2009. Instead, the case was based on the order dated 17.10.1977 being completely eclipsed and suffering a natural death as a result of the issuance of the communication which is dated 14.12.2009. He would further submit that there is also no merit in the complaint that order dated 17.10.1977 was ultra vires. He would point out that actually under the Rules which were extant while there was a certain number of years to roll by as a Forest Guard before a person could be considered for promotion as Forester, in accordance with Rule 6(4) of the erstwhile Rules, however, the Government may prescribe by order, procedure which may be at variance from the existing rules. Therefore, the order dated 17.10.1977 was projected to be one such exercise. What is more, even in the newly enacted Rules for the State of Chhattisgarh, a provision corresponding to Rule 6(4) has been enacted. So, there is no merit in the case of the ultra vires also. 14. We think it is unnecessary to again burden the judgment with copious reference to case law as we have already referred to the paragraphs as contained in the Constitution Bench of this Court in Bachhittar Singh (supra). What is relevant is that under the Rules, Rule 14(1) provided for promotion from the post of Guard to Forester. Under the same, we notice Schedule IV. It is provided that a Forest Guard could be promoted after three years after training from the Forest Guards Training School or after 12 years or more years of service in the case of untrained Forest Guards. However, we must notice Rule 6. Rule 6 of the said Rules provides for method of recruitment. Rule 6 inter alia provides that recruitment to the service after commencement of the Rules which we notice is in the year 1967, can be made inter alia by promotion of members of the service mentioned in column 12 of Schedule IV. Thereafter what is relevant is sub Rule (4): (4) Notwithstanding anything contained in sub-rule (1), if in the opinion of the Government the exigencies of the service so require, the Government may adopt such methods of recruitment to the service other than those specified in the said sub-rule, as it may, by order issued in this behalf, prescribe. Therefore, it would appear to be the case of the State that it is not as if the 1977 order was in any manner contrary to the statutory rules and it was very much premised on the statutory rules. 15. We have already noticed the factual position. The appellants undoubtedly stood first in the training programme during the training as Forest Guards. There was a reorganisation of the State as we have noticed. The Government Order which would appear to be a Government Order in the undivided State of Madhya Pradesh continued in terms of the Reorganisation Act. Such Government Orders of the undivided State of Madhya Pradesh would undoubtedly continue to hold the field till it was revoked in the manner known to law. The Division Bench in the impugned judgment has proceeded on the basis that the Order dated 17.10.1977 was revoked by order dated 14.05.2009. It is, undoubtedly, true that in the said communication, it is addressed by the Secretary to the Principal Chief Forest Conservator. The proposed strike and the decision taken is referred to. At the same time, it all ends by requesting that the necessary proposal be submitted. It is thereafter that communication dated 14.12.2009 came to be made. Communication dated 14.12.2009 is not an order of the Governor or expressed to be made in his name. It is a communication, no doubt, issued by a Chief Forest Conservator. Therein, no doubt, reference is made to the demands made by the Employees Union and that the decision had been taken to give two additional increments to the trainees who stood first in the Forest Guard training in replacement of the earlier incentive of sending them for training as Forester. It is also stated that there is no need to send the candidates who stood first in the Forest Guard training for training as Forester. It is reiterated that as per the directions of the Chhattisgarh Government, the trainees who stood first are entitled for only 02 additional increments. We must notice that this communication does not bear the insignia of a Government Order, which alone would suffice to show that order dated 17.10.1977 stood withdrawn. Whereas we would find that the communication dated 11.06.2012 contains two specific signs. Firstly, it is expressly made in the name of the Governor. Secondly, it specifically revokes the communication dated 17.10.1977. The Division Bench has proceeded to consider the case based on the communication dated 14.05.2009 which we must note is a case which even the writ petitioners did not have. A perusal of the pleadings of the writ petition would show that the case of the writ petitioners was premised on the order dated 14.12.2009 bringing about the revocation of the order dated 17.10.77. Even the petitioners did not, in other words, set up a case that 14.05.2009 is an order revoking 14.05.2009. In matters of this nature, the role of proper pleadings must be emphasised for the parties join issue on the basis of the case which has been built up before the Court. | 1[ds]14. We think it is unnecessary to again burden the judgment with copious reference to case law as we have already referred to the paragraphs as contained in the Constitution Bench of this Court in Bachhittar Singh (supra).What is relevant is that under the Rules, Rule 14(1) provided for promotion from the post of Guard to Forester. Under the same, we notice Schedule IV. It is provided that a Forest Guard could be promoted after three years after training from the Forest Guards Training School or after 12 years or more years of service in the case of untrained Forest Guards. However, we must notice Rule 6. Rule 6 of the said Rules provides for method of recruitment.Rule 6 inter alia provides that recruitment to the service after commencement of the Rules which we notice is in the year 1967, can be made inter alia by promotion of members of the service mentioned in column 12 of Schedule IV. Thereafter what is relevant is sub Rule (4):(4) Notwithstanding anything contained in sub-rule (1), if in the opinion of the Government the exigencies of the service so require, the Government may adopt such methods of recruitment to the service other than those specified in the said sub-rule, as it may, by order issued in this behalf, prescribe.Therefore, it would appear to be the case of the State that it is not as if the 1977 order was in any manner contrary to the statutory rules and it was very much premised on the statutory rules.15. We have already noticed the factual position. The appellants undoubtedly stood first in the training programme during the training as Forest Guards. There was a reorganisation of the State as we have noticed. The Government Order which would appear to be a Government Order in the undivided State of Madhya Pradesh continued in terms of the Reorganisation Act. Such Government Orders of the undivided State of Madhya Pradesh would undoubtedly continue to hold the field till it was revoked in the manner known to law. The Division Bench in the impugned judgment has proceeded on the basis that the Order dated 17.10.1977 was revoked by order dated 14.05.2009. It is, undoubtedly, true that in the said communication, it is addressed by the Secretary to the Principal. The proposed strike and the decision taken is referred to. At the same time, it all ends by requesting that the necessary proposal be submitted. It is thereafter that communication dated 14.12.2009 came to be made. Communication dated 14.12.2009 is not an order of the Governor or expressed to be made in his name. It is a communication, no doubt, issued by a. Therein, no doubt, reference is made to the demands made by the Employees Union and that the decision had been taken to give two additional increments to the trainees who stood first in the Forest Guard training in replacement of the earlier incentive of sending them for training as Forester. It is also stated that there is no need to send the candidates who stood first in the Forest Guard training for training as Forester. It is reiterated that as per the directions of the Chhattisgarh Government, the trainees who stood first are entitled for only 02 additional increments. We must notice that this communication does not bear the insignia of a Government Order, which alone would suffice to show that order dated 17.10.1977 stood withdrawn. Whereas we would find that the communication dated 11.06.2012 contains two specific signs. Firstly, it is expressly made in the name of the Governor. Secondly, it specifically revokes the communication dated 17.10.1977. The Division Bench has proceeded to consider the case based on the communication dated 14.05.2009 which we must note is a case which even the writ petitioners did not have. A perusal of the pleadings of the writ petition would show that the case of the writ petitioners was premised on the order dated 14.12.2009 bringing about the revocation of the order dated 17.10.77. Even the petitioners did not, in other words, set up a case that 14.05.2009 is an order revoking 14.05.2009. In matters of this nature, the role of proper pleadings must be emphasised for the parties join issue on the basis of the case which has been built up before the Court. | 1 | 4,693 | 789 | ### 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:
Thereafter, as is true with any Government decision, of the nature involved, it is a time consuming affair. What is relevant is the legality of the matter and therefore, for the validity of the matter if it is a Government order, it has to be an order of the Governor, which he agrees with the learned senior counsel for the appellants, was passed only with the issuance of order dated 11.06.2012. He would further point out that the Court may not overlook the fact that the case of the writ petitioners in the writ petition was not based essentially on the withdrawal of the order dated 17.10.1977 by order dated 14.05.2009. Instead, the case was based on the order dated 17.10.1977 being completely eclipsed and suffering a natural death as a result of the issuance of the communication which is dated 14.12.2009. He would further submit that there is also no merit in the complaint that order dated 17.10.1977 was ultra vires. He would point out that actually under the Rules which were extant while there was a certain number of years to roll by as a Forest Guard before a person could be considered for promotion as Forester, in accordance with Rule 6(4) of the erstwhile Rules, however, the Government may prescribe by order, procedure which may be at variance from the existing rules. Therefore, the order dated 17.10.1977 was projected to be one such exercise. What is more, even in the newly enacted Rules for the State of Chhattisgarh, a provision corresponding to Rule 6(4) has been enacted. So, there is no merit in the case of the ultra vires also. 14. We think it is unnecessary to again burden the judgment with copious reference to case law as we have already referred to the paragraphs as contained in the Constitution Bench of this Court in Bachhittar Singh (supra). What is relevant is that under the Rules, Rule 14(1) provided for promotion from the post of Guard to Forester. Under the same, we notice Schedule IV. It is provided that a Forest Guard could be promoted after three years after training from the Forest Guards Training School or after 12 years or more years of service in the case of untrained Forest Guards. However, we must notice Rule 6. Rule 6 of the said Rules provides for method of recruitment. Rule 6 inter alia provides that recruitment to the service after commencement of the Rules which we notice is in the year 1967, can be made inter alia by promotion of members of the service mentioned in column 12 of Schedule IV. Thereafter what is relevant is sub Rule (4): (4) Notwithstanding anything contained in sub-rule (1), if in the opinion of the Government the exigencies of the service so require, the Government may adopt such methods of recruitment to the service other than those specified in the said sub-rule, as it may, by order issued in this behalf, prescribe. Therefore, it would appear to be the case of the State that it is not as if the 1977 order was in any manner contrary to the statutory rules and it was very much premised on the statutory rules. 15. We have already noticed the factual position. The appellants undoubtedly stood first in the training programme during the training as Forest Guards. There was a reorganisation of the State as we have noticed. The Government Order which would appear to be a Government Order in the undivided State of Madhya Pradesh continued in terms of the Reorganisation Act. Such Government Orders of the undivided State of Madhya Pradesh would undoubtedly continue to hold the field till it was revoked in the manner known to law. The Division Bench in the impugned judgment has proceeded on the basis that the Order dated 17.10.1977 was revoked by order dated 14.05.2009. It is, undoubtedly, true that in the said communication, it is addressed by the Secretary to the Principal Chief Forest Conservator. The proposed strike and the decision taken is referred to. At the same time, it all ends by requesting that the necessary proposal be submitted. It is thereafter that communication dated 14.12.2009 came to be made. Communication dated 14.12.2009 is not an order of the Governor or expressed to be made in his name. It is a communication, no doubt, issued by a Chief Forest Conservator. Therein, no doubt, reference is made to the demands made by the Employees Union and that the decision had been taken to give two additional increments to the trainees who stood first in the Forest Guard training in replacement of the earlier incentive of sending them for training as Forester. It is also stated that there is no need to send the candidates who stood first in the Forest Guard training for training as Forester. It is reiterated that as per the directions of the Chhattisgarh Government, the trainees who stood first are entitled for only 02 additional increments. We must notice that this communication does not bear the insignia of a Government Order, which alone would suffice to show that order dated 17.10.1977 stood withdrawn. Whereas we would find that the communication dated 11.06.2012 contains two specific signs. Firstly, it is expressly made in the name of the Governor. Secondly, it specifically revokes the communication dated 17.10.1977. The Division Bench has proceeded to consider the case based on the communication dated 14.05.2009 which we must note is a case which even the writ petitioners did not have. A perusal of the pleadings of the writ petition would show that the case of the writ petitioners was premised on the order dated 14.12.2009 bringing about the revocation of the order dated 17.10.77. Even the petitioners did not, in other words, set up a case that 14.05.2009 is an order revoking 14.05.2009. In matters of this nature, the role of proper pleadings must be emphasised for the parties join issue on the basis of the case which has been built up before the Court.
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14. We think it is unnecessary to again burden the judgment with copious reference to case law as we have already referred to the paragraphs as contained in the Constitution Bench of this Court in Bachhittar Singh (supra).What is relevant is that under the Rules, Rule 14(1) provided for promotion from the post of Guard to Forester. Under the same, we notice Schedule IV. It is provided that a Forest Guard could be promoted after three years after training from the Forest Guards Training School or after 12 years or more years of service in the case of untrained Forest Guards. However, we must notice Rule 6. Rule 6 of the said Rules provides for method of recruitment.Rule 6 inter alia provides that recruitment to the service after commencement of the Rules which we notice is in the year 1967, can be made inter alia by promotion of members of the service mentioned in column 12 of Schedule IV. Thereafter what is relevant is sub Rule (4):(4) Notwithstanding anything contained in sub-rule (1), if in the opinion of the Government the exigencies of the service so require, the Government may adopt such methods of recruitment to the service other than those specified in the said sub-rule, as it may, by order issued in this behalf, prescribe.Therefore, it would appear to be the case of the State that it is not as if the 1977 order was in any manner contrary to the statutory rules and it was very much premised on the statutory rules.15. We have already noticed the factual position. The appellants undoubtedly stood first in the training programme during the training as Forest Guards. There was a reorganisation of the State as we have noticed. The Government Order which would appear to be a Government Order in the undivided State of Madhya Pradesh continued in terms of the Reorganisation Act. Such Government Orders of the undivided State of Madhya Pradesh would undoubtedly continue to hold the field till it was revoked in the manner known to law. The Division Bench in the impugned judgment has proceeded on the basis that the Order dated 17.10.1977 was revoked by order dated 14.05.2009. It is, undoubtedly, true that in the said communication, it is addressed by the Secretary to the Principal. The proposed strike and the decision taken is referred to. At the same time, it all ends by requesting that the necessary proposal be submitted. It is thereafter that communication dated 14.12.2009 came to be made. Communication dated 14.12.2009 is not an order of the Governor or expressed to be made in his name. It is a communication, no doubt, issued by a. Therein, no doubt, reference is made to the demands made by the Employees Union and that the decision had been taken to give two additional increments to the trainees who stood first in the Forest Guard training in replacement of the earlier incentive of sending them for training as Forester. It is also stated that there is no need to send the candidates who stood first in the Forest Guard training for training as Forester. It is reiterated that as per the directions of the Chhattisgarh Government, the trainees who stood first are entitled for only 02 additional increments. We must notice that this communication does not bear the insignia of a Government Order, which alone would suffice to show that order dated 17.10.1977 stood withdrawn. Whereas we would find that the communication dated 11.06.2012 contains two specific signs. Firstly, it is expressly made in the name of the Governor. Secondly, it specifically revokes the communication dated 17.10.1977. The Division Bench has proceeded to consider the case based on the communication dated 14.05.2009 which we must note is a case which even the writ petitioners did not have. A perusal of the pleadings of the writ petition would show that the case of the writ petitioners was premised on the order dated 14.12.2009 bringing about the revocation of the order dated 17.10.77. Even the petitioners did not, in other words, set up a case that 14.05.2009 is an order revoking 14.05.2009. In matters of this nature, the role of proper pleadings must be emphasised for the parties join issue on the basis of the case which has been built up before the Court.
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Chalisgaon Shri Laxmi Narayan Mills Company Limited Vs. Armitlal Kalidas, Kanji | language of the section, damages are awarded in exceptional cases on the footing that the other party was aware of the circumstances which entitled the claimant to damages on the other footing. In this second class of cases damages are occasionally awarded on the footing of loss of profits because of knowledge of the promisee or the other party. The relevant circumstances in connection with the claim for damages in this case may be summarised as follows:-22. At the date of the contract as well as the breach thereof, contracts relating to export of cloth were governed by the provisions of the Export Trade Control Act and the Cotton Control Order. The result of the above circumstance was that there was in fact no open market for purchase and sale of cloth for export. Even so it was quite possible that the defendants Mills or other Mills may have made contract for export of cloth on or before July 31, 1951. The plaintiffs evidence in this case is that the goods of the description which the defendants had agreed to sell to him were not available in market for export. It would have been easy for the defendants to produce their own contracts for sale for export at relevant times if there was open market for purchase and sale of cloth for cloth for export at material dates. The defendants have not produced any such contracts. This case must, therefore, be decided on the footing that there was no open market for sale and purchase of the cloth of the contract quality for export at relevant date viz July 31, 1951.23. It is established beyond doubt that to the knowledge of defendants the contract in suit was made for export of cloth. The plaintiff has established that he had contracted to export the cloth to foreign purchasers in Africa. Having regard to non-existence of open market at the material time the plaintiff claimed damages on the footing that he was entitled to loss of profits on the footing of the contracts that he had made with foreign purchasers. The learned Judge appears to have accepted that position and considered the evidence led on behalf of the plaintiff on that footing. There are 3 contracts, Exhs. 172, 173 and 174, which the plaintiff made for re-sale of the whole of the quantity of the contract goods on August 14, 1950. Exh. 172 is for sale or 49,693 yards at the rate of Rs. 1-3-0 per yard F.O.B. Bombay to Messrs. Rawji Amarsi and Co., Mombasa. Exh. 173 is for sale of 50,000 yards at the rate of Rs. 1-3-0 per yard F.O.B. Bombay to Messrs. Kalidas Kanji (Africa) Ltd., Mombasa. Exh. 174 is for sale of 50,000 yards on the same terms as to price to Messrs Juthalal Velji Ltd., Daresselaam, The plaintiff led his own evidence as also evidence of partners and directors of the above foreign contracting parties to prove the above contracts. The plaintiff admitted that for the consignment of the goods to the foreign parties he had to take delivery of the grey calendar cloth from the defendants Mills and to have it processed and thereafter shipped the same from Bombay. The plaintiff led conclusive evidence to prove the expenses that he incurred in connection with processing and up to the stage of putting the same on board of steam-ship as regards the 49,693 yards grey calendar cloth. That evidence is contained in the accounts, which are Exhs. 186 and 198. The evidence led by the plaintiff conclusively proves that the plaintiff spent Re. 0-2-11 per yard for processing, dyeing and transporting the goods from Chalisgaon to Bombay and thereafter shipping the same. This however, does not include the amount of export duty that the plaintiff was bound to pay at the date of breach if the goods were delivered and shipped. It is also necessary to record that it is clear from the correspondence that has been tendered that the foreign purchasers were willing to accept delivery of these goods at the contract rate of Rs. 1-3-0 per yard F.O.B. Bombay as late as May 1951. The plaintiffs case throughout was that as at the date of breach purchasers in Africa were willing to make contracts for export of cloth on July 31, 1951 at the rate of Rs. 1-3-0 per yard F.O.B. Bombay. As there was no open market for purchasing cloth for export at the date of breach and as to the knowledge of the defendants the contract in suit was made for export purposes only, the damages in this case can be ascertained by relying upon the market rate for export contracts for Africa that were available at the date of breach. The plaintiff proved by his above evidence that at the date of breach the market rate was Rs. 1-3-0 per yard F.O.B. Bombay. From that market rate the expenses for processing and shipping of the goods at the rate of Re. 0-2-11 per yard as deposed to by the plaintiff must be deducted. Now this rate of Re. 0-2-11 per yard does not include the further expense which the plaintiff as exporter would have to bear as regards the payment of export duty. Without considering the amount of export duty on the above basis, the learned Judge calculated the damages payable in respect of 1,00,000 yards of cloth at Rs. 32,812-8-0. From out of this amount awarded to the plaintiff, the export duty expense which the plaintiff was bound to incur in connection with these goods if they were shipped must be deducted. Both Mr. Daji and Mr. Divekar have informed us that the amount of export duty in respect of 1,00,000 yards of goods would come to Rs. 17,187-8-0. The plaintiff accordingly would be entitled to damages only in the sum or Rs. 15,625. The damages as awarded by the trial court will be set aside.24. These were the only contentions made on behalf of the Appellants in this case. | 1[ds]Now it is true that under the contract between the parties, the delivery was to be ejected by the defendants Millsgodown at Chalisgaon it is also true that in term 1 in the provisional contract it is provided that delivery of the goods will be given against cash payment. In this connection, it is also necessary always to bear in mind that at all material times transactions between the manufacturing Mills and the purchasers of cloth for export were governed, inter alia, by the provisions of the Export Control Act and the Cotton control Order. Manufacture of cloth was controlled in the widest possible manner. In connection with the cloth manufacture, it was impossible for the purchasers to know the quantities manufactured and as to whether the manufacturing Mills were in a position, to effect delivery of the goods contracted to be sold. As is shown by the correspondence that is en record, it is clear that in connection with the goods to be manufacture for delivery under the contract in suit, the plaintiff repeatedly wrote to the defendants Mills inquiring about the manufacture of the contract goods and the probable dates for delivery thereof. In the correspondence the defendants Mills continuously informed the plaintiff that the goods were not ready for delivery, in connection with their liability to make deposit, the plaintiff made initial deposit of Rs. 25,000 as required. When the plaintiff was informed in August 1950 by delivery of pro forma invoice of the defendants Mills that 49,596 yards were ready for delivery the plaintiff immediately in accordance with the provisions in the contract and what had been discussed between the parties in correspondence paid in cash Rs.and made available, from out of the initial deposit of Rs. 25000 Rs. 10,000. The plaintiff thus in fact paid the total price of Rs.that was shown by the Defendants Mills in theirinvoice as payable towards the price on the goods. In spite of the above payments made by the plaintiff in August 1950, the defendants Mills failed and neglected to give delivery of the quantity mentioned in theinvoice (49,693 yards), till 7th June 1952 in spite of the conduct of the defendants Mills in neglecting delivery even of these goods, the plaintiff repeatedly in correspondence made demands not only of these goods, out also of the whole of the contract quantity of the goods. The defendants continuously expressed their inability to effect delivery of the goods offered as well as the balance of goods. Even so, the plaintiff from time to time for the convenience of parties agreed to extend time for delivery of the goods to 31st July 1951. It is abundantly clear that the plaintiff was throughout ready and willing to pay the price of goods, if they were manufactured and offered or available for delivery by the defendants. The defendants in fact having received the price of 49,596 yards of the contract goods in August 1950 effected delivery thereof after expiry of due date in June 1952. The defendants willfully committed breach of the contract by expressing their inability to effect delivery of the remaining goods, it is difficult to appreciate now under these circumstances the contention made as above by Mr. Divekar can be accepted in our view, the plaintiff was always ready and wining to pay cash against delivery. The defendants were willfully negligent in effecting delivery. In those circumstances the plaintiff was not bound to tender price in cash or at all. The first contention must, therefore bethis observation of their Lordships, in our view, applies to the facts of this case in all particulars. The present suit is a suit against a company which is being wound up by the Court. As regards this suit, in accordance with the observations of Their Lordships, the date of the institution of the suit is not the factual true date being June 6, 1955, but for the purposes of Section 3 it stands advanced to an earlier date, viz. the date when the plaintiff lodged his claim in the first instance before the joint liquidators, i.e. June 14, 1952. That being the true position, having regard to the observations of Their Lordships, in this case we must hold that this suit though in truth instituted on June 6, 1955, was in law instituted on June 14, 1952. The result is that the suit was filed within about 11 month and 2 weeks from the date of breech being July 31, 1951.12. The further observations as contained in the case of 60 Ind App 13 : (AIR 1933 PC 63 ) also support the view that the application before the joint liquidators can he considered to be a civil proceeding instituted in a Court within the meaning of those words in Section 14 of the Limitationwould have been some difficulty in accepting the contention of Mr. Daji that the liquidators must be considered as the Court of first instance, if the language of the explanation to Section 3 as quoted above was not clear in providing that a claim lodged before the liquidator is relevant, in connection with a suit against a company in liquidation. It is also clear having regard to, the provisions of the Companies Act that all claims in respect of a company in winding up must be made by lodging them before the liquidator. It is not necessary or compulsory for any party having a claim against a company in liquidation to file a suit for recovering the amount cue to the party. It is, on the contrary, necessary under the provisions of the Companies Act that ordinarily a creditor of a company in winding up must initially lodge a claim for me amount due to him before the liquidator in accordance win the scheme prescribed by the Companies Act. The Act further provides for appeal and reference to the Civil court for decision in the ultimate instance of the claims preferred before the liquidator. In appeals before the Court, the decisions of liquidator are liable to be confirmed, modified and altered in all respects. It is having regard to that scheme that the Companies Act provides that as against a company ordered to be wound up no suit or proceedings could be continued or commenced except by leave of the Court, it la in the light of these provisions and the scheme of the Companies Act that we have come to the conclusion mat a claim lodged before a liquidator of a company ordered to be wound up must be held to be a civil proceeding mea Before a Court of first instance as provided in Section 14 of the Limitation Act. An extremely difficult and absurd position must arise if this is not the true construction on the provisions of Section 14 of the Limitation Act. In spite of a claim duly lodged before the liquidator having been fought out in the ultimate Court, it would be permission or the defendants in a further suit which may have to be filed to contend that the time that was taken in the proceedings before the liquidator cannot be excluded in computation of the period of limitation, in our view, the provisions of the Companies Act and the scheme therein provided for proof of claims by lodging the same before the liquidator were not intended to bring about such a situation.14. In this connection, we may observe that similar questions have arisen having regard to the provisions in the insolvency Law and the Courts have always field that where claims could be lodged before receivers and official assignees the time taken in infructuous proceedings before the receivers and the official assignees was liable to be excluded in computing the period of limitation.15. We cannot accept the contention made by. Mr. Divekar that the claim of the plaintiff was not rejected by we court on the grounds as mentioned in Section 14 of the Limitation Act, viz. from defect of jurisdiction or other cause of a like nature. The claim of the plaintiff before the liquidators was ultimately rejected by the District Judge only on the ground that it was a claim for damages and could not be therefore disposed of summarily in the proceedings by way of claim. The District Judge himself directed the plaintiff to file this suit if he wanted to substantiate ms claim. It was hereafter that the District Judge dealing with the defendants Mills in winding up gave leave for tiling this suit. This rejection of the plaintiffs claim lodged before the liquidators, in our view, must be held to be rejection though not on the ground of detect of jurisdiction, in any event, on the cause of a like nature. It was permissible for the District Judge to deal completely with the claim of the plaintiff. He, however, appears to have felt difficulty in summarily dealing with the plaintiffs claim. He accordingly rejected the claim and directed the plaintiff to tile the suit. These must be held to be the circumstances indicating the cause of a like nature within the meaning of that phrase in Section 14 of the Limitation Act. Having regard to the above findings, in our view, the period that expired between June 14, 1952 and April 30, 1955, must be excluded in computing the period of limitation for the filing of this suit.Having regard to what we have observed above, the contention made by Mr. Divekar that the plaintiffs sun was barred by the Law of Limitation must beonly ground on which the amount of export duty expended by the plaintiff could fee awarded to ins plaintiff would be that the item must form part of damages payable in connection with the late delivery of the above quantity of the contract goods, The plaintiffs case is that the due date for delivery in this case was extended upto July 31, 1951. Subsequent to that date, there was no obligation on either side to give or takeappears to us that this question can be resolved by referring to the provisions of Section 55 of the Contract Act, which relates to "effect of failure to perform at fixed time the contract in which time is essential". The first paragraph of the section in effect provides that in a contract where time is of essence and the contract is to be performed at or before the specified time and the promise fails to perform his obligation at or before the specified time, so much of the contract that has not been performed becomes voidable at the option of the promise. The second paragraph of the section relates only to contracts where time for performance is no of essence and is not relevant to the purposes of thisthe contract between the parties was for sale of goods, the time for delivery must be held to be essence of the contract. The time for delivery in this case expired on July 31, 1951. The plaintiff accordingly was entitled to avoid the contract altogether and not accept delivery at any time subsequently, in the correspondence the plaintiff stated that he would charge the defendants the expenses incurred towards export duty as also damages that would ensue if late delivery was effected. The defendants refused to give delivery to the plaintiff if he insisted upon the above conditions. In fact the export duty was imposed in April 1951.Even so and in spite of the defendants having informed the plaintiff that the defendants would not pay any amount of the export duty, the time for performance was by consent of parties extended to July 31, 1951. By agreeing to the above extension, the plaintiff, must be held to have given up and waived any right to payment of the export duty as damages. Upon extension of the due date to July 31, 1951, the parties proceeded on the footing that for all purposes the plaintiff would have to pay and bear the export duty for himself. The plaintiff cannot, therefore, be entitled to recover the sum of Rs.which he expended in connection with the export duty for consignment of the 49,693 yards that were delivered to the Plaintiff in July 1952.20. As regards damages that arose due to late delivery, it is relevant to point cut that the defendants Mills committed wilful breach of contract and expressed inability in deliver any goods. The plaintiff thereupon towards late 1951 filed criminal complaint and prosecution against the directors and managing agents of the defendants Mills. The accused then appear to have arranged to get 49,693 yards of goods delivered to the plaintiff. The defendants Mills were then ordered to be wound up. The liquidators then carried out arrangements made to effect delivery. The delivery was given under arrangements made due to criminal complaint and prosecution. The plaintiff having procured delivery in the above circumstances, must be deemed to have waived his right to damages arising on late delivery. Having regard to the above position, the plaintiff is not entitled to recover any amount by way of damages for late delivery of the 49,693 yards of the contract goods.21. The further question relates to the sum or Rs.which has been awarded to the plaintiff as damages in respect of breach of the contract byof 1,00,000 yards of the contract goods. The breach admittedly occurred on July 31, 1950. Though it is not clear from the judgment of the trial Court, it appears that the damages in the above sum have been awarded on the footing that the plaintiff was entitled to payment of all loss of profits that he would have recovered if the contract goods had been delivered. For awarding damages on the above footing, nothing is mentioned by way of explanation in the judgment. It is, therefore, necessary to record that generally having regard to the provisions of Section 73 of the Contract Act, the party suffering damages is entitled to receive from the party who has broken the contract compensation for loss or damage which naturally arises in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. The above language of the section has been construed again and again to mean that in all cases ordinarily the damages must be assessed by finding out the difference between the contract rate and the market rate of the contract goods at the date of the breach. The market rate is the true criteria for arriving at what may be described as the loss or the damage which naturally arises in the usual course of things. Whenever damages are awarded on any other footing, it is necessary to explain the circumstances why the criteria of market rate was not applicable to the facts of that case, it is true that having regard to the latter part of the above quoted language of the section, damages are awarded in exceptional cases on the footing that the other party was aware of the circumstances which entitled the claimant to damages on the other footing. In this second class of cases damages are occasionally awarded on the footing of loss of profits because of knowledge of the promisee or the other party. The relevant circumstances in connection with the claim for damages in this case may be summarised asAt the date of the contract as well as the breach thereof, contracts relating to export of cloth were governed by the provisions of the Export Trade Control Act and the Cotton Control Order. The result of the above circumstance was that there was in fact no open market for purchase and sale of cloth for export. Even so it was quite possible that the defendants Mills or other Mills may have made contract for export of cloth on or before July 31, 1951. The plaintiffs evidence in this case is that the goods of the description which the defendants had agreed to sell to him were not available in market for export. It would have been easy for the defendants to produce their own contracts for sale for export at relevant times if there was open market for purchase and sale of cloth for cloth for export at material dates. The defendants have not produced any such contracts. This case must, therefore, be decided on the footing that there was no open market for sale and purchase of the cloth of the contract quality for export at relevant date viz July 31, 1951.23. It is established beyond doubt that to the knowledge of defendants the contract in suit was made for export of cloth. The plaintiff has established that he had contracted to export the cloth to foreign purchasers in Africa. Having regard toof open market at the material time the plaintiff claimed damages on the footing that he was entitled to loss of profits on the footing of the contracts that he had made with foreign purchasers. The learned Judge appears to have accepted that position and considered the evidence led on behalf of the plaintiff on that footing. There are 3 contracts, Exhs. 172, 173 and 174, which the plaintiff made forof the whole of the quantity of the contract goods on August 14, 1950. Exh. 172 is for sale or 49,693 yards at the rate of Rs.per yard F.O.B. Bombay to Messrs. Rawji Amarsi and Co., Mombasa. Exh. 173 is for sale of 50,000 yards at the rate of Rs.per yard F.O.B. Bombay to Messrs. Kalidas Kanji (Africa) Ltd., Mombasa. Exh. 174 is for sale of 50,000 yards on the same terms as to price to Messrs Juthalal Velji Ltd., Daresselaam, The plaintiff led his own evidence as also evidence of partners and directors of the above foreign contracting parties to prove the above contracts. The plaintiff admitted that for the consignment of the goods to the foreign parties he had to take delivery of the grey calendar cloth from the defendants Mills and to have it processed and thereafter shipped the same from Bombay. The plaintiff led conclusive evidence to prove the expenses that he incurred in connection with processing and up to the stage of putting the same on board ofas regards the 49,693 yards grey calendar cloth. That evidence is contained in the accounts, which are Exhs. 186 and 198. The evidence led by the plaintiff conclusively proves that the plaintiff spent Re.per yard forprocessing, dyeing and transporting the goods from Chalisgaon to Bombay and thereafter shipping the same. This however, does not include the amount of export duty that the plaintiff was bound to pay at the date of breach if the goods were delivered and shipped. It is also necessary to record that it is clear from the correspondence that has been tendered that the foreign purchasers were willing to accept delivery of these goods at the contract rate of Rs.per yard F.O.B. Bombay as late as May 1951. The plaintiffs case throughout was that as at the date of breach purchasers in Africa were willing to make contracts for export of cloth on July 31, 1951 at the rate of Rs.per yard F.O.B. Bombay. As there was no open market for purchasing cloth for export at the date of breach and as to the knowledge of the defendants the contract in suit was made for export purposes only, the damages in this case can be ascertained by relying upon the market rate for export contracts for Africa that were available at the date of breach. The plaintiff proved by his above evidence that at the date of breach the market rate was Rs.per yard F.O.B. Bombay. From that market rate the expenses for processing and shipping of the goods at the rate of Re.per yard as deposed to by the plaintiff must be deducted. Now this rate of Re.per yard does not include the further expense which the plaintiff as exporter would have to bear as regards the payment of export duty. Without considering the amount of export duty on the above basis, the learned Judge calculated the damages payable in respect of 1,00,000 yards of cloth at Rs.From out of this amount awarded to the plaintiff, the export duty expense which the plaintiff was bound to incur in connection with these goods if they were shipped must be deducted. Both Mr. Daji and Mr. Divekar have informed us that the amount of export duty in respect of 1,00,000 yards of goods would come to Rs.The plaintiff accordingly would be entitled to damages only in the sum or Rs. 15,625. The damages as awarded by the trial court will be set aside.24. These were the only contentions made on behalf of the Appellants in this case. | 1 | 6,933 | 3,697 | ### Instruction:
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language of the section, damages are awarded in exceptional cases on the footing that the other party was aware of the circumstances which entitled the claimant to damages on the other footing. In this second class of cases damages are occasionally awarded on the footing of loss of profits because of knowledge of the promisee or the other party. The relevant circumstances in connection with the claim for damages in this case may be summarised as follows:-22. At the date of the contract as well as the breach thereof, contracts relating to export of cloth were governed by the provisions of the Export Trade Control Act and the Cotton Control Order. The result of the above circumstance was that there was in fact no open market for purchase and sale of cloth for export. Even so it was quite possible that the defendants Mills or other Mills may have made contract for export of cloth on or before July 31, 1951. The plaintiffs evidence in this case is that the goods of the description which the defendants had agreed to sell to him were not available in market for export. It would have been easy for the defendants to produce their own contracts for sale for export at relevant times if there was open market for purchase and sale of cloth for cloth for export at material dates. The defendants have not produced any such contracts. This case must, therefore, be decided on the footing that there was no open market for sale and purchase of the cloth of the contract quality for export at relevant date viz July 31, 1951.23. It is established beyond doubt that to the knowledge of defendants the contract in suit was made for export of cloth. The plaintiff has established that he had contracted to export the cloth to foreign purchasers in Africa. Having regard to non-existence of open market at the material time the plaintiff claimed damages on the footing that he was entitled to loss of profits on the footing of the contracts that he had made with foreign purchasers. The learned Judge appears to have accepted that position and considered the evidence led on behalf of the plaintiff on that footing. There are 3 contracts, Exhs. 172, 173 and 174, which the plaintiff made for re-sale of the whole of the quantity of the contract goods on August 14, 1950. Exh. 172 is for sale or 49,693 yards at the rate of Rs. 1-3-0 per yard F.O.B. Bombay to Messrs. Rawji Amarsi and Co., Mombasa. Exh. 173 is for sale of 50,000 yards at the rate of Rs. 1-3-0 per yard F.O.B. Bombay to Messrs. Kalidas Kanji (Africa) Ltd., Mombasa. Exh. 174 is for sale of 50,000 yards on the same terms as to price to Messrs Juthalal Velji Ltd., Daresselaam, The plaintiff led his own evidence as also evidence of partners and directors of the above foreign contracting parties to prove the above contracts. The plaintiff admitted that for the consignment of the goods to the foreign parties he had to take delivery of the grey calendar cloth from the defendants Mills and to have it processed and thereafter shipped the same from Bombay. The plaintiff led conclusive evidence to prove the expenses that he incurred in connection with processing and up to the stage of putting the same on board of steam-ship as regards the 49,693 yards grey calendar cloth. That evidence is contained in the accounts, which are Exhs. 186 and 198. The evidence led by the plaintiff conclusively proves that the plaintiff spent Re. 0-2-11 per yard for processing, dyeing and transporting the goods from Chalisgaon to Bombay and thereafter shipping the same. This however, does not include the amount of export duty that the plaintiff was bound to pay at the date of breach if the goods were delivered and shipped. It is also necessary to record that it is clear from the correspondence that has been tendered that the foreign purchasers were willing to accept delivery of these goods at the contract rate of Rs. 1-3-0 per yard F.O.B. Bombay as late as May 1951. The plaintiffs case throughout was that as at the date of breach purchasers in Africa were willing to make contracts for export of cloth on July 31, 1951 at the rate of Rs. 1-3-0 per yard F.O.B. Bombay. As there was no open market for purchasing cloth for export at the date of breach and as to the knowledge of the defendants the contract in suit was made for export purposes only, the damages in this case can be ascertained by relying upon the market rate for export contracts for Africa that were available at the date of breach. The plaintiff proved by his above evidence that at the date of breach the market rate was Rs. 1-3-0 per yard F.O.B. Bombay. From that market rate the expenses for processing and shipping of the goods at the rate of Re. 0-2-11 per yard as deposed to by the plaintiff must be deducted. Now this rate of Re. 0-2-11 per yard does not include the further expense which the plaintiff as exporter would have to bear as regards the payment of export duty. Without considering the amount of export duty on the above basis, the learned Judge calculated the damages payable in respect of 1,00,000 yards of cloth at Rs. 32,812-8-0. From out of this amount awarded to the plaintiff, the export duty expense which the plaintiff was bound to incur in connection with these goods if they were shipped must be deducted. Both Mr. Daji and Mr. Divekar have informed us that the amount of export duty in respect of 1,00,000 yards of goods would come to Rs. 17,187-8-0. The plaintiff accordingly would be entitled to damages only in the sum or Rs. 15,625. The damages as awarded by the trial court will be set aside.24. These were the only contentions made on behalf of the Appellants in this case.
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why the criteria of market rate was not applicable to the facts of that case, it is true that having regard to the latter part of the above quoted language of the section, damages are awarded in exceptional cases on the footing that the other party was aware of the circumstances which entitled the claimant to damages on the other footing. In this second class of cases damages are occasionally awarded on the footing of loss of profits because of knowledge of the promisee or the other party. The relevant circumstances in connection with the claim for damages in this case may be summarised asAt the date of the contract as well as the breach thereof, contracts relating to export of cloth were governed by the provisions of the Export Trade Control Act and the Cotton Control Order. The result of the above circumstance was that there was in fact no open market for purchase and sale of cloth for export. Even so it was quite possible that the defendants Mills or other Mills may have made contract for export of cloth on or before July 31, 1951. The plaintiffs evidence in this case is that the goods of the description which the defendants had agreed to sell to him were not available in market for export. It would have been easy for the defendants to produce their own contracts for sale for export at relevant times if there was open market for purchase and sale of cloth for cloth for export at material dates. The defendants have not produced any such contracts. This case must, therefore, be decided on the footing that there was no open market for sale and purchase of the cloth of the contract quality for export at relevant date viz July 31, 1951.23. It is established beyond doubt that to the knowledge of defendants the contract in suit was made for export of cloth. The plaintiff has established that he had contracted to export the cloth to foreign purchasers in Africa. Having regard toof open market at the material time the plaintiff claimed damages on the footing that he was entitled to loss of profits on the footing of the contracts that he had made with foreign purchasers. The learned Judge appears to have accepted that position and considered the evidence led on behalf of the plaintiff on that footing. There are 3 contracts, Exhs. 172, 173 and 174, which the plaintiff made forof the whole of the quantity of the contract goods on August 14, 1950. Exh. 172 is for sale or 49,693 yards at the rate of Rs.per yard F.O.B. Bombay to Messrs. Rawji Amarsi and Co., Mombasa. Exh. 173 is for sale of 50,000 yards at the rate of Rs.per yard F.O.B. Bombay to Messrs. Kalidas Kanji (Africa) Ltd., Mombasa. Exh. 174 is for sale of 50,000 yards on the same terms as to price to Messrs Juthalal Velji Ltd., Daresselaam, The plaintiff led his own evidence as also evidence of partners and directors of the above foreign contracting parties to prove the above contracts. The plaintiff admitted that for the consignment of the goods to the foreign parties he had to take delivery of the grey calendar cloth from the defendants Mills and to have it processed and thereafter shipped the same from Bombay. The plaintiff led conclusive evidence to prove the expenses that he incurred in connection with processing and up to the stage of putting the same on board ofas regards the 49,693 yards grey calendar cloth. That evidence is contained in the accounts, which are Exhs. 186 and 198. The evidence led by the plaintiff conclusively proves that the plaintiff spent Re.per yard forprocessing, dyeing and transporting the goods from Chalisgaon to Bombay and thereafter shipping the same. This however, does not include the amount of export duty that the plaintiff was bound to pay at the date of breach if the goods were delivered and shipped. It is also necessary to record that it is clear from the correspondence that has been tendered that the foreign purchasers were willing to accept delivery of these goods at the contract rate of Rs.per yard F.O.B. Bombay as late as May 1951. The plaintiffs case throughout was that as at the date of breach purchasers in Africa were willing to make contracts for export of cloth on July 31, 1951 at the rate of Rs.per yard F.O.B. Bombay. As there was no open market for purchasing cloth for export at the date of breach and as to the knowledge of the defendants the contract in suit was made for export purposes only, the damages in this case can be ascertained by relying upon the market rate for export contracts for Africa that were available at the date of breach. The plaintiff proved by his above evidence that at the date of breach the market rate was Rs.per yard F.O.B. Bombay. From that market rate the expenses for processing and shipping of the goods at the rate of Re.per yard as deposed to by the plaintiff must be deducted. Now this rate of Re.per yard does not include the further expense which the plaintiff as exporter would have to bear as regards the payment of export duty. Without considering the amount of export duty on the above basis, the learned Judge calculated the damages payable in respect of 1,00,000 yards of cloth at Rs.From out of this amount awarded to the plaintiff, the export duty expense which the plaintiff was bound to incur in connection with these goods if they were shipped must be deducted. Both Mr. Daji and Mr. Divekar have informed us that the amount of export duty in respect of 1,00,000 yards of goods would come to Rs.The plaintiff accordingly would be entitled to damages only in the sum or Rs. 15,625. The damages as awarded by the trial court will be set aside.24. These were the only contentions made on behalf of the Appellants in this case.
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DELHI DEVELOPMENT AUTHORITY Vs. M/S. KARAMDEEP FINANCE AND INVESTMENT (I) PVT. LTD | 5 SCC 492. This Court in T. Lakshmipathi (supra) had examined the doctrine of merger as contained in Section 111(d). In Paragraph Nos. 14 to 17, following was laid down:- 14. The common-law doctrine of merger is statutorily embodied in the Transfer of Property Act, 1882. Section 111(d) provides: 111. Determination of lease.—A lease of immovable property, determines— * * * (d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right; * * *A bare reading of the doctrine of merger, as statutorily recognized in India, contemplates (i) coalescence of the interest of the lessee and the interest of the lessor, (ii) in the whole of the property, (iii) at the same time, (iv) in one person, and (v) in the same right. There must be a complete union of the whole interests of the lessor and the lessee so as to enable the lesser interest of the lessee sinking into the larger interest of the lessor in the reversion. 15. In Badri Narain Jha v. Rameshwar Dayal Singh, AIR 1951 SC 186 , it was held by this Court that if the lessor purchases the lessees interest, the lease no doubt is extinguished as the same man cannot at the same time be both a landlord and a tenant, but there is no extinction of the lease if one of the several lessees purchased only a part of the lessors interest. In such a case the leasehold and the reversion cannot be said to coincide. 16. In Sk. Faqir Bakhsh v. Murli Dhar, AIR 1931 PC 63 , the plaintiff was holding on lease a portion of the entire property. Subsequently, the plaintiff and the defendant became pro indiviso joint proprietors of the property by purchasing shares from the earlier owners. The lease was subsisting when the shares were bought by the parties. In a suit for accounts filed by the plaintiff it was held that the plaintiffs rights under lease of a part do not merge in his rights as joint proprietor of the whole of the property as between the parties the plaintiff held a valid and subsisting lease. 17. A Division Bench of the Patna High Court in Parmeshwar Singh v. Sureba Kuer, AIR 1925 Pat 530 , held that Section 111(d) applies only to a case where the interests of the lessee and of the lessor in the whole of the property become vested at the same time in one person in the same right. Where a co-proprietor in the property purchased for himself the interest of the lessees of the whole property, there could be no merger. On purchase of a partial interest in tenancy rights by the owner, the onus of proving that the distinction between the interests continued to be kept alive subsequently also cannot be placed on the party alleging that the distinction was so kept alive. To the same effect is the view of the law taken in Lala Nathuni Prasad v. Syed Anwar Karim, AIR 1919 Pat 390 . Merger is largely a question of intention, dependent on circumstances, and the courts will presume against it when it operates to the disadvantage of a party, as was held by this Court in Nalakath Sainuddin v. Koorikadan Sulaiman, (2002) 6 SCC 1 (SCC para 20). 27. To the same effect is judgment of this Court in Pramod Kumar Jaiswal (supra). There cannot be any dispute to the proposition laid down by this Court in reference to Section 111(d). We, however, find that in the present case, we need not rely on doctrine of merger as contained in Section 111(d). Present being a case of a Government grant by virtue of the Section 2 of the Government Grants Act, 1895, nothing in the Transfer of Property Act, 1882, shall apply or be deemed ever to have applied to any grant or other transfer. The principles contained in the Transfer of Property Act have been applied while construing the Government grants as has been noticed above. But herein issue being Government grant, the principle of merger may not be of much relevance. More so, we having construed the Sale Deed as not having conveyed all rights and interests in the leasehold property, the principle of merger does not in any manner advance the claim of the writ petitioner. 28. Learned counsel for the writ petitioner has also referred to and relied on judgment of the Division Bench of Delhi High Court in M/s. Bansal Contractors (India) Ltd. & Anr. Vs. Union of India and Others, 76 (1998) DLT 805. In the above case, sale of property was made in public auction after exercising the power under Section 269UD. From the judgment of Delhi High Court, it is not clear that as to whether any clause similar to Clause 3 as contained in the Sale Deed in question, was there. In absence of any such clause, interpretation put to the Sale Deed by the Delhi High Court cannot be faulted. It is further relevant to notice that details of the auction notice are not noticed in the judgment to find out what was the nature of the property, which was sought to be put for auction. We, thus, are of the view that judgment of Delhi High Court was on its own facts and cannot be relied on by the writ petitioner in the facts of the present case. We, thus, do not find any error in the judgment of the Division Bench setting aside the direction made by the learned Single Judge to refund the amount of conversion. The writ petitioner has made an alternative prayer in the writ petition seeking a writ of mandamus directing the respondents to allow/order the conversion of the lease hold rights into freehold rights in respect of the aforesaid plot of land without payment of any amount of alleged unearned increase and or interest due thereon. | 0[ds]11. We have already noticed above that original lessee Trilochan Singh Rana entered into agreement of sale with M/s. Ocean Construction Industries Pvt. Ltd. dated 29.09.1988 to transfer the rights for a consideration of Rs.76,00,000/-. Exercising power under Section 269UD of Income Tax Act, 1961, appropriate authority passed a purchase order dated 13.12.1988 of the property in question. After the aforesaid purchase order an amount of Rs.17,86,240/- towards payment of unearned increase was paid to the DDA by Income Tax Department. After the aforesaid purchase order, auction notice dated 20.03.1989 was issued giving details of the properties, which included the property in question. In pursuance of the auction notice, the writ petitioner gave highest bid and was declared auction purchaser for an amount of Rs.1,08,05,000/-. The writ petitioner paid the full amount and was delivered the possession on 25.04.1989. Sale Deed was also executed in favour of writ petitioner on 25.09.1997. The petitioner made an application to the DDA for grant of freehold rights and also deposited amount of Rs.3,45,729/-. While processing the application for conversion of leasehold rights to free hold rights, DDA made a demand of Rs.1,43,90,348/- towards unearned increase, which was challenged by the writ petitioner. Whether the writ petitioner was liable to pay unearned increase payment is the question to be answered12. We have already noticed the clause (4)(a) of the Perpetual Lease Deed dated 18.03.1970, which provided that in event sanction is given by lessor to the lessee for sale, transfer or assignment, lessor shall be entitled to claim and recover a portion of the unearned increase in the value. The unearned increase being the difference between the premium paid and the market value. The object behind the said clause was that a lessee when is permitted to transfer the leasehold rights, the lessor should not be deprived of the difference between the premium paid and the market value. The clause was inserted in the Perpetual Lease to compensate the lessor. The present is not a case where lessee is making any transfer or seeking any permission from the lessor to give his consent. In the present case, the appropriate authority has exercised its power under Section 269UD of the Income Tax Act for the purchase of the property by the Central Government. It is by exercise of statutory power that rights of lessee were purchased by Central Government. Central Government issued auction notice for auction of property in question. All bids in auction of a property are given normally to match the market price of the property. When the petitioner gave highest bid and became the successful auction purchaser, the auction purchase has to be treated on the basis of market value of the property. Clause (4)(a) of Perpetual Lease as noted above provided for payment of unearned increase to cover up the difference between premium paid and the market value. When the auction was made on the market value of the property, we are of the view that there was no question of claim of unearned increase by the DDA. We further noticed that on purchase of the property under Section 269UD of the Income Tax Act, the Income Tax department has already paid unearned increase to the DDA. We, thus, are of the view that High Court has rightly held that DDA was not entitled to raise any demand of unearned increase from the writ petitioner. We, thus, do not find any merit in the appeal filed by the DDA, which deserves to be dismissed13. The submission, which has been much pressed by learned counsel for the writ petitioner is that, what was sold to writ petitioner by Sale Deed dated 25.09.1997 was absolute rights with all rights and interests in the property. The sale in favour of writ petitioner was not sale of leasehold rights rather it was for all rights, title and interests, hence writ petitioner acquired freehold rights. It is submitted that application for conversion of leasehold rights into freehold rights and deposit of the amount on the said application by writ petitioner was under bonafide mistake. He submits that in the writ petition, the petitioner has alternatively prayed for refund of the amount paid for conversion15. A plain reading of the above clauses does give impression that what was sold to the writ petitioner was all rights, titles, interests and appurtenances but when we read Clause 3 of the same Sale Deed, the said clause gives a different impression.16. The principles of construction of documents are well settled. While construing the documents/intention of the parties have to be ascertained.19. A perusal of the details of the properties indicate that property in question is included as Item No. 2, which is mentioned as This is a lease hold residential plot. It is to be noticed that in so far as properties at Sl. Nos. 1, 2 and 3, the words mentioned are leasehold residential plots whereas with regard to property details given at Sl. No.4, it has been mentioned that all rights, titles and interests in the dwelling unit, which, if contrasted with details of properties given at Sl. Nos. 1, 2 and 3 contains the intendment. Thus, there cannot be any doubt that property in question, which was put in auction was a property as lease hold rights residential plots. When property is auctioned, the terms and conditions of auction are binding on both the parties. When petitioner submitted his bid in pursuance of the auction notice, he was bidding for lease hold residential plot with a double storied building. While interpreting the Sale Deed, the auction notice has to be looked into to find out the nature of transaction. The Sale Deed cannot be read divorced to the auction notice or contrary to auction notice. Auction of a leasehold residential plot and auction of freehold residential plot carries different connotations. Leasehold rights are limited rights, which are subservient to freehold rights of a property. In giving bid for leasehold rights and freehold rights, different considerations are there. Clause 3 as noted above indicate that the property sold and transferred is in terms of the agreement dated 29.09.1988 between Trilochan Singh Rana and Mrs. Rani Rana to M/s. Ocean Construction Industries Pvt. Ltd. Trilochan Singh Rana and Mrs. Rani Rana were only lease holders. Thus, they could best transfer their right, which was conferred to them by the Indenture dated 18.03.1970. Learned counsel for the writ petitioner has submitted that Clause 3 being clearly contradictory to Clauses 1 and 2 has to give way to earlier clauses in the Sale Deed. He has placed reliance on judgment of this Court in Radha Sundar Dutta Vs. Mohd. Jahadur Rahim & Ors., AIR 1959 SC 24 . In Paragraph Nos. 11 and 13, following was laid down:-11. Now, it is a settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim ut res magis valeat quam pereat. What has to be considered therefore is whether it is possible to give effect to the clause in question, which can only be by construing Exhibit B as creating a separate Patni, and at the same time reconcile the last two clauses with that construction. Taking first the provision that if there be other persons entitled to the Patni of lot Ahiyapur they are to have the same rights in the land comprised in Exhibit B, that no doubt posits the continuance in those persons of the title under the original Patni. But the true purpose of this clause is, in our opinion, not so much to declare the rights of those other persons which rest on statutory recognition, but to provide that the grantees under the document should take subject to those rights. That that is the purpose of the clause is clear from the provision for indemnity which is contained therein. Moreover, if on an interpretation of the other clauses in the grant, the correct conclusion to come to is that it creates a new Patni in favour of the grantees thereunder, it is difficult to see how the reservation of the rights of the other Patnidars of lot Ahiyapur, should such there be, affects that conclusion. We are unable to see anything in the clause under discussion, which militates against the conclusion that Exhibit B creates a new PatniThe learned Judge then refers to the two clauses corresponding to the last two clauses in Exhibit B, and comes to the conclusion that their effect was merely to, restore the position as it was when the original Patni was created, and that, in consequence, the purchaser was entitled to the Patni as it was created in 1820, and that the plaintiff was entitled to the possession of the Choukidari Chakran lands as being part of the Patni. Now, it is to be observed that in deciding that the Choukidari Chakran lands granted in 1899 became merged is lot Kooly, as it was in 1820, the learned Judge did not consider the effect of the clause providing for sale of those lands as a distinct entity under the provisions of the Regulation when there was default in the payment of rent payable thereon under the deed, and that, in our opinion, deprives the decision of much of its value. In the result, we are unable to hold that the two clauses on which the learned Judges base their conclusion are really inconsistent with the earlier clauses which support the view that the grant under Exhibit B is of a distinct Patni. Nor do we agree with them that the earlier clause providing for the sale of the Chaukidari Chakran lands in default of the payment of jama, should be construed so as not to override the later clauses. If, in fact, there is a conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the later clauses and not vice versa.20. There cannot be any dispute to principles of construction of document as laid down by this Court as noticed above. But we have to look into the different clauses to find out the real intention of the granter. We need to notice that present is a case of Government grant where Government has granted rights by Sale Deed to the writ petitioner.22. Normally, the grant should be construed to include all rights, title and interest of the grantor, unless there is a contrary provision either expressly made, or implied by necessary implications, is the principle, which has been laid down by this Court in above case. Paragraph No.3 contains the intention of the granter to transfer the rights to the writ petitioner in terms of the agreement dated 29.09.1988. Clause 3 limits and explain the rights, which were given in Clause Nos. 1 and 2 of the Sale Deed, but it cannot be said that Clause 3 is totally contradictory to Clauses 1 and 2. The three clauses have to be harmoniously construed to give effect to the intention of the granter. Furthermore, as we have noticed that auction notice provided for auction of leasehold rights, which is an important factor, which cannot be brushed aside while interpreting the Sale DeedWe, thus, neither can ignore Clause 3 of the Sale Deed nor can hold that said Clause has to give way to Clauses 1 and 2 of Sale Deed. While finding out the tenor of grant as reflected in Sale Deed, the provisions of sub-section (1) of Section 269UE as amended by Finance Act has also to be taken note of25. We, thus, find that on true construction of Sale Deed, it is clear that all rights, titles and interests were not conveyed to the petitioner in the leasehold residential plot, when we read Clauses 1, 2 and 3 togetherA bare reading of the doctrine of merger, as statutorily recognized in India, contemplates (i) coalescence of the interest of the lessee and the interest of the lessor, (ii) in the whole of the property, (iii) at the same time, (iv) in one person, and (v) in the same right. There must be a complete union of the whole interests of the lessor and the lessee so as to enable the lesser interest of the lessee sinking into the larger interest of the lessor in the reversion27. To the same effect is judgment of this Court in Pramod Kumar Jaiswal (supra). There cannot be any dispute to the proposition laid down by this Court in reference to Section 111(d). We, however, find that in the present case, we need not rely on doctrine of merger as contained in Section 111(d). Present being a case of a Government grant by virtue of the Section 2 of the Government Grants Act, 1895, nothing in the Transfer of Property Act, 1882, shall apply or be deemed ever to have applied to any grant or other transfer. The principles contained in the Transfer of Property Act have been applied while construing the Government grants as has been noticed above. But herein issue being Government grant, the principle of merger may not be of much relevance. More so, we having construed the Sale Deed as not having conveyed all rights and interests in the leasehold property, the principle of merger does not in any manner advance the claim of the writ petitioner28. Learned counsel for the writ petitioner has also referred to and relied on judgment of the Division Bench of Delhi High Court in M/s. Bansal Contractors (India) Ltd. & Anr. Vs. Union of India and Others, 76 (1998) DLT 805. In the above case, sale of property was made in public auction after exercising the power under Section 269UD. From the judgment of Delhi High Court, it is not clear that as to whether any clause similar to Clause 3 as contained in the Sale Deed in question, was there. In absence of any such clause, interpretation put to the Sale Deed by the Delhi High Court cannot be faulted. It is further relevant to notice that details of the auction notice are not noticed in the judgment to find out what was the nature of the property, which was sought to be put for auction. We, thus, are of the view that judgment of Delhi High Court was on its own facts and cannot be relied on by the writ petitioner in the facts of the present case. We, thus, do not find any error in the judgment of the Division Bench setting aside the direction made by the learned Single Judge to refund the amount of conversion. The writ petitioner has made an alternative prayer in the writ petition seeking a writ of mandamus directing the respondents to allow/order the conversion of the lease hold rights into freehold rights in respect of the aforesaid plot of land without payment of any amount of alleged unearned increase and or interest due thereon. | 0 | 7,705 | 2,809 | ### 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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5 SCC 492. This Court in T. Lakshmipathi (supra) had examined the doctrine of merger as contained in Section 111(d). In Paragraph Nos. 14 to 17, following was laid down:- 14. The common-law doctrine of merger is statutorily embodied in the Transfer of Property Act, 1882. Section 111(d) provides: 111. Determination of lease.—A lease of immovable property, determines— * * * (d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right; * * *A bare reading of the doctrine of merger, as statutorily recognized in India, contemplates (i) coalescence of the interest of the lessee and the interest of the lessor, (ii) in the whole of the property, (iii) at the same time, (iv) in one person, and (v) in the same right. There must be a complete union of the whole interests of the lessor and the lessee so as to enable the lesser interest of the lessee sinking into the larger interest of the lessor in the reversion. 15. In Badri Narain Jha v. Rameshwar Dayal Singh, AIR 1951 SC 186 , it was held by this Court that if the lessor purchases the lessees interest, the lease no doubt is extinguished as the same man cannot at the same time be both a landlord and a tenant, but there is no extinction of the lease if one of the several lessees purchased only a part of the lessors interest. In such a case the leasehold and the reversion cannot be said to coincide. 16. In Sk. Faqir Bakhsh v. Murli Dhar, AIR 1931 PC 63 , the plaintiff was holding on lease a portion of the entire property. Subsequently, the plaintiff and the defendant became pro indiviso joint proprietors of the property by purchasing shares from the earlier owners. The lease was subsisting when the shares were bought by the parties. In a suit for accounts filed by the plaintiff it was held that the plaintiffs rights under lease of a part do not merge in his rights as joint proprietor of the whole of the property as between the parties the plaintiff held a valid and subsisting lease. 17. A Division Bench of the Patna High Court in Parmeshwar Singh v. Sureba Kuer, AIR 1925 Pat 530 , held that Section 111(d) applies only to a case where the interests of the lessee and of the lessor in the whole of the property become vested at the same time in one person in the same right. Where a co-proprietor in the property purchased for himself the interest of the lessees of the whole property, there could be no merger. On purchase of a partial interest in tenancy rights by the owner, the onus of proving that the distinction between the interests continued to be kept alive subsequently also cannot be placed on the party alleging that the distinction was so kept alive. To the same effect is the view of the law taken in Lala Nathuni Prasad v. Syed Anwar Karim, AIR 1919 Pat 390 . Merger is largely a question of intention, dependent on circumstances, and the courts will presume against it when it operates to the disadvantage of a party, as was held by this Court in Nalakath Sainuddin v. Koorikadan Sulaiman, (2002) 6 SCC 1 (SCC para 20). 27. To the same effect is judgment of this Court in Pramod Kumar Jaiswal (supra). There cannot be any dispute to the proposition laid down by this Court in reference to Section 111(d). We, however, find that in the present case, we need not rely on doctrine of merger as contained in Section 111(d). Present being a case of a Government grant by virtue of the Section 2 of the Government Grants Act, 1895, nothing in the Transfer of Property Act, 1882, shall apply or be deemed ever to have applied to any grant or other transfer. The principles contained in the Transfer of Property Act have been applied while construing the Government grants as has been noticed above. But herein issue being Government grant, the principle of merger may not be of much relevance. More so, we having construed the Sale Deed as not having conveyed all rights and interests in the leasehold property, the principle of merger does not in any manner advance the claim of the writ petitioner. 28. Learned counsel for the writ petitioner has also referred to and relied on judgment of the Division Bench of Delhi High Court in M/s. Bansal Contractors (India) Ltd. & Anr. Vs. Union of India and Others, 76 (1998) DLT 805. In the above case, sale of property was made in public auction after exercising the power under Section 269UD. From the judgment of Delhi High Court, it is not clear that as to whether any clause similar to Clause 3 as contained in the Sale Deed in question, was there. In absence of any such clause, interpretation put to the Sale Deed by the Delhi High Court cannot be faulted. It is further relevant to notice that details of the auction notice are not noticed in the judgment to find out what was the nature of the property, which was sought to be put for auction. We, thus, are of the view that judgment of Delhi High Court was on its own facts and cannot be relied on by the writ petitioner in the facts of the present case. We, thus, do not find any error in the judgment of the Division Bench setting aside the direction made by the learned Single Judge to refund the amount of conversion. The writ petitioner has made an alternative prayer in the writ petition seeking a writ of mandamus directing the respondents to allow/order the conversion of the lease hold rights into freehold rights in respect of the aforesaid plot of land without payment of any amount of alleged unearned increase and or interest due thereon.
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those lands as a distinct entity under the provisions of the Regulation when there was default in the payment of rent payable thereon under the deed, and that, in our opinion, deprives the decision of much of its value. In the result, we are unable to hold that the two clauses on which the learned Judges base their conclusion are really inconsistent with the earlier clauses which support the view that the grant under Exhibit B is of a distinct Patni. Nor do we agree with them that the earlier clause providing for the sale of the Chaukidari Chakran lands in default of the payment of jama, should be construed so as not to override the later clauses. If, in fact, there is a conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the later clauses and not vice versa.20. There cannot be any dispute to principles of construction of document as laid down by this Court as noticed above. But we have to look into the different clauses to find out the real intention of the granter. We need to notice that present is a case of Government grant where Government has granted rights by Sale Deed to the writ petitioner.22. Normally, the grant should be construed to include all rights, title and interest of the grantor, unless there is a contrary provision either expressly made, or implied by necessary implications, is the principle, which has been laid down by this Court in above case. Paragraph No.3 contains the intention of the granter to transfer the rights to the writ petitioner in terms of the agreement dated 29.09.1988. Clause 3 limits and explain the rights, which were given in Clause Nos. 1 and 2 of the Sale Deed, but it cannot be said that Clause 3 is totally contradictory to Clauses 1 and 2. The three clauses have to be harmoniously construed to give effect to the intention of the granter. Furthermore, as we have noticed that auction notice provided for auction of leasehold rights, which is an important factor, which cannot be brushed aside while interpreting the Sale DeedWe, thus, neither can ignore Clause 3 of the Sale Deed nor can hold that said Clause has to give way to Clauses 1 and 2 of Sale Deed. While finding out the tenor of grant as reflected in Sale Deed, the provisions of sub-section (1) of Section 269UE as amended by Finance Act has also to be taken note of25. We, thus, find that on true construction of Sale Deed, it is clear that all rights, titles and interests were not conveyed to the petitioner in the leasehold residential plot, when we read Clauses 1, 2 and 3 togetherA bare reading of the doctrine of merger, as statutorily recognized in India, contemplates (i) coalescence of the interest of the lessee and the interest of the lessor, (ii) in the whole of the property, (iii) at the same time, (iv) in one person, and (v) in the same right. There must be a complete union of the whole interests of the lessor and the lessee so as to enable the lesser interest of the lessee sinking into the larger interest of the lessor in the reversion27. To the same effect is judgment of this Court in Pramod Kumar Jaiswal (supra). There cannot be any dispute to the proposition laid down by this Court in reference to Section 111(d). We, however, find that in the present case, we need not rely on doctrine of merger as contained in Section 111(d). Present being a case of a Government grant by virtue of the Section 2 of the Government Grants Act, 1895, nothing in the Transfer of Property Act, 1882, shall apply or be deemed ever to have applied to any grant or other transfer. The principles contained in the Transfer of Property Act have been applied while construing the Government grants as has been noticed above. But herein issue being Government grant, the principle of merger may not be of much relevance. More so, we having construed the Sale Deed as not having conveyed all rights and interests in the leasehold property, the principle of merger does not in any manner advance the claim of the writ petitioner28. Learned counsel for the writ petitioner has also referred to and relied on judgment of the Division Bench of Delhi High Court in M/s. Bansal Contractors (India) Ltd. & Anr. Vs. Union of India and Others, 76 (1998) DLT 805. In the above case, sale of property was made in public auction after exercising the power under Section 269UD. From the judgment of Delhi High Court, it is not clear that as to whether any clause similar to Clause 3 as contained in the Sale Deed in question, was there. In absence of any such clause, interpretation put to the Sale Deed by the Delhi High Court cannot be faulted. It is further relevant to notice that details of the auction notice are not noticed in the judgment to find out what was the nature of the property, which was sought to be put for auction. We, thus, are of the view that judgment of Delhi High Court was on its own facts and cannot be relied on by the writ petitioner in the facts of the present case. We, thus, do not find any error in the judgment of the Division Bench setting aside the direction made by the learned Single Judge to refund the amount of conversion. The writ petitioner has made an alternative prayer in the writ petition seeking a writ of mandamus directing the respondents to allow/order the conversion of the lease hold rights into freehold rights in respect of the aforesaid plot of land without payment of any amount of alleged unearned increase and or interest due thereon.
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P.R. Prabhakar Vs. Commissioner of Income Tax, Coimbatore | thereof, which is as under: "This amendment takes effect retrospectively from 1st April, 1986, the day on which the substituted section 80HHC took effect. It will, accordingly, apply in relation to assessment year 1986-87 and subsequent years." 8. The aforementioned circular dated 19th December, 1991 issued by the CBDT is binding on the Department. [See Mercantile Bank Ltd., Bombay v. Commissioner of Income Tax, Bombay City - III, 2006 (5) SCALE 244 and Union of India and Another v. Azadi Bachao Andolan and Another, (2004) 10 SCC 1.] 9. Once it is held that the amendment carried out in 1991 by reason of Finance Act (No. 2), Act, 1991 was prospective in nature, ex facie the High Court committed a serious error in opining that the same being clarificatory in character would apply to the assessment year in question. By reason of the purported clarification issued by the CBDT in terms of the said circular, the area of exemption had not been widened. It has, in effect and substance as would appear from paragraph 32.11, been curtailed.10. By reason of such amendment, the Parliament did not intend that the income derived by way of brokerage/commission by the assessee should not be reckoned for the purpose of computing profit or loss earned by a person engaged in the business of export but by reason thereof the deduction to the extent of 10% held to be allowable thereby. We, therefore, cannot accept the submission of Mr. Dutta that the income derived by way of commission and/or brokerage by an assessee carrying on business of export became eligible to exemption to the extent of 10% for the first time with effect from 1.4.1992.11. The purport and reason for enacting Section 80HHC of the Income Tax Act indisputably was to provide incentive to export houses. It is now a well-settled principle of law that although the exemption provisions are to be construed strictly as regards the applicability thereof to the case of the assessee but once it is found that the same is applicable, the same are required to be interpreted liberally. [See Tata Iron & Steel Co. Ltd. v. State of Jharkhand and Others (2005) 4 SCC 272 , Government of India and Ors. v. Indian Tobacco Association, (2005) 7 SCC 396 and Commissioner of Central Excise, Raipur v. Hira Cement, JT 2006 (2) SC 369 .] It is also trite law that an exemption is to be granted unless it is expressly taken away. [See Adityapur Industrial Area Development Authority v. Union of India & Ors., 2006 (5) SCALE 321 ]. The expression "income arising out of business of export" brings within its sweep not only the export of any goods or merchandise manufactured or possessed by the assessee but also of trading goods. The Parliament, therefore, intended to provide incentive when a positive profit is earned by a exporter. [See IPCA Laboratory Ltd. v. Dy. Commissioner of Income Tax, Mumbai, (2004) 12 SCC 742.] The question again came up for consideration before a Division Bench of this Court in Income Tax Officer, Bangalore v. M/s. Induflex Products (P) Ltd. [2005 (10) SCALE 132], wherein it was opined: "... It is no doubt true that the term `profit implies positive profit which has to be arrived at after taking into consideration the profit earned from export of both self-manufactured goods and the trading goods and the profits and losses in both the trades have, thus, to be taken into consideration....." 12. Indeed the question as to whether earning of income by way of commission/brokerage would attract Section 80HHC of the Act or not, precisely came up for consideration before a Special Bench of the Income Tax Appellate Tribunal, Delhi Bench in International Research Park Laboratories Ltd. v. Assistant Commissioner of Income Tax [212 ITR 1 ] wherein interpreting the CBDT circular, it was stated: "Now, we come to whether the commission received could form part of export profits. Here again, we are unable to see it differently. It is no doubt true that this commission is not turnover but it is a profit relatable to exports. Coming back to section 80HHC(1), if the assessee is an exclusive exporter without having any local sales, then the profit on commission is admittedly includible as profit of the business computed under the heard "Profits and gains of business or profession" and the whole of it would be eligible for exemption under clause (a) of sub-section (3) of section 80HHC. When such commission could be regarded as profit derived from export for the purpose of clause (a), how can the same be excluded for the purpose of clause (b) unless it amounted to discrimination. The interpretation of clauses (a) and (b) must be harmonious and not discriminatory, cutting against each other. What is sauce for the goods is also sauce for the gander. Secondly, we have just mentioned that this profit is profit derived from export and export is the basis or the foundation or the nexus. The argument of Shri B.B. Ahuja and all his effort to show to us that it has no reference to the export is, therefore, unacceptable to us. In our opinion, the argument advanced by Shri Ahuja overlooks the fact that the commission would not have come to the assessee had he not been engaged in the export business. He sought to justify his argument by referring to subsequent amendments made from April 1, 1992, where under as we have pointed out above by adding clause (baa) to the Explanation at the end of sub-section (4A) with effect from April 1, 1992, 90 per cent of this commission etc. is not to be regarded as profits derived from export business and this amendment as explained in the Memorandum of Bill was only to clarify the position." 13. It is stated at the Bar that the Revenue did not prefer any appeal there against. We, for the reasons stated hereinbefore, agree with the law laid down by the Tribunal. 14 . | 1[ds]9. Once it is held that the amendment carried out in 1991 by reason of Finance Act (No. 2), Act, 1991 was prospective in nature, ex facie the High Court committed a serious error in opining that the same being clarificatory in character would apply to the assessment year in question. By reason of the purported clarification issued by the CBDT in terms of the said circular, the area of exemption had not been widened. It has, in effect and substance as would appear from paragraph 32.11, been curtailed.10. By reason of such amendment, the Parliament did not intend that the income derived by way of brokerage/commission by the assessee should not be reckoned for the purpose of computing profit or loss earned by a person engaged in the business of export but by reason thereof the deduction to the extent of 10% held to be allowable thereby. We, therefore, cannot accept the submission of Mr. Dutta that the income derived by way of commission and/or brokerage by an assessee carrying on business of export became eligible to exemption to the extent of 10% for the first time with effect from 1.4.1992.11. The purport and reason for enacting Section 80HHC of the Income Tax Act indisputably was to provide incentive to export houses. It is now aprinciple of law that although the exemption provisions are to be construed strictly as regards the applicability thereof to the case of the assessee but once it is found that the same is applicable, the same are required to be interpretedis stated at the Bar that the Revenue did not prefer any appeal there against. We, for the reasons stated hereinbefore, agree with the law laid down by the Tribunal. | 1 | 2,960 | 317 | ### 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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thereof, which is as under: "This amendment takes effect retrospectively from 1st April, 1986, the day on which the substituted section 80HHC took effect. It will, accordingly, apply in relation to assessment year 1986-87 and subsequent years." 8. The aforementioned circular dated 19th December, 1991 issued by the CBDT is binding on the Department. [See Mercantile Bank Ltd., Bombay v. Commissioner of Income Tax, Bombay City - III, 2006 (5) SCALE 244 and Union of India and Another v. Azadi Bachao Andolan and Another, (2004) 10 SCC 1.] 9. Once it is held that the amendment carried out in 1991 by reason of Finance Act (No. 2), Act, 1991 was prospective in nature, ex facie the High Court committed a serious error in opining that the same being clarificatory in character would apply to the assessment year in question. By reason of the purported clarification issued by the CBDT in terms of the said circular, the area of exemption had not been widened. It has, in effect and substance as would appear from paragraph 32.11, been curtailed.10. By reason of such amendment, the Parliament did not intend that the income derived by way of brokerage/commission by the assessee should not be reckoned for the purpose of computing profit or loss earned by a person engaged in the business of export but by reason thereof the deduction to the extent of 10% held to be allowable thereby. We, therefore, cannot accept the submission of Mr. Dutta that the income derived by way of commission and/or brokerage by an assessee carrying on business of export became eligible to exemption to the extent of 10% for the first time with effect from 1.4.1992.11. The purport and reason for enacting Section 80HHC of the Income Tax Act indisputably was to provide incentive to export houses. It is now a well-settled principle of law that although the exemption provisions are to be construed strictly as regards the applicability thereof to the case of the assessee but once it is found that the same is applicable, the same are required to be interpreted liberally. [See Tata Iron & Steel Co. Ltd. v. State of Jharkhand and Others (2005) 4 SCC 272 , Government of India and Ors. v. Indian Tobacco Association, (2005) 7 SCC 396 and Commissioner of Central Excise, Raipur v. Hira Cement, JT 2006 (2) SC 369 .] It is also trite law that an exemption is to be granted unless it is expressly taken away. [See Adityapur Industrial Area Development Authority v. Union of India & Ors., 2006 (5) SCALE 321 ]. The expression "income arising out of business of export" brings within its sweep not only the export of any goods or merchandise manufactured or possessed by the assessee but also of trading goods. The Parliament, therefore, intended to provide incentive when a positive profit is earned by a exporter. [See IPCA Laboratory Ltd. v. Dy. Commissioner of Income Tax, Mumbai, (2004) 12 SCC 742.] The question again came up for consideration before a Division Bench of this Court in Income Tax Officer, Bangalore v. M/s. Induflex Products (P) Ltd. [2005 (10) SCALE 132], wherein it was opined: "... It is no doubt true that the term `profit implies positive profit which has to be arrived at after taking into consideration the profit earned from export of both self-manufactured goods and the trading goods and the profits and losses in both the trades have, thus, to be taken into consideration....." 12. Indeed the question as to whether earning of income by way of commission/brokerage would attract Section 80HHC of the Act or not, precisely came up for consideration before a Special Bench of the Income Tax Appellate Tribunal, Delhi Bench in International Research Park Laboratories Ltd. v. Assistant Commissioner of Income Tax [212 ITR 1 ] wherein interpreting the CBDT circular, it was stated: "Now, we come to whether the commission received could form part of export profits. Here again, we are unable to see it differently. It is no doubt true that this commission is not turnover but it is a profit relatable to exports. Coming back to section 80HHC(1), if the assessee is an exclusive exporter without having any local sales, then the profit on commission is admittedly includible as profit of the business computed under the heard "Profits and gains of business or profession" and the whole of it would be eligible for exemption under clause (a) of sub-section (3) of section 80HHC. When such commission could be regarded as profit derived from export for the purpose of clause (a), how can the same be excluded for the purpose of clause (b) unless it amounted to discrimination. The interpretation of clauses (a) and (b) must be harmonious and not discriminatory, cutting against each other. What is sauce for the goods is also sauce for the gander. Secondly, we have just mentioned that this profit is profit derived from export and export is the basis or the foundation or the nexus. The argument of Shri B.B. Ahuja and all his effort to show to us that it has no reference to the export is, therefore, unacceptable to us. In our opinion, the argument advanced by Shri Ahuja overlooks the fact that the commission would not have come to the assessee had he not been engaged in the export business. He sought to justify his argument by referring to subsequent amendments made from April 1, 1992, where under as we have pointed out above by adding clause (baa) to the Explanation at the end of sub-section (4A) with effect from April 1, 1992, 90 per cent of this commission etc. is not to be regarded as profits derived from export business and this amendment as explained in the Memorandum of Bill was only to clarify the position." 13. It is stated at the Bar that the Revenue did not prefer any appeal there against. We, for the reasons stated hereinbefore, agree with the law laid down by the Tribunal. 14 .
### Response:
1
### Explanation:
9. Once it is held that the amendment carried out in 1991 by reason of Finance Act (No. 2), Act, 1991 was prospective in nature, ex facie the High Court committed a serious error in opining that the same being clarificatory in character would apply to the assessment year in question. By reason of the purported clarification issued by the CBDT in terms of the said circular, the area of exemption had not been widened. It has, in effect and substance as would appear from paragraph 32.11, been curtailed.10. By reason of such amendment, the Parliament did not intend that the income derived by way of brokerage/commission by the assessee should not be reckoned for the purpose of computing profit or loss earned by a person engaged in the business of export but by reason thereof the deduction to the extent of 10% held to be allowable thereby. We, therefore, cannot accept the submission of Mr. Dutta that the income derived by way of commission and/or brokerage by an assessee carrying on business of export became eligible to exemption to the extent of 10% for the first time with effect from 1.4.1992.11. The purport and reason for enacting Section 80HHC of the Income Tax Act indisputably was to provide incentive to export houses. It is now aprinciple of law that although the exemption provisions are to be construed strictly as regards the applicability thereof to the case of the assessee but once it is found that the same is applicable, the same are required to be interpretedis stated at the Bar that the Revenue did not prefer any appeal there against. We, for the reasons stated hereinbefore, agree with the law laid down by the Tribunal.
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STATE BANK OF INDIA & ORS Vs. ATINDRA NATH BHATTACHARYYA & ANR | removal from service was passed on May 2, 2016 inter alia on the ground that the respondent has committed serious lapses which resulted to perpetration of frauds, such acts are in gross violation of extant norms of the Bank and resulted undue gain to third parties.7. Learned counsel for the appellant relied upon the judgment of this Court in Bank of India v. Apurba Kumar Saha (1994) 2 SCC 615 to contend that the Bank employee who had refused to avail of the opportunities provided to him in a disciplinary proceedings of defending himself against the charges of misconduct involving his integrity and dishonesty, cannot be permitted to complain later that he had been denied a reasonable opportunity of defending himself. The learned counsel for the appellant also relied upon a reasoned judgment passed by this Court in State Bank of India & Ors. v. Mohammad Badruddin wherein it has been held as under:?24. The previous punishments could not be subject matter of the charge sheet as it is beyond the scope of inquiry to be conducted by the Inquiry Officer as such punishments have attained finality in the proceedings. The requirement of second show cause notice stands specifically omitted by 42nd Amendment. Therefore, the only requirement now is to send a copy of Inquiry Report to the delinquent to meet the principle of natural justice being the adverse material against the delinquent. There is no mandatory requirement of communicating the proposed punishment. Therefore, there cannot be any bar to take into consideration previous punishments in the constitutional scheme as interpreted by this Court. Thus, the noncommunication of the previous punishments in the show cause notice will not vitiate the punishment imposed.?8. On the other hand, learned counsel for the respondent relied upon an order passed by this Court in State Bank of India & Ors. v. Ranjit Kumar Chakraborty & Anr. (2018) 12 SCC 807 wherein the order of removal was set aside for the reason that before imposing the punishment of major penalty, the delinquent was not heard. In response thereto, learned counsel for the appellant relied upon judgment passed by this Court in State Bank of India & Ors. v. B.R. Saini (2018) 11 SCC 83 wherein said judgment was explained and held as under:?9. In State Bank of India v. Ranjit Kumar Chakraborty (supra) which is the basis of the judgment of the High Court, it was held that the Appointing Authority could not pass an order imposing a major penalty. In that case, the Disciplinary Authority sent the Records to the Appointing Authority who passed order of ?dismissal from service?. It is not clear from the judgment as to whether the delinquent officer in that case was given a notice by the Disciplinary Authority before the records were sent to the Appointing Authority. This Court held that even in the absence of any Rule requiring a notice to be given, the principles of natural justice would require an opportunity to the delinquent employee. It was not held in the said judgment that even if the Inquiry Report was furnished and an opportunity was given to the delinquent there is a further requirement of another opportunity before imposing the penalty. This Court found that before imposition of a major penalty the delinquent was entitled for an opportunity of being heard. The High Court was wrong in holding that the delinquent employee is entitled for a notice before the penalty is imposed.xx xx xx11. In this case, the Respondent had sufficient opportunity to respond to the Report of the Inquiring Authority and to the findings of the Disciplinary Authority disagreeing with the Inquiring Authority regarding Charge Nos. 6 and 8. He is not entitled to any further notice before imposition of a penalty. Apart from the requirement of a second show-cause notice before imposition of penalty no other point was raised in this Appeal.?9. We have heard the learned counsel for the parties and find that the direction issued by the Division Bench to grant another opportunity is not tenable in the facts of the present case.10. The learned Single Bench has set aside the order of punishment as well as the penalty order directing the employer to serve a notice before imposing penalty. The respondent avoided availing the said opportunity when offered on March 24, 2016, April 7, 2016 and April 22, 2016. Once opportunity has been granted to the respondent, he is not entitled to another opportunity on the ground of compassion. The only reasoning given by the Division Bench is ‘justice demands? that the respondent be given one last opportunity to place his version. The respondent has lost his chance to put his version before the Competent Authority when called upon by the Authority to do so. Time and again opportunity of hearing cannot be granted on the pretext of justice. The delaying tactics cannot be rewarded in such a manner. Once the respondent has failed to avail of opportunity of hearing granted, the Bank cannot be directed to give another opportunity for the sake of justice. Therefore, we find that the directions contained in Para 18 of the judgment passed by the Division Bench are not sustainable and the same are set aside.11. The allegations of financial irregularities against the respondent run into crores of rupees under multiple heads. The inquiry officer has found ten charges proved whereas six charges have not been proved. Because of grave and serious allegations of financial irregularities, the order of removal cannot be said to be unjust.12. Even though, the judgment of the learned Single Bench finding fault with the order of removal as affirmed in the appeal, cannot be said to be justified in view of the judgment of this Court in the case of Mohammad Badruddin but since the Bank has not filed an appeal against such judgment, therefore, the correctness of the said judgment is not being examined in the present appeal which is directed against judgment of Division Bench of Calcutta High Court. | 1[ds]9. We have heard the learned counsel for the parties and find that the direction issued by the Division Bench to grant another opportunity is not tenable in the facts of the present case.The learned Single Bench has set aside the order of punishment as well as the penalty order directing the employer to serve a notice before imposing penalty. The respondent avoided availing the said opportunity when offered on March 24, 2016, April 7, 2016 and April 22, 2016. Once opportunity has been granted to the respondent, he is not entitled to another opportunity on the ground of compassion. The only reasoning given by the Division Bench is ‘justice demands? that the respondent be given one last opportunity to place his version. The respondent has lost his chance to put his version before the Competent Authority when called upon by the Authority to do so. Time and again opportunity of hearing cannot be granted on the pretext of justice. The delaying tactics cannot be rewarded in such a manner. Once the respondent has failed to avail of opportunity of hearing granted, the Bank cannot be directed to give another opportunity for the sake of justice. Therefore, we find that the directions contained in Para 18 of the judgment passed by the Division Bench are not sustainable and the same are set aside.The allegations of financial irregularities against the respondent run into crores of rupees under multiple heads. The inquiry officer has found ten charges proved whereas six charges have not been proved. Because of grave and serious allegations of financial irregularities, the order of removal cannot be said to be unjust.Even though, the judgment of the learned Single Bench finding fault with the order of removal as affirmed in the appeal, cannot be said to be justified in view of the judgment of this Court in the case of Mohammad Badruddin but since the Bank has not filed an appeal against such judgment, therefore, the correctness of the said judgment is not being examined in the present appeal which is directed against judgment of Division Bench of Calcutta High Court. | 1 | 1,556 | 386 | ### Instruction:
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removal from service was passed on May 2, 2016 inter alia on the ground that the respondent has committed serious lapses which resulted to perpetration of frauds, such acts are in gross violation of extant norms of the Bank and resulted undue gain to third parties.7. Learned counsel for the appellant relied upon the judgment of this Court in Bank of India v. Apurba Kumar Saha (1994) 2 SCC 615 to contend that the Bank employee who had refused to avail of the opportunities provided to him in a disciplinary proceedings of defending himself against the charges of misconduct involving his integrity and dishonesty, cannot be permitted to complain later that he had been denied a reasonable opportunity of defending himself. The learned counsel for the appellant also relied upon a reasoned judgment passed by this Court in State Bank of India & Ors. v. Mohammad Badruddin wherein it has been held as under:?24. The previous punishments could not be subject matter of the charge sheet as it is beyond the scope of inquiry to be conducted by the Inquiry Officer as such punishments have attained finality in the proceedings. The requirement of second show cause notice stands specifically omitted by 42nd Amendment. Therefore, the only requirement now is to send a copy of Inquiry Report to the delinquent to meet the principle of natural justice being the adverse material against the delinquent. There is no mandatory requirement of communicating the proposed punishment. Therefore, there cannot be any bar to take into consideration previous punishments in the constitutional scheme as interpreted by this Court. Thus, the noncommunication of the previous punishments in the show cause notice will not vitiate the punishment imposed.?8. On the other hand, learned counsel for the respondent relied upon an order passed by this Court in State Bank of India & Ors. v. Ranjit Kumar Chakraborty & Anr. (2018) 12 SCC 807 wherein the order of removal was set aside for the reason that before imposing the punishment of major penalty, the delinquent was not heard. In response thereto, learned counsel for the appellant relied upon judgment passed by this Court in State Bank of India & Ors. v. B.R. Saini (2018) 11 SCC 83 wherein said judgment was explained and held as under:?9. In State Bank of India v. Ranjit Kumar Chakraborty (supra) which is the basis of the judgment of the High Court, it was held that the Appointing Authority could not pass an order imposing a major penalty. In that case, the Disciplinary Authority sent the Records to the Appointing Authority who passed order of ?dismissal from service?. It is not clear from the judgment as to whether the delinquent officer in that case was given a notice by the Disciplinary Authority before the records were sent to the Appointing Authority. This Court held that even in the absence of any Rule requiring a notice to be given, the principles of natural justice would require an opportunity to the delinquent employee. It was not held in the said judgment that even if the Inquiry Report was furnished and an opportunity was given to the delinquent there is a further requirement of another opportunity before imposing the penalty. This Court found that before imposition of a major penalty the delinquent was entitled for an opportunity of being heard. The High Court was wrong in holding that the delinquent employee is entitled for a notice before the penalty is imposed.xx xx xx11. In this case, the Respondent had sufficient opportunity to respond to the Report of the Inquiring Authority and to the findings of the Disciplinary Authority disagreeing with the Inquiring Authority regarding Charge Nos. 6 and 8. He is not entitled to any further notice before imposition of a penalty. Apart from the requirement of a second show-cause notice before imposition of penalty no other point was raised in this Appeal.?9. We have heard the learned counsel for the parties and find that the direction issued by the Division Bench to grant another opportunity is not tenable in the facts of the present case.10. The learned Single Bench has set aside the order of punishment as well as the penalty order directing the employer to serve a notice before imposing penalty. The respondent avoided availing the said opportunity when offered on March 24, 2016, April 7, 2016 and April 22, 2016. Once opportunity has been granted to the respondent, he is not entitled to another opportunity on the ground of compassion. The only reasoning given by the Division Bench is ‘justice demands? that the respondent be given one last opportunity to place his version. The respondent has lost his chance to put his version before the Competent Authority when called upon by the Authority to do so. Time and again opportunity of hearing cannot be granted on the pretext of justice. The delaying tactics cannot be rewarded in such a manner. Once the respondent has failed to avail of opportunity of hearing granted, the Bank cannot be directed to give another opportunity for the sake of justice. Therefore, we find that the directions contained in Para 18 of the judgment passed by the Division Bench are not sustainable and the same are set aside.11. The allegations of financial irregularities against the respondent run into crores of rupees under multiple heads. The inquiry officer has found ten charges proved whereas six charges have not been proved. Because of grave and serious allegations of financial irregularities, the order of removal cannot be said to be unjust.12. Even though, the judgment of the learned Single Bench finding fault with the order of removal as affirmed in the appeal, cannot be said to be justified in view of the judgment of this Court in the case of Mohammad Badruddin but since the Bank has not filed an appeal against such judgment, therefore, the correctness of the said judgment is not being examined in the present appeal which is directed against judgment of Division Bench of Calcutta High Court.
### Response:
1
### Explanation:
9. We have heard the learned counsel for the parties and find that the direction issued by the Division Bench to grant another opportunity is not tenable in the facts of the present case.The learned Single Bench has set aside the order of punishment as well as the penalty order directing the employer to serve a notice before imposing penalty. The respondent avoided availing the said opportunity when offered on March 24, 2016, April 7, 2016 and April 22, 2016. Once opportunity has been granted to the respondent, he is not entitled to another opportunity on the ground of compassion. The only reasoning given by the Division Bench is ‘justice demands? that the respondent be given one last opportunity to place his version. The respondent has lost his chance to put his version before the Competent Authority when called upon by the Authority to do so. Time and again opportunity of hearing cannot be granted on the pretext of justice. The delaying tactics cannot be rewarded in such a manner. Once the respondent has failed to avail of opportunity of hearing granted, the Bank cannot be directed to give another opportunity for the sake of justice. Therefore, we find that the directions contained in Para 18 of the judgment passed by the Division Bench are not sustainable and the same are set aside.The allegations of financial irregularities against the respondent run into crores of rupees under multiple heads. The inquiry officer has found ten charges proved whereas six charges have not been proved. Because of grave and serious allegations of financial irregularities, the order of removal cannot be said to be unjust.Even though, the judgment of the learned Single Bench finding fault with the order of removal as affirmed in the appeal, cannot be said to be justified in view of the judgment of this Court in the case of Mohammad Badruddin but since the Bank has not filed an appeal against such judgment, therefore, the correctness of the said judgment is not being examined in the present appeal which is directed against judgment of Division Bench of Calcutta High Court.
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Baldev Raj Miglani Vs. Urmila Kumari | for, in her cross-examination done on April 4, 1963, she clearly stated that respondents delivery might take place in May 1963 which fact ultimately turned out to be true for the respondent did deliver on May 20, 1963. There is one more aspect of her evidence which requires to be noted. If the respondents version were true that conception had commenced subsequent to the wedding then by October 30, 1962 her pregnancy at the highest would have been of 21 or 22 days and it is well-known that it is not possible to positively confirm such pregnancy except by performing some special biological tests and admittedly in the instant case it was without performing any special biological test this doctor had confirmed positively respondents pregnancy. This aspect also lends corroboration to her evidence that respondents pregnancy must have been in advanced stage such as 2.5 months as deposed to by her. Having regard to these aspects, therefore, it seems to us clear that the High Court was in error in rejecting the testimony of this witness. The evidence of this witness clearly established the fact that the respondent was pregnant since long before the date of the wedding and if that be so, on admitted facts, it must be the result of sexual relations not with the appellant but with some person other than the appellant. 5. Apart from the evidence of Dr. Daljit Dhillon, Dr. (Mrs.) S. Ganda Singh (AW 2), Assistant Professor Obstetrics and Gynaecology, Government Medical College, Patiala, had medically examined the respondent on March 6, 1963 and she found that on that day the size of the uterus of the respondent was 34 weeks and according to her also the respondents pregnancy might have started round about second week of July, 1962. It appears that the respondent was got medically examined on January 4, 1963 by Dr. Surinder Kaur (AW 4) under the orders of the Court and according to her evidence the duration of the pregnancy of the respondent was on that day about 16 to 18 weeks which means that the pregnancy must have started latest on September 14, 1962. Lastly, there was evidence of the respondents own witness Dr. Mrs. P. Kanta, who actually attended the delivery of the respondent on May 20, 1963. This witness clearly admitted that it was a case of nearly full term delivery. She described the condition of the child at the time of the birth in the following terms : When the child was born he was blue in colour and he did not cry for 4 and 5 minutes. After that the child cried and became pink in colour. There was good crop of hair over his head. The child was covered with vernix caseosa. The lanigo was not present except on shoulders. The nails of the fingers were just beyond the tip of the fingers, nails of the toes were behind the tip of the toes. Both testicles were descended. The trial Judge noted that Dr. R. W. Johnstone in his textbook on Midwifery at page 132 has stated that the aforesaid signs (Mentioned by Dr. P. Kanta) are the signs of full term and mature delivery and relying upon the evidence of Dr. P. Kanta supported as it was by expert opinion of Dr. Johnstone, came to the conclusion that the child that was born to the respondent on May 20, 1963 was a case of full term delivery and, therefore, it could not be the child of the appellant. 6. It is surprising that the aforesaid evidence was brushed aside by the High Court by relying upon certain passages occurring in Dr. Johnstones treatise as also in Modis Medical Jurisprudence dealing with exceptional or freak cases. For instance, the High Court referred to the following passage in Dr. Johnstones textbook on Midwifery at page 90 : Fully developed children have been recovered as being after gestation as short as 240 days and as long as 313, 320 and even 331 days from the commencement of the last period. The High Court also referred to a case mentioned in Modis Medical Jurisprudence and Toxicology (15th ed.) at page 323 where "a woman aged 30 years gave birth to a girl after gestation of 210 days - ten times three weeks - which was her normal inter-menstrual period. The child cried lustily at birth, had good crop of hair, was well coated with vernix caseosa, measured twenty inches in length, and weighed seven pounds. The finger and toenails were fully developed and the child sucked vigorously on being put to breast". The High Court felt that the respondents child answered almost all the description mentioned by Modi in the aforesaid case and further observed that it would not be correct to presume from the physical appearance of the child at the time of the birth that it was born 280 days after gestation. It is obvious that the case in point referred to in Modis book is an exceptional case and not a normal case, but what is more the High Court has failed to notice that in the instance mentioned by Modi in his book the menstrual cycle of the woman concerned was a three-week cycle, whereas in the instant case, according to the respondents evidence, hers was a four-week menstrual cycle. In our view, therefore, the High Court was clearly in error in relying upon passages occurring in textbooks of medical experts dealing with exceptional cases and rejecting the positive and clear evidence that was led by the appellant in regard to the pregnancy of the respondent and the delivery which took place on May 20, 1963. In face of the positive and clear evidence that was led by the appellant in the case we are of the view that the High Courts findings were based on conjectures and surmises and the trial Court was right in coming to the conclusion that the appellant had satisfactorily discharged the burden which lay upon him. | 1[ds]The High Court also referred to a case mentioned in Modis Medical Jurisprudence and Toxicology (15th ed.) at page 323 where "a woman aged 30 years gave birth to a girl after gestation of 210 daysten times three weekswhich was her normall period. The child cried lustily at birth, had good crop of hair, was well coated with vernix caseosa, measured twenty inches in length, and weighed seven pounds. The finger and toenails were fully developed and the child sucked vigorously on being put to breast". The High Court felt that the respondents child answered almost all the description mentioned by Modi in the aforesaid case and further observed that it would not be correct to presume from the physical appearance of the child at the time of the birth that it was born 280 days after gestation. It is obvious that the case in point referred to in Modis book is an exceptional case and not a normal case, but what is more the High Court has failed to notice that in the instance mentioned by Modi in his book the menstrual cycle of the woman concerned was ak cycle, whereas in the instant case, according to the respondents evidence, hers was ak menstrual cycle. In our view, therefore, the High Court was clearly in error in relying upon passages occurring in textbooks of medical experts dealing with exceptional cases and rejecting the positive and clear evidence that was led by the appellant in regard to the pregnancy of the respondent and the delivery which took place on May 20, 1963. In face of the positive and clear evidence that was led by the appellant in the case we are of the view that the High Courts findings were based on conjectures and surmises and the trial Court was right in coming to the conclusion that the appellant had satisfactorily discharged the burden which lay upon him. | 1 | 2,201 | 345 | ### Instruction:
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for, in her cross-examination done on April 4, 1963, she clearly stated that respondents delivery might take place in May 1963 which fact ultimately turned out to be true for the respondent did deliver on May 20, 1963. There is one more aspect of her evidence which requires to be noted. If the respondents version were true that conception had commenced subsequent to the wedding then by October 30, 1962 her pregnancy at the highest would have been of 21 or 22 days and it is well-known that it is not possible to positively confirm such pregnancy except by performing some special biological tests and admittedly in the instant case it was without performing any special biological test this doctor had confirmed positively respondents pregnancy. This aspect also lends corroboration to her evidence that respondents pregnancy must have been in advanced stage such as 2.5 months as deposed to by her. Having regard to these aspects, therefore, it seems to us clear that the High Court was in error in rejecting the testimony of this witness. The evidence of this witness clearly established the fact that the respondent was pregnant since long before the date of the wedding and if that be so, on admitted facts, it must be the result of sexual relations not with the appellant but with some person other than the appellant. 5. Apart from the evidence of Dr. Daljit Dhillon, Dr. (Mrs.) S. Ganda Singh (AW 2), Assistant Professor Obstetrics and Gynaecology, Government Medical College, Patiala, had medically examined the respondent on March 6, 1963 and she found that on that day the size of the uterus of the respondent was 34 weeks and according to her also the respondents pregnancy might have started round about second week of July, 1962. It appears that the respondent was got medically examined on January 4, 1963 by Dr. Surinder Kaur (AW 4) under the orders of the Court and according to her evidence the duration of the pregnancy of the respondent was on that day about 16 to 18 weeks which means that the pregnancy must have started latest on September 14, 1962. Lastly, there was evidence of the respondents own witness Dr. Mrs. P. Kanta, who actually attended the delivery of the respondent on May 20, 1963. This witness clearly admitted that it was a case of nearly full term delivery. She described the condition of the child at the time of the birth in the following terms : When the child was born he was blue in colour and he did not cry for 4 and 5 minutes. After that the child cried and became pink in colour. There was good crop of hair over his head. The child was covered with vernix caseosa. The lanigo was not present except on shoulders. The nails of the fingers were just beyond the tip of the fingers, nails of the toes were behind the tip of the toes. Both testicles were descended. The trial Judge noted that Dr. R. W. Johnstone in his textbook on Midwifery at page 132 has stated that the aforesaid signs (Mentioned by Dr. P. Kanta) are the signs of full term and mature delivery and relying upon the evidence of Dr. P. Kanta supported as it was by expert opinion of Dr. Johnstone, came to the conclusion that the child that was born to the respondent on May 20, 1963 was a case of full term delivery and, therefore, it could not be the child of the appellant. 6. It is surprising that the aforesaid evidence was brushed aside by the High Court by relying upon certain passages occurring in Dr. Johnstones treatise as also in Modis Medical Jurisprudence dealing with exceptional or freak cases. For instance, the High Court referred to the following passage in Dr. Johnstones textbook on Midwifery at page 90 : Fully developed children have been recovered as being after gestation as short as 240 days and as long as 313, 320 and even 331 days from the commencement of the last period. The High Court also referred to a case mentioned in Modis Medical Jurisprudence and Toxicology (15th ed.) at page 323 where "a woman aged 30 years gave birth to a girl after gestation of 210 days - ten times three weeks - which was her normal inter-menstrual period. The child cried lustily at birth, had good crop of hair, was well coated with vernix caseosa, measured twenty inches in length, and weighed seven pounds. The finger and toenails were fully developed and the child sucked vigorously on being put to breast". The High Court felt that the respondents child answered almost all the description mentioned by Modi in the aforesaid case and further observed that it would not be correct to presume from the physical appearance of the child at the time of the birth that it was born 280 days after gestation. It is obvious that the case in point referred to in Modis book is an exceptional case and not a normal case, but what is more the High Court has failed to notice that in the instance mentioned by Modi in his book the menstrual cycle of the woman concerned was a three-week cycle, whereas in the instant case, according to the respondents evidence, hers was a four-week menstrual cycle. In our view, therefore, the High Court was clearly in error in relying upon passages occurring in textbooks of medical experts dealing with exceptional cases and rejecting the positive and clear evidence that was led by the appellant in regard to the pregnancy of the respondent and the delivery which took place on May 20, 1963. In face of the positive and clear evidence that was led by the appellant in the case we are of the view that the High Courts findings were based on conjectures and surmises and the trial Court was right in coming to the conclusion that the appellant had satisfactorily discharged the burden which lay upon him.
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The High Court also referred to a case mentioned in Modis Medical Jurisprudence and Toxicology (15th ed.) at page 323 where "a woman aged 30 years gave birth to a girl after gestation of 210 daysten times three weekswhich was her normall period. The child cried lustily at birth, had good crop of hair, was well coated with vernix caseosa, measured twenty inches in length, and weighed seven pounds. The finger and toenails were fully developed and the child sucked vigorously on being put to breast". The High Court felt that the respondents child answered almost all the description mentioned by Modi in the aforesaid case and further observed that it would not be correct to presume from the physical appearance of the child at the time of the birth that it was born 280 days after gestation. It is obvious that the case in point referred to in Modis book is an exceptional case and not a normal case, but what is more the High Court has failed to notice that in the instance mentioned by Modi in his book the menstrual cycle of the woman concerned was ak cycle, whereas in the instant case, according to the respondents evidence, hers was ak menstrual cycle. In our view, therefore, the High Court was clearly in error in relying upon passages occurring in textbooks of medical experts dealing with exceptional cases and rejecting the positive and clear evidence that was led by the appellant in regard to the pregnancy of the respondent and the delivery which took place on May 20, 1963. In face of the positive and clear evidence that was led by the appellant in the case we are of the view that the High Courts findings were based on conjectures and surmises and the trial Court was right in coming to the conclusion that the appellant had satisfactorily discharged the burden which lay upon him.
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P.S. Sathappan(Dead) By Lrs Vs. Andhra Bank Ltd | Constitution. Merely because there is a provision for amendment does not mean that, in the absence of an amendment or a contrary provision, the Letters Patent is to be ignored. To submit that a Letters Patent is a subordinate piece of legislation is to not understand the true nature of a Letters Patent. As has been held in Vinita Khanolkars case (supra) and Sharda Devis case a Letters Patent is the Charter of the High Court. As held in Shah Babulal Khimjis case (supra) a Letters Patent is the specific law under which a High Court derives its powers. It is not any subordinate piece of legislation. As set out in aforementioned two cases a Letters Patent cannot be excluded by implication. Further it is settled law that between a special law and a general law the special law will always prevail. A Letters Patent is a special law for the concerned High Court. Civil Procedure Code is a general law applicable to all Courts. It is well settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. We see not conflict between Letters Patent and Section 104 but if there was any conflict between a Letters Patent and the Civil Procedure Code then the provisions of Letters Patent would always prevail unless there was a specific exclusion. This is also clear from Section 4 Civil Procedure Code which provides that nothing in the Code shall limit or affect any special law. As set out in Section 4 C.P.C. only a specific provision to the contrary can exclude the special law. The specific provision would be a provision like Section 100A. 34. It was also sought to be argued that if such be the interpretation of Section 104 CPC, it may create an anomalous situation and may result in discrimination in as much as an appeal under the Letters Patent will be available against an order passed by the High Court on its original side, whereas such an appeal will not be available in a case where the order is passed by the High Court in its appellate jurisdiction. A similar argument was urged before this Court in South Asia Industries (P) Ltd. (supra) but the same was repelled in the following words:- "The arguments that a combined reading of cls. 10 and 11 of the Letters Patent leads to the conclusion that even the first part of cl.10 deals only with appeals from Courts subordinate to the High Court has no force. As we have pointed out earlier, cl.11 contemplates conferment of appellate jurisdiction on the High Court by an appropriate Legislature against orders of a Tribunal. Far from detracting from the generality of the words judgment by one Judge of the said High Court, cl. 11 indicates that the said judgment takes in one passed by a single Judge in an appeal against the order of a Tribunal. It is said, with some force, that if this construction be accepted there will be an anomaly , namely that in a case where a single Judge of the High Court passed a judgment in exercise of his appellate jurisdiction in respect of a decree made by a Court subordinate to the High Court, a further appeal to that Court will not lie unless the said Judge declares that the case is a fit one for appeal, whereas, if in exercise of his second appellate jurisdiction, he passed a judgment in an appeal against the order of a Tribunal, no such declaration is necessary for taking the matter on further appeal to the said High Court. If the express intention of the Legislature is clear, it is not permissible to speculate on the possible reasons that actuated the Legislature to make a distinction between the two classes of cases. It may, for ought we know, the Legislature thought fit to impose a limitation in a case where 3 Courts gave a decision, whereas it did not think fit to impose a limitation in a case where only one Court gave a decision." 35. We find ourselves in respectful agreement with the reasoning of this Court in the aforesaid decision. The same reasoning would apply in respect of the submission that if it is held that Section 104(2) did not bar a Letters Patent Appeal an anomalous situation would arise in as much as if the matter were to come to the High Court a further Appeal would be permitted but if it went to the District Court a further Appeal would not lie. An Appeal is a creature of a Statute. If a Statute permits an Appeal, it will lie. If a Statute does not permit an Appeal, it will not lie. Thus for example in cases under the Land Acquisition Act, Guardian and Wards Act and the Succession Act a further Appeal is permitted whilst under the Arbitration Act a further Appeal is barred. Thus different statutes have differing provisions in respect of Appeals. There is nothing anomalous in that. A District Court cannot be compared to a High Court which has special powers by virtue of Letters Patent. The District Court does not get a right to entertain a further Appeal as it does not have any law for the time being in force which permits such an Appeal. In any event we find no provisions which permit a larger Bench of the District Court to sit in Appeal against an order passed by a smaller Bench of that Court. Yet in the High Court even, under Section 104 read with Order 43 Rule 1 C.P.C., a larger Bench can sit in Appeal against an order of a Single Judge. Section 104 itself contemplates different rights of Appeals. Appeals saved by Section 104(1) can be filed. Those not saved will be barred by Section 104(2). We see nothing anomalous in such a situation. Consequently the plea of discrimination urged before us must be rejected. 36 | 1[ds]28. We find ourselves in complete agreement with the arguments of Mr. Sorabjee that in the instant case Section 104 read with Order 43 Rule 1 does not in any way abridge, interfere with or curb the powers conferred on the Trial Judge by Clause 15 of the Letters Patent. What Section 104 read with Order 43 Rule 1 does is merely to give an additional remedy by way of an appeal from the orders of the Trial Judge to a larger Bench.""30. We have already shown that a perusal of these observations leaves no room for doubt that the Privy Council clearly held that Section 588 undoubtedly applied to appeal from one of the Judges of the High Court to the Full Court, which really now means the Division Bench constituted under the Rules. In spite of the clear exposition of the law on the subject by the Privy Council it is rather unfortunate that some High Courts have either misinterpreted these observations or explained them away or used them for holding that Section 588 does not apply to High Courts. We shall deal with those judgments and point out that the view taken by the High Courts concerned is not at all borne out by the ratio decidendi of the Privy Council. So far as the applicability of Section 588 to proceedings in the High Courts is concerned, in a later decision the Privy Council reiterated its view in unmistakable terms. In Mt. Sabitri Thakurain vs. Savi [AIR 1921 PC 80], their Lordships observed as follows:Section (sic Clause) 15 of the Letters Patent is such a law, and what it expressly provides, namely an appeal to the High Courts appellate jurisdiction from a decree of the High Court in its original ordinary jurisdiction, is thereby saved. Thus regulations duly made by Orders and Rules under the Code of Civil Procedure, 1908, are applicable to the jurisdiction exercisable under the Letters Patent, except that they do not restrict the express Letters Patent appeal31. Though not directly, some observations made by this Court also support the consistent view taken by the Privy Council that Order 43 Rule 1 applies to the original proceedings before the Trial Judge. In Union of India vs. Mohindra Supply Co. [(1962) 3 SCR 497 : AIR 1962 SC 256 ], this Court made the following observations:The intention of the legislature in enacting sub-section (1) of Section 104 is clear: the right to appeal conferred by any other law for the time being in force is expressly preserved. This intention is emphasised by Section 4 which provides that in the absence of any specific provision to the contrary nothing in the Code is intended to limit or otherwise affect any special jurisdiction or power conferred by or under any other law for the time being in force. The right to appeal against judgments (which did not amount to decrees) under the Letters Patent, was therefore not affected by Section 104(1) of the Code of Civil Procedure, 190832. Thus, this Court has clearly held that the right to appeal against judgments under the Letters Patent was not affected by the Section 104(1) of the Code of 1908 and the decision therefore fully supports the arguments of Mr. Sorabjee that there is no inconsistency between the Letters Patent jurisdiction and Section 104 read with Order 43 Rule 1 of the Code of 1908."we are of the opinion that the decision of the Allahabad High Court on this point is bases on a serious misconception of the legal position. It is true that Section 104 was introduced by the code 1908 and the aforesaid section, as we have already indicated clearly saved the Letters Patent jurisdiction of the High Court. From this, however, it does not necessarily follow that the restriction that there is no further appeal from the order of a Trial Judge to a larger Bench would be maintainable or permissible. In the first place, once Section 104 applies and there is nothing in the Letters Patent to restrict the application of Section 104 to the effect that even if one appeal lies to the Single Judge, no further appeal will le to the Division Bench. Secondly, a perusal of Clause 15 of the Letters Patent of the Presidency High Courts and identical clauses in other High Courts, discloses that there is nothing to show that the Letters Patent ever contemplated that even after one appeal lay from the subordinate court to the Single Judge, a second appeal would again lie to a Division Bench of the Court. All that the Letters Patent provides for is that where the Trial Judge passes an order, an appeal against the judgment of the said Trial Judge would lie to a Division Bench. Furthermore, there is an express provision in the Letters Patent where only in one case a further or a second appeal could lie to a Division Bench from an appellate order of the Trial Judge and that it is in cases of appeals decided by a Single Judge under Section 100 of the Code of Civil Procedure. Such a further appeal would lie to a Division Bench only with the leave of the court and not otherwise29. Thus, the consensus of judicial opinion has been that Section 104(1) Civil Procedure Code expressly saves a Letters Patent Appeal. At this stage it would be appropriate to analyze Section 104 C.P.C. Sub-section (1) of Section 104 CPC provides for an appeal from the orders enumerated under sub-section (1) which contemplates an appeal from the orders enumerated therein, as also appeals expressly provided in the body of the Code or by any law for the time being in force. Sub-section (1) therefore contemplates three types of orders from which appeals are provided namely,1) orders enumerated in sub-section (1)2) appeals otherwise expressly provided in the body of the Code and3) appeals provided by any law for the time being force. It is not disputed that an appeal provided under the Letters Patent of the High Court is an appeal provided by a law for the time being in force30. As such an appeal is expressly saved by Section 104(1). Sub- clause 2 cannot apply to such an appeal. Section 104 has to be read as a whole. Merely reading sub-clause (2) by ignoring the saving clause in sub-section (1) would lead to a conflict between the two sub-clauses. Read as a whole and on well established principles of interpretation it is clear that sub-clause (2) can only apply to appeals not saved by sub-clause (1) of Section 104. The finality provided by sub-clause (2) only attaches to Orders passed in Appeal under Section 104, i.e. those Orders against which an Appeal under "any other law for the time being in force is not permitted. Section 104(2) would not thus bar a Letters Patent Appeal. Effect must also be given to Legislative Intent of introducing Section 4 C.P.C. and the words by any law for the time being in force" in Section 104(1). This was done to give effect to the Calcutta, Madras and Bombay views that Section 104 did not bar a Letters Patent. As Appeals under any other law for the time being in force undeniably include a Letters Patent Appeal, such appeals are now specifically saved. Section 104 must be read as a whole and harmoniously. If the intention was to exclude what is specifically saved in Sub-clause (1), then there had to be a specific exclusion. A general exclusion of this nature would not be sufficient. We are not saying that a general exclusion would never oust a Letters Patent Appeal. However when Section 104(1) specifically saves a Letters Patent Appeal then the only way such an appeal could be excluded is by express mention in 104(2) that a Letters Patent Appeal is also prohibited. It is for this reason that Section 4 of the Civil Procedure Code provides as follows:"4. Savings : (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land."As stated hereinabove, a specific exclusion may be clear from the words of a statute even though no specific reference is made to Letters Patent. But where there is an express saving in the statute/section itself, then general words to the effect that an appeal would not lie" or order will be final are not sufficient. In such case, i.e. where there is an express saving, there must be an express exclusion. Sub-clause (2) of Section 104 does not provide for any express exclusion. In this context reference may be made to Section 100A. The present Section 100A was amended in 2002. The earlier Section 100A, introduced in 1976, reads as follows:"100A. No further appeal in certain cases - Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal."It is thus to be seen that when the Legislature wanted to exclude a Letters Patent Appeal is specifically did so. The words used in Section 100A are not by way of abundant caution. By the Amendment Acts of 1976 and 2002 specific exclusion is provided as the Legislature knew that in the absence of such words a Letters Patent Appeal would not be barred. The Legislature was aware that it had incorporated the saving clause in Section 104(1) and incorporated Section 4 in the C.P.C. Thus now a specific exclusion was provided. After 2002, section 100A reads as follows:"100A. No further appeal in certain cases - Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge."To be noted that here again the Legislature has provided for a specific exclusion. It must be stated that now by virtue of Section 100A no Letters Patent Appeal would be maintainable. However, it is an admitted position that the law which would prevail would be the law at the relevant time. At the relevant time neither Section 100A nor Section 104(2) barred a Letters Patent Appeal31. Applying the above principle to the facts of this case, the appeal under Clause 15 of the Letters Patent is an appeal provided by a law for the time being in force. Therefore, the finality contemplated by Sub-section (2) of Section 104 did not attach to an Appeal passed under such law32. Applying the above principle to the facts of this case, the appeal under clause 15 of the Letters Patent is an appeal provided by a law for the time being in force. Therefore, the finality contemplated by Sub-section (2) of Section 104 did not attach to an Appeal passed under such law. | 1 | 33,140 | 2,217 | ### Instruction:
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Constitution. Merely because there is a provision for amendment does not mean that, in the absence of an amendment or a contrary provision, the Letters Patent is to be ignored. To submit that a Letters Patent is a subordinate piece of legislation is to not understand the true nature of a Letters Patent. As has been held in Vinita Khanolkars case (supra) and Sharda Devis case a Letters Patent is the Charter of the High Court. As held in Shah Babulal Khimjis case (supra) a Letters Patent is the specific law under which a High Court derives its powers. It is not any subordinate piece of legislation. As set out in aforementioned two cases a Letters Patent cannot be excluded by implication. Further it is settled law that between a special law and a general law the special law will always prevail. A Letters Patent is a special law for the concerned High Court. Civil Procedure Code is a general law applicable to all Courts. It is well settled law, that in the event of a conflict between a special law and a general law, the special law must always prevail. We see not conflict between Letters Patent and Section 104 but if there was any conflict between a Letters Patent and the Civil Procedure Code then the provisions of Letters Patent would always prevail unless there was a specific exclusion. This is also clear from Section 4 Civil Procedure Code which provides that nothing in the Code shall limit or affect any special law. As set out in Section 4 C.P.C. only a specific provision to the contrary can exclude the special law. The specific provision would be a provision like Section 100A. 34. It was also sought to be argued that if such be the interpretation of Section 104 CPC, it may create an anomalous situation and may result in discrimination in as much as an appeal under the Letters Patent will be available against an order passed by the High Court on its original side, whereas such an appeal will not be available in a case where the order is passed by the High Court in its appellate jurisdiction. A similar argument was urged before this Court in South Asia Industries (P) Ltd. (supra) but the same was repelled in the following words:- "The arguments that a combined reading of cls. 10 and 11 of the Letters Patent leads to the conclusion that even the first part of cl.10 deals only with appeals from Courts subordinate to the High Court has no force. As we have pointed out earlier, cl.11 contemplates conferment of appellate jurisdiction on the High Court by an appropriate Legislature against orders of a Tribunal. Far from detracting from the generality of the words judgment by one Judge of the said High Court, cl. 11 indicates that the said judgment takes in one passed by a single Judge in an appeal against the order of a Tribunal. It is said, with some force, that if this construction be accepted there will be an anomaly , namely that in a case where a single Judge of the High Court passed a judgment in exercise of his appellate jurisdiction in respect of a decree made by a Court subordinate to the High Court, a further appeal to that Court will not lie unless the said Judge declares that the case is a fit one for appeal, whereas, if in exercise of his second appellate jurisdiction, he passed a judgment in an appeal against the order of a Tribunal, no such declaration is necessary for taking the matter on further appeal to the said High Court. If the express intention of the Legislature is clear, it is not permissible to speculate on the possible reasons that actuated the Legislature to make a distinction between the two classes of cases. It may, for ought we know, the Legislature thought fit to impose a limitation in a case where 3 Courts gave a decision, whereas it did not think fit to impose a limitation in a case where only one Court gave a decision." 35. We find ourselves in respectful agreement with the reasoning of this Court in the aforesaid decision. The same reasoning would apply in respect of the submission that if it is held that Section 104(2) did not bar a Letters Patent Appeal an anomalous situation would arise in as much as if the matter were to come to the High Court a further Appeal would be permitted but if it went to the District Court a further Appeal would not lie. An Appeal is a creature of a Statute. If a Statute permits an Appeal, it will lie. If a Statute does not permit an Appeal, it will not lie. Thus for example in cases under the Land Acquisition Act, Guardian and Wards Act and the Succession Act a further Appeal is permitted whilst under the Arbitration Act a further Appeal is barred. Thus different statutes have differing provisions in respect of Appeals. There is nothing anomalous in that. A District Court cannot be compared to a High Court which has special powers by virtue of Letters Patent. The District Court does not get a right to entertain a further Appeal as it does not have any law for the time being in force which permits such an Appeal. In any event we find no provisions which permit a larger Bench of the District Court to sit in Appeal against an order passed by a smaller Bench of that Court. Yet in the High Court even, under Section 104 read with Order 43 Rule 1 C.P.C., a larger Bench can sit in Appeal against an order of a Single Judge. Section 104 itself contemplates different rights of Appeals. Appeals saved by Section 104(1) can be filed. Those not saved will be barred by Section 104(2). We see nothing anomalous in such a situation. Consequently the plea of discrimination urged before us must be rejected. 36
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law for the time being force. It is not disputed that an appeal provided under the Letters Patent of the High Court is an appeal provided by a law for the time being in force30. As such an appeal is expressly saved by Section 104(1). Sub- clause 2 cannot apply to such an appeal. Section 104 has to be read as a whole. Merely reading sub-clause (2) by ignoring the saving clause in sub-section (1) would lead to a conflict between the two sub-clauses. Read as a whole and on well established principles of interpretation it is clear that sub-clause (2) can only apply to appeals not saved by sub-clause (1) of Section 104. The finality provided by sub-clause (2) only attaches to Orders passed in Appeal under Section 104, i.e. those Orders against which an Appeal under "any other law for the time being in force is not permitted. Section 104(2) would not thus bar a Letters Patent Appeal. Effect must also be given to Legislative Intent of introducing Section 4 C.P.C. and the words by any law for the time being in force" in Section 104(1). This was done to give effect to the Calcutta, Madras and Bombay views that Section 104 did not bar a Letters Patent. As Appeals under any other law for the time being in force undeniably include a Letters Patent Appeal, such appeals are now specifically saved. Section 104 must be read as a whole and harmoniously. If the intention was to exclude what is specifically saved in Sub-clause (1), then there had to be a specific exclusion. A general exclusion of this nature would not be sufficient. We are not saying that a general exclusion would never oust a Letters Patent Appeal. However when Section 104(1) specifically saves a Letters Patent Appeal then the only way such an appeal could be excluded is by express mention in 104(2) that a Letters Patent Appeal is also prohibited. It is for this reason that Section 4 of the Civil Procedure Code provides as follows:"4. Savings : (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land."As stated hereinabove, a specific exclusion may be clear from the words of a statute even though no specific reference is made to Letters Patent. But where there is an express saving in the statute/section itself, then general words to the effect that an appeal would not lie" or order will be final are not sufficient. In such case, i.e. where there is an express saving, there must be an express exclusion. Sub-clause (2) of Section 104 does not provide for any express exclusion. In this context reference may be made to Section 100A. The present Section 100A was amended in 2002. The earlier Section 100A, introduced in 1976, reads as follows:"100A. No further appeal in certain cases - Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order of such single Judge in such appeal or from any decree passed in such appeal."It is thus to be seen that when the Legislature wanted to exclude a Letters Patent Appeal is specifically did so. The words used in Section 100A are not by way of abundant caution. By the Amendment Acts of 1976 and 2002 specific exclusion is provided as the Legislature knew that in the absence of such words a Letters Patent Appeal would not be barred. The Legislature was aware that it had incorporated the saving clause in Section 104(1) and incorporated Section 4 in the C.P.C. Thus now a specific exclusion was provided. After 2002, section 100A reads as follows:"100A. No further appeal in certain cases - Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such single Judge."To be noted that here again the Legislature has provided for a specific exclusion. It must be stated that now by virtue of Section 100A no Letters Patent Appeal would be maintainable. However, it is an admitted position that the law which would prevail would be the law at the relevant time. At the relevant time neither Section 100A nor Section 104(2) barred a Letters Patent Appeal31. Applying the above principle to the facts of this case, the appeal under Clause 15 of the Letters Patent is an appeal provided by a law for the time being in force. Therefore, the finality contemplated by Sub-section (2) of Section 104 did not attach to an Appeal passed under such law32. Applying the above principle to the facts of this case, the appeal under clause 15 of the Letters Patent is an appeal provided by a law for the time being in force. Therefore, the finality contemplated by Sub-section (2) of Section 104 did not attach to an Appeal passed under such law.
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Amolak Ram Khosla Vs. Commissioner of Income Tax, Delhi II | BAHARUL ISLAM, J. 1. These appeals arise out of assessments of the assessee to incometax for the assessment years 1967-68 to 1971-72. There is a common question of law arising in these appeals and hence they have been consolidated together and are being disposed of by a single judgment. The question arising in these appeals relates to the annual value of a house belonging to the assessee and situate in New Delhi for the purpose of assessment to income-tax under s. 22. The I.T. authorities as also the Tribunal, in appeal, determined the annual value of the building on the basis of the actual rent received by the assessee in respect of the portion of the house let out to the tenant and on an artificial basis of 10% of the other total income of the assessee in respect of the portion of the house which was self-occupied. The I.T. authorities and the Tribunal rejected the contention of the assessee that the annual value of the house was liable to be determined with reference to the standard rent determinable under the provisions of the Delhi Rent Control Act, 1958 (hereinafter referred to " the Rent Act"). The assessee thereupon made applications to the Tribunal for reference of the question of law arising out of the order of the Tribunal but the applications for reference were rejected by the Tribunal. The assessee thereupon made applications to the High Court calling for reference from the Tribunal but the High Court also rejected these applications on the ground that the question of law arising out of the order of the Tribunal was concluded by the decision of the Full Bench of the Delhi High Court in Dewan Daulat Ram Kapur v. New Delhi Municipal Committee [1973] ILR 1 Delhi 363 . Hence, the present appeals by special leave obtained from this court 2. Now, there can be no doubt that a question of law did arise out of the order of the Tribunal, namely, whether the annual value of the house belonging to the assessee was liable to be determined on the basis of the actual rent received by the assessee or it was liable to be determined with reference to the standard rent of the house determinable under the provisions of the Rent Act. But the High Court refused to call for a reference of this question from the Tribunal because, according to the High Court, this question was concluded by the decision of the Full Bench of the High Court in Dewan Daulat Ram Kapur v. New Delhi Municipal Committee [1973] ILR 1 Delhi 363, where the view was taken that in case where the standard rent of a building has not been fixed by the Controller under s. 9 of the Rent Act and the period of limitation prescribed by s. 12 of the Rent Act for making an application for fixation of standard rent having expired, the landlord is entitled to recover the agreed rent from the tenant, it is the agreed rent which must be taken to be the annual value of the building. But this Full Bench decision of the High Court has been overturned by a recent decision given by this court in Dewan Daulat Rai Kapoor v. New Delhi Municipal Committee [1980] 122 ITR 700 (SC), and it has been held by this court that even where the standard rent of a building has not been fixed by the Controller under s. 9 and the period of limitation prescribed by s. 12 of the Rent Act for making an application for fixation of standard rent having expired, the landlord is entitled to recover the agreed rent from the tenant, the annual value of the building must be taken to be the standard rent of the building determinable under the provisions of the Rent Act and not the actual rent received by the assessee from the tenant. In this view of the matter, it is clear that the High Court was in error in not requiring the Tribunal to refer the question of law relating to the determination of the annual value of the house to the High Court. We would have ordinarily in these circumstances made an order requiring the Tribunal to refer this question of law arising out of the order of the Tribunal to the High Court and left it to the High Court to answer this question of law when referred by the Tribunal. But this would be a futile exercise because having regard to the decision just rendered by us in Sheila Kaushish v. CIT (Civil Appeals Nos. 2110-2111 of 1978) [since reported in [1981] 131 ITR 435 (SC)], this question of law must be answered in favour of the assessee and against the revenue. | 1[ds]Now, there can be no doubt that a question of law did arise out of the order of the Tribunal, namely, whether the annual value of the house belonging to the assessee was liable to be determined on the basis of the actual rent received by the assessee or it was liable to be determined with reference to the standard rent of the house determinable under the provisions of the Rent Act. But the High Court refused to call for a reference of this question from the Tribunal because, according to the High Court, this question was concluded by the decision of the Full Bench of the High Court in Dewan Daulat Ram Kapur v. New Delhi Municipal Committee [1973] ILR 1 Delhi 363, where the view was taken that in case where the standard rent of a building has not been fixed by the Controller under s. 9 of the Rent Act and the period of limitation prescribed by s. 12 of the Rent Act for making an application for fixation of standard rent having expired, the landlord is entitled to recover the agreed rent from the tenant, it is the agreed rent which must be taken to be the annual value of the building. But this Full Bench decision of the High Court has been overturned by a recent decision given by this court in Dewan Daulat Rai Kapoor v. New Delhi Municipal Committee [1980] 122 ITR 700 (SC), and it has been held by this court that even where the standard rent of a building has not been fixed by the Controller under s. 9 and the period of limitation prescribed by s. 12 of the Rent Act for making an application for fixation of standard rent having expired, the landlord is entitled to recover the agreed rent from the tenant, the annual value of the building must be taken to be the standard rent of the building determinable under the provisions of the Rent Act and not the actual rent received by the assessee from the tenant. In this view of the matter, it is clear that the High Court was in error in not requiring the Tribunal to refer the question of law relating to the determination of the annual value of the house to the High Court. We would have ordinarily in these circumstances made an order requiring the Tribunal to refer this question of law arising out of the order of the Tribunal to the High Court and left it to the High Court to answer this question of law when referred by the Tribunal. But this would be a futile exercise because having regard to the decision just rendered by us in Sheila Kaushish v. CIT (Civil Appeals Nos.1 of 1978) [since reported in [1981] 131 ITR 435 (SC)], this question of law must be answered in favour of the assessee and against the revenue. | 1 | 850 | 520 | ### 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:
BAHARUL ISLAM, J. 1. These appeals arise out of assessments of the assessee to incometax for the assessment years 1967-68 to 1971-72. There is a common question of law arising in these appeals and hence they have been consolidated together and are being disposed of by a single judgment. The question arising in these appeals relates to the annual value of a house belonging to the assessee and situate in New Delhi for the purpose of assessment to income-tax under s. 22. The I.T. authorities as also the Tribunal, in appeal, determined the annual value of the building on the basis of the actual rent received by the assessee in respect of the portion of the house let out to the tenant and on an artificial basis of 10% of the other total income of the assessee in respect of the portion of the house which was self-occupied. The I.T. authorities and the Tribunal rejected the contention of the assessee that the annual value of the house was liable to be determined with reference to the standard rent determinable under the provisions of the Delhi Rent Control Act, 1958 (hereinafter referred to " the Rent Act"). The assessee thereupon made applications to the Tribunal for reference of the question of law arising out of the order of the Tribunal but the applications for reference were rejected by the Tribunal. The assessee thereupon made applications to the High Court calling for reference from the Tribunal but the High Court also rejected these applications on the ground that the question of law arising out of the order of the Tribunal was concluded by the decision of the Full Bench of the Delhi High Court in Dewan Daulat Ram Kapur v. New Delhi Municipal Committee [1973] ILR 1 Delhi 363 . Hence, the present appeals by special leave obtained from this court 2. Now, there can be no doubt that a question of law did arise out of the order of the Tribunal, namely, whether the annual value of the house belonging to the assessee was liable to be determined on the basis of the actual rent received by the assessee or it was liable to be determined with reference to the standard rent of the house determinable under the provisions of the Rent Act. But the High Court refused to call for a reference of this question from the Tribunal because, according to the High Court, this question was concluded by the decision of the Full Bench of the High Court in Dewan Daulat Ram Kapur v. New Delhi Municipal Committee [1973] ILR 1 Delhi 363, where the view was taken that in case where the standard rent of a building has not been fixed by the Controller under s. 9 of the Rent Act and the period of limitation prescribed by s. 12 of the Rent Act for making an application for fixation of standard rent having expired, the landlord is entitled to recover the agreed rent from the tenant, it is the agreed rent which must be taken to be the annual value of the building. But this Full Bench decision of the High Court has been overturned by a recent decision given by this court in Dewan Daulat Rai Kapoor v. New Delhi Municipal Committee [1980] 122 ITR 700 (SC), and it has been held by this court that even where the standard rent of a building has not been fixed by the Controller under s. 9 and the period of limitation prescribed by s. 12 of the Rent Act for making an application for fixation of standard rent having expired, the landlord is entitled to recover the agreed rent from the tenant, the annual value of the building must be taken to be the standard rent of the building determinable under the provisions of the Rent Act and not the actual rent received by the assessee from the tenant. In this view of the matter, it is clear that the High Court was in error in not requiring the Tribunal to refer the question of law relating to the determination of the annual value of the house to the High Court. We would have ordinarily in these circumstances made an order requiring the Tribunal to refer this question of law arising out of the order of the Tribunal to the High Court and left it to the High Court to answer this question of law when referred by the Tribunal. But this would be a futile exercise because having regard to the decision just rendered by us in Sheila Kaushish v. CIT (Civil Appeals Nos. 2110-2111 of 1978) [since reported in [1981] 131 ITR 435 (SC)], this question of law must be answered in favour of the assessee and against the revenue.
### Response:
1
### Explanation:
Now, there can be no doubt that a question of law did arise out of the order of the Tribunal, namely, whether the annual value of the house belonging to the assessee was liable to be determined on the basis of the actual rent received by the assessee or it was liable to be determined with reference to the standard rent of the house determinable under the provisions of the Rent Act. But the High Court refused to call for a reference of this question from the Tribunal because, according to the High Court, this question was concluded by the decision of the Full Bench of the High Court in Dewan Daulat Ram Kapur v. New Delhi Municipal Committee [1973] ILR 1 Delhi 363, where the view was taken that in case where the standard rent of a building has not been fixed by the Controller under s. 9 of the Rent Act and the period of limitation prescribed by s. 12 of the Rent Act for making an application for fixation of standard rent having expired, the landlord is entitled to recover the agreed rent from the tenant, it is the agreed rent which must be taken to be the annual value of the building. But this Full Bench decision of the High Court has been overturned by a recent decision given by this court in Dewan Daulat Rai Kapoor v. New Delhi Municipal Committee [1980] 122 ITR 700 (SC), and it has been held by this court that even where the standard rent of a building has not been fixed by the Controller under s. 9 and the period of limitation prescribed by s. 12 of the Rent Act for making an application for fixation of standard rent having expired, the landlord is entitled to recover the agreed rent from the tenant, the annual value of the building must be taken to be the standard rent of the building determinable under the provisions of the Rent Act and not the actual rent received by the assessee from the tenant. In this view of the matter, it is clear that the High Court was in error in not requiring the Tribunal to refer the question of law relating to the determination of the annual value of the house to the High Court. We would have ordinarily in these circumstances made an order requiring the Tribunal to refer this question of law arising out of the order of the Tribunal to the High Court and left it to the High Court to answer this question of law when referred by the Tribunal. But this would be a futile exercise because having regard to the decision just rendered by us in Sheila Kaushish v. CIT (Civil Appeals Nos.1 of 1978) [since reported in [1981] 131 ITR 435 (SC)], this question of law must be answered in favour of the assessee and against the revenue.
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Sham Sunder Vs. Union of India & Others | vacancies, 1 vacancy on account of retirement and 5 vacancies representing 25 per cent for contingencies and the field of selection should be restricted to 24X4=96 and not 152 persons. Accordingly the panel already published should be operated only in respect of the first 24 persons and that the names of the remaining 14 persons should be deleted forthwith. The Board directed that action should be taken to form a panel for filling up 11 upgraded posts in the grade of Rs. 370-475 and thereafter a further selection should be held for filling up the resultant vacancies in the grade of Rs. 250-380. By an order dated November 3, 1965 (Annexure K) the General Manager, Northen Railway implemented the decision and directed that the panel formed on July 7,1965 was to be operated upto the first 24 persons only and that the names of the remaining 14 persons including the petitioner should be treated as deleted from the panel. By another order dated October 4, 1966 (Annexure N) the General Manager, Northern Railway decided to hold a selection for filling up the resultant vacancies in the grade of Rs. 250--380. Having regard to the number of resultant vacancies, the petitioner is not eligible for being called for selection under Annexure "N". In this writ petition the petitioner alleges that the orders under Annexures H, K and N have violated his fundamental rights under Articles 14 and 16 of the Constitution, and he asks for the issue of appropriate writs restraining the respondents from enforcing those orders and directing them to make promotions to posts in the grade of Rs. 250--380 in accordance with the panel published in the Gazette on August 1,1965.5. Counsel for the petitioner contended that the Railway Board or the General Manager had no power to amend the panel published on August 1,1965. We are unable to accept this contention. The point was not taken in the petition. When the contention was raised at the hearing of the petition, the learned Solicitor-General drew our attention to the letter of the Railway Board No. E/52/ PM 2-34 dated August 4,1953.On the subject of cancellation or amendment of approved panels the Railway Board directed by this letter "that the panels once approved should not be cancelled or amended without reference to the authority next above the one that approved panel." There is no controversy that the Railway Board had power to issue this general direction under R.157 of the Railway Establishment Code. In the present case the General Manager Northern Railway was the authority approving the panel. The Railway Board was the authority next above him. Under the general direction issued by the Board in its letter dated August 4,1953, the General Manager was competent to amend the panel with the approval of the Railway Board. In Srivastava v. N. E. Railway, (1966) 3 SCR 61 at pp. 64, 65 = (AIR 1966 SC 1197 at pp. 1199-l200) the Court held that an amendment of an approved panel in accordance with a similar rule was in order.6. The point in controversy was whether there were 11 more anticipated vacancies in the grade of Rs. 205-380 on account of the upgrading of 11 posts in the next higher grade of Rs. 375-480. Now the selection for the 11 new posts in the grade of Rs. 375-480 had to be made from 56 eligible members of the staff comprising 23 clerks in the grade of Rs. 205-380 and 33 clerks in lower grades. The Railway Board held that until the selection was made, it could not be anticipated that 11 clerks in the grade of Rs. 205-380 would be promoted and that there would be 11 consequential vacancies in that grade due to promotions to the higher grade. Acting upon this view the Railway Board decided that the anticipated vacancies in the grade of Rs. 205-380 due to normal wastage would be 19 and not 30 and that the panel should be amended accordingly and should be operated in respect of the first 24 persons only. We are unable to say that the decision is perverse or that it should be quashed an set aside.7. All the 24 enquiry-cum-reservation clerks retained in the panel were senior to the petitioner. The junior most of them ranked 77 in order of seniority. All of them would have been select and included in the panel, even if 96 persons were originally called for selection. There is no force in the contention that the retention of the first 24 persons in the panel without holding a fresh selection is discriminatory or is violative of Articles 14 and 16.8. For purposes of promotion, all the enquiry-cum-reservation clerks on the Northern Railway form one separate unit. Between members of this class there is no discrimination and no denial of equal opportunity in the matter of promotion. It is said that panels of class III selection posts of station masters in the grade of Rs. 370---475 on the Northern Railway and all class III selection posts on other Railways have been drawn up on the footing that anticipated vacancies in the selection grade include vacancies on promotions due to upgrading of posts in the next higher grade and that the Railway Board has not issued any direction for the amendment of these panels. Assuming this allegation to be true, the other panels might require revision and the matter deserves the attention of the Railway Board. But the other panels relate to separate classes of employees and have no bearing on the question of equal opportunity in the matter of promotion of enquiry-cum-reservation clerks on the Northern Railway, Equality of opportunity in matters of employment under Art. 16 (1), means equality as between members of the same class of employees and not equality between members of separate, independent classes [see All India Station Masters and Assistant Station Masters Association v. General Manager Central Railways (1960) 2 SCR 311 at p. 319 = (AIR 1960 SC 384 at pp. 387-388)]. | 0[ds]7. All the 24 enquiry-cum-reservation clerks retained in the panel were senior to the petitioner. The junior most of them ranked 77 in order of seniority. All of them would have been select and included in the panel, even if 96 persons were originally called for selection. There is no force in the contention that the retention of the first 24 persons in the panel without holding a fresh selection is discriminatory or is violative of Articles 14 and 16.8. For purposes of promotion, all the enquiry-cum-reservation clerks on the Northern Railway form one separate unit. Between members of this class there is no discrimination and no denial of equal opportunity in the matter of promotion. It is said that panels of class III selection posts of station masters in the grade of Rs. 370---475 on the Northern Railway and all class III selection posts on other Railways have been drawn up on the footing that anticipated vacancies in the selection grade include vacancies on promotions due to upgrading of posts in the next higher grade and that the Railway Board has not issued any direction for the amendment of these panels. Assuming this allegation to be true, the other panels might require revision and the matter deserves the attention of the Railway Board. But the other panels relate to separate classes of employees and have no bearing on the question of equal opportunity in the matter of promotion of enquiry-cum-reservation clerks on the Northern Railway, Equality of opportunity in matters of employment under Art. 16 (1), means equality as between members of the same class of employees and not equality between members of separate, independent classes | 0 | 1,813 | 302 | ### 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:
vacancies, 1 vacancy on account of retirement and 5 vacancies representing 25 per cent for contingencies and the field of selection should be restricted to 24X4=96 and not 152 persons. Accordingly the panel already published should be operated only in respect of the first 24 persons and that the names of the remaining 14 persons should be deleted forthwith. The Board directed that action should be taken to form a panel for filling up 11 upgraded posts in the grade of Rs. 370-475 and thereafter a further selection should be held for filling up the resultant vacancies in the grade of Rs. 250-380. By an order dated November 3, 1965 (Annexure K) the General Manager, Northen Railway implemented the decision and directed that the panel formed on July 7,1965 was to be operated upto the first 24 persons only and that the names of the remaining 14 persons including the petitioner should be treated as deleted from the panel. By another order dated October 4, 1966 (Annexure N) the General Manager, Northern Railway decided to hold a selection for filling up the resultant vacancies in the grade of Rs. 250--380. Having regard to the number of resultant vacancies, the petitioner is not eligible for being called for selection under Annexure "N". In this writ petition the petitioner alleges that the orders under Annexures H, K and N have violated his fundamental rights under Articles 14 and 16 of the Constitution, and he asks for the issue of appropriate writs restraining the respondents from enforcing those orders and directing them to make promotions to posts in the grade of Rs. 250--380 in accordance with the panel published in the Gazette on August 1,1965.5. Counsel for the petitioner contended that the Railway Board or the General Manager had no power to amend the panel published on August 1,1965. We are unable to accept this contention. The point was not taken in the petition. When the contention was raised at the hearing of the petition, the learned Solicitor-General drew our attention to the letter of the Railway Board No. E/52/ PM 2-34 dated August 4,1953.On the subject of cancellation or amendment of approved panels the Railway Board directed by this letter "that the panels once approved should not be cancelled or amended without reference to the authority next above the one that approved panel." There is no controversy that the Railway Board had power to issue this general direction under R.157 of the Railway Establishment Code. In the present case the General Manager Northern Railway was the authority approving the panel. The Railway Board was the authority next above him. Under the general direction issued by the Board in its letter dated August 4,1953, the General Manager was competent to amend the panel with the approval of the Railway Board. In Srivastava v. N. E. Railway, (1966) 3 SCR 61 at pp. 64, 65 = (AIR 1966 SC 1197 at pp. 1199-l200) the Court held that an amendment of an approved panel in accordance with a similar rule was in order.6. The point in controversy was whether there were 11 more anticipated vacancies in the grade of Rs. 205-380 on account of the upgrading of 11 posts in the next higher grade of Rs. 375-480. Now the selection for the 11 new posts in the grade of Rs. 375-480 had to be made from 56 eligible members of the staff comprising 23 clerks in the grade of Rs. 205-380 and 33 clerks in lower grades. The Railway Board held that until the selection was made, it could not be anticipated that 11 clerks in the grade of Rs. 205-380 would be promoted and that there would be 11 consequential vacancies in that grade due to promotions to the higher grade. Acting upon this view the Railway Board decided that the anticipated vacancies in the grade of Rs. 205-380 due to normal wastage would be 19 and not 30 and that the panel should be amended accordingly and should be operated in respect of the first 24 persons only. We are unable to say that the decision is perverse or that it should be quashed an set aside.7. All the 24 enquiry-cum-reservation clerks retained in the panel were senior to the petitioner. The junior most of them ranked 77 in order of seniority. All of them would have been select and included in the panel, even if 96 persons were originally called for selection. There is no force in the contention that the retention of the first 24 persons in the panel without holding a fresh selection is discriminatory or is violative of Articles 14 and 16.8. For purposes of promotion, all the enquiry-cum-reservation clerks on the Northern Railway form one separate unit. Between members of this class there is no discrimination and no denial of equal opportunity in the matter of promotion. It is said that panels of class III selection posts of station masters in the grade of Rs. 370---475 on the Northern Railway and all class III selection posts on other Railways have been drawn up on the footing that anticipated vacancies in the selection grade include vacancies on promotions due to upgrading of posts in the next higher grade and that the Railway Board has not issued any direction for the amendment of these panels. Assuming this allegation to be true, the other panels might require revision and the matter deserves the attention of the Railway Board. But the other panels relate to separate classes of employees and have no bearing on the question of equal opportunity in the matter of promotion of enquiry-cum-reservation clerks on the Northern Railway, Equality of opportunity in matters of employment under Art. 16 (1), means equality as between members of the same class of employees and not equality between members of separate, independent classes [see All India Station Masters and Assistant Station Masters Association v. General Manager Central Railways (1960) 2 SCR 311 at p. 319 = (AIR 1960 SC 384 at pp. 387-388)].
### Response:
0
### Explanation:
7. All the 24 enquiry-cum-reservation clerks retained in the panel were senior to the petitioner. The junior most of them ranked 77 in order of seniority. All of them would have been select and included in the panel, even if 96 persons were originally called for selection. There is no force in the contention that the retention of the first 24 persons in the panel without holding a fresh selection is discriminatory or is violative of Articles 14 and 16.8. For purposes of promotion, all the enquiry-cum-reservation clerks on the Northern Railway form one separate unit. Between members of this class there is no discrimination and no denial of equal opportunity in the matter of promotion. It is said that panels of class III selection posts of station masters in the grade of Rs. 370---475 on the Northern Railway and all class III selection posts on other Railways have been drawn up on the footing that anticipated vacancies in the selection grade include vacancies on promotions due to upgrading of posts in the next higher grade and that the Railway Board has not issued any direction for the amendment of these panels. Assuming this allegation to be true, the other panels might require revision and the matter deserves the attention of the Railway Board. But the other panels relate to separate classes of employees and have no bearing on the question of equal opportunity in the matter of promotion of enquiry-cum-reservation clerks on the Northern Railway, Equality of opportunity in matters of employment under Art. 16 (1), means equality as between members of the same class of employees and not equality between members of separate, independent classes
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RAM CHANDRA PRASAD SINGH Vs. SHARAD YADAV | the present case, the Chairman of Rajya Sabha has passed the order on 04.12.2019 on the claim of the appellant praying for disqualification as noticed above. The foundation of order of the Chairman are the facts and events, which took place after 26.07.2017. The petition having been filed by the appellant on 02.09.2017, petition has to be treated to be founded on facts and events, which took place on or before 02.09.2017. 13. Now, reverting to the C.M. Application No. 27159 of 2018, we need to note as to what was the additional evidence, which was sought to be brought on record of the writ petition. Paragraph 4 and 5 of the application contains the details of Annexure 1 and Annexure 2, which is sought to be brought on record, which is as follows: - 4. That it is respectfully submitted that during the pendency of the above matter, the petitioner has formed/launched a new political party called the Loktantrik Janata Dal on 18.05.2018 at the Talkatora Stadium. Photographs, video clippings, posters and banners are proof of this formation and his active role therein. Photocopies of the pictures of the petitioner are annexed hereto as Annexure 1 collectively. Video recording of the speeches by the petitioner in the said event as also some more photographs have been extracted in a CD which is annexed hereto as Annexure-2. 5. That the annexures are the true copies of their respective originals. 14. Paragraph 4 and the Annexures 1 and 2 referred therein clearly indicate that what was sought to be taken on record was an event which took place on 18.05.2018 in which event a new political party called the Loktantrik Janata Dal was formed/launched. The application which was filed by the appellant seeking disqualification of the respondent was filed on 02.09.2017 in which application, the foundation of disqualification of respondent was already laid down. The order passed by the Chairman is based on a petition dated 02.09.2017 as well as the material and evidence, which was brought on record before the Chairman. Additional evidence, which is sought to be brought on record of the writ petition was not the basis for seeking disqualification of the respondent, hence, we do not find any error in the order of the High Court rejecting the C.M. Application No. 27159 of 2018. While upholding the order of the High court rejecting the C.M. Application No. 27159 of 2018, we, however, make few observations. 15. An event or a conduct of a person even though subsequent to passing of an order of Speaker or Chairman ordinarily may not be relevant for determining the validity of the order of the Speaker or Chairman but in a case where subsequent event or conduct of member is relevant with respect to state of affairs as pertaining to the time when member has incurred disqualification, that subsequent events can be taken into consideration by the High Court in exercise of its jurisdiction under Article 226. Justice Hidayatullah, (as he then was) speaking for this Court in Mohd. Ikram Hussain Vs. State of Uttar Pradesh and Others, AIR 1964 SC 1625 has made a very pertinent observation with regard to acceptance of evidence. It observed that if the Court requires an evidence that can always be received. In paragraph 19, following was laid down: - (19) ………………………All procedure is always open to a Court which is not expressly prohibited and no rule of this Court has laid down that evidence shall not be received, if the Court requires it……………………………. 16. The observations made by the High Court in paragraph 4, i.e., any event subsequent to the passing of the said order cannot be a consideration for this Court to test the legality of the said order may be generally correct but there can be exception if the above statement is treated as statement of law. 17. In a writ petition under Article 226 subsequent events can be taken note of for varied purposes. We are reminded of the weighty observation of Justice V.R. Krishna Iyer in Pasupuleti Venkateswarlu Vs. The Motor & General Traders, (1975) 1 SCC 770 , where following was observed: - 4. ………………………………………………. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice — subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed……………………………………. 18. The observations made in paragraph 4 as quoted above need not to be read as laying down a law that in any case subsequent event cannot be considered for testing the legality of the order impugned or for moulding the relief in a writ petition under Article 226. | 0[ds]12. The decision taken by the Speaker, thus, has to be on the basis of conduct or actions taken by member, which may amount to voluntarily giving up his membership. The facts and sequence of the events on the basis of which Honble Chairman came to the conclusion that a person has incurred disqualification under paragraph 2(1)(a) of the Tenth Schedule are all facts, which had occurred prior to adjudication by the Honble Chairman. In the facts of the present case, the Chairman of Rajya Sabha has passed the order on 04.12.2019 on the claim of the appellant praying for disqualification as noticed above. The foundation of order of the Chairman are the facts and events, which took place after 26.07.2017. The petition having been filed by the appellant on 02.09.2017, petition has to be treated to be founded on facts and events, which took place on or before 02.09.201713. Now, reverting to the C.M. Application No. 27159 of 2018, we need to note as to what was the additional evidence, which was sought to be brought on record of the writ petition.Paragraph 4 and 5 of the application contains the details of Annexure 1 and Annexure 2, which is sought to be brought on record, which is as follows: -4. That it is respectfully submitted that during the pendency of the above matter, the petitioner has formed/launched a new political party called the Loktantrik Janata Dal on 18.05.2018 at the Talkatora Stadium. Photographs, video clippings, posters and banners are proof of this formation and his active role therein. Photocopies of the pictures of the petitioner are annexed hereto as Annexure 1 collectively. Video recording of the speeches by the petitioner in the said event as also some more photographs have been extracted in a CD which is annexed hereto as Annexure-25. That the annexures are the true copies of their respective originals14. Paragraph 4 and the Annexures 1 and 2 referred therein clearly indicate that what was sought to be taken on record was an event which took place on 18.05.2018 in which event a new political party called the Loktantrik Janata Dal was formed/launched. The application which was filed by the appellant seeking disqualification of the respondent was filed on 02.09.2017 in which application, the foundation of disqualification of respondent was already laid down. The order passed by the Chairman is based on a petition dated 02.09.2017 as well as the material and evidence, which was brought on record before the Chairman. Additional evidence, which is sought to be brought on record of the writ petition was not the basis for seeking disqualification of the respondent, hence, we do not find any error in the order of the High Court rejecting the C.M. Application No. 27159 of 2018. While upholding the order of the High court rejecting the C.M. Application No. 27159 of 2018, we, however, make few observations15. An event or a conduct of a person even though subsequent to passing of an order of Speaker or Chairman ordinarily may not be relevant for determining the validity of the order of the Speaker or Chairman but in a case where subsequent event or conduct of member is relevant with respect to state of affairs as pertaining to the time when member has incurred disqualification, that subsequent events can be taken into consideration by the High Court in exercise of its jurisdiction under Article 22616. The observations made by the High Court in paragraph 4, i.e., any event subsequent to the passing of the said order cannot be a consideration for this Court to test the legality of the said order may be generally correct but there can be exception if the above statement is treated as statement of law17. In a writ petition under Article 226 subsequent events can be taken note of for varied purposes. We are reminded of the weighty observation of Justice V.R. Krishna Iyer in Pasupuleti Venkateswarlu Vs. The Motor & General Traders, (1975) 1 SCC 770 , where following was observed: -4. ………………………………………………. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice — subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed……………………………………18. The observations made in paragraph 4 as quoted above need not to be read as laying down a law that in any case subsequent event cannot be considered for testing the legality of the order impugned or for moulding the relief in a writ petition under Article 226. | 0 | 4,280 | 1,072 | ### Instruction:
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the present case, the Chairman of Rajya Sabha has passed the order on 04.12.2019 on the claim of the appellant praying for disqualification as noticed above. The foundation of order of the Chairman are the facts and events, which took place after 26.07.2017. The petition having been filed by the appellant on 02.09.2017, petition has to be treated to be founded on facts and events, which took place on or before 02.09.2017. 13. Now, reverting to the C.M. Application No. 27159 of 2018, we need to note as to what was the additional evidence, which was sought to be brought on record of the writ petition. Paragraph 4 and 5 of the application contains the details of Annexure 1 and Annexure 2, which is sought to be brought on record, which is as follows: - 4. That it is respectfully submitted that during the pendency of the above matter, the petitioner has formed/launched a new political party called the Loktantrik Janata Dal on 18.05.2018 at the Talkatora Stadium. Photographs, video clippings, posters and banners are proof of this formation and his active role therein. Photocopies of the pictures of the petitioner are annexed hereto as Annexure 1 collectively. Video recording of the speeches by the petitioner in the said event as also some more photographs have been extracted in a CD which is annexed hereto as Annexure-2. 5. That the annexures are the true copies of their respective originals. 14. Paragraph 4 and the Annexures 1 and 2 referred therein clearly indicate that what was sought to be taken on record was an event which took place on 18.05.2018 in which event a new political party called the Loktantrik Janata Dal was formed/launched. The application which was filed by the appellant seeking disqualification of the respondent was filed on 02.09.2017 in which application, the foundation of disqualification of respondent was already laid down. The order passed by the Chairman is based on a petition dated 02.09.2017 as well as the material and evidence, which was brought on record before the Chairman. Additional evidence, which is sought to be brought on record of the writ petition was not the basis for seeking disqualification of the respondent, hence, we do not find any error in the order of the High Court rejecting the C.M. Application No. 27159 of 2018. While upholding the order of the High court rejecting the C.M. Application No. 27159 of 2018, we, however, make few observations. 15. An event or a conduct of a person even though subsequent to passing of an order of Speaker or Chairman ordinarily may not be relevant for determining the validity of the order of the Speaker or Chairman but in a case where subsequent event or conduct of member is relevant with respect to state of affairs as pertaining to the time when member has incurred disqualification, that subsequent events can be taken into consideration by the High Court in exercise of its jurisdiction under Article 226. Justice Hidayatullah, (as he then was) speaking for this Court in Mohd. Ikram Hussain Vs. State of Uttar Pradesh and Others, AIR 1964 SC 1625 has made a very pertinent observation with regard to acceptance of evidence. It observed that if the Court requires an evidence that can always be received. In paragraph 19, following was laid down: - (19) ………………………All procedure is always open to a Court which is not expressly prohibited and no rule of this Court has laid down that evidence shall not be received, if the Court requires it……………………………. 16. The observations made by the High Court in paragraph 4, i.e., any event subsequent to the passing of the said order cannot be a consideration for this Court to test the legality of the said order may be generally correct but there can be exception if the above statement is treated as statement of law. 17. In a writ petition under Article 226 subsequent events can be taken note of for varied purposes. We are reminded of the weighty observation of Justice V.R. Krishna Iyer in Pasupuleti Venkateswarlu Vs. The Motor & General Traders, (1975) 1 SCC 770 , where following was observed: - 4. ………………………………………………. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice — subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed……………………………………. 18. The observations made in paragraph 4 as quoted above need not to be read as laying down a law that in any case subsequent event cannot be considered for testing the legality of the order impugned or for moulding the relief in a writ petition under Article 226.
### Response:
0
### Explanation:
12. The decision taken by the Speaker, thus, has to be on the basis of conduct or actions taken by member, which may amount to voluntarily giving up his membership. The facts and sequence of the events on the basis of which Honble Chairman came to the conclusion that a person has incurred disqualification under paragraph 2(1)(a) of the Tenth Schedule are all facts, which had occurred prior to adjudication by the Honble Chairman. In the facts of the present case, the Chairman of Rajya Sabha has passed the order on 04.12.2019 on the claim of the appellant praying for disqualification as noticed above. The foundation of order of the Chairman are the facts and events, which took place after 26.07.2017. The petition having been filed by the appellant on 02.09.2017, petition has to be treated to be founded on facts and events, which took place on or before 02.09.201713. Now, reverting to the C.M. Application No. 27159 of 2018, we need to note as to what was the additional evidence, which was sought to be brought on record of the writ petition.Paragraph 4 and 5 of the application contains the details of Annexure 1 and Annexure 2, which is sought to be brought on record, which is as follows: -4. That it is respectfully submitted that during the pendency of the above matter, the petitioner has formed/launched a new political party called the Loktantrik Janata Dal on 18.05.2018 at the Talkatora Stadium. Photographs, video clippings, posters and banners are proof of this formation and his active role therein. Photocopies of the pictures of the petitioner are annexed hereto as Annexure 1 collectively. Video recording of the speeches by the petitioner in the said event as also some more photographs have been extracted in a CD which is annexed hereto as Annexure-25. That the annexures are the true copies of their respective originals14. Paragraph 4 and the Annexures 1 and 2 referred therein clearly indicate that what was sought to be taken on record was an event which took place on 18.05.2018 in which event a new political party called the Loktantrik Janata Dal was formed/launched. The application which was filed by the appellant seeking disqualification of the respondent was filed on 02.09.2017 in which application, the foundation of disqualification of respondent was already laid down. The order passed by the Chairman is based on a petition dated 02.09.2017 as well as the material and evidence, which was brought on record before the Chairman. Additional evidence, which is sought to be brought on record of the writ petition was not the basis for seeking disqualification of the respondent, hence, we do not find any error in the order of the High Court rejecting the C.M. Application No. 27159 of 2018. While upholding the order of the High court rejecting the C.M. Application No. 27159 of 2018, we, however, make few observations15. An event or a conduct of a person even though subsequent to passing of an order of Speaker or Chairman ordinarily may not be relevant for determining the validity of the order of the Speaker or Chairman but in a case where subsequent event or conduct of member is relevant with respect to state of affairs as pertaining to the time when member has incurred disqualification, that subsequent events can be taken into consideration by the High Court in exercise of its jurisdiction under Article 22616. The observations made by the High Court in paragraph 4, i.e., any event subsequent to the passing of the said order cannot be a consideration for this Court to test the legality of the said order may be generally correct but there can be exception if the above statement is treated as statement of law17. In a writ petition under Article 226 subsequent events can be taken note of for varied purposes. We are reminded of the weighty observation of Justice V.R. Krishna Iyer in Pasupuleti Venkateswarlu Vs. The Motor & General Traders, (1975) 1 SCC 770 , where following was observed: -4. ………………………………………………. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice — subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myriad. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the Court can, and in many cases must, take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed……………………………………18. The observations made in paragraph 4 as quoted above need not to be read as laying down a law that in any case subsequent event cannot be considered for testing the legality of the order impugned or for moulding the relief in a writ petition under Article 226.
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State of U.P Vs. U.P. State Law Officers' Association | any court other than the High Court. Their appointments are made through open competition from among those who are eligible for appointment and strictly on the basis of merit as evidenced by the particulars of their practice, opinions of the District Magistrate and the District Judge and also after taking into consideration their character and conduct. Their appointment is in the first instance for one year. It is only after their satisfactory performance during that period that a deed of engagement is given to them, and even then the engagement is to be for a term not exceeding three years. The renewal of their further term again depends upon the quality of work and conduct, capacity as a lawyer, professional conduct, public reputation in general, and character and integrity as certified by the District Magistrate and the District Judge. For the said purpose, the District Magistrate and the District Judge is required to maintain a character roll and a record of the work done by the officer and the capacity displayed by him in discharge of the work. His work is also subject to strict supervision. The shortcomings in the work are required to be brought to the notice of the Legal Remembrancer. It will thus be seen that the appointment of the two sets of officers viz., the Government Counsel in the High Court with whom we are concerned and the District Government Counsel with whom the said decision was concerned, are made by dissimilar procedures. The latter are not appointed as a part of the spoils system. Having been selected on merit and for no other consideration, they are entitled to continue in their office for the period of the contract of their engagement and they can be removed only for valid reasons. The people are interested in their continuance for the period of their contracts and in their non- substitution by those whom may come in through the spoils system. It is in these circumstances that this Court held that the wholesale termination of their services was arbitrary and violative of Article 14 of the Constitution. The ratio of the said decision can hardly be applied to the appointments of the law officers in the High Court whose appointment itself was arbitrary and was made in disregard of Article 14 of the Constitution as pointed out above. What is further, since the appointment of District Government Counsel is made strictly on the basis of comparative merits and after screening at different levels, the termination of their services is not consistent with the public interests. We are, therefore, of the view that the High Court committed a patent error of law in setting aside the order dated 23.7.1990 terminating the services of the respondent-law officers.21. Coming now to the High Courts order setting aside the Government Order dated 26.5.1990 by which the Government had abolished the system of Brief Holders, and instead the power was given to the Legal Remembrancer to appoint special counsel for special matters, we are of the view that the High Court has committed a still graver error. As has been pointed out above, Chapter VI of the said Manual deals with the system of appointing a panel of Brief Holders in the High Court. The appointment of the Lawyers on the panel of Brief Holders is made by the State Government only in consultation with the Advocate General who is its own officer and from among the advocate of the High Court who have completed a minimum of five years practice at the Bar. The selection of Brief Holders is not made after open competition. Their appointment is purely at the discretion of the State Government. The Brief Holders are further appointed to handle that work which cannot be attended to by the Government Advocate and Chief Standing Counsel. No salary or any other kind of monthly remuneration is payable to them. They are paid per brief handled by them. They are not barred from private practice or from accepting cases against the Government. It will thus be apparent that their appointment is in supernumerary capacity. It is necessitated because there may be work which cannot be attended to by the Government Advocate and the Chief Standing Counsel. They are not assured of any regular work much less any regular fee or remuneration. They get briefs only if the Government Advocate and Chief Standing Counsel are over worked and not otherwise. They are like ad hoc counsel engaged for doing a particular work when available. Their only qualification is that they are on the panel of the counsel to be so appointed for handling the surplus work. We are, therefore, at a loss to understand as to how any fault can be found with the Government if the Government has now thought it fit to abolish the said system and to appoint each time special counsel for special cases in their place.22. It is evident from the tenor of the High Court judgment that the Legal Remembrancer has been made a special target and has been treated almost like the villain of the piece. The judgment ignores that the Legal Remembrancer as a responsible officer and part of the government always had a role to play in the appointments of the counsel, in the distribution of the work among them and also in supervising their work and in sanctioning their bills. For this purpose, we have referred to the relevant provisions of Chapters V, VI and VII of the Manual in extenso. Even a cursory reading of the said chapters, will show that no material additional power has been vested in him by the Government on account of the present measures. In any case, if the Government has chosen to do so, the Legal Remembrancer can hardly be blamed for the same. Certainly he does not deserve the kind of compliments which the High Court has chosen to pay him. The comments and observations made against him are, therefore, both unjustified and unfortunate. | 1[ds]Suffice it for the present to bear in mind that the appointment and conditions of engagement of District Government Counsel have been dealt with in the said Manual separately from the appointment of the Chief Standing Counsel, Standing Counsel and Brief Holders in the Highthe contract in some cases prohibited the lawyers from accepting private briefs, the nature of the contract did not alter from one of professional engagement to that of employment. The lawyer of the Government or a public body was not its employee but was a professional practitioner engaged to do the specified work. This is so even today, though the lawyers on the full time rolls of the government and the public bodies are described as their law officers. It is precisely for this reason that in the case of such law officers, the saving clause of Rule 49 of the Bar Council of India Rules, waives the prohibition imposed by the said rule against the acceptance by a lawyer of ag a responsible officer of the court and an important adjunct of the administration of justice, the lawyer also owes a duty to the court as well as the opposite side. He has to be fair to ensure that justice is done. He demeans himself if he acts merely as a mouthpiece of his client. This relationship between the lawyer and the private client is equally valid between him and the public bodies.The mode of appointment of lawyers for the public bodies, therefore, has to be in conformity with the obligation cast on them to select the most meritorious. An open invitation to the lawyers to compete for the posts is by far the best mode of such selection. But sometimes the best may not compete or a competent candidate may not be available from among the competitors. In such circumstances, the public bodies may resort to other methods such as inviting and appointing the best available, although he may not have applied for the post. Whatever the method adopted, it must be shown that the search for the meritorious was undertaken and the appointments were made only on the basis of the merits and not for any otherbeen selected on merit and for no other consideration, they are entitled to continue in their office for the period of the contract of their engagement and they can be removed only for valid reasons. The people are interested in their continuance for the period of their contracts and in their nonsubstitution by those whom may come in through the spoils system. It is in these circumstances that this Court held that the wholesale termination of their services was arbitrary and violative of Article 14 of the Constitution. The ratio of the said decision can hardly be applied to the appointments of the law officers in the High Court whose appointment itself was arbitrary and was made in disregard of Article 14 of the Constitution as pointed out above. What is further, since the appointment of District Government Counsel is made strictly on the basis of comparative merits and after screening at different levels, the termination of their services is not consistent with the public interests. We are, therefore, of the view that the High Court committed a patent error of law in setting aside the order dated 23.7.1990 terminating the services of theofficers.21. Coming now to the High Courts order setting aside the Government Order dated 26.5.1990 by which the Government had abolished the system of Brief Holders, and instead the power was given to the Legal Remembrancer to appoint special counsel for special matters, we are of the view that the High Court has committed a still graver error. As has been pointed out above, Chapter VI of the said Manual deals with the system of appointing a panel of Brief Holders in the High Court. The appointment of the Lawyers on the panel of Brief Holders is made by the State Government only in consultation with the Advocate General who is its own officer and from among the advocate of the High Court who have completed a minimum of five years practice at the Bar. The selection of Brief Holders is not made after open competition. Their appointment is purely at the discretion of the State Government. The Brief Holders are further appointed to handle that work which cannot be attended to by the Government Advocate and Chief Standing Counsel. No salary or any other kind of monthly remuneration is payable to them. They are paid per brief handled by them. They are not barred from private practice or from accepting cases against the Government. It will thus be apparent that their appointment is in supernumerary capacity. It is necessitated because there may be work which cannot be attended to by the Government Advocate and the Chief Standing Counsel. They are not assured of any regular work much less any regular fee or remuneration. They get briefs only if the Government Advocate and Chief Standing Counsel are over worked and not otherwise. They are like ad hoc counsel engaged for doing a particular work when available. Their only qualification is that they are on the panel of the counsel to be so appointed for handling the surplus work. We are, therefore, at a loss to understand as to how any fault can be found with the Government if the Government has now thought it fit to abolish the said system and to appoint each time special counsel for special cases in their place.22. It is evident from the tenor of the High Court judgment that the Legal Remembrancer has been made a special target and has been treated almost like the villain of the piece. The judgment ignores that the Legal Remembrancer as a responsible officer and part of the government always had a role to play in the appointments of the counsel, in the distribution of the work among them and also in supervising their work and in sanctioning their bills. For this purpose, we have referred to the relevant provisions of Chapters V, VI and VII of the Manual in extenso. Even a cursory reading of the said chapters, will show that no material additional power has been vested in him by the Government on account of the present measures. In any case, if the Government has chosen to do so, the Legal Remembrancer can hardly be blamed for the same. Certainly he does not deserve the kind of compliments which the High Court has chosen to pay him. The comments and observations made against him are, therefore, both unjustified and unfortunate. | 1 | 6,651 | 1,174 | ### 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:
any court other than the High Court. Their appointments are made through open competition from among those who are eligible for appointment and strictly on the basis of merit as evidenced by the particulars of their practice, opinions of the District Magistrate and the District Judge and also after taking into consideration their character and conduct. Their appointment is in the first instance for one year. It is only after their satisfactory performance during that period that a deed of engagement is given to them, and even then the engagement is to be for a term not exceeding three years. The renewal of their further term again depends upon the quality of work and conduct, capacity as a lawyer, professional conduct, public reputation in general, and character and integrity as certified by the District Magistrate and the District Judge. For the said purpose, the District Magistrate and the District Judge is required to maintain a character roll and a record of the work done by the officer and the capacity displayed by him in discharge of the work. His work is also subject to strict supervision. The shortcomings in the work are required to be brought to the notice of the Legal Remembrancer. It will thus be seen that the appointment of the two sets of officers viz., the Government Counsel in the High Court with whom we are concerned and the District Government Counsel with whom the said decision was concerned, are made by dissimilar procedures. The latter are not appointed as a part of the spoils system. Having been selected on merit and for no other consideration, they are entitled to continue in their office for the period of the contract of their engagement and they can be removed only for valid reasons. The people are interested in their continuance for the period of their contracts and in their non- substitution by those whom may come in through the spoils system. It is in these circumstances that this Court held that the wholesale termination of their services was arbitrary and violative of Article 14 of the Constitution. The ratio of the said decision can hardly be applied to the appointments of the law officers in the High Court whose appointment itself was arbitrary and was made in disregard of Article 14 of the Constitution as pointed out above. What is further, since the appointment of District Government Counsel is made strictly on the basis of comparative merits and after screening at different levels, the termination of their services is not consistent with the public interests. We are, therefore, of the view that the High Court committed a patent error of law in setting aside the order dated 23.7.1990 terminating the services of the respondent-law officers.21. Coming now to the High Courts order setting aside the Government Order dated 26.5.1990 by which the Government had abolished the system of Brief Holders, and instead the power was given to the Legal Remembrancer to appoint special counsel for special matters, we are of the view that the High Court has committed a still graver error. As has been pointed out above, Chapter VI of the said Manual deals with the system of appointing a panel of Brief Holders in the High Court. The appointment of the Lawyers on the panel of Brief Holders is made by the State Government only in consultation with the Advocate General who is its own officer and from among the advocate of the High Court who have completed a minimum of five years practice at the Bar. The selection of Brief Holders is not made after open competition. Their appointment is purely at the discretion of the State Government. The Brief Holders are further appointed to handle that work which cannot be attended to by the Government Advocate and Chief Standing Counsel. No salary or any other kind of monthly remuneration is payable to them. They are paid per brief handled by them. They are not barred from private practice or from accepting cases against the Government. It will thus be apparent that their appointment is in supernumerary capacity. It is necessitated because there may be work which cannot be attended to by the Government Advocate and the Chief Standing Counsel. They are not assured of any regular work much less any regular fee or remuneration. They get briefs only if the Government Advocate and Chief Standing Counsel are over worked and not otherwise. They are like ad hoc counsel engaged for doing a particular work when available. Their only qualification is that they are on the panel of the counsel to be so appointed for handling the surplus work. We are, therefore, at a loss to understand as to how any fault can be found with the Government if the Government has now thought it fit to abolish the said system and to appoint each time special counsel for special cases in their place.22. It is evident from the tenor of the High Court judgment that the Legal Remembrancer has been made a special target and has been treated almost like the villain of the piece. The judgment ignores that the Legal Remembrancer as a responsible officer and part of the government always had a role to play in the appointments of the counsel, in the distribution of the work among them and also in supervising their work and in sanctioning their bills. For this purpose, we have referred to the relevant provisions of Chapters V, VI and VII of the Manual in extenso. Even a cursory reading of the said chapters, will show that no material additional power has been vested in him by the Government on account of the present measures. In any case, if the Government has chosen to do so, the Legal Remembrancer can hardly be blamed for the same. Certainly he does not deserve the kind of compliments which the High Court has chosen to pay him. The comments and observations made against him are, therefore, both unjustified and unfortunate.
### Response:
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### Explanation:
even today, though the lawyers on the full time rolls of the government and the public bodies are described as their law officers. It is precisely for this reason that in the case of such law officers, the saving clause of Rule 49 of the Bar Council of India Rules, waives the prohibition imposed by the said rule against the acceptance by a lawyer of ag a responsible officer of the court and an important adjunct of the administration of justice, the lawyer also owes a duty to the court as well as the opposite side. He has to be fair to ensure that justice is done. He demeans himself if he acts merely as a mouthpiece of his client. This relationship between the lawyer and the private client is equally valid between him and the public bodies.The mode of appointment of lawyers for the public bodies, therefore, has to be in conformity with the obligation cast on them to select the most meritorious. An open invitation to the lawyers to compete for the posts is by far the best mode of such selection. But sometimes the best may not compete or a competent candidate may not be available from among the competitors. In such circumstances, the public bodies may resort to other methods such as inviting and appointing the best available, although he may not have applied for the post. Whatever the method adopted, it must be shown that the search for the meritorious was undertaken and the appointments were made only on the basis of the merits and not for any otherbeen selected on merit and for no other consideration, they are entitled to continue in their office for the period of the contract of their engagement and they can be removed only for valid reasons. The people are interested in their continuance for the period of their contracts and in their nonsubstitution by those whom may come in through the spoils system. It is in these circumstances that this Court held that the wholesale termination of their services was arbitrary and violative of Article 14 of the Constitution. The ratio of the said decision can hardly be applied to the appointments of the law officers in the High Court whose appointment itself was arbitrary and was made in disregard of Article 14 of the Constitution as pointed out above. What is further, since the appointment of District Government Counsel is made strictly on the basis of comparative merits and after screening at different levels, the termination of their services is not consistent with the public interests. We are, therefore, of the view that the High Court committed a patent error of law in setting aside the order dated 23.7.1990 terminating the services of theofficers.21. Coming now to the High Courts order setting aside the Government Order dated 26.5.1990 by which the Government had abolished the system of Brief Holders, and instead the power was given to the Legal Remembrancer to appoint special counsel for special matters, we are of the view that the High Court has committed a still graver error. As has been pointed out above, Chapter VI of the said Manual deals with the system of appointing a panel of Brief Holders in the High Court. The appointment of the Lawyers on the panel of Brief Holders is made by the State Government only in consultation with the Advocate General who is its own officer and from among the advocate of the High Court who have completed a minimum of five years practice at the Bar. The selection of Brief Holders is not made after open competition. Their appointment is purely at the discretion of the State Government. The Brief Holders are further appointed to handle that work which cannot be attended to by the Government Advocate and Chief Standing Counsel. No salary or any other kind of monthly remuneration is payable to them. They are paid per brief handled by them. They are not barred from private practice or from accepting cases against the Government. It will thus be apparent that their appointment is in supernumerary capacity. It is necessitated because there may be work which cannot be attended to by the Government Advocate and the Chief Standing Counsel. They are not assured of any regular work much less any regular fee or remuneration. They get briefs only if the Government Advocate and Chief Standing Counsel are over worked and not otherwise. They are like ad hoc counsel engaged for doing a particular work when available. Their only qualification is that they are on the panel of the counsel to be so appointed for handling the surplus work. We are, therefore, at a loss to understand as to how any fault can be found with the Government if the Government has now thought it fit to abolish the said system and to appoint each time special counsel for special cases in their place.22. It is evident from the tenor of the High Court judgment that the Legal Remembrancer has been made a special target and has been treated almost like the villain of the piece. The judgment ignores that the Legal Remembrancer as a responsible officer and part of the government always had a role to play in the appointments of the counsel, in the distribution of the work among them and also in supervising their work and in sanctioning their bills. For this purpose, we have referred to the relevant provisions of Chapters V, VI and VII of the Manual in extenso. Even a cursory reading of the said chapters, will show that no material additional power has been vested in him by the Government on account of the present measures. In any case, if the Government has chosen to do so, the Legal Remembrancer can hardly be blamed for the same. Certainly he does not deserve the kind of compliments which the High Court has chosen to pay him. The comments and observations made against him are, therefore, both unjustified and unfortunate.
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N.C.V. AISHWARYA Vs. A.S. SARAVANA KARTHIK SHA | 1. Leave granted. 2. This appeal is directed against the Order dated 19.11.2020 in TR.C.M.P. No.473 of 2020 whereby the High Court of Judicature at Madras has rejected the petition filed by the appellant-wife seeking transfer of a petition, F.C.O.P. No.125 of 2020 filed by her respondent-husband before the Family Court, Vellore, to the Family Court at Chennai. 3. The marriage between the appellant and the respondent was arranged and solemnized on 05.03.2020 at Kanna Mahal, Anna Salai, Vellore, in accordance with Hindu rituals and customs. It is the case of the respondent that the appellant started quarreling and fighting with the respondent for petty things and refused to consummate the marriage. The respondent filed the aforesaid F.C.O.P. No.125 of 2020 before the Family Court, Vellore, for annulment of their marriage. 4. The appellant is a resident of Chennai. She has also filed two cases. H.M.O.P. No.1741 of 2021 has been filed by her before the Family Court at Chennai against her husband for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955, and M.C. Sr. No.672 of 2021 before the Family Court at Chennai for maintenance under Section 125 of the Cr.P.C. 5. The appellant in her petition filed under Section 9 of the Hindu Marriage Act has contended amongst others that without any reasonable excuse, the respondent withdrew from her society and that the respondent is bound to live with the appellant and give her conjugal companionship. 6. The appellant filed a petition under Section 24 of the Code of Civil Procedure before the High Court of Judicature at Madras for transfer of F.C.O.P. No.125 of 2020 pending on the file of the Family Court, Vellore to the Family Court at Chennai. According to the appellant, her parents are old and that she is aged 21 years and not in a position to travel to Vellore through out the court proceedings without having any support. In addition, the appellant contends that it would not be possible for her aged parents to accompany her to Vellore. She is totally dependent on her parents morally and financially. She is not employed and does not have any other source of income. Moreover, she does not have any accommodation for staying at Vellore. The respondent has opposed the said petition. As noticed above, the High Court has dismissed the transfer petition. 7. We have heard learned counsel for the parties. 8. It is not disputed that the appellant is the resident of Chennai and that the appellants husband-respondent herein is the resident of Vellore and he is employed. The appellant who is 21 years old does not have any source of income of her own as she is not employed and is totally dependent on her parents for her livelihood. In order to attend the court proceedings of the case filed by her husband at Vellore she has to travel alone all the way from Chennai to Vellore as her parents are not in a position to accompany her on account of their old age. Secondly, the appellant has also filed a petition, H.M.O.P. No.1741 of 2021, for restitution of conjugal rights and another petition, M.C. Sr. No.672 of 2021, for her maintenance before the Family Court at Chennai. 9. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socioeconomic paradigm in the Indian society, generally, it is the wifes convenience which must be looked at while considering transfer. 10. Further, when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions. 11. As noticed above, the appellant is a young lady aged about 21 years, staying alone along with her aged parents. Under the above circumstances, it is difficult for her to travel all the way from Chennai to Vellore to attend the court proceedings of the case filed by the respondent seeking annulment of marriage. Further, it is also just and proper to club all the three cases together to avoid multiplicity of the proceedings and conflict of decisions. Therefore, the High Court was not justified in rejecting transfer petition bearing TR.C.M.P.No.473 of 2020, filed by the appellant herein. | 1[ds]8. It is not disputed that the appellant is the resident of Chennai and that the appellants husband-respondent herein is the resident of Vellore and he is employed. The appellant who is 21 years old does not have any source of income of her own as she is not employed and is totally dependent on her parents for her livelihood. In order to attend the court proceedings of the case filed by her husband at Vellore she has to travel alone all the way from Chennai to Vellore as her parents are not in a position to accompany her on account of their old age. Secondly, the appellant has also filed a petition, H.M.O.P. No.1741 of 2021, for restitution of conjugal rights and another petition, M.C. Sr. No.672 of 2021, for her maintenance before the Family Court at Chennai.9. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socioeconomic paradigm in the Indian society, generally, it is the wifes convenience which must be looked at while considering transfer.10. Further, when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions.11. As noticed above, the appellant is a young lady aged about 21 years, staying alone along with her aged parents. Under the above circumstances, it is difficult for her to travel all the way from Chennai to Vellore to attend the court proceedings of the case filed by the respondent seeking annulment of marriage. Further, it is also just and proper to club all the three cases together to avoid multiplicity of the proceedings and conflict of decisions. Therefore, the High Court was not justified in rejecting transfer petition bearing TR.C.M.P.No.473 of 2020, filed by the appellant herein. | 1 | 917 | 466 | ### 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:
1. Leave granted. 2. This appeal is directed against the Order dated 19.11.2020 in TR.C.M.P. No.473 of 2020 whereby the High Court of Judicature at Madras has rejected the petition filed by the appellant-wife seeking transfer of a petition, F.C.O.P. No.125 of 2020 filed by her respondent-husband before the Family Court, Vellore, to the Family Court at Chennai. 3. The marriage between the appellant and the respondent was arranged and solemnized on 05.03.2020 at Kanna Mahal, Anna Salai, Vellore, in accordance with Hindu rituals and customs. It is the case of the respondent that the appellant started quarreling and fighting with the respondent for petty things and refused to consummate the marriage. The respondent filed the aforesaid F.C.O.P. No.125 of 2020 before the Family Court, Vellore, for annulment of their marriage. 4. The appellant is a resident of Chennai. She has also filed two cases. H.M.O.P. No.1741 of 2021 has been filed by her before the Family Court at Chennai against her husband for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955, and M.C. Sr. No.672 of 2021 before the Family Court at Chennai for maintenance under Section 125 of the Cr.P.C. 5. The appellant in her petition filed under Section 9 of the Hindu Marriage Act has contended amongst others that without any reasonable excuse, the respondent withdrew from her society and that the respondent is bound to live with the appellant and give her conjugal companionship. 6. The appellant filed a petition under Section 24 of the Code of Civil Procedure before the High Court of Judicature at Madras for transfer of F.C.O.P. No.125 of 2020 pending on the file of the Family Court, Vellore to the Family Court at Chennai. According to the appellant, her parents are old and that she is aged 21 years and not in a position to travel to Vellore through out the court proceedings without having any support. In addition, the appellant contends that it would not be possible for her aged parents to accompany her to Vellore. She is totally dependent on her parents morally and financially. She is not employed and does not have any other source of income. Moreover, she does not have any accommodation for staying at Vellore. The respondent has opposed the said petition. As noticed above, the High Court has dismissed the transfer petition. 7. We have heard learned counsel for the parties. 8. It is not disputed that the appellant is the resident of Chennai and that the appellants husband-respondent herein is the resident of Vellore and he is employed. The appellant who is 21 years old does not have any source of income of her own as she is not employed and is totally dependent on her parents for her livelihood. In order to attend the court proceedings of the case filed by her husband at Vellore she has to travel alone all the way from Chennai to Vellore as her parents are not in a position to accompany her on account of their old age. Secondly, the appellant has also filed a petition, H.M.O.P. No.1741 of 2021, for restitution of conjugal rights and another petition, M.C. Sr. No.672 of 2021, for her maintenance before the Family Court at Chennai. 9. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socioeconomic paradigm in the Indian society, generally, it is the wifes convenience which must be looked at while considering transfer. 10. Further, when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions. 11. As noticed above, the appellant is a young lady aged about 21 years, staying alone along with her aged parents. Under the above circumstances, it is difficult for her to travel all the way from Chennai to Vellore to attend the court proceedings of the case filed by the respondent seeking annulment of marriage. Further, it is also just and proper to club all the three cases together to avoid multiplicity of the proceedings and conflict of decisions. Therefore, the High Court was not justified in rejecting transfer petition bearing TR.C.M.P.No.473 of 2020, filed by the appellant herein.
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8. It is not disputed that the appellant is the resident of Chennai and that the appellants husband-respondent herein is the resident of Vellore and he is employed. The appellant who is 21 years old does not have any source of income of her own as she is not employed and is totally dependent on her parents for her livelihood. In order to attend the court proceedings of the case filed by her husband at Vellore she has to travel alone all the way from Chennai to Vellore as her parents are not in a position to accompany her on account of their old age. Secondly, the appellant has also filed a petition, H.M.O.P. No.1741 of 2021, for restitution of conjugal rights and another petition, M.C. Sr. No.672 of 2021, for her maintenance before the Family Court at Chennai.9. The cardinal principle for exercise of power under Section 24 of the Code of Civil Procedure is that the ends of justice should demand the transfer of the suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider the plea of transfer, the Courts have to take into consideration the economic soundness of both the parties, the social strata of the spouses and their behavioural pattern, their standard of life prior to the marriage and subsequent thereto and the circumstances of both the parties in eking out their livelihood and under whose protective umbrella they are seeking their sustenance to life. Given the prevailing socioeconomic paradigm in the Indian society, generally, it is the wifes convenience which must be looked at while considering transfer.10. Further, when two or more proceedings are pending in different Courts between the same parties which raise common question of fact and law, and when the decisions in the cases are interdependent, it is desirable that they should be tried together by the same Judge so as to avoid multiplicity in trial of the same issues and conflict of decisions.11. As noticed above, the appellant is a young lady aged about 21 years, staying alone along with her aged parents. Under the above circumstances, it is difficult for her to travel all the way from Chennai to Vellore to attend the court proceedings of the case filed by the respondent seeking annulment of marriage. Further, it is also just and proper to club all the three cases together to avoid multiplicity of the proceedings and conflict of decisions. Therefore, the High Court was not justified in rejecting transfer petition bearing TR.C.M.P.No.473 of 2020, filed by the appellant herein.
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STATE BANK OF INDIA Vs. V. RAMAKRISHNAN | concluded that Section 14 does not intend to bar actions against assets of guarantors to the debts of the corporate debtor and recommended that an explanation to clarify this may be inserted in Section 14 of the Code. The scope of the moratorium may be restricted to the assets of the corporate debtor only.? 29. The Report of the said Committee makes it clear that the object of the amendment was to clarify and set at rest what the Committee thought was an overbroad interpretation of Section 14. That such clarificatory amendment is retrospective in nature, would be clear from the following judgments: (i) CIT v. Shelly Products, (2003) 5 SCC 461: ?38. It was submitted that after 1-4-1989, in case the assessment is annulled the assessee is entitled to refund only of the amount, if any, of the tax paid in excess of the tax chargeable on the total income returned by the assessee. But before the amendment came into effect the position in law was quite different and that is why the legislature thought it proper to amend the section and insert the proviso. On the other hand learned counsel for the Revenue submitted that the proviso is merely declaratory and does not change the legal position as it existed before the amendment. It was submitted that this Court in CIT v. Chittor Electric Supply Corpn [(1995) 2 SCC 430 : (1995) 212 ITR 404 ] has held that proviso (a) to Section 240 is declaratory and, therefore, proviso (b) should also be held to be declaratory. In our view that is not the correct position in law. Where the proviso consists of two parts, one part may be declaratory but the other part may not be so. Therefore, merely because one part of the proviso has been held to be declaratory it does not follow that the second part of the proviso is also declaratory. However, the view that we have taken supports the stand of the Revenue that proviso (b) to Section 240 is also declaratory. We have held that even under the unamended Section 240 of the Act, the assessee was only entitled to the refund of tax paid in excess of the tax chargeable on the total income returned by the assessee. We have held so without taking the aid of the amended provision. It, therefore, follows that proviso (b) to Section 240 is also declaratory. It seeks to clarify the law so as to remove doubts leading to the courts giving conflicting decisions, and in several cases directing the Revenue to refund the entire amount of income tax paid by the assessee where the Revenue was not in a position to frame a fresh assessment. Being clarificatory in nature it must be held to be retrospective, in the facts and circumstances of the case. It is well settled that the legislature may pass a declaratory Act to set aside what the legislature deems to have been a judicial error in the interpretation of statute. It only seeks to clear the meaning of a provision of the principal Act and make explicit that which was already implicit.? (ii) CIT v. Vatika Township, (2015) 1 SCC 1 : 32. Let us sharpen the discussion a little more. We may note that under certain circumstances, a particular amendment can be treated as clarificatory or declaratory in nature. Such statutory provisions are labelled as ?declaratory statutes?. The circumstances under which provisions can be termed as ?declaratory statutes? are explained by Justice G.P. Singh [Principles of Statutory Interpretation, (13 th Edn., Lexis Nexis Butterworths Wadhwa, Nagpur, 2012)] in the following manner: Declaratory statutes The presumption against retrospective operation is not applicable to declaratory statutes. As stated in CRAIES [W.F. Craies, Craies on Statute Law (7th Edn., Sweet and Maxwell Ltd., 1971)] and approved by the Supreme Court [in Central Bank of India v. Workmen, AIR 1960 SC 12 , para 29]: ‘For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a Preamble, and also the word ?declared? as well as the word ?enacted?.? But the use of the words ‘it is declared? is not conclusive that the Act is declaratory for these words may, at times, be used to introduced new rules of law and the Act in the latter case will only be amending the law and will not necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is ‘to explain? an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language ‘shall be deemed always to have meant? is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the pre-amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law which the Constitution came into force, the amending Act also will be part of the existing law.? The above summing up is factually based on the judgments of this Court as well as English decisions.? | 1[ds]19. We are afraid that such arguments have to be turned down on a careful reading of the Sections relied upon. Section 60 of the Code, in(1) thereof, refers to insolvency resolution and liquidation for both corporate debtors and personal guarantors, the Adjudicating Authority for which shall be the National Company Law Tribunal, having territorial jurisdiction over the place where the registered office of the corporate person is located. Thisis only important in that it locates the Tribunal which has territorial jurisdiction in insolvency resolution processes against corporate debtors. So far as personal guarantors are concerned, we have seen that Part III has not been brought into force, and neither has Section 243, which repeals theInsolvency Act, 1909 and the Provincial Insolvency Act, 1920. The net result of this is that so far as individual personal guarantors are concerned, they will continue to be proceeded against under the aforesaid two Insolvency Acts and not under the Code. Indeed, by a Press Release dated 28.08.2017, the Government of India, through the Ministry of Finance, cautioned that Section 243 of the Code, which provides for the repeal of said enactments, has not been notified till date, and further, that the provisions relating to insolvency resolution and bankruptcy for individuals and partnerships as contained in Part III of the Code are yet to be notified. Hence, it was advised that stakeholders who intend to pursue their insolvency cases may approach the appropriate authority/court under the existing enactments, instead of approaching the Debt Recovery Tribunals.20. It is for this reason that(2) of Section 60 speaks of an application relating to the ?bankruptcy? of a personal guarantor of a corporate debtor and states that any such bankruptcy proceedings shall be filed only before the National Company Law Tribunal. The argument of the learned counsel on behalf of the Respondents that ?bankruptcy? would include SARFAESI proceedings must be turned down as ?bankruptcy? has reference only to the two Insolvency Acts referred to above. Thus, SARFAESI proceedings against the guarantor can continue under the SARFAESI Act. Similarly,(3) speaks of a bankruptcy proceeding of a personal guarantor of the corporate debtor pending in any Court or Tribunal, which shall stand transferred to the Adjudicating Authority dealing with the insolvency resolution process or liquidation proceedings of such corporate debtor. An ?Adjudicating Authority?, defined under Section 5(1) of the Code, means the National Company Law Tribunal constituted under the Companies Act, 2013.21. The scheme of Section 60(2) and (3) is thus clear – the moment there is a proceeding against the corporate debtor pending under the 2016 Code, any bankruptcy proceeding against the individual personal guarantor will, if already initiated before the proceeding against the corporate debtor, be transferred to the National Company Law Tribunal or, if initiated after such proceedings had been commenced against the corporate debtor, be filed only in the National Company Law Tribunal. However, the Tribunal is to decide such proceedings only in accordance with theInsolvency Act, 1909 or the Provincial Insolvency Act, 1920, as the case may be. It is clear that(4), which states that the Tribunal shall be vested with all the powers of the Debt Recovery Tribunal, as contemplated under Part III of this Code, for the purposes of(2), would not take effect, as the Debt Recovery Tribunal has not yet been empowered to hear bankruptcy proceedings against individuals under Section 179 of the Code, as the said Section has not yet been brought into force. Also, we have seen that Section 249, dealing with the consequential amendment of the Recovery of Debts Act to empower Debt Recovery Tribunals to try such proceedings, has also not been brought into force. It is thus clear that Section 2(e), which was brought into force on 23.11.2017 would, when it refers to the application of the Code to a personal guarantor of a corporate debtor, apply only for the limited purpose contained in Section 60(2) and (3), as stated hereinabove. This is what is meant by strengthening the Corporate Insolvency Resolution Process in the Statement of Objects of the Amendment Act, 2018.22. Section 31 of the Act was also strongly relied upon by the Respondents. This Section only states that once a Resolution Plan, as approved by the Committee of Creditors, takes effect, it shall be binding on the corporate debtor as well as the guarantor. This is for the reason that otherwise, under Section 133 of the Indian Contract Act, 1872, any change made to the debt owed by the corporate debtor, without the surety?s consent, would relieve the guarantor from payment. Section 31(1), in fact, makes it clear that the guarantor cannot escape payment as the Resolution Plan, which has been approved, may well include provisions as to payments to be made by such guarantor. This is perhaps the reason that Annexure VI(e) to Form 6 contained in the Rules and Regulation 36(2) referred to above, require information as to personal guarantees that have been given in relation to the debts of the corporate debtor. Far from supporting the stand of the Respondents, it is clear that in point of fact, Section 31 is one more factor in favour of a personal guarantor having to pay for debts due without any moratorium applying to save him.23. We are also of the opinion that Sections 96 and 101, when contrasted with Section 14, would show that Section 14 cannot possibly apply to a personal guarantor. When an application is filed under Part III, anor a moratorium is applicable in respect of any debt due. First and foremost, this is a separate moratorium, applicable separately in the case of personal guarantors against whom insolvency resolution processes may be initiated under Part III. Secondly, the protection of the moratorium under these Sections is far greater than that of Section 14 in that pending legal proceedings in respect of the debt and not the debtor are stayed. The difference in language between Sections 14 and 101 is for a reason. Section 14 refers only to debts due by corporate debtors, who are limited liability companies, and it is clear that in the vast majority of cases, personal guarantees are given by Directors who are in management of the companies. The object of the Code is not to allow such guarantors to escape from an independent and coextensive liability to pay off the entire outstanding debt, which is why Section 14 is not applied to them. However, insofar as firms and individuals are concerned, guarantees are given in respect of individual debts by persons who have unlimited liability to pay them. And such guarantors may be complete strangers to the debtor – often it could be a personal friend. It is for this reason that the moratorium mentioned in Section 101 would cover such persons, as such moratorium is in relation to the debt and not the debtor. We may hasten to add that it is open to us to mark the difference in language between Sections 14 and 96 and 101, even though Sections 96 and 101 have not yet been brought into force. This is for the reason, as has been held in State of Kerala and Ors. v. Mar Appraem Kuri Co. Ltd. and Anr., (2012) 7 SCC 106 , that a law ‘made? by the Legislature is a law on the statute book even though it may not have been brought into force. The said judgment states: 79. The proviso to Article 254(2) provides that a law made by the State Legislature with the Presidents assent shall not prevent Parliament from making at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by a State Legislature. Thus, Parliament need not wait for the law made by the State Legislature with the Presidents assent to be brought into force as it can repeal, amend, vary or add to the assented State law no sooner it is made or enacted. We see no justification for inhibiting Parliament from repealing, amending or varying any State legislation, which has received the Presidents assent, overriding within the States territory, an earlier parliamentary enactment in the concurrent sphere, before it is brought into force. Parliament can repeal, amend, or vary such State law no sooner it is assented to by the President and that it need not wait till suchState law is brought into force. This view finds support in the judgment of this Court in Tulloch [AIR 1964 SC 1284 : (1964) 4 SCR 461 ] .Lastly, the definitions of the expressions ?laws in force? in Article 13(3)(b) and Article 372(3) Explanation I and ?existing law? in Article 366(10) show that the laws in force include laws passed or made by a legislature before the commencement of the Constitution and not repealed, notwithstanding that any such law may not be in operation at all. Thus, the definition of the expression ?laws in force? in Article 13(3)(b) and Article 372(3) Explanation I and the definition of the expression ?existing law? in Article 366(10) demolish the argument of the State of Kerala that a law has not been made for the purposes of Article 254, unless it is enforced. The expression ?existing law? finds place in Article 254. In Edward Mills Co. Ltd. v. State of Ajmer [AIR 1955 SC 25 ], this Court has held that there is no difference between an ?existing law? and a ?law in force?.81. Applying the tests enumerated hereinabove, we hold that the Kerala Chitties Act, 1975 became void on the making of the Chit Funds Act, 1982 on[when it received the assent of the President and got published in the Official Gazette] as the Central 1982 Act intended to cover the entire field with regard to the conduct of the chits and further that the State Finance Act 7 of 2002, introducing Section 4(1)(a) into the State 1975 Act, was void as the State Legislature was denuded of its authority to enact the said Finance Act 7 of 2002, except under Article 254(2), after the (Central) Chit Funds Act, 1982 occupied the entire field as envisaged in Article 254(1) of the Constitution.Thus, for the purpose of interpretation, it is certainly open for us to contrast Section 14 with Sections 96 and 101, as Sections 96 and 101 are laws made by the Legislature, even though they have not yet been brought into force.25. As argued by Shri Viswanathan, the historical background of the Code now needs to be looked at. Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 reads as follows: 22. Suspension of legal proceedings, contracts, etc.—(1) Where in respect of an industrial company, an inquiry under Section 16 is pending or any scheme referred to under Section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under Section 25 relating to an industrial company is pending, then, notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof [and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company] shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority. (2) Where the management of the sick industrial company is taken over or changed [in pursuance of any scheme sanctioned under Section 18] notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), or any other law or in the memorandum and articles of association of such company or any instrument having effect under the said Act or other law— (a) it shall not be lawful for the shareholders of such company or any other person to nominate or appoint any person to be a director of the company; (b) no resolution passed at any meeting of the shareholders of such company shall be given effect to unless approved by the Board. (3) [Where an inquiry under Section 16 is pending or any scheme referred to in Section 17 is under preparation or during the period] of consideration of any scheme under Section 18 or where any such scheme is sanctioned thereunder, for due implementation of the scheme, the Board may by order declare with respect to the sick industrial company concerned that the operation of all or any of the contracts, assurances of property, agreements, settlements, awards, standing orders or other instruments in force, to which such sick industrial company is a party or which may be applicable to such sick industrial company immediately before the date of such order, shall remain suspended or that all or any of the rights, privileges, obligations and liabilities accruing or arising thereunder before the said date, shall remain suspended or shall be enforceable with such adaptations and in such manner as may be specified by the Board: Provided that such declaration shall not be made for a period exceeding two years which may be extended by one year at a time so, however, that the total period shall not exceed seven years in the aggregate. (4) Any declaration made under(3) with respect to a sick industrial company shall have effect notwithstanding anything contained in the Companies Act, 1956 (1 of 1956), or any other law, the memorandum and articles of association of the company or any instrument having effect under the said Act or other law or any agreement or any decree or order of a court, tribunal, officer or other authority or of any submission, settlement or standing order and accordingly,— (a) any remedy for the enforcement of any right, privilege, obligation and liability suspended or modified by such declaration, and all proceedings relating thereto pending before any court, tribunal, officer or other authority shall remain stayed or be continued subject to such declaration; and (b) on the declaration ceasing to have effect— (i) any right, privilege, obligation or liability so remaining suspended or modified, shall become revived and enforceable as if the declaration had never been made; and (ii) any proceeding so remaining stayed shall be proceeded with subject to the provisions of any law which may then be in force, from the stage which had been reached when the proceedings became stayed. (5) In computing the period of limitation for the enforcement of any right, privilege, obligation or liability, the period during which it or the remedy for the enforcement thereof remains suspended under this section shall be excluded. It will be clear from a reading of(1) thereof that suits for the enforcement of any guarantee in respect of loans or advances granted to the industrial company, shall not lie or be proceeded with further, except with the consent of the Board or Appellate Authority. It may be noted that the Sick Industrial Companies (Special Provisions) Act, 1985 was repealed on 01.12.2016. By a notification dated 30.11.2016, Section 14 of the Code was brought into force w.e.f. 01.12.2016.The reasoning of the Bombay High Court in the judgment of M/s. Sicom Investments and Finance Ltd. (supra) commends itself to us. The reasoning of the Allahabad High Court, on the other hand, does not.27. We now come to the argument that the amendment of 2018, which makes it clear that Section 14(3), is now substituted to read that the provisions of(1) of Section 14 shall not apply to a surety in a contract of guarantee for corporate debtor.The Report of the said Committee makes it clear that the object of the amendment was to clarify and set at rest what the Committee thought was an overbroad interpretation of Section 14. That such clarificatory amendment is retrospective in nature, would be clear from the following judgments: (i) CIT v. Shelly Products, (2003) 5 SCCIt was submitted that afterin case the assessment is annulled the assessee is entitled to refund only of the amount, if any, of the tax paid in excess of the tax chargeable on the total income returned by the assessee. But before the amendment came into effect the position in law was quite different and that is why the legislature thought it proper to amend the section and insert the proviso. On the other hand learned counsel for the Revenue submitted that the proviso is merely declaratory and does not change the legal position as it existed before the amendment. It was submitted that this Court in CIT v. Chittor Electric Supply Corpn [(1995) 2 SCC 430 : (1995) 212 ITR 404 ] has held that proviso (a) to Section 240 is declaratory and, therefore, proviso (b) should also be held to be declaratory. In our view that is not the correct position in law. Where the proviso consists of two parts, one part may be declaratory but the other part may not be so. Therefore, merely because one part of the proviso has been held to be declaratory it does not follow that the second part of the proviso is also declaratory. However, the view that we have taken supports the stand of the Revenue that proviso (b) to Section 240 is also declaratory. We have held that even under the unamended Section 240 of the Act, the assessee was only entitled to the refund of tax paid in excess of the tax chargeable on the total income returned by the assessee. We have held so without taking the aid of the amended provision. It, therefore, follows that proviso (b) to Section 240 is also declaratory. It seeks to clarify the law so as to remove doubts leading to the courts giving conflicting decisions, and in several cases directing the Revenue to refund the entire amount of income tax paid by the assessee where the Revenue was not in a position to frame a fresh assessment. Being clarificatory in nature it must be held to be retrospective, in the facts and circumstances of the case. It is well settled that the legislature may pass a declaratory Act to set aside what the legislature deems to have been a judicial error in the interpretation of statute. It only seeks to clear the meaning of a provision of the principal Act and make explicit that which was alreadyCIT v. Vatika Township, (2015) 1 SCC 1 : 32. Let us sharpen the discussion a little more. We may note that under certain circumstances, a particular amendment can be treated as clarificatory or declaratory in nature. Such statutory provisions are labelled as ?declaratory statutes?. The circumstances under which provisions can be termed as ?declaratory statutes? are explained by Justice G.P. Singh [Principles of Statutory Interpretation, (13 th Edn., Lexis Nexis Butterworths Wadhwa, Nagpur, 2012)] in the following manner: Declaratory statutes The presumption against retrospective operation is not applicable to declaratory statutes. As stated in CRAIES [W.F. Craies, Craies on Statute Law (7th Edn., Sweet and Maxwell Ltd., 1971)] and approved by the Supreme Court [in Central Bank of India v. Workmen, AIR 1960 SC 12 , para 29]: ‘For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a Preamble, and also the word ?declared? as well as the word ?enacted?.? But the use of the words ‘it is declared? is not conclusive that the Act is declaratory for these words may, at times, be used to introduced new rules of law and the Act in the latter case will only be amending the law and will not necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is ‘to explain? an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language ‘shall be deemed always to have meant? is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when theprovision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law which the Constitution came into force, the amending Act also will be part of the existing law.? The above summing up is factually based on the judgments of this Court as well as English decisions.? | 1 | 11,239 | 4,109 | ### Instruction:
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concluded that Section 14 does not intend to bar actions against assets of guarantors to the debts of the corporate debtor and recommended that an explanation to clarify this may be inserted in Section 14 of the Code. The scope of the moratorium may be restricted to the assets of the corporate debtor only.? 29. The Report of the said Committee makes it clear that the object of the amendment was to clarify and set at rest what the Committee thought was an overbroad interpretation of Section 14. That such clarificatory amendment is retrospective in nature, would be clear from the following judgments: (i) CIT v. Shelly Products, (2003) 5 SCC 461: ?38. It was submitted that after 1-4-1989, in case the assessment is annulled the assessee is entitled to refund only of the amount, if any, of the tax paid in excess of the tax chargeable on the total income returned by the assessee. But before the amendment came into effect the position in law was quite different and that is why the legislature thought it proper to amend the section and insert the proviso. On the other hand learned counsel for the Revenue submitted that the proviso is merely declaratory and does not change the legal position as it existed before the amendment. It was submitted that this Court in CIT v. Chittor Electric Supply Corpn [(1995) 2 SCC 430 : (1995) 212 ITR 404 ] has held that proviso (a) to Section 240 is declaratory and, therefore, proviso (b) should also be held to be declaratory. In our view that is not the correct position in law. Where the proviso consists of two parts, one part may be declaratory but the other part may not be so. Therefore, merely because one part of the proviso has been held to be declaratory it does not follow that the second part of the proviso is also declaratory. However, the view that we have taken supports the stand of the Revenue that proviso (b) to Section 240 is also declaratory. We have held that even under the unamended Section 240 of the Act, the assessee was only entitled to the refund of tax paid in excess of the tax chargeable on the total income returned by the assessee. We have held so without taking the aid of the amended provision. It, therefore, follows that proviso (b) to Section 240 is also declaratory. It seeks to clarify the law so as to remove doubts leading to the courts giving conflicting decisions, and in several cases directing the Revenue to refund the entire amount of income tax paid by the assessee where the Revenue was not in a position to frame a fresh assessment. Being clarificatory in nature it must be held to be retrospective, in the facts and circumstances of the case. It is well settled that the legislature may pass a declaratory Act to set aside what the legislature deems to have been a judicial error in the interpretation of statute. It only seeks to clear the meaning of a provision of the principal Act and make explicit that which was already implicit.? (ii) CIT v. Vatika Township, (2015) 1 SCC 1 : 32. Let us sharpen the discussion a little more. We may note that under certain circumstances, a particular amendment can be treated as clarificatory or declaratory in nature. Such statutory provisions are labelled as ?declaratory statutes?. The circumstances under which provisions can be termed as ?declaratory statutes? are explained by Justice G.P. Singh [Principles of Statutory Interpretation, (13 th Edn., Lexis Nexis Butterworths Wadhwa, Nagpur, 2012)] in the following manner: Declaratory statutes The presumption against retrospective operation is not applicable to declaratory statutes. As stated in CRAIES [W.F. Craies, Craies on Statute Law (7th Edn., Sweet and Maxwell Ltd., 1971)] and approved by the Supreme Court [in Central Bank of India v. Workmen, AIR 1960 SC 12 , para 29]: ‘For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a Preamble, and also the word ?declared? as well as the word ?enacted?.? But the use of the words ‘it is declared? is not conclusive that the Act is declaratory for these words may, at times, be used to introduced new rules of law and the Act in the latter case will only be amending the law and will not necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is ‘to explain? an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language ‘shall be deemed always to have meant? is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the pre-amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law which the Constitution came into force, the amending Act also will be part of the existing law.? The above summing up is factually based on the judgments of this Court as well as English decisions.?
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Investments and Finance Ltd. (supra) commends itself to us. The reasoning of the Allahabad High Court, on the other hand, does not.27. We now come to the argument that the amendment of 2018, which makes it clear that Section 14(3), is now substituted to read that the provisions of(1) of Section 14 shall not apply to a surety in a contract of guarantee for corporate debtor.The Report of the said Committee makes it clear that the object of the amendment was to clarify and set at rest what the Committee thought was an overbroad interpretation of Section 14. That such clarificatory amendment is retrospective in nature, would be clear from the following judgments: (i) CIT v. Shelly Products, (2003) 5 SCCIt was submitted that afterin case the assessment is annulled the assessee is entitled to refund only of the amount, if any, of the tax paid in excess of the tax chargeable on the total income returned by the assessee. But before the amendment came into effect the position in law was quite different and that is why the legislature thought it proper to amend the section and insert the proviso. On the other hand learned counsel for the Revenue submitted that the proviso is merely declaratory and does not change the legal position as it existed before the amendment. It was submitted that this Court in CIT v. Chittor Electric Supply Corpn [(1995) 2 SCC 430 : (1995) 212 ITR 404 ] has held that proviso (a) to Section 240 is declaratory and, therefore, proviso (b) should also be held to be declaratory. In our view that is not the correct position in law. Where the proviso consists of two parts, one part may be declaratory but the other part may not be so. Therefore, merely because one part of the proviso has been held to be declaratory it does not follow that the second part of the proviso is also declaratory. However, the view that we have taken supports the stand of the Revenue that proviso (b) to Section 240 is also declaratory. We have held that even under the unamended Section 240 of the Act, the assessee was only entitled to the refund of tax paid in excess of the tax chargeable on the total income returned by the assessee. We have held so without taking the aid of the amended provision. It, therefore, follows that proviso (b) to Section 240 is also declaratory. It seeks to clarify the law so as to remove doubts leading to the courts giving conflicting decisions, and in several cases directing the Revenue to refund the entire amount of income tax paid by the assessee where the Revenue was not in a position to frame a fresh assessment. Being clarificatory in nature it must be held to be retrospective, in the facts and circumstances of the case. It is well settled that the legislature may pass a declaratory Act to set aside what the legislature deems to have been a judicial error in the interpretation of statute. It only seeks to clear the meaning of a provision of the principal Act and make explicit that which was alreadyCIT v. Vatika Township, (2015) 1 SCC 1 : 32. Let us sharpen the discussion a little more. We may note that under certain circumstances, a particular amendment can be treated as clarificatory or declaratory in nature. Such statutory provisions are labelled as ?declaratory statutes?. The circumstances under which provisions can be termed as ?declaratory statutes? are explained by Justice G.P. Singh [Principles of Statutory Interpretation, (13 th Edn., Lexis Nexis Butterworths Wadhwa, Nagpur, 2012)] in the following manner: Declaratory statutes The presumption against retrospective operation is not applicable to declaratory statutes. As stated in CRAIES [W.F. Craies, Craies on Statute Law (7th Edn., Sweet and Maxwell Ltd., 1971)] and approved by the Supreme Court [in Central Bank of India v. Workmen, AIR 1960 SC 12 , para 29]: ‘For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error, whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a Preamble, and also the word ?declared? as well as the word ?enacted?.? But the use of the words ‘it is declared? is not conclusive that the Act is declaratory for these words may, at times, be used to introduced new rules of law and the Act in the latter case will only be amending the law and will not necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is ‘to explain? an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language ‘shall be deemed always to have meant? is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when theprovision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law which the Constitution came into force, the amending Act also will be part of the existing law.? The above summing up is factually based on the judgments of this Court as well as English decisions.?
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Balwant Rai Saluja & Anr Etc.Etc Vs. Air India Ltd | it by the Central Government upon which adjudication is made by the CGIT. The same cannot be termed either as erroneous or error in law. Accordingly, I answer the point No.3 in favour the concerned workmen. Answer to point No.4: 50. The findings and reasons recorded on the contentious points by both the learned single Judge and the Division Bench of the Delhi High Court in the impugned judgment that no better service conditions than the Management of HCI would be provided to the canteen workers except to get free air tickets which apparently some employees of Air India are entitled to, is untenable in law. Incidentally this is another aspect which may have a bearing on the question of viability in terms of prevailing practice in industry. Perhaps, Air India must explore the significance of the region cum industry principle so well developed in our labour jurisprudence. It is seriously concerned about competition and viability rather than focus on the handful of canteen workers. 51. The learned single Judge and the Division Bench have interfered with the finding of fact recorded in the common award passed by the CGIT by disagreeing with the findings and reasons recorded by the CGIT and holding that the HCI is a subsidiary corporation of Air India and it has got 100% share holding and power to appoint the Directors of the HCI and after referring to the decisions of this Court in Kanpur Suraksha Karamchari Union case (supra), it held that it is a separate legal entity which finding of fact and reason has been concurred with by the Division Bench by assigning the similar reasons placing reliance on the decision of this Court in M.M.R. Khan?s case which decision supports the case of the concerned workmen. The said decision is distinguished by the Division Bench of the High Court after adverting to certain paragraphs without considering the relevant paragraph Nos. 25 and 30 which has laid down the legal principle and also referred to other judgments namely Indian Petrochemicals Corporation Ltd. and Hari Shanker Sharma referred to supra without piercing the veil to the real facts of the case. 52. Both the learned single Judge and the Division Bench have exceeded in their jurisdiction in exercising their extraordinary and supervisory jurisdiction in the Writ Petitions and the Letter Patent Appeals, while examining the correctness and findings recorded by the CGIT in the common award which the High Court has disagreed with and has set aside the common award impugned in the Writ Petitions filed by Air India. Both the learned single Judge and the Division Bench have exceeded their jurisdiction in interfering with findings of fact recorded by the CGIT on the points of dispute and the contentious issues on proper appreciation of pleadings, evidence on record and law laid down by this Court in the cases referred to in the award I have referred to the relevant factual aspects and legal evidence and the statutory provisions of the Factories Act, Rules and the Industrial Disputes Act, while answering to Point Nos.1, 2 and 3 in favour of the concerned workmen by recording my reasons in this judgment. Therefore, I have to hold that the learned single Judge and the Division Bench exceeded in their jurisdiction to interfere with the finding of fact recorded by the CGIT on the points of dispute which were referred to by the Central Government. For the reasons recorded by me on point Nos. 1 and 2 in this judgment and further answering the point No.3 in affirmative in favour of the concerned workmen holding that findings and reasons recorded by the CGIT on the point of dispute referred to it by the Central government are neither erroneous nor suffers from error in law. Also I have to hold while answering to point No. 4 that both the learned single Judge and the High Court have disagreed with the correct finding of fact recorded by the CGIT in its award. The findings recorded by the learned Singh Judge and Division Bench in the impugned judgment are not only erroneous but suffers from error in law as the same is contrary to the statutory provisions and law laid down by this Court which have been extensively referred to by me in the reasoning portion of this judgment in answer to point Nos. 1 and 2. Hence, I have to hold that findings and reasons recorded in the impugned judgment is wholly untenable and liable to be set aside and accordingly set aside by answering point no. 4 in affirmative in favour of the concerned workmen. Answer to Point No.5: 53. Since I have answered point No. 4 in favour of the concerned workmen and against Air India, the appellants are entitled for the reliefs as prayed for in these appeals. Accordingly, these appeals are allowed and common award dated 5.5.2004 passed in I.D. Nos.97 to 99 of 1996 in favour of the workmen is restored. Further, I direct the Management of Air India to absorb all the concerned workmen covered in the I.D. Nos.97 to 99 of 1996 as permanent workmen on its rolls from the date of their appointment and grant all the consequential benefits such as salary for which they are entitled for after computing properly, taking into consideration the pay scale and periodical wage revision that has taken place and are applicable to the respective posts of the concerned workmen as per the notification issued by the Lt. Governor, Union Territory of Delhi and on the basis of similar notifications applicable for them.54. Since I have allowed I.D. Nos. 97 to 99 of 1996, the Industrial Dispute case Nos. 107 and 108 of 1996 involving the workmen whose services were terminated during the pendency of petition before CGIT, must also be treated as permanent workmen at par with the concerned workmen involved in the instant case. The award for their reinstatement to their posts shall be passed with all consequential benefits with full back wages. | 1[ds]53. Since I have answered point No. 4 in favour of the concerned workmen and against Air India, the appellants are entitled for the reliefs as prayed for in these appeals. Accordingly, these appeals are allowed and common award dated 5.5.2004 passed in I.D. Nos.97 to 99 of 1996 in favour of the workmen is restored. Further, I direct the Management of Air India to absorb all the concerned workmen covered in the I.D. Nos.97 to 99 of 1996 as permanent workmen on its rolls from the date of their appointment and grant all the consequential benefits such as salary for which they are entitled for after computing properly, taking into consideration the pay scale and periodical wage revision that has taken place and are applicable to the respective posts of the concerned workmen as per the notification issued by the Lt. Governor, Union Territory of Delhi and on the basis of similar notifications applicable for them.54. Since I have allowed I.D. Nos. 97 to 99 of 1996, the Industrial Dispute case Nos. 107 and 108 of 1996 involving the workmen whose services were terminated during the pendency of petition before CGIT, must also be treated as permanent workmen at par with the concerned workmen involved in the instant case. The award for their reinstatement to their posts shall be passed with all consequential benefits with full back wages.Both the learned single Judge and the Division Bench have exceeded in their jurisdiction in exercising their extraordinary and supervisory jurisdiction in the Writ Petitions and the Letter Patent Appeals, while examining the correctness and findings recorded by the CGIT in the common award which the High Court has disagreed with and has set aside the common award impugned in the Writ Petitions filed by Air India. Both the learned single Judge and the Division Bench have exceeded their jurisdiction in interfering with findings of fact recorded by the CGIT on the points of dispute and the contentious issues on proper appreciation of pleadings, evidence on record and law laid down by this Court in the cases referred to in the award I have referred to the relevant factual aspects and legal evidence and the statutory provisions of the Factories Act, Rules and the Industrial Disputes Act, while answering to Point Nos.1, 2 and 3 in favour of the concerned workmen by recording my reasons in this judgment. Therefore, I have to hold that the learned single Judge and the Division Bench exceeded in their jurisdiction to interfere with the finding of fact recorded by the CGIT on the points of dispute which were referred to by the Central Government. For the reasons recorded by me on point Nos. 1 and 2 in this judgment and further answering the point No.3 in affirmative in favour of the concerned workmen holding that findings and reasons recorded by the CGIT on the point of dispute referred to it by the Central government are neither erroneous nor suffers from error in law. Also I have to hold while answering to point No. 4 that both the learned single Judge and the High Court have disagreed with the correct finding of fact recorded by the CGIT in its award. The findings recorded by the learned Singh Judge and Division Bench in the impugned judgment are not only erroneous but suffers from error in law as the same is contrary to the statutory provisions and law laid down by this Court which have been extensively referred to by me in the reasoning portion of this judgment in answer to point Nos. 1 and 2. Hence, I have to hold that findings and reasons recorded in the impugned judgment is wholly untenable and liable to be set aside and accordingly set aside by answering point no. 4 in affirmative in favour of the concerned workmen.In view of the foregoing reasons recorded by me in answering the point Nos. 1 and 2 after adverting to the relevant facts and interpretation of certain provisions of the Factories Act, Rules and the Industrial Disputes Act, particularly Sections 2(k), 2(s) read with the provisions of Section 25(T) and Section 25(U) of the Industrial Disputes Act and Entry No.10 in the Vth Schedule under the definition of unfair labour practices as defined in Section 2(ra) regarding the employment of the workmen on contract basis against the permanent nature of employment in the statutory canteen I have held that this practice by Air India constitutes unfair labour practice. The decisions rendered by this Court which have been extensively referred to by me and some of the cases referred to by the CGIT have rightly answered the points of dispute in favour of the concerned workmen, on proper appreciation of the facts pleaded, legal evidence on record and I have applied the legal principles laid down by this Court in the cases of Basti Sugar Mills Ltd., Parimal Chandra Raha, Kanpur Suraksha Karamchari Union and M.M.R. Khan (all referred to supra) to the fact situation of the case on hand to restore the award of the CGIT. The CGIT has rightly come to the conclusion and recorded the finding of fact assigning valid and cogent reasons. Therefore, I have to answer that the findings and reasons recorded by CGIT on the points of dispute in relation to the concerned employees declaring that the concerned contract workers of the canteen are deemed employees of Air India is a right decision which has been reached after appreciation of evidence on record and adhering to the legal principles laid down by this Court in catena of cases. Further, setting aside the termination orders passed against some of the concerned workmen covered in the industrial dispute case Nos.97 to 99 of 1996 is also justified for the reason that the services of the concerned workmen in the above cases were terminated during pendency of the industrial disputes before CGIT regarding absorption of the concerned workmen as permanent employees, without obtaining approval from the CGIT as required under Section 33(2)(b) of the I.D. Act. Apart from the above reason, the termination of services of the workmen involved in the above industrial dispute cases is unsustainable in law for the reason that they have not complied with the mandatory provisions of Section 25F, clauses (a) and (b) of the I.D. Act and have not obtained the permission from the Central Government as required under Section 25N of Chapter VB of the I.D. Act. Therefore, the orders of termination passed against the concerned workmen are void ab initio in law and the same are liable to be set aside. I have to hold that the CGIT has rightly passed an award in favour of all the workmen in all the Industrial Disputes on the file of CGIT on findings and reasons recorded on the points of dispute referred to it by the Central Government upon which adjudication is made by the CGIT. The same cannot be termed either as erroneous or error in law. Accordingly, I answer the point No.3 in favour the concerned workmen.The legal principle laid down by this Court by following the exposition of law for lifting the veil to find out real facts is very much necessary to the facts of the case in hand having the law laid down in the case of Salomon v. Salomon (supra) to examine the correctness of the findings of the High Court in reversing the finding of fact recorded in favour of the concerned workmen by the CGIT in its award with a view to find out whether the arrangement with or without the consent of the owner company facilitated the violation of the basic principles of labour jurisprudence established in this country over a period of more than six decades, especially principles relating to security of tenure, retrenchment, natural justice, and many other standards relating to "decent conditions at work". If two statutory corporations owned by the Government of India are governed by Rule of law, namely Factories Act and Industrial Disputes Act, in the manner in which they contended, it would be opposed to the labour jurisprudence and constitute a clear case of unfair labour practice which is against the law enunciated by this Court in plethora of cases referred to supra whose relevant paragraphs are extracted as above in support of my conclusion to hold that the finding in the impugned judgments of the High Court that is, the HCI, though it is a subsidiary company of Air India, yet it is a separate and distinct legal entity and that the concerned workmen have been employed by the HCI and not Air India and hence, there is no relationship of employer and employee and disciplinary control upon them by Air India, which has been reached at by the High Court and setting aside the findings recorded by the CGIT in favour of the concerned workmen, is not only erroneous but also suffers from error in law as the same is opposed to the law laid down by this Court in catena of cases referred to supra.43. Any other test required to be applied to the question of the legal entity of the so called independent contractor, is irrelevant to the critical issues which arise in this case. The view taken by the Delhi High Court regarding the separate legal identity of both these corporations, and erroneously setting aside the findings of the CGIT is not the determining factor in this case. There have been varying practices in vogue in this regard. In the Parimal Chandra Raha?s case (supra), it is noticed that there were Managing Committees?, and Cooperative Societies which could not exist without a separate legal personality that is, Contractors, many of them also create convenient legal personalities under garb of different legal entities. The presence of a contractor clothed with a legal personality or not as in the case of the defence establishments referred to above in the Suraksha Karamchari Union?s case (supra) also has hardly ever been considered to be a determinative test pertaining to canteen workers on contract.44. For the reasons recorded by me on the contentious points with reference to the facts, legal evidence and law laid down by this Court in plethora of cases, I am in agreement with the CGIT on the finding of facts recorded by it on the question of the relationship between the concerned workmen and the Air India on proper appreciation of pleadings and the legal evidence on record and piercing the veil to the fact situation to find out true facts which is rightly answered by CGIT on the points of disputes and the said finding is in conformity with the law laid down by this Court in Hussainbhai? case and M.M.R. Khan and other cases referred to supra for the reason that the contract with the HCI which is a subsidiary Company of Air India and employing the contract workers to work in the statutory canteen, is a sham contract. They have been engaged in permanent nature of work continuously for number of years. The finding of fact recorded by the CGIT on the points of dispute holding that they are entitled for regularization and to be absorbed as employees of Air India, without prejudice to any managerial arrangement to avail the expertise of the HCI of India through existing arrangements. Indeed that would be asituation for all the stake holders concerned in this casethe corporates, the Air India employees numbering more than 2000 in this case and the disempowered canteen workers and that would also be in harmony with our constitutional jurisprudence.For the above reasons, in addition to the test of economic control, as held by this Court in Hussainbhai?s case, I am of the view that the relief sought for by the concerned workmen which is accepted by the CGIT is legal and valid. Therefore, I have to accept the finding and reasons recorded by the CGIT though the reasons which I have assigned are not the reasons assigned by it but the conclusions arrived at by the CGIT while determining the points of dispute referred to it are legal and valid. Therefore, the reasons assigned by me in this judgment must be read into the reasons of the award of the CGIT. The aforesaid reasons are assigned by me in this judgment after careful examination of the rival legal contentions urged by the learned senior counsel on behalf of the parties with reference to the provisions of the Factories Act, Rules, Contract Labour Act and Industrial Disputes Act and law laid down by this Court in catena of cases. These points are accordingly answered in favour of the workmen.However it must be clarified that the requirement of reservation as provided for in Articles 14 and 16 of the Constitution must be complied with while regularizing the canteen workers as employees of Air India. This can be achieved by complying with relevant provisions of the I.D. Act in contrast to the action taken by the HCI in violation of the said statute. It is also further relevant to note that the only relief the workers have sought is one of regularization on the rolls of Air India. This does not itself impose any additional expenditure for it. Therefore, the concern of the learned single Judge of the High Court, on this count is not attracted in the context of the relief sought for by the concerned workmen.For the above reasons, in addition to the test of economic control, as held by this Court in Hussainbhai?s case, I am of the view that the relief sought for by the concerned workmen which is accepted by the CGIT is legal and valid. Therefore, I have to accept the finding and reasons recorded by the CGIT though the reasons which I have assigned are not the reasons assigned by it but the conclusions arrived at by the CGIT while determining the points of dispute referred to it are legal and valid. Therefore, the reasons assigned by me in this judgment must be read into the reasons of the award of the CGIT. The aforesaid reasons are assigned by me in this judgment after careful examination of the rival legal contentions urged by the learned senior counsel on behalf of the parties with reference to the provisions of the Factories Act, Rules, Contract Labour Act and Industrial Disputes Act and law laid down by this Court in catena of cases. These points are accordingly answered in favour of the workmen. | 1 | 25,317 | 2,592 | ### 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:
it by the Central Government upon which adjudication is made by the CGIT. The same cannot be termed either as erroneous or error in law. Accordingly, I answer the point No.3 in favour the concerned workmen. Answer to point No.4: 50. The findings and reasons recorded on the contentious points by both the learned single Judge and the Division Bench of the Delhi High Court in the impugned judgment that no better service conditions than the Management of HCI would be provided to the canteen workers except to get free air tickets which apparently some employees of Air India are entitled to, is untenable in law. Incidentally this is another aspect which may have a bearing on the question of viability in terms of prevailing practice in industry. Perhaps, Air India must explore the significance of the region cum industry principle so well developed in our labour jurisprudence. It is seriously concerned about competition and viability rather than focus on the handful of canteen workers. 51. The learned single Judge and the Division Bench have interfered with the finding of fact recorded in the common award passed by the CGIT by disagreeing with the findings and reasons recorded by the CGIT and holding that the HCI is a subsidiary corporation of Air India and it has got 100% share holding and power to appoint the Directors of the HCI and after referring to the decisions of this Court in Kanpur Suraksha Karamchari Union case (supra), it held that it is a separate legal entity which finding of fact and reason has been concurred with by the Division Bench by assigning the similar reasons placing reliance on the decision of this Court in M.M.R. Khan?s case which decision supports the case of the concerned workmen. The said decision is distinguished by the Division Bench of the High Court after adverting to certain paragraphs without considering the relevant paragraph Nos. 25 and 30 which has laid down the legal principle and also referred to other judgments namely Indian Petrochemicals Corporation Ltd. and Hari Shanker Sharma referred to supra without piercing the veil to the real facts of the case. 52. Both the learned single Judge and the Division Bench have exceeded in their jurisdiction in exercising their extraordinary and supervisory jurisdiction in the Writ Petitions and the Letter Patent Appeals, while examining the correctness and findings recorded by the CGIT in the common award which the High Court has disagreed with and has set aside the common award impugned in the Writ Petitions filed by Air India. Both the learned single Judge and the Division Bench have exceeded their jurisdiction in interfering with findings of fact recorded by the CGIT on the points of dispute and the contentious issues on proper appreciation of pleadings, evidence on record and law laid down by this Court in the cases referred to in the award I have referred to the relevant factual aspects and legal evidence and the statutory provisions of the Factories Act, Rules and the Industrial Disputes Act, while answering to Point Nos.1, 2 and 3 in favour of the concerned workmen by recording my reasons in this judgment. Therefore, I have to hold that the learned single Judge and the Division Bench exceeded in their jurisdiction to interfere with the finding of fact recorded by the CGIT on the points of dispute which were referred to by the Central Government. For the reasons recorded by me on point Nos. 1 and 2 in this judgment and further answering the point No.3 in affirmative in favour of the concerned workmen holding that findings and reasons recorded by the CGIT on the point of dispute referred to it by the Central government are neither erroneous nor suffers from error in law. Also I have to hold while answering to point No. 4 that both the learned single Judge and the High Court have disagreed with the correct finding of fact recorded by the CGIT in its award. The findings recorded by the learned Singh Judge and Division Bench in the impugned judgment are not only erroneous but suffers from error in law as the same is contrary to the statutory provisions and law laid down by this Court which have been extensively referred to by me in the reasoning portion of this judgment in answer to point Nos. 1 and 2. Hence, I have to hold that findings and reasons recorded in the impugned judgment is wholly untenable and liable to be set aside and accordingly set aside by answering point no. 4 in affirmative in favour of the concerned workmen. Answer to Point No.5: 53. Since I have answered point No. 4 in favour of the concerned workmen and against Air India, the appellants are entitled for the reliefs as prayed for in these appeals. Accordingly, these appeals are allowed and common award dated 5.5.2004 passed in I.D. Nos.97 to 99 of 1996 in favour of the workmen is restored. Further, I direct the Management of Air India to absorb all the concerned workmen covered in the I.D. Nos.97 to 99 of 1996 as permanent workmen on its rolls from the date of their appointment and grant all the consequential benefits such as salary for which they are entitled for after computing properly, taking into consideration the pay scale and periodical wage revision that has taken place and are applicable to the respective posts of the concerned workmen as per the notification issued by the Lt. Governor, Union Territory of Delhi and on the basis of similar notifications applicable for them.54. Since I have allowed I.D. Nos. 97 to 99 of 1996, the Industrial Dispute case Nos. 107 and 108 of 1996 involving the workmen whose services were terminated during the pendency of petition before CGIT, must also be treated as permanent workmen at par with the concerned workmen involved in the instant case. The award for their reinstatement to their posts shall be passed with all consequential benefits with full back wages.
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1
### Explanation:
is a separate and distinct legal entity and that the concerned workmen have been employed by the HCI and not Air India and hence, there is no relationship of employer and employee and disciplinary control upon them by Air India, which has been reached at by the High Court and setting aside the findings recorded by the CGIT in favour of the concerned workmen, is not only erroneous but also suffers from error in law as the same is opposed to the law laid down by this Court in catena of cases referred to supra.43. Any other test required to be applied to the question of the legal entity of the so called independent contractor, is irrelevant to the critical issues which arise in this case. The view taken by the Delhi High Court regarding the separate legal identity of both these corporations, and erroneously setting aside the findings of the CGIT is not the determining factor in this case. There have been varying practices in vogue in this regard. In the Parimal Chandra Raha?s case (supra), it is noticed that there were Managing Committees?, and Cooperative Societies which could not exist without a separate legal personality that is, Contractors, many of them also create convenient legal personalities under garb of different legal entities. The presence of a contractor clothed with a legal personality or not as in the case of the defence establishments referred to above in the Suraksha Karamchari Union?s case (supra) also has hardly ever been considered to be a determinative test pertaining to canteen workers on contract.44. For the reasons recorded by me on the contentious points with reference to the facts, legal evidence and law laid down by this Court in plethora of cases, I am in agreement with the CGIT on the finding of facts recorded by it on the question of the relationship between the concerned workmen and the Air India on proper appreciation of pleadings and the legal evidence on record and piercing the veil to the fact situation to find out true facts which is rightly answered by CGIT on the points of disputes and the said finding is in conformity with the law laid down by this Court in Hussainbhai? case and M.M.R. Khan and other cases referred to supra for the reason that the contract with the HCI which is a subsidiary Company of Air India and employing the contract workers to work in the statutory canteen, is a sham contract. They have been engaged in permanent nature of work continuously for number of years. The finding of fact recorded by the CGIT on the points of dispute holding that they are entitled for regularization and to be absorbed as employees of Air India, without prejudice to any managerial arrangement to avail the expertise of the HCI of India through existing arrangements. Indeed that would be asituation for all the stake holders concerned in this casethe corporates, the Air India employees numbering more than 2000 in this case and the disempowered canteen workers and that would also be in harmony with our constitutional jurisprudence.For the above reasons, in addition to the test of economic control, as held by this Court in Hussainbhai?s case, I am of the view that the relief sought for by the concerned workmen which is accepted by the CGIT is legal and valid. Therefore, I have to accept the finding and reasons recorded by the CGIT though the reasons which I have assigned are not the reasons assigned by it but the conclusions arrived at by the CGIT while determining the points of dispute referred to it are legal and valid. Therefore, the reasons assigned by me in this judgment must be read into the reasons of the award of the CGIT. The aforesaid reasons are assigned by me in this judgment after careful examination of the rival legal contentions urged by the learned senior counsel on behalf of the parties with reference to the provisions of the Factories Act, Rules, Contract Labour Act and Industrial Disputes Act and law laid down by this Court in catena of cases. These points are accordingly answered in favour of the workmen.However it must be clarified that the requirement of reservation as provided for in Articles 14 and 16 of the Constitution must be complied with while regularizing the canteen workers as employees of Air India. This can be achieved by complying with relevant provisions of the I.D. Act in contrast to the action taken by the HCI in violation of the said statute. It is also further relevant to note that the only relief the workers have sought is one of regularization on the rolls of Air India. This does not itself impose any additional expenditure for it. Therefore, the concern of the learned single Judge of the High Court, on this count is not attracted in the context of the relief sought for by the concerned workmen.For the above reasons, in addition to the test of economic control, as held by this Court in Hussainbhai?s case, I am of the view that the relief sought for by the concerned workmen which is accepted by the CGIT is legal and valid. Therefore, I have to accept the finding and reasons recorded by the CGIT though the reasons which I have assigned are not the reasons assigned by it but the conclusions arrived at by the CGIT while determining the points of dispute referred to it are legal and valid. Therefore, the reasons assigned by me in this judgment must be read into the reasons of the award of the CGIT. The aforesaid reasons are assigned by me in this judgment after careful examination of the rival legal contentions urged by the learned senior counsel on behalf of the parties with reference to the provisions of the Factories Act, Rules, Contract Labour Act and Industrial Disputes Act and law laid down by this Court in catena of cases. These points are accordingly answered in favour of the workmen.
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Workmen represented by Akhil Bhartiya Koyla Kamgar Union Vs. Employers in relation to the Management of Industry Colliery of M/s. Bharat Coking Coal Ltd. & Ors | may not be physically on the rolls on the appointed day of the take over, it cannot be contended that they were not legally workmen under the new owner. The statutory continuity of service will have to be taken note of and on that basis this Court proceeded to hold that a dismissed workmen also is a `workman under the Government Company. While interpreting Section 9 of the Nationalisation Act it was stated that the liability of the owner prior to the appointed day shall not be enforceable against the Central Government or the Government company but only against the previous owner. It was stated in very emphatic terms that "employees are not a liability as yet in our country". Section 9 deals with pecuniary and other contractual liabilities and has nothing to do with workmen. If at all it has anything to do with workmen, it is regarding arrears of wages and other contractual, statutory or tortuous liabilities. Section 9(2) operates only in the area of Section 9(1) and that is why provision is being made for removal of certain doubts and the whole provision confers immunity against liability not a right to jettison workmen under the employment of the previous owner in the eye of law. 6. Bearing these principles in mind if we examine the scope of the Nationalisation Act, we may notice that in respect of properties that vested in the Central Government, as provided under Sections 8 an d9, the Nationalisation Act provides immunity to the Central Government or its company from prior liabilities. Chapter III of the Nationalisation Act provides for payment of amount under that Chapter. Chapter VI provides for appointment of Commissioner of Payments who has an obligation to deal with the claims made under Section 23 of the said Act to persons who make a claim before the Commissioner within 30 days from the specified date. On examination of the provisions thereof, we may relate all those items that have been mentioned in Section 9 to Section 23 of the Nationalisation Act. They all pertain to pecuniary or commercial obligations and not to other matters. The claim made in the present case is one relating to employment under Section 25-H of the Act which merely creates an obligation that a retrenched workmen will have preference when fresh appointments are made and an opportunity will have to be given to them to offer themselves for re-employment. Such an obligation does not fall within the scope of Section 9 of the Nationalisation Act. 7. Shri Ajit Kumar Sinha, the learned Counsel for the respondents, relying upon the decision of this Court in Anakapalle Co-operative Agricultural and Industrial Society Ltd. v. Workmen and others, AIR 1963 SC 1489 , contended that the respondents are not successor-in-interest and, therefore, have no obligation to give effect to Section 25-H of the Act in respect of workmen in question; that since both rights and obligations have not been taken over by the respondents and only certain properties have been vested in the respondent-Company without any obligation in terms of sections 8 and 9 of the Nationalisation Act, the contention of the appellant for re-employment has to be rejected. 8. We have already adverted to the decision of this Court in The Workmen v. The Bharat Coking Coal Limited and others (supra) which examines the scope of Section 9 of the Nationalisation Act and the liability contemplated therein. It is necessary to understand the obligation of employer as such contemplated in Section 25-H of the Act as stated in clear terms by this Court in that decision. Unlike civil law, industrial law takes a different view with regard to as to who is the successor who runs the said industry subsequently. Where there is transfer of business from one owner to another, the rights and obligations which existed between the old management and their workers continue to exist vis-a-vis the new management after the date of the transfer provided there is continuity of service and identity of business. For purpose of continuity of service Section 17 makes the necessary provisions. Thus a person on such transfer becomes the owner of the concern and the employer of the employees of the establishment, and as long as there is identity of business itself and retains its identity, it must be held that the respondent is also a successor-in-interest to that extent. This Court in Anakapalle Co-operative Agricultural and Industrial Society Ltd. (supra) took this view after considering several relevant factors into consideration. 9. Shri Sinha submitted that as soon as transfer has been effected under Section 25-FF of the Act all the employees became entitled to claim compensation and thus who had been paid such compensations will not be entitled to claim re-employment under Section 25-H of the Act as the same would result in double benefit in the form of payment of compensation and immediate re-employment and, therefore, fair justice means that such workmen will not be entitled to such conferment of double benefit. It is not doubt true that this argument sounds good, but there has been no retrenchment as contemplated under Section 25-FF of the Act in the present case. The workmen in question have been retrenched long before the colliery was taken over by the respondents and, therefore, the principles stated in Anakapalle Co-operative Agricultural and Industrial Society Ltd. (supra) in this regard cannot be applied at all. The workmen had been paid compensation only under Section 25-F and not under Section 25-FF of the Act on transfer of the colliery to the present management. That case has not been pleaded or established. Hence, we do not think that the line upon which the High Court has proceeded is correct. The order made by the High Court deserves to be set aside and the award made by the Tribunal will have to be restored. 10. The appeal shall stand allowed accordingly. However, in the circumstances of the case, there shall be no order as to costs. | 1[ds]8. We have already adverted to the decision of this Court in The Workmen v. The Bharat Coking Coal Limited and others (supra) which examines the scope of Section 9 of the Nationalisation Act and the liability contemplated therein. It is necessary to understand the obligation of employer as such contemplated in Section 25-H of the Act as stated in clear terms by this Court in that decision. Unlike civil law, industrial law takes a different view with regard to as to who is the successor who runs the said industry subsequently. Where there is transfer of business from one owner to another, the rights and obligations which existed between the old management and their workers continue to exist vis-a-vis the new management after the date of the transfer provided there is continuity of service and identity of business. For purpose of continuity of service Section 17 makes the necessary provisions. Thus a person on such transfer becomes the owner of the concern and the employer of the employees of the establishment, and as long as there is identity of business itself and retains its identity, it must be held that the respondent is also a successor-in-interest to that extent. This Court in Anakapalle Co-operative Agricultural and Industrial Society Ltd. (supra) took this view after considering several relevant factors into consideration.Shri Sinha submitted that as soon as transfer has been effected under Section 25-FF of the Act all the employees became entitled to claim compensation and thus who had been paid such compensations will not be entitled to claim re-employment under Section 25-H of the Act as the same would result in double benefit in the form of payment of compensation and immediate re-employment and, therefore, fair justice means that such workmen will not be entitled to such conferment of double benefit. It is not doubt true that this argument sounds good, but there has been no retrenchment as contemplated under Section 25-FF of the Act in the present case. The workmen in question have been retrenched long before the colliery was taken over by the respondents and, therefore, the principles stated in Anakapalle Co-operative Agricultural and Industrial Society Ltd. (supra) in this regard cannot be applied at all. The workmen had been paid compensation only under Section 25-F and not under Section 25-FF of the Act on transfer of the colliery to the present management. That case has not been pleaded or established. Hence, we do not think that the line upon which the High Court has proceeded is correct. The order made by the High Court deserves to be set aside and the award made by the Tribunal will have to be restored. | 1 | 2,073 | 480 | ### 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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may not be physically on the rolls on the appointed day of the take over, it cannot be contended that they were not legally workmen under the new owner. The statutory continuity of service will have to be taken note of and on that basis this Court proceeded to hold that a dismissed workmen also is a `workman under the Government Company. While interpreting Section 9 of the Nationalisation Act it was stated that the liability of the owner prior to the appointed day shall not be enforceable against the Central Government or the Government company but only against the previous owner. It was stated in very emphatic terms that "employees are not a liability as yet in our country". Section 9 deals with pecuniary and other contractual liabilities and has nothing to do with workmen. If at all it has anything to do with workmen, it is regarding arrears of wages and other contractual, statutory or tortuous liabilities. Section 9(2) operates only in the area of Section 9(1) and that is why provision is being made for removal of certain doubts and the whole provision confers immunity against liability not a right to jettison workmen under the employment of the previous owner in the eye of law. 6. Bearing these principles in mind if we examine the scope of the Nationalisation Act, we may notice that in respect of properties that vested in the Central Government, as provided under Sections 8 an d9, the Nationalisation Act provides immunity to the Central Government or its company from prior liabilities. Chapter III of the Nationalisation Act provides for payment of amount under that Chapter. Chapter VI provides for appointment of Commissioner of Payments who has an obligation to deal with the claims made under Section 23 of the said Act to persons who make a claim before the Commissioner within 30 days from the specified date. On examination of the provisions thereof, we may relate all those items that have been mentioned in Section 9 to Section 23 of the Nationalisation Act. They all pertain to pecuniary or commercial obligations and not to other matters. The claim made in the present case is one relating to employment under Section 25-H of the Act which merely creates an obligation that a retrenched workmen will have preference when fresh appointments are made and an opportunity will have to be given to them to offer themselves for re-employment. Such an obligation does not fall within the scope of Section 9 of the Nationalisation Act. 7. Shri Ajit Kumar Sinha, the learned Counsel for the respondents, relying upon the decision of this Court in Anakapalle Co-operative Agricultural and Industrial Society Ltd. v. Workmen and others, AIR 1963 SC 1489 , contended that the respondents are not successor-in-interest and, therefore, have no obligation to give effect to Section 25-H of the Act in respect of workmen in question; that since both rights and obligations have not been taken over by the respondents and only certain properties have been vested in the respondent-Company without any obligation in terms of sections 8 and 9 of the Nationalisation Act, the contention of the appellant for re-employment has to be rejected. 8. We have already adverted to the decision of this Court in The Workmen v. The Bharat Coking Coal Limited and others (supra) which examines the scope of Section 9 of the Nationalisation Act and the liability contemplated therein. It is necessary to understand the obligation of employer as such contemplated in Section 25-H of the Act as stated in clear terms by this Court in that decision. Unlike civil law, industrial law takes a different view with regard to as to who is the successor who runs the said industry subsequently. Where there is transfer of business from one owner to another, the rights and obligations which existed between the old management and their workers continue to exist vis-a-vis the new management after the date of the transfer provided there is continuity of service and identity of business. For purpose of continuity of service Section 17 makes the necessary provisions. Thus a person on such transfer becomes the owner of the concern and the employer of the employees of the establishment, and as long as there is identity of business itself and retains its identity, it must be held that the respondent is also a successor-in-interest to that extent. This Court in Anakapalle Co-operative Agricultural and Industrial Society Ltd. (supra) took this view after considering several relevant factors into consideration. 9. Shri Sinha submitted that as soon as transfer has been effected under Section 25-FF of the Act all the employees became entitled to claim compensation and thus who had been paid such compensations will not be entitled to claim re-employment under Section 25-H of the Act as the same would result in double benefit in the form of payment of compensation and immediate re-employment and, therefore, fair justice means that such workmen will not be entitled to such conferment of double benefit. It is not doubt true that this argument sounds good, but there has been no retrenchment as contemplated under Section 25-FF of the Act in the present case. The workmen in question have been retrenched long before the colliery was taken over by the respondents and, therefore, the principles stated in Anakapalle Co-operative Agricultural and Industrial Society Ltd. (supra) in this regard cannot be applied at all. The workmen had been paid compensation only under Section 25-F and not under Section 25-FF of the Act on transfer of the colliery to the present management. That case has not been pleaded or established. Hence, we do not think that the line upon which the High Court has proceeded is correct. The order made by the High Court deserves to be set aside and the award made by the Tribunal will have to be restored. 10. The appeal shall stand allowed accordingly. However, in the circumstances of the case, there shall be no order as to costs.
### Response:
1
### Explanation:
8. We have already adverted to the decision of this Court in The Workmen v. The Bharat Coking Coal Limited and others (supra) which examines the scope of Section 9 of the Nationalisation Act and the liability contemplated therein. It is necessary to understand the obligation of employer as such contemplated in Section 25-H of the Act as stated in clear terms by this Court in that decision. Unlike civil law, industrial law takes a different view with regard to as to who is the successor who runs the said industry subsequently. Where there is transfer of business from one owner to another, the rights and obligations which existed between the old management and their workers continue to exist vis-a-vis the new management after the date of the transfer provided there is continuity of service and identity of business. For purpose of continuity of service Section 17 makes the necessary provisions. Thus a person on such transfer becomes the owner of the concern and the employer of the employees of the establishment, and as long as there is identity of business itself and retains its identity, it must be held that the respondent is also a successor-in-interest to that extent. This Court in Anakapalle Co-operative Agricultural and Industrial Society Ltd. (supra) took this view after considering several relevant factors into consideration.Shri Sinha submitted that as soon as transfer has been effected under Section 25-FF of the Act all the employees became entitled to claim compensation and thus who had been paid such compensations will not be entitled to claim re-employment under Section 25-H of the Act as the same would result in double benefit in the form of payment of compensation and immediate re-employment and, therefore, fair justice means that such workmen will not be entitled to such conferment of double benefit. It is not doubt true that this argument sounds good, but there has been no retrenchment as contemplated under Section 25-FF of the Act in the present case. The workmen in question have been retrenched long before the colliery was taken over by the respondents and, therefore, the principles stated in Anakapalle Co-operative Agricultural and Industrial Society Ltd. (supra) in this regard cannot be applied at all. The workmen had been paid compensation only under Section 25-F and not under Section 25-FF of the Act on transfer of the colliery to the present management. That case has not been pleaded or established. Hence, we do not think that the line upon which the High Court has proceeded is correct. The order made by the High Court deserves to be set aside and the award made by the Tribunal will have to be restored.
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M/S Moser Baer Photo Voltaic Ltd Vs. M/S Photon Energy Systems Ltd | Shiva Kirti Singh, J. 1. Leave granted. 2. In course of its business of supplying solar cells and laminates, the appellant-company made supplies to the respondent no.1. Respondent nos.2 to 6 are the Chief Executive Officer; General Manager (Finance); Ex-Chief Executive Officer; Chairman; and the Managing Director respectively of respondent no.1. According to appellant?s case, against larger outstanding dues, the respondent no.1 issued a cheque dated 31st May 2008 for Rs.3,21,53,903/- only. On a request that there was shortage of some funds the cheque was not to be presented immediately. There were some disputes between both the parties which were settled through a mutual meeting and as per minutes of meeting held on 22nd and 23rd September 2008, the net payable amount by respondent no.1 was reduced and settled at Rs.2,87,09,640/-. 3. The cheque was presented with the bankers ? M/s. HDFC but it was returned on 28.11.2008 with the remark ? ?funds insufficient?. On receipt of Memo of Dishonour at its Delhi office, appellant sent a legal notice dated 18.12.2008 demanding only the settled outstanding amount of Rs.2,87,09,640/- and not the cheque amount which was Rs.3,21,53,903/-. On 19.12.2008, respondent no.1 paid an amount of Rs.20 lacs towards its debt liability and in reply to the notice it denied the balance liability. It also adopted a further defence that the cheque was given for a larger amount by way of security and was not for any payable debt. The criminal complaint filed by the appellant under Sections 138/141/142 of the Negotiable Instruments Act, 1881 in the Court of XI Additional Chief Metropolitan Magistrate, City Criminal Courts at Secunderabad registered as C.C. No.829 of 2009 was entertained and non-bailable warrant was ultimately issued against the accused persons on 04.03.2009. The respondents could not succeed against the order issuing non-bailable warrant but their subsequent petition under Section 482 of the Code of Criminal Procedure was entertained and finally allowed by the impugned order under appeal dated 12.10.2011. As a result, the criminal complaint of the appellant has been dismissed mainly on the ground that the cheque amount was different from the legally enforceable debt as per notice given by the appellant to the accused persons.4. An interesting question of law as to whether in view of payments or settlements made after the issuance of a cheque, a complainant can disclose the true state of affairs and issue a demand for a lesser amount and whether in such circumstances the criminal prosecution for dishonour of a cheque for higher amount is legally sustainable or not, did arise in this case. However, on account of subsequent talks between the parties, an amicable settlement has been arrived at and hence there is no requirement now to answer the aforesaid question of law in the present proceedings and hence the same is left open for adjudication in any other appropriate case.5. In the instant proceeding the parties have agreed that between the parties the total outstanding amount shall be treated as Rs.1,80,00,000/- (Rupees one crore eighty lac only) and the same shall be paid by the respondents to the appellant in regular monthly instalments of Rs.15,00,000/- (Rupees fifteen lac). | 1[ds]However, on account of subsequent talks between the parties, an amicable settlement has been arrived at and hence there is no requirement now to answer the aforesaid question of law in the present proceedings and hence the same is left open for adjudication in any other appropriate case.5. In the instant proceeding the parties have agreed that between the parties the total outstanding amount shall be treated as Rs.1,80,00,000/(Rupees one crore eighty lac only) and the same shall be paid by the respondents to the appellant in regular monthly instalments of Rs.15,00,000/(Rupees fifteen lac). | 1 | 573 | 108 | ### 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:
Shiva Kirti Singh, J. 1. Leave granted. 2. In course of its business of supplying solar cells and laminates, the appellant-company made supplies to the respondent no.1. Respondent nos.2 to 6 are the Chief Executive Officer; General Manager (Finance); Ex-Chief Executive Officer; Chairman; and the Managing Director respectively of respondent no.1. According to appellant?s case, against larger outstanding dues, the respondent no.1 issued a cheque dated 31st May 2008 for Rs.3,21,53,903/- only. On a request that there was shortage of some funds the cheque was not to be presented immediately. There were some disputes between both the parties which were settled through a mutual meeting and as per minutes of meeting held on 22nd and 23rd September 2008, the net payable amount by respondent no.1 was reduced and settled at Rs.2,87,09,640/-. 3. The cheque was presented with the bankers ? M/s. HDFC but it was returned on 28.11.2008 with the remark ? ?funds insufficient?. On receipt of Memo of Dishonour at its Delhi office, appellant sent a legal notice dated 18.12.2008 demanding only the settled outstanding amount of Rs.2,87,09,640/- and not the cheque amount which was Rs.3,21,53,903/-. On 19.12.2008, respondent no.1 paid an amount of Rs.20 lacs towards its debt liability and in reply to the notice it denied the balance liability. It also adopted a further defence that the cheque was given for a larger amount by way of security and was not for any payable debt. The criminal complaint filed by the appellant under Sections 138/141/142 of the Negotiable Instruments Act, 1881 in the Court of XI Additional Chief Metropolitan Magistrate, City Criminal Courts at Secunderabad registered as C.C. No.829 of 2009 was entertained and non-bailable warrant was ultimately issued against the accused persons on 04.03.2009. The respondents could not succeed against the order issuing non-bailable warrant but their subsequent petition under Section 482 of the Code of Criminal Procedure was entertained and finally allowed by the impugned order under appeal dated 12.10.2011. As a result, the criminal complaint of the appellant has been dismissed mainly on the ground that the cheque amount was different from the legally enforceable debt as per notice given by the appellant to the accused persons.4. An interesting question of law as to whether in view of payments or settlements made after the issuance of a cheque, a complainant can disclose the true state of affairs and issue a demand for a lesser amount and whether in such circumstances the criminal prosecution for dishonour of a cheque for higher amount is legally sustainable or not, did arise in this case. However, on account of subsequent talks between the parties, an amicable settlement has been arrived at and hence there is no requirement now to answer the aforesaid question of law in the present proceedings and hence the same is left open for adjudication in any other appropriate case.5. In the instant proceeding the parties have agreed that between the parties the total outstanding amount shall be treated as Rs.1,80,00,000/- (Rupees one crore eighty lac only) and the same shall be paid by the respondents to the appellant in regular monthly instalments of Rs.15,00,000/- (Rupees fifteen lac).
### Response:
1
### Explanation:
However, on account of subsequent talks between the parties, an amicable settlement has been arrived at and hence there is no requirement now to answer the aforesaid question of law in the present proceedings and hence the same is left open for adjudication in any other appropriate case.5. In the instant proceeding the parties have agreed that between the parties the total outstanding amount shall be treated as Rs.1,80,00,000/(Rupees one crore eighty lac only) and the same shall be paid by the respondents to the appellant in regular monthly instalments of Rs.15,00,000/(Rupees fifteen lac).
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Pukhrajmal Sagarmal Lunkad (D) Through his L.Rs. & Others Vs. The Municipal Council, Jalgaon & Others | has held that Section 126 of MRTP Act providing for acquisition could only be resorted to, in relation to the cases covered by exclusionary clause used in Section 88 (a) of the Act, and it further held that Section 127 does not apply to lands reserved for public purpose under Town Planning Scheme, and, as such, there is no lapsing of reservation of land under Section 127 of the Act, and dismissed the writ petitions.9. We have examined the matter and considered the rival submissions of learned counsel for the parties.10. Before further discussion, we think it just and proper to look into the definitions of `Development Plan and `Town Planning Scheme. Section 2(9) of MRTP Act defines the term `Development Plan and reads as under:`Development Plan means a Plan for the Development or re-development of the area within the jurisdiction of a Planning Authority and includes revision of development plan and proposals of a Special Planning Authority for development of land within its jurisdiction.The expression Town Planning Scheme is not defined in the Act but under sub-section 2(30) the word `Scheme is defined as:`Scheme includes a plan relating to a Town Planning Scheme.According to concise Oxford English Dictionary `scheme means a systematic plan or arrangement for attaining some particular object or putting a particular idea into effect. In the same dictionary, term `planning means planning and control of the construction, growth, and development of a town or other urban area. As such, we may say that the term `Planning Scheme means, a systematic plan with an object of planning and control of the construction, growth and development of a town. We also think it relevant to mention here that Development Plans are dealt with under Chapter III, and Town Planning Schemes are dealt with under Chapter V of MRTP Act. Section 126 of the Act which is part of Chapter VII, deals with Plans as well as Schemes, but Section 127 does not refer to Town Planning Schemes.11. Effect of final Town Planning Scheme is provided in Section 88 of the MRTP Act which reads (as it existed before 2014), as under:"88. Effect of final scheme- On and after the day on which a final scheme comes into force- (a) all lands required by the Planning Authority shall, unless it is otherwise determined in such scheme, vest absolutely in the Planning Authority free from all encumbrances;(b) all rights in the original plots which have been reconstituted shall determine, and the reconstituted plots shall become subject to the rights settled by Arbitrator;(c) the Planning Authority shall hand over possession of the final plots to the owners to whom they are allotted in the final scheme."12. It is stated that draft Development Plan relating to plots in question was initially published on 15.12.1971 which was sanctioned by the State Government on 11.04.1974 and finally Development Plan was operationalised on 16.12.1974. But the Town Planning Scheme based on the said Development Plan relating to the plots in question is stated to have been prepared on 09.09.1976, and thereafter finalized and sanctioned on 29.05.1993/31.05.1993.13. Learned counsel for the appellants argued that the Town Planning Scheme was approved by the State Government in January, 1993, based on a revised Development Plan submitted by the Municipal Council in 1988, i.e., after reservation of land in question already stood lapsed as the land owners had served the notice under Section 127 of MRTP Act on 07.10.1986 and six months period had passed thereafter. This argument on scrutiny lacks substance for the reason that the land in question was reserved in 1976 under Town Planning Scheme III. We have already discussed above that Section 127 does not refer to Town Planning Schemes.14. In the present case the prayer is made by the appellants in the Writ Petitions specifically in respect of Town Planning Scheme No. III, which was finally sanctioned, as such, we find no error in the impugned judgment passed by the High Court dismissing the Writ Petitions. From the copy of special notice dated 25.04.1980 in form No. 4 issued under Town Planning Scheme Rules (filed as Annexure-B with the additional documents) and copy of order dated 16.05.1980 passed by the Arbitrator in the aforesaid rules, it is clear that the compensation was determined in respect of land in question under Town Planning Scheme. The decision of the Arbitrator appears to have been published in the Official Gazette dated 20th August, 1980, and appeal was dismissed. In the circumstances, we find no error in the order passed by the High Court.15. The landowners further relied on the case of Girnar Traders v. State of Maharashtra and Others (2007) 7 SCC 555 to contend that the land is deemed to have been released after 6 months of the issue of Notice u/s 127 of the MRTP Act. The contention of the landowners cannot be accepted for the reason that the decision relied by the landowners to contend that no steps were taken relates to the `Development Plan for which the steps for acquisition had to be taken as per Section 126. In the present case, before the scheme is implemented, the procedure contemplated under Chapter V is followed to finalise the scheme. The procedure includes the sanctioning of draft scheme, appointment of arbitrator, issuing notices to persons affected by the scheme, determination of compensation by the arbitrator and then the final award made by the arbitrator. In respect of the land required under Town Planning Scheme except the Development Plan, the steps under Section 126 may not require to be resorted to at all. It is clear from the record that the Draft Town Planning Scheme was published in 1976, arbitrator determined the compensation in 1980, the appeal filed before the Tribunal was dismissed in 1987 and the scheme was sent to the Government for sanction in 1988 and it was finally sanctioned in 1993 by following the procedure under Chapter V which is a self contained code for the implementation of the Town Planning Scheme. | 0[ds]13. Learned counsel for the appellants argued that the Town Planning Scheme was approved by the State Government in January, 1993, based on a revised Development Plan submitted by the Municipal Council in 1988, i.e., after reservation of land in question already stood lapsed as the land owners had served the notice under Section 127 of MRTP Act on 07.10.1986 and six months period had passed thereafter.This argument on scrutiny lacks substance for the reason that the land in question was reserved in 1976 under Town Planning Scheme III. We have already discussed above that Section 127 does not refer to Town Planning Schemes.14. In the present case the prayer is made by the appellants in the Writ Petitions specifically in respect of Town Planning Scheme No. III, which was finally sanctioned, as such, we find no error in the impugned judgment passed by the High Court dismissing the Writ Petitions. From the copy of special notice dated 25.04.1980 in form No. 4 issued under Town Planning Scheme Rules (filed as Annexure-B with the additional documents) and copy of order dated 16.05.1980 passed by the Arbitrator in the aforesaid rules, it is clear that the compensation was determined in respect of land in question under Town Planning Scheme. The decision of the Arbitrator appears to have been published in the Official Gazette dated 20th August, 1980, and appeal was dismissed. In the circumstances, we find no error in the order passed by the High Court.15. The landowners further relied on the case of Girnar Traders v. State of Maharashtra and Others (2007) 7 SCC 555 to contend that the land is deemed to have been released after 6 months of the issue of Notice u/s 127 of the MRTP Act. The contention of the landowners cannot be accepted for the reason that the decision relied by the landowners to contend that no steps were taken relates to the `Development Plan for which the steps for acquisition had to be taken as per Section 126. In the present case, before the scheme is implemented, the procedure contemplated under Chapter V is followed to finalise the scheme. The procedure includes the sanctioning of draft scheme, appointment of arbitrator, issuing notices to persons affected by the scheme, determination of compensation by the arbitrator and then the final award made by the arbitrator. In respect of the land required under Town Planning Scheme except the Development Plan, the steps under Section 126 may not require to be resorted to at all. It is clear from the record that the Draft Town Planning Scheme was published in 1976, arbitrator determined the compensation in 1980, the appeal filed before the Tribunal was dismissed in 1987 and the scheme was sent to the Government for sanction in 1988 and it was finally sanctioned in 1993 by following the procedure under Chapter V which is a self contained code for the implementation of the Town Planning Scheme. | 0 | 2,433 | 533 | ### 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:
has held that Section 126 of MRTP Act providing for acquisition could only be resorted to, in relation to the cases covered by exclusionary clause used in Section 88 (a) of the Act, and it further held that Section 127 does not apply to lands reserved for public purpose under Town Planning Scheme, and, as such, there is no lapsing of reservation of land under Section 127 of the Act, and dismissed the writ petitions.9. We have examined the matter and considered the rival submissions of learned counsel for the parties.10. Before further discussion, we think it just and proper to look into the definitions of `Development Plan and `Town Planning Scheme. Section 2(9) of MRTP Act defines the term `Development Plan and reads as under:`Development Plan means a Plan for the Development or re-development of the area within the jurisdiction of a Planning Authority and includes revision of development plan and proposals of a Special Planning Authority for development of land within its jurisdiction.The expression Town Planning Scheme is not defined in the Act but under sub-section 2(30) the word `Scheme is defined as:`Scheme includes a plan relating to a Town Planning Scheme.According to concise Oxford English Dictionary `scheme means a systematic plan or arrangement for attaining some particular object or putting a particular idea into effect. In the same dictionary, term `planning means planning and control of the construction, growth, and development of a town or other urban area. As such, we may say that the term `Planning Scheme means, a systematic plan with an object of planning and control of the construction, growth and development of a town. We also think it relevant to mention here that Development Plans are dealt with under Chapter III, and Town Planning Schemes are dealt with under Chapter V of MRTP Act. Section 126 of the Act which is part of Chapter VII, deals with Plans as well as Schemes, but Section 127 does not refer to Town Planning Schemes.11. Effect of final Town Planning Scheme is provided in Section 88 of the MRTP Act which reads (as it existed before 2014), as under:"88. Effect of final scheme- On and after the day on which a final scheme comes into force- (a) all lands required by the Planning Authority shall, unless it is otherwise determined in such scheme, vest absolutely in the Planning Authority free from all encumbrances;(b) all rights in the original plots which have been reconstituted shall determine, and the reconstituted plots shall become subject to the rights settled by Arbitrator;(c) the Planning Authority shall hand over possession of the final plots to the owners to whom they are allotted in the final scheme."12. It is stated that draft Development Plan relating to plots in question was initially published on 15.12.1971 which was sanctioned by the State Government on 11.04.1974 and finally Development Plan was operationalised on 16.12.1974. But the Town Planning Scheme based on the said Development Plan relating to the plots in question is stated to have been prepared on 09.09.1976, and thereafter finalized and sanctioned on 29.05.1993/31.05.1993.13. Learned counsel for the appellants argued that the Town Planning Scheme was approved by the State Government in January, 1993, based on a revised Development Plan submitted by the Municipal Council in 1988, i.e., after reservation of land in question already stood lapsed as the land owners had served the notice under Section 127 of MRTP Act on 07.10.1986 and six months period had passed thereafter. This argument on scrutiny lacks substance for the reason that the land in question was reserved in 1976 under Town Planning Scheme III. We have already discussed above that Section 127 does not refer to Town Planning Schemes.14. In the present case the prayer is made by the appellants in the Writ Petitions specifically in respect of Town Planning Scheme No. III, which was finally sanctioned, as such, we find no error in the impugned judgment passed by the High Court dismissing the Writ Petitions. From the copy of special notice dated 25.04.1980 in form No. 4 issued under Town Planning Scheme Rules (filed as Annexure-B with the additional documents) and copy of order dated 16.05.1980 passed by the Arbitrator in the aforesaid rules, it is clear that the compensation was determined in respect of land in question under Town Planning Scheme. The decision of the Arbitrator appears to have been published in the Official Gazette dated 20th August, 1980, and appeal was dismissed. In the circumstances, we find no error in the order passed by the High Court.15. The landowners further relied on the case of Girnar Traders v. State of Maharashtra and Others (2007) 7 SCC 555 to contend that the land is deemed to have been released after 6 months of the issue of Notice u/s 127 of the MRTP Act. The contention of the landowners cannot be accepted for the reason that the decision relied by the landowners to contend that no steps were taken relates to the `Development Plan for which the steps for acquisition had to be taken as per Section 126. In the present case, before the scheme is implemented, the procedure contemplated under Chapter V is followed to finalise the scheme. The procedure includes the sanctioning of draft scheme, appointment of arbitrator, issuing notices to persons affected by the scheme, determination of compensation by the arbitrator and then the final award made by the arbitrator. In respect of the land required under Town Planning Scheme except the Development Plan, the steps under Section 126 may not require to be resorted to at all. It is clear from the record that the Draft Town Planning Scheme was published in 1976, arbitrator determined the compensation in 1980, the appeal filed before the Tribunal was dismissed in 1987 and the scheme was sent to the Government for sanction in 1988 and it was finally sanctioned in 1993 by following the procedure under Chapter V which is a self contained code for the implementation of the Town Planning Scheme.
### Response:
0
### Explanation:
13. Learned counsel for the appellants argued that the Town Planning Scheme was approved by the State Government in January, 1993, based on a revised Development Plan submitted by the Municipal Council in 1988, i.e., after reservation of land in question already stood lapsed as the land owners had served the notice under Section 127 of MRTP Act on 07.10.1986 and six months period had passed thereafter.This argument on scrutiny lacks substance for the reason that the land in question was reserved in 1976 under Town Planning Scheme III. We have already discussed above that Section 127 does not refer to Town Planning Schemes.14. In the present case the prayer is made by the appellants in the Writ Petitions specifically in respect of Town Planning Scheme No. III, which was finally sanctioned, as such, we find no error in the impugned judgment passed by the High Court dismissing the Writ Petitions. From the copy of special notice dated 25.04.1980 in form No. 4 issued under Town Planning Scheme Rules (filed as Annexure-B with the additional documents) and copy of order dated 16.05.1980 passed by the Arbitrator in the aforesaid rules, it is clear that the compensation was determined in respect of land in question under Town Planning Scheme. The decision of the Arbitrator appears to have been published in the Official Gazette dated 20th August, 1980, and appeal was dismissed. In the circumstances, we find no error in the order passed by the High Court.15. The landowners further relied on the case of Girnar Traders v. State of Maharashtra and Others (2007) 7 SCC 555 to contend that the land is deemed to have been released after 6 months of the issue of Notice u/s 127 of the MRTP Act. The contention of the landowners cannot be accepted for the reason that the decision relied by the landowners to contend that no steps were taken relates to the `Development Plan for which the steps for acquisition had to be taken as per Section 126. In the present case, before the scheme is implemented, the procedure contemplated under Chapter V is followed to finalise the scheme. The procedure includes the sanctioning of draft scheme, appointment of arbitrator, issuing notices to persons affected by the scheme, determination of compensation by the arbitrator and then the final award made by the arbitrator. In respect of the land required under Town Planning Scheme except the Development Plan, the steps under Section 126 may not require to be resorted to at all. It is clear from the record that the Draft Town Planning Scheme was published in 1976, arbitrator determined the compensation in 1980, the appeal filed before the Tribunal was dismissed in 1987 and the scheme was sent to the Government for sanction in 1988 and it was finally sanctioned in 1993 by following the procedure under Chapter V which is a self contained code for the implementation of the Town Planning Scheme.
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Commissioner of Customs Vs. Essar Steel Ltd | Customs v. Ferodo India (P) Ltd., (2008) 4 SCC 563 , this Court dealt with Rule 9(1)(e) and the Essar Gujarat judgment as follows: “22. In the alternate, it has invoked Rule 9(1)(e). This Rule 9(1)(e) cannot stand alone. It is a corollary to Rule 4. There is no finding in the present case that what was termed as royalty/licence fee was in fact not such royalty/licence fee but some other payment made or to be made as a condition prerequisite to the sale of the imported goods. It is important to bear in mind that Rule 9 refers to cost and services. Under Rule 9(1), the price for the imported goods had to be enhanced/loaded by adding certain costs, royalties and licence fees and values mentioned in Rules 9(1)(a) to 9(1)(d). It refers to “all other payments actually made or to be made as a condition of sale of the imported goods”. In the present case, the Department invoked Rule 9(1)(c) on the ground that royalty was related to the imported goods, having failed it cannot fall back upon Rule 9(1)(e) because essentially we are concerned with the addition of royalty, etc. to the price of the imported goods. Further, in the present case, the Department has accepted the transaction value of the imported goods.23. In Essar Gujarat Ltd. [ From Final Order No. 91 of 2002 dated 12-2-2002 of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. C/573/2001-A : See (2002) 142 ELT 343 (Tri); (2003) 156 ELT 62 (Tri) ; (2006) 195 ELT 206 (Tri) and (2006) 205 ELT 208 (Tri)] the buyer had entered into a contract with TIL for purchase of direct reduction iron plant (“the plant”). The entire agreement was for import of the plant. The agreement was subject to two conditions—(a) approval of GOI and (b) obtaining transfer of licence from M/s Midrex, USA. Without the licence from Midrex, the imported plant was of no use to the buyer. Therefore, it was essential to have the licence from Midrex to operate the plant. Therefore, it was held by this Court that procurement of licence from Midrex was a precondition of sale which was specifically recorded in the agreement itself. In view of specific terms and conditions to that effect in the agreement, this Court held that payments made to Midrex by way of licence fees had to be added to the price paid to TIL for purchase of the plant. There is no such stipulations in TAA in the present case. Therefore, in our view, the adjudicating authority erred in placing reliance on the judgment of this Court in Essar Gujarat Ltd. [ From Final Order No. 91 of 2002 dated 12-2-2002 of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. C/573/2001-A : See (2002) 142 ELT 343 (Tri); (2003) 156 ELT 62 (Tri) ; (2006) 195 ELT 206 (Tri) and (2006) 205 ELT 208 (Tri)]” 17. Essar Gujarat has also been distinguished in Commissioner of Customs (Port), Chennai v. Toyota Kirloskar Motor (P) Ltd., (2007) 5 SCC 371 , as follows:- “36. Therefore, law laid down in Essar Gujarat Ltd. [(1997) 9 SCC 738] and J.K. Corpn. Ltd. [(2007) 9 SCC 401 : (2007) 2 Scale 459 ] is absolutely clear and explicit. Apart from the fact that Essar Gujarat Ltd. [(1997) 9 SCC 738] was determined on the peculiar facts obtaining therein and furthermore having regard to the fact that the entire plant on “as-is-where-is” basis was transferred subject to transfer of patent as also services and technical know-how needed for increase in the capacity of the plant, this Court clearly held that the post-importation service charges were not to be taken into consideration for determining the transaction value.37. The observations made by this Court in Essar Gujarat Ltd. [(1997) 9 SCC 738] in para 18 must be understood in the factual matrix involved therein. The ratio of a decision, as is well known, must be culled out from the facts involved in a given case. A decision, as is well known, is an authority for what it decides and not what can logically be deduced therefrom. Even in Essar Gujarat Ltd. [(1997) 9 SCC 738] a clear distinction has been made between the charges required to be made for pre-importation and post-importation. All charges levied before the capital goods were imported were held to be considered for the purpose of computation of transaction value and not the post-importation one. The said decision, therefore, in our opinion, is not an authority for the proposition that irrespective of nature of the contract, licence fee and charges paid for technical know-how, although the same would have nothing to do with the charges at the pre-importation stage, would have to be taken into consideration towards computation of transaction value in terms of Rule 9(1)(c) of the Rules.38. The transaction value must be relatable to import of goods which a fortiori would mean that the amounts must be payable as a condition of import. A distinction, therefore, clearly exists between an amount payable as a condition of import and an amount payable in respect of the matters governing the manufacturing activities, which may not have anything to do with the import of the capital goods.39. Article 4 provided for additional assistance in respect of the matters specifically laid down therein. Technical assistance fees have a direct nexus with the post-import activities and not with importation of goods.40. It is also a matter of some significance that technical assistance and know-how were required to be given not as a condition precedent, but as and when the respondent makes a request therefore and not otherwise. Appendix C of the agreement relates to manufacture of local parts which evidently has nothing to do with the import of the capital goods. Appendix D again is attributable to construction of plant, production preparation, and pilot production and production model, wherewith the import of capital goods did not have any nexus.” | 0[ds]9. On an analysis of the technical services agreement dated 13.4.1991, it is clear that the respondent has only associated Met Chem Canada Inc. as a technical consultant. There is no transfer of know-how or patents, trademarks or copyright. What is clear is that technical services to be provided by Met Chem Canada Inc. is basically to coordinate and advise the respondent so that the respondent can successfully set up, commission and operate the plant in India. It will be noticed that coordination and advice is to take place post-importation in order that the plant be set up and commissioned in India. In fact, all the clauses of this agreement make it clear that such services are only post-importation. Clause 9 on which a large part of the agreements ranged again makes it clear that ownership of patents, know-how, copyright and other intellectual property rights shall remain vested in the technical consultant and none of these will be transferred to the respondent. The respondent becomes owner of that portion of documents, drawings, plans and specifications originally created by the technical consultant pursuant to the agreement. This again refers only to documents, drawings etc. of setting up, commissioning and operating the plant, all of which are post-importation of the plant into India.Another thing to be noticed is that a conjoint reading of the technical services agreement and the purchase order do not lead to the conclusion that the technical services agreement is in any way a pre-condition for the sale of the plant itself. On the contrary, as has been pointed out above, the technical services agreement read as a whole is really only to successfully set up, commission and operate the plant after it has been imported into India. It is clear, therefore, that clause 9(1)(e) would not be attracted on the facts of this case and consequently the consideration for the technical services to be provided by Met Chem Canada Inc. cannot be added to the value of the equipment imported to set up the plant in India.However, so far as the sum of 231 Lakh Deutsche Marks is concerned, since this was payment for engineering and technical consultancy to set up and commission the plant in India, this amount would have to be excluded. This Court held that 10% of this amount only should be added to the value of the plant as the plant had been sold abroad on an as is where is basis and needed to be dismantled abroad before it was ready for delivery in India. Obviously, therefore this 10% is attributable to a pre-import stage. Further, the amount of 22 Lakh Deutsche Marks payable for theoretical and practical training of personnel outside India again could not be added as this amount would presumably be attributable to trained personnel who would be used in the commissioning and operation of the plant, which would, therefore, be attributable to a post-importation event. Thus, properly read, the judgment in Essarcase actually supports the respondent in that the payment for engineering and technical consultancy services in India cannot be added to the value of the imported plant. Also, in the present case, there is no transfer of technology under a license. Therefore, no question arises as to whether without such license the plant to be set up in India could be operated at all. The judgment also concludes in favour of the respondent the fact that all amounts payable for training of personnel outside India cannot be added to the value of the plant.So far as the Interpretative Note to Rule 4 is concerned it is no doubt true that the Interpretative Notes are part of the Rules and hence statutory. However, the question is one of their applicability. The part of the Interpretative Note to Rule 4 relied on by the Tribunal has been couched in a negative form and is accompanied by a proviso. It means that the charges or costs described in clauses (a), (b) and (c) are not to be included in the value of imported goods subject to satisfying the requirement of the proviso that the charges were distinguishable from the price actually paid or payable for the imported goods. This part of the Interpretative Note cannot be so read as to mean that those charges which are not covered in clauses (a) to (c) are available to be included in the value of the imported goods. To illustrate, if the seller has undertaken to erect or assemble the machinery after its importation into India and levied certain charges for rendering such service the price paid therefor shall not be liable to be included in the value of the goods if it has been paid separately and is clearly distinguishable from the price actually paid or payable for the imported goods. Obviously, this Interpretative Note cannot be pressed into service for calculating the price of any drawings or technical documents though separately paid by including them in the price of imported equipments. Clause (a) in the third para of the Note to Rule 4 is suggestive of charges for services rendered by the seller in connection with construction, erection etc. of imported goods. The value of documents and drawings etc. cannot befor construction, erection, assemblyof imported goods. Alternatively, even on the view as taken by the Tribunal on this Note, the drawings and documents having been supplied to the buyer-importer for use during construction, erection, assembly, maintenance etc. of imported goods, they were relatable to post-import activity to be undertaken by the appellant. Such charges were covered by a separate contract, i.e. contract MD 301. They could not have been included in the value of imported goods merely because the value of documents referable to imported equipments and materials was mixed up with the value of those documents which were referable to equipment which was yet to be procured or imported or manufactured by the appellant; the value of the latter category of documents also being neither dutiable nor clubbable with the value of imported goods. The Tribunal has not doubted the genuineness of the contracts entered into between the appellant and SNP. Rather it has observed vide para 10.2 of its order that entering into two contracts (MD 301 and MD 302) was a legal necessity. | 0 | 8,229 | 1,156 | ### 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:
Customs v. Ferodo India (P) Ltd., (2008) 4 SCC 563 , this Court dealt with Rule 9(1)(e) and the Essar Gujarat judgment as follows: “22. In the alternate, it has invoked Rule 9(1)(e). This Rule 9(1)(e) cannot stand alone. It is a corollary to Rule 4. There is no finding in the present case that what was termed as royalty/licence fee was in fact not such royalty/licence fee but some other payment made or to be made as a condition prerequisite to the sale of the imported goods. It is important to bear in mind that Rule 9 refers to cost and services. Under Rule 9(1), the price for the imported goods had to be enhanced/loaded by adding certain costs, royalties and licence fees and values mentioned in Rules 9(1)(a) to 9(1)(d). It refers to “all other payments actually made or to be made as a condition of sale of the imported goods”. In the present case, the Department invoked Rule 9(1)(c) on the ground that royalty was related to the imported goods, having failed it cannot fall back upon Rule 9(1)(e) because essentially we are concerned with the addition of royalty, etc. to the price of the imported goods. Further, in the present case, the Department has accepted the transaction value of the imported goods.23. In Essar Gujarat Ltd. [ From Final Order No. 91 of 2002 dated 12-2-2002 of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. C/573/2001-A : See (2002) 142 ELT 343 (Tri); (2003) 156 ELT 62 (Tri) ; (2006) 195 ELT 206 (Tri) and (2006) 205 ELT 208 (Tri)] the buyer had entered into a contract with TIL for purchase of direct reduction iron plant (“the plant”). The entire agreement was for import of the plant. The agreement was subject to two conditions—(a) approval of GOI and (b) obtaining transfer of licence from M/s Midrex, USA. Without the licence from Midrex, the imported plant was of no use to the buyer. Therefore, it was essential to have the licence from Midrex to operate the plant. Therefore, it was held by this Court that procurement of licence from Midrex was a precondition of sale which was specifically recorded in the agreement itself. In view of specific terms and conditions to that effect in the agreement, this Court held that payments made to Midrex by way of licence fees had to be added to the price paid to TIL for purchase of the plant. There is no such stipulations in TAA in the present case. Therefore, in our view, the adjudicating authority erred in placing reliance on the judgment of this Court in Essar Gujarat Ltd. [ From Final Order No. 91 of 2002 dated 12-2-2002 of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. C/573/2001-A : See (2002) 142 ELT 343 (Tri); (2003) 156 ELT 62 (Tri) ; (2006) 195 ELT 206 (Tri) and (2006) 205 ELT 208 (Tri)]” 17. Essar Gujarat has also been distinguished in Commissioner of Customs (Port), Chennai v. Toyota Kirloskar Motor (P) Ltd., (2007) 5 SCC 371 , as follows:- “36. Therefore, law laid down in Essar Gujarat Ltd. [(1997) 9 SCC 738] and J.K. Corpn. Ltd. [(2007) 9 SCC 401 : (2007) 2 Scale 459 ] is absolutely clear and explicit. Apart from the fact that Essar Gujarat Ltd. [(1997) 9 SCC 738] was determined on the peculiar facts obtaining therein and furthermore having regard to the fact that the entire plant on “as-is-where-is” basis was transferred subject to transfer of patent as also services and technical know-how needed for increase in the capacity of the plant, this Court clearly held that the post-importation service charges were not to be taken into consideration for determining the transaction value.37. The observations made by this Court in Essar Gujarat Ltd. [(1997) 9 SCC 738] in para 18 must be understood in the factual matrix involved therein. The ratio of a decision, as is well known, must be culled out from the facts involved in a given case. A decision, as is well known, is an authority for what it decides and not what can logically be deduced therefrom. Even in Essar Gujarat Ltd. [(1997) 9 SCC 738] a clear distinction has been made between the charges required to be made for pre-importation and post-importation. All charges levied before the capital goods were imported were held to be considered for the purpose of computation of transaction value and not the post-importation one. The said decision, therefore, in our opinion, is not an authority for the proposition that irrespective of nature of the contract, licence fee and charges paid for technical know-how, although the same would have nothing to do with the charges at the pre-importation stage, would have to be taken into consideration towards computation of transaction value in terms of Rule 9(1)(c) of the Rules.38. The transaction value must be relatable to import of goods which a fortiori would mean that the amounts must be payable as a condition of import. A distinction, therefore, clearly exists between an amount payable as a condition of import and an amount payable in respect of the matters governing the manufacturing activities, which may not have anything to do with the import of the capital goods.39. Article 4 provided for additional assistance in respect of the matters specifically laid down therein. Technical assistance fees have a direct nexus with the post-import activities and not with importation of goods.40. It is also a matter of some significance that technical assistance and know-how were required to be given not as a condition precedent, but as and when the respondent makes a request therefore and not otherwise. Appendix C of the agreement relates to manufacture of local parts which evidently has nothing to do with the import of the capital goods. Appendix D again is attributable to construction of plant, production preparation, and pilot production and production model, wherewith the import of capital goods did not have any nexus.”
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technical services to be provided by Met Chem Canada Inc. is basically to coordinate and advise the respondent so that the respondent can successfully set up, commission and operate the plant in India. It will be noticed that coordination and advice is to take place post-importation in order that the plant be set up and commissioned in India. In fact, all the clauses of this agreement make it clear that such services are only post-importation. Clause 9 on which a large part of the agreements ranged again makes it clear that ownership of patents, know-how, copyright and other intellectual property rights shall remain vested in the technical consultant and none of these will be transferred to the respondent. The respondent becomes owner of that portion of documents, drawings, plans and specifications originally created by the technical consultant pursuant to the agreement. This again refers only to documents, drawings etc. of setting up, commissioning and operating the plant, all of which are post-importation of the plant into India.Another thing to be noticed is that a conjoint reading of the technical services agreement and the purchase order do not lead to the conclusion that the technical services agreement is in any way a pre-condition for the sale of the plant itself. On the contrary, as has been pointed out above, the technical services agreement read as a whole is really only to successfully set up, commission and operate the plant after it has been imported into India. It is clear, therefore, that clause 9(1)(e) would not be attracted on the facts of this case and consequently the consideration for the technical services to be provided by Met Chem Canada Inc. cannot be added to the value of the equipment imported to set up the plant in India.However, so far as the sum of 231 Lakh Deutsche Marks is concerned, since this was payment for engineering and technical consultancy to set up and commission the plant in India, this amount would have to be excluded. This Court held that 10% of this amount only should be added to the value of the plant as the plant had been sold abroad on an as is where is basis and needed to be dismantled abroad before it was ready for delivery in India. Obviously, therefore this 10% is attributable to a pre-import stage. Further, the amount of 22 Lakh Deutsche Marks payable for theoretical and practical training of personnel outside India again could not be added as this amount would presumably be attributable to trained personnel who would be used in the commissioning and operation of the plant, which would, therefore, be attributable to a post-importation event. Thus, properly read, the judgment in Essarcase actually supports the respondent in that the payment for engineering and technical consultancy services in India cannot be added to the value of the imported plant. Also, in the present case, there is no transfer of technology under a license. Therefore, no question arises as to whether without such license the plant to be set up in India could be operated at all. The judgment also concludes in favour of the respondent the fact that all amounts payable for training of personnel outside India cannot be added to the value of the plant.So far as the Interpretative Note to Rule 4 is concerned it is no doubt true that the Interpretative Notes are part of the Rules and hence statutory. However, the question is one of their applicability. The part of the Interpretative Note to Rule 4 relied on by the Tribunal has been couched in a negative form and is accompanied by a proviso. It means that the charges or costs described in clauses (a), (b) and (c) are not to be included in the value of imported goods subject to satisfying the requirement of the proviso that the charges were distinguishable from the price actually paid or payable for the imported goods. This part of the Interpretative Note cannot be so read as to mean that those charges which are not covered in clauses (a) to (c) are available to be included in the value of the imported goods. To illustrate, if the seller has undertaken to erect or assemble the machinery after its importation into India and levied certain charges for rendering such service the price paid therefor shall not be liable to be included in the value of the goods if it has been paid separately and is clearly distinguishable from the price actually paid or payable for the imported goods. Obviously, this Interpretative Note cannot be pressed into service for calculating the price of any drawings or technical documents though separately paid by including them in the price of imported equipments. Clause (a) in the third para of the Note to Rule 4 is suggestive of charges for services rendered by the seller in connection with construction, erection etc. of imported goods. The value of documents and drawings etc. cannot befor construction, erection, assemblyof imported goods. Alternatively, even on the view as taken by the Tribunal on this Note, the drawings and documents having been supplied to the buyer-importer for use during construction, erection, assembly, maintenance etc. of imported goods, they were relatable to post-import activity to be undertaken by the appellant. Such charges were covered by a separate contract, i.e. contract MD 301. They could not have been included in the value of imported goods merely because the value of documents referable to imported equipments and materials was mixed up with the value of those documents which were referable to equipment which was yet to be procured or imported or manufactured by the appellant; the value of the latter category of documents also being neither dutiable nor clubbable with the value of imported goods. The Tribunal has not doubted the genuineness of the contracts entered into between the appellant and SNP. Rather it has observed vide para 10.2 of its order that entering into two contracts (MD 301 and MD 302) was a legal necessity.
|
Jai Hind Finance (India) Limited & Others Vs. Kotak Mahindra Bank Limited | came up for final hearing as to whether the Respondent chose to enforce her security by standing outside the winding up proceedings or, whether the Respondent wished to stand together with the general body of creditors for realisation of her dues. Now in considering the submission, it must be noted at the outset that a Petition for winding up can be maintained at the behest of a creditor, whether secured or unsecured. This is evident from the provisions of section 439(1)(d). Under sub-section (2) of section 439, among others, a secured creditor is to be deemed to be a creditor within the meaning of clause (b) of subsection (1). This position has been enunciated in a judgment of the Company Judge of this Court in Canfin Homes Ltd. v. Lloyds Steel Industries Ltd. 2001 (4) Bom.C.R. 84 : [2002(1) ALL MR 901]. In a judgment of a Division Bench of the Madras High Court in Karnatak Vegetable Oils and Refineries Ltd. v. Madras Industrial Investment Corporation Ltd., AIR 1955 Mad 582 . consisting of Rajamannar, C.J. & Rajagopala Ayyangar, J., it was held that it was wellestablished that a secured creditor is as much entitled as of right to file a petition for winding up as an unsecured creditor. The judgment of the Madras High Court is also authority for the proposition that the rule in bankruptcy that before a secured creditor can file a petition for insolvency he has to abandon his security or to value the security and aver that after giving credit to such value there would be a balance due and payable to him, does not apply in winding up. The Madras High Court held that the general rule is that a creditor who cannot get paid has a right to a winding up order, whether he be a secured or an unsecured creditor. However, this right of the creditor is always subject to the discretion of the Court and the Court may in an appropriate case refuse to make a winding up order, having regard to the wishes of a majority of the creditors. A similar view has been taken by a Division Bench of the Calcutta High Court in Techno Metal India (P.) Ltd. v. Prem Nath Anand 1973 (43) Com 556. In Bharat Overseas Bank Ltd. v. Shree Arcee Steels P. Ltd., a Division Bench of this Court followed these wellsettled principles by observing as follows:We are of the opinion that bearing in mind the clear provisions of the Companies Act and the principles which have been discussed in detail in the Madras High Court and the Calcutta High Court judgments above-cited, the rejection of the petition in this case at the stage of admission was not at all justified. The petition was required to be admitted and advertised and it is at that stage that the Court could go into the question as to whether the security is sufficient or not and exercise its discretion to accept the petitioning creditors claims and request for winding up or to reject the same on judicial consideration.The judgment in Bharat Overseas Bank Ltd. does not lay down any principle to the contrary. In fact, the judgment of the Division Bench in Bharat Overseas Bank Ltd.s case follows the consistent principle of law which has been laid down by the Madras and Calcutta High Courts as noted earlier.16. The learned Counsel submits that thrice attempts to auction the mortgaged property of the appellants was made but efforts failed. The secured creditors will be making attempt for the 4th time. The purpose of admission of winding up petitions, according to Counsel is that if there are other creditors, they may approach the Company Court and lodge their claims and in case during pendency of winding up petitions if the advanced loan amount is reimbursed to respondent Kotak Mahindra Bank atleast to the extent of respondents claim, the appellants would not face any harsh orders. This being the object and purpose of the law, the appeals filed against the orders passed by the learned Single Judge must fail.17. The Counsel for the appellant submitted that the learned Single Judge ought to have elaborately dealt with the issues raised by the parties. The impugned orders passed by the learned Single Judge lacks proper reasoning for ascertaining as to what weighed with learned Single Judge in admitting the winding up petition.18. We have perused the record placed before us, considered the submissions advanced, perused the judgments cited supra. The reading of provisions of Sections 434, 439 of the Companies Act is itself clear to indicate that even a secured creditor would be entitled to prefer a company petition for winding up. In the facts of the case, amount advanced as a loan by a financial company to the appellants was not repaid so the proceedings were initiated. In the Tribunal, the appellants suffered adverse judgments and orders though it is informed during the course of hearing that none of the parties is reported to have approached the higher forum. The fact remains that the appellants are faced with adverse orders on merits passed by the DRT in respect of the claim made by the respondent Kotak Mahindra Bank. The question is whether respondent Kotak Mahindra Bank shall wait till they exhaust their attempts to auction the properties mortgaged with them, recover the amount in question partly or wholly and then decide as to whether to file a company petition for winding up. After having a comprehensive view of the provisions and the judgments dealing with this issue, we are of the considered opinion that the secured creditors need not wait till the final outcome of the proceedings in case financier decides to proceed to enforce and realise the secured assets. The relevant provisions of the Companies Act are clear to state that to recover loan/amount advanced, the secured or unsecured creditors are entitled to approach Company Court under the provisions of the Companies Act by preferring a winding up petition. | 0[ds]18. We have perused the record placed before us, considered the submissions advanced, perused the judgments cited supra. The reading of provisions of Sections 434, 439 of the Companies Act is itself clear to indicate that even a secured creditor would be entitled to prefer a company petition for winding up. In the facts of the case, amount advanced as a loan by a financial company to the appellants was not repaid so the proceedings were initiated. In the Tribunal, the appellants suffered adverse judgments and orders though it is informed during the course of hearing that none of the parties is reported to have approached the higher forum. The fact remains that the appellants are faced with adverse orders on merits passed by the DRT in respect of the claim made by the respondent Kotak Mahindra Bank. The question is whether respondent Kotak Mahindra Bank shall wait till they exhaust their attempts to auction the properties mortgaged with them, recover the amount in question partly or wholly and then decide as to whether to file a company petition for winding up. After having a comprehensive view of the provisions and the judgments dealing with this issue, we are of the considered opinion that the secured creditors need not wait till the final outcome of the proceedings in case financier decides to proceed to enforce and realise the secured assets. The relevant provisions of the Companies Act are clear to state that to recover loan/amount advanced, the secured or unsecured creditors are entitled to approach Company Court under the provisions of the Companies Act by preferring a winding up petition. | 0 | 2,525 | 291 | ### 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:
came up for final hearing as to whether the Respondent chose to enforce her security by standing outside the winding up proceedings or, whether the Respondent wished to stand together with the general body of creditors for realisation of her dues. Now in considering the submission, it must be noted at the outset that a Petition for winding up can be maintained at the behest of a creditor, whether secured or unsecured. This is evident from the provisions of section 439(1)(d). Under sub-section (2) of section 439, among others, a secured creditor is to be deemed to be a creditor within the meaning of clause (b) of subsection (1). This position has been enunciated in a judgment of the Company Judge of this Court in Canfin Homes Ltd. v. Lloyds Steel Industries Ltd. 2001 (4) Bom.C.R. 84 : [2002(1) ALL MR 901]. In a judgment of a Division Bench of the Madras High Court in Karnatak Vegetable Oils and Refineries Ltd. v. Madras Industrial Investment Corporation Ltd., AIR 1955 Mad 582 . consisting of Rajamannar, C.J. & Rajagopala Ayyangar, J., it was held that it was wellestablished that a secured creditor is as much entitled as of right to file a petition for winding up as an unsecured creditor. The judgment of the Madras High Court is also authority for the proposition that the rule in bankruptcy that before a secured creditor can file a petition for insolvency he has to abandon his security or to value the security and aver that after giving credit to such value there would be a balance due and payable to him, does not apply in winding up. The Madras High Court held that the general rule is that a creditor who cannot get paid has a right to a winding up order, whether he be a secured or an unsecured creditor. However, this right of the creditor is always subject to the discretion of the Court and the Court may in an appropriate case refuse to make a winding up order, having regard to the wishes of a majority of the creditors. A similar view has been taken by a Division Bench of the Calcutta High Court in Techno Metal India (P.) Ltd. v. Prem Nath Anand 1973 (43) Com 556. In Bharat Overseas Bank Ltd. v. Shree Arcee Steels P. Ltd., a Division Bench of this Court followed these wellsettled principles by observing as follows:We are of the opinion that bearing in mind the clear provisions of the Companies Act and the principles which have been discussed in detail in the Madras High Court and the Calcutta High Court judgments above-cited, the rejection of the petition in this case at the stage of admission was not at all justified. The petition was required to be admitted and advertised and it is at that stage that the Court could go into the question as to whether the security is sufficient or not and exercise its discretion to accept the petitioning creditors claims and request for winding up or to reject the same on judicial consideration.The judgment in Bharat Overseas Bank Ltd. does not lay down any principle to the contrary. In fact, the judgment of the Division Bench in Bharat Overseas Bank Ltd.s case follows the consistent principle of law which has been laid down by the Madras and Calcutta High Courts as noted earlier.16. The learned Counsel submits that thrice attempts to auction the mortgaged property of the appellants was made but efforts failed. The secured creditors will be making attempt for the 4th time. The purpose of admission of winding up petitions, according to Counsel is that if there are other creditors, they may approach the Company Court and lodge their claims and in case during pendency of winding up petitions if the advanced loan amount is reimbursed to respondent Kotak Mahindra Bank atleast to the extent of respondents claim, the appellants would not face any harsh orders. This being the object and purpose of the law, the appeals filed against the orders passed by the learned Single Judge must fail.17. The Counsel for the appellant submitted that the learned Single Judge ought to have elaborately dealt with the issues raised by the parties. The impugned orders passed by the learned Single Judge lacks proper reasoning for ascertaining as to what weighed with learned Single Judge in admitting the winding up petition.18. We have perused the record placed before us, considered the submissions advanced, perused the judgments cited supra. The reading of provisions of Sections 434, 439 of the Companies Act is itself clear to indicate that even a secured creditor would be entitled to prefer a company petition for winding up. In the facts of the case, amount advanced as a loan by a financial company to the appellants was not repaid so the proceedings were initiated. In the Tribunal, the appellants suffered adverse judgments and orders though it is informed during the course of hearing that none of the parties is reported to have approached the higher forum. The fact remains that the appellants are faced with adverse orders on merits passed by the DRT in respect of the claim made by the respondent Kotak Mahindra Bank. The question is whether respondent Kotak Mahindra Bank shall wait till they exhaust their attempts to auction the properties mortgaged with them, recover the amount in question partly or wholly and then decide as to whether to file a company petition for winding up. After having a comprehensive view of the provisions and the judgments dealing with this issue, we are of the considered opinion that the secured creditors need not wait till the final outcome of the proceedings in case financier decides to proceed to enforce and realise the secured assets. The relevant provisions of the Companies Act are clear to state that to recover loan/amount advanced, the secured or unsecured creditors are entitled to approach Company Court under the provisions of the Companies Act by preferring a winding up petition.
### Response:
0
### Explanation:
18. We have perused the record placed before us, considered the submissions advanced, perused the judgments cited supra. The reading of provisions of Sections 434, 439 of the Companies Act is itself clear to indicate that even a secured creditor would be entitled to prefer a company petition for winding up. In the facts of the case, amount advanced as a loan by a financial company to the appellants was not repaid so the proceedings were initiated. In the Tribunal, the appellants suffered adverse judgments and orders though it is informed during the course of hearing that none of the parties is reported to have approached the higher forum. The fact remains that the appellants are faced with adverse orders on merits passed by the DRT in respect of the claim made by the respondent Kotak Mahindra Bank. The question is whether respondent Kotak Mahindra Bank shall wait till they exhaust their attempts to auction the properties mortgaged with them, recover the amount in question partly or wholly and then decide as to whether to file a company petition for winding up. After having a comprehensive view of the provisions and the judgments dealing with this issue, we are of the considered opinion that the secured creditors need not wait till the final outcome of the proceedings in case financier decides to proceed to enforce and realise the secured assets. The relevant provisions of the Companies Act are clear to state that to recover loan/amount advanced, the secured or unsecured creditors are entitled to approach Company Court under the provisions of the Companies Act by preferring a winding up petition.
|
Ramanlal Mohanlal Pandya Vs. State of Bombay | is provided by somebody other than the bribe-giver, it makes a distinction in principle........." *It was also stated in that case that in judging the testimony of a witness many considerations arise and the decision of every case must depend upon the facts and circumstances of each case. Again the learned Judge observed that the correct rule was :"If any of the witnesses are accomplices who are particeps criminals in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the Court may even look for independent corroboration before convicting the accused person." *It does not seem to be the law that if the money given as bribe is provided by a particular officer of the police then the evidence of all the witnesses becomes evidence of accomplices and must be looked at with suspicion. In the present case no. doubt Rs. 250 came from the police officer Dy. S. P. Pandya and this money was given to the complainant to be passed on to the appellant purporting to be a bribe but even in such a circumstance the testimony of the witnesses has to be judged like the testimony of any other witness and all diverse factors which arise for consideration and their relative importance must depend upon the facts of that particular case. In the case before us the money was given to the appellant in the presence of one of the search witnesses Mohanbhai Shankarbhai and when it was thrown on the ground by the appellant it was picked up by that witness at the instance of the Dy. S. P. Pandya. It cannot be said that these two witnesses were not independent witnesses even though they consented to become Search or Panch witnesses. Mohanbhai Shankarbhai has been characterised by the trial Court as a respectable man who has worked as a teacher, was then in business and was at the time of the occurrence serving in the Agricultural Produce Market Committee. He had no. connection whatever with the complainant and he had no. connection with the appellant either. The other witness Rambhai Dahyabhai is described as B. Ag. (Honours) and he was in service as Assistant Dairy Superintendent in Kaira District Co-operative Milk Union Ltd. He also had no. connection with the complainant or with any other person with regard to whom it could be stated that he was inimical towards the appellant. In regard to these persons the trial Court said :"It appears to be highly improbable that such persons would be willing tools in the hands of Shri Tribhowandas and Bhailalbhai in fabricating false evidence against an innocent man."Their evidence was accepted by the High Court also. This is not a case where the police or anybody else has done any act in order to oblige any particular person but it is one of those cases where a complaint was made to the police that the appellant was demanding a bribe from the complainant. The police no. doubt provided the money and are witnesses to the passing of the money but it is not a case where the police had instigated any one to offer a bribe to the appellant.6. Even if it was a case where it was necessary to have corroborative evidence, that is supplied by the testimony of Mohanbhai Shankarbhai and Rambhai Dahyabhai and as was pointed out by this Court in Rameshwar v. State of Rajasthan, 1952 SCR 377 : 1952 AIR(SC) 54), that it is not necessary that there should be independent corroboration of every material circumstances. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplices or the complainant is true and that it is reasonably safe to act upon it and the corroboration need not be direct evidence. It is sufficient if it is merely circumstantial evidence of the connection of the accused with the crime. In Rameshwars case 1952 SCR 377 : 1952 AIR(SC) 54) (supra), the previous statement of the complainant was held to be evidence of conduct and also as corroborative evidence within the limits of S. 157 of the Evidence Act.7. In Basawan Singhs case, 1958 AIR(SC) 500 (supra), at p. 507 it was observed :"that corroboration need not be direct evidence that the accused committed the crime; it is sufficient even though it is merely circumstantial evidence of his connection with the crime."8. In our opinion in this case the Courts below have not proceeded on any wrong principle and the Courts below having accepted all the essential facts which constitute an offence the conviction must be held to be proper and correct. It was submitted that the offence was committed as far back as June 1954 and the appellant has already undergone about three months sentence and it would be very hard to sent him back to jail. The appellant first took an appeal to he High Court which was decided on September 10, 1955 when his appeal was dismissed and the sentence passed by the trial Court was upheld. The appellant then obtained special leave in this Court on November 21, 1955 and was released on bail. No. doubt since then it has taken some time for the appeal to be heard but in the circumstances sentence passed by the trial Court cannot be called excessive and this Court would ordinarily not interfere with the quantum of punishment given by the Courts below particularly in the exercise of its jurisdiction under Art. 136. For a public servant to be guilty of corruption is a very serious matter and the Courts would not look upon it with under leniency. | 0[ds]8. In our opinion in this case the Courts below have not proceeded on any wrong principle and the Courts below having accepted all the essential facts which constitute an offence the conviction must be held to be proper and correct. It was submitted that the offence was committed as far back as June 1954 and the appellant has already undergone about three months sentence and it would be very hard to sent him back to jail. The appellant first took an appeal to he High Court which was decided on September 10, 1955 when his appeal was dismissed and the sentence passed by the trial Court was upheld. The appellant then obtained special leave in this Court on November 21, 1955 and was released on bail. No. doubt since then it has taken some time for the appeal to be heard but in the circumstances sentence passed by the trial Court cannot be called excessive and this Court would ordinarily not interfere with the quantum of punishment given by the Courts below particularly in the exercise of its jurisdiction under Art. 136. For a public servant to be guilty of corruption is a very serious matter and the Courts would not look upon it with underdoes not seem to be the law that if the money given as bribe is provided by a particular officer of the police then the evidence of all the witnesses becomes evidence of accomplices and must be looked at with suspicion. | 0 | 2,255 | 263 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
is provided by somebody other than the bribe-giver, it makes a distinction in principle........." *It was also stated in that case that in judging the testimony of a witness many considerations arise and the decision of every case must depend upon the facts and circumstances of each case. Again the learned Judge observed that the correct rule was :"If any of the witnesses are accomplices who are particeps criminals in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the Court may even look for independent corroboration before convicting the accused person." *It does not seem to be the law that if the money given as bribe is provided by a particular officer of the police then the evidence of all the witnesses becomes evidence of accomplices and must be looked at with suspicion. In the present case no. doubt Rs. 250 came from the police officer Dy. S. P. Pandya and this money was given to the complainant to be passed on to the appellant purporting to be a bribe but even in such a circumstance the testimony of the witnesses has to be judged like the testimony of any other witness and all diverse factors which arise for consideration and their relative importance must depend upon the facts of that particular case. In the case before us the money was given to the appellant in the presence of one of the search witnesses Mohanbhai Shankarbhai and when it was thrown on the ground by the appellant it was picked up by that witness at the instance of the Dy. S. P. Pandya. It cannot be said that these two witnesses were not independent witnesses even though they consented to become Search or Panch witnesses. Mohanbhai Shankarbhai has been characterised by the trial Court as a respectable man who has worked as a teacher, was then in business and was at the time of the occurrence serving in the Agricultural Produce Market Committee. He had no. connection whatever with the complainant and he had no. connection with the appellant either. The other witness Rambhai Dahyabhai is described as B. Ag. (Honours) and he was in service as Assistant Dairy Superintendent in Kaira District Co-operative Milk Union Ltd. He also had no. connection with the complainant or with any other person with regard to whom it could be stated that he was inimical towards the appellant. In regard to these persons the trial Court said :"It appears to be highly improbable that such persons would be willing tools in the hands of Shri Tribhowandas and Bhailalbhai in fabricating false evidence against an innocent man."Their evidence was accepted by the High Court also. This is not a case where the police or anybody else has done any act in order to oblige any particular person but it is one of those cases where a complaint was made to the police that the appellant was demanding a bribe from the complainant. The police no. doubt provided the money and are witnesses to the passing of the money but it is not a case where the police had instigated any one to offer a bribe to the appellant.6. Even if it was a case where it was necessary to have corroborative evidence, that is supplied by the testimony of Mohanbhai Shankarbhai and Rambhai Dahyabhai and as was pointed out by this Court in Rameshwar v. State of Rajasthan, 1952 SCR 377 : 1952 AIR(SC) 54), that it is not necessary that there should be independent corroboration of every material circumstances. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplices or the complainant is true and that it is reasonably safe to act upon it and the corroboration need not be direct evidence. It is sufficient if it is merely circumstantial evidence of the connection of the accused with the crime. In Rameshwars case 1952 SCR 377 : 1952 AIR(SC) 54) (supra), the previous statement of the complainant was held to be evidence of conduct and also as corroborative evidence within the limits of S. 157 of the Evidence Act.7. In Basawan Singhs case, 1958 AIR(SC) 500 (supra), at p. 507 it was observed :"that corroboration need not be direct evidence that the accused committed the crime; it is sufficient even though it is merely circumstantial evidence of his connection with the crime."8. In our opinion in this case the Courts below have not proceeded on any wrong principle and the Courts below having accepted all the essential facts which constitute an offence the conviction must be held to be proper and correct. It was submitted that the offence was committed as far back as June 1954 and the appellant has already undergone about three months sentence and it would be very hard to sent him back to jail. The appellant first took an appeal to he High Court which was decided on September 10, 1955 when his appeal was dismissed and the sentence passed by the trial Court was upheld. The appellant then obtained special leave in this Court on November 21, 1955 and was released on bail. No. doubt since then it has taken some time for the appeal to be heard but in the circumstances sentence passed by the trial Court cannot be called excessive and this Court would ordinarily not interfere with the quantum of punishment given by the Courts below particularly in the exercise of its jurisdiction under Art. 136. For a public servant to be guilty of corruption is a very serious matter and the Courts would not look upon it with under leniency.
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8. In our opinion in this case the Courts below have not proceeded on any wrong principle and the Courts below having accepted all the essential facts which constitute an offence the conviction must be held to be proper and correct. It was submitted that the offence was committed as far back as June 1954 and the appellant has already undergone about three months sentence and it would be very hard to sent him back to jail. The appellant first took an appeal to he High Court which was decided on September 10, 1955 when his appeal was dismissed and the sentence passed by the trial Court was upheld. The appellant then obtained special leave in this Court on November 21, 1955 and was released on bail. No. doubt since then it has taken some time for the appeal to be heard but in the circumstances sentence passed by the trial Court cannot be called excessive and this Court would ordinarily not interfere with the quantum of punishment given by the Courts below particularly in the exercise of its jurisdiction under Art. 136. For a public servant to be guilty of corruption is a very serious matter and the Courts would not look upon it with underdoes not seem to be the law that if the money given as bribe is provided by a particular officer of the police then the evidence of all the witnesses becomes evidence of accomplices and must be looked at with suspicion.
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Pepsico India Holdings Pvt.Ltd Vs. Food Inspector | in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009. 35. The High Court also misconstrued the provisions of Section 23(1-A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that the non-formulation of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution. 36. As far as Grounds 3, 4 and 5 are concerned, the High Court failed to consider the reasons given on behalf of the Appellants for not sending the Companys sample to the Forensic Laboratory, to the effect that, since neither any validated method of analysis had been prescribed under Section 23(1-A)(ee) and (hh) of the 1954 Act, nor had any Laboratory been particularly specified for such examination, such an exercise would have been futile. In our view, no useful purpose could have been served by sending the second sample to the Forensic Laboratory, unless a defined tolerance limit of the presence of the pesticides was available in regard to Sweetened Carbonated Water. It may be noted that the High Court had itself observed that mere presence of insecticide residue to any extent could not justify an allegation that the article of food was adulterated, but contrary to such observation, the High Court went on to hold that the Sweetened Carbonated Water manufactured by the Appellants was adulterated within the meaning of Section 2(ia)(h) of the 1954 Act. 37. On the question of liability of the Directors of the Company with respect to an offence alleged to have been committed by the Company, the High Court went beyond the ratio of the decision of this Court in S.M.S. Pharmaceuticals Ltd.s case (supra) upon holding that the principles set out in the said decision could not be understood in any mechanical or rigid manner. Instead, the High Court based its judgment on the decision of this Court in N. Rangachari v. Bharat Sanchar Nigam Ltd., IV (2007) SLT 510=II (2007) DLT (Crl.) 380 (SC)=IV (2007) BC 516 (SC) =II (2007) CCR 258 (SC)=II (2007) CLT 275 (SC)=(2007) 5 SCC 108 , which was a case where the complaint clearly and categorically alleged that the named Directors were in charge of and responsible to the Company for the conduct of its business. It is in such circumstances that the prayer for quashing of the proceedings was rejected. 38. Both the questions regarding the failure of the Central Government to frame Rules to define the Laboratories, where samples of food could be analysed by the Public Analyst, or to define the validated methods of analysis and the liability of the Directors, who are the Appellants before us, are of great importance for the purpose of bringing home a charge against the accused for violation of the provisions of Rule 65 of the 1955 Rules and Section 2(ia)(h) of the 1954 Act and for holding that the Sweetened Carbonated Water manufactured by the Appellants was adulterated in terms of the said Rules. Since the range indicated as to the limits of tolerance of the presence of pesticides in different articles of food, including Sweetened Carbonated Water, which was included in the Table appended to Rule 65(2) with effect from 17th June, 2009, provides very little or practically no margin for error, the selection of Laboratories and the prescription of tolerance limits for different articles of food acquires great significance. The High Court does not appear to have considered the implications of the failure of the Central Government to frame Rules for the aforesaid purpose. Even the view taken by the High Court with regard to Grounds 3, 4 and 5 is not very satisfactory, as the mere presence of pesticide residue does not ipso facto render the article of food adulterated. Tolerance limits have been prescribed in the Table for this very purpose and the subsequent inclusion of Sweetened Carbonated Water seems to indicate so and leans more in favour of the Appellants. The High Court also appears to have overlooked the fact that the percentage of pesticides found by the Public Analyst in the Sweetened Carbonated Water manufactured by the Appellants was within the tolerance limits subsequently prescribed in respect of such product. 39. As mentioned hereinbefore, the High Court erred in giving its own interpretation to the decision of this Court in S.M.S. Pharmaceuticals Ltd.s case (supra), which was reiterated subsequently in several judgments, some of which have been indicated hereinabove, and relying instead on the decision of Rangacharis case (supra), the facts of which were entirely different from the facts of this case. It is now well established that in a complaint against a Company and its Directors, the Complainant has to indicate in the complaint itself as to whether the Directors concerned were either in charge of or responsible to the Company for its day-to-day management, or whether they were responsible to the Company for the conduct of its business. A mere bald statement that a person was a Director of the Company against which certain allegations had been made is not sufficient to make such Director liable in the absence of any specific allegations regarding his role in the management of the Company. 40. It has to be kept in mind that although an argument was advanced with regard to the restrictions imposed on the use of insecticides under Rule 65 of the 1955 Rules, it is apparent from the order of the learned Single Judge that such a ground was given up by the respondents and the arguments were confined only with regard to the alleged violation of Section 2(ia)(h) of the 1954 Act. | 1[ds]30. The Public Analyst found the sample of Pepsi to be covered by the definition of, as prescribed under Rule 5 of the 1955 Rules. Item A.01 deals withc beverages and Item A.01.01 defines carbonated water to mean water conforming to the standards prescribed for Packaged Drinking Water under the Prevention of Food Adulteration Rules, 1955, impregnated with carbon dioxide under pressure which may contain any of the agents mentioned thereunder singly or in combination. Having found the sample of Pepsi to fall within the definition ofc beverages, the Public Analyst by using the DGHS method found traces of 0.001 mg of Carbofuran per litre in the said sample of Pepsi and in the absence of any given standard, was of the opinion that the same was adulterated in terms of Rule 65 of the 1955 Rules and Section 2(ia)(h) of the 1954 Act. Although, carbonated water was not included in the original Table appended to Rule 65 of the 1955 Rules, as stated hereinbefore, it was introduced in Item 23 of the Table under the heading Chlorpyrifos with effect from 17th June, 2009, and the tolerance limit of the presence of insecticide residue was prescribed as 0.001 mg/litre, which, in fact, was the amount of insecticide residue found by the Public Analyst in the sample of Pepsi submitted for such analysis31. Ordinarily, since the level of insecticide residue was within the limits of tolerance prescribed for carbonated water with effect from 17th June, 2009, the same would not attract the provisions of Section 2(m) of the 1954 Act or the consequences thereof, but the finding of the Public Analyst was rendered in the year 2006, at a time when Sweetened Carbonated Water was not included in the Table appended to Rule 65(2). After the tolerance limit was prescribed, the sample of Pepsi could not be said to be adulterated being within the prescribed tolerance limit32. The entire controversy arises out of the fact that no specific tolerance limit had been prescribed for Sweetened Carbonated Water under Rule 65 and it was, therefore, presumed that trace of any insecticide would amount to adulteration of the final product. In fact, the High Court, while considering the matter, seems to have misconstrued the submissions made on behalf of the Appellants that the mere presence of insecticide residue does not render the article of food as being adulterated. The presence of insecticides within the limits prescribed in the Table to Rule 65 cannot, therefore, be said to have caused adulteration of the article of food in question. In fact, in paragraph 21 of its judgment, the learned Single Judge of the High Court observed that he was inclined to agree with the learned Counsel for the Petitioners that the mere presence of insecticide residue could not ipso facto justify the conclusion that the article of food has become injurious to health33. The High Court summarised its view into several grounds of challenge. Grounds 1 and 2 relate to theg of Rules under Section) and (hh) of the 1954 Act. Grounds 3, 4 and 5 deal with the challenge thrown on behalf of the Appellants to the submissions that the report of the Public Analyst was not final and that the same could be challenged under Section 13(2) of the said Act. Ground 6 deals with the criminal liability of the Directors of the Company on account of the allegations against the Company34. As far as Grounds 1 and 2 are concerned, the High Court was not convinced with the submission made on behalf of the appellants that in the absence of any prescribed and validated method of analysis under Section) and (hh) of the 1954 Act, the report of the Public Analyst, who had used the DGHS method, could not be relied upon, especially when even the Laboratories, where the test for detection of insecticides and pesticides in an article of food could be undertaken, had not been specified. The observation of the Division Bench of the High Court that if the submissions made on behalf of the Appellants herein were to be accepted, the mechanism of the Act and the Rules framed thereunder would come to a grinding halt, is not acceptable to us, since the same could lead to a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 200935. The High Court also misconstrued the provisions of Section) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that then of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution36. As far as Grounds 3, 4 and 5 are concerned, the High Court failed to consider the reasons given on behalf of the Appellants for not sending the Companys sample to the Forensic Laboratory, to the effect that, since neither any validated method of analysis had been prescribed under Section) and (hh) of the 1954 Act, nor had any Laboratory been particularly specified for such examination, such an exercise would have been futile. In our view, no useful purpose could have been served by sending the second sample to the Forensic Laboratory, unless a defined tolerance limit of the presence of the pesticides was available in regard to Sweetened Carbonated Water. It may be noted that the High Court had itself observed that mere presence of insecticide residue to any extent could not justify an allegation that the article of food was adulterated, but contrary to such observation, the High Court went on to hold that the Sweetened Carbonated Water manufactured by the Appellants was adulterated within the meaning of Section 2(ia)(h) of the 1954 Act37. On the question of liability of the Directors of the Company with respect to an offence alleged to have been committed by the Company, the High Court went beyond the ratio of the decision of this Court in S.M.S. Pharmaceuticals Ltd.s case (supra) upon holding that the principles set out in the said decision could not be understood in any mechanical or rigid manner. Instead, the High Court based its judgment on the decision of this Court in N. Rangachari v. Bharat Sanchar Nigam Ltd., IV (2007) SLT 510=II (2007) DLT (Crl.) 380 (SC)=IV (2007) BC 516 (SC) =II (2007) CCR 258 (SC)=II (2007) CLT 275 (SC)=(2007) 5 SCC 108 , which was a case where the complaint clearly and categorically alleged that the named Directors were in charge of and responsible to the Company for the conduct of its business. It is in such circumstances that the prayer for quashing of the proceedings was rejected38. Both the questions regarding the failure of the Central Government to frame Rules to define the Laboratories, where samples of food could be analysed by the Public Analyst, or to define the validated methods of analysis and the liability of the Directors, who are the Appellants before us, are of great importance for the purpose of bringing home a charge against the accused for violation of the provisions of Rule 65 of the 1955 Rules and Section 2(ia)(h) of the 1954 Act and for holding that the Sweetened Carbonated Water manufactured by the Appellants was adulterated in terms of the said Rules. Since the range indicated as to the limits of tolerance of the presence of pesticides in different articles of food, including Sweetened Carbonated Water, which was included in the Table appended to Rule 65(2) with effect from 17th June, 2009, provides very little or practically no margin for error, the selection of Laboratories and the prescription of tolerance limits for different articles of food acquires great significance. The High Court does not appear to have considered the implications of the failure of the Central Government to frame Rules for the aforesaid purpose. Even the view taken by the High Court with regard to Grounds 3, 4 and 5 is not very satisfactory, as the mere presence of pesticide residue does not ipso facto render the article of food adulterated. Tolerance limits have been prescribed in the Table for this very purpose and the subsequent inclusion of Sweetened Carbonated Water seems to indicate so and leans more in favour of the Appellants. The High Court also appears to have overlooked the fact that the percentage of pesticides found by the Public Analyst in the Sweetened Carbonated Water manufactured by the Appellants was within the tolerance limits subsequently prescribed in respect of such product39. As mentioned hereinbefore, the High Court erred in giving its own interpretation to the decision of this Court in S.M.S. Pharmaceuticals Ltd.s case (supra), which was reiterated subsequently in several judgments, some of which have been indicated hereinabove, and relying instead on the decision of Rangacharis case (supra), the facts of which were entirely different from the facts of this case. It is now well established that in a complaint against a Company and its Directors, the Complainant has to indicate in the complaint itself as to whether the Directors concerned were either in charge of or responsible to the Company for itsy management, or whether they were responsible to the Company for the conduct of its business. A mere bald statement that a person was a Director of the Company against which certain allegations had been made is not sufficient to make such Director liable in the absence of any specific allegations regarding his role in the management of the Company40. It has to be kept in mind that although an argument was advanced with regard to the restrictions imposed on the use of insecticides under Rule 65 of the 1955 Rules, it is apparent from the order of the learned Single Judge that such a ground was given up by the respondents and the arguments were confined only with regard to the alleged violation of Section 2(ia)(h) of the 1954 Act. | 1 | 7,284 | 1,910 | ### 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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in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 2009. 35. The High Court also misconstrued the provisions of Section 23(1-A)(ee) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that the non-formulation of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution. 36. As far as Grounds 3, 4 and 5 are concerned, the High Court failed to consider the reasons given on behalf of the Appellants for not sending the Companys sample to the Forensic Laboratory, to the effect that, since neither any validated method of analysis had been prescribed under Section 23(1-A)(ee) and (hh) of the 1954 Act, nor had any Laboratory been particularly specified for such examination, such an exercise would have been futile. In our view, no useful purpose could have been served by sending the second sample to the Forensic Laboratory, unless a defined tolerance limit of the presence of the pesticides was available in regard to Sweetened Carbonated Water. It may be noted that the High Court had itself observed that mere presence of insecticide residue to any extent could not justify an allegation that the article of food was adulterated, but contrary to such observation, the High Court went on to hold that the Sweetened Carbonated Water manufactured by the Appellants was adulterated within the meaning of Section 2(ia)(h) of the 1954 Act. 37. On the question of liability of the Directors of the Company with respect to an offence alleged to have been committed by the Company, the High Court went beyond the ratio of the decision of this Court in S.M.S. Pharmaceuticals Ltd.s case (supra) upon holding that the principles set out in the said decision could not be understood in any mechanical or rigid manner. Instead, the High Court based its judgment on the decision of this Court in N. Rangachari v. Bharat Sanchar Nigam Ltd., IV (2007) SLT 510=II (2007) DLT (Crl.) 380 (SC)=IV (2007) BC 516 (SC) =II (2007) CCR 258 (SC)=II (2007) CLT 275 (SC)=(2007) 5 SCC 108 , which was a case where the complaint clearly and categorically alleged that the named Directors were in charge of and responsible to the Company for the conduct of its business. It is in such circumstances that the prayer for quashing of the proceedings was rejected. 38. Both the questions regarding the failure of the Central Government to frame Rules to define the Laboratories, where samples of food could be analysed by the Public Analyst, or to define the validated methods of analysis and the liability of the Directors, who are the Appellants before us, are of great importance for the purpose of bringing home a charge against the accused for violation of the provisions of Rule 65 of the 1955 Rules and Section 2(ia)(h) of the 1954 Act and for holding that the Sweetened Carbonated Water manufactured by the Appellants was adulterated in terms of the said Rules. Since the range indicated as to the limits of tolerance of the presence of pesticides in different articles of food, including Sweetened Carbonated Water, which was included in the Table appended to Rule 65(2) with effect from 17th June, 2009, provides very little or practically no margin for error, the selection of Laboratories and the prescription of tolerance limits for different articles of food acquires great significance. The High Court does not appear to have considered the implications of the failure of the Central Government to frame Rules for the aforesaid purpose. Even the view taken by the High Court with regard to Grounds 3, 4 and 5 is not very satisfactory, as the mere presence of pesticide residue does not ipso facto render the article of food adulterated. Tolerance limits have been prescribed in the Table for this very purpose and the subsequent inclusion of Sweetened Carbonated Water seems to indicate so and leans more in favour of the Appellants. The High Court also appears to have overlooked the fact that the percentage of pesticides found by the Public Analyst in the Sweetened Carbonated Water manufactured by the Appellants was within the tolerance limits subsequently prescribed in respect of such product. 39. As mentioned hereinbefore, the High Court erred in giving its own interpretation to the decision of this Court in S.M.S. Pharmaceuticals Ltd.s case (supra), which was reiterated subsequently in several judgments, some of which have been indicated hereinabove, and relying instead on the decision of Rangacharis case (supra), the facts of which were entirely different from the facts of this case. It is now well established that in a complaint against a Company and its Directors, the Complainant has to indicate in the complaint itself as to whether the Directors concerned were either in charge of or responsible to the Company for its day-to-day management, or whether they were responsible to the Company for the conduct of its business. A mere bald statement that a person was a Director of the Company against which certain allegations had been made is not sufficient to make such Director liable in the absence of any specific allegations regarding his role in the management of the Company. 40. It has to be kept in mind that although an argument was advanced with regard to the restrictions imposed on the use of insecticides under Rule 65 of the 1955 Rules, it is apparent from the order of the learned Single Judge that such a ground was given up by the respondents and the arguments were confined only with regard to the alleged violation of Section 2(ia)(h) of the 1954 Act.
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a pick and choose method to suit the prosecution. However, in any event, the percentage of Carbofuran detected in the sample of Pepsico which was sent for examination to the Forensic Laboratory is within the tolerance limits prescribed for Sweetened Carbonated Water with effect from 17th June, 200935. The High Court also misconstrued the provisions of Section) and (hh) in holding that the same were basically enabling provisions and were not mandatory and could, in any event, be solved by the Central Government by framing Rules thereunder, by which specified tests to be held in designated Laboratories could be spelt out. Consequently, the High Court also erred in holding that then of Rules under the aforesaid provisions of the 1954 Act could not be said to be fatal for the prosecution36. As far as Grounds 3, 4 and 5 are concerned, the High Court failed to consider the reasons given on behalf of the Appellants for not sending the Companys sample to the Forensic Laboratory, to the effect that, since neither any validated method of analysis had been prescribed under Section) and (hh) of the 1954 Act, nor had any Laboratory been particularly specified for such examination, such an exercise would have been futile. In our view, no useful purpose could have been served by sending the second sample to the Forensic Laboratory, unless a defined tolerance limit of the presence of the pesticides was available in regard to Sweetened Carbonated Water. It may be noted that the High Court had itself observed that mere presence of insecticide residue to any extent could not justify an allegation that the article of food was adulterated, but contrary to such observation, the High Court went on to hold that the Sweetened Carbonated Water manufactured by the Appellants was adulterated within the meaning of Section 2(ia)(h) of the 1954 Act37. On the question of liability of the Directors of the Company with respect to an offence alleged to have been committed by the Company, the High Court went beyond the ratio of the decision of this Court in S.M.S. Pharmaceuticals Ltd.s case (supra) upon holding that the principles set out in the said decision could not be understood in any mechanical or rigid manner. Instead, the High Court based its judgment on the decision of this Court in N. Rangachari v. Bharat Sanchar Nigam Ltd., IV (2007) SLT 510=II (2007) DLT (Crl.) 380 (SC)=IV (2007) BC 516 (SC) =II (2007) CCR 258 (SC)=II (2007) CLT 275 (SC)=(2007) 5 SCC 108 , which was a case where the complaint clearly and categorically alleged that the named Directors were in charge of and responsible to the Company for the conduct of its business. It is in such circumstances that the prayer for quashing of the proceedings was rejected38. Both the questions regarding the failure of the Central Government to frame Rules to define the Laboratories, where samples of food could be analysed by the Public Analyst, or to define the validated methods of analysis and the liability of the Directors, who are the Appellants before us, are of great importance for the purpose of bringing home a charge against the accused for violation of the provisions of Rule 65 of the 1955 Rules and Section 2(ia)(h) of the 1954 Act and for holding that the Sweetened Carbonated Water manufactured by the Appellants was adulterated in terms of the said Rules. Since the range indicated as to the limits of tolerance of the presence of pesticides in different articles of food, including Sweetened Carbonated Water, which was included in the Table appended to Rule 65(2) with effect from 17th June, 2009, provides very little or practically no margin for error, the selection of Laboratories and the prescription of tolerance limits for different articles of food acquires great significance. The High Court does not appear to have considered the implications of the failure of the Central Government to frame Rules for the aforesaid purpose. Even the view taken by the High Court with regard to Grounds 3, 4 and 5 is not very satisfactory, as the mere presence of pesticide residue does not ipso facto render the article of food adulterated. Tolerance limits have been prescribed in the Table for this very purpose and the subsequent inclusion of Sweetened Carbonated Water seems to indicate so and leans more in favour of the Appellants. The High Court also appears to have overlooked the fact that the percentage of pesticides found by the Public Analyst in the Sweetened Carbonated Water manufactured by the Appellants was within the tolerance limits subsequently prescribed in respect of such product39. As mentioned hereinbefore, the High Court erred in giving its own interpretation to the decision of this Court in S.M.S. Pharmaceuticals Ltd.s case (supra), which was reiterated subsequently in several judgments, some of which have been indicated hereinabove, and relying instead on the decision of Rangacharis case (supra), the facts of which were entirely different from the facts of this case. It is now well established that in a complaint against a Company and its Directors, the Complainant has to indicate in the complaint itself as to whether the Directors concerned were either in charge of or responsible to the Company for itsy management, or whether they were responsible to the Company for the conduct of its business. A mere bald statement that a person was a Director of the Company against which certain allegations had been made is not sufficient to make such Director liable in the absence of any specific allegations regarding his role in the management of the Company40. It has to be kept in mind that although an argument was advanced with regard to the restrictions imposed on the use of insecticides under Rule 65 of the 1955 Rules, it is apparent from the order of the learned Single Judge that such a ground was given up by the respondents and the arguments were confined only with regard to the alleged violation of Section 2(ia)(h) of the 1954 Act.
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YOGESH NAGRAOJI UGALE Vs. STATE OF MAHARASHTRA THROUGH PRINCIPAL SECRETARY | This was followed up by further letters on 30.10.2012 and 31.10.2012. 2.2.Respondent No. 2 – the Education Officer vide letter dated 06.05.2013 called upon the Appellant for a hearing on 17.05.2013 to consider the application for appointment on Compassionate Grounds. Respondent Nos. 3 and 4 remained absent from the hearing on 17.05.2013, which was re-scheduled for 31.05.2013. The Respondent No. 2 – the Education Officer vide Order dated 31.05.2013 recorded that the President of the Society was ready to grant compassionate appointment to the Appellant, if the Education Officer grants the permission. The Education Officer recorded that the Appellant possessed the educational qualification of S.S.C. and had passed the computer examination MS¬CIT. Furthermore, there were two Schools being run by the Nagpur Pradesh Education Society, and each of the Schools had one post of Junior Clerk vacant. The Education Officer directed that the proposal for approval be submitted to his office within one month. 2.3.In response, Respondent No. 3 issued a communication dated 13.07.2013 to the Education Officer stating that a Government Resolution dated 22.03.2012 contemplates a ban on recruitment on non¬teaching employees on compassionate ground, which was relaxed in respect of the wait-list candidates prior to 31.12.2011. 2.4.The Government of Maharashtra vide Resolution dated 22.03.2012 bearing No. PDN¬2012/Pra. Kra. 15/12 Financial Development-1, continued the ban imposed on 22.08.2005 for recruitment of posts in ‘Group C and Group D? cadres in Government Departments/Offices and Government Aided Institutions with a view to control the administrative expenditure on the Recommendations of the 6 th Pay Commission. The Recruitment ban on candidates in the compassionate list after 22.08.2005 was continued. The Government vide Resolution dated 22.03.2012 relaxed the ban for candidates in the waiting list of appointments on compassionate ground till 31.12.2011. 2.5.The Government of Maharashtra vide Resolution dated 01.03.2014 bearing No. AKP¬1014/Pra. Kra. 34/8 revised its decision dated 22.08.2005 which had restricted recruitment to 5% in Group ‘C? and ‘D? on the basis of compassionate appointment, and increased the limit to 10% of posts. 2.6.Since the representations of the Appellant were not granted, W.P. No. 3520 of 2014 was filed by the Appellant before the High Court, praying inter alia for the issuance of a direction to Respondent Nos. 3 and 4 to appoint the Appellant on compassionate grounds. 2.7.The High Court vide final Judgment and Order dated 19.11.2014 held that the relief sought by the Appellant cannot be granted. The Appellant could not be appointed on compassionate grounds since the family of the Appellant had received monetary benefits of Rs. 7,50,000/¬ towards the statutory dues of the deceased i.e. Provident Fund, Gratuity and Leave Encashment. It was also held that the mother of the Appellant was receiving a monthly pension of Rs. 11,030/-. The High Court dismissed the Writ Petition filed by the Appellant. 3. Aggrieved by the aforesaid Judgment of the High Court, the Appellant has filed the present Special Leave Petition before this Court. This Court issued Notice to the Respondents vide Order dated 12.02.2015. 4. Learned Counsel for the Appellants inter alia submitted that the Appellant is qualified and eligible to be appointed to the post of Peon (Class IV). There is a vacancy for the post of Peon (Class IV) in the two Schools run by Respondent Nos. 3 and 4. The Appellant and his family are facing a serious financial crisis due to the death of his father. The grant of monetary benefits on the death of his father towards provident fund, gratuity and leave encashment cannot be a ground for denial of appointment on compassionate grounds. 5. Learned Counsel for Respondent Nos. 3 and 4 inter alia submitted that there are two Schools run by Respondent Nos. 3 and 4. Prior to the session commencing 2013¬14, there were 9 Class IV posts available in both the schools. Out of the said 9 posts, 7 posts were already filled up. Respondent Nos. 3 and 4 did not get permission from the Education Department to fill up the remaining two posts. The family of the Appellant had received a sum of Rs. 7,53,243 towards monetary benefits at the time of death of the Appellant?s father. Apart from the monetary benefits, the mother of the Appellant has been receiving Rs. 11,020 towards monthly pension. The Appellant cannot claim compassionate appointment as a matter of right. 6. We have heard the learned Counsel for the parties, and have perused the material on record. 6.1.In the present case, the Appellant admittedly possesses the educational qualifications for the post of Peon. The Appellant has an S.S.C. Degree along with MS. C.I.T. 6.2.Even though Respondent Nos. 3 and 4 contended that there is a ban since 2005 for appointment on compassionate grounds, a relaxation was initially granted for persons on the wait list till 31.12.2011. Thereafter, vide Government Resolution dated 01.03.2014 bearing No. AKP¬1014/Pra. Kra. 34/8 the Government of Maharashtra decided to increase the recruitment of ‘Group C and D? posts on compassionate ground from 5% to 10%. On 02.04.2014, the Government released a Supplementary Order to this Resolution stating that all employment authorities shall take action every year to fill up the posts reserved for compassionate appointment upto 10% of vacant posts of Class C and D from 2012. This reveals that the Government was continuing to make appointments on compassionate grounds despite the ban of 2005, and in fact had increased the number of posts earmarked for compassionate appointment to 10%. 6.3.A perusal of the Order dated 31.05.2013 passed by the Education Officer reveals that during the hearing, Respondent No. 3 – President of the Society stated that the Society was ready to appoint the Appellant on compassionate grounds, if the Education Officer grants the permission. The Education Officer had in the proceedings dated 31.05.2013 recorded that there are 2 post of Junior Clerk vacant in the two Schools run by Respondent Nos. 3 and 4, where the Appellant could be appointed. This fact has not been either adverted to, or considered by the High Court, in the impugned judgment. | 1[ds]6.1.In the present case, the Appellant admittedly possesses the educational qualifications for the post of Peon. The Appellant has an S.S.C. Degree along with MS.reveals that the Government was continuing to make appointments on compassionate grounds despite the ban of 2005, and in fact had increased the number of posts earmarked for compassionate appointment toperusal of the Order dated 31.05.2013 passed by the Education Officer reveals that during the hearing, Respondent No. 3 – President of the Society stated that the Society was ready to appoint the Appellant on compassionate grounds, if the Education Officer grants theEducation Officer had in the proceedings dated 31.05.2013 recorded that there are 2 post of Junior Clerk vacant in the two Schools run by Respondent Nos. 3 and 4, where the Appellant could befact has not been either adverted to, or considered by the High Court, in the impugned judgment. | 1 | 1,261 | 162 | ### 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:
This was followed up by further letters on 30.10.2012 and 31.10.2012. 2.2.Respondent No. 2 – the Education Officer vide letter dated 06.05.2013 called upon the Appellant for a hearing on 17.05.2013 to consider the application for appointment on Compassionate Grounds. Respondent Nos. 3 and 4 remained absent from the hearing on 17.05.2013, which was re-scheduled for 31.05.2013. The Respondent No. 2 – the Education Officer vide Order dated 31.05.2013 recorded that the President of the Society was ready to grant compassionate appointment to the Appellant, if the Education Officer grants the permission. The Education Officer recorded that the Appellant possessed the educational qualification of S.S.C. and had passed the computer examination MS¬CIT. Furthermore, there were two Schools being run by the Nagpur Pradesh Education Society, and each of the Schools had one post of Junior Clerk vacant. The Education Officer directed that the proposal for approval be submitted to his office within one month. 2.3.In response, Respondent No. 3 issued a communication dated 13.07.2013 to the Education Officer stating that a Government Resolution dated 22.03.2012 contemplates a ban on recruitment on non¬teaching employees on compassionate ground, which was relaxed in respect of the wait-list candidates prior to 31.12.2011. 2.4.The Government of Maharashtra vide Resolution dated 22.03.2012 bearing No. PDN¬2012/Pra. Kra. 15/12 Financial Development-1, continued the ban imposed on 22.08.2005 for recruitment of posts in ‘Group C and Group D? cadres in Government Departments/Offices and Government Aided Institutions with a view to control the administrative expenditure on the Recommendations of the 6 th Pay Commission. The Recruitment ban on candidates in the compassionate list after 22.08.2005 was continued. The Government vide Resolution dated 22.03.2012 relaxed the ban for candidates in the waiting list of appointments on compassionate ground till 31.12.2011. 2.5.The Government of Maharashtra vide Resolution dated 01.03.2014 bearing No. AKP¬1014/Pra. Kra. 34/8 revised its decision dated 22.08.2005 which had restricted recruitment to 5% in Group ‘C? and ‘D? on the basis of compassionate appointment, and increased the limit to 10% of posts. 2.6.Since the representations of the Appellant were not granted, W.P. No. 3520 of 2014 was filed by the Appellant before the High Court, praying inter alia for the issuance of a direction to Respondent Nos. 3 and 4 to appoint the Appellant on compassionate grounds. 2.7.The High Court vide final Judgment and Order dated 19.11.2014 held that the relief sought by the Appellant cannot be granted. The Appellant could not be appointed on compassionate grounds since the family of the Appellant had received monetary benefits of Rs. 7,50,000/¬ towards the statutory dues of the deceased i.e. Provident Fund, Gratuity and Leave Encashment. It was also held that the mother of the Appellant was receiving a monthly pension of Rs. 11,030/-. The High Court dismissed the Writ Petition filed by the Appellant. 3. Aggrieved by the aforesaid Judgment of the High Court, the Appellant has filed the present Special Leave Petition before this Court. This Court issued Notice to the Respondents vide Order dated 12.02.2015. 4. Learned Counsel for the Appellants inter alia submitted that the Appellant is qualified and eligible to be appointed to the post of Peon (Class IV). There is a vacancy for the post of Peon (Class IV) in the two Schools run by Respondent Nos. 3 and 4. The Appellant and his family are facing a serious financial crisis due to the death of his father. The grant of monetary benefits on the death of his father towards provident fund, gratuity and leave encashment cannot be a ground for denial of appointment on compassionate grounds. 5. Learned Counsel for Respondent Nos. 3 and 4 inter alia submitted that there are two Schools run by Respondent Nos. 3 and 4. Prior to the session commencing 2013¬14, there were 9 Class IV posts available in both the schools. Out of the said 9 posts, 7 posts were already filled up. Respondent Nos. 3 and 4 did not get permission from the Education Department to fill up the remaining two posts. The family of the Appellant had received a sum of Rs. 7,53,243 towards monetary benefits at the time of death of the Appellant?s father. Apart from the monetary benefits, the mother of the Appellant has been receiving Rs. 11,020 towards monthly pension. The Appellant cannot claim compassionate appointment as a matter of right. 6. We have heard the learned Counsel for the parties, and have perused the material on record. 6.1.In the present case, the Appellant admittedly possesses the educational qualifications for the post of Peon. The Appellant has an S.S.C. Degree along with MS. C.I.T. 6.2.Even though Respondent Nos. 3 and 4 contended that there is a ban since 2005 for appointment on compassionate grounds, a relaxation was initially granted for persons on the wait list till 31.12.2011. Thereafter, vide Government Resolution dated 01.03.2014 bearing No. AKP¬1014/Pra. Kra. 34/8 the Government of Maharashtra decided to increase the recruitment of ‘Group C and D? posts on compassionate ground from 5% to 10%. On 02.04.2014, the Government released a Supplementary Order to this Resolution stating that all employment authorities shall take action every year to fill up the posts reserved for compassionate appointment upto 10% of vacant posts of Class C and D from 2012. This reveals that the Government was continuing to make appointments on compassionate grounds despite the ban of 2005, and in fact had increased the number of posts earmarked for compassionate appointment to 10%. 6.3.A perusal of the Order dated 31.05.2013 passed by the Education Officer reveals that during the hearing, Respondent No. 3 – President of the Society stated that the Society was ready to appoint the Appellant on compassionate grounds, if the Education Officer grants the permission. The Education Officer had in the proceedings dated 31.05.2013 recorded that there are 2 post of Junior Clerk vacant in the two Schools run by Respondent Nos. 3 and 4, where the Appellant could be appointed. This fact has not been either adverted to, or considered by the High Court, in the impugned judgment.
### Response:
1
### Explanation:
6.1.In the present case, the Appellant admittedly possesses the educational qualifications for the post of Peon. The Appellant has an S.S.C. Degree along with MS.reveals that the Government was continuing to make appointments on compassionate grounds despite the ban of 2005, and in fact had increased the number of posts earmarked for compassionate appointment toperusal of the Order dated 31.05.2013 passed by the Education Officer reveals that during the hearing, Respondent No. 3 – President of the Society stated that the Society was ready to appoint the Appellant on compassionate grounds, if the Education Officer grants theEducation Officer had in the proceedings dated 31.05.2013 recorded that there are 2 post of Junior Clerk vacant in the two Schools run by Respondent Nos. 3 and 4, where the Appellant could befact has not been either adverted to, or considered by the High Court, in the impugned judgment.
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Deposit Insurance & Credit Guarnt.Corpn Vs. Ragupathi Ragavan | or the amount deposited, whichever was less, from the Official Liquidator and the said amount must had been paid to them when the petitions were filed. 22. According to the provisions of the Act, after payment to the above extent is made to each depositor, if any amount is available at the disposal of the Official Liquidator, which he might have recovered from the borrowers or from other sources, he has to pay the said amount to the extent to which the amount had been paid by the Corporation as per the provisions of Section 21 of the Act. Section 21 of the Act reads as under :- “21. (1) Where any amount has been paid under section 17 or section 18 or any provision therefor has been made under section 20, the Corporation shall furnish to the liquidator or to the insured bank or to the transferee bank, as the case may be, information as regards the amount so paid or provided for.2) On receipt of the information under sub-section (1), notwithstanding anything to the contrary contained in any other law for the time being in force, -(a) the liquidator shall, within such time and in such manner as may be prescribed, repay to the Corporation out of the amount, if any payable by him in respect of any deposit such sum or sums as make up the amount paid or provided for by the Corporation in respect of that deposit;(b) the insured bank or, as the case may be, the transferee bank, shall, within such time and in such manner as may be prescribed, repay to the Corporation out of the amount, if any, to be paid or credited in respect of any deposit after the date of the coming into force of the scheme referred to in section 18, such sum or sums as make up the amount paid or provided for by the Corporation in respect of that deposit.” 23. It is pertinent to note that when the Corporation had paid to the depositors as per the insurance scheme under the Act, the Corporation gets a right under the aforestated Section 21 of the Act to get money from the Official Liquidator. 24. One has to look at sub-Section (2) of Section 21, which in unequivocal terms, directs the Official Liquidator to make the payment to the Corporation as it has been stated in the said sub-section, notwithstanding anything to the contrary contained in any other law for the time being in force. Thus, the Official Liquidator, as per clause 2(a) of Section 21 of the Act, has to repay the amount to the Corporation. 25. The aforestated Section 21 not only makes it obligatory on the part of the Official Liquidator to repay the said amount to the Corporation, but it also clarifies that there shall not be any other preferential creditor who would be getting any amount from the Official Liquidator till the amount payable under Section 21 of the Act is paid to the Corporation. 26. In view of the aforestated clear legal position, in our opinion, the High Court was not right when it directed the Official Liquidator to determine the mode of payment by ignoring the aforestated statutory provision. 27. The Corporation was not represented before the learned Single Judge, but at least before the Division Bench, the learned counsel appearing for the Official Liquidator had drawn attention of the Bench to the aforestated legal provisions of the Act. Moreover, provisions of Regulation 22 of the Deposit Insurance and Credit Guarantee Corporation General Regulations, 1961 (hereinafter referred to as ‘the Regulations’) had also been referred to by the learned counsel. The said Regulation 22 reads as under : “22. The amounts repayable to the Corporation under sub-section (2) of section 21 of the Act shall be paid from time to time by, -(a) the liquidator as soon as the realisations and other amounts in his hands, after making provision for expenses payable by that time, are sufficient to enable him to declare a dividend of not less than one paisa. in the Rupee to each depositor.(b) the insured bank or the transferee bank, as the case may be, as soon as the realisations and other amounts in its hands, after making provision for expenses payable by that time in respect of such realisations or other amounts in its hands are sufficient to enable it after the date of coming into force of the scheme referred to in section 18 of the Act, to pay or credit in respect of each depositor a sum not less than one paisa in the Rupee.” 28. The aforestated Regulation 22 also provides that the Official Liquidator, after making necessary provision for the expenses in relation to the liquidation proceedings and for declaration of dividend, as prescribed in the Regulations, has to make payment to the Corporation. 29. In view of the aforestated statutory legal provision, in our opinion, the High Court should not have given the direction which, if complied with, would run contrary to the statutory provisions incorporated in the Act. 30. Even if one looks at the entire issue from different point of view, one would believe that all the depositors have by and large equal right. If the amount deposited is less than Rs.1 lakh, each depositor gets the amount in full, but if the deposit is exceeding Rs.1 lakh, then only the amount which is in excess of Rs.1 lakh may not be given to the depositor, unless the bank in liquidation is having sufficient funds which can be given to all on pro-rata basis after providing for expenditure in the liquidation proceedings and after repaying the amount to the Corporation as per the provisions of the Act. The Act in a way guarantees repayment of Rs.1 lakh to each depositor. The High Court or any other authority has no power to direct payment in excess of Rs.1 lakh by ignoring statutory provisions of the Act and the Regulations made thereunder. | 1[ds]5. In the instant case, we are concerned with Theni Cooperative Urban Bank Ltd., doing its banking business mainly in District Theni of Tamil Nadu. The aforestated Bank, which had been registered as an insured bank with the Corporation on 1st July, 1980, was in financial difficulties and therefore, the Reserve Bank of India had cancelled its licence to do banking business under Section 22 of the Banking Regulations Act, 1949 on 23rd May, 2002. However, the said order cancelling the licence was kept in abeyance for a period of six months by an order dated 7th June, 2002.Though the aforestated amount had been released by the Corporation, all the depositors could not be paid the entire amount they had deposited with the bank because the amount insured in respect of each depositor was only Rs.1 lakh. So, those who had deposited more than one lakh rupees with the bank, were not paid the amount to the extent to which their deposits exceeded Rs.1 lakh.According to the learned counsel for the Corporation, the directions given by the learned Single Judge as well as the Division Bench in appeal by the High Court are contrary to the provisions of the Act. The learned counsel had taken us through the provisions of the Act, more particularly, the provisions of Sections 16, 17, 21 and 22 and the provisions of the Banking Regulations Act, 1949, so as to establish the case of the Corporation to the effect that after payment by the Corporation to the depositors to the extent to which the deposits had been guaranteed, the surplus should be put at the disposal of the Corporation subject to the provision of Section 21 of the Act. Till the said surplus is paid to the Corporation, subject to the provisions regarding making payment of winding up expenditure, dividend to be paid as per the provisions of Section 21 of the Act, the depositors could not have been given any further amount. Any payment to depositors at that stage would be contrary to the provisions of the Act and by virtue of the orders passed by the High Court, the Official Liquidator was directed to act contrary to the provisions of the Act.Upon hearing the learned counsel appearing for the parties and looking at the facts of the case, we are of the view that this appeal deserves to be allowed. We note the fact that Writ Petition Nos.6768 of 2005 and 7372 of 2005 had been finally disposed of at an admission stage. In the said petitions, the present appellant Corporation was not made a party, though it was stated before the learned Single Judge that according to the statutory provisions of the Act, the Official Liquidator had to make payment to the Corporation. In view of the said submission, in our opinion, it would have been better if the Corporation had been impleaded as one of the respondents. In that event, the stand of the Corporation and the provisions of the Act could have been known in detail by the learned Single Judge.The object with which the Act has been enacted has been stated hereinabove in a nutshell. The object was to insure the depositors so that they may not have to stand in a queue before the Official Liquidator for every paisa deposited by them with the concerned bank. As on today, as per the provisions of Section 16(1) of the Act, a sum of Rs.1 lakh is being insured or guaranteed in respect of each depositor. So a depositor is safe and he has not to wash his hands off his deposit if the amount deposited by him is less than Rs.1 lakh. The Official Liquidator, as per the provisions of the Act, has to give details about the depositors and the amount deposited by them in a prescribed form within three months from the date on which the liquidation order is passed or from the day on which he takes charge, whichever is later and within two months from the date on which the details are submitted to the Corporation, the Corporation has to make payment to the above extent either to the depositors directly or to them through the Official Liquidator.21. Thus, as per theScheme, each depositor, including each original petitioner, must have received Rs.1 lakh from the Official Liquidator. Initially, upon the bank being ordered to bethe original petitioners and other depositors had a right to recover Rs.1 lakh or the amount deposited, whichever was less, from the Official Liquidator and the said amount must had been paid to them when the petitions were filed.In view of the aforestated clear legal position, in our opinion, the High Court was not right when it directed the Official Liquidator to determine the mode of payment by ignoring the aforestated statutory provision.Even if one looks at the entire issue from different point of view, one would believe that all the depositors have by and large equal right. If the amount deposited is less than Rs.1 lakh, each depositor gets the amount in full, but if the deposit is exceeding Rs.1 lakh, then only the amount which is in excess of Rs.1 lakh may not be given to the depositor, unless the bank in liquidation is having sufficient funds which can be given to all onbasis after providing for expenditure in the liquidation proceedings and after repaying the amount to the Corporation as per the provisions of the Act. The Act in a way guarantees repayment of Rs.1 lakh to each depositor. The High Court or any other authority has no power to direct payment in excess of Rs.1 lakh by ignoring statutory provisions of the Act and the Regulations made thereunder. | 1 | 3,475 | 1,031 | ### 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:
or the amount deposited, whichever was less, from the Official Liquidator and the said amount must had been paid to them when the petitions were filed. 22. According to the provisions of the Act, after payment to the above extent is made to each depositor, if any amount is available at the disposal of the Official Liquidator, which he might have recovered from the borrowers or from other sources, he has to pay the said amount to the extent to which the amount had been paid by the Corporation as per the provisions of Section 21 of the Act. Section 21 of the Act reads as under :- “21. (1) Where any amount has been paid under section 17 or section 18 or any provision therefor has been made under section 20, the Corporation shall furnish to the liquidator or to the insured bank or to the transferee bank, as the case may be, information as regards the amount so paid or provided for.2) On receipt of the information under sub-section (1), notwithstanding anything to the contrary contained in any other law for the time being in force, -(a) the liquidator shall, within such time and in such manner as may be prescribed, repay to the Corporation out of the amount, if any payable by him in respect of any deposit such sum or sums as make up the amount paid or provided for by the Corporation in respect of that deposit;(b) the insured bank or, as the case may be, the transferee bank, shall, within such time and in such manner as may be prescribed, repay to the Corporation out of the amount, if any, to be paid or credited in respect of any deposit after the date of the coming into force of the scheme referred to in section 18, such sum or sums as make up the amount paid or provided for by the Corporation in respect of that deposit.” 23. It is pertinent to note that when the Corporation had paid to the depositors as per the insurance scheme under the Act, the Corporation gets a right under the aforestated Section 21 of the Act to get money from the Official Liquidator. 24. One has to look at sub-Section (2) of Section 21, which in unequivocal terms, directs the Official Liquidator to make the payment to the Corporation as it has been stated in the said sub-section, notwithstanding anything to the contrary contained in any other law for the time being in force. Thus, the Official Liquidator, as per clause 2(a) of Section 21 of the Act, has to repay the amount to the Corporation. 25. The aforestated Section 21 not only makes it obligatory on the part of the Official Liquidator to repay the said amount to the Corporation, but it also clarifies that there shall not be any other preferential creditor who would be getting any amount from the Official Liquidator till the amount payable under Section 21 of the Act is paid to the Corporation. 26. In view of the aforestated clear legal position, in our opinion, the High Court was not right when it directed the Official Liquidator to determine the mode of payment by ignoring the aforestated statutory provision. 27. The Corporation was not represented before the learned Single Judge, but at least before the Division Bench, the learned counsel appearing for the Official Liquidator had drawn attention of the Bench to the aforestated legal provisions of the Act. Moreover, provisions of Regulation 22 of the Deposit Insurance and Credit Guarantee Corporation General Regulations, 1961 (hereinafter referred to as ‘the Regulations’) had also been referred to by the learned counsel. The said Regulation 22 reads as under : “22. The amounts repayable to the Corporation under sub-section (2) of section 21 of the Act shall be paid from time to time by, -(a) the liquidator as soon as the realisations and other amounts in his hands, after making provision for expenses payable by that time, are sufficient to enable him to declare a dividend of not less than one paisa. in the Rupee to each depositor.(b) the insured bank or the transferee bank, as the case may be, as soon as the realisations and other amounts in its hands, after making provision for expenses payable by that time in respect of such realisations or other amounts in its hands are sufficient to enable it after the date of coming into force of the scheme referred to in section 18 of the Act, to pay or credit in respect of each depositor a sum not less than one paisa in the Rupee.” 28. The aforestated Regulation 22 also provides that the Official Liquidator, after making necessary provision for the expenses in relation to the liquidation proceedings and for declaration of dividend, as prescribed in the Regulations, has to make payment to the Corporation. 29. In view of the aforestated statutory legal provision, in our opinion, the High Court should not have given the direction which, if complied with, would run contrary to the statutory provisions incorporated in the Act. 30. Even if one looks at the entire issue from different point of view, one would believe that all the depositors have by and large equal right. If the amount deposited is less than Rs.1 lakh, each depositor gets the amount in full, but if the deposit is exceeding Rs.1 lakh, then only the amount which is in excess of Rs.1 lakh may not be given to the depositor, unless the bank in liquidation is having sufficient funds which can be given to all on pro-rata basis after providing for expenditure in the liquidation proceedings and after repaying the amount to the Corporation as per the provisions of the Act. The Act in a way guarantees repayment of Rs.1 lakh to each depositor. The High Court or any other authority has no power to direct payment in excess of Rs.1 lakh by ignoring statutory provisions of the Act and the Regulations made thereunder.
### Response:
1
### Explanation:
5. In the instant case, we are concerned with Theni Cooperative Urban Bank Ltd., doing its banking business mainly in District Theni of Tamil Nadu. The aforestated Bank, which had been registered as an insured bank with the Corporation on 1st July, 1980, was in financial difficulties and therefore, the Reserve Bank of India had cancelled its licence to do banking business under Section 22 of the Banking Regulations Act, 1949 on 23rd May, 2002. However, the said order cancelling the licence was kept in abeyance for a period of six months by an order dated 7th June, 2002.Though the aforestated amount had been released by the Corporation, all the depositors could not be paid the entire amount they had deposited with the bank because the amount insured in respect of each depositor was only Rs.1 lakh. So, those who had deposited more than one lakh rupees with the bank, were not paid the amount to the extent to which their deposits exceeded Rs.1 lakh.According to the learned counsel for the Corporation, the directions given by the learned Single Judge as well as the Division Bench in appeal by the High Court are contrary to the provisions of the Act. The learned counsel had taken us through the provisions of the Act, more particularly, the provisions of Sections 16, 17, 21 and 22 and the provisions of the Banking Regulations Act, 1949, so as to establish the case of the Corporation to the effect that after payment by the Corporation to the depositors to the extent to which the deposits had been guaranteed, the surplus should be put at the disposal of the Corporation subject to the provision of Section 21 of the Act. Till the said surplus is paid to the Corporation, subject to the provisions regarding making payment of winding up expenditure, dividend to be paid as per the provisions of Section 21 of the Act, the depositors could not have been given any further amount. Any payment to depositors at that stage would be contrary to the provisions of the Act and by virtue of the orders passed by the High Court, the Official Liquidator was directed to act contrary to the provisions of the Act.Upon hearing the learned counsel appearing for the parties and looking at the facts of the case, we are of the view that this appeal deserves to be allowed. We note the fact that Writ Petition Nos.6768 of 2005 and 7372 of 2005 had been finally disposed of at an admission stage. In the said petitions, the present appellant Corporation was not made a party, though it was stated before the learned Single Judge that according to the statutory provisions of the Act, the Official Liquidator had to make payment to the Corporation. In view of the said submission, in our opinion, it would have been better if the Corporation had been impleaded as one of the respondents. In that event, the stand of the Corporation and the provisions of the Act could have been known in detail by the learned Single Judge.The object with which the Act has been enacted has been stated hereinabove in a nutshell. The object was to insure the depositors so that they may not have to stand in a queue before the Official Liquidator for every paisa deposited by them with the concerned bank. As on today, as per the provisions of Section 16(1) of the Act, a sum of Rs.1 lakh is being insured or guaranteed in respect of each depositor. So a depositor is safe and he has not to wash his hands off his deposit if the amount deposited by him is less than Rs.1 lakh. The Official Liquidator, as per the provisions of the Act, has to give details about the depositors and the amount deposited by them in a prescribed form within three months from the date on which the liquidation order is passed or from the day on which he takes charge, whichever is later and within two months from the date on which the details are submitted to the Corporation, the Corporation has to make payment to the above extent either to the depositors directly or to them through the Official Liquidator.21. Thus, as per theScheme, each depositor, including each original petitioner, must have received Rs.1 lakh from the Official Liquidator. Initially, upon the bank being ordered to bethe original petitioners and other depositors had a right to recover Rs.1 lakh or the amount deposited, whichever was less, from the Official Liquidator and the said amount must had been paid to them when the petitions were filed.In view of the aforestated clear legal position, in our opinion, the High Court was not right when it directed the Official Liquidator to determine the mode of payment by ignoring the aforestated statutory provision.Even if one looks at the entire issue from different point of view, one would believe that all the depositors have by and large equal right. If the amount deposited is less than Rs.1 lakh, each depositor gets the amount in full, but if the deposit is exceeding Rs.1 lakh, then only the amount which is in excess of Rs.1 lakh may not be given to the depositor, unless the bank in liquidation is having sufficient funds which can be given to all onbasis after providing for expenditure in the liquidation proceedings and after repaying the amount to the Corporation as per the provisions of the Act. The Act in a way guarantees repayment of Rs.1 lakh to each depositor. The High Court or any other authority has no power to direct payment in excess of Rs.1 lakh by ignoring statutory provisions of the Act and the Regulations made thereunder.
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VIJAY PULLARWR Vs. HANUMAN DEOSTAN | in Circle No.3) is the property of the plaintiff trust. No documentary evidence has been produced by the plaintiffs/respondents to establish the fact that the suit house bearing House No.878 in Circle No.3 originally owned by Haridas Baba was recorded as the property of the plaintiff trust in the official records. The plea taken by the defendants in the written statement, however, is indicative of the fact that they (defendants/appellants) were occupying House No.878 in Circle No.3, which was originally owned by Haridas Baba and where his Padukas had been installed. The written statement as well as the oral evidence of defendants/appellants clearly refute the claim of the plaintiffs/respondents. In that, the trust named as Shri Hanuman Deosthan has been registered in reference to some other properties and for performing puja with the object of maintaining Hanuman Deosthan temple in House No.55 in Circle No.3. We also find that the High Court has selectively adverted to portion of the written statement [sub-paras (b) to (d) of paragraph 11 thereof] and not to the other portion of the same paragraph, namely sub-paras (e) to (g) (reproduced in paragraph 9 hereinabove) which put across the stand of the defendants/appellants including that the plaintiff trust has no causal connection with the suit house bearing No.878 in Circle No.3. 29. Needless to observe that the plaintiffs/respondents were primarily obliged to establish their title in the suit house bearing No.878 in Circle No.3 where the Padukas of Saint Haridas Baba have been installed, as being the property of the plaintiff trust. The plaintiffs must succeed or fail on the title they establish; and if they fail to do so, they must fail to get the relief of possession irrespective of title of the defendant in the suit property (See Brahma Nand Puri Vs. Naki Puri (1965) 2 SCR 233 and Bajaranglal Shivchandrai Ruia Vs. Shashikant N. Ruia and Ors. (2004) 5 SCC 272 ). In the present case, no tangible evidence regarding title of plaintiff trust in the suit house (House No.878 in Circle No.3) is forthcoming. 30. The High Court has also adverted to the so-called admission given by DW-1 Vijay, noted in paragraph No.12 of the impugned judgment. In our opinion, the High Court has completely misread the said admission. Inasmuch as, all it says is that the house number had changed every four years after revaluation. Further, the suit house is in Circle No.3. This is spoken by the witness (DW1), in response to the question posed to him about the change of Circle. He then admits that since 1910, the suit house was owned by Haridas Bairagi. We fail to understand as to how this admission can be of any avail to the plaintiffs much less to hold that the plaintiff trust has title in the suit house bearing House No.878 in Circle No.3. 31. Much ado was made about the contents of a communication sent by defendant No.1 to the Mayor of Nagpur Municipal Corporation (Exh.75). The same reads thus:Exhibit-75 To, The Mayor, Nagpur Municipal Corporation Wasudeorao Maniramji Pullarwar, Occupier Baba Haridasji Math, House No.152, Ward No.6 New Ward No.16, S. No.03, New Shukrawari, Fawara Chowk, Medical Road, Nagpur. …..Applicant Subject: Objection to mutation on house No.152, Ward No.16 circle No.03, New SShukrawari, Fawara Chowk, Medical Road, Nagpur. Sir, With respect, it submitted that house no.152, Ward No.16 New Shukrawari Nagpur is recorded in the name of Baba Haridas Math in the Nagpur Municipal Corporation assessment register for the last 70 years. The applicant is the disciple of Baba Haridas for the last 60 years and is in possession and occupation of it for last 30 years. He is looking after the Math and performing pooja/ustsav on yearly basis (yearly Utsav). I am paying the taxes of the said math for the last 30 years as occupier and user. The receipts to that effect are with me. The demand bill for the year 1978- 79 for taxes is given to the applicant. From that it has come to the knowledge of the applicant that the said house is recorded in the name of ?Shri Hanuman Deosthan Trust?. Then it is mentioned that the said change is as per the decision of Learned Charity Commissioner, Mumbai dated 4.4.1975 and the same is recorded on 15.7.1976 in the name of Hanuman Deosthan Trust. However, in the office or register of Charity Commissioner, Mumbai or Deputy Charity Commissioner, Nagpur dated 4.4.1975, there is no reference/mention about Shri Haridas Baba Math, House No.152, Ward No.16, Circle No.3, New Shukrawari, Nagpur nor there is any reference in the copy received by me. Hence, the Hanuman Deosthan Trust has got the name changed from Haridas Baba Math to Hanuman Deosthan Trust by keeping the tax department in the dark, fraudulently. The change is recorded by the assessment department of the Nagpur Municipal Corporation without consulting or asking the applicant. The said change is not acceptable to the applicant. Hence, the original name of Baba Haridas Math should be maintained. Accordingly, the applicant is ready to pay the taxes as earlier. Also the Hanuman Deosthan Trust has got the change done by keeping the Corporation in the dark. It has no relation with the math. Hence, the name of the said Trust be removed and original name of Baba Haridas Math be maintained. The applicant be given opportunity to produce his documents and say before yourself. Nagpur Dated: 17.3.1980 Sd/-Wasudeo Pullarwar Applicant?We fail to understand as to how this communication can be used as an admission of the defendants much less of having accepted the title of the plaintiff trust in the suit House No.878 (renumbered as House No.152), in Circle No.3. On the other hand, it is a representation made to assail the unilateral alteration of mutation entry in favour of Shri Hanuman Deosthan Trust in violation of principles natural justice. 32. Suffice it to observe that even the second substantial question of law must be answered against the plaintiffs and in favour of the defendants/appellants. | 0[ds]Indubitably, the present suit is a suit for recovery of possession of the subject property on the basis of title claimed therein by the plaintiffs/respondents and being a property of the trust. However, the procedure envisaged under Sections 50 and 51, obviously, has not been complied with. For, such permission has not been produced nor adverted to by the courts below.Be that as it may, as the plaintiffs/respondents have claimed title in the suit property, that claim could be answered on the basis of the registration application of the trust, and schedule I regarding the registered properties of the trust. Whether the property is a property of the trust and including the question as to whether it should be so recorded as the property of the trust, is a matter exclusively within the domain of the Charity Commissioner.In the present case, the registration application preferred by Chotelal unambiguously records House No.55 in Circle No.3 as being used for performing pujas in the temple. The temple name is mentioned as Shri Hanuman Deosthan. There is no reference in the application or in schedule I recording the properties of the stated public trust to include the ?Padukas of Haridas Baba? installed in House No.878 in Circle No.3. Concededly, no evidence is forthcoming to show that Hanuman Temple exists in House No.878 in Circle No.3which is inpossession of the defendants/appellants.Suffice it to observe that the application for registration of the public trust submitted by Chotelal on 31 st August, 1953 (Exh.63), the subsequent application for registration submitted by him under the provisions of the 1950 Act dated 13 th September, 1961 (Exh.64), the schedule I recording properties of the plaintiff public trust (Exh.43), the enquiry report dated 13 th October, 1954 (Exh.42), and the application for framing of the scheme and the order passed by the Charity Commissioner dated 4 th April, 1975 (Exh.46), none of these document mention about ?Padukas of Haridas Baba? installed in House No.878 or refer to House No.878 in Circle No.3 being the trust property; but instead, make specific reference to House No.55 in Circle No.3, which is a completely different property. Notably, these documents also do not advert to the document dated 23 rd May, 1946 (Exh.41), purportedly executed by Smt. Yashodabai allegedly creating a Panch Committee in respect of the suit House No.878 in Circle No.3. The finding of fact recorded by the First Appellate Court regarding the two properties and, more particularly, analysis in paragraphs 11 & 12 of its judgment (reproduced in paragraph No. 12 herein above), have been brushed aside by the High Court on the specious asumption that it is a case ofof the property in the official register of public trust. That, however, was not the case pleaded much less proved by the plaintiffs/respondents. Such finding recorded by the High Court is a case of manifest error or error apparent, if not perverse. The High Court could not have disregarded the registration application and the description of the house number given in schedule I as the registered property of the public trust, which is House No.55 in Circle No.3. It was for the plaintiffs/respondents to plead and prove that House No.55 shown in schedule I as property of the plaintiff trust is the same as House No.878 in Circle No.3, which description has been given in the plaint as the suit house. Having failed to establish that fact, no fault can be found with the finding recorded by the First Appellate Court, that Shri Hanuman Deosthan, a public trust, had no causal connection with House No.878 in Circle No.3 occupied by the defendants/appellants. Thus, it must necessarily follow that the suit for possession (of House No.878 in Circle No.3) instituted by the plaintiffs/respondents on the basis of title, was devoid of merits.We have no hesitation in upholding the finding of fact recorded by the First Appellate Court that the suit house occupied by the defendants/appellants was recorded in the Municipal records during 1947 to 1950 as House No.878 belonging to Haridas Baba and that number was changed to House No.521 inand converted to House No.152 till the institution of the present suit. Further, it is clear that House No.55 in Circle No.3 is entirely a different property. That has been registered as the trust property of Shri Hanuman Deosthan public trust, initially at the instance of Chotelal and then continued to be shown as a registered property of the plaintiff trust until the institution of the suit. Such registration by the authorities under the 1950 Act would bind the plaintiffs/respondents. The plaintiffs/respondents have not been able to produce any documentary evidence to establish the fact that the suit house (bearing House No.878 in Circle No.3, which later on became House No.152 in Circle No.3 by the time the suit was instituted), was the property of the plaintiff trust. The concomitant of such a conclusion is to dismiss the suit.It is not necessary for us to dilate on every aspect dealt with by the First Appellate Court or for that matter, the High Court, for answering the substantial question of law under consideration. We affirm the conclusion reached by the First Appellate Court that the plaintiff trust had failed to produce any documentary evidence to substantiate the fact that suit House No.878 in Circle No.3 was the registered property of the plaintiff trust and that the registered property of the plaintiff trust bearing House No.55 in Circle No.3, is the same house inpossession of the defendants/appellants.Pertinently, the latter property was not owned by Haridas Baba but belonged to one Ramlal Munnalal Halwai, having a temple of Radhakrishna and Ganpati. Further, the documentary evidence produced by the plaintiffs/respondents would, at best, establish the fact that Shri Hanuman Deosthan has been registered as a public trust and owns the property referred to in schedule I against its name (i.e. House No.55 in Circle No.3). Thus, the property registered as belonging to the plaintiff trust was other than suit house bearing No.878 in Circle No.3. For all these reasons, the First Appellate Court was justified in answering the principal issue against the plaintiff trust.That takes us to the second substantial question of law formulated by the High Court for its consideration. The High Court has adverted to the relevant portion of the written statement to conclude that the defendants/appellants had admitted that the suit property was originally owned by Haridas Baba and that they were in possession in the capacity of caretakers only. Indeed, that admission can be discerned from the written statement of the defendants as well as the oral evidence ofBut that admission does not take the matter any further. It is not possible to assume on the basis of that admission that the ?suit house? (i.e. House No.878 in Circle No.3) is the property of the plaintiff trust. No documentary evidence has been produced by the plaintiffs/respondents to establish the fact that the suit house bearing House No.878 in Circle No.3 originally owned by Haridas Baba was recorded as the property of the plaintiff trust in the official records. The plea taken by the defendants in the written statement, however, is indicative of the fact that they (defendants/appellants) were occupying House No.878 in Circle No.3, which was originally owned by Haridas Baba and where his Padukas had been installed. The written statement as well as the oral evidence of defendants/appellants clearly refute the claim of the plaintiffs/respondents. In that, the trust named as Shri Hanuman Deosthan has been registered in reference to some other properties and for performing puja with the object of maintaining Hanuman Deosthan temple in House No.55 in Circle No.3. We also find that the High Court has selectively adverted to portion of the written statement(b) to (d) of paragraph 11 thereof] and not to the other portion of the same paragraph, namely(e) to (g) (reproduced in paragraph 9 hereinabove) which put across the stand of the defendants/appellants including that the plaintiff trust has no causal connection with the suit house bearing No.878 in Circle No.3.Needless to observe that the plaintiffs/respondents were primarily obliged to establish their title in the suit house bearing No.878 in Circle No.3 where the Padukas of Saint Haridas Baba have been installed, as being the property of the plaintiff trust. The plaintiffs must succeed or fail on the title they establish; and if they fail to do so, they must fail to get the relief of possession irrespective of title of the defendant in the suit property (See Brahma Nand Puri Vs. Naki Puri3 and Bajaranglal Shivchandrai Ruia Vs. Shashikant N. Ruia and Ors.). In the present case, no tangible evidence regarding title of plaintiff trust in the suit house (House No.878 in Circle No.3) is forthcoming.The High Court has also adverted to theadmission given byVijay, noted in paragraph No.12 of the impugned judgment. In our opinion, the High Court has completely misread the said admission. Inasmuch as, all it says is that the house number had changed every four years after revaluation. Further, the suit house is in Circle No.3. This is spoken by the witness (DW1), in response to the question posed to him about the change of Circle. He then admits that since 1910, the suit house was owned by Haridas Bairagi. We fail to understand as to how this admission can be of any avail to the plaintiffs much less to hold that the plaintiff(1965) 2 SCR4) 5 SCC 272 trust has title in the suit house bearing House No.878 in Circle No.3.Much ado was made about the contents of a communication sent by defendant No.1 to the Mayor of Nagpur Municipal Corporation (Exh.75). The same reads thus:he Mayor, Nagpur Municipal Corporation Wasudeorao Maniramji Pullarwar, Occupier Baba Haridasji Math, House No.152, Ward No.6 New Ward No.16, S. No.03, New Shukrawari, Fawara Chowk, Medical Road, Nagpur. …..ApplicantSubject: Objection to mutation on house No.152, Ward No.16 circle No.03, New SShukrawari, Fawara Chowk, Medical Road, Nagpur.With respect, it submitted that house no.152, Ward No.16 New Shukrawari Nagpur is recorded in the name of Baba Haridas Math in the Nagpur Municipal Corporation assessment register for the last 70 years. The applicant is the disciple of Baba Haridas for the last 60 years and is in possession and occupation of it for last 30 years. He is looking after the Math and performing pooja/ustsav on yearly basis (yearly Utsav). I am paying the taxes of the said math for the last 30 years as occupier and user. The receipts to that effect are with me. The demand bill for the year 197879 for taxes is given to the applicant. From that it has come to the knowledge of the applicant that the said house is recorded in the name of ?Shri Hanuman Deosthan Trust?. Then it is mentioned that the said change is as per the decision of Learned Charity Commissioner, Mumbai dated 4.4.1975 and the same is recorded on 15.7.1976 in the name of Hanuman Deosthan Trust. However, in the office or register of Charity Commissioner, Mumbai or Deputy Charity Commissioner, Nagpur dated 4.4.1975, there is no reference/mention about Shri Haridas Baba Math, House No.152, Ward No.16, Circle No.3, New Shukrawari, Nagpur nor there is any reference in the copy received by me.Hence, the Hanuman Deosthan Trust has got the name changed from Haridas Baba Math to Hanuman Deosthan Trust by keeping the tax department in the dark, fraudulently. The change is recorded by the assessment department of the Nagpur Municipal Corporation without consulting or asking the applicant. The said change is not acceptable to the applicant.Hence, the original name of Baba Haridas Math should be maintained. Accordingly, the applicant is ready to pay the taxes as earlier.Also the Hanuman Deosthan Trust has got the change done by keeping the Corporation in the dark. It has no relation with the math.Hence, the name of the said Trust be removed and original name of Baba Haridas Math be maintained. The applicant be given opportunity to produce his documents and say before yourself.Nagpur Dated: 17.3.1980We fail to understand as to how this communication can be used as an admission of the defendants much less of having accepted the title of the plaintiff trust in the suit House No.878 (renumbered as House No.152), in Circle No.3. On the other hand, it is a representation made to assail the unilateral alteration of mutation entry in favour of Shri Hanuman Deosthan Trust in violation of principles natural justice.Suffice it to observe that even the second substantial question of law must be answered against the plaintiffs and in favour of the defendants/appellants. | 0 | 9,288 | 2,326 | ### Instruction:
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in Circle No.3) is the property of the plaintiff trust. No documentary evidence has been produced by the plaintiffs/respondents to establish the fact that the suit house bearing House No.878 in Circle No.3 originally owned by Haridas Baba was recorded as the property of the plaintiff trust in the official records. The plea taken by the defendants in the written statement, however, is indicative of the fact that they (defendants/appellants) were occupying House No.878 in Circle No.3, which was originally owned by Haridas Baba and where his Padukas had been installed. The written statement as well as the oral evidence of defendants/appellants clearly refute the claim of the plaintiffs/respondents. In that, the trust named as Shri Hanuman Deosthan has been registered in reference to some other properties and for performing puja with the object of maintaining Hanuman Deosthan temple in House No.55 in Circle No.3. We also find that the High Court has selectively adverted to portion of the written statement [sub-paras (b) to (d) of paragraph 11 thereof] and not to the other portion of the same paragraph, namely sub-paras (e) to (g) (reproduced in paragraph 9 hereinabove) which put across the stand of the defendants/appellants including that the plaintiff trust has no causal connection with the suit house bearing No.878 in Circle No.3. 29. Needless to observe that the plaintiffs/respondents were primarily obliged to establish their title in the suit house bearing No.878 in Circle No.3 where the Padukas of Saint Haridas Baba have been installed, as being the property of the plaintiff trust. The plaintiffs must succeed or fail on the title they establish; and if they fail to do so, they must fail to get the relief of possession irrespective of title of the defendant in the suit property (See Brahma Nand Puri Vs. Naki Puri (1965) 2 SCR 233 and Bajaranglal Shivchandrai Ruia Vs. Shashikant N. Ruia and Ors. (2004) 5 SCC 272 ). In the present case, no tangible evidence regarding title of plaintiff trust in the suit house (House No.878 in Circle No.3) is forthcoming. 30. The High Court has also adverted to the so-called admission given by DW-1 Vijay, noted in paragraph No.12 of the impugned judgment. In our opinion, the High Court has completely misread the said admission. Inasmuch as, all it says is that the house number had changed every four years after revaluation. Further, the suit house is in Circle No.3. This is spoken by the witness (DW1), in response to the question posed to him about the change of Circle. He then admits that since 1910, the suit house was owned by Haridas Bairagi. We fail to understand as to how this admission can be of any avail to the plaintiffs much less to hold that the plaintiff trust has title in the suit house bearing House No.878 in Circle No.3. 31. Much ado was made about the contents of a communication sent by defendant No.1 to the Mayor of Nagpur Municipal Corporation (Exh.75). The same reads thus:Exhibit-75 To, The Mayor, Nagpur Municipal Corporation Wasudeorao Maniramji Pullarwar, Occupier Baba Haridasji Math, House No.152, Ward No.6 New Ward No.16, S. No.03, New Shukrawari, Fawara Chowk, Medical Road, Nagpur. …..Applicant Subject: Objection to mutation on house No.152, Ward No.16 circle No.03, New SShukrawari, Fawara Chowk, Medical Road, Nagpur. Sir, With respect, it submitted that house no.152, Ward No.16 New Shukrawari Nagpur is recorded in the name of Baba Haridas Math in the Nagpur Municipal Corporation assessment register for the last 70 years. The applicant is the disciple of Baba Haridas for the last 60 years and is in possession and occupation of it for last 30 years. He is looking after the Math and performing pooja/ustsav on yearly basis (yearly Utsav). I am paying the taxes of the said math for the last 30 years as occupier and user. The receipts to that effect are with me. The demand bill for the year 1978- 79 for taxes is given to the applicant. From that it has come to the knowledge of the applicant that the said house is recorded in the name of ?Shri Hanuman Deosthan Trust?. Then it is mentioned that the said change is as per the decision of Learned Charity Commissioner, Mumbai dated 4.4.1975 and the same is recorded on 15.7.1976 in the name of Hanuman Deosthan Trust. However, in the office or register of Charity Commissioner, Mumbai or Deputy Charity Commissioner, Nagpur dated 4.4.1975, there is no reference/mention about Shri Haridas Baba Math, House No.152, Ward No.16, Circle No.3, New Shukrawari, Nagpur nor there is any reference in the copy received by me. Hence, the Hanuman Deosthan Trust has got the name changed from Haridas Baba Math to Hanuman Deosthan Trust by keeping the tax department in the dark, fraudulently. The change is recorded by the assessment department of the Nagpur Municipal Corporation without consulting or asking the applicant. The said change is not acceptable to the applicant. Hence, the original name of Baba Haridas Math should be maintained. Accordingly, the applicant is ready to pay the taxes as earlier. Also the Hanuman Deosthan Trust has got the change done by keeping the Corporation in the dark. It has no relation with the math. Hence, the name of the said Trust be removed and original name of Baba Haridas Math be maintained. The applicant be given opportunity to produce his documents and say before yourself. Nagpur Dated: 17.3.1980 Sd/-Wasudeo Pullarwar Applicant?We fail to understand as to how this communication can be used as an admission of the defendants much less of having accepted the title of the plaintiff trust in the suit House No.878 (renumbered as House No.152), in Circle No.3. On the other hand, it is a representation made to assail the unilateral alteration of mutation entry in favour of Shri Hanuman Deosthan Trust in violation of principles natural justice. 32. Suffice it to observe that even the second substantial question of law must be answered against the plaintiffs and in favour of the defendants/appellants.
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as the oral evidence ofBut that admission does not take the matter any further. It is not possible to assume on the basis of that admission that the ?suit house? (i.e. House No.878 in Circle No.3) is the property of the plaintiff trust. No documentary evidence has been produced by the plaintiffs/respondents to establish the fact that the suit house bearing House No.878 in Circle No.3 originally owned by Haridas Baba was recorded as the property of the plaintiff trust in the official records. The plea taken by the defendants in the written statement, however, is indicative of the fact that they (defendants/appellants) were occupying House No.878 in Circle No.3, which was originally owned by Haridas Baba and where his Padukas had been installed. The written statement as well as the oral evidence of defendants/appellants clearly refute the claim of the plaintiffs/respondents. In that, the trust named as Shri Hanuman Deosthan has been registered in reference to some other properties and for performing puja with the object of maintaining Hanuman Deosthan temple in House No.55 in Circle No.3. We also find that the High Court has selectively adverted to portion of the written statement(b) to (d) of paragraph 11 thereof] and not to the other portion of the same paragraph, namely(e) to (g) (reproduced in paragraph 9 hereinabove) which put across the stand of the defendants/appellants including that the plaintiff trust has no causal connection with the suit house bearing No.878 in Circle No.3.Needless to observe that the plaintiffs/respondents were primarily obliged to establish their title in the suit house bearing No.878 in Circle No.3 where the Padukas of Saint Haridas Baba have been installed, as being the property of the plaintiff trust. The plaintiffs must succeed or fail on the title they establish; and if they fail to do so, they must fail to get the relief of possession irrespective of title of the defendant in the suit property (See Brahma Nand Puri Vs. Naki Puri3 and Bajaranglal Shivchandrai Ruia Vs. Shashikant N. Ruia and Ors.). In the present case, no tangible evidence regarding title of plaintiff trust in the suit house (House No.878 in Circle No.3) is forthcoming.The High Court has also adverted to theadmission given byVijay, noted in paragraph No.12 of the impugned judgment. In our opinion, the High Court has completely misread the said admission. Inasmuch as, all it says is that the house number had changed every four years after revaluation. Further, the suit house is in Circle No.3. This is spoken by the witness (DW1), in response to the question posed to him about the change of Circle. He then admits that since 1910, the suit house was owned by Haridas Bairagi. We fail to understand as to how this admission can be of any avail to the plaintiffs much less to hold that the plaintiff(1965) 2 SCR4) 5 SCC 272 trust has title in the suit house bearing House No.878 in Circle No.3.Much ado was made about the contents of a communication sent by defendant No.1 to the Mayor of Nagpur Municipal Corporation (Exh.75). The same reads thus:he Mayor, Nagpur Municipal Corporation Wasudeorao Maniramji Pullarwar, Occupier Baba Haridasji Math, House No.152, Ward No.6 New Ward No.16, S. No.03, New Shukrawari, Fawara Chowk, Medical Road, Nagpur. …..ApplicantSubject: Objection to mutation on house No.152, Ward No.16 circle No.03, New SShukrawari, Fawara Chowk, Medical Road, Nagpur.With respect, it submitted that house no.152, Ward No.16 New Shukrawari Nagpur is recorded in the name of Baba Haridas Math in the Nagpur Municipal Corporation assessment register for the last 70 years. The applicant is the disciple of Baba Haridas for the last 60 years and is in possession and occupation of it for last 30 years. He is looking after the Math and performing pooja/ustsav on yearly basis (yearly Utsav). I am paying the taxes of the said math for the last 30 years as occupier and user. The receipts to that effect are with me. The demand bill for the year 197879 for taxes is given to the applicant. From that it has come to the knowledge of the applicant that the said house is recorded in the name of ?Shri Hanuman Deosthan Trust?. Then it is mentioned that the said change is as per the decision of Learned Charity Commissioner, Mumbai dated 4.4.1975 and the same is recorded on 15.7.1976 in the name of Hanuman Deosthan Trust. However, in the office or register of Charity Commissioner, Mumbai or Deputy Charity Commissioner, Nagpur dated 4.4.1975, there is no reference/mention about Shri Haridas Baba Math, House No.152, Ward No.16, Circle No.3, New Shukrawari, Nagpur nor there is any reference in the copy received by me.Hence, the Hanuman Deosthan Trust has got the name changed from Haridas Baba Math to Hanuman Deosthan Trust by keeping the tax department in the dark, fraudulently. The change is recorded by the assessment department of the Nagpur Municipal Corporation without consulting or asking the applicant. The said change is not acceptable to the applicant.Hence, the original name of Baba Haridas Math should be maintained. Accordingly, the applicant is ready to pay the taxes as earlier.Also the Hanuman Deosthan Trust has got the change done by keeping the Corporation in the dark. It has no relation with the math.Hence, the name of the said Trust be removed and original name of Baba Haridas Math be maintained. The applicant be given opportunity to produce his documents and say before yourself.Nagpur Dated: 17.3.1980We fail to understand as to how this communication can be used as an admission of the defendants much less of having accepted the title of the plaintiff trust in the suit House No.878 (renumbered as House No.152), in Circle No.3. On the other hand, it is a representation made to assail the unilateral alteration of mutation entry in favour of Shri Hanuman Deosthan Trust in violation of principles natural justice.Suffice it to observe that even the second substantial question of law must be answered against the plaintiffs and in favour of the defendants/appellants.
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Biswambar Roy Vs. Girindra Kumar Paul | that third persons should be protected by s. 5 from eviction from those structures. An appeal under the Letters Patent from that judgment was heard by C. P. Sinha, C.J., and Mehrotra, J. The learned Judges differed. Sinha, C.J., was of the view that permanent structures constructed by Biswambar Roy conformed to the description "residential or business purposes" and Biswambar Roy became under Act 12 of 1955 a permanent tenant thereof and was not liable to be evicted except for non-payment of rent. With that view Mehrotra, J., did not agree. He held that a tenant who obtains land on lease for erecting a structure thereon not for his own residential or business purposes but for letting out to others does not build "a permanent structure on the land of the tenancy for residential or business purposes", and may not claim protection under s. 5(1)(a). Since there was no majority concurring in the judgment agreeing or reversing the decree appeal from, under s. 98(2) of the Code of Civil Procedure the appeal was ordered to be dismissed. Against the decree passed by the High Court, with special leave, this appeal is preferred.This Court had held that s. 5 of Assam Act 12 of 1955 has retrospective operation : Refiquennessa v. Lal Bahadur Chetri & Others, [[1964] 6 S.C.R. 876] and the only question to be determined in this appeal is whether a tenant qualifies for protection under s. 5 of the Act only after building permanent structures on the land of the tenancy if he occupies them for his own residential or business purposes. The material part of the section reads :"(1) Notwithstanding anything in any contract or in any law for the time being in force -(a) Where under the terms of a contract entered into between a landlord and his tenant whether before or after the commencement of this Act, a tenant is entitled to build, and has in pursuance of such terms actually built within the period of five years from the date of such contract, a permanent structure on the land of the tenancy for residential or business purposes, or where a tenant not being so entitled to build, has actually built any such structure on the land of the tenancy for any of the purposes aforesaid with the knowledge and acquiescence of the landlord, the tenant shall not be ejected by the landlord from the tenancy except on the ground of non-payment of rent;"3. Protection under the first part of s. 5(1)(a) may be claimed by a tenant if three conditions co-exit : (i) under the terms of the contract of tenancy the tenant is entitled to build on the land of the tenancy; (ii) that pursuant to such liberty, he had actually built within the period of five years from the date of the contract a permanent structure on the land of the tenancy; and (iii) that the permanent structure is for residential or business purposes. The first two conditions are fulfilled in this case. But the learned Judges of the High Court disagreed on the fulfilment of the third condition : they differed as to the true meaning of the expression "a permanent structure...... for residential or business purposes". In the view of Sinha, C.J., under the Act the character of the structure is determinative and not personal use by the tenant. Mehrotra, J., held that the permanent structure must be for residential or business purposes of the tenant. We are unable to agree with the view taken by Mehrotra, J., because the Legislature has not, in conferring rights or permanent tenancy, either expressly or by implication enacted any such qualification as is suggested by the learned Judge. The section merely requires that the permanent structure must be one adapted for residential or business purposes. If the structure is not adapted to such purposes, the protection of s. 5(1)(a) will not be available. To read the expression "permanent structure on the land of the tenancy for residential or business purposes" as meaning permanent structure on the land of the tenancy constructed by the tenant for his own residential or business purposes is to add words which are not found in the section.It was urged on behalf of the landlords that it could not have been the intention of the Legislature to confer by s. 5(1)(a) protection upon sub-tenants. It was said that a sub-tenant is not a tenant within the meaning of s. 3(g) of the Act, and he cannot claim protection from eviction under s. 5(1)(a). In our judgment, the argument is wholly misconceived. Protection is conferred in terms by s. 5 upon the tenant of the land and not upon the tenant of the buildings constructed upon the land. It is not necessary in this case to consider whether by virtue of the definition of "tenant" in s. 3(g) of the Act which includes a person who derives his title from a tenant, a sub-tenant of the land is entitled to protection of s. 5(1)(a). In the present case, the tenant of the land has claimed protection. By merely letting the premises constructed on the land obtained by him on lease, the tenant does not cease to be in possession of the land. The relation between the landlord and the tenant of the land continues to subsist until it is lawfully determined. Possession of the land obtained by the tenant remains his even after he has let out the building constructed by him, and a building constructed by the tenant for use as residential or business purposes does not cease to be one for residential or business purposes, when it is let out.4. We therefore agree with the view taken by Sinha, C.J., that the protection of s. 5(1)(a) extends to a tenant who has constructed on the land obtained on lease permanent structures which are adapted for use for residential or business purposes and by letting out the structures the tenant does not forfeit the protection conferred by the statute.5. | 1[ds]Protection under the first part of s. 5(1)(a) may be claimed by a tenant if three conditions co-exit : (i) under the terms of the contract of tenancy the tenant is entitled to build on the land of the tenancy; (ii) that pursuant to such liberty, he had actually built within the period of five years from the date of the contract a permanent structure on the land of the tenancy; and (iii) that the permanent structure is for residential or business purposes. The first two conditions are fulfilled in this case. But the learned Judges of the High Court disagreed on the fulfilment of the third condition : they differed as to the true meaning of the expression "a permanent structure...... for residential or business purposes". In the view of Sinha, C.J., under the Act the character of the structure is determinative and not personal use by the tenant. Mehrotra, J., held that the permanent structure must be for residential or business purposes of the tenant. We are unable to agree with the view taken by Mehrotra, J., because the Legislature has not, in conferring rights or permanent tenancy, either expressly or by implication enacted any such qualification as is suggested by the learned Judge. The section merely requires that the permanent structure must be one adapted for residential or business purposes. If the structure is not adapted to such purposes, the protection of s. 5(1)(a) will not be available. To read the expression "permanent structure on the land of the tenancy for residential or business purposes" as meaning permanent structure on the land of the tenancy constructed by the tenant for his own residential or business purposes is to add words which are not found in theour judgment, the argument is wholly misconceived. Protection is conferred in terms by s. 5 upon the tenant of the land and not upon the tenant of the buildings constructed upon the land. It is not necessary in this case to consider whether by virtue of the definition of "tenant" in s. 3(g) of the Act which includes a person who derives his title from a tenant, a sub-tenant of the land is entitled to protection of s. 5(1)(a). In the present case, the tenant of the land has claimed protection. By merely letting the premises constructed on the land obtained by him on lease, the tenant does not cease to be in possession of the land. The relation between the landlord and the tenant of the land continues to subsist until it is lawfully determined. Possession of the land obtained by the tenant remains his even after he has let out the building constructed by him, and a building constructed by the tenant for use as residential or business purposes does not cease to be one for residential or business purposes, when it is lettherefore agree with the view taken by Sinha, C.J., that the protection of s. 5(1)(a) extends to a tenant who has constructed on the land obtained on lease permanent structures which are adapted for use for residential or business purposes and by letting out the structures the tenant does not forfeit the protection conferred by the statute. | 1 | 1,574 | 609 | ### Instruction:
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that third persons should be protected by s. 5 from eviction from those structures. An appeal under the Letters Patent from that judgment was heard by C. P. Sinha, C.J., and Mehrotra, J. The learned Judges differed. Sinha, C.J., was of the view that permanent structures constructed by Biswambar Roy conformed to the description "residential or business purposes" and Biswambar Roy became under Act 12 of 1955 a permanent tenant thereof and was not liable to be evicted except for non-payment of rent. With that view Mehrotra, J., did not agree. He held that a tenant who obtains land on lease for erecting a structure thereon not for his own residential or business purposes but for letting out to others does not build "a permanent structure on the land of the tenancy for residential or business purposes", and may not claim protection under s. 5(1)(a). Since there was no majority concurring in the judgment agreeing or reversing the decree appeal from, under s. 98(2) of the Code of Civil Procedure the appeal was ordered to be dismissed. Against the decree passed by the High Court, with special leave, this appeal is preferred.This Court had held that s. 5 of Assam Act 12 of 1955 has retrospective operation : Refiquennessa v. Lal Bahadur Chetri & Others, [[1964] 6 S.C.R. 876] and the only question to be determined in this appeal is whether a tenant qualifies for protection under s. 5 of the Act only after building permanent structures on the land of the tenancy if he occupies them for his own residential or business purposes. The material part of the section reads :"(1) Notwithstanding anything in any contract or in any law for the time being in force -(a) Where under the terms of a contract entered into between a landlord and his tenant whether before or after the commencement of this Act, a tenant is entitled to build, and has in pursuance of such terms actually built within the period of five years from the date of such contract, a permanent structure on the land of the tenancy for residential or business purposes, or where a tenant not being so entitled to build, has actually built any such structure on the land of the tenancy for any of the purposes aforesaid with the knowledge and acquiescence of the landlord, the tenant shall not be ejected by the landlord from the tenancy except on the ground of non-payment of rent;"3. Protection under the first part of s. 5(1)(a) may be claimed by a tenant if three conditions co-exit : (i) under the terms of the contract of tenancy the tenant is entitled to build on the land of the tenancy; (ii) that pursuant to such liberty, he had actually built within the period of five years from the date of the contract a permanent structure on the land of the tenancy; and (iii) that the permanent structure is for residential or business purposes. The first two conditions are fulfilled in this case. But the learned Judges of the High Court disagreed on the fulfilment of the third condition : they differed as to the true meaning of the expression "a permanent structure...... for residential or business purposes". In the view of Sinha, C.J., under the Act the character of the structure is determinative and not personal use by the tenant. Mehrotra, J., held that the permanent structure must be for residential or business purposes of the tenant. We are unable to agree with the view taken by Mehrotra, J., because the Legislature has not, in conferring rights or permanent tenancy, either expressly or by implication enacted any such qualification as is suggested by the learned Judge. The section merely requires that the permanent structure must be one adapted for residential or business purposes. If the structure is not adapted to such purposes, the protection of s. 5(1)(a) will not be available. To read the expression "permanent structure on the land of the tenancy for residential or business purposes" as meaning permanent structure on the land of the tenancy constructed by the tenant for his own residential or business purposes is to add words which are not found in the section.It was urged on behalf of the landlords that it could not have been the intention of the Legislature to confer by s. 5(1)(a) protection upon sub-tenants. It was said that a sub-tenant is not a tenant within the meaning of s. 3(g) of the Act, and he cannot claim protection from eviction under s. 5(1)(a). In our judgment, the argument is wholly misconceived. Protection is conferred in terms by s. 5 upon the tenant of the land and not upon the tenant of the buildings constructed upon the land. It is not necessary in this case to consider whether by virtue of the definition of "tenant" in s. 3(g) of the Act which includes a person who derives his title from a tenant, a sub-tenant of the land is entitled to protection of s. 5(1)(a). In the present case, the tenant of the land has claimed protection. By merely letting the premises constructed on the land obtained by him on lease, the tenant does not cease to be in possession of the land. The relation between the landlord and the tenant of the land continues to subsist until it is lawfully determined. Possession of the land obtained by the tenant remains his even after he has let out the building constructed by him, and a building constructed by the tenant for use as residential or business purposes does not cease to be one for residential or business purposes, when it is let out.4. We therefore agree with the view taken by Sinha, C.J., that the protection of s. 5(1)(a) extends to a tenant who has constructed on the land obtained on lease permanent structures which are adapted for use for residential or business purposes and by letting out the structures the tenant does not forfeit the protection conferred by the statute.5.
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Protection under the first part of s. 5(1)(a) may be claimed by a tenant if three conditions co-exit : (i) under the terms of the contract of tenancy the tenant is entitled to build on the land of the tenancy; (ii) that pursuant to such liberty, he had actually built within the period of five years from the date of the contract a permanent structure on the land of the tenancy; and (iii) that the permanent structure is for residential or business purposes. The first two conditions are fulfilled in this case. But the learned Judges of the High Court disagreed on the fulfilment of the third condition : they differed as to the true meaning of the expression "a permanent structure...... for residential or business purposes". In the view of Sinha, C.J., under the Act the character of the structure is determinative and not personal use by the tenant. Mehrotra, J., held that the permanent structure must be for residential or business purposes of the tenant. We are unable to agree with the view taken by Mehrotra, J., because the Legislature has not, in conferring rights or permanent tenancy, either expressly or by implication enacted any such qualification as is suggested by the learned Judge. The section merely requires that the permanent structure must be one adapted for residential or business purposes. If the structure is not adapted to such purposes, the protection of s. 5(1)(a) will not be available. To read the expression "permanent structure on the land of the tenancy for residential or business purposes" as meaning permanent structure on the land of the tenancy constructed by the tenant for his own residential or business purposes is to add words which are not found in theour judgment, the argument is wholly misconceived. Protection is conferred in terms by s. 5 upon the tenant of the land and not upon the tenant of the buildings constructed upon the land. It is not necessary in this case to consider whether by virtue of the definition of "tenant" in s. 3(g) of the Act which includes a person who derives his title from a tenant, a sub-tenant of the land is entitled to protection of s. 5(1)(a). In the present case, the tenant of the land has claimed protection. By merely letting the premises constructed on the land obtained by him on lease, the tenant does not cease to be in possession of the land. The relation between the landlord and the tenant of the land continues to subsist until it is lawfully determined. Possession of the land obtained by the tenant remains his even after he has let out the building constructed by him, and a building constructed by the tenant for use as residential or business purposes does not cease to be one for residential or business purposes, when it is lettherefore agree with the view taken by Sinha, C.J., that the protection of s. 5(1)(a) extends to a tenant who has constructed on the land obtained on lease permanent structures which are adapted for use for residential or business purposes and by letting out the structures the tenant does not forfeit the protection conferred by the statute.
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M/s. Gujarat Bottling Company Limited & Others Vs. Coca Cola Company & Others | so far as loss that may be caused to GBC as a result of grant of interim injunction, we are of the view that the loss that may be sustained by GBC can be assessed and GBC can be compensated by award of damages which can be recovered from Coca Cola in view of the undertaking that Coca Cola is required to give under rule 148 of the Bombay High Court (Original Side) Rules, 1980. It has not been suggested that Coca Cola does not have the financial capacity to pay the amount that is found payable. 49. The interim injunction granted by the High Court has been assailed by the appellants on the ground that as a result of refusal by Coca Cola to continue with the supply of essence/syrup and/or materials the bottling plants of GBC at Ahmedabad and Rajkot would remain idle and a large number of workmen who were employed in the said plants would be rendered unemployed. We cannot lose sight of the fact that this complaint is being made by Pepsi through the mouth of the appellants. It is difficult to appreciate how Pepsi can ask Coca Cola to part with its trade secrets to its business rival by supplying the essence/syrup, etc., for which Coca Cola holds the trade marks to GBC which is under the effective control of Pepsi. Pepsi took a deliberate decision to take over GBC with the full knowledge of the terms of the 1993 agreement. It did so with a view to paralyse the operations of Coca Cola in that region and promote its products. In view of the negative stipulation contained in paragraph 14 of the 1993 agreement hich has been enforced by the High Court, Pepsi has not succeeded in this effort. It must suffer the consequences of the failure of the effort and it cannot assail the interim injunction granted by the High Court by invoking the plight of the workmen who are employed in the bottling plants of GBC. 50. In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order, granted earlier, to be vacated. Under Order 39 of the Code of Civil Procedure, the jurisdiction of the court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks n order of injunction under Order 39, rule 1 or rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings. 51. Analysing the conduct of GBC in the light of the above principles, it will be seen that GBC, who was a party to the 1993 agreement, has not acted in conformity with the terms set out in the said agreement. It was itself, prima facie, responsible for the breach of the agreement, as would be evident from the facts set out earlier. Neither was the consent of Coca Cola obtained for transfer of shares of GBC nor was Coca Cola informed of the names of persons to whom the shares were proposed to be transferred. Coca Cola, therefore, had the right to terminate the agreement but it did not do so. On the contrary, GBC itself issued the notice for terminating the agreements by giving three months notice. 52.It is contended by Shri Nariman and, in our opinion, rightly, that GBC, having itself acted in violation of the terms of agreement and having breached the contract, cannot legally claim that the order of injunction be vacated, particularly as GBC itself is primarily responsible for having brought about the state of things complained of by it. Since GBC has acted in an unfair and inequitable manner in its dealings with Coca Cola, there was hardly any occasion to vacate the injunction order and the order passed by the Bombay High Court cannot be interfered with not even on the ground of closure of factory, as the party responsible, prima facie, for breach of contract cannot be permitted to raise this grievance. 53. Shri Shanti Bhushan has lastly urged that the interim injunction granted by the High Court is in very wide terms because not only GBC but also those to whom the shares have been sold and also subsequent transferees, their servants, agents, nominees, employees, subsidiary companies, controlled companies, affiliates or associate companies or any person acting for and on their behalf are restrained by the interim injunction from using the plants of GBC. It is no doubt true that the interim injunction is widely worded to cover the persons aforementioned but in its operation the order only restrains them from using the plants of GBC at Ahmedabad and Rajkot for manufacturing, bottling or selling or dealing with or being concerned in any manner whatsoever with the beverages of any person till January 25, 1996, the expiry of the period of one year from the date of notice dated January 25, 1995. The interim injunction is thus confined to the use of the plants at Ahmedabad and Rajkot by any of these persons and it is in consonance with the negative stipulation contained in paragraph 14 of the agreement dated September 20, 1993. | 1[ds]17. A perusal of the provisions contained in the 1994 Agreement, more particularly paragraphs 2 and 8, indicates that the said agreement has been executed with a view to comply with the requirements of the Act and the Rules for registration of GBC as the registered user of the trade marks specified in the schedule to the agreement which had been acquired by Coca Cola. This agreement has been executed as per the requirements of Rule 83 of the Rules read withs (a) to (d) of clause (ii) ofn (1) of Section 49. This is evident from paragraphs 1, 3, 4, 5 and 6 which contain particulars referable tos (a), (b) and (c) and paragraph 7 which contains particulars referable toe (d) of clause (ii) ofn (1) of Section 49. The 1994 Agreement must, therefore, be treated as an agreement for registration of GBC as a registered user as contemplated by Section 49 of the Act. In other words, 1994 Agreement is a statutory agreement which is required to be executed under Section 49 of the Act read with Rule 83 of the Rules for registration of GBC as a registered user of the trade marks held by Coca Cola. It is true that provisions similar to these contained in 1994 Agreement are also contained in the 1993 Agreement. But that is so because a licence to use a trade mark in common law can only be granted subject to certain limitations which are akin to the requirements for an agreement for registered user under the Act. But, at the same time, the 1993 Agreement is much wider in its amplitude than the 1994 Agreement in the sense that the 1993 Agreement includes various terms regulating the exercise of the right of franchise that has been granted by Coca Cola to GBC in the matter of manufacturing, bottling and selling of the beverages which provisions are not found in the 1994 Agreement. The 1994 Agreement cannot be construed as wiping out the said terms and conditions regarding exercise of franchise granted by Coca Cola to GBC as contained in the 1993 Agreement. In this context, reference may also be made to paragraph 25 of the 1993 Agreement which contains an express provision for superseding all prior contracts/agreements or commitments either written or oral. No similar provision regarding the supersession of the 1993 Agreement is contained in the 1994 Agreement. We are, therefore, of the opinion that the 1994 Agreement cannot be construed as superseding the 1993 Agreement and the learned Single Judge and the Division Bench of the High Court have rightly rejected the contention urged on behalf of GBC that 1993 Agreement was superseded by the 1994 AgreementSince we are of the view that the nature and scope of the two agreements, i.e., 1993 Agreement and 1994 Agreement, are not the same and that while the 1993 Agreement is an agreement for grant of licence in common law and the 1994 Agreement is executed as per the requirements of the Act and the Rules for the purpose of registration of user, GBC as registered user of the trade marks under the Act, clause 7 of the 1994 Agreement has to be confined in its application to that agreement only and it cannot be construed as having modified the termination period contained in paragraph 21 of the 1993 Agreement. Moreover, paragraph 2l of the 1993 Agreement requires that reduction of the termination period has to be by mutual consent of both the parties, viz., Coca Cola and GBC. Mutual consent postulates consensus ad idem between the parties. There is no material on record to show that there was such a consensus ad idem between Coca Cola and GBC regarding reducing the termination period for the notice under paragraph 21 of the 1993 Agreement. The notice dated5 that was given by GBC to Coca Cola does not lend support to the case of the appellants.19. In the said notice, it is not stated that the parties had mutually agreed to reduce the termination period from one year to 90 days by the 1994 Agreement. What is stated in the notice is the contention of GBC that the 1993 Agreement is replaced by the 1994 Agreement and that in any event the limitation period had been reduced to 90 days. If it was mutually agreed by Coca Cola and GBC that the termination period for notice under paragraph 21 of the 1993 Agreement is being reduced from one year to 90 days by the 1994 Agreement, there was no reason why GBC would not have mentioned about the said mutual understanding in the notice dated. The fact that there is no mention about such mutual understanding in the notice dated5 and what is stated in the said notice about reduction of the termination period of the notice is by way of contention of GBC negatives the case put forward by the appellants that the termination period for the notice under paragraph 21 of the 1993 Agreement had been reduced from one year to 90 days. It must, therefore, be held that the 1993 Agreement can be terminated only by giving a notice of one year as required by paragraph 21 of the said agreement. The question whether the notice dated20. We may now examine the submission of Shri Shanti Bhushan that the negative stipulation contained in paragraph 14 of the 1993 Agreement, being in restraint of trade, is void in view of the provisions of Section 27 of the Indian Contract Act, 1872. For that purpose, it is necessary to consider whether and, if so, to what extent the law in India differs from the common law in England36. Shri Shanti Bhushan has submitted that these observations must be confined only to contracts of employment and that this principle does not apply to othercontracts.We are unable to agree. We find no rational basis for confining this principle to a contract for employment and excluding its application to othercontracts.The underlying principle governing contracts in restraint of trade is the same and as a matter of fact the courts take a more restricted and less favourable view in respect of a covenant entered into between an employer and an employee as compared to a covenant between a vendor and a purchaser or partnership agreementsWe are in agreement with the said submission of Shri Andhyarujina. In our opinion, the negative stipulation contained at the end of paragraph 14 must be read as applicable to all thes of paragraph 14 preceding the said stipulation and, if it is thus read, it is apparent that the purpose of the negative stipulation in paragraph 14 is that GBC will work vigorously and diligently to promote and solicit the sale of the products/beverages produced under the trade marks ofCoca Cola as mentioned in the firsth of paragraph 14. This would not be possible if GBC were to manufacture, bottle, sell, deal or otherwise be concerned with the products, beverages or any other brands or trade marks/trade names41. We are, therefore, unable to agree with Shri Shanti Bhushan that the negative stipulation contained in paragraph 14 of the 1993 agreement must be confined in its application to the immediately precedingh of paragraph 14 of the 1993 agreement45. In the matter of grant of injunction, the practice in England is that where a contract is negative in nature, or contains an express negative stipulation, breach of it may be restrained by injunction and injunction is normally granted as a matter of course, even though the remedy is equitable and thus in principle a discretionary one and a defendant cannot resist an injunction simply on the ground that observance of the contract is burdensome to him and its breach would cause little or no prejudice to the plaintiff and that breach of an express negative stipulation can be restrained even though the plaintiff cannot show that the breach will cause him any loss. (see Chitty on Contracts,h edition, volume 1, General Principles, para0 at page 1310 ; Halsburys Laws of England, fourth edition, volume 24, para 992). In India section 42 of the Specific Relief Act, 1963, prescribes that notwithstanding anything contained in clause (e) of section 41, where a contract comprises an affirmative agreemnt to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement. This is subject to the proviso that the plaintiff has not failed to perform the contract so far as it is binding on him. The court is, however, not bound to grant an injunction in every case and an injunction to enforce a negative covenant would be refused if it would indirectly compel the employee either to idleness or to serve the employer. (see Ehrman v. Bartholomew 1898 (1) Ch 671, Niranjan Shankar Goliharis case 1967 (2) SCR 378 , 389)46. The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring the exercise of discretion of the court. While exercising the discretion the court applies the following tests (i) whether the plaintiff has a prima facie case ; (ii) whether the balance of convenience is in favour of the plaintiff ; and (iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken at a time when the existence of the legal right assailed by the plaintiff and its alleged violation are both contested and uncertain and remain uncertain till they are established at the trial on evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved. The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his riht for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection has, however, to be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated. The court must weigh one need against another and determine where the " balance of convenience " lies. (see Wander Ltd. v. Antox India P. Ltd. 1990 Supp(SCC) 727 at pages. In order to protect the defendant while granting an interlocutory injunction in his favour the court can require the plaintiff to furnish an undertaking so that the defendant can be adequately compensated if the uncertainty were resolved in his favour at the trial48. We are inclined to agree with the submission of Shri Nariman and Shri Andhyarujina. Having regard to the negative covenant contained in paragraph 14 of the 1993 agreement which is subsisting, Coca Cola has made out a prima facie case for grant of an injunction. As regards the other two requirements for grant of interlocutory injunction, viz., balance of convenience and irreparable injury, we find that as a result of the transfer of shares of GBC and respondent No. 7 in favour of appellants Nos. 2 to 5, the plants of GBC at Ahmedabad and Rajkot are now under the control of Pepsi. The 1993 agreements were entered into by Coca Cola to ensure that the plants of GBC at Ahmedabad and Rajkot are available for manufacture of the beverages bearing the trade marks that were acquired by Coca Cola. The negative stipulation in paragraph 14 was inserted in order to preclude the said plants being used for the manufacture of products of other manufacturers during the period the 1993 agreements were subsisting. Pepsi by takig control over GBC sought to achieve a dual purpose, viz., reduce the production capacity of beverages bearing the trade marks held by Coca Cola by denying use of the plants of GBC at Ahmedabad and Rajkot for manufacture of those products and to increase the production capacity of Pepsi products by making available these plants for manufacture of Pepsi products. As a result of the interim injunction granted by the High Court, the two plants of GBC cannot be used for manufacture of Pepsi products till January 25, 1996, and the effort of Pepsi to gain an advantage over Coca Cola by reducing the availability of products of Coca Cola and increasing the availability of Pepsi products in the areas covered by the 1993 agreements has been frustrated to a certain extent inasmuch as the increase in the availability of Pepsi products has been prevented. In the absence of such an order Pepsi would have been free to use the plants of GBC at Ahmedabad and Rajkot for the manufacture of their products. This could have resultd in reduction of the share of Coca Cola in the beverages market and the resultant loss in goodwill and profits could not be adequately compensated by damages. In so far as loss that may be caused to GBC as a result of grant of interim injunction, we are of the view that the loss that may be sustained by GBC can be assessed and GBC can be compensated by award of damages which can be recovered from Coca Cola in view of the undertaking that Coca Cola is required to give under rule 148 of the Bombay High Court (Original Side) Rules, 1980. It has not been suggested that Coca Cola does not have the financial capacity to pay the amount that is found payable49. The interim injunction granted by the High Court has been assailed by the appellants on the ground that as a result of refusal by Coca Cola to continue with the supply of essence/syrup and/or materials the bottling plants of GBC at Ahmedabad and Rajkot would remain idle and a large number of workmen who were employed in the said plants would be rendered unemployed. We cannot lose sight of the fact that this complaint is being made by Pepsi through the mouth of the appellants. It is difficult to appreciate how Pepsi can ask Coca Cola to part with its trade secrets to its business rival by supplying the essence/syrup, etc., for which Coca Cola holds the trade marks to GBC which is under the effective control of Pepsi. Pepsi took a deliberate decision to take over GBC with the full knowledge of the terms of the 1993 agreement. It did so with a view to paralyse the operations of Coca Cola in that region and promote its products. In view of the negative stipulation contained in paragraph 14 of the 1993 agreement hich has been enforced by the High Court, Pepsi has not succeeded in this effort. It must suffer the consequences of the failure of the effort and it cannot assail the interim injunction granted by the High Court by invoking the plight of the workmen who are employed in the bottling plants of GBC50. In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order, granted earlier, to be vacated. Under Order 39 of the Code of Civil Procedure, the jurisdiction of the court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks n order of injunction under Order 39, rule 1 or rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings51. Analysing the conduct of GBC in the light of the above principles, it will be seen that GBC, who was a party to the 1993 agreement, has not acted in conformity with the terms set out in the said agreement. It was itself, prima facie, responsible for the breach of the agreement, as would be evident from the facts set out earlier. Neither was the consent of Coca Cola obtained for transfer of shares of GBC nor was Coca Cola informed of the names of persons to whom the shares were proposed to be transferred. Coca Cola, therefore, had the right to terminate the agreement but it did not do so. On the contrary, GBC itself issued the notice for terminating the agreements by giving three months notice52.It is contended by Shri Nariman and, in our opinion, rightly, that GBC, having itself acted in violation of the terms of agreement and having breached the contract, cannot legally claim that the order of injunction be vacated, particularly as GBC itself is primarily responsible for having brought about the state of things complained of by it. Since GBC has acted in an unfair and inequitable manner in its dealings with Coca Cola, there was hardly any occasion to vacate the injunction order and the order passed by the Bombay High Court cannot be interfered with not even on the ground of closure of factory, as the party responsible, prima facie, for breach of contract cannot be permitted to raise this grievance53. Shri Shanti Bhushan has lastly urged that the interim injunction granted by the High Court is in very wide terms because not only GBC but also those to whom the shares have been sold and also subsequent transferees, their servants, agents, nominees, employees, subsidiary companies, controlled companies, affiliates or associate companies or any person acting for and on their behalf are restrained by the interim injunction from using the plants of GBC. It is no doubt true that the interim injunction is widely worded to cover the persons aforementioned but in its operation the order only restrains them from using the plants of GBC at Ahmedabad and Rajkot for manufacturing, bottling or selling or dealing with or being concerned in any manner whatsoever with the beverages of any person till January 25, 1996, the expiry of the period of one year from the date of notice dated January 25, 1995. The interim injunction is thus confined to the use of the plants at Ahmedabad and Rajkot by any of these persons and it isn consonance with the negative stipulation contained in paragraph 14 of the agreement dated September 20, 1993. | 1 | 16,339 | 3,447 | ### Instruction:
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so far as loss that may be caused to GBC as a result of grant of interim injunction, we are of the view that the loss that may be sustained by GBC can be assessed and GBC can be compensated by award of damages which can be recovered from Coca Cola in view of the undertaking that Coca Cola is required to give under rule 148 of the Bombay High Court (Original Side) Rules, 1980. It has not been suggested that Coca Cola does not have the financial capacity to pay the amount that is found payable. 49. The interim injunction granted by the High Court has been assailed by the appellants on the ground that as a result of refusal by Coca Cola to continue with the supply of essence/syrup and/or materials the bottling plants of GBC at Ahmedabad and Rajkot would remain idle and a large number of workmen who were employed in the said plants would be rendered unemployed. We cannot lose sight of the fact that this complaint is being made by Pepsi through the mouth of the appellants. It is difficult to appreciate how Pepsi can ask Coca Cola to part with its trade secrets to its business rival by supplying the essence/syrup, etc., for which Coca Cola holds the trade marks to GBC which is under the effective control of Pepsi. Pepsi took a deliberate decision to take over GBC with the full knowledge of the terms of the 1993 agreement. It did so with a view to paralyse the operations of Coca Cola in that region and promote its products. In view of the negative stipulation contained in paragraph 14 of the 1993 agreement hich has been enforced by the High Court, Pepsi has not succeeded in this effort. It must suffer the consequences of the failure of the effort and it cannot assail the interim injunction granted by the High Court by invoking the plight of the workmen who are employed in the bottling plants of GBC. 50. In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order, granted earlier, to be vacated. Under Order 39 of the Code of Civil Procedure, the jurisdiction of the court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks n order of injunction under Order 39, rule 1 or rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings. 51. Analysing the conduct of GBC in the light of the above principles, it will be seen that GBC, who was a party to the 1993 agreement, has not acted in conformity with the terms set out in the said agreement. It was itself, prima facie, responsible for the breach of the agreement, as would be evident from the facts set out earlier. Neither was the consent of Coca Cola obtained for transfer of shares of GBC nor was Coca Cola informed of the names of persons to whom the shares were proposed to be transferred. Coca Cola, therefore, had the right to terminate the agreement but it did not do so. On the contrary, GBC itself issued the notice for terminating the agreements by giving three months notice. 52.It is contended by Shri Nariman and, in our opinion, rightly, that GBC, having itself acted in violation of the terms of agreement and having breached the contract, cannot legally claim that the order of injunction be vacated, particularly as GBC itself is primarily responsible for having brought about the state of things complained of by it. Since GBC has acted in an unfair and inequitable manner in its dealings with Coca Cola, there was hardly any occasion to vacate the injunction order and the order passed by the Bombay High Court cannot be interfered with not even on the ground of closure of factory, as the party responsible, prima facie, for breach of contract cannot be permitted to raise this grievance. 53. Shri Shanti Bhushan has lastly urged that the interim injunction granted by the High Court is in very wide terms because not only GBC but also those to whom the shares have been sold and also subsequent transferees, their servants, agents, nominees, employees, subsidiary companies, controlled companies, affiliates or associate companies or any person acting for and on their behalf are restrained by the interim injunction from using the plants of GBC. It is no doubt true that the interim injunction is widely worded to cover the persons aforementioned but in its operation the order only restrains them from using the plants of GBC at Ahmedabad and Rajkot for manufacturing, bottling or selling or dealing with or being concerned in any manner whatsoever with the beverages of any person till January 25, 1996, the expiry of the period of one year from the date of notice dated January 25, 1995. The interim injunction is thus confined to the use of the plants at Ahmedabad and Rajkot by any of these persons and it is in consonance with the negative stipulation contained in paragraph 14 of the agreement dated September 20, 1993.
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1
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be adequately compensated by damages. In so far as loss that may be caused to GBC as a result of grant of interim injunction, we are of the view that the loss that may be sustained by GBC can be assessed and GBC can be compensated by award of damages which can be recovered from Coca Cola in view of the undertaking that Coca Cola is required to give under rule 148 of the Bombay High Court (Original Side) Rules, 1980. It has not been suggested that Coca Cola does not have the financial capacity to pay the amount that is found payable49. The interim injunction granted by the High Court has been assailed by the appellants on the ground that as a result of refusal by Coca Cola to continue with the supply of essence/syrup and/or materials the bottling plants of GBC at Ahmedabad and Rajkot would remain idle and a large number of workmen who were employed in the said plants would be rendered unemployed. We cannot lose sight of the fact that this complaint is being made by Pepsi through the mouth of the appellants. It is difficult to appreciate how Pepsi can ask Coca Cola to part with its trade secrets to its business rival by supplying the essence/syrup, etc., for which Coca Cola holds the trade marks to GBC which is under the effective control of Pepsi. Pepsi took a deliberate decision to take over GBC with the full knowledge of the terms of the 1993 agreement. It did so with a view to paralyse the operations of Coca Cola in that region and promote its products. In view of the negative stipulation contained in paragraph 14 of the 1993 agreement hich has been enforced by the High Court, Pepsi has not succeeded in this effort. It must suffer the consequences of the failure of the effort and it cannot assail the interim injunction granted by the High Court by invoking the plight of the workmen who are employed in the bottling plants of GBC50. In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order, granted earlier, to be vacated. Under Order 39 of the Code of Civil Procedure, the jurisdiction of the court to interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks n order of injunction under Order 39, rule 1 or rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the court for vacating the ad interim or temporary injunction order already granted in the pending suit or proceedings51. Analysing the conduct of GBC in the light of the above principles, it will be seen that GBC, who was a party to the 1993 agreement, has not acted in conformity with the terms set out in the said agreement. It was itself, prima facie, responsible for the breach of the agreement, as would be evident from the facts set out earlier. Neither was the consent of Coca Cola obtained for transfer of shares of GBC nor was Coca Cola informed of the names of persons to whom the shares were proposed to be transferred. Coca Cola, therefore, had the right to terminate the agreement but it did not do so. On the contrary, GBC itself issued the notice for terminating the agreements by giving three months notice52.It is contended by Shri Nariman and, in our opinion, rightly, that GBC, having itself acted in violation of the terms of agreement and having breached the contract, cannot legally claim that the order of injunction be vacated, particularly as GBC itself is primarily responsible for having brought about the state of things complained of by it. Since GBC has acted in an unfair and inequitable manner in its dealings with Coca Cola, there was hardly any occasion to vacate the injunction order and the order passed by the Bombay High Court cannot be interfered with not even on the ground of closure of factory, as the party responsible, prima facie, for breach of contract cannot be permitted to raise this grievance53. Shri Shanti Bhushan has lastly urged that the interim injunction granted by the High Court is in very wide terms because not only GBC but also those to whom the shares have been sold and also subsequent transferees, their servants, agents, nominees, employees, subsidiary companies, controlled companies, affiliates or associate companies or any person acting for and on their behalf are restrained by the interim injunction from using the plants of GBC. It is no doubt true that the interim injunction is widely worded to cover the persons aforementioned but in its operation the order only restrains them from using the plants of GBC at Ahmedabad and Rajkot for manufacturing, bottling or selling or dealing with or being concerned in any manner whatsoever with the beverages of any person till January 25, 1996, the expiry of the period of one year from the date of notice dated January 25, 1995. The interim injunction is thus confined to the use of the plants at Ahmedabad and Rajkot by any of these persons and it isn consonance with the negative stipulation contained in paragraph 14 of the agreement dated September 20, 1993.
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Tejinder Singh Sandhu Vs. State Of Punjab And Ors | August 18, 1965, which was 14 days after the appellant had taken charge of his post. Respondent 2 was promoted as a Deputy Director in 1966 but , that was for the reason that lie was working on deputation with the Ludhiana Agricultural University and until the Government permitted its officers working on deputation with the University to revert to the State Service, respondent 2, though eligible for being appointed as a Deputy Director, could not be so appointed. Thus the circumstance that the appellant and respondents 2 and 3 took charge of their respective posts in Class I Service on divergent dates is purely fortuitous and cannot affect their seniority.All the three were appointed as Class I Officers on a purely ad-hoc basis. The permanent vacancies in that cadre occurred in 1971 and it is in reference to the State of affairs obtaining at that point of time that the question of seniority of the three officers has to be considered. On the date on which permanent vacancies occurred in the Class I cadre, the appellant and respondents 2 and 3 had all completed their probationary period satisfactorily. They were, therefore, eligible and perhaps entitled to be confirmed in Class I posts. But that confirmation had to be made in the order in which they ranked in seniority in their Class II posts. We have no doubt that since all o f them were appointed to Class I on an ad hoc basis and since they had all completed their probation in Class I posts when permanent vacancies occurred in that cadre, their seniority in Class 11 has to prevail in their ranking in Class I. By that criterion, there can be no doubt that that the appellant must take his place below respondents 2 and 3. 5. Learned counsel appearing on behalf of the appellant contends that seniority of officers promoted to Class I from the Class 11 cadre must b e determined according to the dates of their continuous officiation in Class I posts and according to the dates on which they completed their probationary period. It is urged that by the application of this dual test, the appellant would rank higher in seniority over respondents 2 and 3. By reason of the circumstances which we have earlier mentioned, there is no substance in this contention. The appellant was junior to respondents 2 and 3 in Class III as well as in Class 11 Service of the Pepsu State. He was also junior to them in Class 11 Service of the Punjab Government, after reorganisation of the States. Having been appointed to the higher post on the same date as respondent 3 and on an ad-hoc basis, the appellant cannot be permitted to take advantage of a chancy circumstance that being geographically close to the headquarters he was able to take charge of the post of promotion on the very date on which he was appointed, , in opportunity which a quirk of posting denied to respondent 3. The latter., being at Kulu, had to be relieved of his post there and the proverbial red-tapism intervened to disable. him from taking charge of his Class I post until fourteen days later. In so far as respondent 2 is concerned, he had to await the decision of the Government that those on deputation to the Ludhiana Agricultural University may re- turn to their parent departments. It is not disputed that if in August 1965, respondent 2 was not working on deputation, he would have been promoted along with the appellant and respondent 3 to Class I. In fact it is important that in Class 1, there were only two vacancies in August 1965 and if respondent 2 were available for being posted as a Deputy Director, it is he and respondent 3 who would have filled the two vacancies. The appellant being junior to them would not have been appointed as a Deputy Director even on an ad-hoc basis.Learned counsel for the appellant placed heavy reliance on the State Governments instructions regarding fixation of seniority contained in Government Memo No. 9448-Agr. 1(1)65/1583 dated April 11, 1966, in support of his argument that the appellant must rank higher in seniority than respondents 2 and 3. The Memorandum has no application because it refers to temporary officers appointed to the Punjab Agricultural Service, Class I and Class II. In case of temporary officers promoted to Class I and Class 11 post s, seniority may have to be determined under the particular Government Memorandum with reference to the dates of continuous appointment in the respective cadres. But the appellant and respondents 2 and 3 were working in a permanent capacity when they were promoted to Class 1. What governs the seniority of the appellant is not the Memorandum on which he relies but the rules contained in the Punjab Agricultural Service, Class 1, Rules, 1947. If regard is had to rules 10 and 16 of the a foresaid Rules, there cannot be any doubt that the appellant must rank lower in seniority than respondents 2 and 3. Rule 16 provides that seniority of members of the Service shall be determined according to the date of confirmation in the Service. The exact dates of confirmation of the officers concerned are not on the record but it is clear that by reason of the circumstances adverted to before, appellants confirmation has to, be postponed to that of respondents 2 and 3. 6. We are, there fore, of the opinion that the High Court is right in taking the view that respondents 2 and 3 were entitled to be appointed as Joint Directors of Agriculture in preference to the appellant on the basis of their seniority. Accordingly we confirm the judgment of the High Court and dismiss the appeal. The appellant shall pay the costs of respondents 2 and 3 in one set. There will be no order as to costs of respondent 1, the State of Punjab, or of respondents 4 and 5. | 0[ds]The appellant being junior to them would not have been appointed as a Deputy Director even on anadhocbasis.Learned counsel for the appellant placed heavy reliance on the State Governments instructions regarding fixation of seniority contained in Government Memo No.. 1(1)65/1583 dated April 11, 1966, in support of his argument that the appellant must rank higher in seniority than respondents 2 and 3. The Memorandum has no application because it refers to temporary officers appointed to the Punjab Agricultural Service, Class I and Class II. In case of temporary officers promoted to Class I and Class 11 post s, seniority may have to be determined under the particular Government Memorandum with reference to the dates of continuous appointment in the respective cadres. But the appellant and respondents 2 and 3 were working in a permanent capacity when they were promoted to Class 1. What governs the seniority of the appellant is not the Memorandum on which he relies but the rules contained in the Punjab Agricultural Service, Class 1, Rules, 1947. If regard is had to rules 10 and 16 of the a foresaid Rules, there cannot be any doubt that the appellant must rank lower in seniority than respondents 2 and 3. Rule 16 provides that seniority of members of the Service shall be determined according to the date of confirmation in the Service. The exact dates of confirmation of the officers concerned are not on the record but it is clear that by reason of the circumstances adverted to before, appellants confirmation has to, be postponed to that of respondents 2 and 36. We are, there fore, of the opinion that the High Court is right in taking the view that respondents 2 and 3 were entitled to be appointed as Joint Directors of Agriculture in preference to the appellant on the basis of their seniority. Accordingly we confirm the judgment of the High Court and dismiss the appeal. The appellant shall pay the costs of respondents 2 and 3 in one set. There will be no order as to costs of respondent 1, the State of Punjab, or of respondents 4 and 5. | 0 | 1,964 | 391 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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August 18, 1965, which was 14 days after the appellant had taken charge of his post. Respondent 2 was promoted as a Deputy Director in 1966 but , that was for the reason that lie was working on deputation with the Ludhiana Agricultural University and until the Government permitted its officers working on deputation with the University to revert to the State Service, respondent 2, though eligible for being appointed as a Deputy Director, could not be so appointed. Thus the circumstance that the appellant and respondents 2 and 3 took charge of their respective posts in Class I Service on divergent dates is purely fortuitous and cannot affect their seniority.All the three were appointed as Class I Officers on a purely ad-hoc basis. The permanent vacancies in that cadre occurred in 1971 and it is in reference to the State of affairs obtaining at that point of time that the question of seniority of the three officers has to be considered. On the date on which permanent vacancies occurred in the Class I cadre, the appellant and respondents 2 and 3 had all completed their probationary period satisfactorily. They were, therefore, eligible and perhaps entitled to be confirmed in Class I posts. But that confirmation had to be made in the order in which they ranked in seniority in their Class II posts. We have no doubt that since all o f them were appointed to Class I on an ad hoc basis and since they had all completed their probation in Class I posts when permanent vacancies occurred in that cadre, their seniority in Class 11 has to prevail in their ranking in Class I. By that criterion, there can be no doubt that that the appellant must take his place below respondents 2 and 3. 5. Learned counsel appearing on behalf of the appellant contends that seniority of officers promoted to Class I from the Class 11 cadre must b e determined according to the dates of their continuous officiation in Class I posts and according to the dates on which they completed their probationary period. It is urged that by the application of this dual test, the appellant would rank higher in seniority over respondents 2 and 3. By reason of the circumstances which we have earlier mentioned, there is no substance in this contention. The appellant was junior to respondents 2 and 3 in Class III as well as in Class 11 Service of the Pepsu State. He was also junior to them in Class 11 Service of the Punjab Government, after reorganisation of the States. Having been appointed to the higher post on the same date as respondent 3 and on an ad-hoc basis, the appellant cannot be permitted to take advantage of a chancy circumstance that being geographically close to the headquarters he was able to take charge of the post of promotion on the very date on which he was appointed, , in opportunity which a quirk of posting denied to respondent 3. The latter., being at Kulu, had to be relieved of his post there and the proverbial red-tapism intervened to disable. him from taking charge of his Class I post until fourteen days later. In so far as respondent 2 is concerned, he had to await the decision of the Government that those on deputation to the Ludhiana Agricultural University may re- turn to their parent departments. It is not disputed that if in August 1965, respondent 2 was not working on deputation, he would have been promoted along with the appellant and respondent 3 to Class I. In fact it is important that in Class 1, there were only two vacancies in August 1965 and if respondent 2 were available for being posted as a Deputy Director, it is he and respondent 3 who would have filled the two vacancies. The appellant being junior to them would not have been appointed as a Deputy Director even on an ad-hoc basis.Learned counsel for the appellant placed heavy reliance on the State Governments instructions regarding fixation of seniority contained in Government Memo No. 9448-Agr. 1(1)65/1583 dated April 11, 1966, in support of his argument that the appellant must rank higher in seniority than respondents 2 and 3. The Memorandum has no application because it refers to temporary officers appointed to the Punjab Agricultural Service, Class I and Class II. In case of temporary officers promoted to Class I and Class 11 post s, seniority may have to be determined under the particular Government Memorandum with reference to the dates of continuous appointment in the respective cadres. But the appellant and respondents 2 and 3 were working in a permanent capacity when they were promoted to Class 1. What governs the seniority of the appellant is not the Memorandum on which he relies but the rules contained in the Punjab Agricultural Service, Class 1, Rules, 1947. If regard is had to rules 10 and 16 of the a foresaid Rules, there cannot be any doubt that the appellant must rank lower in seniority than respondents 2 and 3. Rule 16 provides that seniority of members of the Service shall be determined according to the date of confirmation in the Service. The exact dates of confirmation of the officers concerned are not on the record but it is clear that by reason of the circumstances adverted to before, appellants confirmation has to, be postponed to that of respondents 2 and 3. 6. We are, there fore, of the opinion that the High Court is right in taking the view that respondents 2 and 3 were entitled to be appointed as Joint Directors of Agriculture in preference to the appellant on the basis of their seniority. Accordingly we confirm the judgment of the High Court and dismiss the appeal. The appellant shall pay the costs of respondents 2 and 3 in one set. There will be no order as to costs of respondent 1, the State of Punjab, or of respondents 4 and 5.
### Response:
0
### Explanation:
The appellant being junior to them would not have been appointed as a Deputy Director even on anadhocbasis.Learned counsel for the appellant placed heavy reliance on the State Governments instructions regarding fixation of seniority contained in Government Memo No.. 1(1)65/1583 dated April 11, 1966, in support of his argument that the appellant must rank higher in seniority than respondents 2 and 3. The Memorandum has no application because it refers to temporary officers appointed to the Punjab Agricultural Service, Class I and Class II. In case of temporary officers promoted to Class I and Class 11 post s, seniority may have to be determined under the particular Government Memorandum with reference to the dates of continuous appointment in the respective cadres. But the appellant and respondents 2 and 3 were working in a permanent capacity when they were promoted to Class 1. What governs the seniority of the appellant is not the Memorandum on which he relies but the rules contained in the Punjab Agricultural Service, Class 1, Rules, 1947. If regard is had to rules 10 and 16 of the a foresaid Rules, there cannot be any doubt that the appellant must rank lower in seniority than respondents 2 and 3. Rule 16 provides that seniority of members of the Service shall be determined according to the date of confirmation in the Service. The exact dates of confirmation of the officers concerned are not on the record but it is clear that by reason of the circumstances adverted to before, appellants confirmation has to, be postponed to that of respondents 2 and 36. We are, there fore, of the opinion that the High Court is right in taking the view that respondents 2 and 3 were entitled to be appointed as Joint Directors of Agriculture in preference to the appellant on the basis of their seniority. Accordingly we confirm the judgment of the High Court and dismiss the appeal. The appellant shall pay the costs of respondents 2 and 3 in one set. There will be no order as to costs of respondent 1, the State of Punjab, or of respondents 4 and 5.
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Yunus (Baboobhai) A Hamid Padvekar Vs. State of Maharashtra, Through its Secretary & Others | Legislative Assembly for consideration of the proposal for handing back the acquired land to the original owners. Certain recommendations were made by the said Committee. On 20.8.1992 the land acquired for Balco was allotted to another industrial group. Subsequently, the State Government asked the industrial group not to continue the construction activities in view of pendency of cases. On 12.11.2002, representations were again made to hand back the land not utilized. It was the specific stand of the appellant that in view of Section 39(2a) of the Maharashtra Industrial Development Act, 1961 (in short the ‘Act) the land should be restored. The High Court dismissed the writ petition on the ground that it was highly belated. 4. In support of the appeal, learned counsel for the appellant stated that the appellant was all through representing to the authorities and because of the recommendations by the Committee, the appellant waited for some time and ultimately when no worthwhile action was taken, he filed the writ petition. 5. Learned counsel for the respondent on the other hand supported the judgment of the High Court. 6. It is pointed out that the recommendations made in terms of the resolution were not accepted by the Government. It was decided that since definite policy has been formulated the land is to be utilized for the industrial development, the same cannot be surrendered to the original owners for cultivation purposes. It is also pointed out that the so called representations do not in any way assist the appellant to explain the long delay in filing the writ petition. 7. It is also pointed out that Section 39(2a) is applicable only in respect of the undeveloped land, and in the instant case the land in question is developed land. 8. Delay or laches is one of the factors which is to be borne in mind by the High Courts when they exercise their discretionary powers under Article 226 of the Constitution of India, 1950 (in short the `Constitution). In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports (AIR 1970 SC 769 ). Of course, the discretion has to be exercised judicially and reasonably. 9. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurde etc. (1874) 5 PC 221 at page 239 was approved by this Court in Moon Mills Ltd. v. Industrial Courts (AIR 1967 SC 1450 ) and Maharashtra State Transport Corporation v. Balwant Regular Motor Service (AIR 1969 SC 329 ), Sir Barnes had stated: "Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy." 10. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation with Article 32 of the Constitution. It is apparent that what has been stated as regards that Article would apply, a fortiori, to Article 226. It was observed in R.N Bose v. Union of India (AIR 1970 SC 470 ) that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.11. It was stated in State of M.P. v. Nandlal (AIR 1987 SC 251 ) that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its trail new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. | 0[ds]10. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation with Article 32 of the Constitution. It is apparent that what has been stated as regards that Article would apply, a fortiori, to Article 226. It was observed in R.N Bose v. Union of India (AIR 1970 SC 470 ) that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.11. It was stated in State of M.P. v. Nandlal (AIR 1987 SC 251 ) that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its trail new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction. | 0 | 1,447 | 338 | ### 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:
Legislative Assembly for consideration of the proposal for handing back the acquired land to the original owners. Certain recommendations were made by the said Committee. On 20.8.1992 the land acquired for Balco was allotted to another industrial group. Subsequently, the State Government asked the industrial group not to continue the construction activities in view of pendency of cases. On 12.11.2002, representations were again made to hand back the land not utilized. It was the specific stand of the appellant that in view of Section 39(2a) of the Maharashtra Industrial Development Act, 1961 (in short the ‘Act) the land should be restored. The High Court dismissed the writ petition on the ground that it was highly belated. 4. In support of the appeal, learned counsel for the appellant stated that the appellant was all through representing to the authorities and because of the recommendations by the Committee, the appellant waited for some time and ultimately when no worthwhile action was taken, he filed the writ petition. 5. Learned counsel for the respondent on the other hand supported the judgment of the High Court. 6. It is pointed out that the recommendations made in terms of the resolution were not accepted by the Government. It was decided that since definite policy has been formulated the land is to be utilized for the industrial development, the same cannot be surrendered to the original owners for cultivation purposes. It is also pointed out that the so called representations do not in any way assist the appellant to explain the long delay in filing the writ petition. 7. It is also pointed out that Section 39(2a) is applicable only in respect of the undeveloped land, and in the instant case the land in question is developed land. 8. Delay or laches is one of the factors which is to be borne in mind by the High Courts when they exercise their discretionary powers under Article 226 of the Constitution of India, 1950 (in short the `Constitution). In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports (AIR 1970 SC 769 ). Of course, the discretion has to be exercised judicially and reasonably. 9. What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Company v. Prosper Armstrong Hurde etc. (1874) 5 PC 221 at page 239 was approved by this Court in Moon Mills Ltd. v. Industrial Courts (AIR 1967 SC 1450 ) and Maharashtra State Transport Corporation v. Balwant Regular Motor Service (AIR 1969 SC 329 ), Sir Barnes had stated: "Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy." 10. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation with Article 32 of the Constitution. It is apparent that what has been stated as regards that Article would apply, a fortiori, to Article 226. It was observed in R.N Bose v. Union of India (AIR 1970 SC 470 ) that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.11. It was stated in State of M.P. v. Nandlal (AIR 1987 SC 251 ) that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its trail new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.
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0
### Explanation:
10. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation with Article 32 of the Constitution. It is apparent that what has been stated as regards that Article would apply, a fortiori, to Article 226. It was observed in R.N Bose v. Union of India (AIR 1970 SC 470 ) that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.11. It was stated in State of M.P. v. Nandlal (AIR 1987 SC 251 ) that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its trail new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.
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Winston Tan Vs. Union Of India | be treated to be null and void. The purchasers transaction is after the order of forfeiture of the said property. Still the consequence of the said transaction being null and void could not be avoided by the purchaser on the plea that this transaction was subsequent to the original order of forfeiture. The original order of forfeiture was stayed at the time of the purchase. It got confirmed by the Bombay High Court ultimately when the Miscellaneous Petition No. 1680 of 1977 moved by Tahira Sultana was disposed of and the subsequent Writ Petition No. 1527 of 1995 was dismissed by the High Court and the SLP filed by her in this Court was also dismissed. We may also note that as the Miscellaneous Petition No. 1680 of 1977 was withdrawn on 19-6-1995 and ultimately the forfeiture order came to be confirmed in the subsequent Writ Petition No. 1527 of 1995 on 21-8-1995, the transaction of transfer in favour of Tayab Ali would be said to have been effected after the notice under Section 6, issued to Tahira Sultana, and before the order of forfeiture ultimately got confirmed by the High Court and by this Court and which had back effect of confirming the same from 1977. It must, therefore, be held that the transaction of purchase by the appellants predecessor Tayab Ali was also hit by Section 11 of SAFEMA. Consequently in 1981 when the purchaser purchased this property from Tahira Sultana she had no interest in the said flat which she could convey to the appellants predecessor. In substance it amounted to selling of Central Governments property by a total stranger in favour of the purchaser. No title, therefore, in the said property passed to the appellants predecessor…..” (Emphasis Supplied) 25. The above position wholly and squarely applies to the present case. Admittedly, SAFEMA was applicable to both vendors here. One of the vendors, a detenu, who was covered by Section 2(2)(b), was issued notice way back on 8.12.2003 under Section 6(1) of SAFEMA. The other vendor, wife of the detenu, was also issued notice under Section 6(1) in 2004 once it transpired that she held 50% share in the said flat. Both vendors were served with notices under Section 6(1) before transaction of sale in favour of the appellants. After the issuance of notices under Section 6(1) of SAFEMA to the vendors, the transaction of sale in favour of the appellants has to be ignored by virtue of Section 11 and on passing of the order of forfeiture under Section 7, the sale in favour of the appellants had become null and void. The order of forfeiture dated 23.06.2005 under Section 7 of SAFEMA relates back to the issuance of first notice under Section 6(1) to one of the vendors. 26. Section 11 is unequivocal and its object is clear. It intends to avoid transfer of property by the persons who are covered by clauses (a) to (e) of sub-section (2) of Section 2 during the pendency of forfeiture proceedings. The provision says that for the purposes of proceedings under the Act, transfer of any property referred to in the notice under Section 6 or under Section 10 shall be ignored. In respect of a transfer after issuance of notice under Section 6, the property referred to therein, the holder cannot set up plea that he is a transferee in good faith or a bona fide purchaser for adequate consideration. Such plea is not available to a transferee who has purchased the property during pendency of forfeiture proceedings. 27. Learned Additional Solicitor General referred to a decision of Madras High Court in the case of Parvathi Bai3. The Division Bench of Madras High Court referred to the two decisions of this Court in Amratlal Prajivandas1 and Aamenabai Tayebaly2 and after noticing the relevant provisions of SAFEMA held that the protection given to a bona fide sale under Section 2(2)(e) would not extend to a sale made subsequent to the issuance of notice under Section 6 and in violation of Section 11 of SAFEMA. We are in complete agreement with the view of the Madras High Court in Parvathi Bai3. 28. It is true that the appellants had obtained encumbrances certificates from the Sub-Registrar prior to purchase which show that there were no encumbrances to the subject flat. It is also true that the appellants had obtained loan from Vijaya Bank, Brigade Road Branch, Bangalore for purchase of the said flat. It is a fact that sale consideration to the tune of Rs. 26 lakhs was paid directly by the Bank to the vendors after the Bank was satisfied about the title of the vendors. The appellants had also mortgaged the flat with the Vijaya Bank as a security towards loan. But unfortunately these facts are of no help to the appellants as the sale in their favour was effected after notices under Section 6(1) were issued to the vendors. Such sale has no legal sanction. The sale is null and void on the face of Section 11; it is not protected so as to enable the purchaser to prove that he is transferee in good faith for adequate consideration. As a matter of law, no title came to be vested in the appellants by virtue of sale-deed dated 10.02.2005 as the vendors could not have transferred the property after service of the notice under Section 6(1) and during pendency of forfeiture proceedings under SAFEMA. The title in the subject flat is deemed to have vested in the Central Government on or about 08.12.2003 when the first notice under Section 6(1) was issued and served on one of the vendors. The vendors ceased to have any title in the subject flat on the date of transfer i.e. 10.02.2005. They had no transferable right. The appellants cannot claim any right in the flat. In the circumstances, question of according any opportunity to the appellants to prove that they are transferees in good faith with adequate consideration does not arise. | 0[ds]28. It is true that the appellants had obtained encumbrances certificates from the Sub-Registrar prior to purchase which show that there were no encumbrances to the subject flat. It is also true that the appellants had obtained loan from Vijaya Bank, Brigade Road Branch, Bangalore for purchase of the said flat. It is a fact that sale consideration to the tune of Rs. 26 lakhs was paid directly by the Bank to the vendors after the Bank was satisfied about the title of the vendors. The appellants had also mortgaged the flat with the Vijaya Bank as a security towards loan. But unfortunately these facts are of no help to the appellants as the sale in their favour was effected after notices under Section 6(1) were issued to the vendors. Such sale has no legal sanction. The sale is null and void on the face of Section 11; it is not protected so as to enable the purchaser to prove that he is transferee in good faith for adequate consideration. As a matter of law, no title came to be vested in the appellants by virtue of sale-deed dated 10.02.2005 as the vendors could not have transferred the property after service of the notice under Section 6(1) and during pendency of forfeiture proceedings under SAFEMA. The title in the subject flat is deemed to have vested in the Central Government on or about 08.12.2003 when the first notice under Section 6(1) was issued and served on one of the vendors. The vendors ceased to have any title in the subject flat on the date of transfer i.e. 10.02.2005. They had no transferable right. The appellants cannot claim any right in the flat. In the circumstances, question of according any opportunity to the appellants to prove that they are transferees in good faith with adequate consideration does not arise. | 0 | 6,155 | 343 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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be treated to be null and void. The purchasers transaction is after the order of forfeiture of the said property. Still the consequence of the said transaction being null and void could not be avoided by the purchaser on the plea that this transaction was subsequent to the original order of forfeiture. The original order of forfeiture was stayed at the time of the purchase. It got confirmed by the Bombay High Court ultimately when the Miscellaneous Petition No. 1680 of 1977 moved by Tahira Sultana was disposed of and the subsequent Writ Petition No. 1527 of 1995 was dismissed by the High Court and the SLP filed by her in this Court was also dismissed. We may also note that as the Miscellaneous Petition No. 1680 of 1977 was withdrawn on 19-6-1995 and ultimately the forfeiture order came to be confirmed in the subsequent Writ Petition No. 1527 of 1995 on 21-8-1995, the transaction of transfer in favour of Tayab Ali would be said to have been effected after the notice under Section 6, issued to Tahira Sultana, and before the order of forfeiture ultimately got confirmed by the High Court and by this Court and which had back effect of confirming the same from 1977. It must, therefore, be held that the transaction of purchase by the appellants predecessor Tayab Ali was also hit by Section 11 of SAFEMA. Consequently in 1981 when the purchaser purchased this property from Tahira Sultana she had no interest in the said flat which she could convey to the appellants predecessor. In substance it amounted to selling of Central Governments property by a total stranger in favour of the purchaser. No title, therefore, in the said property passed to the appellants predecessor…..” (Emphasis Supplied) 25. The above position wholly and squarely applies to the present case. Admittedly, SAFEMA was applicable to both vendors here. One of the vendors, a detenu, who was covered by Section 2(2)(b), was issued notice way back on 8.12.2003 under Section 6(1) of SAFEMA. The other vendor, wife of the detenu, was also issued notice under Section 6(1) in 2004 once it transpired that she held 50% share in the said flat. Both vendors were served with notices under Section 6(1) before transaction of sale in favour of the appellants. After the issuance of notices under Section 6(1) of SAFEMA to the vendors, the transaction of sale in favour of the appellants has to be ignored by virtue of Section 11 and on passing of the order of forfeiture under Section 7, the sale in favour of the appellants had become null and void. The order of forfeiture dated 23.06.2005 under Section 7 of SAFEMA relates back to the issuance of first notice under Section 6(1) to one of the vendors. 26. Section 11 is unequivocal and its object is clear. It intends to avoid transfer of property by the persons who are covered by clauses (a) to (e) of sub-section (2) of Section 2 during the pendency of forfeiture proceedings. The provision says that for the purposes of proceedings under the Act, transfer of any property referred to in the notice under Section 6 or under Section 10 shall be ignored. In respect of a transfer after issuance of notice under Section 6, the property referred to therein, the holder cannot set up plea that he is a transferee in good faith or a bona fide purchaser for adequate consideration. Such plea is not available to a transferee who has purchased the property during pendency of forfeiture proceedings. 27. Learned Additional Solicitor General referred to a decision of Madras High Court in the case of Parvathi Bai3. The Division Bench of Madras High Court referred to the two decisions of this Court in Amratlal Prajivandas1 and Aamenabai Tayebaly2 and after noticing the relevant provisions of SAFEMA held that the protection given to a bona fide sale under Section 2(2)(e) would not extend to a sale made subsequent to the issuance of notice under Section 6 and in violation of Section 11 of SAFEMA. We are in complete agreement with the view of the Madras High Court in Parvathi Bai3. 28. It is true that the appellants had obtained encumbrances certificates from the Sub-Registrar prior to purchase which show that there were no encumbrances to the subject flat. It is also true that the appellants had obtained loan from Vijaya Bank, Brigade Road Branch, Bangalore for purchase of the said flat. It is a fact that sale consideration to the tune of Rs. 26 lakhs was paid directly by the Bank to the vendors after the Bank was satisfied about the title of the vendors. The appellants had also mortgaged the flat with the Vijaya Bank as a security towards loan. But unfortunately these facts are of no help to the appellants as the sale in their favour was effected after notices under Section 6(1) were issued to the vendors. Such sale has no legal sanction. The sale is null and void on the face of Section 11; it is not protected so as to enable the purchaser to prove that he is transferee in good faith for adequate consideration. As a matter of law, no title came to be vested in the appellants by virtue of sale-deed dated 10.02.2005 as the vendors could not have transferred the property after service of the notice under Section 6(1) and during pendency of forfeiture proceedings under SAFEMA. The title in the subject flat is deemed to have vested in the Central Government on or about 08.12.2003 when the first notice under Section 6(1) was issued and served on one of the vendors. The vendors ceased to have any title in the subject flat on the date of transfer i.e. 10.02.2005. They had no transferable right. The appellants cannot claim any right in the flat. In the circumstances, question of according any opportunity to the appellants to prove that they are transferees in good faith with adequate consideration does not arise.
### Response:
0
### Explanation:
28. It is true that the appellants had obtained encumbrances certificates from the Sub-Registrar prior to purchase which show that there were no encumbrances to the subject flat. It is also true that the appellants had obtained loan from Vijaya Bank, Brigade Road Branch, Bangalore for purchase of the said flat. It is a fact that sale consideration to the tune of Rs. 26 lakhs was paid directly by the Bank to the vendors after the Bank was satisfied about the title of the vendors. The appellants had also mortgaged the flat with the Vijaya Bank as a security towards loan. But unfortunately these facts are of no help to the appellants as the sale in their favour was effected after notices under Section 6(1) were issued to the vendors. Such sale has no legal sanction. The sale is null and void on the face of Section 11; it is not protected so as to enable the purchaser to prove that he is transferee in good faith for adequate consideration. As a matter of law, no title came to be vested in the appellants by virtue of sale-deed dated 10.02.2005 as the vendors could not have transferred the property after service of the notice under Section 6(1) and during pendency of forfeiture proceedings under SAFEMA. The title in the subject flat is deemed to have vested in the Central Government on or about 08.12.2003 when the first notice under Section 6(1) was issued and served on one of the vendors. The vendors ceased to have any title in the subject flat on the date of transfer i.e. 10.02.2005. They had no transferable right. The appellants cannot claim any right in the flat. In the circumstances, question of according any opportunity to the appellants to prove that they are transferees in good faith with adequate consideration does not arise.
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Hari Nandan Sharan Bhatnagar Vs. S. N. Dixit & Anr | as follows. The appellant was appointed as an Upper Division Assistant (formerly known as superior service assistant) in the Legislative Assembly Secretariat Uttar Pradesh in 1954 on the result of a competitive examination held by the Public Service Commission of the State. He was confirmed in the post of Upper Division Assistant with effect from June 16, 1955. In September 1961 a vacancy occurred in the post of a Superintendent in the Legislative Assembly Secretariat. The first respondent was working as a Treasurer in the same office. According to the appellant, one Uma Shanker was the senior Upper Division Assistant and he was immediately after Uma Shanker in order of seniority. In view of the fact that Uma Shanker had not put in the minimum period of ten years services as Upper Division Assistant the Speaker of the Assembly did not think it fit to appoint him as Superintendent but he ignored the appellants claim to the post after Uma Shanker and appointed Dixit in violation of the mandatory provisions of Rule 7. The said Rule reads :"Recruitment to the post of the Superintendent shall be made by promotion from the grade of superior service assistants in the Council Department. While due regard will be paid to seniority, no assistant will be appointed to the post of Superintendent unless he is considered qualified in all respects of perform the duties of a Superintendent and full authority will be reserved to appoint the assistant most fitted for the post. If, however, no suitable assistant is available for promotion for amongst the grade of superior service assistants in the Council Department, recruitment may, as a special case, he made from outside."2a. The appellant filed a suit in the court of the Munsif of South Lucknow impleading the State of Uttar Pradesh, the Speaker, Legislative Assembly of the State and Dixit as defendants therein and praying for a decree for declaration that he should be deemed entitled to the post of Superintendent in the Legislative Assembly with effect from 1st January, 1962 and a further declaration that the order dated October 7, 1961 appointing defendant No. 3 as Superintendent was illegal and ultra vires. Written statements were filed on behalf of the defendants. The learned Munsif held in the plaintiffs favour. His judgment was upheld in appeal by the Civil Judge Lucknow. The same was reversed in Second Appeal to the High Court.3. The order of the Speaker passed in October 1961 shows that the had considered the matter carefully before appointing Dixit to the post. The contention of learned counsel for the appellant was that the post could not be given to a person who was not a superior service assistant and the "grade of superior service assistants in the Council Department" meant and included only those persons whose names were borne on the roll of Upper Division Assistants. Exhibit 10 the gradation list of permanent ministerial establishment of the Uttar Pradesh Legislative Assembly Secretariat as it stood in April, 1956 shows that the scales of pay of Upper Division Assistants, Translators, Reference Clerk, Treasurers, Stenographer to Secretary and Assistant Librarian were the same, namely, Rs. 160 - 15 - 280 - 20 - 400. By an order of the Governor dated March 16, 1959 efficiency bars in the scales of pay of all the above posts were uniformly altered and fixed at Rs. 220 and Rs. 300. The High Court took the view that grade in Rule 7 was suggestive of status and it did not refer to a class or a particular class. According to the high Court :"All officials working in the same scale of pay in a department, although holding posts with different designations, shall be deemed to the holding posts in the same grade, because their rank in the same department will be the same and equal to one another."4. The High Court noted that the dictionary meaning of "grade" was rank, position in scale, a class or position in a class according to the value. In our view the High Court came to the correct conclusion in holding that the post was a selection post and seniority by itself was not a sufficient qualification for promotion.The Speaker had to take into consideration the claims of Senior Upper Division Assistants but under the rules his choice was not limited to the Upper Division Assistants. He could consider the claims of others who were in the same grade, that is to say, enjoying the same scales of pay and pick out the person considered by him to be qualified in all respects to perform the duties of a Superintendent. All officials of the Legislative Assembly Secretariat holding posts in the same scale of pay as Upper Division Assistants were eligible for promotion, to the post of the Superintendent.5. Counsel argued that this would be an unreasonable interpretation of the rule for in that case even a book-binder or a chauffeur would have to be considered if their scales of pay were the same as those of Upper Division Assistants. We do not think that anyone would place such an absurd construction on the rule.The appointing authority had to consider not only the eligibility based on the grade (assuming that the rule unreasonably places a chauffeur, a book-binder, an accountant and a special duty clerk in the same grade) but also the qualification of the person appointed to perform the duties of the Superintendent and a book-binder or a chauffeur would certainly not be eligible for consideration. It was said that the educational qualification of the appellant was much superior to that of Dixit and while the appellant had joined service by passing a competitive examination held by the Public Service Commission the first respondent had failed to pass such a test.There are matters of which we can express no opinion. As noted already, the appointment was made after a thorough scrutiny of representations received and after consideration of the recommendation made by the Secretary of the Legislative Department. | 0[ds]We do not think that anyone would place such an absurd construction on the rule.appointing authority had to consider not only the eligibility based on the grade (assuming that the rule unreasonably places a chauffeur, a book-binder, an accountant and a special duty clerk in the same grade) but also the qualification of the person appointed to perform the duties of the Superintendent and a book-binder or a chauffeur would certainly not be eligible for consideration. It was said that the educational qualification of the appellant was much superior to that of Dixit and while the appellant had joined service by passing a competitive examination held by the Public Service Commission the first respondent had failed to pass such a test.There are matters of which we can express no opinion. As noted already, the appointment was made after a thorough scrutiny of representations received and after consideration of the recommendation made by the Secretary of the Legislative Department. | 0 | 1,144 | 170 | ### Instruction:
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as follows. The appellant was appointed as an Upper Division Assistant (formerly known as superior service assistant) in the Legislative Assembly Secretariat Uttar Pradesh in 1954 on the result of a competitive examination held by the Public Service Commission of the State. He was confirmed in the post of Upper Division Assistant with effect from June 16, 1955. In September 1961 a vacancy occurred in the post of a Superintendent in the Legislative Assembly Secretariat. The first respondent was working as a Treasurer in the same office. According to the appellant, one Uma Shanker was the senior Upper Division Assistant and he was immediately after Uma Shanker in order of seniority. In view of the fact that Uma Shanker had not put in the minimum period of ten years services as Upper Division Assistant the Speaker of the Assembly did not think it fit to appoint him as Superintendent but he ignored the appellants claim to the post after Uma Shanker and appointed Dixit in violation of the mandatory provisions of Rule 7. The said Rule reads :"Recruitment to the post of the Superintendent shall be made by promotion from the grade of superior service assistants in the Council Department. While due regard will be paid to seniority, no assistant will be appointed to the post of Superintendent unless he is considered qualified in all respects of perform the duties of a Superintendent and full authority will be reserved to appoint the assistant most fitted for the post. If, however, no suitable assistant is available for promotion for amongst the grade of superior service assistants in the Council Department, recruitment may, as a special case, he made from outside."2a. The appellant filed a suit in the court of the Munsif of South Lucknow impleading the State of Uttar Pradesh, the Speaker, Legislative Assembly of the State and Dixit as defendants therein and praying for a decree for declaration that he should be deemed entitled to the post of Superintendent in the Legislative Assembly with effect from 1st January, 1962 and a further declaration that the order dated October 7, 1961 appointing defendant No. 3 as Superintendent was illegal and ultra vires. Written statements were filed on behalf of the defendants. The learned Munsif held in the plaintiffs favour. His judgment was upheld in appeal by the Civil Judge Lucknow. The same was reversed in Second Appeal to the High Court.3. The order of the Speaker passed in October 1961 shows that the had considered the matter carefully before appointing Dixit to the post. The contention of learned counsel for the appellant was that the post could not be given to a person who was not a superior service assistant and the "grade of superior service assistants in the Council Department" meant and included only those persons whose names were borne on the roll of Upper Division Assistants. Exhibit 10 the gradation list of permanent ministerial establishment of the Uttar Pradesh Legislative Assembly Secretariat as it stood in April, 1956 shows that the scales of pay of Upper Division Assistants, Translators, Reference Clerk, Treasurers, Stenographer to Secretary and Assistant Librarian were the same, namely, Rs. 160 - 15 - 280 - 20 - 400. By an order of the Governor dated March 16, 1959 efficiency bars in the scales of pay of all the above posts were uniformly altered and fixed at Rs. 220 and Rs. 300. The High Court took the view that grade in Rule 7 was suggestive of status and it did not refer to a class or a particular class. According to the high Court :"All officials working in the same scale of pay in a department, although holding posts with different designations, shall be deemed to the holding posts in the same grade, because their rank in the same department will be the same and equal to one another."4. The High Court noted that the dictionary meaning of "grade" was rank, position in scale, a class or position in a class according to the value. In our view the High Court came to the correct conclusion in holding that the post was a selection post and seniority by itself was not a sufficient qualification for promotion.The Speaker had to take into consideration the claims of Senior Upper Division Assistants but under the rules his choice was not limited to the Upper Division Assistants. He could consider the claims of others who were in the same grade, that is to say, enjoying the same scales of pay and pick out the person considered by him to be qualified in all respects to perform the duties of a Superintendent. All officials of the Legislative Assembly Secretariat holding posts in the same scale of pay as Upper Division Assistants were eligible for promotion, to the post of the Superintendent.5. Counsel argued that this would be an unreasonable interpretation of the rule for in that case even a book-binder or a chauffeur would have to be considered if their scales of pay were the same as those of Upper Division Assistants. We do not think that anyone would place such an absurd construction on the rule.The appointing authority had to consider not only the eligibility based on the grade (assuming that the rule unreasonably places a chauffeur, a book-binder, an accountant and a special duty clerk in the same grade) but also the qualification of the person appointed to perform the duties of the Superintendent and a book-binder or a chauffeur would certainly not be eligible for consideration. It was said that the educational qualification of the appellant was much superior to that of Dixit and while the appellant had joined service by passing a competitive examination held by the Public Service Commission the first respondent had failed to pass such a test.There are matters of which we can express no opinion. As noted already, the appointment was made after a thorough scrutiny of representations received and after consideration of the recommendation made by the Secretary of the Legislative Department.
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0
### Explanation:
We do not think that anyone would place such an absurd construction on the rule.appointing authority had to consider not only the eligibility based on the grade (assuming that the rule unreasonably places a chauffeur, a book-binder, an accountant and a special duty clerk in the same grade) but also the qualification of the person appointed to perform the duties of the Superintendent and a book-binder or a chauffeur would certainly not be eligible for consideration. It was said that the educational qualification of the appellant was much superior to that of Dixit and while the appellant had joined service by passing a competitive examination held by the Public Service Commission the first respondent had failed to pass such a test.There are matters of which we can express no opinion. As noted already, the appointment was made after a thorough scrutiny of representations received and after consideration of the recommendation made by the Secretary of the Legislative Department.
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National Lawyers' Campaign for Judicial Transparency & Reforms & Others Vs. Hon'ble Shri Justice J.S. Khehar & Others | India in the form of the figure of a lady, sheltering the young Republic of India represented by the symbol of a child, who is upholding the laws of land symbolically shown in the form of an open book. On the book, a balance is shown, which represents dispensation of equal justice to all.5. Even in the High Courts, one will find the similar position. To mention, when one enters the magnificent precincts of High Court of Madras which is a Chartered High Court, he notices the statue of a man standing with two wheels on either side with a calf and a small child beneath each wheel, and a cow. He becomes anxious to know the significance as to why and for what purpose this statue is located near the entrance of the High Court. The statue is that of the ancient Chozha King, Manu Needhi Chozhan, also known as Elara, who ruled South India around 250 B.C. Legend is that, Manu Needhi Chozhan, who believed in even justice towards friends and foes, had hung a giant Bell in front of his palace and announced that anyone seeking justice could ring the bell and voice will be heard. One day, it so happened that a young calf had got crushed under the wheels of his chariot, in which his only son, young Prince Veedhividangan, was going around the city. The mother of the calf, which helplessly watched its little one die, walked to the palace gates and rang the huge bell, demanding justice from the king. The king came out and saw the cow, he learnt from his courtiers about the death of the young calf under the wheels of his sons chariot. Unrelenting from his promise for justice, he ordered his own son to be killed for his recklessness. The prince was killed the same way the calf had died, being crushed under the wheels of his chariot. The king went through the same pain the cow had as he witnessed his son die and thereby, being just at all costs.6. The Judges of all the Courts, since its very inception, have always maintained this great tradition of the Chozha King and are rendering even justice to all concerned, whosoever he or she may be, irrespective of the fact whether they are rich or poor, and whether they occupy a high or a low status in the society.7. The framers of our Constitution under Article 124 and Article 219 read with Schedule-III of the Constitution of India, made it compulsory for a Judge before entering Office, to take an oath that he will perform the duties without fear or favour, affection or ill-will, which a Judge, after entering Office, dutifully follows.8. So far as the first relief claimed for is concerned, we may mention here that in paragraph 6 of the Writ Petition, it has been mentioned as follows:-"6. Honble Shri Justice Khehar, undoubtedly, is one of the most upright Judges of the Supreme Court, the Petitioners are all proud of His Lordship. While sons of sitting Judges with two or three years of experience, for instance the Bombay High Court, earn far more than even senior lawyers with a standing of more than 30 years, Honble Shri Justice Khehars son, who practices in the Punjab and Haryana High Court, does not earn anything near to them. He only charges a decent amount as his fee. Nobody could, therefore, point a finger at Honble Shri Justice Khehar when it comes to his honesty, integrity and uprightness. His Lordship is a real diamond in that sense...."9. In paragraph 20 of the writ petition, the petitioners have stated as follows:-"The Petitioners reassert that they have the greatest respect for Honble Shri Justice J.S. Khehar and they in no way cast any aspersion on His Lordships competence or integrity as a Judge...."10. Even in ground No. `C, the petitioners have praised the qualities of His Lordship as follows:-"Honble Shri Justice J.S. Khehar is a tall Judge, a person of undoubted integrity, honesty and uprightness; nobody could question that His Lordship is a diamond in that sense."11. Thus from the portions reproduced above, it is clear that even the petitioners themselves have unequivocally praised the qualities of His Lordship.12. However, the eligibility of Honble Mr. Justice J.S. Khehar is being questioned only on the ground that the judgment in National Judicial Appointment Commission case was delivered by His Lordship wherein he has held that the Constitutional (Ninety-Ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 are un-Constitutional and, therefore, the Honble Judge usurped to himself the power of appointment of the Judges. It may be mentioned here that the judgment in National Judicial Appointment Commission case was delivered individually by all the Honble Judges constituting the Constitution Bench and the case was decided by a majority of four Honble Judges and not by His Lordship alone.13. So far as the allegation that he has usurped the power of appointment of Judges to himself is concerned, it is sufficient to mention here that the Collegium not only consists of the Chief Justice of India but four other Honble Senior Judges as well and it cannot be said that the Chief Justice of India can usurp the power of appointing the Judges for himself.14. The petitioners have themselves admitted the qualities of Honble Mr. Justice J.S. Khehar in paragraph 6, 20 and Ground No. C referred to above, and there is no question of his being considered as ineligible or disqualified for being appointed as the Chief Justice of India.15. So far as the correctness of the decision in the National Judicial Appointment Commission case is concerned, in our opinion, under the Supreme Court Rules, the petitioners have the remedy for filing a review of the judgment as also to file a curative petition. It is open for them to take appropriate proceedings in accordance with law if they wish to question the judgment rendered in National Judicial Appointment Commission case. | 0[ds]12. However, the eligibility of Honble Mr. Justice J.S. Khehar is being questioned only on the ground that the judgment in National Judicial Appointment Commission case was delivered by His Lordship wherein he has held that the Constitutional) Act, 2014 and the National Judicial Appointment Commission Act, 2014 are, therefore, the Honble Judge usurped to himself the power of appointment of the Judges.It may be mentioned here that the judgment in National Judicial Appointment Commission case was delivered individually by all the Honble Judges constituting the Constitution Bench and the case was decided by a majority of four Honble Judges and not by His Lordship alone.13. So far as the allegation that he has usurped the power of appointment of Judges to himself is concerned, it is sufficient to mention here that the Collegium not only consists of the Chief Justice of India but four other Honble Senior Judges as well and it cannot be said that the Chief Justice of India can usurp the power of appointing the Judges for himself.14. The petitioners have themselves admitted the qualities of Honble Mr. Justice J.S. Khehar in paragraph 6, 20 and Ground No. C referred to above, and there is no question of his being considered as ineligible or disqualified for being appointed as the Chief Justice of India.15. So far as the correctness of the decision in the National Judicial Appointment Commission case is concerned, in our opinion, under the Supreme Court Rules, the petitioners have the remedy for filing a review of the judgment as also to file a curative petition. It is open for them to take appropriate proceedings in accordance with law if they wish to question the judgment rendered in National Judicial Appointment Commission case. | 0 | 1,395 | 315 | ### 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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India in the form of the figure of a lady, sheltering the young Republic of India represented by the symbol of a child, who is upholding the laws of land symbolically shown in the form of an open book. On the book, a balance is shown, which represents dispensation of equal justice to all.5. Even in the High Courts, one will find the similar position. To mention, when one enters the magnificent precincts of High Court of Madras which is a Chartered High Court, he notices the statue of a man standing with two wheels on either side with a calf and a small child beneath each wheel, and a cow. He becomes anxious to know the significance as to why and for what purpose this statue is located near the entrance of the High Court. The statue is that of the ancient Chozha King, Manu Needhi Chozhan, also known as Elara, who ruled South India around 250 B.C. Legend is that, Manu Needhi Chozhan, who believed in even justice towards friends and foes, had hung a giant Bell in front of his palace and announced that anyone seeking justice could ring the bell and voice will be heard. One day, it so happened that a young calf had got crushed under the wheels of his chariot, in which his only son, young Prince Veedhividangan, was going around the city. The mother of the calf, which helplessly watched its little one die, walked to the palace gates and rang the huge bell, demanding justice from the king. The king came out and saw the cow, he learnt from his courtiers about the death of the young calf under the wheels of his sons chariot. Unrelenting from his promise for justice, he ordered his own son to be killed for his recklessness. The prince was killed the same way the calf had died, being crushed under the wheels of his chariot. The king went through the same pain the cow had as he witnessed his son die and thereby, being just at all costs.6. The Judges of all the Courts, since its very inception, have always maintained this great tradition of the Chozha King and are rendering even justice to all concerned, whosoever he or she may be, irrespective of the fact whether they are rich or poor, and whether they occupy a high or a low status in the society.7. The framers of our Constitution under Article 124 and Article 219 read with Schedule-III of the Constitution of India, made it compulsory for a Judge before entering Office, to take an oath that he will perform the duties without fear or favour, affection or ill-will, which a Judge, after entering Office, dutifully follows.8. So far as the first relief claimed for is concerned, we may mention here that in paragraph 6 of the Writ Petition, it has been mentioned as follows:-"6. Honble Shri Justice Khehar, undoubtedly, is one of the most upright Judges of the Supreme Court, the Petitioners are all proud of His Lordship. While sons of sitting Judges with two or three years of experience, for instance the Bombay High Court, earn far more than even senior lawyers with a standing of more than 30 years, Honble Shri Justice Khehars son, who practices in the Punjab and Haryana High Court, does not earn anything near to them. He only charges a decent amount as his fee. Nobody could, therefore, point a finger at Honble Shri Justice Khehar when it comes to his honesty, integrity and uprightness. His Lordship is a real diamond in that sense...."9. In paragraph 20 of the writ petition, the petitioners have stated as follows:-"The Petitioners reassert that they have the greatest respect for Honble Shri Justice J.S. Khehar and they in no way cast any aspersion on His Lordships competence or integrity as a Judge...."10. Even in ground No. `C, the petitioners have praised the qualities of His Lordship as follows:-"Honble Shri Justice J.S. Khehar is a tall Judge, a person of undoubted integrity, honesty and uprightness; nobody could question that His Lordship is a diamond in that sense."11. Thus from the portions reproduced above, it is clear that even the petitioners themselves have unequivocally praised the qualities of His Lordship.12. However, the eligibility of Honble Mr. Justice J.S. Khehar is being questioned only on the ground that the judgment in National Judicial Appointment Commission case was delivered by His Lordship wherein he has held that the Constitutional (Ninety-Ninth Amendment) Act, 2014 and the National Judicial Appointment Commission Act, 2014 are un-Constitutional and, therefore, the Honble Judge usurped to himself the power of appointment of the Judges. It may be mentioned here that the judgment in National Judicial Appointment Commission case was delivered individually by all the Honble Judges constituting the Constitution Bench and the case was decided by a majority of four Honble Judges and not by His Lordship alone.13. So far as the allegation that he has usurped the power of appointment of Judges to himself is concerned, it is sufficient to mention here that the Collegium not only consists of the Chief Justice of India but four other Honble Senior Judges as well and it cannot be said that the Chief Justice of India can usurp the power of appointing the Judges for himself.14. The petitioners have themselves admitted the qualities of Honble Mr. Justice J.S. Khehar in paragraph 6, 20 and Ground No. C referred to above, and there is no question of his being considered as ineligible or disqualified for being appointed as the Chief Justice of India.15. So far as the correctness of the decision in the National Judicial Appointment Commission case is concerned, in our opinion, under the Supreme Court Rules, the petitioners have the remedy for filing a review of the judgment as also to file a curative petition. It is open for them to take appropriate proceedings in accordance with law if they wish to question the judgment rendered in National Judicial Appointment Commission case.
### Response:
0
### Explanation:
12. However, the eligibility of Honble Mr. Justice J.S. Khehar is being questioned only on the ground that the judgment in National Judicial Appointment Commission case was delivered by His Lordship wherein he has held that the Constitutional) Act, 2014 and the National Judicial Appointment Commission Act, 2014 are, therefore, the Honble Judge usurped to himself the power of appointment of the Judges.It may be mentioned here that the judgment in National Judicial Appointment Commission case was delivered individually by all the Honble Judges constituting the Constitution Bench and the case was decided by a majority of four Honble Judges and not by His Lordship alone.13. So far as the allegation that he has usurped the power of appointment of Judges to himself is concerned, it is sufficient to mention here that the Collegium not only consists of the Chief Justice of India but four other Honble Senior Judges as well and it cannot be said that the Chief Justice of India can usurp the power of appointing the Judges for himself.14. The petitioners have themselves admitted the qualities of Honble Mr. Justice J.S. Khehar in paragraph 6, 20 and Ground No. C referred to above, and there is no question of his being considered as ineligible or disqualified for being appointed as the Chief Justice of India.15. So far as the correctness of the decision in the National Judicial Appointment Commission case is concerned, in our opinion, under the Supreme Court Rules, the petitioners have the remedy for filing a review of the judgment as also to file a curative petition. It is open for them to take appropriate proceedings in accordance with law if they wish to question the judgment rendered in National Judicial Appointment Commission case.
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State Of U.P Vs. Chhoteylal | She had no free act of the mind during her stay with A-1 as she was under constant fear. 24. We have also examined the evidence of prosecutrix, her brother and the statement of A-1 under Section 313 Cr.P.C. to satisfy ourselves whether there was likelihood of false implication or motive for false accusations. Except the bald statement of A-1 under Section 313 Cr.P.C. that he has been falsely implicated due to enmity, nothing has been brought on record that may probabalise that the prosecutrix had motive to falsely implicate him. The circumstances even do not remotely suggest that the prosecutrix would put her reputation and chastity at stake for the reason stated by A-1 in the statement under Section 313 Cr.P.C. that a case was pending between A-1 and one Sheo Ratan. In our view, the evidence of the prosecutrix is reliable and has rightly been acted upon by the trial court. 25. Although the lady doctor - PW-5 did not find any injury on the external or internal part of body of the prosecutrix and opined that the prosecutrix was habitual to sexual intercourse, we are afraid that does not make the testimony of the prosecutrix unreliable. The fact of the matter is that the prosecutrix was recovered almost after three weeks. Obviously the sign of forcible intercourse would not persist for that long period. It is wrong to assume that in all cases of intercourse with the women against will or without consent, there would be some injury on the external or internal part of the victim. The prosecutrix has clearly deposed that she was not in a position to put up any struggle as she was taken away from her village by two adult males. The absence of injuries on the person of the prosecutrix is not sufficient to discredit her evidence; she was a helpless victim. She did not and could not inform the neighbours where she was kept due to fear. 26. As regards the belated FIR, suffice it to observe that PW-1 (brother of the prosecutrix) has given plausible explanation. PW-1 deposed that when he returned to his home in the evening from agricultural field, he was informed that her sister (prosecutrix) who had gone to ease herself had not returned. He searched his sister and he was told by the two villagers that her sister was seen with the accused. He contacted the relatives of the accused for return of his sister. He did not lodge the report immediately as the honour of the family was involved. It was only after few days that when his sister did not return and there was no help from the relatives of the accused that he made the complaint on September 28, 1989 to the Superintendent of Police, Hardoi who marked the complaint to the Circle Officer and the FIR was registered on September 30, 1989. The delay in registration of the FIR is, thus, reasonably explained. The High Court was in grave error in concluding that there was no reasonable and plausible explanation for the belated FIR and that it was lodged after consultation and due deliberation and that creates doubt about the case. Unfortunately, the High Court did not advert to the evidence of PW-1 and the reasoning of the trial court in this regard. 27. The High Court was not at all justified in taking a different view or conclusion from the trial court. The judgment of the High Court is vitiated by non-consideration of the material evidence and relevant factors eloquently emerging from the prosecution evidence. The High Court in a sketchy manner reversed the judgment of the trial court without discussing the deposition of the witnesses as well as all relevant points which were considered and touched upon by the trial court. We are satisfied that the judgment of the High Court cannot be sustained and has to be set aside. 28. We are not oblivious of the fact that the incident is of 1989; the prosecutrix has married after the incident and A-1 has a family of his own and sending A-1 to jail now may disturb his family life. But none of these factors individually or collectively persuades us for a soft option. Rape is a heinous crime and once it is established against a person charged of the offence, justice must be done to the victim of crime by awarding suitable punishment to the crime doer. We are constrained to observe that criminal justice system is not working in our country as it should. The police reforms have not taken place despite directions of this Court in the case of Prakash Singh & Ors. vs. Union of India & Ors. ((2006) 8 SCC 1 ). We do not intend to say anything more in this regard since matter is being dealt with separately by a 3-Judge Bench. The investigators hardly have professional orientation; they do not have modern tools. On many occasions impartial investigation suffers because of political interference. The criminal trials are protracted because of non-appearance of official witnesses on time and the non-availability of the facilities for recording evidence by video conferencing. The public prosecutors have their limitations; the defence lawyers do not make themselves available and the court would be routinely informed about their pre-occupation with other matters; the courts remain over-burdened with the briefs listed on the day and they do not have adequate infrastructure. The adjournments thus become routine; the casualty is justice. It is imperative that the criminal cases relating to offences against the State, corruption, dowry death, domestic violence, sexual assault, financial fraud and cyber crimes are fast tracked and decided in a fixed time frame, preferably, of three years including the appeal provisions. It is high time that immediate and urgent steps are taken in amending the procedural and other laws to achieve the above objectives. We must remember that a strong and efficient criminal justice system is a guarantee to the rule of law and vibrant civil society. | 1[ds]The expressions `against her will and `without her consent may overlap sometimes but surely the two expressions in clause First and clause Secondly have different connotation and dimension. The expression `against her will would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition. On the other hand, the expression `without her consent would comprehend an act of reason accompanied by deliberation. The concept of `consent in the context of Section 375 IPC has come up for consideration before this Court on more than one occasion. Before we deal with some of these decisions, reference to Section 90 of the IPC may bethat a woman who is victim of sexual assault is not an accomplice to the crime. Her evidence cannot be tested with suspicion as that of an accompliceThe testimony of prosecutrix, if found to be reliable, by itself, may be sufficient to convict the culprit and no corroboration of her evidence is necessary. In prosecutions of rape, the law does not require corroboration. The evidence of the prosecutrix may sustain a conviction. It is only by way of abundant caution that court may look for some corroboration so as to satisfy its conscience and rule out any false accusations | 1 | 7,247 | 233 | ### 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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She had no free act of the mind during her stay with A-1 as she was under constant fear. 24. We have also examined the evidence of prosecutrix, her brother and the statement of A-1 under Section 313 Cr.P.C. to satisfy ourselves whether there was likelihood of false implication or motive for false accusations. Except the bald statement of A-1 under Section 313 Cr.P.C. that he has been falsely implicated due to enmity, nothing has been brought on record that may probabalise that the prosecutrix had motive to falsely implicate him. The circumstances even do not remotely suggest that the prosecutrix would put her reputation and chastity at stake for the reason stated by A-1 in the statement under Section 313 Cr.P.C. that a case was pending between A-1 and one Sheo Ratan. In our view, the evidence of the prosecutrix is reliable and has rightly been acted upon by the trial court. 25. Although the lady doctor - PW-5 did not find any injury on the external or internal part of body of the prosecutrix and opined that the prosecutrix was habitual to sexual intercourse, we are afraid that does not make the testimony of the prosecutrix unreliable. The fact of the matter is that the prosecutrix was recovered almost after three weeks. Obviously the sign of forcible intercourse would not persist for that long period. It is wrong to assume that in all cases of intercourse with the women against will or without consent, there would be some injury on the external or internal part of the victim. The prosecutrix has clearly deposed that she was not in a position to put up any struggle as she was taken away from her village by two adult males. The absence of injuries on the person of the prosecutrix is not sufficient to discredit her evidence; she was a helpless victim. She did not and could not inform the neighbours where she was kept due to fear. 26. As regards the belated FIR, suffice it to observe that PW-1 (brother of the prosecutrix) has given plausible explanation. PW-1 deposed that when he returned to his home in the evening from agricultural field, he was informed that her sister (prosecutrix) who had gone to ease herself had not returned. He searched his sister and he was told by the two villagers that her sister was seen with the accused. He contacted the relatives of the accused for return of his sister. He did not lodge the report immediately as the honour of the family was involved. It was only after few days that when his sister did not return and there was no help from the relatives of the accused that he made the complaint on September 28, 1989 to the Superintendent of Police, Hardoi who marked the complaint to the Circle Officer and the FIR was registered on September 30, 1989. The delay in registration of the FIR is, thus, reasonably explained. The High Court was in grave error in concluding that there was no reasonable and plausible explanation for the belated FIR and that it was lodged after consultation and due deliberation and that creates doubt about the case. Unfortunately, the High Court did not advert to the evidence of PW-1 and the reasoning of the trial court in this regard. 27. The High Court was not at all justified in taking a different view or conclusion from the trial court. The judgment of the High Court is vitiated by non-consideration of the material evidence and relevant factors eloquently emerging from the prosecution evidence. The High Court in a sketchy manner reversed the judgment of the trial court without discussing the deposition of the witnesses as well as all relevant points which were considered and touched upon by the trial court. We are satisfied that the judgment of the High Court cannot be sustained and has to be set aside. 28. We are not oblivious of the fact that the incident is of 1989; the prosecutrix has married after the incident and A-1 has a family of his own and sending A-1 to jail now may disturb his family life. But none of these factors individually or collectively persuades us for a soft option. Rape is a heinous crime and once it is established against a person charged of the offence, justice must be done to the victim of crime by awarding suitable punishment to the crime doer. We are constrained to observe that criminal justice system is not working in our country as it should. The police reforms have not taken place despite directions of this Court in the case of Prakash Singh & Ors. vs. Union of India & Ors. ((2006) 8 SCC 1 ). We do not intend to say anything more in this regard since matter is being dealt with separately by a 3-Judge Bench. The investigators hardly have professional orientation; they do not have modern tools. On many occasions impartial investigation suffers because of political interference. The criminal trials are protracted because of non-appearance of official witnesses on time and the non-availability of the facilities for recording evidence by video conferencing. The public prosecutors have their limitations; the defence lawyers do not make themselves available and the court would be routinely informed about their pre-occupation with other matters; the courts remain over-burdened with the briefs listed on the day and they do not have adequate infrastructure. The adjournments thus become routine; the casualty is justice. It is imperative that the criminal cases relating to offences against the State, corruption, dowry death, domestic violence, sexual assault, financial fraud and cyber crimes are fast tracked and decided in a fixed time frame, preferably, of three years including the appeal provisions. It is high time that immediate and urgent steps are taken in amending the procedural and other laws to achieve the above objectives. We must remember that a strong and efficient criminal justice system is a guarantee to the rule of law and vibrant civil society.
### Response:
1
### Explanation:
The expressions `against her will and `without her consent may overlap sometimes but surely the two expressions in clause First and clause Secondly have different connotation and dimension. The expression `against her will would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition. On the other hand, the expression `without her consent would comprehend an act of reason accompanied by deliberation. The concept of `consent in the context of Section 375 IPC has come up for consideration before this Court on more than one occasion. Before we deal with some of these decisions, reference to Section 90 of the IPC may bethat a woman who is victim of sexual assault is not an accomplice to the crime. Her evidence cannot be tested with suspicion as that of an accompliceThe testimony of prosecutrix, if found to be reliable, by itself, may be sufficient to convict the culprit and no corroboration of her evidence is necessary. In prosecutions of rape, the law does not require corroboration. The evidence of the prosecutrix may sustain a conviction. It is only by way of abundant caution that court may look for some corroboration so as to satisfy its conscience and rule out any false accusations
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Bimal Kishore Paliwal & Others Vs. Commissioner of Wealth | At one point, it has also been agitated by the appellant that the land over which the Cinema building is situated could not be used for any purpose other than as Cinema Building, hence it was not proper for the Valuation Officer to consider it as an open piece of land and value it likewise. This objection if of no avail because the appellants claim beaten from the very reasoning he has given. To make the matter more than clear, it may be remarked that it is a privilege to get a licence for film exhibition on an urban land. Such land use is only conducive to raise the value and odes not in any way depreciate its value as has been wrongly assumed by the appellant." 24. Learned counsel for the appellants submits that reasons given by ITAT for holding that income capitalisation method is a more appropriate method has not been adverted to by the High Court. We have perused the order of the Tribunal. The Tribunal has observed that once it is accepted that the property is useable only as Cinema building then its method of valuation has to be necessarily different from the one normally adopted in the case of buildings which are capable of being used for other commercial purposes. The mere fact that the building is only for the use of Cinema exhibition does not in any manner diminish the marketable price. At the relevant period uses of building as running Cinema were no less valuable. The finding has been returned by the Appellate Authority that it has not been further challenged that the building was self-occupied and in possession of assessee with no encumbrances.25. It is true that the High Court in so many words had not adverted to the reasons given by the ITAT. However, the High Court has expressed opinion that Wealth Tax Officer was justified in adopting the land and building method. One of the reasons given by the High Court is that if there is loss in the business or in other words there is negative income, it cannot be possible to say that the property in question has no marketable value. Learned counsel for the appellants has submitted that in the relevant year the income was earned. 26. It is relevant to point out that the Appellate Authority in its judgment has observed that there was loss shown by assessee himself in the year 196970. In paragraph 17 sub-paragraph (iv) following has been observed by the Appellate Authority: "iv)....Even in the case of the appellant there is a returned loss of Rs. 1,16,845/- in the first assessment year i.e. 1969-70. Thus if income capitalisation method is applied in such cases where the assessee may have unfortunately suffered losses in the initial years, the valuation of an asset will workout to a negative figure. This will be certainly a situation far from reality and not in any way the intention of the legislature while directing in Section 7 of the W.T. Act for taking the fair market value of an asset." 27. The above circumstances taken by the High Court cannot be said to be irrelevant which apprehensions were duly found proved by the facts as noticed by the Appellate Authority. 28. Learned counsel for the appellants has further submitted that in the event there are more than one methods of valuation of an asset of an assessee, the method under which the valuation is in favour of assessee has to be accepted. He has relied on the judgment of this Court in The Commissioner of Income Tax, West Bengal, Calcutta v. M/s. Vegetables Products Ltd., (1973) 1 SCC 442. This Court in paragraph 6 of the judgment has laid down the following: "6.There is no doubt that the acceptance of one or the other interpretation sought to be placed on Section 271(1)(a)(i) by the parties would lead to some inconvenient result, but the duty of the court is to read the section, understand its language and give effect to the same. If the language is plain, the fact that the consequence of giving effect to it may lead to some absurd result is not a factor to be taken into account in interpreting a provision. It is for the Legislature to step in and remove the absurdity. On the other hand, if two reasonable constructions of a taxing provision are possible that construction which favours the assessee must be adopted. This is a well accepted rule of construction recognised by this Court in several of its decisions. Hence all that we have to see is, what is the true effect of the language employed in Section 271(1)(a)(i). If we find that language to be ambiguous or capable of more meanings than one, then we have to adopt that interpretation which favours the assessee, more particularly so because the provision relates to imposition of penalty." 29. The proposition which was laid down by this Court was that if two reasonable constructions of taxing statute are possible, that construction which favours the assessee must be adopted. The above proposition cannot be read to mean that under two methods of valuation if the value which is favourable to assessee should be adopted. Here in the present case, the provisions of Section 7 are neither unambiguous nor lead to two constructions. The construction of Section 7 is clear as has already been elaborately considered by this Court in the judgment of this Court in Juggilal Kamlapat Bankers (supra).30. The Wealth Tax Officer having referred the Departmental Valuer to value the property, in consequent to which reference for valuation report having already been received on 26.07.1977 which has relied in the assessment. Objections to the valuation report were considered by the Appellate Authority and having been rejected, we do not find any fault with the assessment made by the Wealth Tax Officer. We are of the view that the High Court did not commit any error in interfering with the order of ITAT. | 0[ds]13. Present is a case where Assessing Officer has made a reference for Alpana Cinema on 29.04.1976. It has also come on the record that the order of reference to the Valuation Officer was challenged by the assessee by filing a writ petition in Delhi High Court. The Appellate Authority in its order had noted about the challenge to the reference made to the Valuation Officer by the Assessing Officer. There is nothing on record that the Delhi High Court interfered with order of Assessing Officer referring the Departmental Valuer to value the Alpana Cinema.14. It is true that(2) of Section 7 begins with non obstante clause which enables the Wealth Tax Officer to determine the net value of the assets of the business as a whole instead of determining separately the value of each asset held by the assessee in such business. The language of subsection (2) which provides overriding power to the Wealth Tax Officer to adopt and determining the net value of the business having regard to theof such business. The enabling power has been given to Wealth Tax Officer to override the normal rule of valuation of the properties that is the value which it may fetch in open market, Wealth Tax Officer can adopt in a case where he may think it fit to adopt such methodology. The appellants submission is that the provision of Section 7(2)(a) is a stand alone provision and is to be applied in all cases where assessee is carrying on a business. We do not agree with the above submission.15. Overriding power has been provided to override the normal method of valuation of property as given by subsection 7(1) to arm the Wealth Tax Officer to adopt the method of valuation as given in subsection (2)(a). The purpose and object of giving overriding power is not to fetter the discretion. The Wealth Tax Officer is not obliged to mandatorily adopt the method provided in Section 7(2)(a) in all cases where assessee is carrying on a business. The language of subsection (2)(a) does not indicate that the provisions mandate the Wealth Tax Officer to adopt the method in all cases of running business.The above observation made by the Court was general observation not in the context of Section 7 of the Act. The method of valuing the building property on the basis of rent capitalisation is no doubt provided in various statutes especially in the cases of rent fixation. The above observation does not help the appellants in the presenthave perused the order of the Tribunal. The Tribunal has observed that once it is accepted that the property is useable only as Cinema building then its method of valuation has to be necessarily different from the one normally adopted in the case of buildings which are capable of being used for other commercial purposes. The mere fact that the building is only for the use of Cinema exhibition does not in any manner diminish the marketable price. At the relevant period uses of building as running Cinema were no less valuable. The finding has been returned by the Appellate Authority that it has not been further challenged that the building wasand in possession of assessee with no encumbrances.25. It is true that the High Court in so many words had not adverted to the reasons given by the ITAT. However, the High Court has expressed opinion that Wealth Tax Officer was justified in adopting the land and building method. One of the reasons given by the High Court is that if there is loss in the business or in other words there is negative income, it cannot be possible to say that the property in question has no marketable value. Learned counsel for the appellants has submitted that in the relevant year the income was earned.The above circumstances taken by the High Court cannot be said to be irrelevant which apprehensions were duly found proved by the facts as noticed by the Appellate Authority.The proposition which was laid down by this Court was that if two reasonable constructions of taxing statute are possible, that construction which favours the assessee must be adopted. The above proposition cannot be read to mean that under two methods of valuation if the value which is favourable to assessee should be adopted. Here in the present case, the provisions of Section 7 are neither unambiguous nor lead to two constructions. The construction of Section 7 is clear as has already been elaborately considered by this Court in the judgment of this Court in Juggilal Kamlapat Bankers (supra).30. The Wealth Tax Officer having referred the Departmental Valuer to value the property, in consequent to which reference for valuation report having already been received on 26.07.1977 which has relied in the assessment. Objections to the valuation report were considered by the Appellate Authority and having been rejected, we do not find any fault with the assessment made by the Wealth Tax Officer. We are of the view that the High Court did not commit any error in interfering with the order of ITAT. | 0 | 5,637 | 922 | ### Instruction:
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At one point, it has also been agitated by the appellant that the land over which the Cinema building is situated could not be used for any purpose other than as Cinema Building, hence it was not proper for the Valuation Officer to consider it as an open piece of land and value it likewise. This objection if of no avail because the appellants claim beaten from the very reasoning he has given. To make the matter more than clear, it may be remarked that it is a privilege to get a licence for film exhibition on an urban land. Such land use is only conducive to raise the value and odes not in any way depreciate its value as has been wrongly assumed by the appellant." 24. Learned counsel for the appellants submits that reasons given by ITAT for holding that income capitalisation method is a more appropriate method has not been adverted to by the High Court. We have perused the order of the Tribunal. The Tribunal has observed that once it is accepted that the property is useable only as Cinema building then its method of valuation has to be necessarily different from the one normally adopted in the case of buildings which are capable of being used for other commercial purposes. The mere fact that the building is only for the use of Cinema exhibition does not in any manner diminish the marketable price. At the relevant period uses of building as running Cinema were no less valuable. The finding has been returned by the Appellate Authority that it has not been further challenged that the building was self-occupied and in possession of assessee with no encumbrances.25. It is true that the High Court in so many words had not adverted to the reasons given by the ITAT. However, the High Court has expressed opinion that Wealth Tax Officer was justified in adopting the land and building method. One of the reasons given by the High Court is that if there is loss in the business or in other words there is negative income, it cannot be possible to say that the property in question has no marketable value. Learned counsel for the appellants has submitted that in the relevant year the income was earned. 26. It is relevant to point out that the Appellate Authority in its judgment has observed that there was loss shown by assessee himself in the year 196970. In paragraph 17 sub-paragraph (iv) following has been observed by the Appellate Authority: "iv)....Even in the case of the appellant there is a returned loss of Rs. 1,16,845/- in the first assessment year i.e. 1969-70. Thus if income capitalisation method is applied in such cases where the assessee may have unfortunately suffered losses in the initial years, the valuation of an asset will workout to a negative figure. This will be certainly a situation far from reality and not in any way the intention of the legislature while directing in Section 7 of the W.T. Act for taking the fair market value of an asset." 27. The above circumstances taken by the High Court cannot be said to be irrelevant which apprehensions were duly found proved by the facts as noticed by the Appellate Authority. 28. Learned counsel for the appellants has further submitted that in the event there are more than one methods of valuation of an asset of an assessee, the method under which the valuation is in favour of assessee has to be accepted. He has relied on the judgment of this Court in The Commissioner of Income Tax, West Bengal, Calcutta v. M/s. Vegetables Products Ltd., (1973) 1 SCC 442. This Court in paragraph 6 of the judgment has laid down the following: "6.There is no doubt that the acceptance of one or the other interpretation sought to be placed on Section 271(1)(a)(i) by the parties would lead to some inconvenient result, but the duty of the court is to read the section, understand its language and give effect to the same. If the language is plain, the fact that the consequence of giving effect to it may lead to some absurd result is not a factor to be taken into account in interpreting a provision. It is for the Legislature to step in and remove the absurdity. On the other hand, if two reasonable constructions of a taxing provision are possible that construction which favours the assessee must be adopted. This is a well accepted rule of construction recognised by this Court in several of its decisions. Hence all that we have to see is, what is the true effect of the language employed in Section 271(1)(a)(i). If we find that language to be ambiguous or capable of more meanings than one, then we have to adopt that interpretation which favours the assessee, more particularly so because the provision relates to imposition of penalty." 29. The proposition which was laid down by this Court was that if two reasonable constructions of taxing statute are possible, that construction which favours the assessee must be adopted. The above proposition cannot be read to mean that under two methods of valuation if the value which is favourable to assessee should be adopted. Here in the present case, the provisions of Section 7 are neither unambiguous nor lead to two constructions. The construction of Section 7 is clear as has already been elaborately considered by this Court in the judgment of this Court in Juggilal Kamlapat Bankers (supra).30. The Wealth Tax Officer having referred the Departmental Valuer to value the property, in consequent to which reference for valuation report having already been received on 26.07.1977 which has relied in the assessment. Objections to the valuation report were considered by the Appellate Authority and having been rejected, we do not find any fault with the assessment made by the Wealth Tax Officer. We are of the view that the High Court did not commit any error in interfering with the order of ITAT.
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13. Present is a case where Assessing Officer has made a reference for Alpana Cinema on 29.04.1976. It has also come on the record that the order of reference to the Valuation Officer was challenged by the assessee by filing a writ petition in Delhi High Court. The Appellate Authority in its order had noted about the challenge to the reference made to the Valuation Officer by the Assessing Officer. There is nothing on record that the Delhi High Court interfered with order of Assessing Officer referring the Departmental Valuer to value the Alpana Cinema.14. It is true that(2) of Section 7 begins with non obstante clause which enables the Wealth Tax Officer to determine the net value of the assets of the business as a whole instead of determining separately the value of each asset held by the assessee in such business. The language of subsection (2) which provides overriding power to the Wealth Tax Officer to adopt and determining the net value of the business having regard to theof such business. The enabling power has been given to Wealth Tax Officer to override the normal rule of valuation of the properties that is the value which it may fetch in open market, Wealth Tax Officer can adopt in a case where he may think it fit to adopt such methodology. The appellants submission is that the provision of Section 7(2)(a) is a stand alone provision and is to be applied in all cases where assessee is carrying on a business. We do not agree with the above submission.15. Overriding power has been provided to override the normal method of valuation of property as given by subsection 7(1) to arm the Wealth Tax Officer to adopt the method of valuation as given in subsection (2)(a). The purpose and object of giving overriding power is not to fetter the discretion. The Wealth Tax Officer is not obliged to mandatorily adopt the method provided in Section 7(2)(a) in all cases where assessee is carrying on a business. The language of subsection (2)(a) does not indicate that the provisions mandate the Wealth Tax Officer to adopt the method in all cases of running business.The above observation made by the Court was general observation not in the context of Section 7 of the Act. The method of valuing the building property on the basis of rent capitalisation is no doubt provided in various statutes especially in the cases of rent fixation. The above observation does not help the appellants in the presenthave perused the order of the Tribunal. The Tribunal has observed that once it is accepted that the property is useable only as Cinema building then its method of valuation has to be necessarily different from the one normally adopted in the case of buildings which are capable of being used for other commercial purposes. The mere fact that the building is only for the use of Cinema exhibition does not in any manner diminish the marketable price. At the relevant period uses of building as running Cinema were no less valuable. The finding has been returned by the Appellate Authority that it has not been further challenged that the building wasand in possession of assessee with no encumbrances.25. It is true that the High Court in so many words had not adverted to the reasons given by the ITAT. However, the High Court has expressed opinion that Wealth Tax Officer was justified in adopting the land and building method. One of the reasons given by the High Court is that if there is loss in the business or in other words there is negative income, it cannot be possible to say that the property in question has no marketable value. Learned counsel for the appellants has submitted that in the relevant year the income was earned.The above circumstances taken by the High Court cannot be said to be irrelevant which apprehensions were duly found proved by the facts as noticed by the Appellate Authority.The proposition which was laid down by this Court was that if two reasonable constructions of taxing statute are possible, that construction which favours the assessee must be adopted. The above proposition cannot be read to mean that under two methods of valuation if the value which is favourable to assessee should be adopted. Here in the present case, the provisions of Section 7 are neither unambiguous nor lead to two constructions. The construction of Section 7 is clear as has already been elaborately considered by this Court in the judgment of this Court in Juggilal Kamlapat Bankers (supra).30. The Wealth Tax Officer having referred the Departmental Valuer to value the property, in consequent to which reference for valuation report having already been received on 26.07.1977 which has relied in the assessment. Objections to the valuation report were considered by the Appellate Authority and having been rejected, we do not find any fault with the assessment made by the Wealth Tax Officer. We are of the view that the High Court did not commit any error in interfering with the order of ITAT.
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Executive Officer, Arulmigu Chokkanathaswamy Koil Trust Virudhunagar Vs. Chandran | of Janaki Ammal. Now the said Janaki Ammal sold that property to third person. I have not initiated any action to include Janaki Ammal as a party to this suit.”29. In view of the statement of the plaintiff himself that Survey No. 188/2 is in the name of Janaki Ammal, the observations of the High Court that no documentary evidence was filed for the purpose of establishing that Survey No. 188/2 stands in the name of Janaki Ammal are erroneous and misplaced.When Plaintiff himself admitted that Survey No. 188/2 is recorded in the name of Janaki Ammal, there was no basis for the High Court to come to conclusion that plaintiff is entitled for the area apart from 5 acres and 10 cents, which belonged to the Temple.20. As noted above, one of the issues framed, as to whether the suit is bad for non-joinder of necessary party. The said issue was answered against the plaintiff and it was held that suit is bad for non-joinder of Janaki Ammal a necessary party, whose name was recorded against Survey No.188/2. Without adverting to the said findings of the trial court and the Appellate Court, the High Court has erroneously decreed the suit of the plaintiff.31. There is one more reason due to which the judgment and the decree of the High Court cannot be sustained. The trial court in its judgment has categorically recorded findings that the Defendant No. 1 is in possession of the suit property. In para 10 following findings have been recorded by the trial court:"From the oral depositions and exhibits produced on behalf of defendant 1, it is clearly found that the suit property belonged to defendant 1 Arulmigu Chokkanatha Swamy Temple and it is in its possession for a long time continuously.”32. One of the submissions made before the courts below, on behalf of the defendant, was that the suit for mere declaration when the plaintiff was not in possession of the property, was not maintainable and hit by Section 34 of The Specific Reliefs Act, 1963, the plaintiff having not sought for recovery of possession.33. Trial court, after considering the aforesaid submissions, recorded its conclusions in para 14 which is to the following effect:"From the facts of above cited suit, plaintiff in this suit has prayed for the relief of declaration without seeking the relief of recovery of possession and under these circumstances, it is clearly seen that the plaintiff is not entitled to get such relief. Therefore, it is held that the suit is not maintainable legally.”34. Section 34 of the Specific Reliefs Act, 1963 provides as follows:"Section 34. Discretion of court as to declaration of status or right. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so...... ..... ....”35. In the present case, the plaintiff having been found not to be in possession and having only sought for declaratory reliefs, the suit was clearly not maintainable and has rightly been dismissed by the trial court. In this context the reference is made to the judgment of this Court reported in Ram Saran and Anr. versus Smt. Ganga Devi, AIR 72 SC 2685, wherein para 1 & 4 following was stated:"1. This is a plaintiffs appeal by special leave. Ram Saran and Raghubir Saran, the plaintiffs are brothers. They jointly owned suit property with Chhabili Kuer widow of Lalita Prasad. After the death of Chhabili Kuer on February 8, 1971, Ganga Devi the defendant in the suit came forward as the legal representative of Chhabili Kuer and got the mutation effected in her name in the place of the deceased Chhabili Kuer. In 1958, the plaintiffs brought this suit for a declaration that they are the sole owners of the suit properties. They did not claim possession either of the entire or even any portion of the suit properties.4. We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact finding Courts, Ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable.”36. The plaintiff, who was not in possession, had in the suit claimed only declaratory relief along with mandatory injunction. Plaintiff being out of possession, the relief of recovery of possession was a further relief which ought to have been claimed by the plaintiff. The suit filed by the plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable and the trial court has rightly dismissed the suit. The High Court neither adverted to the above finding of the trial court nor has set aside the above reasoning given by the trial court for holding the suit as not maintainable. The High Court in exercise of its jurisdiction under Section 100 C.P.C. could not have reversed the decree of the courts below without holding that the above reasoning given by the courts below was legally unsustainable. We, thus, are of the view that the High Court committed error in decreeing the suit.37. The decree of the High Court is also contradictory. The High Court has affirmed the findings that Defendant No. 1 is the owner of the Survey No. 188/1 and 188/3, whereas, by decreeing the suit for declaration and mandatory injunction the name of Defendant No. 1 is to be removed and replaced by plaintiff which is clearly erroneous and unsustainable. | 1[ds]23. Learned counsel for the respondent has laid much emphasis on the Deed dated 29.7.1974 executed by Sundara Rajan in favour of Padmanabhan which has been brought on the record of paper book at page No.104. Learned counsel submits that said sale deed clearly proves the title of Padmanabhan over 2.79 acres of Survey No.188. The said deed has been filed by the plaintiff-respondent as Exhibit A14. The Deed dated 29.7.1974 has been specifically considered by the trial court in para 9 of the judgment. The trial court has in its judgment noticed that plaintiff came with the case in the plaint that suit property was inherited by Padmanabhan, however, he relied on Exhibits A12 to A14 with regard to which there was no pleading in the plaint. In his deposition, PW.1 admitted thatis correct to say that without disclosing this deed in the plaint I filed Exhibits A12 toWhen there was no pleading in the plaint regarding title of Padmanabhan by any other earlier deed except the claim of inheritance the trial court rightly discarded the Deed dated 29.7.1974. It is further relevant to note that plaintiffs application made for amendment of the plaint in the Appellate Court was considered and rejected by the Appellate Court. The evidence, with regard of which there is no pleading, has rightly been discarded by the trial court. Unless there is a pleading especially with regard to the source of title, the defendant of a suit has no opportunity to rebut such pleading thus an evidence with regard to which there is no pleading can not be relied by the plaintiff for setting up his title in a suit. Secondly, the deed dated 29.7.1974 referred to part of Survey No.188, whereas the suit was filed in 2007 by the plaintiff by which date the Survey No.188 was subdivided as 188/1, 188/2, 188/3. The deeds through which plaintiff claims title i.e. 28.8.1982, General Power of Attorney dated 31.10.2007 and sale deed dated 05.11.2007 do not refer to any subdivision. The plaintiff although amended the schedule property from part of Plot No. 188 as Survey No.188/3 but he failed to prove his title over Plot No.188/3. We, thus, do find that the trial court after considering the document dated 29.7.1974 held that plaintiff failed to prove his title.24. As noted above, there was categorical finding by trial court and First Appellate Court that Defendant No. 1 is the owner of Survey No. 188/1 (2 acres and 2 cents) and 188/3(2 acres and 88 cents). In the documentary evidence, filed by the defendant both the aforesaid sub divisions i.e. Survey No. 188/1 and 188/3 were recorded as the Temple property. In the property records maintained by the Hindu Religious & Charitable Endowment Department also Survey Nos. 188/1 & 188/3 were recorded in the name of Temple. Extract of the property registered was produced before the courts below which was believed.25. The High Court, in its judgment has also accepted that the Temples name is recorded for Survey Nos. 188/1 and 188/3. The High Court, in its judgment had held that total extent of 188/1 and 188/3 is only 5 acres and 10 cents, whereas, plot No. 188 is 7 acres 84 cents, hence, the plaintiff was entitled to the remaining extent. Following observations have been made by the High Court in ParaThe first defendant has put forth its right, title and interest over the suit property by virtue of Exs. B1 to B3. In Exhibits B1 to B3, it has been clearly stated that Sub Division Nos. 188/1 and 3 are standing in the name of the first defendant and its total extent is 5 acre 10 cents. It has already been pointed out that the total extent of original Survey No. 188 is 7 acre 84 cents. By virtue of Exs. B1 to B3, the first defendant is entitled to get only 5 acre 10 cents and in the remaining extent, the first defendant cannot claim any right, title and interest.Thus, the High court has also affirmed the findings of the courts below that Temple is entitled for Survey No. 188/1 and 188/3 i.e. 5 acres and 10 cents land. In spite of the aforesaid findings, the High Court proceeded to decree the suit on the basis of its reasoning, as given in paragraphs 16 & 18 of the judgment. Para 18 of the judgment of the High Court is asConsidering the fact that no document has been filed for the purpose of establishing that Survey No. 188/2 stands in the name of Janaki Ammal and also considering that the first defendant is not the absolute owner of the entire extent of old Survey No. 188 except 5 acre 10 cents of land, the Court can very well declare that the plaintiff is the owner of the suit property and since it is seen from Ex. A30 that the entire extent of old Survey number stands in the name of first defendant, the ancillary relief of mandatory injunction can also be granted in favour of the plaintiff.The High Court proceeded on the premise that no document has been filed for purpose of establishing that Survey No. 188/2 stands in the name of Janaki Ammal and further, the High Court proceeded that First Defendant being not absolute owner of the old Survey No. 188 except 5 acres and 10 cents, the plaintiff is the owner of the rest of the property.28. Thus virtually, the suit has been decreed by the High Court for Survey No. 188/2, whereas, Survey No. 188/2 was admittedly recorded in the name of Janaki Ammal, who was not impleaded in the suit nor any relief was claimed against the Janaki Ammal or for Survey No.188/2. In this context, it is useful to refer to the evidence of Plaintiff himself i.e. PW 1. PW 1, in his deposition before the court, has admitted the fact that Survey No.188/2 is in the name of Janaki Ammal and he has not initiated any action against her nor she was impleaded in the suit. Following statement was made by the PW 1 in hisis correct to say that S.No.188/2 stands in the name of Janaki Ammal. Now the said Janaki Ammal sold that property to third person. I have not initiated any action to include Janaki Ammal as a party to this suit.In view of the statement of the plaintiff himself that Survey No. 188/2 is in the name of Janaki Ammal, the observations of the High Court that no documentary evidence was filed for the purpose of establishing that Survey No. 188/2 stands in the name of Janaki Ammal are erroneous and misplaced.When Plaintiff himself admitted that Survey No. 188/2 is recorded in the name of Janaki Ammal, there was no basis for the High Court to come to conclusion that plaintiff is entitled for the area apart from 5 acres and 10 cents, which belonged to the Temple.20. As noted above, one of the issues framed, as to whether the suit is bad for non-joinder of necessary party. The said issue was answered against the plaintiff and it was held that suit is bad for non-joinder of Janaki Ammal a necessary party, whose name was recorded against Survey No.188/2. Without adverting to the said findings of the trial court and the Appellate Court, the High Court has erroneously decreed the suit of the plaintiff.31. There is one more reason due to which the judgment and the decree of the High Court cannot be sustained. The trial court in its judgment has categorically recorded findings that the Defendant No. 1 is in possession of the suitIn the present case, the plaintiff having been found not to be in possession and having only sought for declaratory reliefs, the suit was clearly not maintainable and has rightly been dismissed by the trialThe decree of the High Court is also contradictory. The High Court has affirmed the findings that Defendant No. 1 is the owner of the Survey No. 188/1 and 188/3, whereas, by decreeing the suit for declaration and mandatory injunction the name of Defendant No. 1 is to be removed and replaced by plaintiff which is clearly erroneous and unsustainable. | 1 | 4,600 | 1,494 | ### Instruction:
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of Janaki Ammal. Now the said Janaki Ammal sold that property to third person. I have not initiated any action to include Janaki Ammal as a party to this suit.”29. In view of the statement of the plaintiff himself that Survey No. 188/2 is in the name of Janaki Ammal, the observations of the High Court that no documentary evidence was filed for the purpose of establishing that Survey No. 188/2 stands in the name of Janaki Ammal are erroneous and misplaced.When Plaintiff himself admitted that Survey No. 188/2 is recorded in the name of Janaki Ammal, there was no basis for the High Court to come to conclusion that plaintiff is entitled for the area apart from 5 acres and 10 cents, which belonged to the Temple.20. As noted above, one of the issues framed, as to whether the suit is bad for non-joinder of necessary party. The said issue was answered against the plaintiff and it was held that suit is bad for non-joinder of Janaki Ammal a necessary party, whose name was recorded against Survey No.188/2. Without adverting to the said findings of the trial court and the Appellate Court, the High Court has erroneously decreed the suit of the plaintiff.31. There is one more reason due to which the judgment and the decree of the High Court cannot be sustained. The trial court in its judgment has categorically recorded findings that the Defendant No. 1 is in possession of the suit property. In para 10 following findings have been recorded by the trial court:"From the oral depositions and exhibits produced on behalf of defendant 1, it is clearly found that the suit property belonged to defendant 1 Arulmigu Chokkanatha Swamy Temple and it is in its possession for a long time continuously.”32. One of the submissions made before the courts below, on behalf of the defendant, was that the suit for mere declaration when the plaintiff was not in possession of the property, was not maintainable and hit by Section 34 of The Specific Reliefs Act, 1963, the plaintiff having not sought for recovery of possession.33. Trial court, after considering the aforesaid submissions, recorded its conclusions in para 14 which is to the following effect:"From the facts of above cited suit, plaintiff in this suit has prayed for the relief of declaration without seeking the relief of recovery of possession and under these circumstances, it is clearly seen that the plaintiff is not entitled to get such relief. Therefore, it is held that the suit is not maintainable legally.”34. Section 34 of the Specific Reliefs Act, 1963 provides as follows:"Section 34. Discretion of court as to declaration of status or right. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so...... ..... ....”35. In the present case, the plaintiff having been found not to be in possession and having only sought for declaratory reliefs, the suit was clearly not maintainable and has rightly been dismissed by the trial court. In this context the reference is made to the judgment of this Court reported in Ram Saran and Anr. versus Smt. Ganga Devi, AIR 72 SC 2685, wherein para 1 & 4 following was stated:"1. This is a plaintiffs appeal by special leave. Ram Saran and Raghubir Saran, the plaintiffs are brothers. They jointly owned suit property with Chhabili Kuer widow of Lalita Prasad. After the death of Chhabili Kuer on February 8, 1971, Ganga Devi the defendant in the suit came forward as the legal representative of Chhabili Kuer and got the mutation effected in her name in the place of the deceased Chhabili Kuer. In 1958, the plaintiffs brought this suit for a declaration that they are the sole owners of the suit properties. They did not claim possession either of the entire or even any portion of the suit properties.4. We are in agreement with the High Court that the suit is hit by Section 42 of the Specific Relief Act. As found by the fact finding Courts, Ganga Devi is in possession of some of the suit properties. The plaintiffs have not sought possession of those properties. They merely claimed a declaration that they are the owners of the suit properties. Hence the suit is not maintainable.”36. The plaintiff, who was not in possession, had in the suit claimed only declaratory relief along with mandatory injunction. Plaintiff being out of possession, the relief of recovery of possession was a further relief which ought to have been claimed by the plaintiff. The suit filed by the plaintiff for a mere declaration without relief of recovery of possession was clearly not maintainable and the trial court has rightly dismissed the suit. The High Court neither adverted to the above finding of the trial court nor has set aside the above reasoning given by the trial court for holding the suit as not maintainable. The High Court in exercise of its jurisdiction under Section 100 C.P.C. could not have reversed the decree of the courts below without holding that the above reasoning given by the courts below was legally unsustainable. We, thus, are of the view that the High Court committed error in decreeing the suit.37. The decree of the High Court is also contradictory. The High Court has affirmed the findings that Defendant No. 1 is the owner of the Survey No. 188/1 and 188/3, whereas, by decreeing the suit for declaration and mandatory injunction the name of Defendant No. 1 is to be removed and replaced by plaintiff which is clearly erroneous and unsustainable.
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find that the trial court after considering the document dated 29.7.1974 held that plaintiff failed to prove his title.24. As noted above, there was categorical finding by trial court and First Appellate Court that Defendant No. 1 is the owner of Survey No. 188/1 (2 acres and 2 cents) and 188/3(2 acres and 88 cents). In the documentary evidence, filed by the defendant both the aforesaid sub divisions i.e. Survey No. 188/1 and 188/3 were recorded as the Temple property. In the property records maintained by the Hindu Religious & Charitable Endowment Department also Survey Nos. 188/1 & 188/3 were recorded in the name of Temple. Extract of the property registered was produced before the courts below which was believed.25. The High Court, in its judgment has also accepted that the Temples name is recorded for Survey Nos. 188/1 and 188/3. The High Court, in its judgment had held that total extent of 188/1 and 188/3 is only 5 acres and 10 cents, whereas, plot No. 188 is 7 acres 84 cents, hence, the plaintiff was entitled to the remaining extent. Following observations have been made by the High Court in ParaThe first defendant has put forth its right, title and interest over the suit property by virtue of Exs. B1 to B3. In Exhibits B1 to B3, it has been clearly stated that Sub Division Nos. 188/1 and 3 are standing in the name of the first defendant and its total extent is 5 acre 10 cents. It has already been pointed out that the total extent of original Survey No. 188 is 7 acre 84 cents. By virtue of Exs. B1 to B3, the first defendant is entitled to get only 5 acre 10 cents and in the remaining extent, the first defendant cannot claim any right, title and interest.Thus, the High court has also affirmed the findings of the courts below that Temple is entitled for Survey No. 188/1 and 188/3 i.e. 5 acres and 10 cents land. In spite of the aforesaid findings, the High Court proceeded to decree the suit on the basis of its reasoning, as given in paragraphs 16 & 18 of the judgment. Para 18 of the judgment of the High Court is asConsidering the fact that no document has been filed for the purpose of establishing that Survey No. 188/2 stands in the name of Janaki Ammal and also considering that the first defendant is not the absolute owner of the entire extent of old Survey No. 188 except 5 acre 10 cents of land, the Court can very well declare that the plaintiff is the owner of the suit property and since it is seen from Ex. A30 that the entire extent of old Survey number stands in the name of first defendant, the ancillary relief of mandatory injunction can also be granted in favour of the plaintiff.The High Court proceeded on the premise that no document has been filed for purpose of establishing that Survey No. 188/2 stands in the name of Janaki Ammal and further, the High Court proceeded that First Defendant being not absolute owner of the old Survey No. 188 except 5 acres and 10 cents, the plaintiff is the owner of the rest of the property.28. Thus virtually, the suit has been decreed by the High Court for Survey No. 188/2, whereas, Survey No. 188/2 was admittedly recorded in the name of Janaki Ammal, who was not impleaded in the suit nor any relief was claimed against the Janaki Ammal or for Survey No.188/2. In this context, it is useful to refer to the evidence of Plaintiff himself i.e. PW 1. PW 1, in his deposition before the court, has admitted the fact that Survey No.188/2 is in the name of Janaki Ammal and he has not initiated any action against her nor she was impleaded in the suit. Following statement was made by the PW 1 in hisis correct to say that S.No.188/2 stands in the name of Janaki Ammal. Now the said Janaki Ammal sold that property to third person. I have not initiated any action to include Janaki Ammal as a party to this suit.In view of the statement of the plaintiff himself that Survey No. 188/2 is in the name of Janaki Ammal, the observations of the High Court that no documentary evidence was filed for the purpose of establishing that Survey No. 188/2 stands in the name of Janaki Ammal are erroneous and misplaced.When Plaintiff himself admitted that Survey No. 188/2 is recorded in the name of Janaki Ammal, there was no basis for the High Court to come to conclusion that plaintiff is entitled for the area apart from 5 acres and 10 cents, which belonged to the Temple.20. As noted above, one of the issues framed, as to whether the suit is bad for non-joinder of necessary party. The said issue was answered against the plaintiff and it was held that suit is bad for non-joinder of Janaki Ammal a necessary party, whose name was recorded against Survey No.188/2. Without adverting to the said findings of the trial court and the Appellate Court, the High Court has erroneously decreed the suit of the plaintiff.31. There is one more reason due to which the judgment and the decree of the High Court cannot be sustained. The trial court in its judgment has categorically recorded findings that the Defendant No. 1 is in possession of the suitIn the present case, the plaintiff having been found not to be in possession and having only sought for declaratory reliefs, the suit was clearly not maintainable and has rightly been dismissed by the trialThe decree of the High Court is also contradictory. The High Court has affirmed the findings that Defendant No. 1 is the owner of the Survey No. 188/1 and 188/3, whereas, by decreeing the suit for declaration and mandatory injunction the name of Defendant No. 1 is to be removed and replaced by plaintiff which is clearly erroneous and unsustainable.
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B.V. Nagaraju Vs. Oriental Insurance Co | except towing of any one disabled mechanically propelled vehicle. (3) Use for carrying passengers in the vehicle except employees (other than driver) not exceeding six in numbers coming under the purview of W. C. Act, 1923." 6. Learned counsel for the appellant, in support of this appeal, strongly relied on Skandias case (AIR 1987 SC 1184 ) (supra), making a fervent appeal that the terms of the policy referred to, should be read down to carry out the main purposes of the policy as the presence of 9 persons (when up to 6 were permissible), irrespective of their being employees or not, had not contributed in any manner to the occurring of the accident as also when the claim did not relate to any injuries to those 9 persons (who were owners of the goods loaded) or any loss incurred by them; the claim pristinely relating to the damage caused to the vehicle insured, which could not have been denied in the facts and the circumstances. Strong reliance, in support, was sought from the reasoning of the State Commission which had in so many words said : ".....Even for the sake of argument, that 9 persons travelling in the vehicle were passengers, it cannot be a ground for Insurance Company to repudiate the contract as the fact of their being passengers or coolies does not make any difference to the risk involved. These persons were in no way concerned with the cause of the accident nor have they contributed to the risk in respect of the loss caused to the vehicle. The complainant has not claimed any compensation in respect of his liability to the persons travelling in the vehicle." 7. It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is poser, keeping apart the load it was carrying. Here, it is nobodys case that the driver of the insured vehicle was responsible for the accident. In fact, it was not disputed that the oncoming vehicle had collided head-on against the insured vehicle, which resulted in the damage. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. In the instant case, however, we find no such contributory factor. In Skandies case (AIR 1987) SC 1184 ) this Court paved the way towards reading down the contractual Clause by observing as follows (at pp. 1191 and 1992 of AIR) : "....When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their defendants on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court cannot but opt for the former view. Even if one were to make a strictly doctrinnaire approach, the very same conclusion would emerge in obeisance to the doctrine of reading down the exclusion clause in the light of the main purpose of the provision so that the exclusion clause highlighted earlier. The effort must be to harmonize the two instead of allowing the exclusion clause to snipe successfully at the main purpose. The theory which needs no support is supported by Carters "Breach of Contract" vide paragraph 251. To quote :Notwithstanding the general ability of contracting parties to agree to exclusion clauses which operate to define obligations there exists a rule, usually referred to as the "main purpose rule", which may limit the application of wide exclusion clauses defining a promisers contractual obligations. For example, in Glynn v. Margetson & Co., 1893 AC 351 (357), Lord Halsbury, L. C. stated : It seems to me that in construing this document, which is a contract of carriage between the parties, one must in the first instance look at the whole instrument and not at one part of it only. Looking at the whole instrument, and seeing what one must regard.. as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract.Although this rule played a role in the development of the doctrine of fundamental breach, the continued validity of the rule was acknowledge when the doctrine was rejected by the House of Lords in Suissee Atlantique Societe d Armement Maritime S.A. v. N.V. Rot-terdamsche Kolen Centrale, 1967(1) AC 361. Accordingly, wide exclusion clauses will be read down to the extent to which they are inconsistent with the main purpose, or object of the contract." 8. The National Commission went for the strict construction of the exclusion clause. The reasoning that the extra passengers being carried in the goods vehicle could not have contributed, in any manner, to the occurring of the accident, was barely noticed and rejected sans any plausible account; even when the claim confining the damage to the vehicle only was limited in nature. We, thus, are of the view that in accord with the Skandias case (AIR 1987 SC 1184 ), the aforesaid exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy that is indemnify the damage caused to the vehicle, which we hereby do. | 1[ds]7. It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is poser, keeping apart the load it was carrying. Here, it is nobodys case that the driver of the insured vehicle was responsible for the accident. In fact, it was not disputed that the oncoming vehicle had collided head-on against the insured vehicle, which resulted in the damage. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. In the instant case, however, we find no such contributory factor.The National Commission went for the strict construction of the exclusion clause. The reasoning that the extra passengers being carried in the goods vehicle could not have contributed, in any manner, to the occurring of the accident, was barely noticed and rejected sans any plausible account; even when the claim confining the damage to the vehicle only was limited in nature. We, thus, are of the view that in accord with the Skandias case (AIR 1987 SC 1184 ), the aforesaid exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy that is indemnify the damage caused to the vehicle, which we hereby do. | 1 | 1,805 | 369 | ### 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:
except towing of any one disabled mechanically propelled vehicle. (3) Use for carrying passengers in the vehicle except employees (other than driver) not exceeding six in numbers coming under the purview of W. C. Act, 1923." 6. Learned counsel for the appellant, in support of this appeal, strongly relied on Skandias case (AIR 1987 SC 1184 ) (supra), making a fervent appeal that the terms of the policy referred to, should be read down to carry out the main purposes of the policy as the presence of 9 persons (when up to 6 were permissible), irrespective of their being employees or not, had not contributed in any manner to the occurring of the accident as also when the claim did not relate to any injuries to those 9 persons (who were owners of the goods loaded) or any loss incurred by them; the claim pristinely relating to the damage caused to the vehicle insured, which could not have been denied in the facts and the circumstances. Strong reliance, in support, was sought from the reasoning of the State Commission which had in so many words said : ".....Even for the sake of argument, that 9 persons travelling in the vehicle were passengers, it cannot be a ground for Insurance Company to repudiate the contract as the fact of their being passengers or coolies does not make any difference to the risk involved. These persons were in no way concerned with the cause of the accident nor have they contributed to the risk in respect of the loss caused to the vehicle. The complainant has not claimed any compensation in respect of his liability to the persons travelling in the vehicle." 7. It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is poser, keeping apart the load it was carrying. Here, it is nobodys case that the driver of the insured vehicle was responsible for the accident. In fact, it was not disputed that the oncoming vehicle had collided head-on against the insured vehicle, which resulted in the damage. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. In the instant case, however, we find no such contributory factor. In Skandies case (AIR 1987) SC 1184 ) this Court paved the way towards reading down the contractual Clause by observing as follows (at pp. 1191 and 1992 of AIR) : "....When the option is between opting for a view which will relieve the distress and misery of the victims of accidents or their defendants on the one hand and the equally plausible view which will reduce the profitability of the insurer in regard to the occupational hazard undertaken by him by way of business activity, there is hardly any choice. The Court cannot but opt for the former view. Even if one were to make a strictly doctrinnaire approach, the very same conclusion would emerge in obeisance to the doctrine of reading down the exclusion clause in the light of the main purpose of the provision so that the exclusion clause highlighted earlier. The effort must be to harmonize the two instead of allowing the exclusion clause to snipe successfully at the main purpose. The theory which needs no support is supported by Carters "Breach of Contract" vide paragraph 251. To quote :Notwithstanding the general ability of contracting parties to agree to exclusion clauses which operate to define obligations there exists a rule, usually referred to as the "main purpose rule", which may limit the application of wide exclusion clauses defining a promisers contractual obligations. For example, in Glynn v. Margetson & Co., 1893 AC 351 (357), Lord Halsbury, L. C. stated : It seems to me that in construing this document, which is a contract of carriage between the parties, one must in the first instance look at the whole instrument and not at one part of it only. Looking at the whole instrument, and seeing what one must regard.. as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract.Although this rule played a role in the development of the doctrine of fundamental breach, the continued validity of the rule was acknowledge when the doctrine was rejected by the House of Lords in Suissee Atlantique Societe d Armement Maritime S.A. v. N.V. Rot-terdamsche Kolen Centrale, 1967(1) AC 361. Accordingly, wide exclusion clauses will be read down to the extent to which they are inconsistent with the main purpose, or object of the contract." 8. The National Commission went for the strict construction of the exclusion clause. The reasoning that the extra passengers being carried in the goods vehicle could not have contributed, in any manner, to the occurring of the accident, was barely noticed and rejected sans any plausible account; even when the claim confining the damage to the vehicle only was limited in nature. We, thus, are of the view that in accord with the Skandias case (AIR 1987 SC 1184 ), the aforesaid exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy that is indemnify the damage caused to the vehicle, which we hereby do.
### Response:
1
### Explanation:
7. It is plain from the terms of the Insurance Policy that the insured vehicle was entitled to carry 6 workmen, excluding the driver. If those 6 workmen when travelling in the vehicle, are assumed not to have increased any risk from the point of view of the Insurance Company on occurring of an accident, how could those added persons be said to have contributed to the causing of it is poser, keeping apart the load it was carrying. Here, it is nobodys case that the driver of the insured vehicle was responsible for the accident. In fact, it was not disputed that the oncoming vehicle had collided head-on against the insured vehicle, which resulted in the damage. Merely by lifting a person or two, or even three, by the driver or the cleaner of the vehicle, without the knowledge of owner, cannot be said to be such a fundamental breach that the owner should, in all events, be denied indemnification. The misuse of the vehicle was somewhat irregular though, but not so fundamental in nature so as to put an end to the contract, unless some factors existed which, by themselves, had gone to contribute to the causing of the accident. In the instant case, however, we find no such contributory factor.The National Commission went for the strict construction of the exclusion clause. The reasoning that the extra passengers being carried in the goods vehicle could not have contributed, in any manner, to the occurring of the accident, was barely noticed and rejected sans any plausible account; even when the claim confining the damage to the vehicle only was limited in nature. We, thus, are of the view that in accord with the Skandias case (AIR 1987 SC 1184 ), the aforesaid exclusion term of the insurance policy must be read down so as to serve the main purpose of the policy that is indemnify the damage caused to the vehicle, which we hereby do.
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D.N. Dutta Vs. Income Tax Investigation Commission | the Commission contained in their report of November 16, 1949. We have verified from the records of this Court that the only order made by this Court was refusing to grant special leave and there is no such observation as the appellant has mentioned in his appeal, affidavit and statement of case. The appellant then obtained special leave against the report of the Commission dated November 16, 1949 and the orders made thereon and that is how this appeal has come before us.5. It is unnecessary to decide whether in view of the High Courts refusal to direct a case to be stated on the questions of law raised or in view of the refusal by this Court to grant special leave against the order of the High Court the appeal is competent because in our opinion there is no substance in the appeal. It was argued on behalf of the appellant that the effect of S. 24 B(1) of the Income-tax Act is that the liability of the executors, administrators or other legal representatives in regard to the tax payable is the same as was the liability of the deceased person and that the tax is one and therefore the liability of the heirs of the deceased was one and joint. Consequently any composition made with any one of the legal representatives, in this case with Kamini Kumar Dutta and his branch of the family operated as a discharge of liability of all the heirs and there was no further liability left which could be foisted on to the appellant or attach to any assets which might come into his possession hereinafter. Reliance was placed on certain decided cases to support that argument. The first case is Shaikh Sahed v. Krishna Mohan Basak, 24 Cal LJ 371 : (AIR 1917 Cal 829). In that case a co-sharer landlord brought a suit for arrears of rent against the heirs of the original tenant of whom two appeared and the third did not. A money decree was passed against the absent heir for the entire claim but it was held by the High Court that the suit being against the heirs they must be taken to have been recognised as one body of registered tenants holding a single holding and it was not a case of a joint contract which could be enforced against any of the joint contractors and S. 43 of the Contract Act was inapplicable where parties became jointly interested by operation of law in a contract by a single person. The next case relied upon i.e. Kasi Kinkar Sen v. Satyendra Nath Bhadra, 15 Cal WN 191 was a case under S. 43 of the Contract Act where it was held that whether a promise is joint or several is a question of construction depending upon the intention of the parties to the contract and where several persons jointly inherit a tenancy one of the heirs cannot be made separately liable for the entire rent. Reference was also made to Salmonds Jurisprudence, 11th Ed., page 482.6. In our opinion these cases have no application to the facts of the present case, because no question of enforcing any contractual liability, either against any of the contracting parties or their heirs, arises here.The tax payable in respect of the concealed income is indeed one, but the liability of the appellant and the co-heir must be determined in accordance with the provisions of the Act.Under S. 8(2) of the Act, on the report of the Investigation Commission the Central Government had the power to direct proceedings to be taken under the Income-tax Act against the person to whose case the report related. In the present case the person to whose case the report related was no doubt the deceased and therefore the order made under that Section was against his heirs with a view to assess or reassess the aggregate income of Rs. 58,24,023. The application for composition was made only by Kamini Kumar Dutta and his branch of the family and that falls under S. 8A(1) of the Act. It provides that in any case pending before the Commission if any person applies to it at any time to have the case or any part thereof settled in so far as it relates to him the Commission shall, if it is of the opinion that the settlement applied for may be approved, refer the matter to the Government and if the Government accepts the terms, the Commission shall have the terms thereof recorded and the investigation so far as it relates to matters covered by such settlement shall be deemed to be closed.This Section obviously means that the settlement is with and in regard to the person who offers the settlement and the investigation is closed in regard to him alone. It is this provision which is applicable and operates in cases covered by the Act and no other principle arises in such cases.7. Both Kamini Kumar Dutta and the appellant were brought on the record as legal representatives of the deceased. They both admitted the liability of Rs. 58,24,023. The several assessment orders, Income-tax assessment orders, Excess Profits tax assessment and Business Profits assessment orders, show that the total amount to be realised as tax was Rs. 52,34,663 divided into 8 equal parts. The liability of Kamini Kumar Dutta and his branch of the family alone, as a result of composition, came to an end but that does not mean that the balance of the tax which was exigible must also be taken to have been satisfied.It only means that to the extent that the amount is realised from Kamini Kumar Dutta and his branch of the family the liability to tax will be taken to have been satisfied and the appellant will be liable for the payment of only the balance and to the extent that he has in his possession any of the assets of the deceased or comes into possession of the assets in future. | 0[ds]5. It is unnecessary to decide whether in view of the High Courts refusal to direct a case to be stated on the questions of law raised or in view of the refusal by this Court to grant special leave against the order of the High Court the appeal is competent because in our opinion there is no substance in theour opinion these cases have no application to the facts of the present case, because no question of enforcing any contractual liability, either against any of the contracting parties or their heirs, arises here.The tax payable in respect of the concealed income is indeed one, but the liability of the appellant and themust be determined in accordance with the provisions of the Act.Under S. 8(2) of the Act, on the report of the Investigation Commission the Central Government had the power to direct proceedings to be taken under theAct against the person to whose case the report related. In the present case the person to whose case the report related was no doubt the deceased and therefore the order made under that Section was against his heirs with a view to assess or reassess the aggregate income of Rs. 58,24,023. The application for composition was made only by Kamini Kumar Dutta and his branch of the family and that falls under S. 8A(1) of the Act. It provides that in any case pending before the Commission if any person applies to it at any time to have the case or any part thereof settled in so far as it relates to him the Commission shall, if it is of the opinion that the settlement applied for may be approved, refer the matter to the Government and if the Government accepts the terms, the Commission shall have the terms thereof recorded and the investigation so far as it relates to matters covered by such settlement shall be deemed to be closed.This Section obviously means that the settlement is with and in regard to the person who offers the settlement and the investigation is closed in regard to him alone. It is this provision which is applicable and operates in cases covered by the Act and no other principle arises in such cases.7. Both Kamini Kumar Dutta and the appellant were brought on the record as legal representatives of the deceased. They both admitted the liability of Rs. 58,24,023. The several assessment orders,assessment orders, Excess Profits tax assessment and Business Profits assessment orders, show that the total amount to be realised as tax was Rs. 52,34,663 divided into 8 equal parts. The liability of Kamini Kumar Dutta and his branch of the family alone, as a result of composition, came to an end but that does not mean that the balance of the tax which was exigible must also be taken to have been satisfied.It only means that to the extent that the amount is realised from Kamini Kumar Dutta and his branch of the family the liability to tax will be taken to have been satisfied and the appellant will be liable for the payment of only the balance and to the extent that he has in his possession any of the assets of the deceased or comes into possession of the assets in future. | 0 | 2,442 | 581 | ### 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 Commission contained in their report of November 16, 1949. We have verified from the records of this Court that the only order made by this Court was refusing to grant special leave and there is no such observation as the appellant has mentioned in his appeal, affidavit and statement of case. The appellant then obtained special leave against the report of the Commission dated November 16, 1949 and the orders made thereon and that is how this appeal has come before us.5. It is unnecessary to decide whether in view of the High Courts refusal to direct a case to be stated on the questions of law raised or in view of the refusal by this Court to grant special leave against the order of the High Court the appeal is competent because in our opinion there is no substance in the appeal. It was argued on behalf of the appellant that the effect of S. 24 B(1) of the Income-tax Act is that the liability of the executors, administrators or other legal representatives in regard to the tax payable is the same as was the liability of the deceased person and that the tax is one and therefore the liability of the heirs of the deceased was one and joint. Consequently any composition made with any one of the legal representatives, in this case with Kamini Kumar Dutta and his branch of the family operated as a discharge of liability of all the heirs and there was no further liability left which could be foisted on to the appellant or attach to any assets which might come into his possession hereinafter. Reliance was placed on certain decided cases to support that argument. The first case is Shaikh Sahed v. Krishna Mohan Basak, 24 Cal LJ 371 : (AIR 1917 Cal 829). In that case a co-sharer landlord brought a suit for arrears of rent against the heirs of the original tenant of whom two appeared and the third did not. A money decree was passed against the absent heir for the entire claim but it was held by the High Court that the suit being against the heirs they must be taken to have been recognised as one body of registered tenants holding a single holding and it was not a case of a joint contract which could be enforced against any of the joint contractors and S. 43 of the Contract Act was inapplicable where parties became jointly interested by operation of law in a contract by a single person. The next case relied upon i.e. Kasi Kinkar Sen v. Satyendra Nath Bhadra, 15 Cal WN 191 was a case under S. 43 of the Contract Act where it was held that whether a promise is joint or several is a question of construction depending upon the intention of the parties to the contract and where several persons jointly inherit a tenancy one of the heirs cannot be made separately liable for the entire rent. Reference was also made to Salmonds Jurisprudence, 11th Ed., page 482.6. In our opinion these cases have no application to the facts of the present case, because no question of enforcing any contractual liability, either against any of the contracting parties or their heirs, arises here.The tax payable in respect of the concealed income is indeed one, but the liability of the appellant and the co-heir must be determined in accordance with the provisions of the Act.Under S. 8(2) of the Act, on the report of the Investigation Commission the Central Government had the power to direct proceedings to be taken under the Income-tax Act against the person to whose case the report related. In the present case the person to whose case the report related was no doubt the deceased and therefore the order made under that Section was against his heirs with a view to assess or reassess the aggregate income of Rs. 58,24,023. The application for composition was made only by Kamini Kumar Dutta and his branch of the family and that falls under S. 8A(1) of the Act. It provides that in any case pending before the Commission if any person applies to it at any time to have the case or any part thereof settled in so far as it relates to him the Commission shall, if it is of the opinion that the settlement applied for may be approved, refer the matter to the Government and if the Government accepts the terms, the Commission shall have the terms thereof recorded and the investigation so far as it relates to matters covered by such settlement shall be deemed to be closed.This Section obviously means that the settlement is with and in regard to the person who offers the settlement and the investigation is closed in regard to him alone. It is this provision which is applicable and operates in cases covered by the Act and no other principle arises in such cases.7. Both Kamini Kumar Dutta and the appellant were brought on the record as legal representatives of the deceased. They both admitted the liability of Rs. 58,24,023. The several assessment orders, Income-tax assessment orders, Excess Profits tax assessment and Business Profits assessment orders, show that the total amount to be realised as tax was Rs. 52,34,663 divided into 8 equal parts. The liability of Kamini Kumar Dutta and his branch of the family alone, as a result of composition, came to an end but that does not mean that the balance of the tax which was exigible must also be taken to have been satisfied.It only means that to the extent that the amount is realised from Kamini Kumar Dutta and his branch of the family the liability to tax will be taken to have been satisfied and the appellant will be liable for the payment of only the balance and to the extent that he has in his possession any of the assets of the deceased or comes into possession of the assets in future.
### Response:
0
### Explanation:
5. It is unnecessary to decide whether in view of the High Courts refusal to direct a case to be stated on the questions of law raised or in view of the refusal by this Court to grant special leave against the order of the High Court the appeal is competent because in our opinion there is no substance in theour opinion these cases have no application to the facts of the present case, because no question of enforcing any contractual liability, either against any of the contracting parties or their heirs, arises here.The tax payable in respect of the concealed income is indeed one, but the liability of the appellant and themust be determined in accordance with the provisions of the Act.Under S. 8(2) of the Act, on the report of the Investigation Commission the Central Government had the power to direct proceedings to be taken under theAct against the person to whose case the report related. In the present case the person to whose case the report related was no doubt the deceased and therefore the order made under that Section was against his heirs with a view to assess or reassess the aggregate income of Rs. 58,24,023. The application for composition was made only by Kamini Kumar Dutta and his branch of the family and that falls under S. 8A(1) of the Act. It provides that in any case pending before the Commission if any person applies to it at any time to have the case or any part thereof settled in so far as it relates to him the Commission shall, if it is of the opinion that the settlement applied for may be approved, refer the matter to the Government and if the Government accepts the terms, the Commission shall have the terms thereof recorded and the investigation so far as it relates to matters covered by such settlement shall be deemed to be closed.This Section obviously means that the settlement is with and in regard to the person who offers the settlement and the investigation is closed in regard to him alone. It is this provision which is applicable and operates in cases covered by the Act and no other principle arises in such cases.7. Both Kamini Kumar Dutta and the appellant were brought on the record as legal representatives of the deceased. They both admitted the liability of Rs. 58,24,023. The several assessment orders,assessment orders, Excess Profits tax assessment and Business Profits assessment orders, show that the total amount to be realised as tax was Rs. 52,34,663 divided into 8 equal parts. The liability of Kamini Kumar Dutta and his branch of the family alone, as a result of composition, came to an end but that does not mean that the balance of the tax which was exigible must also be taken to have been satisfied.It only means that to the extent that the amount is realised from Kamini Kumar Dutta and his branch of the family the liability to tax will be taken to have been satisfied and the appellant will be liable for the payment of only the balance and to the extent that he has in his possession any of the assets of the deceased or comes into possession of the assets in future.
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The Shahabad Coop Sugar Mills Ltd Vs. Spl.Secretary To Govt.Of Haryana Cor&Ors | 12 SCC 764] and Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha & Anr. vs. State of Maharashtra & Ors. [(2001) 8 SCC 509] , also is not applicable. 31. In those decisions it has been held that if the decisions which were operating for a long time should not be disturbed, unless shown palpably wrong. We have noticed hereinbefore that the Punjab Act and Haryana Act are not in pari materia. They contain different provisions. The purport and object of the revisional jurisdiction of the State Government under the Haryana Act is in effect and substance are different from those of the Punjab Act. 32. Furthermore, the doctrine of stare decisis does not contain an inflexible rule. In State of Maharashtra vs. Milind & Ors. [(2001) 1 SCC 4] , a Constitution Bench of this Court opined: .....The rule of stare decisis is not inflexible so as to preclude a departure therefrom in any case but its application depends on facts and circumstances of each case. It is good to proceed from precedent to precedent but it is earlier the better to give quietus to the incorrect one by annulling it to avoid repetition or perpetuation of injustice, hardship and anything ex facie illegal, more particularly when a precedent runs counter to the provisions of the Constitution. The first two decisions were rendered without having the benefit of the decisions of this Court, that too concerning the interpretation of the provisions of the Constitution. The remaining decisions were contrary to the law laid down by this Court. This Court in Maktul v. Manbhari adopting the statement of law found in Halsbury and Corpus Juris Secundum observed thus: But the supreme appellate court will not shirk from overruling a decision, or series of decisions, which establish a doctrine plainly outside the statute and outside the common law, when no title and no contract will be shaken, no persons can complain, and no general course of dealing be altered by the remedy of a mistake. (From Halsbury) Previous decisions should not be followed to the extent that grievous wrong may result; and, accordingly, the courts ordinarily will not adhere to a rule or principle established by previous decisions which they are convinced is erroneous. The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the court, and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong may result. (From Corpus Juris Secundum) 33. [See also State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and Others [(2005) 8 SCC 534] 34. For the reasons aforementioned we are of the opinion that the High Court was not correct in holding that the State of Haryana was entitled to exercise its revisional jurisdiction in the facts of the present case. 35. The question which, however, arises is whether this Court shall mould the relief. We have been taken to the merit of the matter. We are satisfied that the High Court was right in opining: ...The petitioner has been facing the departmental proceedings since 1996. Even otherwise, it is to be noticed that FIR registered against the petitioner has been quashed by this Court in Crl. Misc. 144 of 2001 in its order dated 11.05.2001. The petitioner has not cared to challenge the aforesaid order before the Supreme Court. In such circumstances, it would be wholly inequitable at this stage to remand the matter back to the enquiry officer. Mr. Malik, then submitted that even if enquiry proceedings are to be quashed, the Respondents could not have been directed to be re-instated in service with full back wages. Respondent No.3 had himself stated that he had got a much better job with better emoluments, status and salary. Learned Counsel for Respondent No.3 has, however, pointed out that on getting the aforesaid job, he had submitted the resignation to the Managing Director of the petitioner. The same was rejected, as such Respondent No.3 was not able to accept the job. 36. It was also held that the inquiry was not properly conducted. 37. The 3rd respondent has already joined his services pursuant to the judgment of the High Court. He, in the meanwhile, has also superannuated. The questions as to whether during the interregnum he had been gainfully employed or not; or his resignation was rightly refused to be accepted and despite submission of resignation, he did not, in fact, get a job and never joined anywhere else, should, in our opinion, be determined by an appropriate authority. We, therefore, in exercise of our jurisdiction under Article 142 of the Constitution of India direct that the Registrar of Co-operative Societies should arbitrate in the matter and exercise its jurisdiction under Section 102 of the Haryana Act, as if the 3rd respondent has invoked the said jurisdiction. The parties hereto shall file their respective documents before the Registrar within four weeks from the date. The Registrar shall fix a date of hearing and intimate the same to the parties, on which date they may produce their witnesses before him. The 3rd respondent will be entitled to examine himself as a witness. 38. The Registrar shall consider the matter afresh without in any way being influenced by the report of the Enquiry Officer, the appellate order passed by the Additional Registrar or the revisional order passed by the State. The Registrar, Co-operative Societies is requested to make an Award within eight weeks from the date of entering into the reference. We furthermore direct that irrespective of the result of the dispute between the appellant and the 3rd respondent, no recovery shall be effected from the 3rd respondent in respect of any salary or emoluments paid to him during the period from 1.10.2005 to 30.6.2006 when he joined his services pursuant to the order of the High Court and date of his superannuation. | 1[ds]16. Interpretation of Section 69 of the Punjab Act came up for consideration in some cases before the Punjab and Haryana High Court. The earliest one being a decision rendered by a Division Bench of the said Court on 24.12.1970 in Hardial Singh, Manager, the Shahabad Farmersg Society Ltd. vs. State of Haryana through Secretary,Haryana, Chandigarh & Ors. [1975 (1) SLR 55], wherein it was opined:This section gives revisional powers to the State Government in cases where no appeal lies under section 68 of the Act and the power is exercisable either suo motu or on the application of a party to a reference. There is no dispute that the State Government did not act suo motu but passed the impugned order on the application of the Manager. From the plain reading of this section, it is clear that such an application could be filed only by a party to a reference. In the instant case, admittedly there was no question of the reference of any dispute for decision to any authority under the Act. The Society or the Manager were not parties to any such reference. It was a simple case where they took disciplinary action against the Manager (Petitioner) who filed an appeal under rule 36 of the Rules on which the Joint Registrar passed an order on 5th March, 197024. Similarly in Raja of Ramnad v. Kamid Rowthen and Ors., 53 Ind App 74=(AIR 1926 PC 22 ) a civil revision petition was considered to be an appropriate form of appeal from the judgment in a suit of small causes nature. A full bench of the Madras High Court in P.P.P. Chidambara Nadar v. C.P.A. Rama Nadar and Ors. A.I.R. 1937 Mad. 385 had to decide whether with reference to Article 182(2) of the Limitation Act, 1908 the term appeal was used in a restrictive sense so as to exclude revision petitions and the expression appellate court was to be confined to a court exercising appellate, as opposed to, revisional powers. After an exhaustive examination of the case law including the decisions of the Privy Council mentioned above the full bench expressed the view that Article 182(2) applied to civil revisions as well and not only to appeals in the narrow sense of that term as used in the Civil Procedure Code. In Secretary of State for India in Council v. British India Steam Navigation Company (1911) 13 Cal LJ. 90 and order passed by the High Court in exercise of its revisional jurisdiction under Section 115, Code of Civil Procedure, was held to be an order made or passed in appeal within the meaning of Section 39 of the Letters Patent, Mookerji, J., who delivered the judgment of the division bench referred to the observations of Lord Westbury in Attorney General v. Sillem (1864) 10 HLC 704 and of Subramania Ayyar, J., in Chappan v. Moidin (1898) ILR 22 Mad. 68 at p.80 (FB) on the true nature of the right of appeal. Such a right was one of entering a superior Court and invoking its aid and interposition to redress the error of the court below. Two things which were required to constitute appellate jurisdiction were the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. In the well known work of Story on Constitution (of United States) vol. 2, Article 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the legislature may choose to prescribe. According to Article 1762 the most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial. A writ of error is a process of common law origin, and it removes nothing forn but the law. The former mode is usually adopted in cases of equity and admiralty jurisdiction; the latter, in suits at common law tried by a jury25. Provisions for appeal or revision provide for statutory remedies. The Appellate Authority or the Revisional Authority can exercise its appellate or revisional jurisdiction provided it would be maintainable in law27. The State cannot exercise its revisional jurisdiction if an appeal lies before it. If an appeal lies, a revision would not lie. Admittedly, the 3rd respondent preferred an appeal before the Registrar. Such an appeal was purported to have been filed from an order passed by the Board. The 3rd respondent did not invoke the provision for arbitration. We have noticed hereinbefore that the disputes and differences between the Society and an employee is referable to arbitration in terms of Section 102 of the Haryana Act. An appeal is maintainable against an award of the Arbitrator before the State. On this ground alone the revision petition was not maintainable. Faced with such a situation, Mr. Gupta contended that no appeal was maintainable before the Registrar. The said contention of Mr. Gupta cannot be accepted for more than one reason. The 3rd respondent himself took recourse to the said remedy. Having taken recourse to the said remedy and having himself invoked Appellate jurisdiction before the Registrar, it does not lie in his mouth to contend that no appeal was maintainable. Before the revisional authority he primarily questioned the order passed by the disciplinary Authority, as also order passed by the Appellate Authority. It had never been the contention of the 3rd respondent that the revision application was filed by him directly against the order passed by the Board of Directors. No revision application would have even then been maintainable. Even if it would be so, the appellant herein was entitled to raise the contention that having regard to the provisions of Section 102 of the Haryana Act, an appeal or a revision was not maintainable. It is now well settled that if an appeal lies, the revisional jurisdiction could not be exercised29. We, therefore, are of the opinion that the order of the state Government having been passed without jurisdiction was a coram non judice34. For the reasons aforementioned we are of the opinion that the High Court was not correct in holding that the State of Haryana was entitled to exercise its revisional jurisdiction in the facts of the present caseWe have been taken to the merit of the matter37. The 3rd respondent has already joined his services pursuant to the judgment of the High Court. He, in the meanwhile, has also superannuated. The questions as to whether during the interregnum he had been gainfully employed or not; or his resignation was rightly refused to be accepted and despite submission of resignation, he did not, in fact, get a job and never joined anywhere else, should, in our opinion, be determined by an appropriate authority. We, therefore, in exercise of our jurisdiction under Article 142 of the Constitution of India direct that the Registrar ofshould arbitrate in the matter and exercise its jurisdiction under Section 102 of the Haryana Act, as if the 3rd respondent has invoked the said jurisdiction. The parties hereto shall file their respective documents before the Registrar within four weeks from the date. The Registrar shall fix a date of hearing and intimate the same to the parties, on which date they may produce their witnesses before him. The 3rd respondent will be entitled to examine himself as a witness38. The Registrar shall consider the matter afresh without in any way being influenced by the report of the Enquiry Officer, the appellate order passed by the Additional Registrar or the revisional order passed by the State. The Registrar,is requested to make an Award within eight weeks from the date of entering into the reference. We furthermore direct that irrespective of the result of the dispute between the appellant and the 3rd respondent, no recovery shall be effected from the 3rd respondent in respect of any salary or emoluments paid to him during the period from 1.10.2005 to 30.6.2006 when he joined his services pursuant to the order of the High Court and date of his superannuation. | 1 | 5,878 | 1,574 | ### 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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12 SCC 764] and Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha & Anr. vs. State of Maharashtra & Ors. [(2001) 8 SCC 509] , also is not applicable. 31. In those decisions it has been held that if the decisions which were operating for a long time should not be disturbed, unless shown palpably wrong. We have noticed hereinbefore that the Punjab Act and Haryana Act are not in pari materia. They contain different provisions. The purport and object of the revisional jurisdiction of the State Government under the Haryana Act is in effect and substance are different from those of the Punjab Act. 32. Furthermore, the doctrine of stare decisis does not contain an inflexible rule. In State of Maharashtra vs. Milind & Ors. [(2001) 1 SCC 4] , a Constitution Bench of this Court opined: .....The rule of stare decisis is not inflexible so as to preclude a departure therefrom in any case but its application depends on facts and circumstances of each case. It is good to proceed from precedent to precedent but it is earlier the better to give quietus to the incorrect one by annulling it to avoid repetition or perpetuation of injustice, hardship and anything ex facie illegal, more particularly when a precedent runs counter to the provisions of the Constitution. The first two decisions were rendered without having the benefit of the decisions of this Court, that too concerning the interpretation of the provisions of the Constitution. The remaining decisions were contrary to the law laid down by this Court. This Court in Maktul v. Manbhari adopting the statement of law found in Halsbury and Corpus Juris Secundum observed thus: But the supreme appellate court will not shirk from overruling a decision, or series of decisions, which establish a doctrine plainly outside the statute and outside the common law, when no title and no contract will be shaken, no persons can complain, and no general course of dealing be altered by the remedy of a mistake. (From Halsbury) Previous decisions should not be followed to the extent that grievous wrong may result; and, accordingly, the courts ordinarily will not adhere to a rule or principle established by previous decisions which they are convinced is erroneous. The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the court, and previous decisions should not be followed to the extent that error may be perpetuated and grievous wrong may result. (From Corpus Juris Secundum) 33. [See also State of Gujarat vs. Mirzapur Moti Kureshi Kassab Jamat and Others [(2005) 8 SCC 534] 34. For the reasons aforementioned we are of the opinion that the High Court was not correct in holding that the State of Haryana was entitled to exercise its revisional jurisdiction in the facts of the present case. 35. The question which, however, arises is whether this Court shall mould the relief. We have been taken to the merit of the matter. We are satisfied that the High Court was right in opining: ...The petitioner has been facing the departmental proceedings since 1996. Even otherwise, it is to be noticed that FIR registered against the petitioner has been quashed by this Court in Crl. Misc. 144 of 2001 in its order dated 11.05.2001. The petitioner has not cared to challenge the aforesaid order before the Supreme Court. In such circumstances, it would be wholly inequitable at this stage to remand the matter back to the enquiry officer. Mr. Malik, then submitted that even if enquiry proceedings are to be quashed, the Respondents could not have been directed to be re-instated in service with full back wages. Respondent No.3 had himself stated that he had got a much better job with better emoluments, status and salary. Learned Counsel for Respondent No.3 has, however, pointed out that on getting the aforesaid job, he had submitted the resignation to the Managing Director of the petitioner. The same was rejected, as such Respondent No.3 was not able to accept the job. 36. It was also held that the inquiry was not properly conducted. 37. The 3rd respondent has already joined his services pursuant to the judgment of the High Court. He, in the meanwhile, has also superannuated. The questions as to whether during the interregnum he had been gainfully employed or not; or his resignation was rightly refused to be accepted and despite submission of resignation, he did not, in fact, get a job and never joined anywhere else, should, in our opinion, be determined by an appropriate authority. We, therefore, in exercise of our jurisdiction under Article 142 of the Constitution of India direct that the Registrar of Co-operative Societies should arbitrate in the matter and exercise its jurisdiction under Section 102 of the Haryana Act, as if the 3rd respondent has invoked the said jurisdiction. The parties hereto shall file their respective documents before the Registrar within four weeks from the date. The Registrar shall fix a date of hearing and intimate the same to the parties, on which date they may produce their witnesses before him. The 3rd respondent will be entitled to examine himself as a witness. 38. The Registrar shall consider the matter afresh without in any way being influenced by the report of the Enquiry Officer, the appellate order passed by the Additional Registrar or the revisional order passed by the State. The Registrar, Co-operative Societies is requested to make an Award within eight weeks from the date of entering into the reference. We furthermore direct that irrespective of the result of the dispute between the appellant and the 3rd respondent, no recovery shall be effected from the 3rd respondent in respect of any salary or emoluments paid to him during the period from 1.10.2005 to 30.6.2006 when he joined his services pursuant to the order of the High Court and date of his superannuation.
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Civil Procedure, was held to be an order made or passed in appeal within the meaning of Section 39 of the Letters Patent, Mookerji, J., who delivered the judgment of the division bench referred to the observations of Lord Westbury in Attorney General v. Sillem (1864) 10 HLC 704 and of Subramania Ayyar, J., in Chappan v. Moidin (1898) ILR 22 Mad. 68 at p.80 (FB) on the true nature of the right of appeal. Such a right was one of entering a superior Court and invoking its aid and interposition to redress the error of the court below. Two things which were required to constitute appellate jurisdiction were the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. In the well known work of Story on Constitution (of United States) vol. 2, Article 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the legislature may choose to prescribe. According to Article 1762 the most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial. A writ of error is a process of common law origin, and it removes nothing forn but the law. The former mode is usually adopted in cases of equity and admiralty jurisdiction; the latter, in suits at common law tried by a jury25. Provisions for appeal or revision provide for statutory remedies. The Appellate Authority or the Revisional Authority can exercise its appellate or revisional jurisdiction provided it would be maintainable in law27. The State cannot exercise its revisional jurisdiction if an appeal lies before it. If an appeal lies, a revision would not lie. Admittedly, the 3rd respondent preferred an appeal before the Registrar. Such an appeal was purported to have been filed from an order passed by the Board. The 3rd respondent did not invoke the provision for arbitration. We have noticed hereinbefore that the disputes and differences between the Society and an employee is referable to arbitration in terms of Section 102 of the Haryana Act. An appeal is maintainable against an award of the Arbitrator before the State. On this ground alone the revision petition was not maintainable. Faced with such a situation, Mr. Gupta contended that no appeal was maintainable before the Registrar. The said contention of Mr. Gupta cannot be accepted for more than one reason. The 3rd respondent himself took recourse to the said remedy. Having taken recourse to the said remedy and having himself invoked Appellate jurisdiction before the Registrar, it does not lie in his mouth to contend that no appeal was maintainable. Before the revisional authority he primarily questioned the order passed by the disciplinary Authority, as also order passed by the Appellate Authority. It had never been the contention of the 3rd respondent that the revision application was filed by him directly against the order passed by the Board of Directors. No revision application would have even then been maintainable. Even if it would be so, the appellant herein was entitled to raise the contention that having regard to the provisions of Section 102 of the Haryana Act, an appeal or a revision was not maintainable. It is now well settled that if an appeal lies, the revisional jurisdiction could not be exercised29. We, therefore, are of the opinion that the order of the state Government having been passed without jurisdiction was a coram non judice34. For the reasons aforementioned we are of the opinion that the High Court was not correct in holding that the State of Haryana was entitled to exercise its revisional jurisdiction in the facts of the present caseWe have been taken to the merit of the matter37. The 3rd respondent has already joined his services pursuant to the judgment of the High Court. He, in the meanwhile, has also superannuated. The questions as to whether during the interregnum he had been gainfully employed or not; or his resignation was rightly refused to be accepted and despite submission of resignation, he did not, in fact, get a job and never joined anywhere else, should, in our opinion, be determined by an appropriate authority. We, therefore, in exercise of our jurisdiction under Article 142 of the Constitution of India direct that the Registrar ofshould arbitrate in the matter and exercise its jurisdiction under Section 102 of the Haryana Act, as if the 3rd respondent has invoked the said jurisdiction. The parties hereto shall file their respective documents before the Registrar within four weeks from the date. The Registrar shall fix a date of hearing and intimate the same to the parties, on which date they may produce their witnesses before him. The 3rd respondent will be entitled to examine himself as a witness38. The Registrar shall consider the matter afresh without in any way being influenced by the report of the Enquiry Officer, the appellate order passed by the Additional Registrar or the revisional order passed by the State. The Registrar,is requested to make an Award within eight weeks from the date of entering into the reference. We furthermore direct that irrespective of the result of the dispute between the appellant and the 3rd respondent, no recovery shall be effected from the 3rd respondent in respect of any salary or emoluments paid to him during the period from 1.10.2005 to 30.6.2006 when he joined his services pursuant to the order of the High Court and date of his superannuation.
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Raj Kumar Vs. Union Of India & Ors | (1) (a) The services of temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant; (b) The period of such notice shall be one month : Provided that the services of any such Government servant may be terminated forthwith and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of the services or as the case may be for the period by which such notice falls short of one month. The effect of this amendment is that on 1st May 1965 as also on 15-6-1971, the date on which the appellants services were terminated forthwith it was not obligatory to pay to him a sum equivalent to the amount of his pay and allowances for the period of the notice at the rate at which he was drawing them immediately before the termination of the services or as the case may be for the period by which such notice falls short. The Government servant concerned is only entitled to claim the sums hereinbefore mentioned. Its effect is that the decision of this Court in Gopinaths case (1972) 3 SCR 530 = (AIR 1972 SC 1487 = 1972 Lab IC 826) (supra) is no longer good law. There is no doubt that this rule is a valid rule because it is now well established that rules made under the proviso to Article 309 of the Constitution are legislative in character and therefore can be given effect to retrospectively. It follows that the decision of the Delhi High Court dismissing the appellants writ petition is correct and this appeal will have to be dismissed. 3. But it was argued by Mr. Bhandare appearing on behalf of the appellant that there is no validating provision in the rule as now amended and therefore the intention of the Government in making the amendment cannot be validly given effect to. For this purpose he relied upon the decision of this Court in Prithvi Mills v. Broach Municipality, 1970 (l) SCR 388 = (AIR 1970 SC 192 ) and in particular the following observations therein : Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes the legislature gives its own meaning and interpretation of the law under which the tax was collected and by legislative fiat makes the new meaning binding upon courts. The legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the court which becomes ineffective after the change of the law. Whichever method is adopted it must be within the competence of the legislature and legal and adequate to attain the object of validation. If the legislature has the power over the subject-matter and competence to make a valid law it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. This argument proceeds upon a miscomprehension of the above observation and the effect of a validating statute. Once a law is given retrospective effect as from a particular date all actions taken under the Act even before the amendment was made would be deemed to have been taken under the Act as amended and there could be really no question of having to validate any action already taken provided it is subsequent to the date from which the amendment is given retrospective effect. The question of the particular form of the validation would always depend on the circumstances of a case and no general for mula can be devised for all circumstances. It is enough to say that in the present case the action taken against the appellant was on a date subsequent to the date on which the amended rule takes effect and therefore that action being in accordance with the amended rule is legally a valid action and there is no need to have a validating provision in respect thereof. 4. It was then argued by Mr. Bhandare that the matter has been disposed of in limine by the High Court and there are certain other aspects which may have to be considered, and therefore the appeal should not be dismissed but that the writ petition should be directed to be disposed of afresh by the Delhi High Court after considering the other questions raised in the writ petition. There are only two questions raised by the petitioner in his writ petition. One is that certain persons junior to him have been continued in service while his services have been terminated and that it offends Article 14.The termination of the appellants services was not on the ground of retrenchment. The question of offending Article 14 does not therefore arise. When action is taken against him under the relevant rules which enable the authorities concerned to terminate this temporary service without assigning any reason the Court would not go into the reasons which led to the appellants services being terminated. The other point raised in the writ petition is that action terminating the appellants services was male fide. We see no substance in this contention. The action is said to be male fide because after, the appellants services were terminated certain other persons have been appointed. It is not alleged that those persons exercised the it influence and had the petitioners services terminated in order to provide them with posts. Naturally when a vacancy arises by the termination of services of an employee other persons would have to be appointed to take his place. This would not show any mala fides. | 0[ds]The effect of this amendment is that on 1st May 1965 as also on 15-6-1971, the date on which the appellants services were terminated forthwith it was not obligatory to pay to him a sum equivalent to the amount of his pay and allowances for the period of the notice at the rate at which he was drawing them immediately before the termination of the services or as the case may be for the period by which such notice falls short. The Government servant concerned is only entitled to claim the sums hereinbefore mentioned. Its effect is that the decision of this Court in Gopinaths case (1972) 3 SCR 530 = (AIR 1972 SC 1487 = 1972 Lab IC 826) (supra) is no longer good law. There is no doubt that this rule is a valid rule because it is now well established that rules made under the proviso to Article 309 of the Constitution are legislative in character and therefore can be given effect to retrospectively. It follows that the decision of the Delhi High Court dismissing the appellants writ petition is correct and this appeal will have to be dismissedThis argument proceeds upon a miscomprehension of the above observation and the effect of a validating statute. Once a law is given retrospective effect as from a particular date all actions taken under the Act even before the amendment was made would be deemed to have been taken under the Act as amended and there could be really no question of having to validate any action already taken provided it is subsequent to the date from which the amendment is given retrospective effect. The question of the particular form of the validation would always depend on the circumstances of a case and no general for mula can be devised for all circumstances. It is enough to say that in the present case the action taken against the appellant was on a date subsequent to the date on which the amended rule takes effect and therefore that action being in accordance with the amended rule is legally a valid action and there is no need to have a validating provision in respect thereofWe see no substance in this contention. The action is said to be male fide because after, the appellants services were terminated certain other persons have been appointed. It is not alleged that those persons exercised the it influence and had the petitioners services terminated in order to provide them with posts. Naturally when a vacancy arises by the termination of services of an employee other persons would have to be appointed to take his place. This would not show any mala fides2. It was not brought to the notice of the High Court that the proviso toe (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules l965 had been amended with retrospective effect from 1st May, 1965. The rule as now amended reads:5. Termination of temporary service(1) (a) The services of temporary Government servant who is not int service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant;(b) The period of such notice shall be one month :Provided that the services of any such Government servant may be terminated forthwith and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of the services or as the case may be for the period by which such notice falls short of one monthThe effect of this amendment is that on 1st May 1965 as also on, the date on which the appellants services were terminated forthwith it was not obligatory to pay to him a sum equivalent to the amount of his pay and allowances for the period of the notice at the rate at which he was drawing them immediately before the termination of the services or as the case may be for the period by which such notice falls short. The Government servant concerned is only entitled to claim the sums hereinbefore mentioned. Its effect is that the decision of this Court in Gopinaths case (1972) 3 SCR 530 = (AIR 1972 SC 1487 = 1972 Lab IC 826) (supra) is no longer good law. There is no doubt that this rule is a valid rule because it is now well established that rules made under the proviso to Article 309 of the Constitution are legislative in character and therefore can be given effect to retrospectively. It follows that the decision of the Delhi High Court dismissing the appellants writ petition is correct and this appeal will have to be | 0 | 1,341 | 864 | ### 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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(1) (a) The services of temporary Government servant who is not in quasi-permanent service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant; (b) The period of such notice shall be one month : Provided that the services of any such Government servant may be terminated forthwith and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of the services or as the case may be for the period by which such notice falls short of one month. The effect of this amendment is that on 1st May 1965 as also on 15-6-1971, the date on which the appellants services were terminated forthwith it was not obligatory to pay to him a sum equivalent to the amount of his pay and allowances for the period of the notice at the rate at which he was drawing them immediately before the termination of the services or as the case may be for the period by which such notice falls short. The Government servant concerned is only entitled to claim the sums hereinbefore mentioned. Its effect is that the decision of this Court in Gopinaths case (1972) 3 SCR 530 = (AIR 1972 SC 1487 = 1972 Lab IC 826) (supra) is no longer good law. There is no doubt that this rule is a valid rule because it is now well established that rules made under the proviso to Article 309 of the Constitution are legislative in character and therefore can be given effect to retrospectively. It follows that the decision of the Delhi High Court dismissing the appellants writ petition is correct and this appeal will have to be dismissed. 3. But it was argued by Mr. Bhandare appearing on behalf of the appellant that there is no validating provision in the rule as now amended and therefore the intention of the Government in making the amendment cannot be validly given effect to. For this purpose he relied upon the decision of this Court in Prithvi Mills v. Broach Municipality, 1970 (l) SCR 388 = (AIR 1970 SC 192 ) and in particular the following observations therein : Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. Sometimes the legislature gives its own meaning and interpretation of the law under which the tax was collected and by legislative fiat makes the new meaning binding upon courts. The legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the court which becomes ineffective after the change of the law. Whichever method is adopted it must be within the competence of the legislature and legal and adequate to attain the object of validation. If the legislature has the power over the subject-matter and competence to make a valid law it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. This argument proceeds upon a miscomprehension of the above observation and the effect of a validating statute. Once a law is given retrospective effect as from a particular date all actions taken under the Act even before the amendment was made would be deemed to have been taken under the Act as amended and there could be really no question of having to validate any action already taken provided it is subsequent to the date from which the amendment is given retrospective effect. The question of the particular form of the validation would always depend on the circumstances of a case and no general for mula can be devised for all circumstances. It is enough to say that in the present case the action taken against the appellant was on a date subsequent to the date on which the amended rule takes effect and therefore that action being in accordance with the amended rule is legally a valid action and there is no need to have a validating provision in respect thereof. 4. It was then argued by Mr. Bhandare that the matter has been disposed of in limine by the High Court and there are certain other aspects which may have to be considered, and therefore the appeal should not be dismissed but that the writ petition should be directed to be disposed of afresh by the Delhi High Court after considering the other questions raised in the writ petition. There are only two questions raised by the petitioner in his writ petition. One is that certain persons junior to him have been continued in service while his services have been terminated and that it offends Article 14.The termination of the appellants services was not on the ground of retrenchment. The question of offending Article 14 does not therefore arise. When action is taken against him under the relevant rules which enable the authorities concerned to terminate this temporary service without assigning any reason the Court would not go into the reasons which led to the appellants services being terminated. The other point raised in the writ petition is that action terminating the appellants services was male fide. We see no substance in this contention. The action is said to be male fide because after, the appellants services were terminated certain other persons have been appointed. It is not alleged that those persons exercised the it influence and had the petitioners services terminated in order to provide them with posts. Naturally when a vacancy arises by the termination of services of an employee other persons would have to be appointed to take his place. This would not show any mala fides.
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0
### Explanation:
The effect of this amendment is that on 1st May 1965 as also on 15-6-1971, the date on which the appellants services were terminated forthwith it was not obligatory to pay to him a sum equivalent to the amount of his pay and allowances for the period of the notice at the rate at which he was drawing them immediately before the termination of the services or as the case may be for the period by which such notice falls short. The Government servant concerned is only entitled to claim the sums hereinbefore mentioned. Its effect is that the decision of this Court in Gopinaths case (1972) 3 SCR 530 = (AIR 1972 SC 1487 = 1972 Lab IC 826) (supra) is no longer good law. There is no doubt that this rule is a valid rule because it is now well established that rules made under the proviso to Article 309 of the Constitution are legislative in character and therefore can be given effect to retrospectively. It follows that the decision of the Delhi High Court dismissing the appellants writ petition is correct and this appeal will have to be dismissedThis argument proceeds upon a miscomprehension of the above observation and the effect of a validating statute. Once a law is given retrospective effect as from a particular date all actions taken under the Act even before the amendment was made would be deemed to have been taken under the Act as amended and there could be really no question of having to validate any action already taken provided it is subsequent to the date from which the amendment is given retrospective effect. The question of the particular form of the validation would always depend on the circumstances of a case and no general for mula can be devised for all circumstances. It is enough to say that in the present case the action taken against the appellant was on a date subsequent to the date on which the amended rule takes effect and therefore that action being in accordance with the amended rule is legally a valid action and there is no need to have a validating provision in respect thereofWe see no substance in this contention. The action is said to be male fide because after, the appellants services were terminated certain other persons have been appointed. It is not alleged that those persons exercised the it influence and had the petitioners services terminated in order to provide them with posts. Naturally when a vacancy arises by the termination of services of an employee other persons would have to be appointed to take his place. This would not show any mala fides2. It was not brought to the notice of the High Court that the proviso toe (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules l965 had been amended with retrospective effect from 1st May, 1965. The rule as now amended reads:5. Termination of temporary service(1) (a) The services of temporary Government servant who is not int service shall be liable to termination at any time by a notice in writing given either by the Government servant to the appointing authority or by the appointing authority to the Government servant;(b) The period of such notice shall be one month :Provided that the services of any such Government servant may be terminated forthwith and on such termination the Government servant shall be entitled to claim a sum equivalent to the amount of his pay plus allowances for the period of the notice at the same rates at which he was drawing them immediately before the termination of the services or as the case may be for the period by which such notice falls short of one monthThe effect of this amendment is that on 1st May 1965 as also on, the date on which the appellants services were terminated forthwith it was not obligatory to pay to him a sum equivalent to the amount of his pay and allowances for the period of the notice at the rate at which he was drawing them immediately before the termination of the services or as the case may be for the period by which such notice falls short. The Government servant concerned is only entitled to claim the sums hereinbefore mentioned. Its effect is that the decision of this Court in Gopinaths case (1972) 3 SCR 530 = (AIR 1972 SC 1487 = 1972 Lab IC 826) (supra) is no longer good law. There is no doubt that this rule is a valid rule because it is now well established that rules made under the proviso to Article 309 of the Constitution are legislative in character and therefore can be given effect to retrospectively. It follows that the decision of the Delhi High Court dismissing the appellants writ petition is correct and this appeal will have to be
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State of Maharashtra and Others Vs. Shri V. S. Naik | on which he is required to retire while note (1) indicates in what circumstances the said power could be exercised by the State Government and its says that the said power should be restricted to retirement of the employeeon public grounds, such as, impairment of efficiency of a government servant against whom it is not desirable to make a formal charge of inefficiency or a government servant ceasing to be fully efficient but not to such a degree as to warrant his retirement on compassionate pension. User of the expression "such as" which follows the expression "public grounds" clearly shows that the two categories of public ground are illustrative and not exhaustive. It is difficult to appreciate how in face of such language the High Court could take the view (which has been expressed at not less than three places in the judgment) that the public grounds on which a government servant may be retired under the Rule were restricted only to two categories of cases specified therein and that there was no other category in which recourse to the power of compulsory retirement could be taken under this Rule. Similarly it is difficult to appreciate how the High Court has taken the view that where a government servant is sought to be retired for impairment of his efficiency under this Rule, an additional reason was required to be stated before passing the order of compulsory retirement, namely, that it was not desirable to make a formal charge of inefficiency against him. Note (1) clearly stated that the exact reason should be recorded in writing in each case and in the instance case the exact reason has been recorded in the noting made in the file concerning the respondent, namely, "for impairment of his efficiency in the work assigned to him". In other words, the impairment of efficiency of the respondent in the work assigned to him was the reason why he was sought to be compulsorily retired on public ground. Whether it was desirable or not to make a formal charge of inefficiency against him cannot be said to be any additional reason required to be stated. It would merely be an opinion formed by the authorities concerned that it was not desirable to level a formal charge of inefficiency against him; the formation of such opinion was not the reason for directing compulsory retirement. Presumably, after qualifying service of 30 years had been put in by the respondent the authorities concerned formed the opinion that it would not be desirable to level a charge of inefficiency against him, so that the respondent could earn his full pension which entitlement would have been thrown in jeopardy if an inquiry on a charge of inefficiency were to be launched against him. In our view, therefore, the impugned notice-cum-order dated October 3, 1975 compulsorily retiring the respondent with effect from January 10, 1976 was in strict and full compliance of Rule 8, note (1) of the Revised Pension Rules, 1950 and the compulsory retirement of the respondent cannot be struck down on this ground. 7. We have already stated that in the view the High Court took on the main point discussed above, it did not deal with or discuss the other grounds on which the respondent sought to challenge his compulsory retirement under the impugned notice-cum-order dated October 3, 1975. Since we reached a contrary conclusion on that point, we asked counsel whether the matter should be remanded or we should hear the other grounds of challenge and dispose of the matter finally and counsel for both the parties agreed to the latter course being followed. 8. Out of the several other grounds on which the impugned notice-cum-order dated October 3, 1975 was challenged by the respondent before the High Court, counsel for the respondent pressed only one ground before us, namely, that the impugned notice-cum-order had been issued mala fide and in that behalf took us through the entire material available on record, particularly the letter dated February 29, 1973 addressed by the respondent to the Secretary, Industries and Labour Department Sachivalaya, Bombay complaining about the harassment meted out by Shri Shinde, the Register of Firm to the employees of the office including the respondent and counsel urged that Shri Shinde was always acting against the interest of the respondent, had spoiled his confidential record on the basis of which the ultimate action of compulsorily retiring him was taken and as such the same, having been taken mala fide was liable to be struck down. It is impossible to accept this contention for reasons we briefly indicate. May be, the respondent had some grievances against Shri Shinde - we have not investigated whether they were frivolous or justified but we proceed on the assumption that he had justifiable grievances against Shri Sinde - but what about the respondents confidentials prior to Shri Shindes joining as Registrar of Firms in September 1970 ? We have gone through his confidential reports from 1965-66 to 1969-70 and these are far from complimentary to him. The material on record also shows that right from 1948 down to 1974-75 there were adverse remarks made against him which were duly communicated to him from time to time and in 1961 as a result of departmental enquiry held against him and the finding recorded therein his increment was withheld for one year. The record shows no improvement but persistent deterioration in his efficiency. It was by reason of such record for several years that the impugned decision was taken. Further, the impugned action came to be suggested by Shri Palande, Industries Commissioner and Director of Industries on an overall consideration of the respondents record and not by Shri Shinde and ultimately the State Government took the decision to retire the respondent under Rule 8. It is difficult to shift the mala fides, if any, of Shri Shinde and ascribe them to the Industries Commissioner against whom the respondent has no grievance whatever. This challenge, therefore, fails. | 1[ds]4. It is an admitted position that the impugnedr dated October 3, 1975 compulsorily retiring the respondent with effect from January 10, 1976 was issued under the aforesaid Rule 8 read with note (1). It is further admitted that the impugnedr was served on the respondent giving him full three months before the date on which he was asked to retire. It is also not disputed that the saidr merely stated that the respondent was being retired on public ground but no specific ground or reason was indicated therein but that is not the requirement of Rule 8 read with note (1). The only requirement of note (1) is that the exact reason should be recorded in writing in each case, presumably in the concerned file dealing with the servant or somewhere before notice under Rule 8 is issued. In other words, whenever challenged, the State Government must be in a position to produce before the court the recorded reasons for ordering the compulsory retirement of a government servant under the Rule. In the instant case, the State Government was directed by the court to give inspection to the respondent of all the relevant records and pursuant to the directions, the respondent took inspection of the relevant documents and it was found by him that on one of the documents the following noting had been made under dated September 24, 1975 :We may serve a notice of retirement on Public grounds on Shri Naik, Head Clerk under Rule 8, note (1) of the Revised Pensions Rules, 1950, for impairment of his efficiency in the work assigned to him; vide ILD file kept below6. In our view, the judgment of the High Court suffers from two infirmities which we will presently indicate. Rule 8 confers power upon the State Government to retire a government servant at any time after he has completed 30 years of qualifying service for pension by serving upon him written notice at least 3 months before the date on which he is required to retire while note (1) indicates in what circumstances the said power could be exercised by the State Government and its says that the said power should be restricted to retirement of the employeeon public grounds, such as, impairment of efficiency of a government servant against whom it is not desirable to make a formal charge of inefficiency or a government servant ceasing to be fully efficient but not to such a degree as to warrant his retirement on compassionate pensionWe have gone through his confidential reports from6 to0 and these are far from complimentary to him. The material on record also shows that right from 1948 down to5 there were adverse remarks made against him which were duly communicated to him from time to time and in 1961 as a result of departmental enquiry held against him and the finding recorded therein his increment was withheld for one year. The record shows no improvement but persistent deterioration in his efficiency. It was by reason of such record for several years that the impugned decision was taken. Further, the impugned action came to be suggested by Shri Palande, Industries Commissioner and Director of Industries on an overall consideration of the respondents record and not by Shri Shinde and ultimately the State Government took the decision to retire the respondent under Rule 8. It is difficult to shift the mala fides, if any, of Shri Shinde and ascribe them to the Industries Commissioner against whom the respondent has no grievance whatever. This challenge, therefore, fails. | 1 | 2,334 | 642 | ### 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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on which he is required to retire while note (1) indicates in what circumstances the said power could be exercised by the State Government and its says that the said power should be restricted to retirement of the employeeon public grounds, such as, impairment of efficiency of a government servant against whom it is not desirable to make a formal charge of inefficiency or a government servant ceasing to be fully efficient but not to such a degree as to warrant his retirement on compassionate pension. User of the expression "such as" which follows the expression "public grounds" clearly shows that the two categories of public ground are illustrative and not exhaustive. It is difficult to appreciate how in face of such language the High Court could take the view (which has been expressed at not less than three places in the judgment) that the public grounds on which a government servant may be retired under the Rule were restricted only to two categories of cases specified therein and that there was no other category in which recourse to the power of compulsory retirement could be taken under this Rule. Similarly it is difficult to appreciate how the High Court has taken the view that where a government servant is sought to be retired for impairment of his efficiency under this Rule, an additional reason was required to be stated before passing the order of compulsory retirement, namely, that it was not desirable to make a formal charge of inefficiency against him. Note (1) clearly stated that the exact reason should be recorded in writing in each case and in the instance case the exact reason has been recorded in the noting made in the file concerning the respondent, namely, "for impairment of his efficiency in the work assigned to him". In other words, the impairment of efficiency of the respondent in the work assigned to him was the reason why he was sought to be compulsorily retired on public ground. Whether it was desirable or not to make a formal charge of inefficiency against him cannot be said to be any additional reason required to be stated. It would merely be an opinion formed by the authorities concerned that it was not desirable to level a formal charge of inefficiency against him; the formation of such opinion was not the reason for directing compulsory retirement. Presumably, after qualifying service of 30 years had been put in by the respondent the authorities concerned formed the opinion that it would not be desirable to level a charge of inefficiency against him, so that the respondent could earn his full pension which entitlement would have been thrown in jeopardy if an inquiry on a charge of inefficiency were to be launched against him. In our view, therefore, the impugned notice-cum-order dated October 3, 1975 compulsorily retiring the respondent with effect from January 10, 1976 was in strict and full compliance of Rule 8, note (1) of the Revised Pension Rules, 1950 and the compulsory retirement of the respondent cannot be struck down on this ground. 7. We have already stated that in the view the High Court took on the main point discussed above, it did not deal with or discuss the other grounds on which the respondent sought to challenge his compulsory retirement under the impugned notice-cum-order dated October 3, 1975. Since we reached a contrary conclusion on that point, we asked counsel whether the matter should be remanded or we should hear the other grounds of challenge and dispose of the matter finally and counsel for both the parties agreed to the latter course being followed. 8. Out of the several other grounds on which the impugned notice-cum-order dated October 3, 1975 was challenged by the respondent before the High Court, counsel for the respondent pressed only one ground before us, namely, that the impugned notice-cum-order had been issued mala fide and in that behalf took us through the entire material available on record, particularly the letter dated February 29, 1973 addressed by the respondent to the Secretary, Industries and Labour Department Sachivalaya, Bombay complaining about the harassment meted out by Shri Shinde, the Register of Firm to the employees of the office including the respondent and counsel urged that Shri Shinde was always acting against the interest of the respondent, had spoiled his confidential record on the basis of which the ultimate action of compulsorily retiring him was taken and as such the same, having been taken mala fide was liable to be struck down. It is impossible to accept this contention for reasons we briefly indicate. May be, the respondent had some grievances against Shri Shinde - we have not investigated whether they were frivolous or justified but we proceed on the assumption that he had justifiable grievances against Shri Sinde - but what about the respondents confidentials prior to Shri Shindes joining as Registrar of Firms in September 1970 ? We have gone through his confidential reports from 1965-66 to 1969-70 and these are far from complimentary to him. The material on record also shows that right from 1948 down to 1974-75 there were adverse remarks made against him which were duly communicated to him from time to time and in 1961 as a result of departmental enquiry held against him and the finding recorded therein his increment was withheld for one year. The record shows no improvement but persistent deterioration in his efficiency. It was by reason of such record for several years that the impugned decision was taken. Further, the impugned action came to be suggested by Shri Palande, Industries Commissioner and Director of Industries on an overall consideration of the respondents record and not by Shri Shinde and ultimately the State Government took the decision to retire the respondent under Rule 8. It is difficult to shift the mala fides, if any, of Shri Shinde and ascribe them to the Industries Commissioner against whom the respondent has no grievance whatever. This challenge, therefore, fails.
### Response:
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### Explanation:
4. It is an admitted position that the impugnedr dated October 3, 1975 compulsorily retiring the respondent with effect from January 10, 1976 was issued under the aforesaid Rule 8 read with note (1). It is further admitted that the impugnedr was served on the respondent giving him full three months before the date on which he was asked to retire. It is also not disputed that the saidr merely stated that the respondent was being retired on public ground but no specific ground or reason was indicated therein but that is not the requirement of Rule 8 read with note (1). The only requirement of note (1) is that the exact reason should be recorded in writing in each case, presumably in the concerned file dealing with the servant or somewhere before notice under Rule 8 is issued. In other words, whenever challenged, the State Government must be in a position to produce before the court the recorded reasons for ordering the compulsory retirement of a government servant under the Rule. In the instant case, the State Government was directed by the court to give inspection to the respondent of all the relevant records and pursuant to the directions, the respondent took inspection of the relevant documents and it was found by him that on one of the documents the following noting had been made under dated September 24, 1975 :We may serve a notice of retirement on Public grounds on Shri Naik, Head Clerk under Rule 8, note (1) of the Revised Pensions Rules, 1950, for impairment of his efficiency in the work assigned to him; vide ILD file kept below6. In our view, the judgment of the High Court suffers from two infirmities which we will presently indicate. Rule 8 confers power upon the State Government to retire a government servant at any time after he has completed 30 years of qualifying service for pension by serving upon him written notice at least 3 months before the date on which he is required to retire while note (1) indicates in what circumstances the said power could be exercised by the State Government and its says that the said power should be restricted to retirement of the employeeon public grounds, such as, impairment of efficiency of a government servant against whom it is not desirable to make a formal charge of inefficiency or a government servant ceasing to be fully efficient but not to such a degree as to warrant his retirement on compassionate pensionWe have gone through his confidential reports from6 to0 and these are far from complimentary to him. The material on record also shows that right from 1948 down to5 there were adverse remarks made against him which were duly communicated to him from time to time and in 1961 as a result of departmental enquiry held against him and the finding recorded therein his increment was withheld for one year. The record shows no improvement but persistent deterioration in his efficiency. It was by reason of such record for several years that the impugned decision was taken. Further, the impugned action came to be suggested by Shri Palande, Industries Commissioner and Director of Industries on an overall consideration of the respondents record and not by Shri Shinde and ultimately the State Government took the decision to retire the respondent under Rule 8. It is difficult to shift the mala fides, if any, of Shri Shinde and ascribe them to the Industries Commissioner against whom the respondent has no grievance whatever. This challenge, therefore, fails.
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Commissioner of Income Tax. Bombay Vs. Indian Engineering and Commercial Corporation Pvt | by the assessee of any sum in respect of any obligation which, but for such payment, would have been payable by the employee, and(v) payment by the assessee of any sum whether directly or through a fund. other than a recognised pro vident fund or an approved superannuation fund. to effect an assurance on the life of the employee or to effect a contract for in annuity." 6. Incidentally Section 40 (A) (5) which was inserted repealing sect ion 10 (a) (v) his itself been deleted with effect from April 1, 1989 by the Direct Tax Laws (Amendment) Act, 1987. The sister provision contained in sub-clauses (i) and (ii) of clause (c) of section 40. applicable to directors of a company (and other persons mentioned therein) has also been deleted by the very same enactment with effect from April 1. 1989. 7. Since the relevant provisions in section 40 (a) (v) and 40 (A) (5) are substantially similar. we smile consider the language employed in the latter provision. Sub-clause (5) of section 40 (A) is applicable in the following Situations:(1) Where the assessee incurs any expenditure which results directed or indirectly in the payment of any salary to in employee or it former employee or(2) Where the assessee incurs any expenditure which results directly or indirectly in the provision of any perquisite (whether convertible into money or not to an employee; (3) (it) Where the assessee incurs directly or indirectly any expenditure or provides an allowance in respect of any assets of the assessee used by the employee either wholly or partly for his own purpose or benefit;(b)Where an employee of the assessee is provided any allowance ("entitled to any allowance") in respect of any assets of the assessee used by such employee either wholly or partly for his own purposes or benefit. 8. In either of these situations, so much of such expenditure or allowance as is in excess of the limits specified will not be allowed a s a deduction. The question is whether the commission paid to its directors/employees on the sales effected by the assessee falls within any of the situations/clauses mentioned above. The Revenue relies upon the second one among them. According to them, the commission paid is a perquisite. which submission they say is borne out by the words within the brackets " whether convertible into money or not" immediately following the word "perquisite". On the other hand the contention of the assesses which his been accepted by the A.A.C. and situations/clauses contemplated by sub-section 5. Having regard to the language employed in clause (c) we are inclined to agree with the assessee. The language of sub- section (5) is significant. The first two situations, as we have called them start with the words "where the assessee incurs any expenditure which results directly or indirectly.................It is difficult to say that payment of a certain cash amount by way of commission on sales directly to an employee can be said to fall within the words "where the assessee incurs any expenditure which results directly or indirectly". Such a payment cannot also fall within the two sub-clauses of clause (3) in our analysis-since they speak of an expenditure or allowance in respect of any assents of the assesee used by the employee.Learned counsel for the Revenue. Shri Manchanda argued that the words "whether convertible into money or not" bring out the intention of the Parliament and support his contention. 9. He says, there is no reason not to include cash payment within the ambit of sub-section(5) to Section 40 (A). We are, however. not concerned with the generality of cash payments but only with the payment concerned herein. Reading, the Sub-section as a whole and having regard to the language employed therein, the Tribunal is that Such cash payment does not fall within any of the payment concerned herein does not fit into it. The employees concerned herein also happen to be directors. The provision in clause (c) of Section 40 applies to directors among others. Of course. Section 40 (A) (5) is applicable only to companies where as Section 40 (A) (5) is applicable to employees whether of companies or others. In the case of directors, who are also employees, both the provisions will be attracted- the higher of the two ceilings has to be applied. 10. The learned counsel for the respondent-assessee brought to our notice it circular issued by the Central Board of direct Taxes which inter alia say. "its read is payment of commission to the employees the question whether it forms part of salary or perquisite has to he decided on the acts of each case. If the terms and conditions of service are such that commission is paid not as a bounty or benefit but is paid , is part and parcel of the remuneration for the service renders by the employees. such payment par take the nature of salary rather than as a benefit or perquisite.If, however, on terms and conditions of service either there is no obligation for the employer to pay the commission or it is a matter purely in the discretion of the employer, such payment should he treated , is a benefit by way of addition to salary rattler thin in lieu of salary." It is not necessary for us to make any comment on the said circular. 11. For the above reasons. we are of the opinion that the High Court was justified refusing to direct the Tribunal to state question (1) and (2) under section 256 (2). 12. So far its question No.3 is concerned, it his not been seriously pressed before us having regard to the smallness of the amount involved. It is also stated that the said question is pending consideration is a batch of appeals before this Court. We do not propose to express any opinion on question No. 3 for the reason that the amount involved is quite small having regard to the income of the assessee- respondent. 13. | 0[ds]Incidentally Section 40 (A) (5) which was inserted repealing sect ion 10 (a) (v) his itself been deleted with effect from April 1, 1989 by the Direct Tax Laws (Amendment) Act, 1987. The sister provision contained in sub-clauses (i) and (ii) of clause (c)section 40. applicable to directors of a company (and other persons mentioned therein) has also been deleted by the very same enactment with effect from April 1.the relevant provisions in section 40 (a) (v) and 40 (A) (5) are substantially similar. we smile consider the language employed in the latter provision. Sub-clause (5) of section 40 (A) is applicable in the following Situations:(1) Where the assessee incurs any expenditure which results directed or indirectly in the payment of any salary to in employee or it former employee or(2) Where the assessee incurs any expenditure which results directly or indirectly in the provision of any perquisite (whether convertible into money or not to an employee; (3) (it) Where the assessee incurs directly or indirectly any expenditure or provides an allowance in respect of any assets of the assessee used by the employee either wholly or partly for his own purpose or benefit;(b)Where an employee of the assessee is provided any allowance ("entitled to any allowance") in respect of any assets of the assessee used by such employee either wholly or partly for his own purposes oreither of these situations, so much of such expenditure or allowance as is in excess of the limits specified will not be allowed a s a deduction. The question is whether the commission paid to its directors/employees on the sales effected by the assessee falls within any of the situations/clauses mentioned above. The Revenue relies upon the second one among them. According to them, the commission paid is a perquisite. which submission they say is borne out by the words within the brackets " whether convertible into money or not" immediately following the word "perquisite". On the other hand the contention of the assesses which his been accepted by the A.A.C. and situations/clauses contemplated by sub-section 5. Having regard to the language employed in clause (c) we are inclined to agree with the assessee. The language of sub- section (5) is significant. The first two situations, as we have called them start with the words "where the assessee incurs any expenditure which results directly or indirectly.................It is difficult to say that payment of a certain cash amount by way of commission on sales directly to an employee can be said to fall within the words "where the assessee incurs any expenditure which results directly or indirectly". Such a payment cannot also fall within the two sub-clauses of clause (3) in our analysis-since they speak of an expenditure or allowance in respect of any assents of the assesee used by the employee.Learned counsel for the Revenue. Shri Manchanda argued that the words "whether convertible into money or not" bring out the intention of the Parliament and support hissays, there is no reason not to include cash payment within the ambit of sub-section(5) to Section 40 (A). We are, however. not concerned with the generality of cash payments but only with the payment concerned herein. Reading, the Sub-section as a whole and having regard to the language employed therein, the Tribunal is that Such cash payment does not fall within any ofconcerned herein does not fit into it. The employees concerned herein also happen to be directors. The provision in clause (c) of Section 40 applies to directors among others. Of course. Section 40 (A) (5) is applicable only to companies where as Section 40 (A) (5) is applicable to employees whether of companies or others. In the case of directors, who are also employees, both the provisions will be attracted- the higher of the two ceilings has to belearned counsel for the respondent-assessee brought to our notice it circular issued by the Central Board of direct Taxes which inter aliaread is payment of commission to the employees the question whether it forms part of salary or perquisite has to he decided on the acts of each case. If the terms and conditions of service are such that commission is paid not as a bounty or benefit but is paid , is part and parcel of the remuneration for the service renders by the employees. such payment par take the nature of salary rather than as a benefit or perquisite.If, however, on terms and conditions of service either there is no obligation for the employer to pay the commission or it is a matter purely in the discretion of the employer, such payment should he treated , is a benefit by way of addition to salary rattler thin in lieu of salary."is not necessary for us to make any comment on the saidthe above reasons. we are of the opinion that the High Court was justified refusing to direct the Tribunal to state question (1) and (2) under section 256far its question No.3 is concerned, it his not been seriously pressed before us having regard to the smallness of the amount involved. It is also stated that the said question is pending consideration is a batch of appeals before this Court. We do not propose to express anyquestion No. 3 for the reason that the amount involved is quite small having regard to the income of the assessee- respondent. | 0 | 2,476 | 1,034 | ### 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:
by the assessee of any sum in respect of any obligation which, but for such payment, would have been payable by the employee, and(v) payment by the assessee of any sum whether directly or through a fund. other than a recognised pro vident fund or an approved superannuation fund. to effect an assurance on the life of the employee or to effect a contract for in annuity." 6. Incidentally Section 40 (A) (5) which was inserted repealing sect ion 10 (a) (v) his itself been deleted with effect from April 1, 1989 by the Direct Tax Laws (Amendment) Act, 1987. The sister provision contained in sub-clauses (i) and (ii) of clause (c) of section 40. applicable to directors of a company (and other persons mentioned therein) has also been deleted by the very same enactment with effect from April 1. 1989. 7. Since the relevant provisions in section 40 (a) (v) and 40 (A) (5) are substantially similar. we smile consider the language employed in the latter provision. Sub-clause (5) of section 40 (A) is applicable in the following Situations:(1) Where the assessee incurs any expenditure which results directed or indirectly in the payment of any salary to in employee or it former employee or(2) Where the assessee incurs any expenditure which results directly or indirectly in the provision of any perquisite (whether convertible into money or not to an employee; (3) (it) Where the assessee incurs directly or indirectly any expenditure or provides an allowance in respect of any assets of the assessee used by the employee either wholly or partly for his own purpose or benefit;(b)Where an employee of the assessee is provided any allowance ("entitled to any allowance") in respect of any assets of the assessee used by such employee either wholly or partly for his own purposes or benefit. 8. In either of these situations, so much of such expenditure or allowance as is in excess of the limits specified will not be allowed a s a deduction. The question is whether the commission paid to its directors/employees on the sales effected by the assessee falls within any of the situations/clauses mentioned above. The Revenue relies upon the second one among them. According to them, the commission paid is a perquisite. which submission they say is borne out by the words within the brackets " whether convertible into money or not" immediately following the word "perquisite". On the other hand the contention of the assesses which his been accepted by the A.A.C. and situations/clauses contemplated by sub-section 5. Having regard to the language employed in clause (c) we are inclined to agree with the assessee. The language of sub- section (5) is significant. The first two situations, as we have called them start with the words "where the assessee incurs any expenditure which results directly or indirectly.................It is difficult to say that payment of a certain cash amount by way of commission on sales directly to an employee can be said to fall within the words "where the assessee incurs any expenditure which results directly or indirectly". Such a payment cannot also fall within the two sub-clauses of clause (3) in our analysis-since they speak of an expenditure or allowance in respect of any assents of the assesee used by the employee.Learned counsel for the Revenue. Shri Manchanda argued that the words "whether convertible into money or not" bring out the intention of the Parliament and support his contention. 9. He says, there is no reason not to include cash payment within the ambit of sub-section(5) to Section 40 (A). We are, however. not concerned with the generality of cash payments but only with the payment concerned herein. Reading, the Sub-section as a whole and having regard to the language employed therein, the Tribunal is that Such cash payment does not fall within any of the payment concerned herein does not fit into it. The employees concerned herein also happen to be directors. The provision in clause (c) of Section 40 applies to directors among others. Of course. Section 40 (A) (5) is applicable only to companies where as Section 40 (A) (5) is applicable to employees whether of companies or others. In the case of directors, who are also employees, both the provisions will be attracted- the higher of the two ceilings has to be applied. 10. The learned counsel for the respondent-assessee brought to our notice it circular issued by the Central Board of direct Taxes which inter alia say. "its read is payment of commission to the employees the question whether it forms part of salary or perquisite has to he decided on the acts of each case. If the terms and conditions of service are such that commission is paid not as a bounty or benefit but is paid , is part and parcel of the remuneration for the service renders by the employees. such payment par take the nature of salary rather than as a benefit or perquisite.If, however, on terms and conditions of service either there is no obligation for the employer to pay the commission or it is a matter purely in the discretion of the employer, such payment should he treated , is a benefit by way of addition to salary rattler thin in lieu of salary." It is not necessary for us to make any comment on the said circular. 11. For the above reasons. we are of the opinion that the High Court was justified refusing to direct the Tribunal to state question (1) and (2) under section 256 (2). 12. So far its question No.3 is concerned, it his not been seriously pressed before us having regard to the smallness of the amount involved. It is also stated that the said question is pending consideration is a batch of appeals before this Court. We do not propose to express any opinion on question No. 3 for the reason that the amount involved is quite small having regard to the income of the assessee- respondent. 13.
### Response:
0
### Explanation:
Incidentally Section 40 (A) (5) which was inserted repealing sect ion 10 (a) (v) his itself been deleted with effect from April 1, 1989 by the Direct Tax Laws (Amendment) Act, 1987. The sister provision contained in sub-clauses (i) and (ii) of clause (c)section 40. applicable to directors of a company (and other persons mentioned therein) has also been deleted by the very same enactment with effect from April 1.the relevant provisions in section 40 (a) (v) and 40 (A) (5) are substantially similar. we smile consider the language employed in the latter provision. Sub-clause (5) of section 40 (A) is applicable in the following Situations:(1) Where the assessee incurs any expenditure which results directed or indirectly in the payment of any salary to in employee or it former employee or(2) Where the assessee incurs any expenditure which results directly or indirectly in the provision of any perquisite (whether convertible into money or not to an employee; (3) (it) Where the assessee incurs directly or indirectly any expenditure or provides an allowance in respect of any assets of the assessee used by the employee either wholly or partly for his own purpose or benefit;(b)Where an employee of the assessee is provided any allowance ("entitled to any allowance") in respect of any assets of the assessee used by such employee either wholly or partly for his own purposes oreither of these situations, so much of such expenditure or allowance as is in excess of the limits specified will not be allowed a s a deduction. The question is whether the commission paid to its directors/employees on the sales effected by the assessee falls within any of the situations/clauses mentioned above. The Revenue relies upon the second one among them. According to them, the commission paid is a perquisite. which submission they say is borne out by the words within the brackets " whether convertible into money or not" immediately following the word "perquisite". On the other hand the contention of the assesses which his been accepted by the A.A.C. and situations/clauses contemplated by sub-section 5. Having regard to the language employed in clause (c) we are inclined to agree with the assessee. The language of sub- section (5) is significant. The first two situations, as we have called them start with the words "where the assessee incurs any expenditure which results directly or indirectly.................It is difficult to say that payment of a certain cash amount by way of commission on sales directly to an employee can be said to fall within the words "where the assessee incurs any expenditure which results directly or indirectly". Such a payment cannot also fall within the two sub-clauses of clause (3) in our analysis-since they speak of an expenditure or allowance in respect of any assents of the assesee used by the employee.Learned counsel for the Revenue. Shri Manchanda argued that the words "whether convertible into money or not" bring out the intention of the Parliament and support hissays, there is no reason not to include cash payment within the ambit of sub-section(5) to Section 40 (A). We are, however. not concerned with the generality of cash payments but only with the payment concerned herein. Reading, the Sub-section as a whole and having regard to the language employed therein, the Tribunal is that Such cash payment does not fall within any ofconcerned herein does not fit into it. The employees concerned herein also happen to be directors. The provision in clause (c) of Section 40 applies to directors among others. Of course. Section 40 (A) (5) is applicable only to companies where as Section 40 (A) (5) is applicable to employees whether of companies or others. In the case of directors, who are also employees, both the provisions will be attracted- the higher of the two ceilings has to belearned counsel for the respondent-assessee brought to our notice it circular issued by the Central Board of direct Taxes which inter aliaread is payment of commission to the employees the question whether it forms part of salary or perquisite has to he decided on the acts of each case. If the terms and conditions of service are such that commission is paid not as a bounty or benefit but is paid , is part and parcel of the remuneration for the service renders by the employees. such payment par take the nature of salary rather than as a benefit or perquisite.If, however, on terms and conditions of service either there is no obligation for the employer to pay the commission or it is a matter purely in the discretion of the employer, such payment should he treated , is a benefit by way of addition to salary rattler thin in lieu of salary."is not necessary for us to make any comment on the saidthe above reasons. we are of the opinion that the High Court was justified refusing to direct the Tribunal to state question (1) and (2) under section 256far its question No.3 is concerned, it his not been seriously pressed before us having regard to the smallness of the amount involved. It is also stated that the said question is pending consideration is a batch of appeals before this Court. We do not propose to express anyquestion No. 3 for the reason that the amount involved is quite small having regard to the income of the assessee- respondent.
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K.A. Ramachar & Another Vs. Commissioner of Income Tax, Madras | the profits of the previous year ending April 13, 1948, were disposed of. The assessee claimed that these amounts could not be included in his total income for purposes of assessment, being excluded by reason of the third proviso to S. 16(1)(c) of the Income-tax Act. He also contended that the amount payable to his wife and two daughters never became his income, being diverted by an overriding title, and that the case was governed by the rule laid down by the Privy Council in Bejoy Singh Dudhuria v. Commr. of Income-tax, Bengal, 1933-1 ITR 135 : (AIR 1933 PC 145 ). 4. The assessees contentions were not accepted by the Income-tax Officer, and his appeals to the Appellate Assistant Commissioner and the Tribunal also failed. In so far as the assessment year, 1947-48, was concerned, the Income-tax Officer held that the income had already accrued to the assessee, because the deeds were executed five months after the close of the account year. He also held that the transfer to the minor daughter fell within S. 16(3), as there was no adequate consideration for the transfer. With regard to the wife and married daughter, he held that S. 16(1)(c) was not applicable, because what had been transferred was income first accruing to the assessee, while S. 16(1)(c) contemplated income which accrued to a person, to whom the transfer was made. The same reasons (except the first) were given for rejecting the assessees contentions in respect of the other assessment year. 5. It is not necessary to refer in detail to the decisions of the Appellate Assistant Commissioner, the Tribunal and the High Court. The High Court in an elaborate judgment pointed out that S. 16(1)(c) did not apply to these proceedings, and that the third proviso was, therefore, not attracted. It also held that the income had accrued to the assessee in the first instance, and had then been applied for payments under the deeds. 6. This Court has recently decided three cases, which have a direct bearing in this connection. In Provat Kumar Mitter v. Commr. of Income-tax, West Bengal, Civil Appeal No. 366 of 1959 D/- 8-12-1960 : (AIR 1961 SC 1019 ) the assessee had executed a deed of trust under which dividends from certain shares which continued to be his assets, were transferred to his wife. It was held that the case did not fall within S. 16(1)(c), and that the rule in Bijoy Singh Dudhurias case, 1933-1 ITR 135 : (AIR 1933 PC 145 ) also did not apply. In Tulsidas Kilachand v. Commr. of Income-tax, Bombay Civil Appeals Nos.. 134 to 137 of 1959 D/- 3-1-1961 : (AIR 1961 SC 1023 ) the husband had created a trust of the shares, constituting himself as the trustee to pay to the wife dividends from those shares for a period of seven years. It was held that the case was not governed by S. 16(1)(c) but by S. 16(3)(b). In Commissioner of Income-tax, Bombay v. Sitaldas Tirathdas, C. A. No. 528 of 1959, D/- 24-11-1960 : (AIR 1961 SC 728 ) the rule laid down by the Privy Council in Bijoy Singh Dudhurias case, 1933-1 ITR 135 : (AIR 1933 PC 145 ) was considered along with the case of the Privy Council in P. C. Mullick v. Commr. of Income-tax, Bengal, 1938-6 ITR 206 : (AIR 1938 PC 118 ) and it was pointed out that the rule in Bijoy Singh Dudhurias case, 1933-1 ITR 135 :(AIR 1933 PC 145 ) applied only to those cases where it could be said that by an overriding title the income was diverted in such a way as never to become the income of the assessee. These three cases, in our opinion, afford a complete answer to the contentions of the appellants. 7. An examination of the deeds of settlement shows that the disponer had stated that from the profits "payable to him" certain amounts in specified shares were to be paid to his wife and two daughters. No doubt, the assessee in those deeds created a right in favour of the disponees to get the amounts direct from the firm, of which he was a partner. The tenor of the documents shows that the profits were first to accrue to him and were then applied for payments to the disponees. Learned counsel for the appellants contended that what had been assigned was an actionable claim, to wit, the right to profits, and therefore the profits were diverted, before they accrued to the disponer. This, in our opinion, is neither in accordance with the law of Partnership, nor with the facts as we have found on the record.Under the law of Partnership, it is the partner and the partner alone who is entitled to the profits. A stranger, even if he were an assignee, has and can have no direct claim to the profits. By the deeds in question, the assessee merely allowed a payment to his wife and daughters to constitute a valid discharge in favour of the firm; but what was paid was, in law, a portion of his profits, or, in other words, his income. A glance at the account-books of the firm, Messrs. Chari and Ram, clearly shows that the amounts were first credited in the Khata of Rangachari and then under his directions were transferred from his Khata to those of his wife and daughters. The dispositions, therefore, were, in law and in fact, portions of the income of Rangachari, after the income had accrued to him, and tax was payable by him at the point of accrual. In view of the decision of this Court in Sitaldas Tirathdass case, C.A. No. 528 of 1959 D/- 24-11-1960 : (AIR 1961 SC 728 ) it cannot be said that the profits were diverted by an overriding title before they accrued to Rangachari, and the rule in Bijoy Singh Dudhurias case, 1933-1 ITR 135 : (AIR 1933 PC 145 ) cannot be called in aid. | 0[ds]These three cases, in our opinion, afford a complete answer to the contentions of the appellants7. An examination of the deeds of settlement shows that the disponer had stated that from the profits "payable to him" certain amounts in specified shares were to be paid to his wife and two daughters. No doubt, the assessee in those deeds created a right in favour of the disponees to get the amounts direct from the firm, of which he was a partner. The tenor of the documents shows that the profits were first to accrue to him and were then applied for payments to the disponees. Learned counsel for the appellants contended that what had been assigned was an actionable claim, to wit, the right to profits, and therefore the profits were diverted, before they accrued to the disponer. This, in our opinion, is neither in accordance with the law of Partnership, nor with the facts as we have found on the record.Under the law of Partnership, it is the partner and the partner alone who is entitled to the profits. A stranger, even if he were an assignee, has and can have no direct claim to the profits. By the deeds in question, the assessee merely allowed a payment to his wife and daughters to constitute a valid discharge in favour of the firm; but what was paid was, in law, a portion of his profits, or, in other words, his income. A glance at the account-books of the firm, Messrs. Chari and Ram, clearly shows that the amounts were first credited in the Khata of Rangachari and then under his directions were transferred from his Khata to those of his wife and daughters. The dispositions, therefore, were, in law and in fact, portions of the income of Rangachari, after the income had accrued to him, and tax was payable by him at the point of accrual. In view of the decision of this Court in Sitaldas Tirathdass case, C.A. No. 528 of 1959 D/- 24-11-1960 : (AIR 1961 SC 728 ) it cannot be said that the profits were diverted by an overriding title before they accrued to Rangachari, and the rule in Bijoy Singh Dudhurias case, 1933-1 ITR 135 : (AIR 1933 PC 145 ) cannot be called in aid. | 0 | 1,761 | 436 | ### 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 profits of the previous year ending April 13, 1948, were disposed of. The assessee claimed that these amounts could not be included in his total income for purposes of assessment, being excluded by reason of the third proviso to S. 16(1)(c) of the Income-tax Act. He also contended that the amount payable to his wife and two daughters never became his income, being diverted by an overriding title, and that the case was governed by the rule laid down by the Privy Council in Bejoy Singh Dudhuria v. Commr. of Income-tax, Bengal, 1933-1 ITR 135 : (AIR 1933 PC 145 ). 4. The assessees contentions were not accepted by the Income-tax Officer, and his appeals to the Appellate Assistant Commissioner and the Tribunal also failed. In so far as the assessment year, 1947-48, was concerned, the Income-tax Officer held that the income had already accrued to the assessee, because the deeds were executed five months after the close of the account year. He also held that the transfer to the minor daughter fell within S. 16(3), as there was no adequate consideration for the transfer. With regard to the wife and married daughter, he held that S. 16(1)(c) was not applicable, because what had been transferred was income first accruing to the assessee, while S. 16(1)(c) contemplated income which accrued to a person, to whom the transfer was made. The same reasons (except the first) were given for rejecting the assessees contentions in respect of the other assessment year. 5. It is not necessary to refer in detail to the decisions of the Appellate Assistant Commissioner, the Tribunal and the High Court. The High Court in an elaborate judgment pointed out that S. 16(1)(c) did not apply to these proceedings, and that the third proviso was, therefore, not attracted. It also held that the income had accrued to the assessee in the first instance, and had then been applied for payments under the deeds. 6. This Court has recently decided three cases, which have a direct bearing in this connection. In Provat Kumar Mitter v. Commr. of Income-tax, West Bengal, Civil Appeal No. 366 of 1959 D/- 8-12-1960 : (AIR 1961 SC 1019 ) the assessee had executed a deed of trust under which dividends from certain shares which continued to be his assets, were transferred to his wife. It was held that the case did not fall within S. 16(1)(c), and that the rule in Bijoy Singh Dudhurias case, 1933-1 ITR 135 : (AIR 1933 PC 145 ) also did not apply. In Tulsidas Kilachand v. Commr. of Income-tax, Bombay Civil Appeals Nos.. 134 to 137 of 1959 D/- 3-1-1961 : (AIR 1961 SC 1023 ) the husband had created a trust of the shares, constituting himself as the trustee to pay to the wife dividends from those shares for a period of seven years. It was held that the case was not governed by S. 16(1)(c) but by S. 16(3)(b). In Commissioner of Income-tax, Bombay v. Sitaldas Tirathdas, C. A. No. 528 of 1959, D/- 24-11-1960 : (AIR 1961 SC 728 ) the rule laid down by the Privy Council in Bijoy Singh Dudhurias case, 1933-1 ITR 135 : (AIR 1933 PC 145 ) was considered along with the case of the Privy Council in P. C. Mullick v. Commr. of Income-tax, Bengal, 1938-6 ITR 206 : (AIR 1938 PC 118 ) and it was pointed out that the rule in Bijoy Singh Dudhurias case, 1933-1 ITR 135 :(AIR 1933 PC 145 ) applied only to those cases where it could be said that by an overriding title the income was diverted in such a way as never to become the income of the assessee. These three cases, in our opinion, afford a complete answer to the contentions of the appellants. 7. An examination of the deeds of settlement shows that the disponer had stated that from the profits "payable to him" certain amounts in specified shares were to be paid to his wife and two daughters. No doubt, the assessee in those deeds created a right in favour of the disponees to get the amounts direct from the firm, of which he was a partner. The tenor of the documents shows that the profits were first to accrue to him and were then applied for payments to the disponees. Learned counsel for the appellants contended that what had been assigned was an actionable claim, to wit, the right to profits, and therefore the profits were diverted, before they accrued to the disponer. This, in our opinion, is neither in accordance with the law of Partnership, nor with the facts as we have found on the record.Under the law of Partnership, it is the partner and the partner alone who is entitled to the profits. A stranger, even if he were an assignee, has and can have no direct claim to the profits. By the deeds in question, the assessee merely allowed a payment to his wife and daughters to constitute a valid discharge in favour of the firm; but what was paid was, in law, a portion of his profits, or, in other words, his income. A glance at the account-books of the firm, Messrs. Chari and Ram, clearly shows that the amounts were first credited in the Khata of Rangachari and then under his directions were transferred from his Khata to those of his wife and daughters. The dispositions, therefore, were, in law and in fact, portions of the income of Rangachari, after the income had accrued to him, and tax was payable by him at the point of accrual. In view of the decision of this Court in Sitaldas Tirathdass case, C.A. No. 528 of 1959 D/- 24-11-1960 : (AIR 1961 SC 728 ) it cannot be said that the profits were diverted by an overriding title before they accrued to Rangachari, and the rule in Bijoy Singh Dudhurias case, 1933-1 ITR 135 : (AIR 1933 PC 145 ) cannot be called in aid.
### Response:
0
### Explanation:
These three cases, in our opinion, afford a complete answer to the contentions of the appellants7. An examination of the deeds of settlement shows that the disponer had stated that from the profits "payable to him" certain amounts in specified shares were to be paid to his wife and two daughters. No doubt, the assessee in those deeds created a right in favour of the disponees to get the amounts direct from the firm, of which he was a partner. The tenor of the documents shows that the profits were first to accrue to him and were then applied for payments to the disponees. Learned counsel for the appellants contended that what had been assigned was an actionable claim, to wit, the right to profits, and therefore the profits were diverted, before they accrued to the disponer. This, in our opinion, is neither in accordance with the law of Partnership, nor with the facts as we have found on the record.Under the law of Partnership, it is the partner and the partner alone who is entitled to the profits. A stranger, even if he were an assignee, has and can have no direct claim to the profits. By the deeds in question, the assessee merely allowed a payment to his wife and daughters to constitute a valid discharge in favour of the firm; but what was paid was, in law, a portion of his profits, or, in other words, his income. A glance at the account-books of the firm, Messrs. Chari and Ram, clearly shows that the amounts were first credited in the Khata of Rangachari and then under his directions were transferred from his Khata to those of his wife and daughters. The dispositions, therefore, were, in law and in fact, portions of the income of Rangachari, after the income had accrued to him, and tax was payable by him at the point of accrual. In view of the decision of this Court in Sitaldas Tirathdass case, C.A. No. 528 of 1959 D/- 24-11-1960 : (AIR 1961 SC 728 ) it cannot be said that the profits were diverted by an overriding title before they accrued to Rangachari, and the rule in Bijoy Singh Dudhurias case, 1933-1 ITR 135 : (AIR 1933 PC 145 ) cannot be called in aid.
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HARI SANKARAN Vs. UNION OF INDIA | the Act, the Tribunal is required to issue notice to the Central Government, Income Tax Authorities, SEBI or any other statutory regulatory body or authorities concerned or any “other person concerned” and is required to take into consideration the representation, if any made. The “other person concerned” is as such not defined. Who can be said to be “other person concerned”, that question is kept open. At this stage, it is required to be noted that while passing the order under Section 130 of the Act, there shall be reopening of the books of accounts and re¬casting of the financial statements of the company and therefore the Board of Directors of the company may make a grievance. The erstwhile directors cannot represent the company as they are suspended pursuant to the earlier order passed under Section 242 of the Companies Act. Be that as it may, even otherwise in the present case and as observed hereinabove the erstwhile directors of the company represented before the Tribunal and they opposed the application under Section 130 of the Act. Therefore, in the facts and circumstances of the case, it cannot be said that the order passed by the learned Tribunal is per se in violation of the principle of natural justice as alleged.14. The submission by learned Counsel appearing on behalf of the appellant that in the impugned order passed by the learned Appellate Tribunal, the learned Appellate Tribunal has specifically observed that there is a violation of principle of natural justice and therefore the learned Appellate Tribunal ought to have remanded the matter to the Tribunal is concerned, on considering/fair reading of the impugned order passed by the learned Appellate Tribunal, as such, there is no specific finding by the learned Appellate Tribunal that there is a violation of principle of natural justice. What is observed by the learned Appellate Tribunal is that “even if it is accepted that the appellant on receipt of notice wanted to file reply” cannot be considered as a specific finding given that the order passed by the Tribunal was in violation of principle of natural justice.15. Now insofar as the submission on behalf of the appellant that the order dated 01.10.2018 passed under Section 241/242 of the Companies Act is an interim order and the same is not a final order suspending the directors and the erstwhile board of directors of the company, and therefore the observations made in the order dated 01.10.2018 cannot be considered, has no substance. It is required to be noted that as on today the order dated 01.10.2018 suspending the erstwhile directors of the company including the appellant stands and remains in operation. The same is not challenged by way of an appeal before an appropriate appellate Tribunal/Court.16. Now so far as the submission on behalf of the appellant that the impugned order passed by the learned Appellate Tribunal is a non-speaking and non¬reasoned order and the grounds urged before the learned Appellate Tribunal have not been dealt with by the learned Appellate Tribunal and therefore the prayer to set aside the order is concerned, in view of our specific findings recorded hereinabove on the legality and validity of the order passed by the learned Tribunal under Section 130 of the Companies Act, we do not propose to remand the matter to the learned Appellate Tribunal. It is true that the learned Appellate Tribunal could have passed a reasoned/speaking order. But in the facts and circumstances of the case and our findings recorded hereinabove and as observed hereinabove, the order passed by the Tribunal under Section 130 of the Companies Act does not suffer from any illegality and the same is passed in the larger public interest, we have considered the order passed by the learned Tribunal under Section 130 of the Companies Act on merits.17. In view of the aforesaid findings recorded by us, the decisions relied upon by the learned counsel appearing on behalf of the appellant shall not be applicable to the facts of the case on hand. There cannot be any dispute to the proposition of law laid down by this Court in the aforesaid decisions relied upon by the learned counsel appearing on behalf of the appellant. However, in the light of the aforesaid findings recorded by us, none of the decisions relied upon by the learned counsel appearing on behalf of the appellant shall be applicable to the facts of the case on hand.18. Now so far as reliance placed upon the subsequent report of the RBI and the objection by the learned counsel appearing on behalf of the appellant to rely upon the subsequent report and the reliance placed upon the decision of this Court in the case of Mohinder Singh (supra) is concerned, as the impugned order passed by the learned Tribunal is in the larger public interest, this Court can take note of the subsequent development/report. However, at the same time, the same shall be in support of the order under challenge. Even otherwise, it is required to be noted and as observed hereinabove, independent to the subsequent report of the RBI, there is a specific finding with respect to the mismanagement and the fraudulent accounts. Therefore subsequent Report of the RBI Report can be taken note of, while upholding the order passed by the learned Tribunal under Section 130 of the Companies Act. As observed hereinabove, a larger public interest has been involved and reopening of the books of accounts and recasting of financial statements of the aforesaid companies is required to be carried out in the larger public interest, to find out the real truth, and as observed hereinabove both the conditions precedent while invoking power under Section 130 of the Companies Act are satisfied/complied with, therefore in the facts and circumstances of the case, we are of the opinion that the order passed by the learned Tribunal passed under Section 130 of the Companies Act, confirmed by the learned Appellate Tribunal, is not required to be interfered with. | 0[ds]9. On going through the order passed by the learned Tribunal passed under Section 130 of the Act, it appears that the learned Tribunal is conscious of the relevant provisions of the Act, more particularly Section 130 of the Companies Act and more particularly the conditions precedent to be complied with/satisfied while directing/permitting re¬opening of the books of accounts and re¬casting of the financial statements of the company. From the order passed by the learned Tribunal under Section 130 of the Companies Act, it appears that the learned Tribunal has considered the preliminary report submitted by the ICAI and SFIO and the observations made in the aforesaid reports/preliminary reports. That thereafter having satisfied that the conditions precedent for invoking powers under Section 130 of the Companies Act, stated in Section 130 (i) OR (ii) of the Companies Act are satisfied, thereafter the learned Tribunal has passed an order allowing the application under Section 130 of the Companies Act for re¬opening the books of accounts and re¬ casting the financial statements of IL&FS and other two companies, viz, for the last 5 years.10. While assailing the order passed by the Tribunal under Section 130 of the Act, it is vehemently submitted on behalf of the appellant, who as such is a suspended director of the company that there is no specific finding recorded by the learned Tribunal that (i) the relevant earlier accounts were prepared in a fraudulent manner; and (ii) the affairs of the company were mismanaged during the relevant period casting a doubt on the reliability of the financial statements. It is the case on behalf of the appellant that in the order dated 01.01.2019 passed under Section 130 of the Companies Act, learned Tribunal has specifically given a finding that the alleged accounts of the companies cannot be said to have been prepared in a fraudulent manner. However, it is required to be noted that the aforesaid observations by the Tribunal are required to be considered in the context for which the observations are made. It appears that the said observations are made with respect to role of the auditors. It is to be noted that in the same para, the learned Tribunal has specifically observed that in the earlier order dated 01.10.2018, it is observed that the affairs of the company were mismanaged during the relevant period and that the affairs of the company and subsidiary companies were being mismanaged during the relevant period, as contemplated under Sub¬Section (1) and (2). At this stage, it is required to be noted that as per Section 130 of the Act, the Tribunal may pass an order of re¬opening of accounts if the Tribunal is of the opinion that (i) the relevant earlier accounts were prepared in a fraudulent manner; OR (ii) the affairs of the company were mismanaged during the relevant period casting a doubt on the reliability of the financial statements. Therefore, the word used isTherefore, if either of the conditions precedent is satisfied, the Tribunal would be justified in passing the order under Section 130 of the Act. Considering the order passed by the Tribunal passed under Section 130 of the Companies Act, it appears that the learned Tribunal has passed the order on being satisfied with respect to the second part of Section 130 of the Companies Act. It is also required to be noted that the learned Tribunal has also taken note of the preliminary report submitted by the ICAI with respect to the earlier accounts were being prepared in a fraudulent manner. On a fair reading of Section 130 of the Companies Act, if the Tribunal is satisfied that either of the conditions precedent is satisfied, the Tribunal would be justified in passing the order under Section 130 of the Companies Act.11. Considering the facts narrated hereinabove and the preliminary reports of SFIO and ICAI which came to be considered by the learned Tribunal and considering the specific observations made by the learned Tribunal while passing the order under Section 241/242 of the Companies Act and considering the fact that the Central Government has entrusted the investigation of the affairs of the company to SFIO in exercise of powers under Section 242 of the Companies Act, it cannot be said that the conditions precedent while invoking the powers under Section 130 of the Act are not satisfied. We are more than satisfied that in the facts and circumstances of the case, narrated hereinabove, and also in the larger public interest and when thousands of crores of public money is involved, the Tribunal is justified in allowing the application under Section 130 of the Companies Act, which was submitted by the Central Government as provided under Section 130 of the Companies Act.12. Now so far as the submission on behalf of the appellant that all the three provisions, viz., Section 130, Sections 211/212 and Sections 241/242 operate in different fields and in different circumstances and they are in the different Chapters and therefore any observation made while passing the order/orders with respect to a particular provision may not be considered while passing the order under relevant provisions is concerned, it is required to be noted that all the three provisions are required to be considered conjointly. While passing an order in a particular provision, the endeavour should be to see that the order/orders passed under other provisions of the Companies Act are given effect to, and/or in furtherance of the order/orders passed under other Sections. Therefore, the observations made while passing order under Section 241/242 of the Companies Act can be said to be relevant observations for passing the order under Section 130 of the Companies Act. At this stage, it is required to be noted that even otherwise in the order passed by the Tribunal under Section 130 of the Companies Act, there is a specific observation made by the learned Tribunal with respect to mismanagement of the affairs of the company, and even with respect to the relevant earlier accounts prepared in a fraudulent manner.13. It is next contended on behalf of the appellant that proviso to Section 130 of the Act has not been complied with and that the order passed by the learned Tribunal passed under Section 130 of the Act is in violation of the principle of natural justice. At the outset, it is required to be noted that while passing he order under Section 130 of the Companies Act, the learned counsel appearing on behalf of the erstwhile directors appeared and opposed the application under Section 130 of the Companies Act. Therefore, the learned counsel appearing on behalf of the erstwhile directors was heard before passing he order under Section 130 of the Companies Act. Therefore, it can be said that there is a compliance/substantial compliance of the principle of natural justice to be followed. It is required to be noted that as per proviso to Section 130 of the Companies Act before passing the order under Section 130 of the Act, the Tribunal is required to issue notice to the Central Government, Income Tax Authorities, SEBI or any other statutory regulatory body or authorities concerned or anyand is required to take into consideration the representation, if any made. Theis as such not defined. Who can be said to bethat question is kept open. At this stage, it is required to be noted that while passing the order under Section 130 of the Act, there shall be reopening of the books of accounts and re¬casting of the financial statements of the company and therefore the Board of Directors of the company may make a grievance. The erstwhile directors cannot represent the company as they are suspended pursuant to the earlier order passed under Section 242 of the Companies Act. Be that as it may, even otherwise in the present case and as observed hereinabove the erstwhile directors of the company represented before the Tribunal and they opposed the application under Section 130 of the Act. Therefore, in the facts and circumstances of the case, it cannot be said that the order passed by the learned Tribunal is per se in violation of the principle of natural justice as alleged.14. The submission by learned Counsel appearing on behalf of the appellant that in the impugned order passed by the learned Appellate Tribunal, the learned Appellate Tribunal has specifically observed that there is a violation of principle of natural justice and therefore the learned Appellate Tribunal ought to have remanded the matter to the Tribunal is concerned, on considering/fair reading of the impugned order passed by the learned Appellate Tribunal, as such, there is no specific finding by the learned Appellate Tribunal that there is a violation of principle of natural justice. What is observed by the learned Appellate Tribunal is thatif it is accepted that the appellant on receipt of notice wanted to filecannot be considered as a specific finding given that the order passed by the Tribunal was in violation of principle of natural justice.15. Now insofar as the submission on behalf of the appellant that the order dated 01.10.2018 passed under Section 241/242 of the Companies Act is an interim order and the same is not a final order suspending the directors and the erstwhile board of directors of the company, and therefore the observations made in the order dated 01.10.2018 cannot be considered, has no substance. It is required to be noted that as on today the order dated 01.10.2018 suspending the erstwhile directors of the company including the appellant stands and remains in operation. The same is not challenged by way of an appeal before an appropriate appellate Tribunal/Court.16. Now so far as the submission on behalf of the appellant that the impugned order passed by the learned Appellate Tribunal is a non-speaking and non¬reasoned order and the grounds urged before the learned Appellate Tribunal have not been dealt with by the learned Appellate Tribunal and therefore the prayer to set aside the order is concerned, in view of our specific findings recorded hereinabove on the legality and validity of the order passed by the learned Tribunal under Section 130 of the Companies Act, we do not propose to remand the matter to the learned Appellate Tribunal. It is true that the learned Appellate Tribunal could have passed a reasoned/speaking order. But in the facts and circumstances of the case and our findings recorded hereinabove and as observed hereinabove, the order passed by the Tribunal under Section 130 of the Companies Act does not suffer from any illegality and the same is passed in the larger public interest, we have considered the order passed by the learned Tribunal under Section 130 of the Companies Act on merits.17. In view of the aforesaid findings recorded by us, the decisions relied upon by the learned counsel appearing on behalf of the appellant shall not be applicable to the facts of the case on hand. There cannot be any dispute to the proposition of law laid down by this Court in the aforesaid decisions relied upon by the learned counsel appearing on behalf of the appellant. However, in the light of the aforesaid findings recorded by us, none of the decisions relied upon by the learned counsel appearing on behalf of the appellant shall be applicable to the facts of the case on hand.18. Now so far as reliance placed upon the subsequent report of the RBI and the objection by the learned counsel appearing on behalf of the appellant to rely upon the subsequent report and the reliance placed upon the decision of this Court in the case of Mohinder Singh (supra) is concerned, as the impugned order passed by the learned Tribunal is in the larger public interest, this Court can take note of the subsequent development/report. However, at the same time, the same shall be in support of the order under challenge. Even otherwise, it is required to be noted and as observed hereinabove, independent to the subsequent report of the RBI, there is a specific finding with respect to the mismanagement and the fraudulent accounts. Therefore subsequent Report of the RBI Report can be taken note of, while upholding the order passed by the learned Tribunal under Section 130 of the Companies Act. As observed hereinabove, a larger public interest has been involved and reopening of the books of accounts and recasting of financial statements of the aforesaid companies is required to be carried out in the larger public interest, to find out the real truth, and as observed hereinabove both the conditions precedent while invoking power under Section 130 of the Companies Act are satisfied/complied with, therefore in the facts and circumstances of the case, we are of the opinion that the order passed by the learned Tribunal passed under Section 130 of the Companies Act, confirmed by the learned Appellate Tribunal, is not required to be interfered with. | 0 | 8,627 | 2,302 | ### 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 Act, the Tribunal is required to issue notice to the Central Government, Income Tax Authorities, SEBI or any other statutory regulatory body or authorities concerned or any “other person concerned” and is required to take into consideration the representation, if any made. The “other person concerned” is as such not defined. Who can be said to be “other person concerned”, that question is kept open. At this stage, it is required to be noted that while passing the order under Section 130 of the Act, there shall be reopening of the books of accounts and re¬casting of the financial statements of the company and therefore the Board of Directors of the company may make a grievance. The erstwhile directors cannot represent the company as they are suspended pursuant to the earlier order passed under Section 242 of the Companies Act. Be that as it may, even otherwise in the present case and as observed hereinabove the erstwhile directors of the company represented before the Tribunal and they opposed the application under Section 130 of the Act. Therefore, in the facts and circumstances of the case, it cannot be said that the order passed by the learned Tribunal is per se in violation of the principle of natural justice as alleged.14. The submission by learned Counsel appearing on behalf of the appellant that in the impugned order passed by the learned Appellate Tribunal, the learned Appellate Tribunal has specifically observed that there is a violation of principle of natural justice and therefore the learned Appellate Tribunal ought to have remanded the matter to the Tribunal is concerned, on considering/fair reading of the impugned order passed by the learned Appellate Tribunal, as such, there is no specific finding by the learned Appellate Tribunal that there is a violation of principle of natural justice. What is observed by the learned Appellate Tribunal is that “even if it is accepted that the appellant on receipt of notice wanted to file reply” cannot be considered as a specific finding given that the order passed by the Tribunal was in violation of principle of natural justice.15. Now insofar as the submission on behalf of the appellant that the order dated 01.10.2018 passed under Section 241/242 of the Companies Act is an interim order and the same is not a final order suspending the directors and the erstwhile board of directors of the company, and therefore the observations made in the order dated 01.10.2018 cannot be considered, has no substance. It is required to be noted that as on today the order dated 01.10.2018 suspending the erstwhile directors of the company including the appellant stands and remains in operation. The same is not challenged by way of an appeal before an appropriate appellate Tribunal/Court.16. Now so far as the submission on behalf of the appellant that the impugned order passed by the learned Appellate Tribunal is a non-speaking and non¬reasoned order and the grounds urged before the learned Appellate Tribunal have not been dealt with by the learned Appellate Tribunal and therefore the prayer to set aside the order is concerned, in view of our specific findings recorded hereinabove on the legality and validity of the order passed by the learned Tribunal under Section 130 of the Companies Act, we do not propose to remand the matter to the learned Appellate Tribunal. It is true that the learned Appellate Tribunal could have passed a reasoned/speaking order. But in the facts and circumstances of the case and our findings recorded hereinabove and as observed hereinabove, the order passed by the Tribunal under Section 130 of the Companies Act does not suffer from any illegality and the same is passed in the larger public interest, we have considered the order passed by the learned Tribunal under Section 130 of the Companies Act on merits.17. In view of the aforesaid findings recorded by us, the decisions relied upon by the learned counsel appearing on behalf of the appellant shall not be applicable to the facts of the case on hand. There cannot be any dispute to the proposition of law laid down by this Court in the aforesaid decisions relied upon by the learned counsel appearing on behalf of the appellant. However, in the light of the aforesaid findings recorded by us, none of the decisions relied upon by the learned counsel appearing on behalf of the appellant shall be applicable to the facts of the case on hand.18. Now so far as reliance placed upon the subsequent report of the RBI and the objection by the learned counsel appearing on behalf of the appellant to rely upon the subsequent report and the reliance placed upon the decision of this Court in the case of Mohinder Singh (supra) is concerned, as the impugned order passed by the learned Tribunal is in the larger public interest, this Court can take note of the subsequent development/report. However, at the same time, the same shall be in support of the order under challenge. Even otherwise, it is required to be noted and as observed hereinabove, independent to the subsequent report of the RBI, there is a specific finding with respect to the mismanagement and the fraudulent accounts. Therefore subsequent Report of the RBI Report can be taken note of, while upholding the order passed by the learned Tribunal under Section 130 of the Companies Act. As observed hereinabove, a larger public interest has been involved and reopening of the books of accounts and recasting of financial statements of the aforesaid companies is required to be carried out in the larger public interest, to find out the real truth, and as observed hereinabove both the conditions precedent while invoking power under Section 130 of the Companies Act are satisfied/complied with, therefore in the facts and circumstances of the case, we are of the opinion that the order passed by the learned Tribunal passed under Section 130 of the Companies Act, confirmed by the learned Appellate Tribunal, is not required to be interfered with.
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0
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proviso to Section 130 of the Companies Act before passing the order under Section 130 of the Act, the Tribunal is required to issue notice to the Central Government, Income Tax Authorities, SEBI or any other statutory regulatory body or authorities concerned or anyand is required to take into consideration the representation, if any made. Theis as such not defined. Who can be said to bethat question is kept open. At this stage, it is required to be noted that while passing the order under Section 130 of the Act, there shall be reopening of the books of accounts and re¬casting of the financial statements of the company and therefore the Board of Directors of the company may make a grievance. The erstwhile directors cannot represent the company as they are suspended pursuant to the earlier order passed under Section 242 of the Companies Act. Be that as it may, even otherwise in the present case and as observed hereinabove the erstwhile directors of the company represented before the Tribunal and they opposed the application under Section 130 of the Act. Therefore, in the facts and circumstances of the case, it cannot be said that the order passed by the learned Tribunal is per se in violation of the principle of natural justice as alleged.14. The submission by learned Counsel appearing on behalf of the appellant that in the impugned order passed by the learned Appellate Tribunal, the learned Appellate Tribunal has specifically observed that there is a violation of principle of natural justice and therefore the learned Appellate Tribunal ought to have remanded the matter to the Tribunal is concerned, on considering/fair reading of the impugned order passed by the learned Appellate Tribunal, as such, there is no specific finding by the learned Appellate Tribunal that there is a violation of principle of natural justice. What is observed by the learned Appellate Tribunal is thatif it is accepted that the appellant on receipt of notice wanted to filecannot be considered as a specific finding given that the order passed by the Tribunal was in violation of principle of natural justice.15. Now insofar as the submission on behalf of the appellant that the order dated 01.10.2018 passed under Section 241/242 of the Companies Act is an interim order and the same is not a final order suspending the directors and the erstwhile board of directors of the company, and therefore the observations made in the order dated 01.10.2018 cannot be considered, has no substance. It is required to be noted that as on today the order dated 01.10.2018 suspending the erstwhile directors of the company including the appellant stands and remains in operation. The same is not challenged by way of an appeal before an appropriate appellate Tribunal/Court.16. Now so far as the submission on behalf of the appellant that the impugned order passed by the learned Appellate Tribunal is a non-speaking and non¬reasoned order and the grounds urged before the learned Appellate Tribunal have not been dealt with by the learned Appellate Tribunal and therefore the prayer to set aside the order is concerned, in view of our specific findings recorded hereinabove on the legality and validity of the order passed by the learned Tribunal under Section 130 of the Companies Act, we do not propose to remand the matter to the learned Appellate Tribunal. It is true that the learned Appellate Tribunal could have passed a reasoned/speaking order. But in the facts and circumstances of the case and our findings recorded hereinabove and as observed hereinabove, the order passed by the Tribunal under Section 130 of the Companies Act does not suffer from any illegality and the same is passed in the larger public interest, we have considered the order passed by the learned Tribunal under Section 130 of the Companies Act on merits.17. In view of the aforesaid findings recorded by us, the decisions relied upon by the learned counsel appearing on behalf of the appellant shall not be applicable to the facts of the case on hand. There cannot be any dispute to the proposition of law laid down by this Court in the aforesaid decisions relied upon by the learned counsel appearing on behalf of the appellant. However, in the light of the aforesaid findings recorded by us, none of the decisions relied upon by the learned counsel appearing on behalf of the appellant shall be applicable to the facts of the case on hand.18. Now so far as reliance placed upon the subsequent report of the RBI and the objection by the learned counsel appearing on behalf of the appellant to rely upon the subsequent report and the reliance placed upon the decision of this Court in the case of Mohinder Singh (supra) is concerned, as the impugned order passed by the learned Tribunal is in the larger public interest, this Court can take note of the subsequent development/report. However, at the same time, the same shall be in support of the order under challenge. Even otherwise, it is required to be noted and as observed hereinabove, independent to the subsequent report of the RBI, there is a specific finding with respect to the mismanagement and the fraudulent accounts. Therefore subsequent Report of the RBI Report can be taken note of, while upholding the order passed by the learned Tribunal under Section 130 of the Companies Act. As observed hereinabove, a larger public interest has been involved and reopening of the books of accounts and recasting of financial statements of the aforesaid companies is required to be carried out in the larger public interest, to find out the real truth, and as observed hereinabove both the conditions precedent while invoking power under Section 130 of the Companies Act are satisfied/complied with, therefore in the facts and circumstances of the case, we are of the opinion that the order passed by the learned Tribunal passed under Section 130 of the Companies Act, confirmed by the learned Appellate Tribunal, is not required to be interfered with.
|
Shri Mahinder Kumar Gupta Etc Vs. Union Of India, Ministry Of Petroleum And Natural Gas | of the matters. The procedure for selection has been prescribed in Part VI of the guidelines. Criterion No. 2 relates to screening of the applicants for interview. Then, Rule 3 relates to norms for evaluation of competing claims of the candidates and Rule 5 regulates selection of dealers/distributors. In this case, we are concerned with dealership of petroleum products applicable for all categories in which clause (b) prescribes ineligibility of persons if one of the persons mentioned therein has already a dealership. It is seen that one of the conditions subject to which a candidate is entitled to apply for grant of dealership is that his spouse father/mother, brother/sister, son/daughter, son-in-law/daughter-in-law and parents-in-law if already had been given dealership, he/she is made ineligible to apply for dealership. In the case of partnerships, partners should individually fulfil the above-mentioned eligibility criteria/conditions and all of them must appear for an interview together 4. Shri Ravindra Bhat, learned counsel for the appellants/petitioners contended that under Article 19(1) (g) all citizens have the right to practise any profession or to carry on any occupation, trade or business. Appellants/petitioners being eligible candidates to apply for the dealership or distributorship, then, one or the other of them cannot be made ineligible on the ground that his/her spouse, parents, sons-in-law or a relative is already having a dealership, because it is his/her own business and he has nothing to do with his sons-in-law and that, therefore, the prescription of ineligibility due to relationship is void under Article 19(1) (g). It is also arbitrary, unjust and also it bears no reasonable nexus to the object sought to be achieved. He further contended that while prescribing the ineligibility criteria for persons other than the physically handicapped PH category, discrimination has been made between the other persons and physically handicapped candidates in whose favour the ineligibility is only in respect of spouse, parents, son/daughter-in-law. The daughters and others having been excluded from the eligibility, the inclusion of parents-in-law, sons-in-law etc. in respect of others is also violative of Article 14 of the Constitution. We find no force in the contention 5. The Preamble to the Constitution envisages the securing of economic and social justice to all its citizens; accorded equality of status and of opportunity assuring the dignity of the individual. Article 39(b) postulates that the ownership and control of the material resources of the community are to be so distributed as to best subserve the common good. Clause (c) prevents concentration of wealth and means of production to the common detriment. Since the grant of dealership or distributorship of the petroleum products belongs to the Government largesse, the Government in its policy of granting the largesse have prescribed the eligibility criteria. One of the eligibility criteria is that one among the near relations or partners or associates in other words among a named group of persons alone should have dealership and there should not be any concentration by them in the distribution of its petroleum products through the dealership. The guidelines further intend to prevent frustration of the State policy by process of legal ingenuity or subterfuge. One of the criteria is relationship. The relationship criteria has been prescribed to see that the persons who already had one dealership should not apply so that the above objectives of the Constitution are achieved. In Part III, clause (6) of the relationship category, a person from among specified near relatives has been made ineligible to apply for another dealership to any of the nationalised oil companies. The petitioners/appellants dehors the guidelines have no independent right to have business or avocation in the distribution or production or ownership of one of the petroleum products. Production and distribution of the petroleum products are the exclusive monopoly of the State under Article 19(6) of the Constitution. As a pad of its policy of the distribution of its largesse Government have prescribed the eligibility criteria to the persons to obtain dealership for distribution of petroleum products. The distribution of the largesse of the State is for the common good and to subserve the common good of as many persons as possible. The Government of India intended to group together certain near relations as a unit and one among that unit alone was made eligible to apply for and claim for grant of dealership. Further, economic and social justice as envisaged in the Preamble of the Constitution is sought to be achieved. Therefore, there is a reasonable nexus between the object and the prescription of the eligibility criteria envisaged in the guidelines. All those who satisfy the eligibility criteria alone are entitled to apply for the consideration of the grant of dealership. It is true that in case of physically handicapped persons, only three classes of persons were made ineligible. Physically handicapped persons have been treated as a class by themselves. Under these circumstances, any other person other than PH, cannot claim parity with PH persons. As far as partnership is concerned, if one of the persons either have a dealership or relations who were found to be eligible under the relationship criteria, and had the dealership, then clause 10 of the said guidelines gets attracted and such partnership also did not become eligible to apply for dealership/distributorship. The object of clause 10 appears to be that for those partners who either one among themselves or any of the relations of one of the partners had a dealership, the other partner or the specified relations also not be eligible to apply for grant of dealership individually or as a member of the partnership. Therefore, the guidelines are based on public policy to give effect to the constitutional creed of Part IV of the Indian Constitution6. Under these circumstances, we find no arbitrariness or unjustness in prescription of the guidelines for the eligibility criteria. The second writ petition stands liable to be dismissed on the sole ground that the Association cannot file a writ petition as it has no fundamental right under Article 32 of the Constitution. | 0[ds]In this case, we are concerned with dealership of petroleum products applicable for all categories in which clause (b) prescribes ineligibility of persons if one of the persons mentioned therein has already a dealership. It is seen that one of the conditions subject to which a candidate is entitled to apply for grant of dealership is that his spouse father/mother, brother/sister, son/daughter,aw if already had been given dealership, he/she is made ineligible to apply for dealership. In the case of partnerships, partners should individually fulfil theeligibility criteria/conditions and all of them must appear for an interviewis true that in case of physically handicapped persons, only three classes of persons were made ineligible. Physically handicapped persons have been treated as a class by themselves. Under these circumstances, any other person other than PH, cannot claim parity with PH persons. As far as partnership is concerned, if one of the persons either have a dealership or relations who were found to be eligible under the relationship criteria, and had the dealership, then clause 10 of the said guidelines gets attracted and such partnership also did not become eligible to apply for dealership/distributorship. The object of clause 10 appears to be that for those partners who either one among themselves or any of the relations of one of the partners had a dealership, the other partner or the specified relations also not be eligible to apply for grant of dealership individually or as a member of the partnership. Therefore, the guidelines are based on public policy to give effect to the constitutional creed of Part IV of the Indian Constitution6. Under these circumstances, we find no arbitrariness or unjustness in prescription of the guidelines for the eligibility criteria. The second writ petition stands liable to be dismissed on the sole ground that the Association cannot file a writ petition as it has no fundamental right under Article 32 of the Constitution. | 0 | 1,519 | 352 | ### 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:
of the matters. The procedure for selection has been prescribed in Part VI of the guidelines. Criterion No. 2 relates to screening of the applicants for interview. Then, Rule 3 relates to norms for evaluation of competing claims of the candidates and Rule 5 regulates selection of dealers/distributors. In this case, we are concerned with dealership of petroleum products applicable for all categories in which clause (b) prescribes ineligibility of persons if one of the persons mentioned therein has already a dealership. It is seen that one of the conditions subject to which a candidate is entitled to apply for grant of dealership is that his spouse father/mother, brother/sister, son/daughter, son-in-law/daughter-in-law and parents-in-law if already had been given dealership, he/she is made ineligible to apply for dealership. In the case of partnerships, partners should individually fulfil the above-mentioned eligibility criteria/conditions and all of them must appear for an interview together 4. Shri Ravindra Bhat, learned counsel for the appellants/petitioners contended that under Article 19(1) (g) all citizens have the right to practise any profession or to carry on any occupation, trade or business. Appellants/petitioners being eligible candidates to apply for the dealership or distributorship, then, one or the other of them cannot be made ineligible on the ground that his/her spouse, parents, sons-in-law or a relative is already having a dealership, because it is his/her own business and he has nothing to do with his sons-in-law and that, therefore, the prescription of ineligibility due to relationship is void under Article 19(1) (g). It is also arbitrary, unjust and also it bears no reasonable nexus to the object sought to be achieved. He further contended that while prescribing the ineligibility criteria for persons other than the physically handicapped PH category, discrimination has been made between the other persons and physically handicapped candidates in whose favour the ineligibility is only in respect of spouse, parents, son/daughter-in-law. The daughters and others having been excluded from the eligibility, the inclusion of parents-in-law, sons-in-law etc. in respect of others is also violative of Article 14 of the Constitution. We find no force in the contention 5. The Preamble to the Constitution envisages the securing of economic and social justice to all its citizens; accorded equality of status and of opportunity assuring the dignity of the individual. Article 39(b) postulates that the ownership and control of the material resources of the community are to be so distributed as to best subserve the common good. Clause (c) prevents concentration of wealth and means of production to the common detriment. Since the grant of dealership or distributorship of the petroleum products belongs to the Government largesse, the Government in its policy of granting the largesse have prescribed the eligibility criteria. One of the eligibility criteria is that one among the near relations or partners or associates in other words among a named group of persons alone should have dealership and there should not be any concentration by them in the distribution of its petroleum products through the dealership. The guidelines further intend to prevent frustration of the State policy by process of legal ingenuity or subterfuge. One of the criteria is relationship. The relationship criteria has been prescribed to see that the persons who already had one dealership should not apply so that the above objectives of the Constitution are achieved. In Part III, clause (6) of the relationship category, a person from among specified near relatives has been made ineligible to apply for another dealership to any of the nationalised oil companies. The petitioners/appellants dehors the guidelines have no independent right to have business or avocation in the distribution or production or ownership of one of the petroleum products. Production and distribution of the petroleum products are the exclusive monopoly of the State under Article 19(6) of the Constitution. As a pad of its policy of the distribution of its largesse Government have prescribed the eligibility criteria to the persons to obtain dealership for distribution of petroleum products. The distribution of the largesse of the State is for the common good and to subserve the common good of as many persons as possible. The Government of India intended to group together certain near relations as a unit and one among that unit alone was made eligible to apply for and claim for grant of dealership. Further, economic and social justice as envisaged in the Preamble of the Constitution is sought to be achieved. Therefore, there is a reasonable nexus between the object and the prescription of the eligibility criteria envisaged in the guidelines. All those who satisfy the eligibility criteria alone are entitled to apply for the consideration of the grant of dealership. It is true that in case of physically handicapped persons, only three classes of persons were made ineligible. Physically handicapped persons have been treated as a class by themselves. Under these circumstances, any other person other than PH, cannot claim parity with PH persons. As far as partnership is concerned, if one of the persons either have a dealership or relations who were found to be eligible under the relationship criteria, and had the dealership, then clause 10 of the said guidelines gets attracted and such partnership also did not become eligible to apply for dealership/distributorship. The object of clause 10 appears to be that for those partners who either one among themselves or any of the relations of one of the partners had a dealership, the other partner or the specified relations also not be eligible to apply for grant of dealership individually or as a member of the partnership. Therefore, the guidelines are based on public policy to give effect to the constitutional creed of Part IV of the Indian Constitution6. Under these circumstances, we find no arbitrariness or unjustness in prescription of the guidelines for the eligibility criteria. The second writ petition stands liable to be dismissed on the sole ground that the Association cannot file a writ petition as it has no fundamental right under Article 32 of the Constitution.
### Response:
0
### Explanation:
In this case, we are concerned with dealership of petroleum products applicable for all categories in which clause (b) prescribes ineligibility of persons if one of the persons mentioned therein has already a dealership. It is seen that one of the conditions subject to which a candidate is entitled to apply for grant of dealership is that his spouse father/mother, brother/sister, son/daughter,aw if already had been given dealership, he/she is made ineligible to apply for dealership. In the case of partnerships, partners should individually fulfil theeligibility criteria/conditions and all of them must appear for an interviewis true that in case of physically handicapped persons, only three classes of persons were made ineligible. Physically handicapped persons have been treated as a class by themselves. Under these circumstances, any other person other than PH, cannot claim parity with PH persons. As far as partnership is concerned, if one of the persons either have a dealership or relations who were found to be eligible under the relationship criteria, and had the dealership, then clause 10 of the said guidelines gets attracted and such partnership also did not become eligible to apply for dealership/distributorship. The object of clause 10 appears to be that for those partners who either one among themselves or any of the relations of one of the partners had a dealership, the other partner or the specified relations also not be eligible to apply for grant of dealership individually or as a member of the partnership. Therefore, the guidelines are based on public policy to give effect to the constitutional creed of Part IV of the Indian Constitution6. Under these circumstances, we find no arbitrariness or unjustness in prescription of the guidelines for the eligibility criteria. The second writ petition stands liable to be dismissed on the sole ground that the Association cannot file a writ petition as it has no fundamental right under Article 32 of the Constitution.
|
Essar Steel India Ltd. Vs. State Of Gujarat | Schedule VI to declare weekly schedule of the capacity available and the dispatch instructions were to be issued on the basis of the said declaration. It could not thus be said that EPL had no obligation to declare the capacity and the obligation of GUVNL to issue dispatch instructions was not dependent on declaration of the available capacity by EPL. Contrary view of the Tribunal is clearly erroneous. In para 45 and 46 and elsewhere in its judgment, the Tribunal erred in holding that there was no obligation to declare available capacity on proportionate basis. The finding of the Commission in paras 9.5 to 9.12 of its order quoted above is the correct interpretation of the agreement. We hold accordingly."29. In the above case the question of exemption in excise duty within meaning of Section 3(2) of 1958 Act had not arisen nor the question was considered whether EPL can be held to be generating energy jointly with appellant no.1 and Gujarat Electricity Board. For the issues which have arisen in the present case, the above judgment does not render any help.30. Learned Counsel for the appellant has submitted that the High Court had rejected the claim of payment only on the ground that there is no such Memorandum of Understanding between EPL and ECL as was found in A.P. Gas Power Limited (Supra). The High Court although has noted the fact that in the present case there is no such Memorandum of Understanding between EPL and ECL but the judgment of the High Court is not based only on the above premise rather High Court has clearly found that conditions stipulating under Section 3(2)(vii)(a)(i) of 1958 Act are not satisfied, hence, appellant no.1 is not entitled for exemption. High Court has elaborately considered all the submission raised by the appellant and rightly came to the conclusion that conditions as enumerated in Section 3(2)(vii) (a) are not fulfilled. We do not find any error in the aforesaid finding of the High Court.Claim under notification dated 27.02.199231. The notification dated 27.02.1992 was issued in exercise of power conferred by Section 3(3) of Bombay Electricity Act, 1958. The relevant part of the notification dated 27.02.1992, is as follows:-"NOTIFICATIONSachivalaya Gandhinagar27th February, 1992BOMBAY ELECTRICITY DUTY ACT, 1958No. GHC/92/10/JCP/1188/2594/KIn exercise of the powers conferred by Sub Section (3) of the Section 3 of the Bombay Electricity Duty Act,1958(Bom. XL of 1958), the Government of Gujarat hereby remitted with effect on and from the date of publication of this notification in the Official Gazette. In the whole of the State of Gujarat, the Electricity Duty payable under item (6) of Part I of Schedule II to the said Act, on the energy consumed for motive power and lighting for Industrial purposes by industrial under takings which generate energy jointly for their own use either by establishing an independent joint company solely for this purpose or on pro-rata cost sharing basis, for a period of ten years from the date of commissioning of the generating sets subject to the following terms and conditions namely:-(a) The generating set or sets shall have been purchased and installed or commissioned during the period beginning from 1st January, 1991 and ending on 31st December, 1992. Providing that such generating act or sets shall not have been previously used in the State.****** ******"32. The claim raised by the appellant under the above said notification was specifically dealt by the High Court and the Government. The condition which was found lacking for applicability of the notification was that generating sets were not purchased or installed or commissioned during the period from 01.01.1991 to 31.12.1992. The High Court has recorded categorical finding that the generating sets have been commissioned in the month of August 1995. It is useful to refer to paragraph 12.0 of the judgment of Division Bench which is to the following effect:-"12.0. Now, so far as the alternative claim of the appellants to grant the exemption for a period of 10 years under the Notification dated 27.02.1992 is concerned, on considering Notification dated 27.02.1992, it appears that the conditions precedent laid down in the said notification cannot be said to have been compiled by the appellants more particularly appellant No.1 - ESL. For claiming the benefit of notification dated 27.02.1992 it is to be established that the generating set or sets have been purchased/installed or commissioned during the period beginning from 01.01.1991 and ending on 31.12.1992. From the record it appears that the generating sets have been commissioned in the month of August 1995, the appellants have failed to establish that the generating sets were even purchased during the aforesaid period. It cannot be disputed that in a taxing statute more particularly with respect to the exemption from payment of duty, all the conditions which can be said to be statutory are required to be fulfilled and unless and until all the conditions stipulated in the exemption notification are satisfied and/or compiled with, there shall not be any exemption under the notification. In the present case, admittedly, the generating sets in question have been commissioned in the month of August 1995. The appellants have failed to establish that they even purchased the generating sets during the period beginning from 01.01.1991 to 31.12.1992. More placement of order for purchase cannot amount to actual purchase of the generating sets."33. Another reason given by the High Court was that no application was made within 180 days of application of the notification dated 27.02.1992 or even from the date of installation of generating sets i.e. August 1995. Even if the second reason given by the High Court is ignored, nonfulfillment of condition no.(a) of notification dated 27.02.1992 clearly entailed rejection of claim under notification dated 27.02.1992. There is no foundation or basis laid down even in this appeal to assail the finding recorded by the High Court that generating set was not purchased from 01.01.1991 to 31.12.1992.34. We thus do not find any error in rejection of claim of appellant under the notification dated 27.02.1992. | 0[ds]12. From the facts which have come on the record it is clear that appellant no.1 had claimed exemption from duty under the provisions of Section 3(2)(vii) as well as under the notification issued under Section 3(3) of 1958 Act for different period which exemption was earlier granted. Details of benefit of exemption availed by appellant no.1 has been extracted by Division Bench of High Court in Para 5.4 of the judgment.13. In the present case, no application in the prescribed form as per Rule 11 of the Rules was filed by the appellant no.1 and for the first time the appellant had come up with an application dated 15.03.2001 seeking an exemption under notification dated 27.02.1992 and subsequently on 12.04.2001 has again claimed exemption under Section 3(2)(vii)(a) (i) of 1958 Act. The exemption from payment of duty as claimed by the appellant is in two parts. Firstly, under Section 3(2)(vii)(a)(i) of 1958 Act and secondly, under the notification dated 27.02.1992.In the present case, there is no dispute to the fact that appellant No.2 was created as a Special Purpose Vehicle by appellant No.1 itself. Had appellant No.2 would have been supplying energy to appellant No.1 only, the claim deserved consideration. But present is a case where the appellant no.2 is supplying energy to industrial undertakings with whom it is not jointly generating the energy. Judgment of this Court in State of U.P. and Renusagar Company, thus, has no application in the facts of present case.The judgment of Andhra Pradesh Gas Power Corporation Limited is clearly distinguishable and does not help the appellant in present case. In the aforesaid case the energy was utilized by the participating industries and the concerned holding shares of A.P.GPCL but supply of energy to the sister concerned was required to have license. Present is a case where Gujarat Electricity Board who has been allocated 300 MW is not a participating industry nor appellant no.2 is jointly generating the energy with Gujarat Electricity Board, even if it is held that the appellant no.1 to the extent it holds 42% equity shares of appellant no.2 is jointly generating the energy. The Gujarat Electricity Board which has been allocated 58% of electricity generated can not be said as the industrial undertaking jointly generating the energy.In the above case the question of exemption in excise duty within meaning of Section 3(2) of 1958 Act had not arisen nor the question was considered whether EPL can be held to be generating energy jointly with appellant no.1 and Gujarat Electricity Board. For the issues which have arisen in the present case, the above judgment does not render any help.30.Learned Counsel for the appellant has submitted that the High Court had rejected the claim of payment only on the ground that there is no such Memorandum of Understanding between EPL and ECL as was found in A.P. Gas Power Limited (Supra). The High Court although has noted the fact that in the present case there is no such Memorandum of Understanding between EPL and ECL but the judgment of the High Court is not based only on the above premise rather High Court has clearly found that conditions stipulating under Section 3(2)(vii)(a)(i) of 1958 Act are not satisfied, hence, appellant no.1 is not entitled for exemption.High Court has elaborately considered all the submission raised by the appellant and rightly came to the conclusion that conditions as enumerated in Section 3(2)(vii) (a) are not fulfilled. We do not find any error in the aforesaid finding of the High Court.Another reason given by the High Court was that no application was made within 180 days of application of the notification dated 27.02.1992 or even from the date of installation of generating sets i.e. August 1995. Even if the second reason given by the High Court is ignored, nonfulfillment of condition no.(a) of notification dated 27.02.1992 clearly entailed rejection of claim under notification dated 27.02.1992. There is no foundation or basis laid down even in this appeal to assail the finding recorded by the High Court that generating set was not purchased from 01.01.1991 to 31.12.1992.34. We thus do not find any error in rejection of claim of appellant under the notification dated 27.02.1992. | 0 | 7,625 | 800 | ### 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:
Schedule VI to declare weekly schedule of the capacity available and the dispatch instructions were to be issued on the basis of the said declaration. It could not thus be said that EPL had no obligation to declare the capacity and the obligation of GUVNL to issue dispatch instructions was not dependent on declaration of the available capacity by EPL. Contrary view of the Tribunal is clearly erroneous. In para 45 and 46 and elsewhere in its judgment, the Tribunal erred in holding that there was no obligation to declare available capacity on proportionate basis. The finding of the Commission in paras 9.5 to 9.12 of its order quoted above is the correct interpretation of the agreement. We hold accordingly."29. In the above case the question of exemption in excise duty within meaning of Section 3(2) of 1958 Act had not arisen nor the question was considered whether EPL can be held to be generating energy jointly with appellant no.1 and Gujarat Electricity Board. For the issues which have arisen in the present case, the above judgment does not render any help.30. Learned Counsel for the appellant has submitted that the High Court had rejected the claim of payment only on the ground that there is no such Memorandum of Understanding between EPL and ECL as was found in A.P. Gas Power Limited (Supra). The High Court although has noted the fact that in the present case there is no such Memorandum of Understanding between EPL and ECL but the judgment of the High Court is not based only on the above premise rather High Court has clearly found that conditions stipulating under Section 3(2)(vii)(a)(i) of 1958 Act are not satisfied, hence, appellant no.1 is not entitled for exemption. High Court has elaborately considered all the submission raised by the appellant and rightly came to the conclusion that conditions as enumerated in Section 3(2)(vii) (a) are not fulfilled. We do not find any error in the aforesaid finding of the High Court.Claim under notification dated 27.02.199231. The notification dated 27.02.1992 was issued in exercise of power conferred by Section 3(3) of Bombay Electricity Act, 1958. The relevant part of the notification dated 27.02.1992, is as follows:-"NOTIFICATIONSachivalaya Gandhinagar27th February, 1992BOMBAY ELECTRICITY DUTY ACT, 1958No. GHC/92/10/JCP/1188/2594/KIn exercise of the powers conferred by Sub Section (3) of the Section 3 of the Bombay Electricity Duty Act,1958(Bom. XL of 1958), the Government of Gujarat hereby remitted with effect on and from the date of publication of this notification in the Official Gazette. In the whole of the State of Gujarat, the Electricity Duty payable under item (6) of Part I of Schedule II to the said Act, on the energy consumed for motive power and lighting for Industrial purposes by industrial under takings which generate energy jointly for their own use either by establishing an independent joint company solely for this purpose or on pro-rata cost sharing basis, for a period of ten years from the date of commissioning of the generating sets subject to the following terms and conditions namely:-(a) The generating set or sets shall have been purchased and installed or commissioned during the period beginning from 1st January, 1991 and ending on 31st December, 1992. Providing that such generating act or sets shall not have been previously used in the State.****** ******"32. The claim raised by the appellant under the above said notification was specifically dealt by the High Court and the Government. The condition which was found lacking for applicability of the notification was that generating sets were not purchased or installed or commissioned during the period from 01.01.1991 to 31.12.1992. The High Court has recorded categorical finding that the generating sets have been commissioned in the month of August 1995. It is useful to refer to paragraph 12.0 of the judgment of Division Bench which is to the following effect:-"12.0. Now, so far as the alternative claim of the appellants to grant the exemption for a period of 10 years under the Notification dated 27.02.1992 is concerned, on considering Notification dated 27.02.1992, it appears that the conditions precedent laid down in the said notification cannot be said to have been compiled by the appellants more particularly appellant No.1 - ESL. For claiming the benefit of notification dated 27.02.1992 it is to be established that the generating set or sets have been purchased/installed or commissioned during the period beginning from 01.01.1991 and ending on 31.12.1992. From the record it appears that the generating sets have been commissioned in the month of August 1995, the appellants have failed to establish that the generating sets were even purchased during the aforesaid period. It cannot be disputed that in a taxing statute more particularly with respect to the exemption from payment of duty, all the conditions which can be said to be statutory are required to be fulfilled and unless and until all the conditions stipulated in the exemption notification are satisfied and/or compiled with, there shall not be any exemption under the notification. In the present case, admittedly, the generating sets in question have been commissioned in the month of August 1995. The appellants have failed to establish that they even purchased the generating sets during the period beginning from 01.01.1991 to 31.12.1992. More placement of order for purchase cannot amount to actual purchase of the generating sets."33. Another reason given by the High Court was that no application was made within 180 days of application of the notification dated 27.02.1992 or even from the date of installation of generating sets i.e. August 1995. Even if the second reason given by the High Court is ignored, nonfulfillment of condition no.(a) of notification dated 27.02.1992 clearly entailed rejection of claim under notification dated 27.02.1992. There is no foundation or basis laid down even in this appeal to assail the finding recorded by the High Court that generating set was not purchased from 01.01.1991 to 31.12.1992.34. We thus do not find any error in rejection of claim of appellant under the notification dated 27.02.1992.
### Response:
0
### Explanation:
12. From the facts which have come on the record it is clear that appellant no.1 had claimed exemption from duty under the provisions of Section 3(2)(vii) as well as under the notification issued under Section 3(3) of 1958 Act for different period which exemption was earlier granted. Details of benefit of exemption availed by appellant no.1 has been extracted by Division Bench of High Court in Para 5.4 of the judgment.13. In the present case, no application in the prescribed form as per Rule 11 of the Rules was filed by the appellant no.1 and for the first time the appellant had come up with an application dated 15.03.2001 seeking an exemption under notification dated 27.02.1992 and subsequently on 12.04.2001 has again claimed exemption under Section 3(2)(vii)(a) (i) of 1958 Act. The exemption from payment of duty as claimed by the appellant is in two parts. Firstly, under Section 3(2)(vii)(a)(i) of 1958 Act and secondly, under the notification dated 27.02.1992.In the present case, there is no dispute to the fact that appellant No.2 was created as a Special Purpose Vehicle by appellant No.1 itself. Had appellant No.2 would have been supplying energy to appellant No.1 only, the claim deserved consideration. But present is a case where the appellant no.2 is supplying energy to industrial undertakings with whom it is not jointly generating the energy. Judgment of this Court in State of U.P. and Renusagar Company, thus, has no application in the facts of present case.The judgment of Andhra Pradesh Gas Power Corporation Limited is clearly distinguishable and does not help the appellant in present case. In the aforesaid case the energy was utilized by the participating industries and the concerned holding shares of A.P.GPCL but supply of energy to the sister concerned was required to have license. Present is a case where Gujarat Electricity Board who has been allocated 300 MW is not a participating industry nor appellant no.2 is jointly generating the energy with Gujarat Electricity Board, even if it is held that the appellant no.1 to the extent it holds 42% equity shares of appellant no.2 is jointly generating the energy. The Gujarat Electricity Board which has been allocated 58% of electricity generated can not be said as the industrial undertaking jointly generating the energy.In the above case the question of exemption in excise duty within meaning of Section 3(2) of 1958 Act had not arisen nor the question was considered whether EPL can be held to be generating energy jointly with appellant no.1 and Gujarat Electricity Board. For the issues which have arisen in the present case, the above judgment does not render any help.30.Learned Counsel for the appellant has submitted that the High Court had rejected the claim of payment only on the ground that there is no such Memorandum of Understanding between EPL and ECL as was found in A.P. Gas Power Limited (Supra). The High Court although has noted the fact that in the present case there is no such Memorandum of Understanding between EPL and ECL but the judgment of the High Court is not based only on the above premise rather High Court has clearly found that conditions stipulating under Section 3(2)(vii)(a)(i) of 1958 Act are not satisfied, hence, appellant no.1 is not entitled for exemption.High Court has elaborately considered all the submission raised by the appellant and rightly came to the conclusion that conditions as enumerated in Section 3(2)(vii) (a) are not fulfilled. We do not find any error in the aforesaid finding of the High Court.Another reason given by the High Court was that no application was made within 180 days of application of the notification dated 27.02.1992 or even from the date of installation of generating sets i.e. August 1995. Even if the second reason given by the High Court is ignored, nonfulfillment of condition no.(a) of notification dated 27.02.1992 clearly entailed rejection of claim under notification dated 27.02.1992. There is no foundation or basis laid down even in this appeal to assail the finding recorded by the High Court that generating set was not purchased from 01.01.1991 to 31.12.1992.34. We thus do not find any error in rejection of claim of appellant under the notification dated 27.02.1992.
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M/s. Dabur India Limited and Another Vs. State of Uttar Pradesh and Others | said Act show that multipoint tax on medicinal preparations containing alcohol was within the contemplation of the legislature otherwise there was no purpose in incorporating Section 4 into the Act. In this connection Section 4 of the 1955 Act may be referred to which is as follows: "4. Rebate of duty on alcohol, etc. supplied for manufacture of dutiable goods. - Where alcohol, narcotic drug or narcotic had been supplied to a manufacturer of any dutiable goods for use as an ingredient of such goods by, or under the authority of, the collecting government and a duty of excise on the goods so supplied had already been recovered by such government under any law for the time being in force, the collecting government shall, on an application being made to it in this behalf, grant in respect of the duty of excise, leviable under this Act, a rebate to such manufacturer of the excess, if any, of the duty so recovered over the duty leviable under this Act." * 26. In this case, however, the case of the petitioner is that duty has been recovered under the 1944 Act; if any refund has to be made, it must be made in accordance with law. There is a question of limitation for claiming refund of this duty. The provisions are not clear. In such a situation, it appears to us that the justice requires that provisions should be made more clear and in the view of the facts and the circumstances that have happened, we would direct that if the petitioners are entitled to any refund of the duty already paid to the Central Government in view of the duty imposition now upheld against them in favour of the State Government such refund application should be entertained and considered in accordance with law. We are conscious in giving this direction, we are not strictly following the letter and the provision of the Act. But in a case of this nature, where there is some doubt as to whether duty was payable to the Central Government under the 1944 Act or whether the item was dutiable under the 1955 Act, it would be just an proper and in consonance with justice in fiscal administration that the Central Government should consider in the light of the facts found, if an application is made under Section 11-B of the 1944 Act and pass appropriate order. Such application should be made within four months from the date of the judgment. In the facts and the circumstances of this case, the limitation period under Section 11-B of the 1944 Act should not apply. This direction, in our opinion, must be confined in the facts and the circumstances of this case only. 27. Our attention was drawn to the observation of this Court in Union of India v. Bombay Tyre International Ltd. in respect of the valuation. But the point not having been taken at any stage before the authorities, it is not proper for us at this stage to go into this question. We will proceed in view of the facts and the circumstances of this case and to do justice between the parties on the basis that the duty has been correctly imposed. We have looked into the order of the District Excise Officer, Ghaziabad and we find that all relevant facts have been considered and no facts were brought before us contrary to the findings nor any contentions of substance raised which can induce us to hold to the contrary. 28. Reference may also be made to the observations of this Court in Mohanlal Maganlal Bhavsar v. Union of India for the test to determine whether an item of medicinal preparation falls under Item 1 of the Schedule to the 1955 Act. It has been determined by the authorities enjoined to enforce that Act and such finding has not been assailed on any cogent or reliable ground in any proper manner. If that is the position, then that order must be upheld but it must be upheld that Homeodent was dutiable and as such the impugned order was correctly passed by the District Excise Officer. 29. Our attention was drawn to the observation of this Court in N. B. Sanjana, Assistant Collector of Central Excise v. Elphinstone Spinning and Weaving Mills Co. Ltd. But in view of the facts on which the parties rested their case before the authorities, it is not necessary at this stage to go into this controversy. 30. In the aforesaid view of the matter, we are of the opinion that the impugned order dated January 18, 1989 passed by the District Excise Officer, Ghaziabad, must be given effect to and thereafter the petitioners application for refund, if any, made before the authorities under Section 4 of the 1944 Act within the time indicated as before should be disposed of in the manner indicated above, if made. 31. Before we part with this case, two aspects have to be adverted to - one was regarding the allegation of the petitioner that in order to compel the petitioners to pay which the petitioners contented that they were not liable to pay, the licence was not being renewed for a period and the petitioner were constantly kept under threat of closing down their business in order to coerce them to make the payment. This is unfortunate. We would not like to hear from a litigant in this country that the Government is coercing citizens of this country to make payment of duties which the litigant is contending not to be leviable. Government, of course, is entitled to enforce payment and for that purpose to take all legal steps but the government. Central or State, cannot be permitted to play dirty games with the citizens of this country to coerce them in making payments which the citizens were not legally obliged to make. If any money is due to the government, the government should take steps but not take extra-legal steps or manoeuvre. | 1[ds]26. In this case, however, the case of the petitioner is that duty has been recovered under the 1944 Act; if any refund has to be made, it must be made in accordance with law. There is a question of limitation for claiming refund of this duty. The provisions are not clear. In such a situation, it appears to us that the justice requires that provisions should be made more clear and in the view of the facts and the circumstances that have happened, we would direct that if the petitioners are entitled to any refund of the duty already paid to the Central Government in view of the duty imposition now upheld against them in favour of the State Government such refund application should be entertained and considered in accordance with law. We are conscious in giving this direction, we are not strictly following the letter and the provision of the Act. But in a case of this nature, where there is some doubt as to whether duty was payable to the Central Government under the 1944 Act or whether the item was dutiable under the 1955 Act, it would be just an proper and in consonance with justice in fiscal administration that the Central Government should consider in the light of the facts found, if an application is made under Section 11-B of the 1944 Act and pass appropriate order. Such application should be made within four months from the date of the judgment. In the facts and the circumstances of this case, the limitation period under Section 11-B of the 1944 Act should not apply. This direction, in our opinion, must be confined in the facts and the circumstances of this caseOur attention was drawn to the observation of this Court in Union of India v. Bombay Tyre International Ltd. in respect of the valuation. But the point not having been taken at any stage before the authorities, it is not proper for us at this stage to go into this question. We will proceed in view of the facts and the circumstances of this case and to do justice between the parties on the basis that the duty has been correctly imposed. We have looked into the order of the District Excise Officer, Ghaziabad and we find that all relevant facts have been considered and no facts were brought before us contrary to the findings nor any contentions of substance raised which can induce us to hold to theReference may also be made to the observations of this Court in Mohanlal Maganlal Bhavsar v. Union of India for the test to determine whether an item of medicinal preparation falls under Item 1 of the Schedule to the 1955 Act. It has been determined by the authorities enjoined to enforce that Act and such finding has not been assailed on any cogent or reliable ground in any proper manner. If that is the position, then that order must be upheld but it must be upheld that Homeodent was dutiable and as such the impugned order was correctly passed by the District ExciseOur attention was drawn to the observation of this Court in N. B. Sanjana, Assistant Collector of Central Excise v. Elphinstone Spinning and Weaving Mills Co. Ltd. But in view of the facts on which the parties rested their case before the authorities, it is not necessary at this stage to go into thisIn the aforesaid view of the matter, we are of the opinion that the impugned order dated January 18, 1989 passed by the District Excise Officer, Ghaziabad, must be given effect to and thereafter the petitioners application for refund, if any, made before the authorities under Section 4 of the 1944 Act within the time indicated as before should be disposed of in the manner indicated above, ifBefore we part with this case, two aspects have to be adverted to - one was regarding the allegation of the petitioner that in order to compel the petitioners to pay which the petitioners contented that they were not liable to pay, the licence was not being renewed for a period and the petitioner were constantly kept under threat of closing down their business in order to coerce them to make the payment. This is unfortunate. We would not like to hear from a litigant in this country that the Government is coercing citizens of this country to make payment of duties which the litigant is contending not to be leviable. Government, of course, is entitled to enforce payment and for that purpose to take all legal steps but the government. Central or State, cannot be permitted to play dirty games with the citizens of this country to coerce them in making payments which the citizens were not legally obliged to make. If any money is due to the government, the government should take steps but not take extra-legal steps or manoeuvre. | 1 | 9,694 | 873 | ### 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:
said Act show that multipoint tax on medicinal preparations containing alcohol was within the contemplation of the legislature otherwise there was no purpose in incorporating Section 4 into the Act. In this connection Section 4 of the 1955 Act may be referred to which is as follows: "4. Rebate of duty on alcohol, etc. supplied for manufacture of dutiable goods. - Where alcohol, narcotic drug or narcotic had been supplied to a manufacturer of any dutiable goods for use as an ingredient of such goods by, or under the authority of, the collecting government and a duty of excise on the goods so supplied had already been recovered by such government under any law for the time being in force, the collecting government shall, on an application being made to it in this behalf, grant in respect of the duty of excise, leviable under this Act, a rebate to such manufacturer of the excess, if any, of the duty so recovered over the duty leviable under this Act." * 26. In this case, however, the case of the petitioner is that duty has been recovered under the 1944 Act; if any refund has to be made, it must be made in accordance with law. There is a question of limitation for claiming refund of this duty. The provisions are not clear. In such a situation, it appears to us that the justice requires that provisions should be made more clear and in the view of the facts and the circumstances that have happened, we would direct that if the petitioners are entitled to any refund of the duty already paid to the Central Government in view of the duty imposition now upheld against them in favour of the State Government such refund application should be entertained and considered in accordance with law. We are conscious in giving this direction, we are not strictly following the letter and the provision of the Act. But in a case of this nature, where there is some doubt as to whether duty was payable to the Central Government under the 1944 Act or whether the item was dutiable under the 1955 Act, it would be just an proper and in consonance with justice in fiscal administration that the Central Government should consider in the light of the facts found, if an application is made under Section 11-B of the 1944 Act and pass appropriate order. Such application should be made within four months from the date of the judgment. In the facts and the circumstances of this case, the limitation period under Section 11-B of the 1944 Act should not apply. This direction, in our opinion, must be confined in the facts and the circumstances of this case only. 27. Our attention was drawn to the observation of this Court in Union of India v. Bombay Tyre International Ltd. in respect of the valuation. But the point not having been taken at any stage before the authorities, it is not proper for us at this stage to go into this question. We will proceed in view of the facts and the circumstances of this case and to do justice between the parties on the basis that the duty has been correctly imposed. We have looked into the order of the District Excise Officer, Ghaziabad and we find that all relevant facts have been considered and no facts were brought before us contrary to the findings nor any contentions of substance raised which can induce us to hold to the contrary. 28. Reference may also be made to the observations of this Court in Mohanlal Maganlal Bhavsar v. Union of India for the test to determine whether an item of medicinal preparation falls under Item 1 of the Schedule to the 1955 Act. It has been determined by the authorities enjoined to enforce that Act and such finding has not been assailed on any cogent or reliable ground in any proper manner. If that is the position, then that order must be upheld but it must be upheld that Homeodent was dutiable and as such the impugned order was correctly passed by the District Excise Officer. 29. Our attention was drawn to the observation of this Court in N. B. Sanjana, Assistant Collector of Central Excise v. Elphinstone Spinning and Weaving Mills Co. Ltd. But in view of the facts on which the parties rested their case before the authorities, it is not necessary at this stage to go into this controversy. 30. In the aforesaid view of the matter, we are of the opinion that the impugned order dated January 18, 1989 passed by the District Excise Officer, Ghaziabad, must be given effect to and thereafter the petitioners application for refund, if any, made before the authorities under Section 4 of the 1944 Act within the time indicated as before should be disposed of in the manner indicated above, if made. 31. Before we part with this case, two aspects have to be adverted to - one was regarding the allegation of the petitioner that in order to compel the petitioners to pay which the petitioners contented that they were not liable to pay, the licence was not being renewed for a period and the petitioner were constantly kept under threat of closing down their business in order to coerce them to make the payment. This is unfortunate. We would not like to hear from a litigant in this country that the Government is coercing citizens of this country to make payment of duties which the litigant is contending not to be leviable. Government, of course, is entitled to enforce payment and for that purpose to take all legal steps but the government. Central or State, cannot be permitted to play dirty games with the citizens of this country to coerce them in making payments which the citizens were not legally obliged to make. If any money is due to the government, the government should take steps but not take extra-legal steps or manoeuvre.
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26. In this case, however, the case of the petitioner is that duty has been recovered under the 1944 Act; if any refund has to be made, it must be made in accordance with law. There is a question of limitation for claiming refund of this duty. The provisions are not clear. In such a situation, it appears to us that the justice requires that provisions should be made more clear and in the view of the facts and the circumstances that have happened, we would direct that if the petitioners are entitled to any refund of the duty already paid to the Central Government in view of the duty imposition now upheld against them in favour of the State Government such refund application should be entertained and considered in accordance with law. We are conscious in giving this direction, we are not strictly following the letter and the provision of the Act. But in a case of this nature, where there is some doubt as to whether duty was payable to the Central Government under the 1944 Act or whether the item was dutiable under the 1955 Act, it would be just an proper and in consonance with justice in fiscal administration that the Central Government should consider in the light of the facts found, if an application is made under Section 11-B of the 1944 Act and pass appropriate order. Such application should be made within four months from the date of the judgment. In the facts and the circumstances of this case, the limitation period under Section 11-B of the 1944 Act should not apply. This direction, in our opinion, must be confined in the facts and the circumstances of this caseOur attention was drawn to the observation of this Court in Union of India v. Bombay Tyre International Ltd. in respect of the valuation. But the point not having been taken at any stage before the authorities, it is not proper for us at this stage to go into this question. We will proceed in view of the facts and the circumstances of this case and to do justice between the parties on the basis that the duty has been correctly imposed. We have looked into the order of the District Excise Officer, Ghaziabad and we find that all relevant facts have been considered and no facts were brought before us contrary to the findings nor any contentions of substance raised which can induce us to hold to theReference may also be made to the observations of this Court in Mohanlal Maganlal Bhavsar v. Union of India for the test to determine whether an item of medicinal preparation falls under Item 1 of the Schedule to the 1955 Act. It has been determined by the authorities enjoined to enforce that Act and such finding has not been assailed on any cogent or reliable ground in any proper manner. If that is the position, then that order must be upheld but it must be upheld that Homeodent was dutiable and as such the impugned order was correctly passed by the District ExciseOur attention was drawn to the observation of this Court in N. B. Sanjana, Assistant Collector of Central Excise v. Elphinstone Spinning and Weaving Mills Co. Ltd. But in view of the facts on which the parties rested their case before the authorities, it is not necessary at this stage to go into thisIn the aforesaid view of the matter, we are of the opinion that the impugned order dated January 18, 1989 passed by the District Excise Officer, Ghaziabad, must be given effect to and thereafter the petitioners application for refund, if any, made before the authorities under Section 4 of the 1944 Act within the time indicated as before should be disposed of in the manner indicated above, ifBefore we part with this case, two aspects have to be adverted to - one was regarding the allegation of the petitioner that in order to compel the petitioners to pay which the petitioners contented that they were not liable to pay, the licence was not being renewed for a period and the petitioner were constantly kept under threat of closing down their business in order to coerce them to make the payment. This is unfortunate. We would not like to hear from a litigant in this country that the Government is coercing citizens of this country to make payment of duties which the litigant is contending not to be leviable. Government, of course, is entitled to enforce payment and for that purpose to take all legal steps but the government. Central or State, cannot be permitted to play dirty games with the citizens of this country to coerce them in making payments which the citizens were not legally obliged to make. If any money is due to the government, the government should take steps but not take extra-legal steps or manoeuvre.
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Panyam Cements & Mineral Industries Ltd Vs. Union Of India | of the limestone. Any further expenditure in transporting the limestone from the ‘pit head’ so defined, to the appellants’ factory was not so includible. In other words, the case made out by the respondents by the amendment to the written statement was rejected. An amount of Rs. 2,50,571.61p. was held to be due to the appellant by way of refund. Interest @ 12% per annum was also granted on the decreed amount from 27.4.1972 till realisation. The appellate Court upheld the reasoning of the Trial Court on 23rd January 1987 and came to the conclusion that the trial Court’s finding that the appellant had paid an excess amount of Rs. 2,50,571.61 p. was correct. No appeal has been preferred from the decision of the appellate Court by the respondents. The only question, therefore, is whether the appellant’s further claim for a refund of the balance of Rs. 16,08,308.02p. is permissible. 8. The appellant’s claim is founded on the definition of the word ‘pit’s head’ used in proviso (a) to Section 9(3) of the Act. According to the appellant, the word ‘pit’ had been wrongly construed by the Trial and High Courts not only by giving it the same meaning as ‘mine’ but also by importing the definition of the word ‘mine’ in the Mines Act, 1952 to define the word ‘pit-head’ in the 1957 Act. According to the appellant, ‘pit’ means the actual physical opening and the ‘pits head’ means the mouth of this opening. Therefore, according to the appellant, for the purposes of proviso (a) to Section 9(3) of the Act, the sale price of the mineral was to be ascertained with reference to the ‘pits head’ so defined and the royalty calculated on such sale price.9. Learned counsel for the respondents on the other hand has supported the reasoning of the Courts below. Both, the trial court as well a the High Court went into the question of the sale price of the limestone quarried by the appellant in the leased area in elaborate detail, an exercise which, as it now turns out was really futile. 10. On 23rd November, 1993, this Court in Saurashtra Cement and Chemicals Industries Ltd. vs. Union of India and Another’ (1994(1) SCC 226), disposed of an appeal from a decision of the Gujarat High Court which had, unlike the Andhra Pradesh High Court in WP No. 3276 of 1970, held that the 1970 Notification was not contrary to clause (a) of the proviso to sub-section (3) of Section 9 of the Act. In that case also the appellant was a manufacturer of cement and held a mining lease for excavating limestone like the appellant before us. The limestone mined was not sold but consumed in its own factory. The Union of India filed an affidavit before this Court showing the manner in which the royalty for limestone was fixed at Rs. 1.25 per tonne by the 1970 notification. It was stated that the restriction of 20% of the sale price of the mineral at the pit’s head was worked out by taking the average sale price of the minerals at the pit’s head for the entire country and the fixation of royalty by taking sale price of each unit in the country was not visualised by clause (a) nor was it practicable. This was accepted by this Court by saying. "Payment of royalty under sub-section (1) is in respect of mineral removal from area but fixation under clause (a) of proviso to sub-section (3) is related to mineral and not to area leased or the unit. It did not admittedly exceed 20% of the sale price of the mineral at the pit’s head if the average sale price of the mineral for the entire country is taken into account. From the provisions extracted earlier it is apparent that the law does not require that fixation of royalty should be unitwise. In fact it could not be as demonstrated in the counter- affidavit. It cannot therefore, be said that the notification issued by the Government were violative of the proviso". 11. Therefore, both in law and as matter of fact the fixation of Rs. 1.25 per tonne by the 1970 Notification was held to be valid and in accordance with proviso (a) of Section 9(3) of the Act. The view of Saurashtra Chemical is in keeping with subsequent observations of this Court in State of M.P. vs. Mahalaxmi Fabric Mills Ltd. (1995 (Supp.) 1 SCC 642) that: "The purpose of the Union control envisaged by Entry 54 and the MMRD Act, 1957, is to provide for proper development of mines and mineral areas and also to bring about a uniformity all over the country in regard to the minerals specified in Schedule I in the matter of royalties and, consequently, prices". (p.663) 12. Strictly speaking, therefore, since the substratum of the appellant’s claim in the suit was the High Court’s decision in WP 3276 of 1970, and since that decision is clearly not good law in view of the decision in Saurashtra Chemicals, the suit is liable to be dismissed. However, since the respondents had not impugned either the decision in WP 3276 of 1970 nor the decision of the High Court partly directing the appellants suit, we cannot follow what would otherwise have been the legal course. However, having regard to the decision of this Court in Saurashtra Chemicals (supra) the appellant’s submission that the words ‘pits head’ in proviso (a) of Section 9(3) of the Act must be construed to mean the mouth of a particular excavation in a particular leased area is entirely unacceptable. When this Court has allowed the calculation of royalty on limestone on the basis of a national average pit head sale price, the decision of the Trial Court and High Court to reject the appellant’s plea that the ‘sale price’ at the pit head must mean the price of limestone at the opening of each excavation within the leased area cannot be held to be erroneous. | 0[ds]12. Strictly speaking, therefore, since the substratum of theclaim in the suit was the Highdecision in WP 3276 of 1970, and since that decision is clearly not good law in view of the decision in Saurashtra Chemicals, the suit is liable to be dismissed. However, since the respondents had not impugned either the decision in WP 3276 of 1970 nor the decision of the High Court partly directing the appellants suit, we cannot follow what would otherwise have been the legal course. However, having regard to the decision of this Court in Saurashtra Chemicals (supra) thesubmission that the words ‘pitsin proviso (a) of Section 9(3) of the Act must be construed to mean the mouth of a particular excavation in a particular leased area is entirely unacceptable. When this Court has allowed the calculation of royalty on limestone on the basis of a national average pit head sale price, the decision of the Trial Court and High Court to reject theplea that the ‘saleat the pit head must mean the price of limestone at the opening of each excavation within the leased area cannot be held to be erroneous.Therefore, both in law and as matter of fact the fixation of Rs. 1.25 per tonne by the 1970 Notification was held to be valid and in accordance with proviso (a) of Section 9(3) of the Act. | 0 | 3,233 | 260 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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of the limestone. Any further expenditure in transporting the limestone from the ‘pit head’ so defined, to the appellants’ factory was not so includible. In other words, the case made out by the respondents by the amendment to the written statement was rejected. An amount of Rs. 2,50,571.61p. was held to be due to the appellant by way of refund. Interest @ 12% per annum was also granted on the decreed amount from 27.4.1972 till realisation. The appellate Court upheld the reasoning of the Trial Court on 23rd January 1987 and came to the conclusion that the trial Court’s finding that the appellant had paid an excess amount of Rs. 2,50,571.61 p. was correct. No appeal has been preferred from the decision of the appellate Court by the respondents. The only question, therefore, is whether the appellant’s further claim for a refund of the balance of Rs. 16,08,308.02p. is permissible. 8. The appellant’s claim is founded on the definition of the word ‘pit’s head’ used in proviso (a) to Section 9(3) of the Act. According to the appellant, the word ‘pit’ had been wrongly construed by the Trial and High Courts not only by giving it the same meaning as ‘mine’ but also by importing the definition of the word ‘mine’ in the Mines Act, 1952 to define the word ‘pit-head’ in the 1957 Act. According to the appellant, ‘pit’ means the actual physical opening and the ‘pits head’ means the mouth of this opening. Therefore, according to the appellant, for the purposes of proviso (a) to Section 9(3) of the Act, the sale price of the mineral was to be ascertained with reference to the ‘pits head’ so defined and the royalty calculated on such sale price.9. Learned counsel for the respondents on the other hand has supported the reasoning of the Courts below. Both, the trial court as well a the High Court went into the question of the sale price of the limestone quarried by the appellant in the leased area in elaborate detail, an exercise which, as it now turns out was really futile. 10. On 23rd November, 1993, this Court in Saurashtra Cement and Chemicals Industries Ltd. vs. Union of India and Another’ (1994(1) SCC 226), disposed of an appeal from a decision of the Gujarat High Court which had, unlike the Andhra Pradesh High Court in WP No. 3276 of 1970, held that the 1970 Notification was not contrary to clause (a) of the proviso to sub-section (3) of Section 9 of the Act. In that case also the appellant was a manufacturer of cement and held a mining lease for excavating limestone like the appellant before us. The limestone mined was not sold but consumed in its own factory. The Union of India filed an affidavit before this Court showing the manner in which the royalty for limestone was fixed at Rs. 1.25 per tonne by the 1970 notification. It was stated that the restriction of 20% of the sale price of the mineral at the pit’s head was worked out by taking the average sale price of the minerals at the pit’s head for the entire country and the fixation of royalty by taking sale price of each unit in the country was not visualised by clause (a) nor was it practicable. This was accepted by this Court by saying. "Payment of royalty under sub-section (1) is in respect of mineral removal from area but fixation under clause (a) of proviso to sub-section (3) is related to mineral and not to area leased or the unit. It did not admittedly exceed 20% of the sale price of the mineral at the pit’s head if the average sale price of the mineral for the entire country is taken into account. From the provisions extracted earlier it is apparent that the law does not require that fixation of royalty should be unitwise. In fact it could not be as demonstrated in the counter- affidavit. It cannot therefore, be said that the notification issued by the Government were violative of the proviso". 11. Therefore, both in law and as matter of fact the fixation of Rs. 1.25 per tonne by the 1970 Notification was held to be valid and in accordance with proviso (a) of Section 9(3) of the Act. The view of Saurashtra Chemical is in keeping with subsequent observations of this Court in State of M.P. vs. Mahalaxmi Fabric Mills Ltd. (1995 (Supp.) 1 SCC 642) that: "The purpose of the Union control envisaged by Entry 54 and the MMRD Act, 1957, is to provide for proper development of mines and mineral areas and also to bring about a uniformity all over the country in regard to the minerals specified in Schedule I in the matter of royalties and, consequently, prices". (p.663) 12. Strictly speaking, therefore, since the substratum of the appellant’s claim in the suit was the High Court’s decision in WP 3276 of 1970, and since that decision is clearly not good law in view of the decision in Saurashtra Chemicals, the suit is liable to be dismissed. However, since the respondents had not impugned either the decision in WP 3276 of 1970 nor the decision of the High Court partly directing the appellants suit, we cannot follow what would otherwise have been the legal course. However, having regard to the decision of this Court in Saurashtra Chemicals (supra) the appellant’s submission that the words ‘pits head’ in proviso (a) of Section 9(3) of the Act must be construed to mean the mouth of a particular excavation in a particular leased area is entirely unacceptable. When this Court has allowed the calculation of royalty on limestone on the basis of a national average pit head sale price, the decision of the Trial Court and High Court to reject the appellant’s plea that the ‘sale price’ at the pit head must mean the price of limestone at the opening of each excavation within the leased area cannot be held to be erroneous.
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12. Strictly speaking, therefore, since the substratum of theclaim in the suit was the Highdecision in WP 3276 of 1970, and since that decision is clearly not good law in view of the decision in Saurashtra Chemicals, the suit is liable to be dismissed. However, since the respondents had not impugned either the decision in WP 3276 of 1970 nor the decision of the High Court partly directing the appellants suit, we cannot follow what would otherwise have been the legal course. However, having regard to the decision of this Court in Saurashtra Chemicals (supra) thesubmission that the words ‘pitsin proviso (a) of Section 9(3) of the Act must be construed to mean the mouth of a particular excavation in a particular leased area is entirely unacceptable. When this Court has allowed the calculation of royalty on limestone on the basis of a national average pit head sale price, the decision of the Trial Court and High Court to reject theplea that the ‘saleat the pit head must mean the price of limestone at the opening of each excavation within the leased area cannot be held to be erroneous.Therefore, both in law and as matter of fact the fixation of Rs. 1.25 per tonne by the 1970 Notification was held to be valid and in accordance with proviso (a) of Section 9(3) of the Act.
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State Of Assam Vs. Bhubhan Chandra Datta & Anr | service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose. It is also provided that the rules made under Article 229 (2) shall, so far as they relate to salaries, allowances, leave or pensions require the approval of the Governor of the State. It is not disputed that the appointment of Bhubhan Chandra Dutta by the Chief Justice of the High Court at a salary of Rs. 1500/-per month with special allowance of Rs. 250/- per month was made without the approval of the Governor. If the Chief Justice of the High Court wanted to appoint the Registrar at the initial salary of Rs. 1500/- with a special salary of Rs. 250/- per month, special approval of the Governor should have been taken in view of the fact that the rules did not permit such salary and the higher salary involved greater financial burden on the Government. (See M. Gurumoorthy v. Accountant General Assam and Nagaland (1971) Supp SCR 420 = (AIR 1971 SC 1850 )).18. The special pay of Rs. 250/- per month which was granted by the Chief Justice to the Registrar . by his order dated 28 April 1967 was impeached by the State on the ground that Rule 3 (1) conferred power on the Chief Justice to fix the special pay only when the post is filled from the members of the Assam Judicial Service (Senior) Grade I. It was contended by the State that Bhubhan Chandra Dutta at the time of his appointment on 28 April. 1967 had retired from service and he was no longer as member of the Service and therefore he was not entitled to any special pay.19. On behalf of Bhubhan Chandra Dutta it was said that he was, at the time of appointment of the Registrar, the Presiding Officer, Industrial Tribunal, and. therefore, he was a member of the Judicial Service. The High Court interpreted Rule 3 (1) - to mean that whoever will be appointed as the Registrar will be a member of the State Judicial Service, and, therefore, Bhubhan Chandra Dutta on being appointed as the Registrar was entitled to the special Pay of Rs. 250/- per month. On 28 April, 1967 when Bhubhan Chandra Dutta was appointed as the Registrar of the High Court the post of the Presiding Officer, Industrial Tribunal was not included in the Assam Judicial Service (Senior) Grade I.This post was included in the Assam Judicial Service on 17 August 1967. That apart it is indisputable that Bhubhan Chandra Dutta had retired from the State Judicial Service on 28 April, 1967. It could not therefore, be said that a retired man can be a member of the Judicial Service or shall be borne on the service.20. Counsel on behalf of Bhubhan Chandra Dutta in the alternative submitted that under Rule 11 of the Assam and Nagaland High Court Service Rules the Chief Justice had power to fix the pay of Rs. 1500/- and the special pay of Rs. 250/- per month, Reliance was also placed on Fundamental Rule 19. Rule 11 and Fundamental Rule 19 are set out hereunder :-"Rule 11(i) In regard to pay, allowances leave, leave salary or pension, the Rules and Regulations applicable to the members of the services under the rule making power of the Government of Assam shall apply, mutatis mutandis to persons serving in this High Court and subject also to such amendments and variations as may be made by the Chief Justice from time to time with the approval of the Governor, where necessary.Provided that the powers exercisable under the said rules and orders by the Governor or by any authority subordinate to the Governor shall be exercisable by the Chief Justice or by such person as he may, by special or general order direct.(ii) Any question arising as to which rules or orders are applicable to the case of any person serving on the staff attached to the High Court shall be decided by the Chief Justice."F.R. 19"The fixation of pay is within the competence of the Provincial Government; provided that, except in the case of personal pay granted in the circumstances defined in Rule 9 (23) (a), the pay of a Government servant shall not be so increased as to exceed the pay sanctioned for his post without the sanction of an authority competent to create a post in the same cadre on a rate of pay equal to his pay when increased."21. The High Court held that the Chief Justice under Rule 11 (i) read with Fundamental Rule 19 could fix the pay of the Registrar at Rs.1500/-, Rule 11 is not applicable to the appointment and fixation of pay and special pay of the Registrar because there is a specific provision made exclusively for the post of the Registrar. Rule 3 (1) prevails over Rule 11 which is a general rule. The revision of pay scale from time to time since 1956 cannot alter the content and meaning of Rule 3 (1). The revision of pay scales cannot have the effect of transferring the power - from Rule 3 (1) to Rule 11. Further Rule 11 must be read subject to the proviso to Article 229 (2) of the Constitution. Any fixation of pay by the Chief Justice apart from Rule 3 (1) requires the approval of the Governor. Fundamental Rule 19 does not permit the fixation of pay in the teeth of Rule 3 (1) on the strength of Rule 11.22. The High Court was wrong in granting a mandamus. The Respondent Bhubhan Chandra Dutta was entitled only to the initial pay of Rs. 1200/- less pension and (pension) (sic) equivalent to gratuity. The amount was calculated by the Accountant General at list 870.75. Bhubhan Chandra Dutta was not entitled to any special pay. | 1[ds]8. There is no dispute that under Article 229 of the Constitution the appointment of the Registrar is to be made by the Chief Justice of the High Court. It may be stated here that under Rule 7 of the Assam and Nagaland High Court Services (Appointment, Conditions of Service and Conduct) Rules. 1967, a person who had retired from the State Judicial Service Grade I could be appointedview of the fact that Bhubhan Chandra Dutta had already retired from the Judicial Service and was drawing pension, it is common ground that the pension that he was drawing was to be deducted from the salary of Rs. 1500/-.1500/-.15. At no stage could the Chief Justice fix the initial pay up to the maximum of the scale of pay which remained constant - at Rs. 1500/- all throughout, notwithstanding the two revisions in the scale of pay. On the other hand, it appears that at no time the Chief Justice was empowered to fix the initial pay higher than Rs. 1200/-. When the scale of Pay was revised in 1964 it is significant to know that the power of the Chief Justice to fix the initial pay was reduced from Rs. 1200/- to Rs. 1180/-.16. Just because the initial pay of the Registrar in 1967 became Rupees 1200/- and with five increments the salary would be Rs. 1500/- no implication can arise on the power of the Chief Justice to appoint the Registrar at the initial pay of Rs. 1500/-. The reasoning of the High Court that because in the past under the Rules the Chief Justice could appoint the Registrar at the initial pay of Rs, 1200/- or at Rs. 1180/- which showed that the initial pay of Rs. 1200/or Rs. 1180/- gave six increments at the time of initial appointment, there is no warrant for implying the power to appoint the Registrar at the highest salary of Rs. 1500/- at the time of initial appointment on the ground that it could carryis not disputed that the appointment of Bhubhan Chandra Dutta by the Chief Justice of the High Court at a salary of Rs. 1500/-per month with special allowance of Rs. 250/- per month was made without the approval of the Governor. If the Chief Justice of the High Court wanted to appoint the Registrar at the initial salary of Rs. 1500/- with a special salary of Rs. 250/- per month, special approval of the Governor should have been taken in view of the fact that the rules did not permit such salary and the higher salary involved greater financial burden on theHigh Court interpreted Rule 3 (1) - to mean that whoever will be appointed as the Registrar will be a member of the State Judicial Service, and, therefore, Bhubhan Chandra Dutta on being appointed as the Registrar was entitled to the special Pay of Rs. 250/- per month. On 28 April, 1967 when Bhubhan Chandra Dutta was appointed as the Registrar of the High Court the post of the Presiding Officer, Industrial Tribunal was not included in the Assam Judicial Service (Senior) Grade I.This post was included in the Assam Judicial Service on 17 August 1967. That apart it is indisputable that Bhubhan Chandra Dutta had retired from the State Judicial Service on 28 April, 1967. It could not therefore, be said that a retired man can be a member of the Judicial Service or shall be borne on the service.The High Court held that the Chief Justice under Rule 11 (i) read with Fundamental Rule 19 could fix the pay of the Registrar at Rs.1500/-, Rule 11 is not applicable to the appointment and fixation of pay and special pay of the Registrar because there is a specific provision made exclusively for the post of the Registrar. Rule 3 (1) prevails over Rule 11 which is a general rule. The revision of pay scale from time to time since 1956 cannot alter the content and meaning of Rule 3 (1). The revision of pay scales cannot have the effect of transferring the power - from Rule 3 (1) to Rule 11. Further Rule 11 must be read subject to the proviso to Article 229 (2) of the Constitution. Any fixation of pay by the Chief Justice apart from Rule 3 (1) requires the approval of the Governor. Fundamental Rule 19 does not permit the fixation of pay in the teeth of Rule 3 (1) on the strength of Rule 11.22. The High Court was wrong in granting a mandamus. The Respondent Bhubhan Chandra Dutta was entitled only to the initial pay of Rs. 1200/- less pension and (pension) (sic) equivalent to gratuity. The amount was calculated by the Accountant General at list 870.75. Bhubhan Chandra Dutta was not entitled to any special pay.In view of the fact that the appeal is by special leave we need not express any opinion on the contention advanced on behalf of the State that the High Court should not have entertained a. writ for the enforcement of a contractual claim or a monetary claim. | 1 | 2,699 | 930 | ### Instruction:
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service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose. It is also provided that the rules made under Article 229 (2) shall, so far as they relate to salaries, allowances, leave or pensions require the approval of the Governor of the State. It is not disputed that the appointment of Bhubhan Chandra Dutta by the Chief Justice of the High Court at a salary of Rs. 1500/-per month with special allowance of Rs. 250/- per month was made without the approval of the Governor. If the Chief Justice of the High Court wanted to appoint the Registrar at the initial salary of Rs. 1500/- with a special salary of Rs. 250/- per month, special approval of the Governor should have been taken in view of the fact that the rules did not permit such salary and the higher salary involved greater financial burden on the Government. (See M. Gurumoorthy v. Accountant General Assam and Nagaland (1971) Supp SCR 420 = (AIR 1971 SC 1850 )).18. The special pay of Rs. 250/- per month which was granted by the Chief Justice to the Registrar . by his order dated 28 April 1967 was impeached by the State on the ground that Rule 3 (1) conferred power on the Chief Justice to fix the special pay only when the post is filled from the members of the Assam Judicial Service (Senior) Grade I. It was contended by the State that Bhubhan Chandra Dutta at the time of his appointment on 28 April. 1967 had retired from service and he was no longer as member of the Service and therefore he was not entitled to any special pay.19. On behalf of Bhubhan Chandra Dutta it was said that he was, at the time of appointment of the Registrar, the Presiding Officer, Industrial Tribunal, and. therefore, he was a member of the Judicial Service. The High Court interpreted Rule 3 (1) - to mean that whoever will be appointed as the Registrar will be a member of the State Judicial Service, and, therefore, Bhubhan Chandra Dutta on being appointed as the Registrar was entitled to the special Pay of Rs. 250/- per month. On 28 April, 1967 when Bhubhan Chandra Dutta was appointed as the Registrar of the High Court the post of the Presiding Officer, Industrial Tribunal was not included in the Assam Judicial Service (Senior) Grade I.This post was included in the Assam Judicial Service on 17 August 1967. That apart it is indisputable that Bhubhan Chandra Dutta had retired from the State Judicial Service on 28 April, 1967. It could not therefore, be said that a retired man can be a member of the Judicial Service or shall be borne on the service.20. Counsel on behalf of Bhubhan Chandra Dutta in the alternative submitted that under Rule 11 of the Assam and Nagaland High Court Service Rules the Chief Justice had power to fix the pay of Rs. 1500/- and the special pay of Rs. 250/- per month, Reliance was also placed on Fundamental Rule 19. Rule 11 and Fundamental Rule 19 are set out hereunder :-"Rule 11(i) In regard to pay, allowances leave, leave salary or pension, the Rules and Regulations applicable to the members of the services under the rule making power of the Government of Assam shall apply, mutatis mutandis to persons serving in this High Court and subject also to such amendments and variations as may be made by the Chief Justice from time to time with the approval of the Governor, where necessary.Provided that the powers exercisable under the said rules and orders by the Governor or by any authority subordinate to the Governor shall be exercisable by the Chief Justice or by such person as he may, by special or general order direct.(ii) Any question arising as to which rules or orders are applicable to the case of any person serving on the staff attached to the High Court shall be decided by the Chief Justice."F.R. 19"The fixation of pay is within the competence of the Provincial Government; provided that, except in the case of personal pay granted in the circumstances defined in Rule 9 (23) (a), the pay of a Government servant shall not be so increased as to exceed the pay sanctioned for his post without the sanction of an authority competent to create a post in the same cadre on a rate of pay equal to his pay when increased."21. The High Court held that the Chief Justice under Rule 11 (i) read with Fundamental Rule 19 could fix the pay of the Registrar at Rs.1500/-, Rule 11 is not applicable to the appointment and fixation of pay and special pay of the Registrar because there is a specific provision made exclusively for the post of the Registrar. Rule 3 (1) prevails over Rule 11 which is a general rule. The revision of pay scale from time to time since 1956 cannot alter the content and meaning of Rule 3 (1). The revision of pay scales cannot have the effect of transferring the power - from Rule 3 (1) to Rule 11. Further Rule 11 must be read subject to the proviso to Article 229 (2) of the Constitution. Any fixation of pay by the Chief Justice apart from Rule 3 (1) requires the approval of the Governor. Fundamental Rule 19 does not permit the fixation of pay in the teeth of Rule 3 (1) on the strength of Rule 11.22. The High Court was wrong in granting a mandamus. The Respondent Bhubhan Chandra Dutta was entitled only to the initial pay of Rs. 1200/- less pension and (pension) (sic) equivalent to gratuity. The amount was calculated by the Accountant General at list 870.75. Bhubhan Chandra Dutta was not entitled to any special pay.
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8. There is no dispute that under Article 229 of the Constitution the appointment of the Registrar is to be made by the Chief Justice of the High Court. It may be stated here that under Rule 7 of the Assam and Nagaland High Court Services (Appointment, Conditions of Service and Conduct) Rules. 1967, a person who had retired from the State Judicial Service Grade I could be appointedview of the fact that Bhubhan Chandra Dutta had already retired from the Judicial Service and was drawing pension, it is common ground that the pension that he was drawing was to be deducted from the salary of Rs. 1500/-.1500/-.15. At no stage could the Chief Justice fix the initial pay up to the maximum of the scale of pay which remained constant - at Rs. 1500/- all throughout, notwithstanding the two revisions in the scale of pay. On the other hand, it appears that at no time the Chief Justice was empowered to fix the initial pay higher than Rs. 1200/-. When the scale of Pay was revised in 1964 it is significant to know that the power of the Chief Justice to fix the initial pay was reduced from Rs. 1200/- to Rs. 1180/-.16. Just because the initial pay of the Registrar in 1967 became Rupees 1200/- and with five increments the salary would be Rs. 1500/- no implication can arise on the power of the Chief Justice to appoint the Registrar at the initial pay of Rs. 1500/-. The reasoning of the High Court that because in the past under the Rules the Chief Justice could appoint the Registrar at the initial pay of Rs, 1200/- or at Rs. 1180/- which showed that the initial pay of Rs. 1200/or Rs. 1180/- gave six increments at the time of initial appointment, there is no warrant for implying the power to appoint the Registrar at the highest salary of Rs. 1500/- at the time of initial appointment on the ground that it could carryis not disputed that the appointment of Bhubhan Chandra Dutta by the Chief Justice of the High Court at a salary of Rs. 1500/-per month with special allowance of Rs. 250/- per month was made without the approval of the Governor. If the Chief Justice of the High Court wanted to appoint the Registrar at the initial salary of Rs. 1500/- with a special salary of Rs. 250/- per month, special approval of the Governor should have been taken in view of the fact that the rules did not permit such salary and the higher salary involved greater financial burden on theHigh Court interpreted Rule 3 (1) - to mean that whoever will be appointed as the Registrar will be a member of the State Judicial Service, and, therefore, Bhubhan Chandra Dutta on being appointed as the Registrar was entitled to the special Pay of Rs. 250/- per month. On 28 April, 1967 when Bhubhan Chandra Dutta was appointed as the Registrar of the High Court the post of the Presiding Officer, Industrial Tribunal was not included in the Assam Judicial Service (Senior) Grade I.This post was included in the Assam Judicial Service on 17 August 1967. That apart it is indisputable that Bhubhan Chandra Dutta had retired from the State Judicial Service on 28 April, 1967. It could not therefore, be said that a retired man can be a member of the Judicial Service or shall be borne on the service.The High Court held that the Chief Justice under Rule 11 (i) read with Fundamental Rule 19 could fix the pay of the Registrar at Rs.1500/-, Rule 11 is not applicable to the appointment and fixation of pay and special pay of the Registrar because there is a specific provision made exclusively for the post of the Registrar. Rule 3 (1) prevails over Rule 11 which is a general rule. The revision of pay scale from time to time since 1956 cannot alter the content and meaning of Rule 3 (1). The revision of pay scales cannot have the effect of transferring the power - from Rule 3 (1) to Rule 11. Further Rule 11 must be read subject to the proviso to Article 229 (2) of the Constitution. Any fixation of pay by the Chief Justice apart from Rule 3 (1) requires the approval of the Governor. Fundamental Rule 19 does not permit the fixation of pay in the teeth of Rule 3 (1) on the strength of Rule 11.22. The High Court was wrong in granting a mandamus. The Respondent Bhubhan Chandra Dutta was entitled only to the initial pay of Rs. 1200/- less pension and (pension) (sic) equivalent to gratuity. The amount was calculated by the Accountant General at list 870.75. Bhubhan Chandra Dutta was not entitled to any special pay.In view of the fact that the appeal is by special leave we need not express any opinion on the contention advanced on behalf of the State that the High Court should not have entertained a. writ for the enforcement of a contractual claim or a monetary claim.
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Singareni Collieries Co. Ltd Vs. State Of Andhra Pradesh And Others | is immaterial that property in the goods has under the general law relating to sale of goods passed in another State in which the allottee resided or carried on business. Delivery of coal to the Railway Administration may amount to delivery to the allottee for the purpose of the general law relating to sale of goods, but thereby coal cannot be said to be "actually delivered" within the meaning of the Explanation to Art. 286 (1) (a). It is also true that under the terms of the sale- note under which coal was despatched on terms F. O. R. Singareni the Company was not responsible for loss or damage to the consignment after it was loaded in the wagons, that may indicate that the Company had no property in the goods after it was in transit. But determination of the State in which sale shall be deemed to have taken place is artificially determined not by terms of the contract of sale, nor by the legal concept of passing of passing in the goods sold by the delivery for the purpose of consumption. (sic) As observed by Das Ag. C. J. in the Bengal Immunity Companys case, 1955-2 SCR 603 : ((S) AIR 1955 SC 661 )."The shifting of situs of a sale or purchase from its actual situs under the general law to a fictional situs under the Explanation takes the sale or purchase out of the taxing power of all States other than the State where the situs is fictionally fixed." Sales-tax under the Hyderabad General Sales Tax Act on transactions of coal delivered to the Railway or other carrier for carriage to places outside the taxing State and for delivery for consumption therein is therefore not leviable to be by virtue of the Explanation to Art. 286 (1). 22. Fro the period September 7, 1955 to September 10, 1956, the turnover from sale of coal actually delivered outside the State of Andhra for consumption in those States would also be exempt from liability because the Explanation continued to remain in force till September 10, 1956. The Company would also be entitled to exemption from liability to tax because the State had during that period no power to levy tax on inter-State sales. As pointed out by Venkatarama Ayyar, J., in the Bengal Immunity Companys case, 1955-2 SCR 603 : ((S) AIR 1955 SC 661 )."A sale could be said to begin the course of inter-State trade only if two conditions concur: (1) A sale of goods, and (2) a transport of those goods from one State to another under the contract of sale. Unless both these conditions are satisfied, there can be no sale in the course of inter-State trade." In these transactions relating to supply of coal, which we have assumed are sales, coal was transported in pursuance of the allotment orders to other States. We have also assumed for the purpose of this argument that compliance with allotment orders resulted in a contract of sale. The transactions were unquestionably in the course of inter-State trade. 23. For the period September 11, 1956 to January 4, 1957 Art. 286 (2) stood repealed and there was no power in the State to tax an inter-State sale. For the period between January 5, 1957 and March 31, 1957 the power to tax inter-State sales was governed by the Central Sales Tax, Act, 1956. By the Constitution (Sixth Amendment) Act amending Art 286 (2) and incorporating Entry 92-A in List 1 of the Seventh Schedule read with Art. 269 (3) the power to tax sales in the course of inter-State trade or commerce rested with the Central Government. Sales-tax for the period from January 5, 1957 to March 31, 1957, has not been levied under the Central Sales Tax Act, 1956, and if the transactions by the Company were taxable under that Act, the State of Andhra Pradesh had no power to tax those transactions. As transactions of sale in the course of inter-State trade or commerce within the meaning of S. 3 they could not be taxed under the Hyderabad General Sales Tax Act, 1950. Section 3 of the Central Sales Tax Act, 1956 provides that"a sale x x of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale x x occasions the movement of goods from one State to another or is effected by a transfer of documents of title to the goods during their movement from one State to another". 24. In Tata Iron and Steel Co. Ltd. Bombay v. S. R. Sarkar, 1961-1 SCR 379 : (AIR 1961 SC 65 ), this Court held that Cl. (a) of S 3 covers sales in which the movement of goods from one State to another is the result of a covenant or incident of the contract of sale, and property in the goods passes in either State. That view was reaffirmed in State Trading Corporation of India Ltd v. State of Mysore, 1963-14 STC 188: (AIR 1963 SC 548 ), and Cement Marketing Company of India v. State of Mysore, 1963-14 STC 175 : (AIR 1963 SC 980 ). 25. Coal in the appeals under review was transported from the colliery of the Company to the consumers outside the taxing State, as a result of the covenant or incident of the contract of sale and therefore the sale must be regarded as an inter-State sale and not liable to be taxed under the Hyderabad General Sales Tax Act. 1950.The High Court was, in our view, in error in holding that the turnover of the Company in which coal was loaded in railway wagons for conveyance to places outside the taxing State was taxable under the Hyderabad General Sales Tax Act. In that view we do not think it necessary to decide whether the Commissioner of Commercial Taxes was right in re-opening the assessments for the years 1954-55 and 1955-56 in the manner he has purported to do 26. | 1[ds]9. Broadly speaking the scheme of the Colliery Control Order was that no person could acquire or purchase or agree to acquire or purchase any coal from a colliery and no colliery owner could sell or agree to sell or despatch coal from the colliery, except under the authority and in accordance with the conditions prescribed by the Coal Commissioner, and that the person to whom coal was supplied also could not utilise it for a purpose other than the purpose for which it was supplied, nor could he dispose of coal supplied to him. Supply, use and disposal of coal were, therefore, regulated from the stage of production till consumptionThe Coal Commissioner addressed a letter to a colliery authorising it to despatch on the request of the specified consumers coal not exceeding the quantities mentioned during certain months and according to the schedule appended. In the Schedule appended to the letter were set out the names of the concerns to whom coal was to be supplied. Intimation of the despatch instructions was given to the consumers individually Acting upon this intimation, the consumer addressed a letter to the colliery requesting that the quantity of coal allotted may be despatched to him by train and gave instructions regarding booking, the name of the person to whom coal may be consigned, and also about the collection of price of coal suppliedThe colliery then loaded coal in railway wagons making out a sale note mentioning the cost per ton F. O. R. Colliery with "freight to pay" and despatched the same by rail to the consumer at the destination requested. In the "sale note" were set out the name of the buyer, grade and quantity of coal allotted, the terms of sale, cost per ton F. O. R. Colliery, other charges, and particulars of despatch, such as the name of the Railway Station to which the coal should be booked and the name of the consignee. The sale note was subject to conditions of sale, that the colliery shall not be responsible for non-delivery or late delivery of coal or for any loss occasioned in consequence of fire, snow, heat, flood, strikes, lockouts, shortage of wagons, restrictions on booking, accidental losses, etc, that any taxes, export duty, cess or other charges not in force imposed by the Government after the date of the sale note shall be borne by the purchaser: that the colliery reserved the right to demand payment in advance and to have a right of lien on all coal despatched until it was paid for: that the sale note was subject to the quantity allotted by the Deputy Coal Commissioner for buyers outside the State and in the event of the Deputy Coal Commissioner cancelling the whole or any part of the said allotment such cancellation shall be deemed to apply equally to the sale note11. Under the terms of the "sale note" the property in the coal consigned passed, so far as the colliery was concerned, to the allottee-original or substituted-when the goods were loaded into the railway wagons for conveyance, and thereafter all losses and any new taxes imposed were to be borne by the purchaser, the colliery having only a right of lien on coal not paid for. Coal supplied was meant for consumption by the allottee: therefore, when the allottee was outside the State, it was supplied for the purpose of consumption in the State in which the allottee resided or carried on business12. In view of the legislative developments which we will presently notice the period of the three assessment years may be divided into four sub-periods. They are: April 1. 1954 to September 6, 1955; September 7, 1955 to September 10, 1956, September 11, 1956 to January 4, 1957 and January 5, 1957 to March 31. 1957. In making this sub-division we have not taken into account the application of the States Reorganisation Act as a result of which on November 1,1956, the Part B State of Hyderabad ceased to exitence by merger of certain areas including parts of the State of Hyderabad. The effect of the Reorganisation Act had a bearing only on the territorial operation of the constitutional prohibitions under Art. 286Article 286 thus imposed qua sales four bans upon legislative power of the StatesThat State alone in which the sale is deemed to take place has the power to tax the sale, and for this purpose it is immaterial that property in the goods has under the general law relating to sale of goods passed in another State in which the allottee resided or carried on business. Delivery of coal to the Railway Administration may amount to delivery to the allottee for the purpose of the general law relating to sale of goods, but thereby coal cannot be said to be "actually delivered" within the meaning of the Explanation to Art. 286 (1) (a). It is also true that under the terms of the sale- note under which coal was despatched on terms F. O. R. Singareni the Company was not responsible for loss or damage to the consignment after it was loaded in the wagons, that may indicate that the Company had no property in the goods after it was in transit. But determination of the State in which sale shall be deemed to have taken place is artificially determined not by terms of the contract of sale, nor by the legal concept of passing of passing in the goods sold by the delivery for the purpose of consumptionSales-tax under the Hyderabad General Sales Tax Act on transactions of coal delivered to the Railway or other carrier for carriage to places outside the taxing State and for delivery for consumption therein is therefore not leviable to be by virtue of the Explanation to Art. 286 (1)Coal in the appeals under review was transported from the colliery of the Company to the consumers outside the taxing State, as a result of the covenant or incident of the contract of sale and therefore the sale must be regarded as an inter-State sale and not liable to be taxed under the Hyderabad General Sales Tax Act. 1950.The High Court was, in our view, in error in holding that the turnover of the Company in which coal was loaded in railway wagons for conveyance to places outside the taxing State was taxable under the Hyderabad General Sales Tax Act. In that view we do not think it necessary to decide whether the Commissioner of Commercial Taxes was right in re-opening the assessments for the years 1954-55 and 1955-56 in the manner he has purported to do | 1 | 6,000 | 1,199 | ### 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:
is immaterial that property in the goods has under the general law relating to sale of goods passed in another State in which the allottee resided or carried on business. Delivery of coal to the Railway Administration may amount to delivery to the allottee for the purpose of the general law relating to sale of goods, but thereby coal cannot be said to be "actually delivered" within the meaning of the Explanation to Art. 286 (1) (a). It is also true that under the terms of the sale- note under which coal was despatched on terms F. O. R. Singareni the Company was not responsible for loss or damage to the consignment after it was loaded in the wagons, that may indicate that the Company had no property in the goods after it was in transit. But determination of the State in which sale shall be deemed to have taken place is artificially determined not by terms of the contract of sale, nor by the legal concept of passing of passing in the goods sold by the delivery for the purpose of consumption. (sic) As observed by Das Ag. C. J. in the Bengal Immunity Companys case, 1955-2 SCR 603 : ((S) AIR 1955 SC 661 )."The shifting of situs of a sale or purchase from its actual situs under the general law to a fictional situs under the Explanation takes the sale or purchase out of the taxing power of all States other than the State where the situs is fictionally fixed." Sales-tax under the Hyderabad General Sales Tax Act on transactions of coal delivered to the Railway or other carrier for carriage to places outside the taxing State and for delivery for consumption therein is therefore not leviable to be by virtue of the Explanation to Art. 286 (1). 22. Fro the period September 7, 1955 to September 10, 1956, the turnover from sale of coal actually delivered outside the State of Andhra for consumption in those States would also be exempt from liability because the Explanation continued to remain in force till September 10, 1956. The Company would also be entitled to exemption from liability to tax because the State had during that period no power to levy tax on inter-State sales. As pointed out by Venkatarama Ayyar, J., in the Bengal Immunity Companys case, 1955-2 SCR 603 : ((S) AIR 1955 SC 661 )."A sale could be said to begin the course of inter-State trade only if two conditions concur: (1) A sale of goods, and (2) a transport of those goods from one State to another under the contract of sale. Unless both these conditions are satisfied, there can be no sale in the course of inter-State trade." In these transactions relating to supply of coal, which we have assumed are sales, coal was transported in pursuance of the allotment orders to other States. We have also assumed for the purpose of this argument that compliance with allotment orders resulted in a contract of sale. The transactions were unquestionably in the course of inter-State trade. 23. For the period September 11, 1956 to January 4, 1957 Art. 286 (2) stood repealed and there was no power in the State to tax an inter-State sale. For the period between January 5, 1957 and March 31, 1957 the power to tax inter-State sales was governed by the Central Sales Tax, Act, 1956. By the Constitution (Sixth Amendment) Act amending Art 286 (2) and incorporating Entry 92-A in List 1 of the Seventh Schedule read with Art. 269 (3) the power to tax sales in the course of inter-State trade or commerce rested with the Central Government. Sales-tax for the period from January 5, 1957 to March 31, 1957, has not been levied under the Central Sales Tax Act, 1956, and if the transactions by the Company were taxable under that Act, the State of Andhra Pradesh had no power to tax those transactions. As transactions of sale in the course of inter-State trade or commerce within the meaning of S. 3 they could not be taxed under the Hyderabad General Sales Tax Act, 1950. Section 3 of the Central Sales Tax Act, 1956 provides that"a sale x x of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale x x occasions the movement of goods from one State to another or is effected by a transfer of documents of title to the goods during their movement from one State to another". 24. In Tata Iron and Steel Co. Ltd. Bombay v. S. R. Sarkar, 1961-1 SCR 379 : (AIR 1961 SC 65 ), this Court held that Cl. (a) of S 3 covers sales in which the movement of goods from one State to another is the result of a covenant or incident of the contract of sale, and property in the goods passes in either State. That view was reaffirmed in State Trading Corporation of India Ltd v. State of Mysore, 1963-14 STC 188: (AIR 1963 SC 548 ), and Cement Marketing Company of India v. State of Mysore, 1963-14 STC 175 : (AIR 1963 SC 980 ). 25. Coal in the appeals under review was transported from the colliery of the Company to the consumers outside the taxing State, as a result of the covenant or incident of the contract of sale and therefore the sale must be regarded as an inter-State sale and not liable to be taxed under the Hyderabad General Sales Tax Act. 1950.The High Court was, in our view, in error in holding that the turnover of the Company in which coal was loaded in railway wagons for conveyance to places outside the taxing State was taxable under the Hyderabad General Sales Tax Act. In that view we do not think it necessary to decide whether the Commissioner of Commercial Taxes was right in re-opening the assessments for the years 1954-55 and 1955-56 in the manner he has purported to do 26.
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### Explanation:
regulated from the stage of production till consumptionThe Coal Commissioner addressed a letter to a colliery authorising it to despatch on the request of the specified consumers coal not exceeding the quantities mentioned during certain months and according to the schedule appended. In the Schedule appended to the letter were set out the names of the concerns to whom coal was to be supplied. Intimation of the despatch instructions was given to the consumers individually Acting upon this intimation, the consumer addressed a letter to the colliery requesting that the quantity of coal allotted may be despatched to him by train and gave instructions regarding booking, the name of the person to whom coal may be consigned, and also about the collection of price of coal suppliedThe colliery then loaded coal in railway wagons making out a sale note mentioning the cost per ton F. O. R. Colliery with "freight to pay" and despatched the same by rail to the consumer at the destination requested. In the "sale note" were set out the name of the buyer, grade and quantity of coal allotted, the terms of sale, cost per ton F. O. R. Colliery, other charges, and particulars of despatch, such as the name of the Railway Station to which the coal should be booked and the name of the consignee. The sale note was subject to conditions of sale, that the colliery shall not be responsible for non-delivery or late delivery of coal or for any loss occasioned in consequence of fire, snow, heat, flood, strikes, lockouts, shortage of wagons, restrictions on booking, accidental losses, etc, that any taxes, export duty, cess or other charges not in force imposed by the Government after the date of the sale note shall be borne by the purchaser: that the colliery reserved the right to demand payment in advance and to have a right of lien on all coal despatched until it was paid for: that the sale note was subject to the quantity allotted by the Deputy Coal Commissioner for buyers outside the State and in the event of the Deputy Coal Commissioner cancelling the whole or any part of the said allotment such cancellation shall be deemed to apply equally to the sale note11. Under the terms of the "sale note" the property in the coal consigned passed, so far as the colliery was concerned, to the allottee-original or substituted-when the goods were loaded into the railway wagons for conveyance, and thereafter all losses and any new taxes imposed were to be borne by the purchaser, the colliery having only a right of lien on coal not paid for. Coal supplied was meant for consumption by the allottee: therefore, when the allottee was outside the State, it was supplied for the purpose of consumption in the State in which the allottee resided or carried on business12. In view of the legislative developments which we will presently notice the period of the three assessment years may be divided into four sub-periods. They are: April 1. 1954 to September 6, 1955; September 7, 1955 to September 10, 1956, September 11, 1956 to January 4, 1957 and January 5, 1957 to March 31. 1957. In making this sub-division we have not taken into account the application of the States Reorganisation Act as a result of which on November 1,1956, the Part B State of Hyderabad ceased to exitence by merger of certain areas including parts of the State of Hyderabad. The effect of the Reorganisation Act had a bearing only on the territorial operation of the constitutional prohibitions under Art. 286Article 286 thus imposed qua sales four bans upon legislative power of the StatesThat State alone in which the sale is deemed to take place has the power to tax the sale, and for this purpose it is immaterial that property in the goods has under the general law relating to sale of goods passed in another State in which the allottee resided or carried on business. Delivery of coal to the Railway Administration may amount to delivery to the allottee for the purpose of the general law relating to sale of goods, but thereby coal cannot be said to be "actually delivered" within the meaning of the Explanation to Art. 286 (1) (a). It is also true that under the terms of the sale- note under which coal was despatched on terms F. O. R. Singareni the Company was not responsible for loss or damage to the consignment after it was loaded in the wagons, that may indicate that the Company had no property in the goods after it was in transit. But determination of the State in which sale shall be deemed to have taken place is artificially determined not by terms of the contract of sale, nor by the legal concept of passing of passing in the goods sold by the delivery for the purpose of consumptionSales-tax under the Hyderabad General Sales Tax Act on transactions of coal delivered to the Railway or other carrier for carriage to places outside the taxing State and for delivery for consumption therein is therefore not leviable to be by virtue of the Explanation to Art. 286 (1)Coal in the appeals under review was transported from the colliery of the Company to the consumers outside the taxing State, as a result of the covenant or incident of the contract of sale and therefore the sale must be regarded as an inter-State sale and not liable to be taxed under the Hyderabad General Sales Tax Act. 1950.The High Court was, in our view, in error in holding that the turnover of the Company in which coal was loaded in railway wagons for conveyance to places outside the taxing State was taxable under the Hyderabad General Sales Tax Act. In that view we do not think it necessary to decide whether the Commissioner of Commercial Taxes was right in re-opening the assessments for the years 1954-55 and 1955-56 in the manner he has purported to do
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Rajeshwar Kumar Malhotra Vs. Lloyd Electric Engg Ltd | K. Ramaswamy, J. 1. Leave granted. 2. We have heard learned counsel on both sides. 3. Intervention is permitted. 4. These appeals by special leave arise from the order of the High Court of Rajasthan, made on October, 24, 1996 in Revision Petition No. 715/96. One matter relates to the two individuals, i.e., appellants in appeal arising out of SLP(C) No. 22164, namely, Dr. Rajeshwar Kumar Malhotra and S. Srinivasan. This Court on November 26, 1996 directed as under : "We do not find any substance in the appeal as regards the injunction against the individual petitioner is concerned. But as regards the injunction against the Company Shri Salve, learned senior counsel appearing for the respondents seeks for and is granted one weeks time as to how the injunction requires to be modulated." 5. Accordingly, the matter was adjourned. Today, Shri Soli J. Sorabjee, learned senior counsel appearing for the appellants in appeal arising out of SLP(C) No. 22769, namely, appeal filed by the company has stated that in the rejoinder affidavit, the appellant has stated that the aforestated two persons resigned from the respective posts held by them in the company. As a result, they are no longer continuing in the company. It is also pointed out that shares held by the different groups, as stated at page 148 of the additional paper-book filed in this case, are different and varied. So, no injunction can be granted against the company much less due to the change in the circumstances. We find force in the contention. Though the learned counsel appearing for the respondents, Sri Harish Salve, seeks to contend that the bank had granted loan to the appellants with a condition that the aforestated two persons would be required to continue to work in the company. Therefore, it is only a make-believe show to see that no injunction is granted against the company and the one granted by the High Court is vacated. We do not find any justification for the contention as on today. If the two persons really still work for the company in any form and in any manner, it is open to the respondents to approach the trial Court for appropriate relief. As facts stand today, injunction granted by the High Court against the company is not warranted. | 1[ds]We do not find any justification for the contention as on today. If the two persons really still work for the company in any form and in any manner, it is open to the respondents to approach the trial Court for appropriate relief. As facts stand today, injunction granted by the High Court against the company is not warranted. | 1 | 443 | 68 | ### 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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K. Ramaswamy, J. 1. Leave granted. 2. We have heard learned counsel on both sides. 3. Intervention is permitted. 4. These appeals by special leave arise from the order of the High Court of Rajasthan, made on October, 24, 1996 in Revision Petition No. 715/96. One matter relates to the two individuals, i.e., appellants in appeal arising out of SLP(C) No. 22164, namely, Dr. Rajeshwar Kumar Malhotra and S. Srinivasan. This Court on November 26, 1996 directed as under : "We do not find any substance in the appeal as regards the injunction against the individual petitioner is concerned. But as regards the injunction against the Company Shri Salve, learned senior counsel appearing for the respondents seeks for and is granted one weeks time as to how the injunction requires to be modulated." 5. Accordingly, the matter was adjourned. Today, Shri Soli J. Sorabjee, learned senior counsel appearing for the appellants in appeal arising out of SLP(C) No. 22769, namely, appeal filed by the company has stated that in the rejoinder affidavit, the appellant has stated that the aforestated two persons resigned from the respective posts held by them in the company. As a result, they are no longer continuing in the company. It is also pointed out that shares held by the different groups, as stated at page 148 of the additional paper-book filed in this case, are different and varied. So, no injunction can be granted against the company much less due to the change in the circumstances. We find force in the contention. Though the learned counsel appearing for the respondents, Sri Harish Salve, seeks to contend that the bank had granted loan to the appellants with a condition that the aforestated two persons would be required to continue to work in the company. Therefore, it is only a make-believe show to see that no injunction is granted against the company and the one granted by the High Court is vacated. We do not find any justification for the contention as on today. If the two persons really still work for the company in any form and in any manner, it is open to the respondents to approach the trial Court for appropriate relief. As facts stand today, injunction granted by the High Court against the company is not warranted.
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We do not find any justification for the contention as on today. If the two persons really still work for the company in any form and in any manner, it is open to the respondents to approach the trial Court for appropriate relief. As facts stand today, injunction granted by the High Court against the company is not warranted.
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Collector of Monghyr & Others Vs. Keshav Prasad Goenka & Others | suggested that the respondents were persons who had sustained a loss by reason of a thing done by the Collector and that the statute provided a remedy therefore by permitting a claim for compensation under the provisions of S. 53. We consider that this submission arises wholly on a misreading of S. 5B.The "loss for which the Section provides compensation is that directly arising from the doing of the work, i. e. loss sustained by third parties and not the liability to make the apportioned cost under Ss. 11 and 12, for the very basis of the liability under these provisions is that the person from whom payments are demanded had benefited by the work being done in that he being under an obligation to effect the repairs, that obligation was discharged by the work done at the instance of the Collector.18. Both Mr. Jha and Mr. Varma who appeared for the State in these batches of appeals raised a contention that the High Court had no jurisdiction to afford the respondents relief under Art. 226 of the Constitution. In support of this argument two grounds were urged: First, that the orders of the Collector under S. 5A were administrative in their nature and therefore not amenable to the jurisdiction of the High Court for the issue of a writ of certiorari. In our opinion the contention proceeds upon a misapprehension as to the nature of the objection raised and as regards the particular orders which were challenged before the High Court. What the High Court set aside were the demands which were issued against the landlords under S. 11 of the Act and which were sought to be recovered as arrears of public demands under S. 12. No doubt, those demands had their origin in or were ultimately based upon an order passed by the Collector under S. 5A. The argument which the, respondents presented to the High Court and which the learned Judges accepted was that the demands were illegal and not justified by law, because they had ultimately to be based upon orders (under S. 5A) which were without jurisdiction and therefore void. It would therefore be seen that type respondents were not seeking to set aside type several orders passed by the Collector under S. 5A but only the demands based on them on the ground that they were illegal. The High Court had certainly jurisdiction to direct that these demands be quashed and should not be enforced. If the orders under S. 5A on which these demands were based were void, i.e., as passed without jurisdiction, they did not need to be set aside and therefore there was no necessity for taking any proceedings for obtaining such relief. They were non est. If they were of that character they could not serve as a foundation for the liability which was sought to be fastened upon the respondents by apportionment under Ss. 7 and 8 and by the issue of a notice of demand under S. 10. It was on this line of reasuning that the learned Judges have proceeded and we consider that they were right. If the orders under S. 5A had no legal foundation as being wholly without jurisdiction because the statutory, requisites or conditions precedent for such orders were not satisfied, no liability to make a payment could arise out of such orders.19. The other submission was that several of the orders under S. 5A were passed before the Constitution and that as the constitution was not retrospective the High Court could not exercise the jurisdiction which was for the first time conferred on it by Art, 226 of the Constitution in respect of orders passed before January 26, 1950.It is not disputed that all the several demands which were quashed were made after the Constitution. For the reasons for which we have rejected the submission just now dealt with the argument in the present form trust also be repelled.20. Mr. Varma next contended that the respondents must be deemed to have acquiesced in the orders passed under S. 5A by not objecting to them immediately and that they were now estopped from contending that they were void having, by the execution of the work, obtained a benefit by the repair of the irrigation work. There is no substance at all in this argument. Section 5A does not contemplate any notice to the affected party and the public notice, that the proviso to S. 5A provides for is a notice that the work has begun. There is thus, before the completion of the work, no provision, in the statute for the landlord to make his representations, even assuming that he is shown to have knowledge of the passing of the order. Seeing that the very object of S. 5A is to preclude any objection which a landlord might have to the repair of an irrigation work, we consider it rather anomalous that an argument should be addressed which rests on the basis of a failure to object. Reference was, in this connection, made to the terms of S. 46 under which the Board of Revenue have a general power of supervision and control over all orders and proceedings of the Collector and it was urged that the failure on the part of the respondents to have availed themselves of this provision debarred them from moving the High Court. This would turn upon the question whether the relief by resort to proceedings under the Act would be sufficient and adequate which would render it unnecessary, for the respondents to have moved the High Court. Though an objection of this sort appeared in some of the counter-affidavits filed before the High Court the matter does not appear to have been pressed before the High Court at the time of the arguments. As the High Court had certainly a discretion to grant relief under Art. 226 even if there were other alternative statutory remedies, we do not propose to entertain this objection at this stage. | 0[ds]12. We feel unable to accept the submission of learned Counsel that in the context in which the words for the reasons to be recorded by him" occur in S. 5A and considering the scheme of Ch. II of the Act, the requirement of these words could be held to be otherwise than mandatory. It is needless to add that the employment of the auxiliary verb "shall" is inconclusive and similarly the mere absence of the imperative is not conclusive either. The question whether any requirement is mandatory or directory has to be decided not merely on the basic of any specific provision which, for instance, sets out the consequences of the omission to observe the requirement, but on the purpose for which the requirement has been enacted, particularly in the context of the other provisions of the Act and the general scheme thereof. It would, inter alia, depend on whether the requirement is insisted on as a protection for the safeguarding of the right of liberty of person or of property which the action might involve.If, as we hold, the requirement was mandatory it was not disputed that the orders of the Collector which did not comply with the statutory condition precedent must be null and void and of no effect altogether.To suggest that by a recital of the nature of the repairs required to be carried out and employing the language of S. 5A (1) the officer has recorded his reasons for invoking S. 5A is to confuse the recording of type conclusion of the officer with the reasons for which he arrived at that conclusion. Besides just as it would not be open to argument that the terms of S. 5A (1) will be attracted to cases where there is factually an emergent need for repairs of the type envisaged by the Section but the Collector does not so record in his order; similarly the factual existence of reasons for the Collectors conclusion would not avail where he does not comply with the statutory requirement of stating them in his order. The reports of the Estimating Officer or of the Overseer which were relied on in this context would only indicate that those officers considered that action under S. 5A was called for. Several of the reports referred to in this connection extract the material works of S. 5A (1) and conclude with a recommendation to the Sub-Divisional Officer who was vested with the powers of a Collector that it was a fit case for action being taken under S. 5A.What the Section requires is that on the basis of materials which exist this might include the reports of officers as well as information gathered by the Collector himself by personal inspection or after enquiry- be should reach the conclusion that irrigation works for the purposes set out in S. 5A should be immediately taken on hand and completed and that there is such an emergency in having the work completed which will not brook that amount of delay which the notice and proceedings under Ss. 3 to 5 would entail. It is not therefore the presence of the material that is of sole relevance or the only criterion but the Collectors opinion as to the urgency coupled with his recording his reasons why he considers that the procedure under Ss. 3 to 5 should not be gone through. We are therefore unable to accept the submission that the reports of the Overseers or the Estimating Officers would obviate the infirmity arising from the failure of the Collector to record his reasons as required by S. 5A(1). From the fact that under S. 5A(1) the power of the Collector to make an order emerges on his being bona fide satisfied regarding the matters set out in the sub-section it does not follow either that the reasons why he has formed that opinion are immaterial, or that it is unnecessary for him to state those reasons in the order that he makes, and that his omission to do so could be made up by the State adducing sufficient grounds therefor when the validity of the order is challenged. We have thus no hesitation in holding (a) that the requirement that the Collector should record his reasons for the order made is mandatory and (b) that this requirement has not been complied with in the cases before us, and (c)that in the circumstances the order of the Collector was therefore null and void.17. Before proceeding further, it would be convenient to dispose of an argument based on S. 5B. It was faintly suggested that the respondents were persons who had sustained a loss by reason of a thing done by the Collector and that the statute provided a remedy therefore by permitting a claim for compensation under the provisions of S. 53. We consider that this submission arises wholly on a misreading of S. 5B.The "loss for which the Section provides compensation is that directly arising from the doing of the work, i. e. loss sustained by third parties and not the liability to make the apportioned cost under Ss. 11 and 12, for the very basis of the liability under these provisions is that the person from whom payments are demanded had benefited by the work being done in that he being under an obligation to effect the repairs, that obligation was discharged by the work done at the instance of theour opinion the contention proceeds upon a misapprehension as to the nature of the objection raised and as regards the particular orders which were challenged before the High Court. What the High Court set aside were the demands which were issued against the landlords under S. 11 of the Act and which were sought to be recovered as arrears of public demands under S. 12. No doubt, those demands had their origin in or were ultimately based upon an order passed by the Collector under S. 5A. The argument which the, respondents presented to the High Court and which the learned Judges accepted was that the demands were illegal and not justified by law, because they had ultimately to be based upon orders (under S. 5A) which were without jurisdiction and therefore void. It would therefore be seen that type respondents were not seeking to set aside type several orders passed by the Collector under S. 5A but only the demands based on them on the ground that they were illegal. The High Court had certainly jurisdiction to direct that these demands be quashed and should not be enforced. If the orders under S. 5A on which these demands were based were void, i.e., as passed without jurisdiction, they did not need to be set aside and therefore there was no necessity for taking any proceedings for obtaining such relief. They were non est. If they were of that character they could not serve as a foundation for the liability which was sought to be fastened upon the respondents by apportionment under Ss. 7 and 8 and by the issue of a notice of demand under S. 10. It was on this line of reasuning that the learned Judges have proceeded and we consider that they were right. If the orders under S. 5A had no legal foundation as being wholly without jurisdiction because the statutory, requisites or conditions precedent for such orders were not satisfied, no liability to make a payment could arise out of suchis no substance at all in this argument. Section 5A does not contemplate any notice to the affected party and the public notice, that the proviso to S. 5A provides for is a notice that the work has begun. There is thus, before the completion of the work, no provision, in the statute for the landlord to make his representations, even assuming that he is shown to have knowledge of the passing of the order. Seeing that the very object of S. 5A is to preclude any objection which a landlord might have to the repair of an irrigation work, we consider it rather anomalous that an argument should be addressed which rests on the basis of a failure to object. Reference was, in this connection, made to the terms of S. 46 under which the Board of Revenue have a general power of supervision and control over all orders and proceedings of the Collector and it was urged that the failure on the part of the respondents to have availed themselves of this provision debarred them from moving the High Court. This would turn upon the question whether the relief by resort to proceedings under the Act would be sufficient and adequate which would render it unnecessary, for the respondents to have moved the High Court. Though an objection of this sort appeared in some of the counter-affidavits filed before the High Court the matter does not appear to have been pressed before the High Court at the time of the arguments. As the High Court had certainly a discretion to grant relief under Art. 226 even if there were other alternative statutory remedies, we do not propose to entertain this objection at this stage. | 0 | 6,813 | 1,627 | ### 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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suggested that the respondents were persons who had sustained a loss by reason of a thing done by the Collector and that the statute provided a remedy therefore by permitting a claim for compensation under the provisions of S. 53. We consider that this submission arises wholly on a misreading of S. 5B.The "loss for which the Section provides compensation is that directly arising from the doing of the work, i. e. loss sustained by third parties and not the liability to make the apportioned cost under Ss. 11 and 12, for the very basis of the liability under these provisions is that the person from whom payments are demanded had benefited by the work being done in that he being under an obligation to effect the repairs, that obligation was discharged by the work done at the instance of the Collector.18. Both Mr. Jha and Mr. Varma who appeared for the State in these batches of appeals raised a contention that the High Court had no jurisdiction to afford the respondents relief under Art. 226 of the Constitution. In support of this argument two grounds were urged: First, that the orders of the Collector under S. 5A were administrative in their nature and therefore not amenable to the jurisdiction of the High Court for the issue of a writ of certiorari. In our opinion the contention proceeds upon a misapprehension as to the nature of the objection raised and as regards the particular orders which were challenged before the High Court. What the High Court set aside were the demands which were issued against the landlords under S. 11 of the Act and which were sought to be recovered as arrears of public demands under S. 12. No doubt, those demands had their origin in or were ultimately based upon an order passed by the Collector under S. 5A. The argument which the, respondents presented to the High Court and which the learned Judges accepted was that the demands were illegal and not justified by law, because they had ultimately to be based upon orders (under S. 5A) which were without jurisdiction and therefore void. It would therefore be seen that type respondents were not seeking to set aside type several orders passed by the Collector under S. 5A but only the demands based on them on the ground that they were illegal. The High Court had certainly jurisdiction to direct that these demands be quashed and should not be enforced. If the orders under S. 5A on which these demands were based were void, i.e., as passed without jurisdiction, they did not need to be set aside and therefore there was no necessity for taking any proceedings for obtaining such relief. They were non est. If they were of that character they could not serve as a foundation for the liability which was sought to be fastened upon the respondents by apportionment under Ss. 7 and 8 and by the issue of a notice of demand under S. 10. It was on this line of reasuning that the learned Judges have proceeded and we consider that they were right. If the orders under S. 5A had no legal foundation as being wholly without jurisdiction because the statutory, requisites or conditions precedent for such orders were not satisfied, no liability to make a payment could arise out of such orders.19. The other submission was that several of the orders under S. 5A were passed before the Constitution and that as the constitution was not retrospective the High Court could not exercise the jurisdiction which was for the first time conferred on it by Art, 226 of the Constitution in respect of orders passed before January 26, 1950.It is not disputed that all the several demands which were quashed were made after the Constitution. For the reasons for which we have rejected the submission just now dealt with the argument in the present form trust also be repelled.20. Mr. Varma next contended that the respondents must be deemed to have acquiesced in the orders passed under S. 5A by not objecting to them immediately and that they were now estopped from contending that they were void having, by the execution of the work, obtained a benefit by the repair of the irrigation work. There is no substance at all in this argument. Section 5A does not contemplate any notice to the affected party and the public notice, that the proviso to S. 5A provides for is a notice that the work has begun. There is thus, before the completion of the work, no provision, in the statute for the landlord to make his representations, even assuming that he is shown to have knowledge of the passing of the order. Seeing that the very object of S. 5A is to preclude any objection which a landlord might have to the repair of an irrigation work, we consider it rather anomalous that an argument should be addressed which rests on the basis of a failure to object. Reference was, in this connection, made to the terms of S. 46 under which the Board of Revenue have a general power of supervision and control over all orders and proceedings of the Collector and it was urged that the failure on the part of the respondents to have availed themselves of this provision debarred them from moving the High Court. This would turn upon the question whether the relief by resort to proceedings under the Act would be sufficient and adequate which would render it unnecessary, for the respondents to have moved the High Court. Though an objection of this sort appeared in some of the counter-affidavits filed before the High Court the matter does not appear to have been pressed before the High Court at the time of the arguments. As the High Court had certainly a discretion to grant relief under Art. 226 even if there were other alternative statutory remedies, we do not propose to entertain this objection at this stage.
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of sole relevance or the only criterion but the Collectors opinion as to the urgency coupled with his recording his reasons why he considers that the procedure under Ss. 3 to 5 should not be gone through. We are therefore unable to accept the submission that the reports of the Overseers or the Estimating Officers would obviate the infirmity arising from the failure of the Collector to record his reasons as required by S. 5A(1). From the fact that under S. 5A(1) the power of the Collector to make an order emerges on his being bona fide satisfied regarding the matters set out in the sub-section it does not follow either that the reasons why he has formed that opinion are immaterial, or that it is unnecessary for him to state those reasons in the order that he makes, and that his omission to do so could be made up by the State adducing sufficient grounds therefor when the validity of the order is challenged. We have thus no hesitation in holding (a) that the requirement that the Collector should record his reasons for the order made is mandatory and (b) that this requirement has not been complied with in the cases before us, and (c)that in the circumstances the order of the Collector was therefore null and void.17. Before proceeding further, it would be convenient to dispose of an argument based on S. 5B. It was faintly suggested that the respondents were persons who had sustained a loss by reason of a thing done by the Collector and that the statute provided a remedy therefore by permitting a claim for compensation under the provisions of S. 53. We consider that this submission arises wholly on a misreading of S. 5B.The "loss for which the Section provides compensation is that directly arising from the doing of the work, i. e. loss sustained by third parties and not the liability to make the apportioned cost under Ss. 11 and 12, for the very basis of the liability under these provisions is that the person from whom payments are demanded had benefited by the work being done in that he being under an obligation to effect the repairs, that obligation was discharged by the work done at the instance of theour opinion the contention proceeds upon a misapprehension as to the nature of the objection raised and as regards the particular orders which were challenged before the High Court. What the High Court set aside were the demands which were issued against the landlords under S. 11 of the Act and which were sought to be recovered as arrears of public demands under S. 12. No doubt, those demands had their origin in or were ultimately based upon an order passed by the Collector under S. 5A. The argument which the, respondents presented to the High Court and which the learned Judges accepted was that the demands were illegal and not justified by law, because they had ultimately to be based upon orders (under S. 5A) which were without jurisdiction and therefore void. It would therefore be seen that type respondents were not seeking to set aside type several orders passed by the Collector under S. 5A but only the demands based on them on the ground that they were illegal. The High Court had certainly jurisdiction to direct that these demands be quashed and should not be enforced. If the orders under S. 5A on which these demands were based were void, i.e., as passed without jurisdiction, they did not need to be set aside and therefore there was no necessity for taking any proceedings for obtaining such relief. They were non est. If they were of that character they could not serve as a foundation for the liability which was sought to be fastened upon the respondents by apportionment under Ss. 7 and 8 and by the issue of a notice of demand under S. 10. It was on this line of reasuning that the learned Judges have proceeded and we consider that they were right. If the orders under S. 5A had no legal foundation as being wholly without jurisdiction because the statutory, requisites or conditions precedent for such orders were not satisfied, no liability to make a payment could arise out of suchis no substance at all in this argument. Section 5A does not contemplate any notice to the affected party and the public notice, that the proviso to S. 5A provides for is a notice that the work has begun. There is thus, before the completion of the work, no provision, in the statute for the landlord to make his representations, even assuming that he is shown to have knowledge of the passing of the order. Seeing that the very object of S. 5A is to preclude any objection which a landlord might have to the repair of an irrigation work, we consider it rather anomalous that an argument should be addressed which rests on the basis of a failure to object. Reference was, in this connection, made to the terms of S. 46 under which the Board of Revenue have a general power of supervision and control over all orders and proceedings of the Collector and it was urged that the failure on the part of the respondents to have availed themselves of this provision debarred them from moving the High Court. This would turn upon the question whether the relief by resort to proceedings under the Act would be sufficient and adequate which would render it unnecessary, for the respondents to have moved the High Court. Though an objection of this sort appeared in some of the counter-affidavits filed before the High Court the matter does not appear to have been pressed before the High Court at the time of the arguments. As the High Court had certainly a discretion to grant relief under Art. 226 even if there were other alternative statutory remedies, we do not propose to entertain this objection at this stage.
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Sukh Sagar Medical College and Hospital Vs. State of Madhya Pradesh and Ors | medical college is established in terms of the Essentiality Certificate within a reasonable time. 21. While dealing with the case of maintaining standards in a professional college, a strict approach must be adopted because these colleges engage in imparting training and education to prospective medical professionals and impact their academic prospects. Thus, the future of the student community pursuing medical course in such deficient colleges would get compromised besides producing inefficient and incompetent doctors from such colleges. That would be posing a bigger risk to the society at large and defeat the sanguine hope entrenched in the Essentiality Certificate issued by the State. 22. Indeed, the fact that the Essentiality Certificate given to the Appellant-College stands withdrawn, it does not follow that the need to have a new medical college in the concerned locality or the State ceases to exist. For, the raison detre behind Essentiality Certificate, amongst others, is likely improvement of doctor-patient ratio and access to healthcare for the population in the attached hospital. As a matter of fact, the need would get bigger due to the failure of the new medical college to fulfil the scheme in a time bound manner in right earnest. That entails in enhancing the mismatch of demand and supply ratio of doctors required to achieve the medical manpower of the State. It would not be in public interest nor appropriate for the State Government to remain a mute spectator and not move into action when the college miserably fails to translate the spirit behind the Essentiality Certificate within a reasonable time. By no stretch of imagination, five years period, to fulfil the minimum requirement and standards specified by the MCI, can be countenanced. 23. Article 47 of the Constitution of India encompassed in Directive Principles of State Policy, enjoins the State with a duty to provide for and ensure good public health and a constant endeavour to improve the same to effectuate the fundamental right to life guaranteed by the Constitution to all. Thus understood, the States duty Under Article 47 is to act as an enabler for the wholesome exercise of right to life. A right to have access to proper public health care would be of little value if the State does not create the requisite conditions for proper exercise of such right. Access to medical college and hospital is, no doubt, a part of the said conditions. In Paschim Banga Khet Mazdoor Samity and Ors. v. State of West Bengal and Anr. (1996) 4 SCC 37 , this Court observed that it is the Constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. 24. What is necessary in the present factual matrix, as discussed above, is for the State to assess the dire need of medical infrastructure within the State or the locality, as the case may be. The very fact that an Essentiality Certificate is issued in the first place, in itself, is a testimony of the essentiality of such infrastructure. The authority of the State to grant Essentiality Certificate is both power coupled with a duty to ensure that the substratum of the spirit behind the Certificate does not disappear or is defeated. The exercise of power and performance of duty with responsibility and in right earnest must co-exist. Notably, the duty Under Article 47 is, in the constitutional sense, fundamental in the governance of the State. This duty does not end with mere grant of a certificate, rather, it continues upto the point when essentiality of basic medical infrastructure is properly taken care of within a reasonable time frame. Any future application for such certificate, be it by the present Appellant (in terms of directions in this judgment) or by a different applicant, must be dealt with accordingly, and supervision of the State must continue to ensure that the purpose and substratum for grant of such certificate does not and has not disappeared. 25. We are conscious of the view taken and conclusion recorded in Chintpurni Medical College (supra). Even though the fact situation in that case may appear to be similar, however, in our opinion, in a case such as the present one, where the spirit behind the Essentiality Certificate issued as back as on 27.8.2014 has remained unfulfilled by the Appellant-College for all this period (almost six years), despite repeated opportunities given by the MCI, as noticed from the summary/observation in the assessment report, it can be safely assumed that the substratum for issuing the Essentiality Certificate had completely disappeared. The State Government cannot be expected to wait indefinitely, much less beyond period of five years, thereby impacting the interests of the student community in the region and the increased doctor-patient ratio and denial of healthcare facility in the attached hospital due to gross deficiencies. Such a situation, in our view, must come within the excepted category, where the State Government ought to act upon and must take corrective measures to undo the hiatus situation and provide a window to some other institute capable of fulfilling the minimum standards/norms specified by the MCI for establishment of a new medical college in the concerned locality or within the State. Without any further ado, we are of the view that the Appellant-College is a failed institute thus far and is unable to deliver the aspirations of the student community and the public at large to produce more medical personnel on year to year basis as per the spirit behind issuance of the subject Essentiality Certificate dated 27.08.2014. To this extent, we respectfully depart from the view taken in Chintpurni Medical College (supra). 26. To complete the record, we may mention the argument of the Appellant that the attached hospital of the Appellant has now been taken over by the State Government recently for providing treatment to Covid patients. That, however, will be of no avail to answer the matter in issue. We do not intend to dilate on this argument any further. | 0[ds]12. At the outset, we deem it apposite to closely analyse the two-Judge Bench decision of this Court in Chintpurni Medical College (supra). For, much emphasis has been placed on the said decision as involving similar fact situation. Even in that case, the medical college had started in the year 2011 in the State of Punjab. The permission for the first batch was granted in the year 2011-12. For subsequent academic years i.e. 2012-13 and 2013-14, no renewal of permission was granted to the college, as it was found to be deficient during the inspection carried out by the MCI. For the academic year 2014-15, however, a Letter of Permission (LoP) was granted in terms of order of this Court in Hind Charitable Trust Shekhar Hospital Private Limited v. Union of India and Ors. (2015) 2 SCC 336. Thereafter, no renewal of permission was granted to the Petitioner for the academic year 2015-16. The college had applied for grant of recognition Under Section 11 of the Indian Medical Council Act, 19566 in the year 2015. During the inspection carried out by the MCI, deficiencies to the extent of 100% came to be noted. Despite that, in terms of the decision of this Court in Modern Dental College & Research Centre v. State of Madhya Pradesh (2016) 7 SCC 353 , the scheme submitted by the college was processed further. The SCMOC directed the MCI to conduct inspection and in case the college was found deficient, it was to be banned for a period of two years. The MCI conducted inspection of the concerned college on 7.3.2017 and found it deficient, thus recommended to the Central Government to debar the college from admitting students against the allowed intake for two academic years i.e. 2017-18 and 2018-19. The above decision was unsuccessfully challenged by the concerned college by way of a writ petition. In the meantime, the State Government decided to withdraw the Essentiality Certificate issued to the concerned college. That decision was challenged by way of a separate writ petition before this Court. While considering that challenge, the Court examined the scheme of the provisions of the IMC Act and the purpose for which Essentiality Certificate was required to be issued by the State Government. It noted that the same has been made condition precedent at the time of submitting the scheme for grant of Letter of Intent (LoI)/Letter of Permission (LoP) to start a new medical college. It noted that the State Government is required to certify by way of Essentiality Certificate, its approval for establishment of a medical college with a specified number of seats in public interest, and further that such establishment is feasible. Thus, an Essentiality Certificate from the State Government mentioning therein that it is essential to have a medical college, as proposed by the applicant, is to prevent the establishment of a college where none is required or to prevent unhealthy competition between too many medical colleges. Further, the only purpose of the Essentiality Certificate is to enable the Central Government acting Under Section 10-A of the IMC Act to facilitate the competent authority to take an informed decision for permitting the opening or establishment of a new medical college and once the college is established, its functioning and performance and even the derecognition of its courses is governed by the provisions of the IMC Act and not any other law. Having said that, in paragraph 17, the Court observed as follows:17. It would be impermissible to allow any authority including a State Government which merely issues an essentiality certificate, to exercise any power which could have the effect of terminating the existence of a medical college permitted to be established by the Central Government. This the State Government may not do either directly or indirectly. Moreover, the purpose of the essentiality certificate is limited to certifying to the Central Government that it is essential to establish a medical college. It does not go beyond this. In other words, once the State Government has certified that the establishment of a medical college is justified, it cannot at a later stage say that there was no justification for the establishment of the college. Surely, a person who establishes a medical college upon an assurance of a State Government that such establishment is justified cannot be told at a later stage that there was no justification for allowing him to do so. Moreover, it appears that the power to issue an essentiality certificate is a power that must be treated as exhausted once it is exercised, except of course in cases of fraud. The Rules of equity and fairness and promissory estoppel do not permit this Court to take a contrary view.(emphasis supplied)The Court then went on to hold that the State Government is designated by the 1999 Regulations only for the purpose of Essentiality Certificate to justify the establishment of a medical college within its territories and that too when approached by a person seeking to establish a medical college. There is no direct conferral of any power of general inspection on the State and neither can such a power be read into the Regulations nor be implied as necessary to carry out an expressly conferred power which does not exist. While rejecting the argument of the State about the inherent right of the State to withdraw the Essentiality Certificate, in paragraph 24, the Court observed thus:24. The learned Counsel for the State of Punjab submitted that since the essentiality certificate certifies the availability of adequate clinical material for the proposed medical college, as per the Regulations, the State has the necessary power of inspection of the college even after its establishment to ensure that there is adequate clinical material. This submission must also be rejected since the State is enjoined to certify adequate clinical material only at the time of proposal of the medical college and not after it is established. But we find from the submissions that the State has misinterpreted the term adequate clinical material completely. According to the State, adequate clinical material means people i.e. doctors, patients, staff, etc. Whereas, the term is understood in the field of medical education to mean data about number of admissions, number of discharges, number of deaths, number of surgeries, number of procedures, X-rays and laboratories investigations. Thus, what the State is required to certify is the data available in the region to justify the establishment of the proposed medical college. Obviously, for the purpose of justifying the existence of a medical college, the States claim that it must have the right to inspect a college after it is established to see whether there are adequate numbers of doctors, patients, etc. to justify its continued existence is completely hollow and unfounded.(emphasis supplied)The Court then noted the argument of the State about the existence of its power ascribable to Section 21 of the General Clauses Act, 18977. In that regard, the Court noted that the certificate is neither a notification nor an order or Rule or bye-law as contemplated by Section 21 of the 1897 Act. Further, the act of issuance of Essentiality Certificate by the State is a quasi-judicial function. It is neither a legislative nor an executive function as such, so as to attract Section 21 of the 1897 Act. Further, advisedly, there is no provision in the IMC Act or the 1999 Regulations empowering the State to revoke or cancel the Essentiality Certificate once granted by it in respect of an established medical college. In absence of an express provision in that regard and issuance of an Essentiality Certificate being a quasi-judicial function, Section 21 of the 1897 Act will be of no avail. In other words, the State had no power to withdraw the Essentiality Certificate once granted in respect of an established college. At the same time, the Court following earlier decisions of this Court observed that even in such a situation, the State would be competent to withdraw the certificate, where it is obtained by fraud or in circumstances where the very substratum on which the Essentiality Certificate was granted disappears or any other reason of the like nature. For that, the Court has referred to the decisions of this Court in Indian National Congress (I) v. Institute of Social Welfare and Ors. (2002) 5 SCC 685 , Industrial Infrastructure Development Corporation (Gwalior) Madhya Pradesh Limited v. Commissioner of Income Tax, Gwalior, Madhya Pradesh (2018) 4 SCC 494 , Ghaurul Hasan and Ors. v. State of Rajasthan and Anr. AIR 1967 SC 107 and Hari Shankar Jain v. Sonia Gandhi (2001) 8 SCC 233 and of the High Court of Andhra Pradesh in Government of Andhra Pradesh and Anr. v. Y.S. Vivekananda Reddy and Ors. AIR 1995 AP 1 .13. At the outset, we may straightaway agree with the dictum in Chintpurni Medical College (supra) that the act of the State in issuing Essentiality Certificate is a quasi-judicial function, which view is supported by the analogy deduced from the reported decisions referred to above. Having said that, it must follow that Section 21 of the 1897 Act cannot be invoked and in absence of an express provision in the IMC Act or the 1999 Regulations empowering the State Government to revoke or cancel the Essentiality Certificate, such a power cannot be arrogated by the State relying on Section 21. That, however, does not deprive the State Government to revoke or withdraw the Essentiality Certificate in case where (a) it is secured by playing fraud on the State Government, (b) the substratum for issuing the certificate has been lost or disappears and (c) such like ground, where no enquiry is called for on the part of the State Government.In other words, we hold that Chintpurni Medical College (supra) does not lay down in absolute terms that the State cannot revoke the Essentiality Certificate once granted for opening of a new medical college within the State. The observations in paragraph 36 of the reported decision also reiterate this position and make it amply clear that in exceptional circumstances referred to therein, the State is free to do so.The first excepted category is where the Appellant had obtained the Essentiality Certificate by playing fraud on the State Government. It is well-settled that fraud vitiates any act or order passed by any quasi-judicial authority, even if no power of review is conferred upon it, as held in paragraph 34 of the decision in Indian National Congress (I) (supra) in the following words:34. Coming to the first exception, it is almost settled law that fraud vitiates any act or order passed by any quasi-judicial authority even if no power of review is conferred upon it. In fact, fraud vitiates all actions. In Smith v. East Elloe Rural Distt. Council [(1956) 1 All ER 855], it was stated that the effect of fraud would normally be to vitiate all acts and orders. In Indian Bank v. Satyam Fibres (India) (P) Ltd. [(1996) 5 SCC 550] it was held that a power to cancel/recall an order which has been obtained by forgery or fraud applies not only to courts of law, but also to statutory tribunals which do not have power of review. Thus, fraud or forgery practised by a political party while obtaining a registration, if comes to the notice of the Election Commission, it is open to the Commission to deregister such a political party.As to when it would be a case of fraud played on the State Government, would depend on whether it was an attempt by the Appellant to present facts, so as to misrepresent the State. The fraud can either be actual or constructive fraud. The actual fraud is a concealment or false representation through an intentional or reckless statement or conduct that injures another who relies on it in acting, whereas the constructive fraud is unintentional deception or misrepresentation that causes injury to another.15. Indeed, in the present case, the State Government in its order dated 5.9.2019, has adverted to several aspects including the assessment report of the MCI and inspection report of the Committee. The substance of the reason weighed with the State Government, as can be culled out from the stated order, is that the Appellant had failed to fulfil the commitment given to the State at the relevant time-of providing minimum infrastructure and fulfilment of the norms of MCI and appointing the staff as per norms of MCI-for all this period and was incapable in doing so despite repeated opportunities given since 2016 by the MCI. Further, even though the Appellant was granted conditional Letter of Permission (LoP) for academic year 2016-17, it had failed to remove the deficiencies, as a result of which not even the first batch could pursue or complete the medical course in the Appellant-College. The concerned students kept on making earnest representation to the State authorities to rescue them from the hiatus situation in which they were trapped. Indisputably, the concerned students (admitted in the first batch of 2016-17) were eventually reallocated to another recognised college after November, 2019, as no renewal of permission to the Appellant-College was forthcoming for three successive academic sessions i.e. 2017-18, 2018-19 and 2019-20.16. Such circumstances reckoned by the State, by no stretch of imagination, can be disregarded as irrelevant, intangible or imaginary. Rather, the totality of the situation reinforces the fact that the Appellant-College had failed and neglected to discharge its commitment given to the State at the relevant time; and is incapable of fulfilling the minimum norms specified by the MCI for starting and running a medical college. It had thus misrepresented the State Government at the relevant time by giving a sanguine hope of ensuring installation of minimum infrastructure and setting up of a robust organisational structure for running of a medical college in a time bound programme. Therefore, it can be safely deduced that it is a case of constructive fraud played upon the State Government. For, even after lapse of over five years from the date of issuance of Essentiality Certificate (27.8.2014), the Appellant-College is not in a position to secure the requisite permission(s) from the MCI and the Central Government to run a medical college as per the scheme.17. The State Government whilst discharging its role of parens patriae of the student community cannot remain a mute spectator and expose them to a college, which is deficient in many respects. The fact that no renewal permission has been granted by the MCI for three successive academic sessions due to gross deficiencies in the Appellant-College, is itself indicative of the state of affairs in the Appellant-College, warranting a legal inference that the substratum on the basis of which Essentiality Certificate was issued to the Appellant-College had completely disappeared. For, even the first batch of students admitted in the Appellant-College could not pursue their medical course and were eventually reallocated by the State Government to other recognised private medical colleges within the State as per the obligation specified in the Essentiality Certificate, after obtaining permission of the Central Government in that behalf in November, 2019.18. The Essentiality Certificate was issued on the representation of the Appellant-College that it would give 150 fully trained and qualified doctors each year to the State, thereby improving the doctor-patient ratio and provide healthcare to the nearby population in the attached hospital. All this has become a mirage due to the failure of the Appellant-College to get permission of Central Government for four successive academic sessions starting from 2016-17 till 2019-20. Not even one doctor has been produced by the Appellant-College after issuance of the Essentiality Certificate nor the hospital attached to the college is provided with minimum standards specified by the MCI and is found to be grossly deficient. On a comprehensive view of the state of affairs, the fulfilment of MCI norms and other allied conditions must be understood as an implied imperative for the consideration/continuation of Essentiality Certificate. For, there can be no deviation from the standards. This being a clear case of a non-functioning college, warranted immediate intervention of the State Government in larger public interest and also because the substratum had disappeared. It would certainly come within the excepted category, where the power of withdrawal of Essentiality Certificate ought to be exercised by the State and more particularly not being a case of an established college per se.In the present case, however, the Appellant-College was at the threshold stage of only opening and starting first year course for academic year 2016-17. It failed and neglected to fulfil even the minimum benchmark of standards specified by the MCI allowing it to run the medical college. Admittedly, no renewal permissions from the Central Government were issued for the successive academic years. In that sense, it is not a case of withdrawal of the Essentiality Certificate of an established medical college as such. Had it been a case of well-established and a running medical college having basic minimum infrastructure as per the specifications of the MCI and State Government was to withdraw its Essentiality Certificate, that matter would stand on a different footing than the case at hand, where the college has miserably failed to ensure completion of medical course even of the first batch for three successive academic sessions from 2016-17 due to non-renewal of permission by the MCI.20. Be that as it may, there would be legitimate expectation amongst the stakeholders, after issuance of Essentiality Certificate by the State Government, that the applicant-college shall fulfil the basic norms specified by the MCI in a time bound manner, so as to open the medical college and operate it as per the norms. That, however, has not happened in the present case since August, 2014 until the issuance of subject show-cause notice in August, 2019 and passing of the impugned order of withdrawal of Essentiality Certificate. The fact that the applicant has made certain investments for starting the medical college, by itself, cannot be the basis to undermine power of the State Government coupled with duty to ensure that the medical college is established in terms of the Essentiality Certificate within a reasonable time.21. While dealing with the case of maintaining standards in a professional college, a strict approach must be adopted because these colleges engage in imparting training and education to prospective medical professionals and impact their academic prospects. Thus, the future of the student community pursuing medical course in such deficient colleges would get compromised besides producing inefficient and incompetent doctors from such colleges. That would be posing a bigger risk to the society at large and defeat the sanguine hope entrenched in the Essentiality Certificate issued by the State.22. Indeed, the fact that the Essentiality Certificate given to the Appellant-College stands withdrawn, it does not follow that the need to have a new medical college in the concerned locality or the State ceases to exist. For, the raison detre behind Essentiality Certificate, amongst others, is likely improvement of doctor-patient ratio and access to healthcare for the population in the attached hospital. As a matter of fact, the need would get bigger due to the failure of the new medical college to fulfil the scheme in a time bound manner in right earnest. That entails in enhancing the mismatch of demand and supply ratio of doctors required to achieve the medical manpower of the State. It would not be in public interest nor appropriate for the State Government to remain a mute spectator and not move into action when the college miserably fails to translate the spirit behind the Essentiality Certificate within a reasonable time. By no stretch of imagination, five years period, to fulfil the minimum requirement and standards specified by the MCI, can be countenanced.24. What is necessary in the present factual matrix, as discussed above, is for the State to assess the dire need of medical infrastructure within the State or the locality, as the case may be. The very fact that an Essentiality Certificate is issued in the first place, in itself, is a testimony of the essentiality of such infrastructure. The authority of the State to grant Essentiality Certificate is both power coupled with a duty to ensure that the substratum of the spirit behind the Certificate does not disappear or is defeated. The exercise of power and performance of duty with responsibility and in right earnest must co-exist. Notably, the duty Under Article 47 is, in the constitutional sense, fundamental in the governance of the State. This duty does not end with mere grant of a certificate, rather, it continues upto the point when essentiality of basic medical infrastructure is properly taken care of within a reasonable time frame. Any future application for such certificate, be it by the present Appellant (in terms of directions in this judgment) or by a different applicant, must be dealt with accordingly, and supervision of the State must continue to ensure that the purpose and substratum for grant of such certificate does not and has not disappeared.25. We are conscious of the view taken and conclusion recorded in Chintpurni Medical College (supra). Even though the fact situation in that case may appear to be similar, however, in our opinion, in a case such as the present one, where the spirit behind the Essentiality Certificate issued as back as on 27.8.2014 has remained unfulfilled by the Appellant-College for all this period (almost six years), despite repeated opportunities given by the MCI, as noticed from the summary/observation in the assessment report, it can be safely assumed that the substratum for issuing the Essentiality Certificate had completely disappeared. The State Government cannot be expected to wait indefinitely, much less beyond period of five years, thereby impacting the interests of the student community in the region and the increased doctor-patient ratio and denial of healthcare facility in the attached hospital due to gross deficiencies. Such a situation, in our view, must come within the excepted category, where the State Government ought to act upon and must take corrective measures to undo the hiatus situation and provide a window to some other institute capable of fulfilling the minimum standards/norms specified by the MCI for establishment of a new medical college in the concerned locality or within the State. Without any further ado, we are of the view that the Appellant-College is a failed institute thus far and is unable to deliver the aspirations of the student community and the public at large to produce more medical personnel on year to year basis as per the spirit behind issuance of the subject Essentiality Certificate dated 27.08.2014. To this extent, we respectfully depart from the view taken in Chintpurni Medical College (supra).26. To complete the record, we may mention the argument of the Appellant that the attached hospital of the Appellant has now been taken over by the State Government recently for providing treatment to Covid patients. That, however, will be of no avail to answer the matter in issue. We do not intend to dilate on this argument any further. | 0 | 8,122 | 4,218 | ### Instruction:
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medical college is established in terms of the Essentiality Certificate within a reasonable time. 21. While dealing with the case of maintaining standards in a professional college, a strict approach must be adopted because these colleges engage in imparting training and education to prospective medical professionals and impact their academic prospects. Thus, the future of the student community pursuing medical course in such deficient colleges would get compromised besides producing inefficient and incompetent doctors from such colleges. That would be posing a bigger risk to the society at large and defeat the sanguine hope entrenched in the Essentiality Certificate issued by the State. 22. Indeed, the fact that the Essentiality Certificate given to the Appellant-College stands withdrawn, it does not follow that the need to have a new medical college in the concerned locality or the State ceases to exist. For, the raison detre behind Essentiality Certificate, amongst others, is likely improvement of doctor-patient ratio and access to healthcare for the population in the attached hospital. As a matter of fact, the need would get bigger due to the failure of the new medical college to fulfil the scheme in a time bound manner in right earnest. That entails in enhancing the mismatch of demand and supply ratio of doctors required to achieve the medical manpower of the State. It would not be in public interest nor appropriate for the State Government to remain a mute spectator and not move into action when the college miserably fails to translate the spirit behind the Essentiality Certificate within a reasonable time. By no stretch of imagination, five years period, to fulfil the minimum requirement and standards specified by the MCI, can be countenanced. 23. Article 47 of the Constitution of India encompassed in Directive Principles of State Policy, enjoins the State with a duty to provide for and ensure good public health and a constant endeavour to improve the same to effectuate the fundamental right to life guaranteed by the Constitution to all. Thus understood, the States duty Under Article 47 is to act as an enabler for the wholesome exercise of right to life. A right to have access to proper public health care would be of little value if the State does not create the requisite conditions for proper exercise of such right. Access to medical college and hospital is, no doubt, a part of the said conditions. In Paschim Banga Khet Mazdoor Samity and Ors. v. State of West Bengal and Anr. (1996) 4 SCC 37 , this Court observed that it is the Constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. 24. What is necessary in the present factual matrix, as discussed above, is for the State to assess the dire need of medical infrastructure within the State or the locality, as the case may be. The very fact that an Essentiality Certificate is issued in the first place, in itself, is a testimony of the essentiality of such infrastructure. The authority of the State to grant Essentiality Certificate is both power coupled with a duty to ensure that the substratum of the spirit behind the Certificate does not disappear or is defeated. The exercise of power and performance of duty with responsibility and in right earnest must co-exist. Notably, the duty Under Article 47 is, in the constitutional sense, fundamental in the governance of the State. This duty does not end with mere grant of a certificate, rather, it continues upto the point when essentiality of basic medical infrastructure is properly taken care of within a reasonable time frame. Any future application for such certificate, be it by the present Appellant (in terms of directions in this judgment) or by a different applicant, must be dealt with accordingly, and supervision of the State must continue to ensure that the purpose and substratum for grant of such certificate does not and has not disappeared. 25. We are conscious of the view taken and conclusion recorded in Chintpurni Medical College (supra). Even though the fact situation in that case may appear to be similar, however, in our opinion, in a case such as the present one, where the spirit behind the Essentiality Certificate issued as back as on 27.8.2014 has remained unfulfilled by the Appellant-College for all this period (almost six years), despite repeated opportunities given by the MCI, as noticed from the summary/observation in the assessment report, it can be safely assumed that the substratum for issuing the Essentiality Certificate had completely disappeared. The State Government cannot be expected to wait indefinitely, much less beyond period of five years, thereby impacting the interests of the student community in the region and the increased doctor-patient ratio and denial of healthcare facility in the attached hospital due to gross deficiencies. Such a situation, in our view, must come within the excepted category, where the State Government ought to act upon and must take corrective measures to undo the hiatus situation and provide a window to some other institute capable of fulfilling the minimum standards/norms specified by the MCI for establishment of a new medical college in the concerned locality or within the State. Without any further ado, we are of the view that the Appellant-College is a failed institute thus far and is unable to deliver the aspirations of the student community and the public at large to produce more medical personnel on year to year basis as per the spirit behind issuance of the subject Essentiality Certificate dated 27.08.2014. To this extent, we respectfully depart from the view taken in Chintpurni Medical College (supra). 26. To complete the record, we may mention the argument of the Appellant that the attached hospital of the Appellant has now been taken over by the State Government recently for providing treatment to Covid patients. That, however, will be of no avail to answer the matter in issue. We do not intend to dilate on this argument any further.
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Government was to withdraw its Essentiality Certificate, that matter would stand on a different footing than the case at hand, where the college has miserably failed to ensure completion of medical course even of the first batch for three successive academic sessions from 2016-17 due to non-renewal of permission by the MCI.20. Be that as it may, there would be legitimate expectation amongst the stakeholders, after issuance of Essentiality Certificate by the State Government, that the applicant-college shall fulfil the basic norms specified by the MCI in a time bound manner, so as to open the medical college and operate it as per the norms. That, however, has not happened in the present case since August, 2014 until the issuance of subject show-cause notice in August, 2019 and passing of the impugned order of withdrawal of Essentiality Certificate. The fact that the applicant has made certain investments for starting the medical college, by itself, cannot be the basis to undermine power of the State Government coupled with duty to ensure that the medical college is established in terms of the Essentiality Certificate within a reasonable time.21. While dealing with the case of maintaining standards in a professional college, a strict approach must be adopted because these colleges engage in imparting training and education to prospective medical professionals and impact their academic prospects. Thus, the future of the student community pursuing medical course in such deficient colleges would get compromised besides producing inefficient and incompetent doctors from such colleges. That would be posing a bigger risk to the society at large and defeat the sanguine hope entrenched in the Essentiality Certificate issued by the State.22. Indeed, the fact that the Essentiality Certificate given to the Appellant-College stands withdrawn, it does not follow that the need to have a new medical college in the concerned locality or the State ceases to exist. For, the raison detre behind Essentiality Certificate, amongst others, is likely improvement of doctor-patient ratio and access to healthcare for the population in the attached hospital. As a matter of fact, the need would get bigger due to the failure of the new medical college to fulfil the scheme in a time bound manner in right earnest. That entails in enhancing the mismatch of demand and supply ratio of doctors required to achieve the medical manpower of the State. It would not be in public interest nor appropriate for the State Government to remain a mute spectator and not move into action when the college miserably fails to translate the spirit behind the Essentiality Certificate within a reasonable time. By no stretch of imagination, five years period, to fulfil the minimum requirement and standards specified by the MCI, can be countenanced.24. What is necessary in the present factual matrix, as discussed above, is for the State to assess the dire need of medical infrastructure within the State or the locality, as the case may be. The very fact that an Essentiality Certificate is issued in the first place, in itself, is a testimony of the essentiality of such infrastructure. The authority of the State to grant Essentiality Certificate is both power coupled with a duty to ensure that the substratum of the spirit behind the Certificate does not disappear or is defeated. The exercise of power and performance of duty with responsibility and in right earnest must co-exist. Notably, the duty Under Article 47 is, in the constitutional sense, fundamental in the governance of the State. This duty does not end with mere grant of a certificate, rather, it continues upto the point when essentiality of basic medical infrastructure is properly taken care of within a reasonable time frame. Any future application for such certificate, be it by the present Appellant (in terms of directions in this judgment) or by a different applicant, must be dealt with accordingly, and supervision of the State must continue to ensure that the purpose and substratum for grant of such certificate does not and has not disappeared.25. We are conscious of the view taken and conclusion recorded in Chintpurni Medical College (supra). Even though the fact situation in that case may appear to be similar, however, in our opinion, in a case such as the present one, where the spirit behind the Essentiality Certificate issued as back as on 27.8.2014 has remained unfulfilled by the Appellant-College for all this period (almost six years), despite repeated opportunities given by the MCI, as noticed from the summary/observation in the assessment report, it can be safely assumed that the substratum for issuing the Essentiality Certificate had completely disappeared. The State Government cannot be expected to wait indefinitely, much less beyond period of five years, thereby impacting the interests of the student community in the region and the increased doctor-patient ratio and denial of healthcare facility in the attached hospital due to gross deficiencies. Such a situation, in our view, must come within the excepted category, where the State Government ought to act upon and must take corrective measures to undo the hiatus situation and provide a window to some other institute capable of fulfilling the minimum standards/norms specified by the MCI for establishment of a new medical college in the concerned locality or within the State. Without any further ado, we are of the view that the Appellant-College is a failed institute thus far and is unable to deliver the aspirations of the student community and the public at large to produce more medical personnel on year to year basis as per the spirit behind issuance of the subject Essentiality Certificate dated 27.08.2014. To this extent, we respectfully depart from the view taken in Chintpurni Medical College (supra).26. To complete the record, we may mention the argument of the Appellant that the attached hospital of the Appellant has now been taken over by the State Government recently for providing treatment to Covid patients. That, however, will be of no avail to answer the matter in issue. We do not intend to dilate on this argument any further.
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S.S. & Company & Another Vs. Orissa Mining Corporation Limited & Another | transport of iron ores from its mines on contract to an outside agency. It would be truism to say that the Corporation knows best the exact nature of its work and it is the best judge to say what is and what is not comparable to it. The expression “excluding minor minerals” used in the eligibility must, therefore, be viewed as commonly understood in the mining/industrial and commercial world. What the clause intends to convey is that the extraction of iron ore requires certain degree of technical expertise and competence and in order to have the required degree of competence the bidder must have some past experience of similar kind of work, clarifying further that working of minor minerals would not be accepted as qualifying experience/sufficient expertise for the purpose of the NIT. The distinction between minor and major minerals is well-known to the mining/industrial and commercial world and anyone engaged in the business would know what the eligibility clause in the NIT demands without referring to the statute and case law and any abstruse arguments based thereon.47. There is yet another reason, weightier than the previous ones, for rejecting the appellant’s challenge to the amendment made in the eligibility clause. A grievance against the amendment, either based on the plea of mala fide or on the substance of the amendment can only be raised by someone whose position gets adversely affected by the amendment. 48. The basic question therefore is how far the appellant can be said to be affected by the amendment in actual terms. Clause 8(i) is simply the well known and the well established experience clause. In its unamended form as contained in NITs 65 and 75 it required the bidder to have some past experience of the work under contract. In other words, the bidder was required to have successfully executed in the past some work similar in nature to the one being the subject matter of the contract. In NIT 85, which is for raising, calibration and transport of iron ore the clause in question stipulated that the tenderer must have past experience of similar work and made it further clear that working of minor mineral would not be accepted as similar in nature to the work under the NIT. It is thus manifest that the insertion of the words “exclude mine and mineral” does not bring about any alteration or change in the basic experience clause. It simply makes it clear and explicit that the working of any minor mineral is not the same as raising, calibration and transport of iron ore at Daitari Mines. It may be noted here that in the affidavit filed before the High Court on behalf of the Corporation it was stated as follows: “Some changes in the eligibility criteria of NIT No.85 in comparison to NIT No.75 have been approved. In clause 3(i) “excluding minor minerals” has been added in the 2nd line of the clause after the word minerals. Iron ore being too hard, drilling and blasting and strict quality control measures will be essential which cannot be compared with mining of “minor minerals”. To bring required expertise for undertaking efficient iron ore mining, the above change in eligibility criteria has been made.” 49. Let us now examine how far the petitioner SSC can feel aggrieved by what it describes as amendment in the clause in question. The Appellant’s own statement in regard to its experience is to be found at Annexure P-1 in which it gives description of five different kinds of work. The works at Sl.Nos.1 and 2 are described as follows: “Drilling, Blasting, Excavation, Loading and transportation of Sand and Lumps deploying HEMM from the leasehold area of Faridabad Yamuna Sand Mines of M/s. S.S. & Company (M/s. SSC)”. 50. The other three works related to handling of materials like Rock Phosphate, Gypsum, Copper Concentrate, flux, slag and material handling work at Zinc Smelter Plant. 51. On the basis of the appellant’s own statement submitted along with the tender documents, the Technical Committee in its report dated June 11, 2007, noted as follows: “M/s. S.S.& Co. has submitted experience certificate for working in Yamuna Sand Quarry in the district of Faridabad and other minor minerals including handling in the Plant. As per the eligibility riteria of NIT under clause 8(i) the experience of the agency is not at par with the eligibility of NIT.” 52. We are unable to see any error much less any unreasonableness in the view taken by the Technical Committee and in rejecting the appellant’s tender on that basis. It does not require much imagination to hold that the work of lifting of sand from a riverbed or a sand quarry is not similar in nature to the work of raising, calibration and transport of iron ore. 53. It is significant to note here that the appellant’s tender in response to NIT75 that did not contain the expressions “excluding minor mineral” was also rejected at the stage of technical bid since it did not satisfy the eligibility clause of having previously done some work similar in nature to the work under contract. 54. It is thus evident to us that the appellant-SSC did not satisfy the eligibility criteria with regard to past experience even in terms of the unamended clause 8(i). Had the appellant been qualified in terms of the unamended clause and faced exclusion only as a result of the amendment in the criterion it might have been open to it to assail the introduction of the amendment. But that is not the case here. As noted above, the appellant was liable to be excluded, and was in fact excluded, even under the unamended clause 8(i) and, therefore, all arguments either based on mala fide or on the substance of the amendment lose all their relevance. 55. Thus on a careful consideration of all the materials produced before the court and the submissions advanced by the two sides we find no merit in the case of SSC either. | 0[ds]20. In our view, the submission is quiteThe materials on record plainly indicate that the appellant was trying to find ways to get out of the contract for the third year period because the rates under the tender schedule were no longer profitable to it. We were shown theletter, dated June 29, 2007 by which it was pointed out to the appellant that according to the terms of the tender the contract was for a period of three years and it would expire on February 24, 2008. It was further stated in the letter that the appellant had badly defaulted on the production target for the first quarter ofand in terms of clause 1.8 of the tender schedule it was asked to clarify its final stand and to indicate its production plan for the remaining tender period i.e. till February 24, 2008. To theletter, the appellant gave a highly evasive reply by its letter of July 4, 2007. Alluding to Writ Petition (C) No.7002/2007 it stated that the matter wasbefore the High Court and on that plea it declined to enter into any correspondence on the issue raised by the Corporation. It is to be noted here that the Writ Petition arose from a controversy relating to the eligibility clause in NIT 85/2007 and it had nothing to do with the production targets under NITis thus manifest that, according to the Corporation, thehad the right to work the mine till February 24, 2008 and on its own showing it was actually engaged in working the mine till June 30,fact of the matter is that the appellant on its own showing was working the mine upto June 30, 2007. Further, in view of the decision of the Corporation it had the right to be there upto February 24, 2008. Therefore, the High Court was not incorrect in observing that the appellant would have been barred from taking part in the tender process even if the six months margin was retained in the eligibilityis axiomatic that the Corporation is the best judge of its interests and needs and it is always open to it to suitably modify or change the eligibility criteria so as to best serve its purposes. Whenever a change is introduced in the eligibility criteria either by introducing some new conditions or restricting or altogether doing away with certain previous concessions it might hurt the interests of someone or the other but for that reason the change(s) made in the eligibility criteria cannot be labelled as mala fide. The first two arguments advanced on behalf of the appellant thus completely fail to show any mala fide and we now proceed to examine the third argument advanced on its behalf.We find that the explanation given by the Corporation is perfectly reasonable and if any illustration is needed it is to be found in the facts of the case in hand itself.There was no escalation clause in the contract and from the record it is manifest that the rates on which thetender was accepted were no longer profitable for it, at least in third year, and the appellant was not at all interested in carrying on the work for the third year on the rates given in the tender schedule. In paragraph 2 of thet it is stated that the appellant had completely failed to meet the production target and it was badly inthe aforesaid circumstances the consequences of the appellant getting the contract under NIT 85/2007 would have been: one, that it would operate the same mine at the same time under two different contracts with widely different rates and the other, that it would be charging much higher rates for extraction of ores that it was obliged to extract at much lower rates under the previous contract. The Corporation can hardly be faulted for protecting itself against entering into such a bargain with anyone.32. Thus, on a careful consideration, we are fully satisfied that doing away with the six months margin in clause 8(vii) was not arbitrary or unreasonable, nor it had any mala fide intent. For the reasons discussed above, we find no merit in the) case. The High Court has taken a perfectly correct view of the matter and it warrants no interference by this Court. M/s. S.S.& Company (SSC) Mr. R.F. Nariman, learned senior counsel appearing for the SSC also began his submissions by alleging, that the amendment in clause 8(i) of NIT 85 by insertion of the wordswas mala fide: its sole purpose was to exclude SSC and to unduly favour another bidder, namely, M/s. Arun Udyog Ltd. In support of the plea of mala fide Mr. Nariman advanced three arguments. Learned counsel stated that though being the lowest bidder in response to the earlier two NITs 65 and 75, SSC was not awarded the work because the concerned officials in the Corporation wanted to give it to Arun Udyog whose bids were much higher than the appellant. When the appellant took the matter arising from NITs 65 and 75 to the High Court, on each occasion the bid process was aborted in the middle and finally NIT 85 was issued with the offending amendment. He next submitted that the amendment made in the clause was a one time exclusionary measure: it was not there in the earlier NITs and it is unlikely to find place in the future NITs. He also submitted that the impugned amendment in clause 8(i) of NIT 85 was made at the instance of the Managing Director and without the prior approval of the36. We are in complete agreement with the view taken by the High Court. As a matter of fact, for rejecting the allegation that the impugned amendment was introduced in clause 8(i) of the NIT at the instance of the Managing Director, without obtaining prior approval of the Board of Directors we need not even go to the rebuttal affidavit filed by the Addl. General Manager. The Board of Directors is the apex policy making body. It may lay down broad guidelines but it is impossible to conceive that all the NITs (over a hundred in number) issued by the Corporation for different purposes every year should come before it for consideration and approval of their respective clauses or any amendment proposed in any clause in any of the NITs. [We fail to see any good reason why the matter should not be finalized by the Managing Director or, depending upon the nature of the contract, even at some lower level]. The normal work of any organization or government department would be seriously hampered if every tendering party would claim the right to raise objection that one or the other clause in a NIT or any amendment introduced in any of its clauses did not have the prior sanction of the highest policy making body of the organization. In this case particularly there is no occasion to go into that question as there is neither any material to suggest, even remotely, that the Managing Director harboured any malice against the appellant nor is the Managing director made a party to this case in his personal capacity.45. We find substance in Dr.submission and we are unable to accept the arguments advanced on behalf of the appellant that any distinction between minor and major minerals was illusory and the amendment in the clause in question, based on the distinction between the two, was arbitrary and did not serve any purpose.46. We have noted the submissions of the two sides and have also said that on the issue whether there are any differences between minor and major minerals we are inclined to accept the position taken by Dr. Dhawan. But we think that in the context of the case an elaborate analysis of the provisions of the MM (R&D) Act and Mineral Concession Rules to bring out the distinction between minor and major minerals is quite misconceived. We think it would be a mistake to see the NIT through the prism of the Act and the Rules. The NIT should not be viewed in the highly pedantic and legalistic manner as suggested by Mr. Nariman but it should be read and understood for what it is. It is a notice issued by the Corporation which is engaged in the business of mining. The Corporation owns a number of mines and wishes to give the work of raising, calibration and transport of iron ores from its mines on contract to an outside agency. It would be truism to say that the Corporation knows best the exact nature of its work and it is the best judge to say what is and what is not comparable to it. The expressionused in the eligibility must, therefore, be viewed as commonly understood in the mining/industrial and commercial world. What the clause intends to convey is that the extraction of iron ore requires certain degree of technical expertise and competence and in order to have the required degree of competence the bidder must have some past experience of similar kind of work, clarifying further that working of minor minerals would not be accepted as qualifying experience/sufficient expertise for the purpose of the NIT. The distinction between minor and major minerals isto the mining/industrial and commercial world and anyone engaged in the business would know what the eligibility clause in the NIT demands without referring to the statute and case law and any abstruse arguments based thereon.47. There is yet another reason, weightier than the previous ones, for rejecting thechallenge to the amendment made in the eligibility clause. A grievance against the amendment, either based on the plea of mala fide or on the substance of the amendment can only be raised by someone whose position gets adversely affected by the8(i) is simply the well known and the well established experience clause. In its unamended form as contained in NITs 65 and 75 it required the bidder to have some past experience of the work under contract. In other words, the bidder was required to have successfully executed in the past some work similar in nature to the one being the subject matter of the contract. In NIT 85, which is for raising, calibration and transport of iron ore the clause in question stipulated that the tenderer must have past experience of similar work and made it further clear that working of minor mineral would not be accepted as similar in nature to the work under the NIT. It is thus manifest that the insertion of the wordsdoes not bring about any alteration or change in the basic experience clause. It simply makes it clear and explicit that the working of any minor mineral is not the same as raising, calibration and transport of iron ore at Daitari | 0 | 8,106 | 1,932 | ### Instruction:
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### Input:
transport of iron ores from its mines on contract to an outside agency. It would be truism to say that the Corporation knows best the exact nature of its work and it is the best judge to say what is and what is not comparable to it. The expression “excluding minor minerals” used in the eligibility must, therefore, be viewed as commonly understood in the mining/industrial and commercial world. What the clause intends to convey is that the extraction of iron ore requires certain degree of technical expertise and competence and in order to have the required degree of competence the bidder must have some past experience of similar kind of work, clarifying further that working of minor minerals would not be accepted as qualifying experience/sufficient expertise for the purpose of the NIT. The distinction between minor and major minerals is well-known to the mining/industrial and commercial world and anyone engaged in the business would know what the eligibility clause in the NIT demands without referring to the statute and case law and any abstruse arguments based thereon.47. There is yet another reason, weightier than the previous ones, for rejecting the appellant’s challenge to the amendment made in the eligibility clause. A grievance against the amendment, either based on the plea of mala fide or on the substance of the amendment can only be raised by someone whose position gets adversely affected by the amendment. 48. The basic question therefore is how far the appellant can be said to be affected by the amendment in actual terms. Clause 8(i) is simply the well known and the well established experience clause. In its unamended form as contained in NITs 65 and 75 it required the bidder to have some past experience of the work under contract. In other words, the bidder was required to have successfully executed in the past some work similar in nature to the one being the subject matter of the contract. In NIT 85, which is for raising, calibration and transport of iron ore the clause in question stipulated that the tenderer must have past experience of similar work and made it further clear that working of minor mineral would not be accepted as similar in nature to the work under the NIT. It is thus manifest that the insertion of the words “exclude mine and mineral” does not bring about any alteration or change in the basic experience clause. It simply makes it clear and explicit that the working of any minor mineral is not the same as raising, calibration and transport of iron ore at Daitari Mines. It may be noted here that in the affidavit filed before the High Court on behalf of the Corporation it was stated as follows: “Some changes in the eligibility criteria of NIT No.85 in comparison to NIT No.75 have been approved. In clause 3(i) “excluding minor minerals” has been added in the 2nd line of the clause after the word minerals. Iron ore being too hard, drilling and blasting and strict quality control measures will be essential which cannot be compared with mining of “minor minerals”. To bring required expertise for undertaking efficient iron ore mining, the above change in eligibility criteria has been made.” 49. Let us now examine how far the petitioner SSC can feel aggrieved by what it describes as amendment in the clause in question. The Appellant’s own statement in regard to its experience is to be found at Annexure P-1 in which it gives description of five different kinds of work. The works at Sl.Nos.1 and 2 are described as follows: “Drilling, Blasting, Excavation, Loading and transportation of Sand and Lumps deploying HEMM from the leasehold area of Faridabad Yamuna Sand Mines of M/s. S.S. & Company (M/s. SSC)”. 50. The other three works related to handling of materials like Rock Phosphate, Gypsum, Copper Concentrate, flux, slag and material handling work at Zinc Smelter Plant. 51. On the basis of the appellant’s own statement submitted along with the tender documents, the Technical Committee in its report dated June 11, 2007, noted as follows: “M/s. S.S.& Co. has submitted experience certificate for working in Yamuna Sand Quarry in the district of Faridabad and other minor minerals including handling in the Plant. As per the eligibility riteria of NIT under clause 8(i) the experience of the agency is not at par with the eligibility of NIT.” 52. We are unable to see any error much less any unreasonableness in the view taken by the Technical Committee and in rejecting the appellant’s tender on that basis. It does not require much imagination to hold that the work of lifting of sand from a riverbed or a sand quarry is not similar in nature to the work of raising, calibration and transport of iron ore. 53. It is significant to note here that the appellant’s tender in response to NIT75 that did not contain the expressions “excluding minor mineral” was also rejected at the stage of technical bid since it did not satisfy the eligibility clause of having previously done some work similar in nature to the work under contract. 54. It is thus evident to us that the appellant-SSC did not satisfy the eligibility criteria with regard to past experience even in terms of the unamended clause 8(i). Had the appellant been qualified in terms of the unamended clause and faced exclusion only as a result of the amendment in the criterion it might have been open to it to assail the introduction of the amendment. But that is not the case here. As noted above, the appellant was liable to be excluded, and was in fact excluded, even under the unamended clause 8(i) and, therefore, all arguments either based on mala fide or on the substance of the amendment lose all their relevance. 55. Thus on a careful consideration of all the materials produced before the court and the submissions advanced by the two sides we find no merit in the case of SSC either.
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65 and 75, SSC was not awarded the work because the concerned officials in the Corporation wanted to give it to Arun Udyog whose bids were much higher than the appellant. When the appellant took the matter arising from NITs 65 and 75 to the High Court, on each occasion the bid process was aborted in the middle and finally NIT 85 was issued with the offending amendment. He next submitted that the amendment made in the clause was a one time exclusionary measure: it was not there in the earlier NITs and it is unlikely to find place in the future NITs. He also submitted that the impugned amendment in clause 8(i) of NIT 85 was made at the instance of the Managing Director and without the prior approval of the36. We are in complete agreement with the view taken by the High Court. As a matter of fact, for rejecting the allegation that the impugned amendment was introduced in clause 8(i) of the NIT at the instance of the Managing Director, without obtaining prior approval of the Board of Directors we need not even go to the rebuttal affidavit filed by the Addl. General Manager. The Board of Directors is the apex policy making body. It may lay down broad guidelines but it is impossible to conceive that all the NITs (over a hundred in number) issued by the Corporation for different purposes every year should come before it for consideration and approval of their respective clauses or any amendment proposed in any clause in any of the NITs. [We fail to see any good reason why the matter should not be finalized by the Managing Director or, depending upon the nature of the contract, even at some lower level]. The normal work of any organization or government department would be seriously hampered if every tendering party would claim the right to raise objection that one or the other clause in a NIT or any amendment introduced in any of its clauses did not have the prior sanction of the highest policy making body of the organization. In this case particularly there is no occasion to go into that question as there is neither any material to suggest, even remotely, that the Managing Director harboured any malice against the appellant nor is the Managing director made a party to this case in his personal capacity.45. We find substance in Dr.submission and we are unable to accept the arguments advanced on behalf of the appellant that any distinction between minor and major minerals was illusory and the amendment in the clause in question, based on the distinction between the two, was arbitrary and did not serve any purpose.46. We have noted the submissions of the two sides and have also said that on the issue whether there are any differences between minor and major minerals we are inclined to accept the position taken by Dr. Dhawan. But we think that in the context of the case an elaborate analysis of the provisions of the MM (R&D) Act and Mineral Concession Rules to bring out the distinction between minor and major minerals is quite misconceived. We think it would be a mistake to see the NIT through the prism of the Act and the Rules. The NIT should not be viewed in the highly pedantic and legalistic manner as suggested by Mr. Nariman but it should be read and understood for what it is. It is a notice issued by the Corporation which is engaged in the business of mining. The Corporation owns a number of mines and wishes to give the work of raising, calibration and transport of iron ores from its mines on contract to an outside agency. It would be truism to say that the Corporation knows best the exact nature of its work and it is the best judge to say what is and what is not comparable to it. The expressionused in the eligibility must, therefore, be viewed as commonly understood in the mining/industrial and commercial world. What the clause intends to convey is that the extraction of iron ore requires certain degree of technical expertise and competence and in order to have the required degree of competence the bidder must have some past experience of similar kind of work, clarifying further that working of minor minerals would not be accepted as qualifying experience/sufficient expertise for the purpose of the NIT. The distinction between minor and major minerals isto the mining/industrial and commercial world and anyone engaged in the business would know what the eligibility clause in the NIT demands without referring to the statute and case law and any abstruse arguments based thereon.47. There is yet another reason, weightier than the previous ones, for rejecting thechallenge to the amendment made in the eligibility clause. A grievance against the amendment, either based on the plea of mala fide or on the substance of the amendment can only be raised by someone whose position gets adversely affected by the8(i) is simply the well known and the well established experience clause. In its unamended form as contained in NITs 65 and 75 it required the bidder to have some past experience of the work under contract. In other words, the bidder was required to have successfully executed in the past some work similar in nature to the one being the subject matter of the contract. In NIT 85, which is for raising, calibration and transport of iron ore the clause in question stipulated that the tenderer must have past experience of similar work and made it further clear that working of minor mineral would not be accepted as similar in nature to the work under the NIT. It is thus manifest that the insertion of the wordsdoes not bring about any alteration or change in the basic experience clause. It simply makes it clear and explicit that the working of any minor mineral is not the same as raising, calibration and transport of iron ore at Daitari
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TAMILNADU RURAL DEVELOPMENT ENGINEERS AND ASSISTANT ENGINEERS ASSOCIATION Vs. GOVERNMENT OF TAMILNADU AND OTHERS | with other entry level services like Assistant Surgeons; and that as a result of upward revision for Assistant Engineers the gap between the level of the Assistant Engineers and the subordinate ranks got widened to a considerable level while the Assistant Engineers and the promotional level for Assistant Engineer were brought almost at the same levels. According to the learned Advocate General, various such anomalies were required to be sorted out which in turn made the State Government to constitute the PGRC. According to the State Government, normally the pay scales afforded to equivalent ranks in the Central Government are higher than the ranks in the State Government but the entry level of Assistant Engineers in the State Government, as a result of the recommendations of the One Man Commission was kept at a level far too higher than their counterparts in the Central Government. 13. The Tabulated Chart which is part of GO No.242 indicates very clearly that the Assistant Engineers who were in the pre-revised pay scale of Rs.6500-11100 (column No.3), by virtue of acceptance of the recommendations made by the 6 th Central Pay Commission were kept in the pay scale of Rs.9300-34800 with grade pay of Rs.4700/- (column No.4) as a result of GO No.234 dated 01.06.2009, while the next promotional level i.e. of the Assistant Executive Engineers was kept at Rs.15600-39100 with grade pay of Rs.5400/-. The recommendations of the One Man Commission resulted in upward revision to the extent of Rs.15600-39100 with grade pay of Rs.5400/- (column No.5) for the Assistanct Engineers. The recommendations of the PGRC resulted in refixation for Assistant Engineers in the scale of Rs.9300-34800 withmarginal increase of grade pay to Rs.5100/- (column No.7) as against what was available pursuant to GO No.234 dated 01.06.2009. 14. The recommendations of the PGRC dealt with the effects of the acceptance of the recommendations by the One Man Commission. Para 3 of the recommendations quoted hereinabove shows that certain aspects of the matter were found to be anomalous. The submissions advanced by the learned Advocate General also show how the difference between the Assistant Engineers and the post immediately lower than that was getting widened, while at the same time, the post of Assistant Engineer and the next level of promotion i.e. the post of Assistant Executive Engineer were brought almost at the same level. These anomalies found by the State Government, had to be addressed. If the State Government, therefore, constituted the PGRC, such decision by itself cannot be found to be illegal or invalid. 15. It has always been accepted by this Court that prescription of pay- scales and the assessment in that behalf is a complex matter which requires expertise. For instance, in Dy. Director General of Geological Survey of India and another v. R. Yadaiah and others (2001) 10 SCC 563 it was observed: Ordinarily, the courts or tribunal should not go into the question of fitment of the officers in a particular group or the pay scales thereof, and leave the matter to the discretion and expertise of the special commission like the Pay Commission. In State of Bihar and others v. Bihar Veterinary Association and others (2008) 11 SCC 60 it was observed :- 13. If the courts start disturbing the recommendations of the pay scale in a particular class of service then it is likely to have cascading effect on all related services which may result into multifarious litigation. The Fitment Committee has undertaken the exercise and recommended the wholesale revision of the pay scale in the State of Bihar and if one class of service is to be picked up and granted higher pay scale as is available in the Central Government then the whole balance will be disturbed and other services are likely to be affected and it will result in complex situation in the State and may lead to ruination of the finances of the State. ….. In Hukumchand Gupta v. ICAR (2012) 12 SCC 666it was stated :- 20. … Prescription of pay scales on particular posts is a very complex exercise. It requires assessment of the nature and quality of the duties performed and the responsibilities shouldered by the incumbents on different posts. Even though, the two posts may be referred to by the same name, it would not lead to the necessary inference that the posts are identical in every manner. These are matters to be assessed by expert bodies like the employer or the Pay Commission. … … 16. It may be stated here that the 6 th Central Pay Commission comprising of experts in the field had recommended certain pay-scales for various posts. The Official Committee which comprised of Principal Secretary to the State of Tamil Nadu, Home Department, as Chairperson with (i) Principal Secretary, Finance Department; (ii) Principal Secretary, Personnel and Administrative Reforms Department; and (iii)Principal Secretary, School Education Department as Members, had examined the matter and made certain recommendations which were accepted by the Government by GO No.234 dated 01.06.2009. The One Man Commission appointed to consider the anomalies, however, recommended something which was far in excess of what was accepted by GO No.234 dated 01.06.2009 which in turn was in tune with the recommendations of the 6 th Central Pay Commission. It is true that the Government had accepted the recommendations of the One Man Commission but if further anomalies were found which called for action on part of the Government, any exercise to reconsider the matter by the State Government could not be faulted nor could the constitution of the PGRC be said to be invalid or illegal. 17. Further, if there was any infirmity in the exercise of power by the PGRC in not granting adequate notice and hearing to the concerned, such infirmity could certainly be sorted out. That is exactly what the Division Bench undertook while passing the directions quoted hereinabove. We, therefore, see no error in the approach of and the directions issued by the Division Bench of the High Court. | 1[ds]13. The Tabulated Chart which is part of GO No.242 indicates very clearly that the Assistant Engineers who were in the pre-revised pay scale of Rs.6500-11100 (column No.3), by virtue of acceptance of the recommendations made by the 6 th Central Pay Commission were kept in the pay scale of Rs.9300-34800 with grade pay of Rs.4700/- (column No.4) as a result of GO No.234 dated 01.06.2009, while the next promotional level i.e. of the Assistant Executive Engineers was kept at Rs.15600-39100 with grade pay of Rs.5400/-. The recommendations of the One Man Commission resulted in upward revision to the extent of Rs.15600-39100 with grade pay of Rs.5400/- (column No.5) for the Assistanct Engineers. The recommendations of the PGRC resulted in refixation for Assistant Engineers in the scale of Rs.9300-34800 withmarginal increase of grade pay to Rs.5100/- (column No.7) as against what was available pursuant to GO No.234 dated 01.06.200914. The recommendations of the PGRC dealt with the effects of the acceptance of the recommendations by the One Man Commission. Para 3 of the recommendations quoted hereinabove shows that certain aspects of the matter were found to be anomalous. The submissions advanced by the learned Advocate General also show how the difference between the Assistant Engineers and the post immediately lower than that was getting widened, while at the same time, the post of Assistant Engineer and the next level of promotion i.e. the post of Assistant Executive Engineer were brought almost at the same level. These anomalies found by the State Government, had to be addressed. If the State Government, therefore, constituted the PGRC, such decision by itself cannot be found to be illegal or invalid16. It may be stated here that the 6 th Central Pay Commission comprising of experts in the field had recommended certain pay-scales for various posts. The Official Committee which comprised of Principal Secretary to the State of Tamil Nadu, Home Department, as Chairperson with (i) Principal Secretary, Finance Department; (ii) Principal Secretary, Personnel and Administrative Reforms Department; and (iii)Principal Secretary, School Education Department as Members, had examined the matter and made certain recommendations which were accepted by the Government by GO No.234 dated 01.06.2009. The One Man Commission appointed to consider the anomalies, however, recommended something which was far in excess of what was accepted by GO No.234 dated 01.06.2009 which in turn was in tune with the recommendations of the 6 th Central Pay Commission. It is true that the Government had accepted the recommendations of the One Man Commission but if further anomalies were found which called for action on part of the Government, any exercise to reconsider the matter by the State Government could not be faulted nor could the constitution of the PGRC be said to be invalid or illegal17. Further, if there was any infirmity in the exercise of power by the PGRC in not granting adequate notice and hearing to the concerned, such infirmity could certainly be sorted out. That is exactly what the Division Bench undertook while passing the directions quoted hereinabove. We, therefore, see no error in the approach of and the directions issued by the Division Bench of the High Court. | 1 | 4,252 | 587 | ### 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:
with other entry level services like Assistant Surgeons; and that as a result of upward revision for Assistant Engineers the gap between the level of the Assistant Engineers and the subordinate ranks got widened to a considerable level while the Assistant Engineers and the promotional level for Assistant Engineer were brought almost at the same levels. According to the learned Advocate General, various such anomalies were required to be sorted out which in turn made the State Government to constitute the PGRC. According to the State Government, normally the pay scales afforded to equivalent ranks in the Central Government are higher than the ranks in the State Government but the entry level of Assistant Engineers in the State Government, as a result of the recommendations of the One Man Commission was kept at a level far too higher than their counterparts in the Central Government. 13. The Tabulated Chart which is part of GO No.242 indicates very clearly that the Assistant Engineers who were in the pre-revised pay scale of Rs.6500-11100 (column No.3), by virtue of acceptance of the recommendations made by the 6 th Central Pay Commission were kept in the pay scale of Rs.9300-34800 with grade pay of Rs.4700/- (column No.4) as a result of GO No.234 dated 01.06.2009, while the next promotional level i.e. of the Assistant Executive Engineers was kept at Rs.15600-39100 with grade pay of Rs.5400/-. The recommendations of the One Man Commission resulted in upward revision to the extent of Rs.15600-39100 with grade pay of Rs.5400/- (column No.5) for the Assistanct Engineers. The recommendations of the PGRC resulted in refixation for Assistant Engineers in the scale of Rs.9300-34800 withmarginal increase of grade pay to Rs.5100/- (column No.7) as against what was available pursuant to GO No.234 dated 01.06.2009. 14. The recommendations of the PGRC dealt with the effects of the acceptance of the recommendations by the One Man Commission. Para 3 of the recommendations quoted hereinabove shows that certain aspects of the matter were found to be anomalous. The submissions advanced by the learned Advocate General also show how the difference between the Assistant Engineers and the post immediately lower than that was getting widened, while at the same time, the post of Assistant Engineer and the next level of promotion i.e. the post of Assistant Executive Engineer were brought almost at the same level. These anomalies found by the State Government, had to be addressed. If the State Government, therefore, constituted the PGRC, such decision by itself cannot be found to be illegal or invalid. 15. It has always been accepted by this Court that prescription of pay- scales and the assessment in that behalf is a complex matter which requires expertise. For instance, in Dy. Director General of Geological Survey of India and another v. R. Yadaiah and others (2001) 10 SCC 563 it was observed: Ordinarily, the courts or tribunal should not go into the question of fitment of the officers in a particular group or the pay scales thereof, and leave the matter to the discretion and expertise of the special commission like the Pay Commission. In State of Bihar and others v. Bihar Veterinary Association and others (2008) 11 SCC 60 it was observed :- 13. If the courts start disturbing the recommendations of the pay scale in a particular class of service then it is likely to have cascading effect on all related services which may result into multifarious litigation. The Fitment Committee has undertaken the exercise and recommended the wholesale revision of the pay scale in the State of Bihar and if one class of service is to be picked up and granted higher pay scale as is available in the Central Government then the whole balance will be disturbed and other services are likely to be affected and it will result in complex situation in the State and may lead to ruination of the finances of the State. ….. In Hukumchand Gupta v. ICAR (2012) 12 SCC 666it was stated :- 20. … Prescription of pay scales on particular posts is a very complex exercise. It requires assessment of the nature and quality of the duties performed and the responsibilities shouldered by the incumbents on different posts. Even though, the two posts may be referred to by the same name, it would not lead to the necessary inference that the posts are identical in every manner. These are matters to be assessed by expert bodies like the employer or the Pay Commission. … … 16. It may be stated here that the 6 th Central Pay Commission comprising of experts in the field had recommended certain pay-scales for various posts. The Official Committee which comprised of Principal Secretary to the State of Tamil Nadu, Home Department, as Chairperson with (i) Principal Secretary, Finance Department; (ii) Principal Secretary, Personnel and Administrative Reforms Department; and (iii)Principal Secretary, School Education Department as Members, had examined the matter and made certain recommendations which were accepted by the Government by GO No.234 dated 01.06.2009. The One Man Commission appointed to consider the anomalies, however, recommended something which was far in excess of what was accepted by GO No.234 dated 01.06.2009 which in turn was in tune with the recommendations of the 6 th Central Pay Commission. It is true that the Government had accepted the recommendations of the One Man Commission but if further anomalies were found which called for action on part of the Government, any exercise to reconsider the matter by the State Government could not be faulted nor could the constitution of the PGRC be said to be invalid or illegal. 17. Further, if there was any infirmity in the exercise of power by the PGRC in not granting adequate notice and hearing to the concerned, such infirmity could certainly be sorted out. That is exactly what the Division Bench undertook while passing the directions quoted hereinabove. We, therefore, see no error in the approach of and the directions issued by the Division Bench of the High Court.
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13. The Tabulated Chart which is part of GO No.242 indicates very clearly that the Assistant Engineers who were in the pre-revised pay scale of Rs.6500-11100 (column No.3), by virtue of acceptance of the recommendations made by the 6 th Central Pay Commission were kept in the pay scale of Rs.9300-34800 with grade pay of Rs.4700/- (column No.4) as a result of GO No.234 dated 01.06.2009, while the next promotional level i.e. of the Assistant Executive Engineers was kept at Rs.15600-39100 with grade pay of Rs.5400/-. The recommendations of the One Man Commission resulted in upward revision to the extent of Rs.15600-39100 with grade pay of Rs.5400/- (column No.5) for the Assistanct Engineers. The recommendations of the PGRC resulted in refixation for Assistant Engineers in the scale of Rs.9300-34800 withmarginal increase of grade pay to Rs.5100/- (column No.7) as against what was available pursuant to GO No.234 dated 01.06.200914. The recommendations of the PGRC dealt with the effects of the acceptance of the recommendations by the One Man Commission. Para 3 of the recommendations quoted hereinabove shows that certain aspects of the matter were found to be anomalous. The submissions advanced by the learned Advocate General also show how the difference between the Assistant Engineers and the post immediately lower than that was getting widened, while at the same time, the post of Assistant Engineer and the next level of promotion i.e. the post of Assistant Executive Engineer were brought almost at the same level. These anomalies found by the State Government, had to be addressed. If the State Government, therefore, constituted the PGRC, such decision by itself cannot be found to be illegal or invalid16. It may be stated here that the 6 th Central Pay Commission comprising of experts in the field had recommended certain pay-scales for various posts. The Official Committee which comprised of Principal Secretary to the State of Tamil Nadu, Home Department, as Chairperson with (i) Principal Secretary, Finance Department; (ii) Principal Secretary, Personnel and Administrative Reforms Department; and (iii)Principal Secretary, School Education Department as Members, had examined the matter and made certain recommendations which were accepted by the Government by GO No.234 dated 01.06.2009. The One Man Commission appointed to consider the anomalies, however, recommended something which was far in excess of what was accepted by GO No.234 dated 01.06.2009 which in turn was in tune with the recommendations of the 6 th Central Pay Commission. It is true that the Government had accepted the recommendations of the One Man Commission but if further anomalies were found which called for action on part of the Government, any exercise to reconsider the matter by the State Government could not be faulted nor could the constitution of the PGRC be said to be invalid or illegal17. Further, if there was any infirmity in the exercise of power by the PGRC in not granting adequate notice and hearing to the concerned, such infirmity could certainly be sorted out. That is exactly what the Division Bench undertook while passing the directions quoted hereinabove. We, therefore, see no error in the approach of and the directions issued by the Division Bench of the High Court.
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KAMALA Vs. M.R.MOHAN KUMAR | Council laid down the general proposition that where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage. 13. In Mohabbat Ali Khan v. Mohd. Ibrahim Khan AIR 1929 PC 135 the Privy Council has laid down that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years. 14. In Gokal Chand v. Parvin Kumari AIR 1952 SC 231 , this Court held that continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them. 15. Further, in Badri Prasad v. Director of Consolidation (1978) 3 SCC 527 , the Supreme Court held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. 16. Again, in Tulsa v. Durghatiya (2008) 4 SCC 520 , this Court held that where the partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock.? This Court in Chanmuniya case further held as under:- ?24. Thus, in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution, which the provision of maintenance in Section 125 is meant to prevent.? [underlining added] 17. Chanmuniya case referred to divergence of judicial opinion on the interpretation of the word ?wife? in Section 125 Cr.P.C. In paras (28) and (29) of Chanmuniya case, this Court referred to other judgments which struck a difficult note as under:- "28. However, striking a different note, in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav (1988) 1 SCC 530 , a two-Judge Bench of this Court held that an attempt to exclude altogether personal law of the parties in proceedings under Section 125 is improper (see para 6). The learned Judges also held (paras 4 and 8) that the expression ?wife? in Section 125 of the Code should be interpreted to mean only a legally wedded wife. 29. Again, in a subsequent decision of this Court in Savitaben Somabhai Bhatiya v. State of Gujarat (2005) 3 SCC 636 , this Court held that however desirable it may be to take note of plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of ?wife?. The Bench held that this inadequacy in law can be amended only by the legislature. While coming to the aforesaid finding, the learned Judges relied on the decision in Yamunabai case (1988) 1 SCC 530. ? 18. After referring to the divergence of judicial opinion on the interpretation of the word ?wife? in Section 125 Cr.P.C., speaking for the Bench A.K. Ganguly J. held that the Bench is inclined to take a broad view of the definition of ?wife?, having regard to the social object of Section 125 Cr.P.C. 19. In Chanmuniya case, this Court formulated three questions and referred the matter to the larger Bench. However, after discussing various provisions of the Criminal Procedure Code, this Court held that a broad and extensive interpretation should be given to the term ?wife? under Section 125 Cr.P.C. and held as under:- "42. We are of the opinion that a broad and expansive interpretation should be given to the term ?wife? to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for maintenance under Section 125 CrPC, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125. We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual.? 20. On the basis of the evidence of appellant No.1 (PW-1), birth certificates of appellant Nos.2 and 3 (Exts. P7-P8 dated 25.05.2001 and 06.08.2003), other documentary evidence, oral evidence of PW-2 who was co-worker of appellant No.1 and PW-3-landlord, the family court held that appellant No.1 and the respondent were living together as husband and wife and there is sufficient proof of marriage. The family court rightly drew the presumption of valid marriage between appellant No.1 and the respondent and that they are legally married couple for claiming maintenance by the wife under Section 125 Cr.P.C. which is summary in nature. The evidence of PW-1 coupled with the birth certificates of appellants No.2 and 3 and other evidences clearly establish the factum of marriage. 21. Based upon oral and documentary evidence, when the family court held that there was a valid marriage, the High Court being the revisional court has no power reassessing the evidence and substitute its views on findings of fact. The High Court did not keep in view that in the proceedings under Section 125 Cr.P.C., strict proof of marriage is not necessary. The findings recorded by the family court as to the existence of a valid marriage ought not to have been interfered with by the High Court. | 1[ds]14. Based on the evidence ofand the number of documents in particular, the birth certificates of the childrenand the photos (Exts.P1 to P3), the family court rightly held that appellant No.1 has proved valid marriage between her and the respondent. From the evidence of3, it is established that appellant No.1 and the respondent were cohabitated as husband and wife and that the people around them treated them as husband and wife and the family court rightly held that appellant No.1 being a wife and appellants No.2 and 3 being their children are entitled to claim maintenance under Section 125 Cr.P.C.It is fairly well settled that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a number of years.In Chanmuniya case, this Court formulated three questions and referred the matter to the larger Bench. However, after discussing various provisions of the Criminal Procedure Code, this Court held that a broad and extensive interpretation should be given to the term ?wife? under Section 125 Cr.P.C. and held as under:42. We are of the opinion that a broad and expansive interpretation should be given to the term ?wife? to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for maintenance under Section 125 CrPC, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125. We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual.?On the basis of the evidence of appellant No.1birth certificates of appellant Nos.2 and 3 (Exts.dated 25.05.2001 and 06.08.2003), other documentary evidence, oral evidence ofker of appellant No.1 andthe family court held that appellant No.1 and the respondent were living together as husband and wife and there is sufficient proof of marriage. The family court rightly drew the presumption of valid marriage between appellant No.1 and the respondent and that they are legally married couple for claiming maintenance by the wife under Section 125 Cr.P.C. which is summary in nature. The evidence ofcoupled with the birth certificates of appellants No.2 and 3 and other evidences clearly establish the factum of marriage.Based upon oral and documentary evidence, when the family court held that there was a valid marriage, the High Court being the revisional court has no power reassessing the evidence and substitute its views on findings of fact. The High Court did not keep in view that in the proceedings under Section 125 Cr.P.C., strict proof of marriage is not necessary. The findings recorded by the family court as to the existence of a valid marriage ought not to have been interfered with by the High Court. | 1 | 3,313 | 524 | ### Instruction:
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Council laid down the general proposition that where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary is clearly proved, that they were living together in consequence of a valid marriage, and not in a state of concubinage. 13. In Mohabbat Ali Khan v. Mohd. Ibrahim Khan AIR 1929 PC 135 the Privy Council has laid down that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years. 14. In Gokal Chand v. Parvin Kumari AIR 1952 SC 231 , this Court held that continuous cohabitation of man and woman as husband and wife may raise the presumption of marriage, but the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them. 15. Further, in Badri Prasad v. Director of Consolidation (1978) 3 SCC 527 , the Supreme Court held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. 16. Again, in Tulsa v. Durghatiya (2008) 4 SCC 520 , this Court held that where the partners lived together for a long spell as husband and wife, a presumption would arise in favour of a valid wedlock.? This Court in Chanmuniya case further held as under:- ?24. Thus, in those cases where a man, who lived with a woman for a long time and even though they may not have undergone legal necessities of a valid marriage, should be made liable to pay the woman maintenance if he deserts her. The man should not be allowed to benefit from the legal loopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations. Any other interpretation would lead the woman to vagrancy and destitution, which the provision of maintenance in Section 125 is meant to prevent.? [underlining added] 17. Chanmuniya case referred to divergence of judicial opinion on the interpretation of the word ?wife? in Section 125 Cr.P.C. In paras (28) and (29) of Chanmuniya case, this Court referred to other judgments which struck a difficult note as under:- "28. However, striking a different note, in Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav (1988) 1 SCC 530 , a two-Judge Bench of this Court held that an attempt to exclude altogether personal law of the parties in proceedings under Section 125 is improper (see para 6). The learned Judges also held (paras 4 and 8) that the expression ?wife? in Section 125 of the Code should be interpreted to mean only a legally wedded wife. 29. Again, in a subsequent decision of this Court in Savitaben Somabhai Bhatiya v. State of Gujarat (2005) 3 SCC 636 , this Court held that however desirable it may be to take note of plight of an unfortunate woman, who unwittingly enters into wedlock with a married man, there is no scope to include a woman not lawfully married within the expression of ?wife?. The Bench held that this inadequacy in law can be amended only by the legislature. While coming to the aforesaid finding, the learned Judges relied on the decision in Yamunabai case (1988) 1 SCC 530. ? 18. After referring to the divergence of judicial opinion on the interpretation of the word ?wife? in Section 125 Cr.P.C., speaking for the Bench A.K. Ganguly J. held that the Bench is inclined to take a broad view of the definition of ?wife?, having regard to the social object of Section 125 Cr.P.C. 19. In Chanmuniya case, this Court formulated three questions and referred the matter to the larger Bench. However, after discussing various provisions of the Criminal Procedure Code, this Court held that a broad and extensive interpretation should be given to the term ?wife? under Section 125 Cr.P.C. and held as under:- "42. We are of the opinion that a broad and expansive interpretation should be given to the term ?wife? to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for maintenance under Section 125 CrPC, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125. We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual.? 20. On the basis of the evidence of appellant No.1 (PW-1), birth certificates of appellant Nos.2 and 3 (Exts. P7-P8 dated 25.05.2001 and 06.08.2003), other documentary evidence, oral evidence of PW-2 who was co-worker of appellant No.1 and PW-3-landlord, the family court held that appellant No.1 and the respondent were living together as husband and wife and there is sufficient proof of marriage. The family court rightly drew the presumption of valid marriage between appellant No.1 and the respondent and that they are legally married couple for claiming maintenance by the wife under Section 125 Cr.P.C. which is summary in nature. The evidence of PW-1 coupled with the birth certificates of appellants No.2 and 3 and other evidences clearly establish the factum of marriage. 21. Based upon oral and documentary evidence, when the family court held that there was a valid marriage, the High Court being the revisional court has no power reassessing the evidence and substitute its views on findings of fact. The High Court did not keep in view that in the proceedings under Section 125 Cr.P.C., strict proof of marriage is not necessary. The findings recorded by the family court as to the existence of a valid marriage ought not to have been interfered with by the High Court.
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14. Based on the evidence ofand the number of documents in particular, the birth certificates of the childrenand the photos (Exts.P1 to P3), the family court rightly held that appellant No.1 has proved valid marriage between her and the respondent. From the evidence of3, it is established that appellant No.1 and the respondent were cohabitated as husband and wife and that the people around them treated them as husband and wife and the family court rightly held that appellant No.1 being a wife and appellants No.2 and 3 being their children are entitled to claim maintenance under Section 125 Cr.P.C.It is fairly well settled that the law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for a number of years.In Chanmuniya case, this Court formulated three questions and referred the matter to the larger Bench. However, after discussing various provisions of the Criminal Procedure Code, this Court held that a broad and extensive interpretation should be given to the term ?wife? under Section 125 Cr.P.C. and held as under:42. We are of the opinion that a broad and expansive interpretation should be given to the term ?wife? to include even those cases where a man and woman have been living together as husband and wife for a reasonably long period of time, and strict proof of marriage should not be a precondition for maintenance under Section 125 CrPC, so as to fulfil the true spirit and essence of the beneficial provision of maintenance under Section 125. We also believe that such an interpretation would be a just application of the principles enshrined in the Preamble to our Constitution, namely, social justice and upholding the dignity of the individual.?On the basis of the evidence of appellant No.1birth certificates of appellant Nos.2 and 3 (Exts.dated 25.05.2001 and 06.08.2003), other documentary evidence, oral evidence ofker of appellant No.1 andthe family court held that appellant No.1 and the respondent were living together as husband and wife and there is sufficient proof of marriage. The family court rightly drew the presumption of valid marriage between appellant No.1 and the respondent and that they are legally married couple for claiming maintenance by the wife under Section 125 Cr.P.C. which is summary in nature. The evidence ofcoupled with the birth certificates of appellants No.2 and 3 and other evidences clearly establish the factum of marriage.Based upon oral and documentary evidence, when the family court held that there was a valid marriage, the High Court being the revisional court has no power reassessing the evidence and substitute its views on findings of fact. The High Court did not keep in view that in the proceedings under Section 125 Cr.P.C., strict proof of marriage is not necessary. The findings recorded by the family court as to the existence of a valid marriage ought not to have been interfered with by the High Court.
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P.D. Agrawal Vs. State Bank Of India | are almost identical. Primarily, charges of similar nature in respect of commission of misconduct on nine different occasions were the subject matter of the disciplinary proceeding. The charge No.2 constituted an independent charge, as commission of one misconduct had nothing to do with the commission of similar nature of misconduct on all other occasions. The said charge was, therefore, severable. 48. A Constitution Bench of this Court in State of Orissa & Ors. vs. Bidyabhushan Mohapatra [(1963) Supp.1 SCR 648 : AIR 1963 SC 779 ] opined: "The High Court has held that there was evidence to support the findings on heads (c) & (d) of Charge (1) and on Charge (2). In respect of charge 1(b) the respondent was acquitted by the Tribunal and it did not fall to be considered by the Governor. In respect of charges 1(a) and 1(e) in the view of the High Court "the rules of natural justice had not been observed". It is not necessary for us to consider whether the High Court was right in holding that the findings of the Tribunal on charges 1(a) and 1(e) were vitiated for reasons set out by it, because in our judgment the order of the High Court directing the Government to reconsider the question of punishment cannot, for reasons we will presently set out, be sustained. If the order of dismissal was based on the findings on charges 1(a) and 1(e) alone the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal." 49. The Constitution Bench therein has clearly laid down that even if the charges which have been proved, justify imposition of punishment of dismissal from service, this Court may not exercise its power of judicial review. 50. The said decision was noticed by this Court in Binny Ltd. Vs. Workmen [AIR 1972 SC 1975 : (1972) 3 SCC 806 ], in the following terms: ".It was urged that the Court should not have assumed that the General Manager would have inflicted the punishment of dismissal solely on the basis of the second charge and consequently the punishment should not be sustained if it was held that one of the two charges on the basis of which it was imposed was unsustainable. This was rejected following the decision in State of Orissa v. Bidyabhan Mohapatra, where it was said that if an order in an enquiry under Article 311 can be supported on any finding as substantial misdemeanour for which punishment imposed can lawfully be given, it is not for the Court to consider whether that ground alone would have weighed with the authority in imposing the punishment in question. In our view that principle can have no application to the facts of this case. Although the enquiry officer found in fact that the respondent had behaved insolently towards the Warehouse Master, he did not come to the conclusion that this act of indiscipline on a solitary occasion was sufficient to warrant an order of dismissal." 51. Yet again, in Sawarn Singh & Anr. vs. State of Punjab & Ors. [(1976) 2 SCC 868] , this Court held: "19. In view of this, the deficiency or reference to some irrelevant matters in the order of the Commissioner, had not prejudiced the decision of the case on merits either at the appellate or revisional stage. There is authority for the proposition that where the order of a domestic tribunal makes reference to several grounds, some relevant and existent, and others irrelevant and non- existent, the order will be sustained if the Court is satisfied that the authority would have passed the order on the basis of the relevant and existing grounds, and the exclusion of irrelevant or non-existing grounds could not have affected the ultimate decision." 52. We are, therefore, of the opinion that charge No.2 being severable, this Court can proceed on the basis that the charges against the Appellant in respect of charge No.2 was not proved.53. In Orissa Cement Limited vs. Adikanda Sahu reported 1960 (1) LLJ SC 518 that a verbal abuse may entail imposition of punishment of dismissal from service. 54. The said decision has been followed in Mahindra and Mahendra Ltd. vs. N.N. Narawade etc. reported in JT 2005 (2) SC 583 . 55. The question as regard the jurisdiction of this Court to interfere with the quantum of punishment, it is well known, is limited. While exercising the said jurisdiction, the Court, only in very exceptional case, interferes therewith. 56. In Chairman & M.D., Bharat Pet. Corpn. Ltd. & Ors. vs. T.K. Raju JT 2006 (2) SC 624 , this Court opined: "15. We also do not agree with the submission of Mr. Krishnamani that two of the eight charges have not been found to be proved. The charges levelled against the respondent must be considered on a holistic basis. By reason of such an action, the respondent had put the company in embarrassment. It might have lost its image. It received complaints from the Federation. There was reason for the appellant to believe that by such an action on the part of the respondent the appellants image has been tarnished. In any event, neither the learned Single Judge nor the Division Bench came to any finding that none of the charges had been proved.16. The power of judicial review in such mattes is limited. This Court times without number had laid down that interference with the quantum of punishment should not be one in a routine manner." [See also A. Sudhakar vs. Post Master General, Hyderabad & Anr. (JT 2006 (4) SC 68 )] | 0[ds]15.The pattern of charges against the Appellant, categorically point out to the fact that the Appellant had been misbehaving with the Regional Managers and other officers, as well as the customers not only while he was posted in different branches.Charge No.2 refers to an incident, which took place on 26.9.1986. The said charge, admittedly, was not proved. However, it is not disputed that in respect of charge No.1 witnesses were examined on behalf of the 1st Respondent. They were thoroughly cross-examined by the Appellant. Documentary evidences were also adduced by the parties. So far charge No.3 is concerned, only one witness was examined on behalf of the 1st Respondent. The Appellant therein exhibited four documents in support of his case. The 1st Respondent also exhibited some documents. Similarly, in relation to each other charge witnesses were examined on behalf of the 1st Respondent; they were cross-examined and documents were exhibited.17. The validity of the disciplinary proceeding and/or justifiability thereof on the ground of delay or otherwise had never been raised by the Appellant before any forum. It was not his case either before the Appellate Authority or before the High Court that by reason of any delay in initiating the disciplinary proceeding he had been prejudiced in any manner whatsoever. It may be true that delay itself may be a ground for arriving at a finding that enquiry proceeding was vitiated in the event it is shown that by reason thereof the delinquent officer has been prejudiced, but no such case was made out.The terms and conditions of the employees of the Respondent-Bank are governed by a statute. The Disciplinary Authority, by reason of the Rules framed, was delegated with the power of the Bank to initiate departmental proceeding against the delinquent officer and impose suitable punishment upon him, if the misconduct is proved. In this case concept of contract of personal service as is understood in common parlance is not applicable. The doctrine of condonation of misconduct so evolved by ordinary law of `master and servant is thus, not attracted in this case. Under the common law, as also the provisions contained in Section 14(1)(b) of the Specific Relief Act, a master was entitled to terminate the services of an erring employee at his sweet will. The dismissed employee could have sued his master only for damages and not for his reinstatement in service. It is only for the purpose of grant of damages, a declaration was required to be made that the termination of the service was illegal. Having regard to the said legal position, the doctrine of condonation of misconduct evolved, in terms whereof, it was impermissible for the master to allow an employee to continue in service for a long time despite his knowledge that he had committed a misconduct and then to turn round and contend that his services should have been terminated on the ground that he was guilty ofIn this case, as noticed hereinbefore, the Appellant did not raise the question of delay before any forum whatsoever. He did not raise such a question even before the Disciplinary Authority. He not only took part therein without any demur whatsoever, but, as noticed hereinbefore, crossexamined the witnesses and entered into the defence. The Principles of natural justice cannot be put in a straight jacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea change.Contention of Mr. Bobde in this behalf that he was not prejudiced thereby cannot be accepted. There has been a flagrant violation of principles of natural justice in so far as no show cause notice was issued to the Appellant by the Disciplinary Authority while differing with the findings of the Inquiry Officer as regard charge No.2. We would deal with this aspect of the matter a little later.36. However, the contention of Mr. Rao that only because a copy of the enquiry report was not furnished to the Appellant by the Disciplinary Authority, there has been a violation of the mandatory provisions of the regulations, cannot also be accepted for the reasons stated hereinafter.37. The order of punishment of removal against the Appellant was passed against the Appellant on 22nd July, 1990. The decision of this Court in Mohd. Ramzan Khan (supra), as noticed hereinbefore, was decided on 20th November, 1990 wherein the law laid down by this Court, while holding that a delinquent officer cannot be called upon to make a representation on the quantum of punishment without furnishing a copy of the enquiry report, was expressly given a prospective effect. It was, therefore, not at all necessary for the Disciplinary Authority, keeping in view the law as it then stood, to furnish a copy of the enquiry report to the Appellant.38. Decision of this Court in S.L. Kapoor vs. Jagmohan & Ors. [(1980) 4 SCC 379] , whereupon Mr. Rao placed strong reliance to contend that nonobservance of principle of natural justice itself causes prejudice or the same should not be read "as it causes difficulty of prejudice", cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, has undergone a sea change. In view of the decision of this Court in State Bank of Patiala & Ors. vs. S.K. Sharma [(1996) 3 SCC 364] and Rajendra Singh vs. State of M.P. [(1996) 5 SCC 460] , the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principal doctrine of audi alterem partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principal. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straightjacket formula. [See Viveka Nand Sethi vs. Chairman, J. & K. Bank Ltd. & Ots. (2005) 5 SCC 337 and State of U.P. vs. Neeraj Awasthi & Ors. JT 2006 (1) SC 19 . See also Mohd. Sartaj vs. State of U.P. (2006) 1 SCALE 265.] 39. In Union of India & Anr. vs. Tulsi Ram Patel [(1985) Supp.2 SCR 131 : (1985) 3 SCC 398 ], whereupon again Mr. Rao placed strong reliance, this Court did not lay down a law in absolute terms that violation of principle of natural justice would be read into the equality clause contained in Article 14 of the Constitution of India. The said decision was rendered having regard to the fact that by taking recourse to the second proviso appended to Article 311 of Constitution of India, no disciplinary proceeding was to be initiated at all and an order of dismissal could be passed only on the basis of subjective satisfaction of the authority empowered to dismiss or remove a person or to reduce him in rank wherefor reason was to be recorded by it in writing that it was not reasonably practicable to hold a disciplinary proceeding.Yet again, in Sawarn Singh & Anr. vs. State of Punjab & Ors. [(1976) 2 SCC 868] , this CourtIn view of this, the deficiency or reference to some irrelevant matters in the order of the Commissioner, had not prejudiced the decision of the case on merits either at the appellate or revisional stage. There is authority for the proposition that where the order of a domestic tribunal makes reference to several grounds, some relevant and existent, and others irrelevant and non- existent, the order will be sustained if the Court is satisfied that the authority would have passed the order on the basis of the relevant and existing grounds, and the exclusion of irrelevant or non-existing grounds could not have affected the ultimate decision.We are, therefore, of the opinion that charge No.2 being severable, this Court can proceed on the basis that the charges against the Appellant in respect of charge No.2 was not proved. | 0 | 8,926 | 1,537 | ### Instruction:
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are almost identical. Primarily, charges of similar nature in respect of commission of misconduct on nine different occasions were the subject matter of the disciplinary proceeding. The charge No.2 constituted an independent charge, as commission of one misconduct had nothing to do with the commission of similar nature of misconduct on all other occasions. The said charge was, therefore, severable. 48. A Constitution Bench of this Court in State of Orissa & Ors. vs. Bidyabhushan Mohapatra [(1963) Supp.1 SCR 648 : AIR 1963 SC 779 ] opined: "The High Court has held that there was evidence to support the findings on heads (c) & (d) of Charge (1) and on Charge (2). In respect of charge 1(b) the respondent was acquitted by the Tribunal and it did not fall to be considered by the Governor. In respect of charges 1(a) and 1(e) in the view of the High Court "the rules of natural justice had not been observed". It is not necessary for us to consider whether the High Court was right in holding that the findings of the Tribunal on charges 1(a) and 1(e) were vitiated for reasons set out by it, because in our judgment the order of the High Court directing the Government to reconsider the question of punishment cannot, for reasons we will presently set out, be sustained. If the order of dismissal was based on the findings on charges 1(a) and 1(e) alone the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal." 49. The Constitution Bench therein has clearly laid down that even if the charges which have been proved, justify imposition of punishment of dismissal from service, this Court may not exercise its power of judicial review. 50. The said decision was noticed by this Court in Binny Ltd. Vs. Workmen [AIR 1972 SC 1975 : (1972) 3 SCC 806 ], in the following terms: ".It was urged that the Court should not have assumed that the General Manager would have inflicted the punishment of dismissal solely on the basis of the second charge and consequently the punishment should not be sustained if it was held that one of the two charges on the basis of which it was imposed was unsustainable. This was rejected following the decision in State of Orissa v. Bidyabhan Mohapatra, where it was said that if an order in an enquiry under Article 311 can be supported on any finding as substantial misdemeanour for which punishment imposed can lawfully be given, it is not for the Court to consider whether that ground alone would have weighed with the authority in imposing the punishment in question. In our view that principle can have no application to the facts of this case. Although the enquiry officer found in fact that the respondent had behaved insolently towards the Warehouse Master, he did not come to the conclusion that this act of indiscipline on a solitary occasion was sufficient to warrant an order of dismissal." 51. Yet again, in Sawarn Singh & Anr. vs. State of Punjab & Ors. [(1976) 2 SCC 868] , this Court held: "19. In view of this, the deficiency or reference to some irrelevant matters in the order of the Commissioner, had not prejudiced the decision of the case on merits either at the appellate or revisional stage. There is authority for the proposition that where the order of a domestic tribunal makes reference to several grounds, some relevant and existent, and others irrelevant and non- existent, the order will be sustained if the Court is satisfied that the authority would have passed the order on the basis of the relevant and existing grounds, and the exclusion of irrelevant or non-existing grounds could not have affected the ultimate decision." 52. We are, therefore, of the opinion that charge No.2 being severable, this Court can proceed on the basis that the charges against the Appellant in respect of charge No.2 was not proved.53. In Orissa Cement Limited vs. Adikanda Sahu reported 1960 (1) LLJ SC 518 that a verbal abuse may entail imposition of punishment of dismissal from service. 54. The said decision has been followed in Mahindra and Mahendra Ltd. vs. N.N. Narawade etc. reported in JT 2005 (2) SC 583 . 55. The question as regard the jurisdiction of this Court to interfere with the quantum of punishment, it is well known, is limited. While exercising the said jurisdiction, the Court, only in very exceptional case, interferes therewith. 56. In Chairman & M.D., Bharat Pet. Corpn. Ltd. & Ors. vs. T.K. Raju JT 2006 (2) SC 624 , this Court opined: "15. We also do not agree with the submission of Mr. Krishnamani that two of the eight charges have not been found to be proved. The charges levelled against the respondent must be considered on a holistic basis. By reason of such an action, the respondent had put the company in embarrassment. It might have lost its image. It received complaints from the Federation. There was reason for the appellant to believe that by such an action on the part of the respondent the appellants image has been tarnished. In any event, neither the learned Single Judge nor the Division Bench came to any finding that none of the charges had been proved.16. The power of judicial review in such mattes is limited. This Court times without number had laid down that interference with the quantum of punishment should not be one in a routine manner." [See also A. Sudhakar vs. Post Master General, Hyderabad & Anr. (JT 2006 (4) SC 68 )]
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employee at his sweet will. The dismissed employee could have sued his master only for damages and not for his reinstatement in service. It is only for the purpose of grant of damages, a declaration was required to be made that the termination of the service was illegal. Having regard to the said legal position, the doctrine of condonation of misconduct evolved, in terms whereof, it was impermissible for the master to allow an employee to continue in service for a long time despite his knowledge that he had committed a misconduct and then to turn round and contend that his services should have been terminated on the ground that he was guilty ofIn this case, as noticed hereinbefore, the Appellant did not raise the question of delay before any forum whatsoever. He did not raise such a question even before the Disciplinary Authority. He not only took part therein without any demur whatsoever, but, as noticed hereinbefore, crossexamined the witnesses and entered into the defence. The Principles of natural justice cannot be put in a straight jacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea change.Contention of Mr. Bobde in this behalf that he was not prejudiced thereby cannot be accepted. There has been a flagrant violation of principles of natural justice in so far as no show cause notice was issued to the Appellant by the Disciplinary Authority while differing with the findings of the Inquiry Officer as regard charge No.2. We would deal with this aspect of the matter a little later.36. However, the contention of Mr. Rao that only because a copy of the enquiry report was not furnished to the Appellant by the Disciplinary Authority, there has been a violation of the mandatory provisions of the regulations, cannot also be accepted for the reasons stated hereinafter.37. The order of punishment of removal against the Appellant was passed against the Appellant on 22nd July, 1990. The decision of this Court in Mohd. Ramzan Khan (supra), as noticed hereinbefore, was decided on 20th November, 1990 wherein the law laid down by this Court, while holding that a delinquent officer cannot be called upon to make a representation on the quantum of punishment without furnishing a copy of the enquiry report, was expressly given a prospective effect. It was, therefore, not at all necessary for the Disciplinary Authority, keeping in view the law as it then stood, to furnish a copy of the enquiry report to the Appellant.38. Decision of this Court in S.L. Kapoor vs. Jagmohan & Ors. [(1980) 4 SCC 379] , whereupon Mr. Rao placed strong reliance to contend that nonobservance of principle of natural justice itself causes prejudice or the same should not be read "as it causes difficulty of prejudice", cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, has undergone a sea change. In view of the decision of this Court in State Bank of Patiala & Ors. vs. S.K. Sharma [(1996) 3 SCC 364] and Rajendra Singh vs. State of M.P. [(1996) 5 SCC 460] , the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principal doctrine of audi alterem partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principal. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straightjacket formula. [See Viveka Nand Sethi vs. Chairman, J. & K. Bank Ltd. & Ots. (2005) 5 SCC 337 and State of U.P. vs. Neeraj Awasthi & Ors. JT 2006 (1) SC 19 . See also Mohd. Sartaj vs. State of U.P. (2006) 1 SCALE 265.] 39. In Union of India & Anr. vs. Tulsi Ram Patel [(1985) Supp.2 SCR 131 : (1985) 3 SCC 398 ], whereupon again Mr. Rao placed strong reliance, this Court did not lay down a law in absolute terms that violation of principle of natural justice would be read into the equality clause contained in Article 14 of the Constitution of India. The said decision was rendered having regard to the fact that by taking recourse to the second proviso appended to Article 311 of Constitution of India, no disciplinary proceeding was to be initiated at all and an order of dismissal could be passed only on the basis of subjective satisfaction of the authority empowered to dismiss or remove a person or to reduce him in rank wherefor reason was to be recorded by it in writing that it was not reasonably practicable to hold a disciplinary proceeding.Yet again, in Sawarn Singh & Anr. vs. State of Punjab & Ors. [(1976) 2 SCC 868] , this CourtIn view of this, the deficiency or reference to some irrelevant matters in the order of the Commissioner, had not prejudiced the decision of the case on merits either at the appellate or revisional stage. There is authority for the proposition that where the order of a domestic tribunal makes reference to several grounds, some relevant and existent, and others irrelevant and non- existent, the order will be sustained if the Court is satisfied that the authority would have passed the order on the basis of the relevant and existing grounds, and the exclusion of irrelevant or non-existing grounds could not have affected the ultimate decision.We are, therefore, of the opinion that charge No.2 being severable, this Court can proceed on the basis that the charges against the Appellant in respect of charge No.2 was not proved.
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Thungabhadra Industries Ltd Vs. The Government Of Andhra Pradesh | that a certificate had been granted on a previous occasion. We have extracted the text of this order of January 1961 in which this argument is noticed and it is stated that it was the only point urged before the Court. The question then arises as to what is meant by "in similar circumstances in regard to a previous year". Learned Counsel for the respondent submits that we should understand these words to mean that the appellant relied on the order dated February 21, 1956 granting the certificate of fitness in regard to the decision of the High Court in T. R. C. 120 of 1953 solely as some sort of precedent and no more. On that basis learned Counsel strenuously contended that the mere fact that in regard to an earlier year a certificate was granted would not by itself render an order refusing a certificate in a later year erroneous on the ground of patent error. We have already dealt with this aspect of the matter. We do not, however, agree that this is the proper construction of the argument that they rejected. The order dated February 21, 1956 in relation to the previous year was placed before the court and was relied on not as a binding precedent to be followed but as setting out the particular substantial questions of law that arose for decision in the appeals, and the attention of the court was drawn to the terms of the previous order with a view to point out the failure to appreciate the existence of these questions and to make out that the statement in the order of September 1959 that no substantial question of law was involved in the appeals was erroneous on the face of it. This is made perfectly clear by the contents of the petition for review where the aspect we have just now set out is enunciated. The earlier order being of the same Court and of a Bench composed in part of the same Judges the earlier order was referred to as a convenient summary of the various points of law that arose for the purpose of bringing to the notice of the Court the error which it committed in stating that no substantial question of law arose in the appeals. If by the first sentence the learned Judges meant that the contention which they were called upon to consider was directed to claim the previous order of 1956 as a binding precedent, they failed to appreciate the substance of the appellants argument. If, however, they meant that the matters set out by them in their order granting a certificate in relation to their decision in T. R. C. 120 of 1953 were not also involved in their judgment in T. R. Cs. 75 to 77 they were in error, for it is the case of no one that the questions of law involved were not identical. If, besides they meant to say that these were not substantial questions of law within Art. 133(1), they were again guilty of error. The reasoning, therefore, of the learned Judges in the order now under appeal, is no ground for rejecting the applications to review their orders of September 1959. We therefore consider that the learned Judges were in error in rejecting the application for review and we hold that the petitions for review should have been allowed. We only desire to add that in so holding we have not in any manner taken into account or been influenced by the view expressed by this Court in (1961) 2 SCR 14 : (AIR 1961 SC 412 ) regarding the construction of Rule 18(2) of the Turnover and Assessment Rules, since that decision is wholly irrelevant for considering the correctness of the order rejecting the applications for review which is the only question for decision in these appeals.13. Before concluding we desire to make an observation arising out of an appeal made to us by learned Counsel for the respondent that even if the appeals were allowed we should make no direction as regards costs against his client. The right of the appellant to the benefit of the exemption which he claimed and which was disallowed to him by the judgment of the High Court in T. R. Cs. 75, 76 and 77 really depended on the correct construction of R. 18(2) of the Turnover and Assessment Rules and in particular on the meaning of the expression "groundnut oil" occurring there - whether it included "hydrogenated oil". This Court in its judgment in (1961) 2 SCR 14 : (AIR 1961 SC 412 ) pronounced on the proper construction of the word "groundnut oil" occurring in R. 18 of the Turnover and Assessment Rules as they then stood. The assessment proceeding for 1950-51, 1951-52 and 1952-53 had not attained finality against the assessee by the termination of all proceedings, because there were still applications for review pending before the High Court. In the circumstances, it would have been reasonable to expect that the Sales Tax authorities should have afforded the appellant the benefit of the decision of this court in regard to these later years also unless there was some insuperable difficulty or other circumstance in the way of their doing so, and learned Counsel for the respondent has brought none to our notice. That is so far as regards the merits of the controversy in the tax revision cases in which certificates were sought. Of course if on any technical or similar points the State is entitled to succeed indisputably they would not be prevented from doing so and they would be entitled to collect the tax as assessed and as decided in its favour by the High Court. But when the respondent fails in the objections raised to prevent the matter coming to this Court, we do not see any justification for the plea that costs should not follow the event but that the appellant should be deprived of its right to costs. | 1[ds]8. Order XLVII R. 1(1) of the Civil Procedure Code permits an application for review being filed "from a decree or order from which an appeal is allowed but from which no appeal has been preferred." In the present case, it would be seen, on the date when the application for review was filed the appellant had not filed an appeal to this Court and therefore the terms of O. XLVII R. 1(1) did not stand in the way of the petition for review being entertained. Learned Counsel for the respondent did not contest this position. Nor could we read the judgment of the High Court as rejecting the petition for review on that ground. The crucial date for determining whether or not the terms of O. XLVII R. 1(1) are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the Court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the court hearing the review petition would come to an end.Before concluding we desire to make an observation arising out of an appeal made to us by learned Counsel for the respondent that even if the appeals were allowed we should make no direction as regards costs against his client. The right of the appellant to the benefit of the exemption which he claimed and which was disallowed to him by the judgment of the High Court in T. R. Cs. 75, 76 and 77 really depended on the correct construction of R. 18(2) of the Turnover and Assessment Rules and in particular on the meaning of the expression "groundnut oil" occurring there - whether it included "hydrogenated oil". This Court in its judgment in (1961) 2 SCR 14 : (AIR 1961 SC 412 ) pronounced on the proper construction of the word "groundnut oil" occurring in R. 18 of the Turnover and Assessment Rules as they then stood. The assessment proceeding for 1950-51, 1951-52 and 1952-53 had not attained finality against the assessee by the termination of all proceedings, because there were still applications for review pending before the High Court. In the circumstances, it would have been reasonable to expect that the Sales Tax authorities should have afforded the appellant the benefit of the decision of this court in regard to these later years also unless there was some insuperable difficulty or other circumstance in the way of their doing so, and learned Counsel for the respondent has brought none to our notice. That is so far as regards the merits of the controversy in the tax revision cases in which certificates were sought. Of course if on any technical or similar points the State is entitled to succeed indisputably they would not be prevented from doing so and they would be entitled to collect the tax as assessed and as decided in its favour by the High Court. But when the respondent fails in the objections raised to prevent the matter coming to this Court, we do not see any justification for the plea that costs should not follow the event but that the appellant should be deprived of its right to costs. | 1 | 5,542 | 619 | ### Instruction:
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that a certificate had been granted on a previous occasion. We have extracted the text of this order of January 1961 in which this argument is noticed and it is stated that it was the only point urged before the Court. The question then arises as to what is meant by "in similar circumstances in regard to a previous year". Learned Counsel for the respondent submits that we should understand these words to mean that the appellant relied on the order dated February 21, 1956 granting the certificate of fitness in regard to the decision of the High Court in T. R. C. 120 of 1953 solely as some sort of precedent and no more. On that basis learned Counsel strenuously contended that the mere fact that in regard to an earlier year a certificate was granted would not by itself render an order refusing a certificate in a later year erroneous on the ground of patent error. We have already dealt with this aspect of the matter. We do not, however, agree that this is the proper construction of the argument that they rejected. The order dated February 21, 1956 in relation to the previous year was placed before the court and was relied on not as a binding precedent to be followed but as setting out the particular substantial questions of law that arose for decision in the appeals, and the attention of the court was drawn to the terms of the previous order with a view to point out the failure to appreciate the existence of these questions and to make out that the statement in the order of September 1959 that no substantial question of law was involved in the appeals was erroneous on the face of it. This is made perfectly clear by the contents of the petition for review where the aspect we have just now set out is enunciated. The earlier order being of the same Court and of a Bench composed in part of the same Judges the earlier order was referred to as a convenient summary of the various points of law that arose for the purpose of bringing to the notice of the Court the error which it committed in stating that no substantial question of law arose in the appeals. If by the first sentence the learned Judges meant that the contention which they were called upon to consider was directed to claim the previous order of 1956 as a binding precedent, they failed to appreciate the substance of the appellants argument. If, however, they meant that the matters set out by them in their order granting a certificate in relation to their decision in T. R. C. 120 of 1953 were not also involved in their judgment in T. R. Cs. 75 to 77 they were in error, for it is the case of no one that the questions of law involved were not identical. If, besides they meant to say that these were not substantial questions of law within Art. 133(1), they were again guilty of error. The reasoning, therefore, of the learned Judges in the order now under appeal, is no ground for rejecting the applications to review their orders of September 1959. We therefore consider that the learned Judges were in error in rejecting the application for review and we hold that the petitions for review should have been allowed. We only desire to add that in so holding we have not in any manner taken into account or been influenced by the view expressed by this Court in (1961) 2 SCR 14 : (AIR 1961 SC 412 ) regarding the construction of Rule 18(2) of the Turnover and Assessment Rules, since that decision is wholly irrelevant for considering the correctness of the order rejecting the applications for review which is the only question for decision in these appeals.13. Before concluding we desire to make an observation arising out of an appeal made to us by learned Counsel for the respondent that even if the appeals were allowed we should make no direction as regards costs against his client. The right of the appellant to the benefit of the exemption which he claimed and which was disallowed to him by the judgment of the High Court in T. R. Cs. 75, 76 and 77 really depended on the correct construction of R. 18(2) of the Turnover and Assessment Rules and in particular on the meaning of the expression "groundnut oil" occurring there - whether it included "hydrogenated oil". This Court in its judgment in (1961) 2 SCR 14 : (AIR 1961 SC 412 ) pronounced on the proper construction of the word "groundnut oil" occurring in R. 18 of the Turnover and Assessment Rules as they then stood. The assessment proceeding for 1950-51, 1951-52 and 1952-53 had not attained finality against the assessee by the termination of all proceedings, because there were still applications for review pending before the High Court. In the circumstances, it would have been reasonable to expect that the Sales Tax authorities should have afforded the appellant the benefit of the decision of this court in regard to these later years also unless there was some insuperable difficulty or other circumstance in the way of their doing so, and learned Counsel for the respondent has brought none to our notice. That is so far as regards the merits of the controversy in the tax revision cases in which certificates were sought. Of course if on any technical or similar points the State is entitled to succeed indisputably they would not be prevented from doing so and they would be entitled to collect the tax as assessed and as decided in its favour by the High Court. But when the respondent fails in the objections raised to prevent the matter coming to this Court, we do not see any justification for the plea that costs should not follow the event but that the appellant should be deprived of its right to costs.
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8. Order XLVII R. 1(1) of the Civil Procedure Code permits an application for review being filed "from a decree or order from which an appeal is allowed but from which no appeal has been preferred." In the present case, it would be seen, on the date when the application for review was filed the appellant had not filed an appeal to this Court and therefore the terms of O. XLVII R. 1(1) did not stand in the way of the petition for review being entertained. Learned Counsel for the respondent did not contest this position. Nor could we read the judgment of the High Court as rejecting the petition for review on that ground. The crucial date for determining whether or not the terms of O. XLVII R. 1(1) are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the Court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the court hearing the review petition would come to an end.Before concluding we desire to make an observation arising out of an appeal made to us by learned Counsel for the respondent that even if the appeals were allowed we should make no direction as regards costs against his client. The right of the appellant to the benefit of the exemption which he claimed and which was disallowed to him by the judgment of the High Court in T. R. Cs. 75, 76 and 77 really depended on the correct construction of R. 18(2) of the Turnover and Assessment Rules and in particular on the meaning of the expression "groundnut oil" occurring there - whether it included "hydrogenated oil". This Court in its judgment in (1961) 2 SCR 14 : (AIR 1961 SC 412 ) pronounced on the proper construction of the word "groundnut oil" occurring in R. 18 of the Turnover and Assessment Rules as they then stood. The assessment proceeding for 1950-51, 1951-52 and 1952-53 had not attained finality against the assessee by the termination of all proceedings, because there were still applications for review pending before the High Court. In the circumstances, it would have been reasonable to expect that the Sales Tax authorities should have afforded the appellant the benefit of the decision of this court in regard to these later years also unless there was some insuperable difficulty or other circumstance in the way of their doing so, and learned Counsel for the respondent has brought none to our notice. That is so far as regards the merits of the controversy in the tax revision cases in which certificates were sought. Of course if on any technical or similar points the State is entitled to succeed indisputably they would not be prevented from doing so and they would be entitled to collect the tax as assessed and as decided in its favour by the High Court. But when the respondent fails in the objections raised to prevent the matter coming to this Court, we do not see any justification for the plea that costs should not follow the event but that the appellant should be deprived of its right to costs.
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Workmen Thr. Hindustan Lever Mazdoor S Vs. Hindustan Levers Ltd | that, therefore, the appropriate course was to permit the parties to lead evidence and decide the dispute on merits. It was of the view that it was not possible to express any opinion as to whether the dispute survived or not, at that premature stage.5. The respondent challenged the said order dated 8.8.2003 before the Allahabad High Court in C.M.W.P. No.51129 of 2003. The High Court allowed the said writ petition by order dated 28.5.2004. The High Court referred to the fact that the Ghaziabad unit of the respondent was closed in 2000 and all workmen had opted for voluntary retirement under respondents Voluntary Retirement Scheme of 2000 and had been paid all dues. The High Court held that in view of the said Voluntary Retirement Scheme of 2000 opted by all workmen, the matter pending adjudication before the Industrial Tribunal in Adj. Case No.42/1998 had become stale and that in the changed circumstances, it was inexpedient to allow the said proceedings to drag on. The High Court also referred to the fact that the dispute regarding dearness allowance had been pending for thirty years, and the Ghaziabad unit was lying closed for five years and the unit had no workmen in its employment. The High Court held that there was no industrial undertaking nor workmen and, therefore, there was no industrial dispute and the appellant Union had lost its right to represent the workmen of the unit. Consequently, the High Court quashed the order dated 8.8.2003 and directed the Industrial Tribunal to dispose of the application filed by the employer in the light of its observations. In other words, the High Court virtually directed the Industrial Tribunal to close the pending dispute in Adj. Case No.42/1998. The said order is challenged in this appeal by special leave. 6. At the outset, it should be noticed that the mere fact that the unit was closed or that all the workmen had taken voluntary retirement will not put an end to a validly pending industrial dispute in regard to a past grievance unless the employer is able to show that such grievance was also settled. 7. In this case, though all the workmen might have taken voluntary retirement under the scheme introduced in 2000, the settlement entered (in a standard form) between the respondent company and retiring workmen specifically excluded the pending dispute relating to ceiling on dearness allowance from the settlement. The said clause is extracted below. "5. On receipt of the above compensation, the workman will have no other claim whatsoever from the company and the payment shall be considered to be his full and final settlement of all dues. However, this agreement is without prejudice to the claim of the workman for the benefits in the Adj. Case No.42/98 pending before Industrial Tribunal Versus Meerut regarding dearness allowance. The workman will be entitled to receive all benefits, if any as applicable, on the final decision of the case in the appropriate court, i.e. Tribunal, High Court or Supreme Court as the case may be." (emphasis supplied) It is, thus, clear t hat the retirement of the workmen under the Voluntary Retirement Scheme of 7.3.2000 and payment of compensation in full and final settlement thereunder excluded the pending dispute relating to ceiling on D.A. Therefore, the retirement under the Voluntary Retirement Scheme did not result in settlement of the dispute pending in Adj. Case No.42/1998. Unfortunately, the High Court lost sight of the said saving clause in the Voluntary Retirement Scheme in regard to the pending dispute in Adj. Case No.42/1998 and proceeded on the erroneous assumption that all pending claims of the workmen including the subject matter of Adj. Case No.42/1998 were settled on their retirement under the Voluntary Retirement Scheme of 7.3.2000. The order of the High Court cannot, therefore, be sustained.8. The employer submitted that in the context of certain disputes relating to an earlier voluntary separation scheme, the Industrial Tribunal, Kanpur had made final award dated 30.10.1998 (in Case No.38 to 80/2003) wherein the Tribunal had held the settlements dated 31.12.1974 and 5.12.1977 were valid settlements, as they were registered settlements. It is also pointed out that when the said award dated 30.10.1998 was challenged before the High Court in W.P. No. 15533 of 1999, the High Court in its judgment dated 17.4.2000, did not disturb the finding regarding validity of those settlements, even though on merits, it had interfered with the said award of the Tribunal. Learned counsel submitted that in view of the categorical finding of the Tribunal at Kanpur that the settlement dated 5.12.1977 was valid (affirmed by the High Court on 17.4.2000) subsequent to the reference of the dispute relating to ceiling on D.A. in Adj. Case No.42/1998, the very basis for the dispute in Adj. Case No.42/1998 disappeared and consequently the pending dispute in Adj. Case No. 42/1998 should be considered as having been finally settled by the award dated 30.10.1998 in Cases No.38 to 80/2003. 9. A careful examination of the Award of the Kanpur Industrial Tribunal shows the contention of respondent is without merit. The final award dated 30.10.1998 relied on by the respondent company makes it clear that the Tribunal was of the view that the registered settlements dated 31.12.1974 and 5.12.1977 were valid as the said settlements had not been challenged by the Union. It is apparent that the award dated 30.10.1998 assumed that the settlements had not been challenged while in fact a reference in regard to the dispute relating to the challenge had been made a few days earlier. It cannot be said that either the award dated 30.10.1998 or the order of the High Court dated 17.4.2000 had unconditionally upheld the validity of the settlements dated 31.12.1974 and 5.12.1977. In fact, that was not the subject matter of the dispute that was being considered by the Tribunal at Kanpur (or the High Court in the writ petition challenging its award). The settlements were observed to be valid subject to challenge of such settlements. | 1[ds]9. A careful examination of the Award of the Kanpur Industrial Tribunal shows the contention of respondent is without merit. The final award dated 30.10.1998 relied on by the respondent company makes it clear that the Tribunal was of the view that the registered settlements dated 31.12.1974 and 5.12.1977 were valid as the said settlements had not been challenged by the Union. It is apparent that the award dated 30.10.1998 assumed that the settlements had not been challenged while in fact a reference in regard to the dispute relating to the challenge had been made a few days earlier. It cannot be said that either the award dated 30.10.1998 or the order of the High Court dated 17.4.2000 had unconditionally upheld the validity of the settlements dated 31.12.1974 and 5.12.1977. In fact, that was not the subject matter of the dispute that was being considered by the Tribunal at Kanpur (or the High Court in the writ petition challenging its award). The settlements were observed to be valid subject to challenge of such settlements.In this case, though all the workmen might have taken voluntary retirement under the scheme introduced in 2000, the settlement entered (in a standard form) between the respondent company and retiring workmen specifically excluded the pending dispute relating to ceiling on dearness allowance from theis, thus, clear t hat the retirement of the workmen under the Voluntary Retirement Scheme of 7.3.2000 and payment of compensation in full and final settlement thereunder excluded the pending dispute relating to ceiling on D.A. Therefore, the retirement under the Voluntary Retirement Scheme did not result in settlement of the dispute pending in Adj. Case No.42/1998. Unfortunately, the High Court lost sight of the said saving clause in the Voluntary Retirement Scheme in regard to the pending dispute in Adj. Case No.42/1998 and proceeded on the erroneous assumption that all pending claims of the workmen including the subject matter of Adj. Case No.42/1998 were settled on their retirement under the Voluntary Retirement Scheme of 7.3.2000. The order of the High Court cannot, therefore, be sustained. | 1 | 1,525 | 375 | ### Instruction:
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that, therefore, the appropriate course was to permit the parties to lead evidence and decide the dispute on merits. It was of the view that it was not possible to express any opinion as to whether the dispute survived or not, at that premature stage.5. The respondent challenged the said order dated 8.8.2003 before the Allahabad High Court in C.M.W.P. No.51129 of 2003. The High Court allowed the said writ petition by order dated 28.5.2004. The High Court referred to the fact that the Ghaziabad unit of the respondent was closed in 2000 and all workmen had opted for voluntary retirement under respondents Voluntary Retirement Scheme of 2000 and had been paid all dues. The High Court held that in view of the said Voluntary Retirement Scheme of 2000 opted by all workmen, the matter pending adjudication before the Industrial Tribunal in Adj. Case No.42/1998 had become stale and that in the changed circumstances, it was inexpedient to allow the said proceedings to drag on. The High Court also referred to the fact that the dispute regarding dearness allowance had been pending for thirty years, and the Ghaziabad unit was lying closed for five years and the unit had no workmen in its employment. The High Court held that there was no industrial undertaking nor workmen and, therefore, there was no industrial dispute and the appellant Union had lost its right to represent the workmen of the unit. Consequently, the High Court quashed the order dated 8.8.2003 and directed the Industrial Tribunal to dispose of the application filed by the employer in the light of its observations. In other words, the High Court virtually directed the Industrial Tribunal to close the pending dispute in Adj. Case No.42/1998. The said order is challenged in this appeal by special leave. 6. At the outset, it should be noticed that the mere fact that the unit was closed or that all the workmen had taken voluntary retirement will not put an end to a validly pending industrial dispute in regard to a past grievance unless the employer is able to show that such grievance was also settled. 7. In this case, though all the workmen might have taken voluntary retirement under the scheme introduced in 2000, the settlement entered (in a standard form) between the respondent company and retiring workmen specifically excluded the pending dispute relating to ceiling on dearness allowance from the settlement. The said clause is extracted below. "5. On receipt of the above compensation, the workman will have no other claim whatsoever from the company and the payment shall be considered to be his full and final settlement of all dues. However, this agreement is without prejudice to the claim of the workman for the benefits in the Adj. Case No.42/98 pending before Industrial Tribunal Versus Meerut regarding dearness allowance. The workman will be entitled to receive all benefits, if any as applicable, on the final decision of the case in the appropriate court, i.e. Tribunal, High Court or Supreme Court as the case may be." (emphasis supplied) It is, thus, clear t hat the retirement of the workmen under the Voluntary Retirement Scheme of 7.3.2000 and payment of compensation in full and final settlement thereunder excluded the pending dispute relating to ceiling on D.A. Therefore, the retirement under the Voluntary Retirement Scheme did not result in settlement of the dispute pending in Adj. Case No.42/1998. Unfortunately, the High Court lost sight of the said saving clause in the Voluntary Retirement Scheme in regard to the pending dispute in Adj. Case No.42/1998 and proceeded on the erroneous assumption that all pending claims of the workmen including the subject matter of Adj. Case No.42/1998 were settled on their retirement under the Voluntary Retirement Scheme of 7.3.2000. The order of the High Court cannot, therefore, be sustained.8. The employer submitted that in the context of certain disputes relating to an earlier voluntary separation scheme, the Industrial Tribunal, Kanpur had made final award dated 30.10.1998 (in Case No.38 to 80/2003) wherein the Tribunal had held the settlements dated 31.12.1974 and 5.12.1977 were valid settlements, as they were registered settlements. It is also pointed out that when the said award dated 30.10.1998 was challenged before the High Court in W.P. No. 15533 of 1999, the High Court in its judgment dated 17.4.2000, did not disturb the finding regarding validity of those settlements, even though on merits, it had interfered with the said award of the Tribunal. Learned counsel submitted that in view of the categorical finding of the Tribunal at Kanpur that the settlement dated 5.12.1977 was valid (affirmed by the High Court on 17.4.2000) subsequent to the reference of the dispute relating to ceiling on D.A. in Adj. Case No.42/1998, the very basis for the dispute in Adj. Case No.42/1998 disappeared and consequently the pending dispute in Adj. Case No. 42/1998 should be considered as having been finally settled by the award dated 30.10.1998 in Cases No.38 to 80/2003. 9. A careful examination of the Award of the Kanpur Industrial Tribunal shows the contention of respondent is without merit. The final award dated 30.10.1998 relied on by the respondent company makes it clear that the Tribunal was of the view that the registered settlements dated 31.12.1974 and 5.12.1977 were valid as the said settlements had not been challenged by the Union. It is apparent that the award dated 30.10.1998 assumed that the settlements had not been challenged while in fact a reference in regard to the dispute relating to the challenge had been made a few days earlier. It cannot be said that either the award dated 30.10.1998 or the order of the High Court dated 17.4.2000 had unconditionally upheld the validity of the settlements dated 31.12.1974 and 5.12.1977. In fact, that was not the subject matter of the dispute that was being considered by the Tribunal at Kanpur (or the High Court in the writ petition challenging its award). The settlements were observed to be valid subject to challenge of such settlements.
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9. A careful examination of the Award of the Kanpur Industrial Tribunal shows the contention of respondent is without merit. The final award dated 30.10.1998 relied on by the respondent company makes it clear that the Tribunal was of the view that the registered settlements dated 31.12.1974 and 5.12.1977 were valid as the said settlements had not been challenged by the Union. It is apparent that the award dated 30.10.1998 assumed that the settlements had not been challenged while in fact a reference in regard to the dispute relating to the challenge had been made a few days earlier. It cannot be said that either the award dated 30.10.1998 or the order of the High Court dated 17.4.2000 had unconditionally upheld the validity of the settlements dated 31.12.1974 and 5.12.1977. In fact, that was not the subject matter of the dispute that was being considered by the Tribunal at Kanpur (or the High Court in the writ petition challenging its award). The settlements were observed to be valid subject to challenge of such settlements.In this case, though all the workmen might have taken voluntary retirement under the scheme introduced in 2000, the settlement entered (in a standard form) between the respondent company and retiring workmen specifically excluded the pending dispute relating to ceiling on dearness allowance from theis, thus, clear t hat the retirement of the workmen under the Voluntary Retirement Scheme of 7.3.2000 and payment of compensation in full and final settlement thereunder excluded the pending dispute relating to ceiling on D.A. Therefore, the retirement under the Voluntary Retirement Scheme did not result in settlement of the dispute pending in Adj. Case No.42/1998. Unfortunately, the High Court lost sight of the said saving clause in the Voluntary Retirement Scheme in regard to the pending dispute in Adj. Case No.42/1998 and proceeded on the erroneous assumption that all pending claims of the workmen including the subject matter of Adj. Case No.42/1998 were settled on their retirement under the Voluntary Retirement Scheme of 7.3.2000. The order of the High Court cannot, therefore, be sustained.
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M/S ARUN KUMAR KAMAL KUMAR & ORS. Vs. M/S SELECTED MARBLE HOME & ORS. | the business was not running and no commission payments were made. Thus, it was argued that the findings of fact recorded by the courts below do not call for interference in this appeal. 11. We have carefully considered the submissions of the learned counsel made at the Bar and perused the materials placed on record. 12. As per Clause 10 of both the Agreements, in case of any dispute, it was incumbent on the appellants to handover vacant possession of the premises to the respondents. On this issue, it is clear that disputes had arisen between the parties. However, it is an admitted position that possession of the premises was not handed over to the respondents by the appellants until the arbitration proceedings had commenced and has, in fact, only been handed over on 13 March 2000. Therefore, the Arbitrator framed Issue No. 15-A regarding damages payable to the respondents. The Learned Arbitrator has rejected the plea of the appellants that they had to close the business because of the obstructionist tactics adopted by the respondents and for that reason the business activities remained closed from April, 1991 to November, 1995. On a detailed consideration of the materials on record, the Learned Arbitrator had come to the conclusion that the appellants are liable to pay the damages. 13. This question was again considered by the learned Single Judge. The learned Single Judge noticed the plea of the appellants that the transaction between the parties was of tenancy and not licence. After dealing with this plea, the learned Single Judge upheld the award of damages by the Learned Arbitrator. The finding of the learned Single Judge in this regard is in paragraph 20 which reads as under: I find it has been the case of the respondents that the transaction between the parties was of tenancy and not of a licence. It is so pleaded in the objections also. Even if the respondents consider themselves to be tenants at the rent equivalent to commission @ 11% per month, the respondents would under Section 108 of the Transfer of Property Act have continued to remain liable for payment of rent, notwithstanding not carrying on business in the premises. It has been held by the Division Bench of this Court in State Bank of Patiala v. Chandermohan – 1996 RLR 404 held that a tenant continues to be liable for rent/damages even if the premises are destroyed and the only option of the tenant if desirous to stop the running of rent is to surrender the premises. Thus as per the respondents own understanding of the relationship also, the respondents were liable for payment of rent. 14. We do not find any error in the said finding of the learned Single Judge. 15. After finding the appellants liable to pay damages, the Learned Arbitrator has arrived at the quantum of damages as per the statement of accounts, furnished by the appellants based on their audited accounts, that too after deduction of TDS for a period of pre-closure i.e. 15.08.1990 to 22.02.1991 and post closure i.e. November 1995 to November 1997. The payment of damages for the closure period i.e. March 1991 to October 1995 has been arrived at as an average of commission actually paid pre closure and the commission payable post closure as per the statement of accounts of the appellants, after deducting TDS. 16. There is also no merit in the contention of the learned senior counsel for the appellants that the appellants statement of accounts erroneously deducted expenses incurred on electricity and water from the sales instead of deducting the same from commission of the respondents. The admitted position is that there was no electricity supply and the appellants used generator set for electricity. The contention of the appellants is that the expenses incurred towards generator ought to have been deducted from the gross commission payable and not from the gross sale amount and then the commission should have been calculated at the contractually stipulated rates of 6% and 5%. This plea has been dealt with by learned Single Judge as under: The other mistake pointed out of deduction of expenses on diesel generator set from sales rather than from commission payable, even if made out, also cannot be permitted to be withdrawn at this stage especially when the respondents have already deducted and paid taxes on the basis of said statement. Under the agreement the electricity and water charges of the premises were to be borne by the petitioners. Admittedly, the premises/shop on reopening were without electricity and diesel generator set arranged. There is no dispute that the expenses therefor were to be borne by the petitioners. The respondents while furnishing the statement to arbitrator, did direct the same. The objections now that such deduction was wrongly done is not tenable? This contention has been raised on the ground that the statement filed by the appellants was not correct since the appellants were only liable to pay commission at 6% and 5% under two agreements on the gross sales and the responsibility to provide electricity was on the respondents. We are of the view that the appellants cannot be permitted to withdraw their own statement made before the Learned Arbitrator which is predicated to on a mode of calculation, the same not being disputed by the respondents and accepted by the Arbitrator as correct. We are also of the view that the appellants are not justified in raising a contrary plea other than what was their defence and statement of counter claim in the arbitral proceedings. 17. We are also of the view that the Learned Arbitrator has rightly relied on the appellants statement of accounts for awarding commission for the period when the business was restarted post closure between November 1995 and November 1997. The formula adopted by the Learned Arbitrator for arriving at this commission amount as well as the damages has been accepted by learned Single Judge as also the Division Bench of the High Court. | 0[ds]12. As per Clause 10 of both the Agreements, in case of any dispute, it was incumbent on the appellants to handover vacant possession of the premises to the respondents. On this issue, it is clear that disputes had arisen between the parties. However, it is an admitted position that possession of the premises was not handed over to the respondents by the appellants until the arbitration proceedings had commenced and has, in fact, only been handed over on 13 March 2000. Therefore, the Arbitrator framed Issue No. 15-A regarding damages payable to the respondents. The Learned Arbitrator has rejected the plea of the appellants that they had to close the business because of the obstructionist tactics adopted by the respondents and for that reason the business activities remained closed from April, 1991 to November, 1995. On a detailed consideration of the materials on record, the Learned Arbitrator had come to the conclusion that the appellants are liable to pay the damages.13. This question was again considered by the learned Single Judge. The learned Single Judge noticed the plea of the appellants that the transaction between the parties was of tenancy and not licence. After dealing with this plea, the learned Single Judge upheld the award of damages by the Learned Arbitrator. The finding of the learned Single Judge in this regard is in paragraph 20 which reads as under:I find it has been the case of the respondents that the transaction between the parties was of tenancy and not of a licence. It is so pleaded in the objections also. Even if the respondents consider themselves to be tenants at the rent equivalent to commission @ 11% per month, the respondents would under Section 108 of the Transfer of Property Act have continued to remain liable for payment of rent, notwithstanding not carrying on business in the premises. It has been held by the Division Bench of this Court in State Bank of Patiala v. Chandermohan – 1996 RLR 404 held that a tenant continues to be liable for rent/damages even if the premises are destroyed and the only option of the tenant if desirous to stop the running of rent is to surrender the premises. Thus as per the respondents own understanding of the relationship also, the respondents were liable for payment of rent.14. We do not find any error in the said finding of the learned Single Judge.15. After finding the appellants liable to pay damages, the Learned Arbitrator has arrived at the quantum of damages as per the statement of accounts, furnished by the appellants based on their audited accounts, that too after deduction of TDS for a period of pre-closure i.e. 15.08.1990 to 22.02.1991 and post closure i.e. November 1995 to November 1997. The payment of damages for the closure period i.e. March 1991 to October 1995 has been arrived at as an average of commission actually paid pre closure and the commission payable post closure as per the statement of accounts of the appellants, after deducting TDS.16. There is also no merit in the contention of the learned senior counsel for the appellants that the appellants statement of accounts erroneously deducted expenses incurred on electricity and water from the sales instead of deducting the same from commission of the respondents. The admitted position is that there was no electricity supply and the appellants used generator set for electricity.This contention has been raised on the ground that the statement filed by the appellants was not correct since the appellants were only liable to pay commission at 6% and 5% under two agreements on the gross sales and the responsibility to provide electricity was on the respondents. We are of the view that the appellants cannot be permitted to withdraw their own statement made before the Learned Arbitrator which is predicated to on a mode of calculation, the same not being disputed by the respondents and accepted by the Arbitrator as correct. We are also of the view that the appellants are not justified in raising a contrary plea other than what was their defence and statement of counter claim in the arbitral proceedings.17. We are also of the view that the Learned Arbitrator has rightly relied on the appellants statement of accounts for awarding commission for the period when the business was restarted postclosure between November 1995 and November 1997. The formula adopted by the Learned Arbitrator for arriving at this commission amount as well as the damages has been accepted by learned Single Judge as also the Division Bench of the High Court. | 0 | 2,499 | 816 | ### 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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the business was not running and no commission payments were made. Thus, it was argued that the findings of fact recorded by the courts below do not call for interference in this appeal. 11. We have carefully considered the submissions of the learned counsel made at the Bar and perused the materials placed on record. 12. As per Clause 10 of both the Agreements, in case of any dispute, it was incumbent on the appellants to handover vacant possession of the premises to the respondents. On this issue, it is clear that disputes had arisen between the parties. However, it is an admitted position that possession of the premises was not handed over to the respondents by the appellants until the arbitration proceedings had commenced and has, in fact, only been handed over on 13 March 2000. Therefore, the Arbitrator framed Issue No. 15-A regarding damages payable to the respondents. The Learned Arbitrator has rejected the plea of the appellants that they had to close the business because of the obstructionist tactics adopted by the respondents and for that reason the business activities remained closed from April, 1991 to November, 1995. On a detailed consideration of the materials on record, the Learned Arbitrator had come to the conclusion that the appellants are liable to pay the damages. 13. This question was again considered by the learned Single Judge. The learned Single Judge noticed the plea of the appellants that the transaction between the parties was of tenancy and not licence. After dealing with this plea, the learned Single Judge upheld the award of damages by the Learned Arbitrator. The finding of the learned Single Judge in this regard is in paragraph 20 which reads as under: I find it has been the case of the respondents that the transaction between the parties was of tenancy and not of a licence. It is so pleaded in the objections also. Even if the respondents consider themselves to be tenants at the rent equivalent to commission @ 11% per month, the respondents would under Section 108 of the Transfer of Property Act have continued to remain liable for payment of rent, notwithstanding not carrying on business in the premises. It has been held by the Division Bench of this Court in State Bank of Patiala v. Chandermohan – 1996 RLR 404 held that a tenant continues to be liable for rent/damages even if the premises are destroyed and the only option of the tenant if desirous to stop the running of rent is to surrender the premises. Thus as per the respondents own understanding of the relationship also, the respondents were liable for payment of rent. 14. We do not find any error in the said finding of the learned Single Judge. 15. After finding the appellants liable to pay damages, the Learned Arbitrator has arrived at the quantum of damages as per the statement of accounts, furnished by the appellants based on their audited accounts, that too after deduction of TDS for a period of pre-closure i.e. 15.08.1990 to 22.02.1991 and post closure i.e. November 1995 to November 1997. The payment of damages for the closure period i.e. March 1991 to October 1995 has been arrived at as an average of commission actually paid pre closure and the commission payable post closure as per the statement of accounts of the appellants, after deducting TDS. 16. There is also no merit in the contention of the learned senior counsel for the appellants that the appellants statement of accounts erroneously deducted expenses incurred on electricity and water from the sales instead of deducting the same from commission of the respondents. The admitted position is that there was no electricity supply and the appellants used generator set for electricity. The contention of the appellants is that the expenses incurred towards generator ought to have been deducted from the gross commission payable and not from the gross sale amount and then the commission should have been calculated at the contractually stipulated rates of 6% and 5%. This plea has been dealt with by learned Single Judge as under: The other mistake pointed out of deduction of expenses on diesel generator set from sales rather than from commission payable, even if made out, also cannot be permitted to be withdrawn at this stage especially when the respondents have already deducted and paid taxes on the basis of said statement. Under the agreement the electricity and water charges of the premises were to be borne by the petitioners. Admittedly, the premises/shop on reopening were without electricity and diesel generator set arranged. There is no dispute that the expenses therefor were to be borne by the petitioners. The respondents while furnishing the statement to arbitrator, did direct the same. The objections now that such deduction was wrongly done is not tenable? This contention has been raised on the ground that the statement filed by the appellants was not correct since the appellants were only liable to pay commission at 6% and 5% under two agreements on the gross sales and the responsibility to provide electricity was on the respondents. We are of the view that the appellants cannot be permitted to withdraw their own statement made before the Learned Arbitrator which is predicated to on a mode of calculation, the same not being disputed by the respondents and accepted by the Arbitrator as correct. We are also of the view that the appellants are not justified in raising a contrary plea other than what was their defence and statement of counter claim in the arbitral proceedings. 17. We are also of the view that the Learned Arbitrator has rightly relied on the appellants statement of accounts for awarding commission for the period when the business was restarted post closure between November 1995 and November 1997. The formula adopted by the Learned Arbitrator for arriving at this commission amount as well as the damages has been accepted by learned Single Judge as also the Division Bench of the High Court.
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12. As per Clause 10 of both the Agreements, in case of any dispute, it was incumbent on the appellants to handover vacant possession of the premises to the respondents. On this issue, it is clear that disputes had arisen between the parties. However, it is an admitted position that possession of the premises was not handed over to the respondents by the appellants until the arbitration proceedings had commenced and has, in fact, only been handed over on 13 March 2000. Therefore, the Arbitrator framed Issue No. 15-A regarding damages payable to the respondents. The Learned Arbitrator has rejected the plea of the appellants that they had to close the business because of the obstructionist tactics adopted by the respondents and for that reason the business activities remained closed from April, 1991 to November, 1995. On a detailed consideration of the materials on record, the Learned Arbitrator had come to the conclusion that the appellants are liable to pay the damages.13. This question was again considered by the learned Single Judge. The learned Single Judge noticed the plea of the appellants that the transaction between the parties was of tenancy and not licence. After dealing with this plea, the learned Single Judge upheld the award of damages by the Learned Arbitrator. The finding of the learned Single Judge in this regard is in paragraph 20 which reads as under:I find it has been the case of the respondents that the transaction between the parties was of tenancy and not of a licence. It is so pleaded in the objections also. Even if the respondents consider themselves to be tenants at the rent equivalent to commission @ 11% per month, the respondents would under Section 108 of the Transfer of Property Act have continued to remain liable for payment of rent, notwithstanding not carrying on business in the premises. It has been held by the Division Bench of this Court in State Bank of Patiala v. Chandermohan – 1996 RLR 404 held that a tenant continues to be liable for rent/damages even if the premises are destroyed and the only option of the tenant if desirous to stop the running of rent is to surrender the premises. Thus as per the respondents own understanding of the relationship also, the respondents were liable for payment of rent.14. We do not find any error in the said finding of the learned Single Judge.15. After finding the appellants liable to pay damages, the Learned Arbitrator has arrived at the quantum of damages as per the statement of accounts, furnished by the appellants based on their audited accounts, that too after deduction of TDS for a period of pre-closure i.e. 15.08.1990 to 22.02.1991 and post closure i.e. November 1995 to November 1997. The payment of damages for the closure period i.e. March 1991 to October 1995 has been arrived at as an average of commission actually paid pre closure and the commission payable post closure as per the statement of accounts of the appellants, after deducting TDS.16. There is also no merit in the contention of the learned senior counsel for the appellants that the appellants statement of accounts erroneously deducted expenses incurred on electricity and water from the sales instead of deducting the same from commission of the respondents. The admitted position is that there was no electricity supply and the appellants used generator set for electricity.This contention has been raised on the ground that the statement filed by the appellants was not correct since the appellants were only liable to pay commission at 6% and 5% under two agreements on the gross sales and the responsibility to provide electricity was on the respondents. We are of the view that the appellants cannot be permitted to withdraw their own statement made before the Learned Arbitrator which is predicated to on a mode of calculation, the same not being disputed by the respondents and accepted by the Arbitrator as correct. We are also of the view that the appellants are not justified in raising a contrary plea other than what was their defence and statement of counter claim in the arbitral proceedings.17. We are also of the view that the Learned Arbitrator has rightly relied on the appellants statement of accounts for awarding commission for the period when the business was restarted postclosure between November 1995 and November 1997. The formula adopted by the Learned Arbitrator for arriving at this commission amount as well as the damages has been accepted by learned Single Judge as also the Division Bench of the High Court.
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UNION OF INDIA & ANR Vs. U.A.E.EXCHANGE CENTRE | and that the US companies through such personnel are furnishing services in India. This being the case, it is clear that as the very first part of Article 5(2)(l) is not attracted, the question of going to any other part of the said article does not arise. It is perhaps for this reason that the assessing officer did not give any finding on this score. (emphasis supplied) As aforesaid, we agree with the finding recorded by the High Court about the nature and character of stated activities carried on by the liaison offices of the respondent and in our view, the High Court justly reckoned the same as being of preparatory or auxiliary character, falling under Article 5(3)(e). 13. The High Court has also examined the matter in the context of explanation to Section 9(1)(i) of the 1961 Act. Prior to enactment of Finance Act, 2003 (32 of 2003), Section 9(1)(i) read thus: - Income deemed to accrue or arise in India. 9. (1) The following incomes shall be deemed to accrue or arise in India: - (i) all income accruing or arising, whether directly or indirectly, through or from any business connection in India, or through or from any property in India, or through or from any asset or source of income in India, or through the transfer of a capital asset situate in India. Explanation.— For the purposes of this clause— (a) in the case of a business of which all the operations are not carried out in India, the income of the business deemed under this clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India; (b) in the case of a non-resident, no income shall be deemed to accrue or arise in India to him through or from operations which are confined to the purchase of goods in India for the purpose of export; (c) in the case of a non-resident, being a person engaged in the business of running a news agency or of publishing newspapers, magazines or journals, no income shall be deemed to accrue or arise in India to him through or from activities which are confined to the collection of news and views in India for transmission out of India; (d) in the case of a non-resident, being— (1) an individual who is not a citizen of India; or (2) a firm which does not have any partner who is a citizen of India or who is resident in India; or (3) a company which does not have any shareholder who is a citizen of India or who is resident in India, no income shall be deemed to accrue or arise in India to such individual, firm or company through or from operations which are confined to the shooting of any cinematograph film in India. ………………….. After the enactment of Finance Act, 2003, explanation 2 came to be inserted after the renumbered explanation 1 to clause (i) of sub- Section (1) of Section 9 with effect from 1.4.2004. The same reads thus: - Income deemed to accrue or arise in India. 9. (1) The following incomes shall be deemed to accrue or arise in India: - (i) all income accruing or arising, whether directly or indirectly, through or from any business connection in India, or through or from any property in India, or through or from any asset or source of income in India, or through the transfer of a capital asset situate in India. Explanation 1.- xxx xxx xxx Explanation 2.– For the removal of doubts, it is hereby declared that business connection shall include any business activity carried out through a person who, acting on behalf of the non-resident,- (a) has and habitually exercises in India, an authority to conclude contact on behalf of the non- resident, unless his activities are limited to the purchase of goods or merchandise for the non- resident; or (b) has no such authority, but habitually maintains in India a stock of goods or merchandise from which he regularly delivers goods or merchandise on behalf of the non-resident; or (c) habitually secures orders in India, mainly or wholly for the non-resident or that non-resident and other non-residents controlling, controlled by, or subject to the same common control, as that non- resident: Provided that such business connection shall not include any business activity carried out through a broker, general commission agent or any other agent having an independent status, if such broker, general commission agent or any other agent having an independent status is acting in the ordinary course of his business: Provided further that where such broker, general commission agent or any other agent works mainly or wholly on behalf of a non-resident (hereafter in this proviso referred to as the principal non- resident) or on behalf of such non-resident and other non-residents which are controlled by the principal non-resident or have a controlling interest in the principle non-resident or are subject to the same common control as the principal non- resident, he shall not be deemed to be a broker, general commission agent or an agent of an independent status. The meaning of expressions business connection and business activity has been articulated. However, even if the stated activity(ies) of the liaison office of the respondent in India is regarded as business activity, as noted earlier, the same being of preparatory or auxiliary character; by virtue of Article 5(3)(e) of the DTAA, the fixed place of business (liaison office) of the respondent in India otherwise a PE, is deemed to be expressly excluded from being so. And since by a legal fiction it is deemed not to be a PE of the respondent in India, it is not amenable to tax liability in terms of Article 7 of the DTAA. 14. Taking any view of the matter, therefore, we find no substance in this appeal. We uphold the conclusions reached by the High Court for the reasons stated hitherto. | 0[ds]Having regard to the nature of activities carried on by the respondent-assessee, as held by the Authority, it would appear that the respondent was engaged in business and had business connections, for which, by virtue of deeming provision and the sweep of Sections 2(24), 4 and 5 read with Section 9 of the 1961 Act including the exposition in Anglo-French Textile Co. Ltd. (supra) and R.D. Aggarwal & Company (supra), it would be a case of income deemed to accrue or arise in India to the respondent8. However, in the present case, the matter in issue will have to be answered on the basis of the stipulations in DTAA notified in exercise of powers conferred under Section 90 of the 1961 Act. This position is no more res integra in view of the dictum in Azadi Bachao Andolan (supra)In view of this exposition, which squarely applies to the fact situation of the present case, we must answer the question under consideration in light of the purport of provisions in DTAA, which has been executed by the Government of India and the Government of UAE, and has come into force consequent to publication vide notification dated 18.11.1993Keeping in view the finding recorded by the High Court, we may proceed on the basis that the respondent-assessee had a fixed place of business through which the business of the respondent was being wholly or partly carried on. That, however, would not be conclusive until a further finding is recorded that the respondent had a PE situated in India, so as to attract Article 7 dealing with business profits to become taxable in India, to the extent attributable to the PE of the respondent in India. For that, we may have to revert back to Article 5, which deals with and defines the Permanent Establishment (PE). A fixed place of business through which the business of an enterprise is wholly or partly carried on is regarded as a PE. The term Permanent Establishment (PE) would include the specified places referred to in clause 2 of Article 5. It is not in dispute that the place from where the activities are carried on by the respondent in India is a liaison office and would, therefore, be covered by the term PE in Article 5(2). However, Article 5(3) of the DTAA opens with a non- obstante clause and also contains a deeming provision. It predicates that notwithstanding the preceding provisions of the concerned Article, which would mean clauses 1 and 2 of Article 5, it would still not be a PE, if any of the clauses in Article 5(3) are applicable. For that, the functional test regarding the activity in question would be essential. The High Court has opined that the respondent was carrying on stated activities in the fixed place of business in India of a preparatory or auxiliary characterThe expression business connection can be discerned from Section 9(1), as also, the meaning of expression business activity. We will advert to those provisions a little later and for the time being, assume that the stated activities of the respondent are business activities. However, since the stated activities of the liaison offices of the respondent in India are of preparatory or auxiliary character, the same would fall within the excepted category under Article 5(3)(e) of the DTAA. Resultantly, it cannot be regarded as a PE within the sweep of Article 7 of DTAA. The expression preparatory is not defined in the 1961 Act or the DTAAThe crucial activities in the present case are of downloading particulars of remittances through electronic media and then printing cheques/drafts drawn on the banks in India, which, in turn, are couriered or dispatched to the beneficiaries in India, in accordance with the instructions of the NRI remitter. While doing so, the liaison office of the respondent in India remains connected with its main server in UAE and the information residing thereat is accessed by the liaison office in India for the purpose of remittance of funds to the beneficiaries in India by the NRI remitters. These are combination of virtual and physical activities unlike the virtual activity of funds being remitted by telegraphic transfer through banking channels. As regards the latter, it is not the case of the Department that the same would be covered and amenable to tax liability by virtue of deeming provision in the 1961 Act9. While answering the question as towhether the activity in question can be termed as other than that of preparatory or auxiliary character,we need to keep in mind the limited permission given by the RBI to the respondent under Section 29(1)(a) of the 1973 Act, on 24.9.1996. From paragraph 2 of the stated permission, it is evident that the RBI had agreed for establishing a liaison office of the respondent at Cochin, initially for a period of three years to enable the respondent to (i) respond quickly and economically to enquiries from correspondent banks with regard to suspected fraudulent drafts; (ii) undertake reconciliation of bank accounts held in India; (iii) act as a communication centre receiving computer (via modem) advices of mail transfer T.T. stop payments messages, payment details etc., originating from respondents several branches in UAE and transmitting to its Indian correspondent banks; (iv) printing Indian Rupee drafts with facsimile signature from the Head Office and counter signature by the authorised signatory of the Office at Cochin; and (v) following up with the Indian correspondent banks. These are the limited activities which the respondent has been permitted to carry on within India. This permission does not allow the respondent-assessee to enter into a contract with anyone in India, but only to provide service of delivery of cheques/drafts drawn on the banks in India. Notably, the permitted activities are required to be carried out by the respondent subject to conditions specified in clause 3 of the permission, which includes not to render any consultancy or any other service, directly or indirectly, with or without any consideration and further that the liaison office in India shall not borrow or lend any money from or to any person in India without prior permission of RBI. The conditions make it amply clear that the office in India will not undertake any other activity of trading, commercial or industrial, nor shall it enter into any business contracts in its own name without prior permission of the RBI. The liaison office of the respondent in India cannot even charge commission/fee or receive any remuneration or income in respect of the activities undertaken by the liaison office in India. From the onerous stipulations specified by the RBI, it could be safely concluded, as opined by the High Court, that the activities in question of the liaison office(s) of the respondent in India are circumscribed by the permission given by the RBI and are in the nature of preparatory or auxiliary character. That finding reached by the High Court is unexceptionableInsofar as the nature of activities carried on by the respondent through the liaison office in India, as permitted by the RBI, we have upheld the conclusion of the High Court that the same were in the nature of preparatory or auxiliary character and, therefore, covered by Article 5(3)(e). As a result, the fixed place used by the respondent as liaison office in India, would not qualify the definition of PE in terms of Articles 5(1) and 5(2) of the DTAA on account of non-obstante and deeming clause in Article 5(3) of the DTAA11. Having said thus, it must follow that the respondent was not carrying on any business activity in India as such, but only dispensing with the remittances by downloading information from the main server of respondent in UAE and printing cheques/drafts drawn on the banks in India as per the instructions given by the NRI remitters in UAE. The transaction(s) had completed with the remitters in UAE, and no charges towards fee/commission could be collected by the liaison office in India in that regard. To put it differently, no income as specified in Section 2(24) of the 1961 Act is earned by the liaison office in India and moreso because, the liaison office is not a PE in terms of Article 5 of DTAA (as it is only carrying on activity of a preparatory or auxiliary character). The concomitant is - no tax can be levied or collected from the liaison office of the respondent in India in respect of the primary business activities consummated by the respondent in UAE. The activities carried on by the liaison office of the respondent in India as permitted by the RBI, clearly demonstrate that the respondent must steer away from engaging in any primary business activity and in establishing business connection as such. It can carry on activities of preparatory or auxiliary nature only. In that case, the deeming provisions in Sections 5 and 9 of the 1961 Act can have no bearing whatsoeverAs aforesaid, we agree with the finding recorded by the High Court about the nature and character of stated activities carried on by the liaison offices of the respondent and in our view, the High Court justly reckoned the same as being of preparatory or auxiliary character, falling under Article 5(3)(e)The meaning of expressions business connection and business activity has been articulated. However, even if the stated activity(ies) of the liaison office of the respondent in India is regarded as business activity, as noted earlier, the same being of preparatory or auxiliary character; by virtue of Article 5(3)(e) of the DTAA, the fixed place of business (liaison office) of the respondent in India otherwise a PE, is deemed to be expressly excluded from being so. And since by a legal fiction it is deemed not to be a PE of the respondent in India, it is not amenable to tax liability in terms of Article 7 of the DTAA14. Taking any view of the matter, therefore, we find no substance in this appeal. We uphold the conclusions reached by the High Court for the reasons stated hitherto. | 0 | 12,636 | 1,896 | ### Instruction:
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and that the US companies through such personnel are furnishing services in India. This being the case, it is clear that as the very first part of Article 5(2)(l) is not attracted, the question of going to any other part of the said article does not arise. It is perhaps for this reason that the assessing officer did not give any finding on this score. (emphasis supplied) As aforesaid, we agree with the finding recorded by the High Court about the nature and character of stated activities carried on by the liaison offices of the respondent and in our view, the High Court justly reckoned the same as being of preparatory or auxiliary character, falling under Article 5(3)(e). 13. The High Court has also examined the matter in the context of explanation to Section 9(1)(i) of the 1961 Act. Prior to enactment of Finance Act, 2003 (32 of 2003), Section 9(1)(i) read thus: - Income deemed to accrue or arise in India. 9. (1) The following incomes shall be deemed to accrue or arise in India: - (i) all income accruing or arising, whether directly or indirectly, through or from any business connection in India, or through or from any property in India, or through or from any asset or source of income in India, or through the transfer of a capital asset situate in India. Explanation.— For the purposes of this clause— (a) in the case of a business of which all the operations are not carried out in India, the income of the business deemed under this clause to accrue or arise in India shall be only such part of the income as is reasonably attributable to the operations carried out in India; (b) in the case of a non-resident, no income shall be deemed to accrue or arise in India to him through or from operations which are confined to the purchase of goods in India for the purpose of export; (c) in the case of a non-resident, being a person engaged in the business of running a news agency or of publishing newspapers, magazines or journals, no income shall be deemed to accrue or arise in India to him through or from activities which are confined to the collection of news and views in India for transmission out of India; (d) in the case of a non-resident, being— (1) an individual who is not a citizen of India; or (2) a firm which does not have any partner who is a citizen of India or who is resident in India; or (3) a company which does not have any shareholder who is a citizen of India or who is resident in India, no income shall be deemed to accrue or arise in India to such individual, firm or company through or from operations which are confined to the shooting of any cinematograph film in India. ………………….. After the enactment of Finance Act, 2003, explanation 2 came to be inserted after the renumbered explanation 1 to clause (i) of sub- Section (1) of Section 9 with effect from 1.4.2004. The same reads thus: - Income deemed to accrue or arise in India. 9. (1) The following incomes shall be deemed to accrue or arise in India: - (i) all income accruing or arising, whether directly or indirectly, through or from any business connection in India, or through or from any property in India, or through or from any asset or source of income in India, or through the transfer of a capital asset situate in India. Explanation 1.- xxx xxx xxx Explanation 2.– For the removal of doubts, it is hereby declared that business connection shall include any business activity carried out through a person who, acting on behalf of the non-resident,- (a) has and habitually exercises in India, an authority to conclude contact on behalf of the non- resident, unless his activities are limited to the purchase of goods or merchandise for the non- resident; or (b) has no such authority, but habitually maintains in India a stock of goods or merchandise from which he regularly delivers goods or merchandise on behalf of the non-resident; or (c) habitually secures orders in India, mainly or wholly for the non-resident or that non-resident and other non-residents controlling, controlled by, or subject to the same common control, as that non- resident: Provided that such business connection shall not include any business activity carried out through a broker, general commission agent or any other agent having an independent status, if such broker, general commission agent or any other agent having an independent status is acting in the ordinary course of his business: Provided further that where such broker, general commission agent or any other agent works mainly or wholly on behalf of a non-resident (hereafter in this proviso referred to as the principal non- resident) or on behalf of such non-resident and other non-residents which are controlled by the principal non-resident or have a controlling interest in the principle non-resident or are subject to the same common control as the principal non- resident, he shall not be deemed to be a broker, general commission agent or an agent of an independent status. The meaning of expressions business connection and business activity has been articulated. However, even if the stated activity(ies) of the liaison office of the respondent in India is regarded as business activity, as noted earlier, the same being of preparatory or auxiliary character; by virtue of Article 5(3)(e) of the DTAA, the fixed place of business (liaison office) of the respondent in India otherwise a PE, is deemed to be expressly excluded from being so. And since by a legal fiction it is deemed not to be a PE of the respondent in India, it is not amenable to tax liability in terms of Article 7 of the DTAA. 14. Taking any view of the matter, therefore, we find no substance in this appeal. We uphold the conclusions reached by the High Court for the reasons stated hitherto.
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by the NRI remitters. These are combination of virtual and physical activities unlike the virtual activity of funds being remitted by telegraphic transfer through banking channels. As regards the latter, it is not the case of the Department that the same would be covered and amenable to tax liability by virtue of deeming provision in the 1961 Act9. While answering the question as towhether the activity in question can be termed as other than that of preparatory or auxiliary character,we need to keep in mind the limited permission given by the RBI to the respondent under Section 29(1)(a) of the 1973 Act, on 24.9.1996. From paragraph 2 of the stated permission, it is evident that the RBI had agreed for establishing a liaison office of the respondent at Cochin, initially for a period of three years to enable the respondent to (i) respond quickly and economically to enquiries from correspondent banks with regard to suspected fraudulent drafts; (ii) undertake reconciliation of bank accounts held in India; (iii) act as a communication centre receiving computer (via modem) advices of mail transfer T.T. stop payments messages, payment details etc., originating from respondents several branches in UAE and transmitting to its Indian correspondent banks; (iv) printing Indian Rupee drafts with facsimile signature from the Head Office and counter signature by the authorised signatory of the Office at Cochin; and (v) following up with the Indian correspondent banks. These are the limited activities which the respondent has been permitted to carry on within India. This permission does not allow the respondent-assessee to enter into a contract with anyone in India, but only to provide service of delivery of cheques/drafts drawn on the banks in India. Notably, the permitted activities are required to be carried out by the respondent subject to conditions specified in clause 3 of the permission, which includes not to render any consultancy or any other service, directly or indirectly, with or without any consideration and further that the liaison office in India shall not borrow or lend any money from or to any person in India without prior permission of RBI. The conditions make it amply clear that the office in India will not undertake any other activity of trading, commercial or industrial, nor shall it enter into any business contracts in its own name without prior permission of the RBI. The liaison office of the respondent in India cannot even charge commission/fee or receive any remuneration or income in respect of the activities undertaken by the liaison office in India. From the onerous stipulations specified by the RBI, it could be safely concluded, as opined by the High Court, that the activities in question of the liaison office(s) of the respondent in India are circumscribed by the permission given by the RBI and are in the nature of preparatory or auxiliary character. That finding reached by the High Court is unexceptionableInsofar as the nature of activities carried on by the respondent through the liaison office in India, as permitted by the RBI, we have upheld the conclusion of the High Court that the same were in the nature of preparatory or auxiliary character and, therefore, covered by Article 5(3)(e). As a result, the fixed place used by the respondent as liaison office in India, would not qualify the definition of PE in terms of Articles 5(1) and 5(2) of the DTAA on account of non-obstante and deeming clause in Article 5(3) of the DTAA11. Having said thus, it must follow that the respondent was not carrying on any business activity in India as such, but only dispensing with the remittances by downloading information from the main server of respondent in UAE and printing cheques/drafts drawn on the banks in India as per the instructions given by the NRI remitters in UAE. The transaction(s) had completed with the remitters in UAE, and no charges towards fee/commission could be collected by the liaison office in India in that regard. To put it differently, no income as specified in Section 2(24) of the 1961 Act is earned by the liaison office in India and moreso because, the liaison office is not a PE in terms of Article 5 of DTAA (as it is only carrying on activity of a preparatory or auxiliary character). The concomitant is - no tax can be levied or collected from the liaison office of the respondent in India in respect of the primary business activities consummated by the respondent in UAE. The activities carried on by the liaison office of the respondent in India as permitted by the RBI, clearly demonstrate that the respondent must steer away from engaging in any primary business activity and in establishing business connection as such. It can carry on activities of preparatory or auxiliary nature only. In that case, the deeming provisions in Sections 5 and 9 of the 1961 Act can have no bearing whatsoeverAs aforesaid, we agree with the finding recorded by the High Court about the nature and character of stated activities carried on by the liaison offices of the respondent and in our view, the High Court justly reckoned the same as being of preparatory or auxiliary character, falling under Article 5(3)(e)The meaning of expressions business connection and business activity has been articulated. However, even if the stated activity(ies) of the liaison office of the respondent in India is regarded as business activity, as noted earlier, the same being of preparatory or auxiliary character; by virtue of Article 5(3)(e) of the DTAA, the fixed place of business (liaison office) of the respondent in India otherwise a PE, is deemed to be expressly excluded from being so. And since by a legal fiction it is deemed not to be a PE of the respondent in India, it is not amenable to tax liability in terms of Article 7 of the DTAA14. Taking any view of the matter, therefore, we find no substance in this appeal. We uphold the conclusions reached by the High Court for the reasons stated hitherto.
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Srinivas Rama Shetty Vs. Amalgamated Electricity Company Limited | fuse had not been provided and in the concluding portion of his report Krishnamurthi sought a specific order to the Company for providing of pole fuses as required under Rule 31 (2) of the Indian Electricity Rules, 1956. Rule 31 needs to be set out in its entirety to emphasis the importance thereof. It is titled as "cut-out on consumers premises" and is in three parts reading thus : (1) The supplier shall provide a suitable cut-out in each conductor of every service-line other than an earthed or earthed neutral conductor or the earthed external conductor of a concentric cable within a consumers premises, in an accessible position. Such cut-out shall be contained within an adequately enclosed fire-proof receptacle. (2) Where more than one consumer is supplied through a common service-line, each such consumer shall be provided with an independent cut-out at the point of junction to the common service. (3) The owner of every electric supply line, other than the earthed or earthed neutral conductor of any system or the earthed external conductor of a concentric cable, shall protect it by a suitable cut-out. "krishnamurthis report establishes that there were no pole fuses. This is sought to be explained away by D. W. 1 Joshi. He learnt of the fire through the Switch-board operator at about 2. 00 p. m. and to safeguard the line gave instructions for an immediate switch off of the oil circuit breaker so as to terminate the supply of electricity to the entire locality. But Joshi did not make a site inspection and did not keep a note of the instructions given by him to the Switch-board Operator. The letter at Ex. 61 addressed by the Plaintiff to the Company, on 14-3-1977 was brought to his notice. Ex. 61 specifically made a reference to the breaking of the overhead wires resulting in sparking and this sparking causing the fire. No reply was given to Ex. 61. According to him this was because it was not necessary to remove the overhead wires. But at least a visit to the site should have been made to assess the merits of the complaint made by the plaintiff. The Company did give a fairly detailed reply on 8-12-1977 which reply is at Ex. 62. But by that time the Company knew that a suit was in the offing. What was mentioned in Ex. 62, with this knowledge cannot be taken as representative of the probable truth. The omission to reply to Ex. 61 coupled with the testimony of an independent person like Krishnamurthi establishes the plaintiffs allegation about the licensee being remiss and this leading to the fire which consumed a fairly sizable portion of Guruprasad Hotel and the articles kept therein. The liability to compensate plaintiff thus rests upon the defendant No. 1. ( 7 ) AS to the quantum, we must say that the evidence is far from satisfactory. The plaint is so worded as to give the impression of plaintiff having suffered much more than the extent to which he has claimed reimbursement. His forbearance is attributed to a desire to persuade the defendants to enter into a compromise. This posture of reasonableness carries no conviction when one reads the deposition of the plaintiff. Here in his examination-in-chief he has claimed Rs. 3,000/- as the loss occasioned to the grinding machine. In cross-examination, plaintiff had admitted that this very grinding machine was purchased by him for Rs. 2,500/ -. If plaintiff could tell lies on so obvious a matter, it is no wonder that his deposition inspires a little credence. P. W. 7 Kapadia carried out a survey. His report is at Ex. 102. Item 1 to 20 given therein are the result of an estimate made by the witness himself. Nothing has been brought out in the cross-examination of Kapadia to disprove his integrity or credentials for making a survey. He frankly admits that the price in regard to Items 21 to 33 rests upon an estimate given to him by the plaintiff. But the damaged articles were shown by the plaintiff to Kapadia, as a trained person disowns the responsibility for the value of the items as claimed by the plaintiff. Be that as it may, except for an exaggeration to the extent of Rs. 1100/- vis--vis a grinding machine the estimate of damage in relation to the remaining items does not appear to be unreasonable. The value of a kerosene stove pressure type was placed at Rs. 1,200/ -. Damage to cup-saucers and show-case was estimated at Rs. 1,600. The edibles lost as a result of the fire were valued at Rs. 800/ -. The glasses damaged were valued at Rs. 300/-, steel dishes at Rs. 2,000/-, other utensils at Rs. 7,000/-, aerated drinks with bottles at Rs. 700/-, outside show-case glass jars at Rs. 3,500, clock with a sunmica box at Rs. 350/- un-utilised raw materials for preparation of edibles at Rs. 3,500/-, a framed photograph of a divine at Rs. 450/- and belongings of servants at Rs. 500/ -. These figures cannot be said to be excessive. Accepting Ex. 102, barring an exaggeration of Rs. 1,100/-, we allow compensation at Rs. 56,900/ -. Plaintiff has claimed Rs. 70,000/- said to represent loss of profits calculated at rate Rs. 2,000/- per month for a period of about 30 to 35 months. Neither plaintiff nor any witness examined by him testifies to the hotel being kept closed for 30 to 35 months and its yielding a profit of Rs. 2,000/- per month when it was in business. Now plaintiffs proneness to exaggerate and tell lies has been established. We will not therefore assume that the fire must have resulted in the closure of the hotel, that the closure lasted for as many as 35 months and that this resulted in a loss of income of Rs. 2,000/- per month. In fact plaintiff himself has not anywhere said that the hotel had to be kept closed, irrespective of the period of the closure. | 1[ds]We have referred to the reasons given by the plaintiff for the joinder of the Board as a party to the suit. The joinder was said to be occasioned because of defendant No. 1 having been taken over by defendant No. 2 and to give a final settlement to theof the suit. There is no pleading that the take over had rendered the Board contractually or statutorily liable for the mishap attributable to the acts and omissions of the Company and at a time when the Board was not in the picture. The matter does not rest there. Plaintiff led no evidence to explain how the Board could be liable for the torts of omission or commission attributable to the company. Defendants examined D. W. 2 Konjari who testified to the compromise reached between the defendants which compromise exonerated defendant No. 2 from any liability incurred by defendant No. 1 prior toThe matter does not restupon the mereof Konjari. He referred to the certified copy of the consent terms reached between the parties which certified copy was at Ex. 127. Witness in his deposition said that certain terms clearly absolved the Board of Liabilities incurred prior toAdvocates representing the Company and the plaintiff did notKonjari. Mr. Shetty representing the plaintiff in this Court tries to get over the difficulty by relying upon (State of Madras v. Madras Electric Tramways) reported in A. I. R. 1957 Madras 169. We fail to see what bearing the decision has upon the point at issue before us. The question can be better approached by a reference to so much of section 7 of The Indian Electricity Act, 1910 as is relevant for a decision on the point. This section says :where an undertaking is sold under section 5 or section 6, then upon the completion of the sale or on the date on which the undertaking is delivered to the intending purchaser under(3) of section 5 or under(6) of section 6, as the case may be, whichever is earlier. (i) the undertaking shall vest in the purchaser or the intending purchaser, as the case may be free from any debt, mortgage or similar obligation of the licensee or attaching to the undertaking; provided that any such debt, mortgage or similar obligation shall attach to the purchase money in substitution for the undertaking. "now, we do not know whether the Board has stepped into the shoes of the Company under a purchase or by virtue of a statutoryIf the Board has been impleaded by the plaintiff as a party to the suit, there ought to have been a pleading as to why this joinder was rendered necessary and what relief was being sought against the Board. No such particulars are forthcoming either in the plaint or the evidence adduced by the plaintiff. So far as section 7 (i) reproduced above is concerned, it speaks of the "purchaser" or the "intending purchaser", as the case may be, not being saddled with any debt, mortgage or similar obligation of the licensee or attaching to the undertaking. That however does not govern the present case where the factual date is totally missing. Mr. Shetty wants a decree which can be executed and not remain a mere paper decree. His fear is that the Company is perhaps not solvent and in all probability has disappeared or is overloaded withdebts and liabilities. Mr. Shetty tries to get over the difficulty by relying upon(ii) of section 7 which reads as follows :"the rights, powers, authorities, duties and obligations of the licensee under his licence shall stand transferred to the purchaser and such purchaser shall be deemed to be the licensee. "for attracting thistwo things are necessary, the first, being that the successor is a "purchaser" and the second that he has taken over the obligations covering all the lapses which have rendered the previous licensee liable under all manner of laws, not excluding that governing tortious liability. Now, so far as the present case is concerned, we do not know whether the Board has come in by way of a purchase or otherwise. Next, the plaintiff has not established what manner of obligations have been passed on to the Board by the Company. So far as the consent terms are concerned, Clause 6 in clear terms exonerates the Board ofliabilities when itdebts, obligations and other liabilities of any character whatsoever including Municipal taxes, sales tax if any, until the Take Over Date shall be paid by the petitioners (that position being occupied by the Company before the Court ). " thedate" has been defined as the midnight between 30th September, 1978 and 1st October, 1978. Here, the tortious act was committed on or beforeand the liability to compensate the plaintiff arose on the said day. The liability was thus prior to thedate and that clearly exonerates the Board. This finding of the trial Court affirmed, we pass on to the crucial issue as to what occasioned the fire on6 ) PLAINTIFFS report given at the police station is not exactly supportive of the stand taken by him in the suit. In Ex. 66 the assertion is that plaintiff learnt of the fire having begun from the top of the ceiling or from the ceiling and that it was due to aThis recital in Ex. 66 is indecipherable though Mr. Shetty has tried to explain it away as an assertion of the fire commencing from the roof of the hotel. Chandrahas is equally unclear about what caused the fire. He is supposed to have climbed over the roof after the fire had been extinguished and then discovering a broken overhead wire. This does not establish anything. Varghese speaks of the closeness of the pole from which the supply was given to the hotel as being the reason for the fire. The credentials of Varghese are not very impressive. He held a diploma in Electrical Engineering and Ex. 94 was the first report by hima mishap by fire. The date on which the report is based seems to rest entirely upon the details passed on to him by the plaintiff. The only credible evidence available is that coming from P. W. 3 Krishnamurthi. Krishnamurthis deposition is fairly detailed and the report given by him at Ex. 84 gives a fair idea of what could have led to the fire. The first important fact appearing in his report is that out of the seven service lines given from the common pole, two such lines were actually touching the roof of Guruprasad Hotel. The next feature of importance mentioned by Krishnamurthi in his report is that the fuse of Guruprasad Hotel was intact. Having taken into consideration the many circumstances Krishnamurthi deduced two possibilities as explaining the fire. The first was the possibility of chock of the tubelight of the catering counter gettingand the leads of the same becoming naked. These leads touched the hard board false ceiling and the J hook which may have led to the fire in the hotel, and this, because the fuse rating was high enough to blow off the consumers fuse. But the consumer fuse was found to be intact by Krishnamurthi which fact has been mentioned in the data portion of the report. The other possibility was of the service line wire touching the roof resulting in a rupture with the J hook holding the roof. This led to arendering the service wire naked and burning the insulation. The burns may have spread to the false ceiling which was of hard board and therefore inflammable. The pole fuse had not been provided and in the concluding portion of his report Krishnamurthi sought a specific order to the Company for providing of pole fuses as required under Rule 31 (2) of the Indian Electricity Rules, 1956. Rule 31 needs to be set out in its entirety to emphasis the importance thereof. It is titled ason consumers premises" and is in three parts reading thus : (1) The supplier shall provide a suitablein each conductor of everyother than an earthed or earthed neutral conductor or the earthed external conductor of a concentric cable within a consumers premises, in an accessible position. Suchshall be contained within an adequately enclosedreceptacle. (2) Where more than one consumer is supplied through a commoneach such consumer shall be provided with an independentat the point of junction to the common service. (3) The owner of every electric supply line, other than the earthed or earthed neutral conductor of any system or the earthed external conductor of a concentric cable, shall protect it by a suitable"krishnamurthis report establishes that there were no pole fuses. This is sought to be explained away by D. W. 1 Joshi. He learnt of the fire through theoperator at about 2. 00 p. m. and to safeguard the line gave instructions for an immediate switch off of the oil circuit breaker so as to terminate the supply of electricity to the entire locality. But Joshi did not make a site inspection and did not keep a note of the instructions given by him to theOperator. The letter at Ex. 61 addressed by the Plaintiff to the Company, onwas brought to his notice. Ex. 61 specifically made a reference to the breaking of the overhead wires resulting in sparking and this sparking causing the fire. No reply was given to Ex. 61. According to him this was because it was not necessary to remove the overhead wires. But at least a visit to the site should have been made to assess the merits of the complaint made by the plaintiff. The Company did give a fairly detailed reply onwhich reply is at Ex. 62. But by that time the Company knew that a suit was in the offing. What was mentioned in Ex. 62, with this knowledge cannot be taken as representative of the probable truth. The omission to reply to Ex. 61 coupled with the testimony of an independent person like Krishnamurthi establishes the plaintiffs allegation about the licensee being remiss and this leading to the fire which consumed a fairly sizable portion of Guruprasad Hotel and the articles kept therein. The liability to compensate plaintiff thus rests upon the defendant No. 1. ( 7 ) AS to the quantum, we must say that the evidence is far from satisfactory. The plaint is so worded as to give the impression of plaintiff having suffered much more than the extent to which he has claimed reimbursement. His forbearance is attributed to a desire to persuade the defendants to enter into a compromise. This posture of reasonableness carries no conviction when one reads the deposition of the plaintiff. Here in hishe has claimed Rs. 3,000/as the loss occasioned to the grinding machine. Inplaintiff had admitted that this very grinding machine was purchased by him for Rs.. If plaintiff could tell lies on so obvious a matter, it is no wonder that his deposition inspires a little credence. P. W. 7 Kapadia carried out a survey. His report is at Ex. 102. Item 1 to 20 given therein are the result of an estimate made by the witness himself. Nothing has been brought out in theof Kapadia to disprove his integrity or credentials for making a survey. He frankly admits that the price in regard to Items 21 to 33 rests upon an estimate given to him by the plaintiff. But the damaged articles were shown by the plaintiff to Kapadia, as a trained person disowns the responsibility for the value of the items as claimed by the plaintiff. Be that as it may, except for an exaggeration to the extent of Rs. 1100/a grinding machine the estimate of damage in relation to the remaining items does not appear to be unreasonable. The value of a kerosene stove pressure type was placed at Rs.. Damage tose was estimated at Rs. 1,600. The edibles lost as a result of the fire were valued at Rs.. The glasses damaged were valued at Rs.steel dishes at Rs.other utensils at Rs.aerated drinks with bottles at Rs.se glass jars at Rs. 3,500, clock with a sunmica box at Rs. 350/raw materials for preparation of edibles at Rs.a framed photograph of a divine at Rs. 450/and belongings of servants at Rs.. These figures cannot be said to be excessive. Accepting Ex. 102, barring an exaggeration of Rs.we allow compensation at Rs.. Plaintiff has claimed Rs. 70,000/said to represent loss of profits calculated at rate Rs. 2,000/per month for a period of about 30 to 35 months. Neither plaintiff nor any witness examined by him testifies to the hotel being kept closed for 30 to 35 months and its yielding a profit of Rs. 2,000/per month when it was in business. Now plaintiffs proneness to exaggerate and tell lies has been established. We will not therefore assume that the fire must have resulted in the closure of the hotel, that the closure lasted for as many as 35 months and that this resulted in a loss of income of Rs. 2,000/per month. In fact plaintiff himself has not anywhere said that the hotel had to be kept closed, irrespective of the period of the closure. | 1 | 3,616 | 2,406 | ### Instruction:
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fuse had not been provided and in the concluding portion of his report Krishnamurthi sought a specific order to the Company for providing of pole fuses as required under Rule 31 (2) of the Indian Electricity Rules, 1956. Rule 31 needs to be set out in its entirety to emphasis the importance thereof. It is titled as "cut-out on consumers premises" and is in three parts reading thus : (1) The supplier shall provide a suitable cut-out in each conductor of every service-line other than an earthed or earthed neutral conductor or the earthed external conductor of a concentric cable within a consumers premises, in an accessible position. Such cut-out shall be contained within an adequately enclosed fire-proof receptacle. (2) Where more than one consumer is supplied through a common service-line, each such consumer shall be provided with an independent cut-out at the point of junction to the common service. (3) The owner of every electric supply line, other than the earthed or earthed neutral conductor of any system or the earthed external conductor of a concentric cable, shall protect it by a suitable cut-out. "krishnamurthis report establishes that there were no pole fuses. This is sought to be explained away by D. W. 1 Joshi. He learnt of the fire through the Switch-board operator at about 2. 00 p. m. and to safeguard the line gave instructions for an immediate switch off of the oil circuit breaker so as to terminate the supply of electricity to the entire locality. But Joshi did not make a site inspection and did not keep a note of the instructions given by him to the Switch-board Operator. The letter at Ex. 61 addressed by the Plaintiff to the Company, on 14-3-1977 was brought to his notice. Ex. 61 specifically made a reference to the breaking of the overhead wires resulting in sparking and this sparking causing the fire. No reply was given to Ex. 61. According to him this was because it was not necessary to remove the overhead wires. But at least a visit to the site should have been made to assess the merits of the complaint made by the plaintiff. The Company did give a fairly detailed reply on 8-12-1977 which reply is at Ex. 62. But by that time the Company knew that a suit was in the offing. What was mentioned in Ex. 62, with this knowledge cannot be taken as representative of the probable truth. The omission to reply to Ex. 61 coupled with the testimony of an independent person like Krishnamurthi establishes the plaintiffs allegation about the licensee being remiss and this leading to the fire which consumed a fairly sizable portion of Guruprasad Hotel and the articles kept therein. The liability to compensate plaintiff thus rests upon the defendant No. 1. ( 7 ) AS to the quantum, we must say that the evidence is far from satisfactory. The plaint is so worded as to give the impression of plaintiff having suffered much more than the extent to which he has claimed reimbursement. His forbearance is attributed to a desire to persuade the defendants to enter into a compromise. This posture of reasonableness carries no conviction when one reads the deposition of the plaintiff. Here in his examination-in-chief he has claimed Rs. 3,000/- as the loss occasioned to the grinding machine. In cross-examination, plaintiff had admitted that this very grinding machine was purchased by him for Rs. 2,500/ -. If plaintiff could tell lies on so obvious a matter, it is no wonder that his deposition inspires a little credence. P. W. 7 Kapadia carried out a survey. His report is at Ex. 102. Item 1 to 20 given therein are the result of an estimate made by the witness himself. Nothing has been brought out in the cross-examination of Kapadia to disprove his integrity or credentials for making a survey. He frankly admits that the price in regard to Items 21 to 33 rests upon an estimate given to him by the plaintiff. But the damaged articles were shown by the plaintiff to Kapadia, as a trained person disowns the responsibility for the value of the items as claimed by the plaintiff. Be that as it may, except for an exaggeration to the extent of Rs. 1100/- vis--vis a grinding machine the estimate of damage in relation to the remaining items does not appear to be unreasonable. The value of a kerosene stove pressure type was placed at Rs. 1,200/ -. Damage to cup-saucers and show-case was estimated at Rs. 1,600. The edibles lost as a result of the fire were valued at Rs. 800/ -. The glasses damaged were valued at Rs. 300/-, steel dishes at Rs. 2,000/-, other utensils at Rs. 7,000/-, aerated drinks with bottles at Rs. 700/-, outside show-case glass jars at Rs. 3,500, clock with a sunmica box at Rs. 350/- un-utilised raw materials for preparation of edibles at Rs. 3,500/-, a framed photograph of a divine at Rs. 450/- and belongings of servants at Rs. 500/ -. These figures cannot be said to be excessive. Accepting Ex. 102, barring an exaggeration of Rs. 1,100/-, we allow compensation at Rs. 56,900/ -. Plaintiff has claimed Rs. 70,000/- said to represent loss of profits calculated at rate Rs. 2,000/- per month for a period of about 30 to 35 months. Neither plaintiff nor any witness examined by him testifies to the hotel being kept closed for 30 to 35 months and its yielding a profit of Rs. 2,000/- per month when it was in business. Now plaintiffs proneness to exaggerate and tell lies has been established. We will not therefore assume that the fire must have resulted in the closure of the hotel, that the closure lasted for as many as 35 months and that this resulted in a loss of income of Rs. 2,000/- per month. In fact plaintiff himself has not anywhere said that the hotel had to be kept closed, irrespective of the period of the closure.
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which fact has been mentioned in the data portion of the report. The other possibility was of the service line wire touching the roof resulting in a rupture with the J hook holding the roof. This led to arendering the service wire naked and burning the insulation. The burns may have spread to the false ceiling which was of hard board and therefore inflammable. The pole fuse had not been provided and in the concluding portion of his report Krishnamurthi sought a specific order to the Company for providing of pole fuses as required under Rule 31 (2) of the Indian Electricity Rules, 1956. Rule 31 needs to be set out in its entirety to emphasis the importance thereof. It is titled ason consumers premises" and is in three parts reading thus : (1) The supplier shall provide a suitablein each conductor of everyother than an earthed or earthed neutral conductor or the earthed external conductor of a concentric cable within a consumers premises, in an accessible position. Suchshall be contained within an adequately enclosedreceptacle. (2) Where more than one consumer is supplied through a commoneach such consumer shall be provided with an independentat the point of junction to the common service. (3) The owner of every electric supply line, other than the earthed or earthed neutral conductor of any system or the earthed external conductor of a concentric cable, shall protect it by a suitable"krishnamurthis report establishes that there were no pole fuses. This is sought to be explained away by D. W. 1 Joshi. He learnt of the fire through theoperator at about 2. 00 p. m. and to safeguard the line gave instructions for an immediate switch off of the oil circuit breaker so as to terminate the supply of electricity to the entire locality. But Joshi did not make a site inspection and did not keep a note of the instructions given by him to theOperator. The letter at Ex. 61 addressed by the Plaintiff to the Company, onwas brought to his notice. Ex. 61 specifically made a reference to the breaking of the overhead wires resulting in sparking and this sparking causing the fire. No reply was given to Ex. 61. According to him this was because it was not necessary to remove the overhead wires. But at least a visit to the site should have been made to assess the merits of the complaint made by the plaintiff. The Company did give a fairly detailed reply onwhich reply is at Ex. 62. But by that time the Company knew that a suit was in the offing. What was mentioned in Ex. 62, with this knowledge cannot be taken as representative of the probable truth. The omission to reply to Ex. 61 coupled with the testimony of an independent person like Krishnamurthi establishes the plaintiffs allegation about the licensee being remiss and this leading to the fire which consumed a fairly sizable portion of Guruprasad Hotel and the articles kept therein. The liability to compensate plaintiff thus rests upon the defendant No. 1. ( 7 ) AS to the quantum, we must say that the evidence is far from satisfactory. The plaint is so worded as to give the impression of plaintiff having suffered much more than the extent to which he has claimed reimbursement. His forbearance is attributed to a desire to persuade the defendants to enter into a compromise. This posture of reasonableness carries no conviction when one reads the deposition of the plaintiff. Here in hishe has claimed Rs. 3,000/as the loss occasioned to the grinding machine. Inplaintiff had admitted that this very grinding machine was purchased by him for Rs.. If plaintiff could tell lies on so obvious a matter, it is no wonder that his deposition inspires a little credence. P. W. 7 Kapadia carried out a survey. His report is at Ex. 102. Item 1 to 20 given therein are the result of an estimate made by the witness himself. Nothing has been brought out in theof Kapadia to disprove his integrity or credentials for making a survey. He frankly admits that the price in regard to Items 21 to 33 rests upon an estimate given to him by the plaintiff. But the damaged articles were shown by the plaintiff to Kapadia, as a trained person disowns the responsibility for the value of the items as claimed by the plaintiff. Be that as it may, except for an exaggeration to the extent of Rs. 1100/a grinding machine the estimate of damage in relation to the remaining items does not appear to be unreasonable. The value of a kerosene stove pressure type was placed at Rs.. Damage tose was estimated at Rs. 1,600. The edibles lost as a result of the fire were valued at Rs.. The glasses damaged were valued at Rs.steel dishes at Rs.other utensils at Rs.aerated drinks with bottles at Rs.se glass jars at Rs. 3,500, clock with a sunmica box at Rs. 350/raw materials for preparation of edibles at Rs.a framed photograph of a divine at Rs. 450/and belongings of servants at Rs.. These figures cannot be said to be excessive. Accepting Ex. 102, barring an exaggeration of Rs.we allow compensation at Rs.. Plaintiff has claimed Rs. 70,000/said to represent loss of profits calculated at rate Rs. 2,000/per month for a period of about 30 to 35 months. Neither plaintiff nor any witness examined by him testifies to the hotel being kept closed for 30 to 35 months and its yielding a profit of Rs. 2,000/per month when it was in business. Now plaintiffs proneness to exaggerate and tell lies has been established. We will not therefore assume that the fire must have resulted in the closure of the hotel, that the closure lasted for as many as 35 months and that this resulted in a loss of income of Rs. 2,000/per month. In fact plaintiff himself has not anywhere said that the hotel had to be kept closed, irrespective of the period of the closure.
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S. S. Light Railway Co., Ltd Vs. Upper Doab Sugar Mills Ltd. & Another | of this generality of language should be cut down for any reason.It is well-settled that a limited interpretation has to be made on words used by the legislature in spite of the generality of the language used where the literal interpretation in the general sense would be so unreasonable or absurd that the legislature should be presumed not to have intended the same.Is there any such reason for cutting down the result of the generality of the language used present here? The answer, in our opinion, must be in the negative. It is true that in many cases stations, sidings, wharves, depots, warehouses, cranes and other similar things will be used and it is arguable that in using the words "in respect of" the legislature had such user in mind. It is well to notice however that the legislature must have been equally aware that whereas in some cases accommodation provided by stations will be used, in some cases sidings will be used, in others wharves, in others warehouses and in other cases cranes, and in certain cases several of these may be used, in most cases there will be no use of all of these. From the practical point of view it is impossible to regulate terminal charges separately in respect of user of each of these several things mentioned. When therefore the legislature authorised the Central Government to fix terminals as defined in S. 3 (14), the intention must have been that the terminals leviable would not depend on how many of these things would be used. It is also worth noticing that the user of a depot, warehouse and cranes would necessarily mean some service rendered "thereat". If terminals did not include charges in respect of the provisions of depots, warehouses and cranes unless these were used, there would be no need of including these in the first portion as they would be covered by the second part of the definition, viz., "of any services rendered thereat". Far from being there any reason to cut down, the consequence of the generality of language used viz., "in respect of, there is thus good ground for thinking that the legislature used this language deliberately to cut across the difficulty of distinguishing in a particular case as to which of these things had been used or whether any of them had been used at all. Innumerable people carry goods over the Railways and many of them, for the purpose of the carriage make use of the stations, sidings, wharves, depots, warehouses, cranes and other similar matters, while many do not. Though at first sight it might seem unreasonable that those who had not used would have to pay the same charge as those who had made use of these, it is obvious that the interminable disputes that would arise between the Railway Administration and the Railway users, if the fact of user of stations, sidings and other things mentioned had to determine the amount payable, would be unhelpful not only to the Railway Administration but also to the using public. The sensible way was therefore to make a charge leviable for the mere provision of these things irrespective of whether any use was made thereof. That was the reason why such wide words "in respect of" was used. We are therefore of opinion that the words "in respect of" used in S. 3 (14) mean "for the provision of" and not "for the user of". 20. It is worth considering in this connection that the definition of "terminal charges" in the Indian Act is a verbatim reproduction of the definition appearing in the English Railway and Canals Traffic Act,, 1888 and that only three years before the English Parliament passed that Act an English Court had held in Hall and Co. v. London, Brighton and South Coast Rly., Co., (1885) 15 QBD 505, that for the purposes of interpretation of section 51 of the London, Brighton, and South Coast Railway Act, 1863 which did not include such a definition of terminal charges, the words "any service incidental to the duty or business of a carrier", does comprise providing such station accommodation and such sidings, and such weighing, checkage and labeling as is incidental to the duty which they undertake, of collecting and dealing with the goods as carriers". It is reasonable to think that the English Parliament in defining "terminal charges" in the Railway and Canals Act, 1889 intended to give effect to this view that provision of station accommodation and sidings entitled the Railway Administration to levy "terminal charges." When the Indian Legislature adopted the same definition in its own Act it is proper to think that it also was aware of the view taken in Halls Case, (1885) 15 QBD 505. This consideration fortifies the conclusion which we have already reached on an examination of the scheme of our own Act, apart from authorities, that the words "in respect of" used in S. 3 (!4) in the definition of "terminal charges" mean "for the provision of" and not "for the user of". 21. The necessary conclusion that follows is that irrespective of the fact of the actual user by any particular consignor of the stations, sidings and other things mentioned in S. 3 (14) "terminal charges" are leviable by reason of the mere fact that these things have been provided by the Railway Administration. The conclusion that necessarily follows therefrom is that the charges of Rs. 4.11 at either end sought to be levied by the Railway Administration in addition to the charges for carriage was "terminal charges" within the meaning of the Railway Act and the proposed levy being in accordance with Government Notification under S. 32 of the Act was nothing more than the application of standardized terminal charges. The Tribunal had therefore no jurisdiction to investigate the reasonableness or otherwise of the same and had no jurisdiction to reduce the same.The order made by the majority of the Tribunal cannot therefore be allowed to stand. | 0[ds]7. In our opinion, the Tribunal (by which we mean the majority of the Tribunal) was wrong in thinking that this was not a case of standardized terminal charges. The first argument which seems to have found favour with the majority and which was repeated here on behalf of the respondent was that while the Government Notification fixed a terminal charge of 6 pies per maund at each end, where loading and unloading is done by the owner, as in the present case, the Railway Company fixed Rs. 9.6 per 4 wheeler as the terminal charge for the two ends together irrespective of the maundage carried. It is obvious that the charge of Rs. 9.6 is equivalent to charge of one anna, the total of 6 pies at each end, per maund on 150 mds. It is urged that it may very well happen that some trucks will carry more than 150 mds. and some less. The fixation of such a lump sum of Rs. 9.6 is, it is contended, not an application of the charges fixed by the Government, but quite a distinct arrangement. In our opinion there is no substance in this contention. It does not appear to be disputed that on an average 200 mds. are carried in each 4 wheeler truck. Exhibit A-6 shows a number of bills for charges for the period February, 1953 to February 10, 1953, for sugarcane carried from these stations to Shamli. The number of trucks for each consignment is mentioned as also the weight carried. In each case we find 200 mds. mentioned as the weight. It is obvious and indeed undisputed that this statement of 200 mds. as the weight is not made on actual weighment but is mentioned on the weight carried on the basis of capacity. As regards the rate for carriage, it is common ground that charge is made per truck and not according to maundage. It also appears to be common ground that this charge is actually calculated on the basis of 150 mds. per truck. We are unable to agree that when the Central Government fixed the charge at so much per maund it was intended that before any such charge could be levied the actual weight should be ascertained by actual weighment. There is nothing to prevent the Railway Company and the consignor from entering into an agreement as to what should be accepted as weight without actual weighment. Once such a fixation is agreed upon the amount calculated on that figure at the rate fixed by Government must be deemed to be the amount properly payable in accordance with the rate fixed by Government. The fact that in some cases less than 150 mds. may be carried in a truck and in other cases more than 150 mds. may be carried does not affect the position that the party who is to pay and the party who is entitled to payment have accepted a particular figure as the weight carried, without actual weighment. When therefore Rs. 9.6 is sought to be levied as the terminal charge being equivalent to 6 pice per maund on 150 mds at each end, it is really an application of the charge fixed by the Central Government8. Nor are we impressed with the argument that the words used in the Local Rate Advice of August 1, 1953, which has been set out above show that a standardized terminal charge was not being levied but some other rate is sought to be levied. It is no doubt true that this Advice quotes "station to station rate"-the amount being then mentioned in two parts, one obviously the rate for carriage, and the second the terminal charge. In fact the words "plus terminal charge" are actually mentioned. The Railway Act has made a clear distinction between the rate and terminal charge. The word "rate" is defined in S. 3 (13) as including "any fare, charge or other payment for the carriage of any passenger, animals or goods; the word "terminals" is defined in clause 14 of the same section as including "charges in respect of stations, sidings, wharves, depots, warehouses, cranes and other similar matters, and of any services, rendered thereat." The word "station to station rate" is defined in S. 46C (g) as meaning "a special reduced rate applicable to a specific commodity booked between two specified stations". The same section also defines "class rate" and "schedule rate". The first being defined as "rate fixed according to the class given to a commodity in the classification of goods" and the second as "the rate lower than the maximum or class rate applied on a commodity basis." We can see no reason for not interpreting the word "rate" used in this section, (46C), as being "any fare charges or other payment for the carriage of any passenger, animals or goods" as defined in S. 3(13). Thus interpreted "station to station rate" in respect of goods will mean only a charge payable for carriage of goods as may be made specially applicable to a specific commodity booked between two specified stations for the carriage of the same. This would not include any charge made in addition to the charge for carriage. It must therefore be held that the words of the Local Advice Order stating the new station to station rate as so much plus "so much for terminal charge" are not strictly accurate. The proper way of giving information to parties concerned would be to state the station to station rate as consisting of the amount mentioned in the first part only-the charge for carriage-and to make a separate announcement as regards terminal charge. This inaccuracy in expression cannot however affect the substance of the matter. The fact that the terminal charge was mentioned as a part of the station to station rate is no reason to think that standardized terminal charges were not being applied14. It is clear therefore that even on the assumption made that on the definition of the terminals in S. 3 (14) no charges are payable unless certain services in addition to carriage are performed by the Railway Company, terminals were leviable in the present case at the Shamli end also and so the foundation for the argument that Rs. 4.11 being charged at the Shamli end was not really a terminal charge but some other charge in the garb of terminal disappearsIt is well-settled that a limited interpretation has to be made on words used by the legislature in spite of the generality of the language used where the literal interpretation in the general sense would be so unreasonable or absurd that the legislature should be presumed not to have intended the same.Is there any such reason for cutting down the result of the generality of the language used present here? The answer, in our opinion, must be in the negative. It is true that in many cases stations, sidings, wharves, depots, warehouses, cranes and other similar things will be used and it is arguable that in using the words "in respect of" the legislature had such user in mind. It is well to notice however that the legislature must have been equally aware that whereas in some cases accommodation provided by stations will be used, in some cases sidings will be used, in others wharves, in others warehouses and in other cases cranes, and in certain cases several of these may be used, in most cases there will be no use of all of these. From the practical point of view it is impossible to regulate terminal charges separately in respect of user of each of these several things mentioned. When therefore the legislature authorised the Central Government to fix terminals as defined in S. 3 (14), the intention must have been that the terminals leviable would not depend on how many of these things would be used. It is also worth noticing that the user of a depot, warehouse and cranes would necessarily mean some service rendered "thereat". If terminals did not include charges in respect of the provisions of depots, warehouses and cranes unless these were used, there would be no need of including these in the first portion as they would be covered by the second part of the definition, viz., "of any services rendered thereat". Far from being there any reason to cut down, the consequence of the generality of language used viz., "in respect of, there is thus good ground for thinking that the legislature used this language deliberately to cut across the difficulty of distinguishing in a particular case as to which of these things had been used or whether any of them had been used at all. Innumerable people carry goods over the Railways and many of them, for the purpose of the carriage make use of the stations, sidings, wharves, depots, warehouses, cranes and other similar matters, while many do not. Though at first sight it might seem unreasonable that those who had not used would have to pay the same charge as those who had made use of these, it is obvious that the interminable disputes that would arise between the Railway Administration and the Railway users, if the fact of user of stations, sidings and other things mentioned had to determine the amount payable, would be unhelpful not only to the Railway Administration but also to the using public. The sensible way was therefore to make a charge leviable for the mere provision of these things irrespective of whether any use was made thereof. That was the reason why such wide words "in respect of" was used. We are therefore of opinion that the words "in respect of" used in S. 3 (14) mean "for the provision of" and not "for the user of"21. The necessary conclusion that follows is that irrespective of the fact of the actual user by any particular consignor of the stations, sidings and other things mentioned in S. 3 (14) "terminal charges" are leviable by reason of the mere fact that these things have been provided by the Railway Administration. The conclusion that necessarily follows therefrom is that the charges of Rs. 4.11 at either end sought to be levied by the Railway Administration in addition to the charges for carriage was "terminal charges" within the meaning of the Railway Act and the proposed levy being in accordance with Government Notification under S. 32 of the Act was nothing more than the application of standardized terminal charges. The Tribunal had therefore no jurisdiction to investigate the reasonableness or otherwise of the same and had no jurisdiction to reduce the same.The order made by the majority of the Tribunal cannot therefore be allowed to stand. | 0 | 6,061 | 1,993 | ### Instruction:
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of this generality of language should be cut down for any reason.It is well-settled that a limited interpretation has to be made on words used by the legislature in spite of the generality of the language used where the literal interpretation in the general sense would be so unreasonable or absurd that the legislature should be presumed not to have intended the same.Is there any such reason for cutting down the result of the generality of the language used present here? The answer, in our opinion, must be in the negative. It is true that in many cases stations, sidings, wharves, depots, warehouses, cranes and other similar things will be used and it is arguable that in using the words "in respect of" the legislature had such user in mind. It is well to notice however that the legislature must have been equally aware that whereas in some cases accommodation provided by stations will be used, in some cases sidings will be used, in others wharves, in others warehouses and in other cases cranes, and in certain cases several of these may be used, in most cases there will be no use of all of these. From the practical point of view it is impossible to regulate terminal charges separately in respect of user of each of these several things mentioned. When therefore the legislature authorised the Central Government to fix terminals as defined in S. 3 (14), the intention must have been that the terminals leviable would not depend on how many of these things would be used. It is also worth noticing that the user of a depot, warehouse and cranes would necessarily mean some service rendered "thereat". If terminals did not include charges in respect of the provisions of depots, warehouses and cranes unless these were used, there would be no need of including these in the first portion as they would be covered by the second part of the definition, viz., "of any services rendered thereat". Far from being there any reason to cut down, the consequence of the generality of language used viz., "in respect of, there is thus good ground for thinking that the legislature used this language deliberately to cut across the difficulty of distinguishing in a particular case as to which of these things had been used or whether any of them had been used at all. Innumerable people carry goods over the Railways and many of them, for the purpose of the carriage make use of the stations, sidings, wharves, depots, warehouses, cranes and other similar matters, while many do not. Though at first sight it might seem unreasonable that those who had not used would have to pay the same charge as those who had made use of these, it is obvious that the interminable disputes that would arise between the Railway Administration and the Railway users, if the fact of user of stations, sidings and other things mentioned had to determine the amount payable, would be unhelpful not only to the Railway Administration but also to the using public. The sensible way was therefore to make a charge leviable for the mere provision of these things irrespective of whether any use was made thereof. That was the reason why such wide words "in respect of" was used. We are therefore of opinion that the words "in respect of" used in S. 3 (14) mean "for the provision of" and not "for the user of". 20. It is worth considering in this connection that the definition of "terminal charges" in the Indian Act is a verbatim reproduction of the definition appearing in the English Railway and Canals Traffic Act,, 1888 and that only three years before the English Parliament passed that Act an English Court had held in Hall and Co. v. London, Brighton and South Coast Rly., Co., (1885) 15 QBD 505, that for the purposes of interpretation of section 51 of the London, Brighton, and South Coast Railway Act, 1863 which did not include such a definition of terminal charges, the words "any service incidental to the duty or business of a carrier", does comprise providing such station accommodation and such sidings, and such weighing, checkage and labeling as is incidental to the duty which they undertake, of collecting and dealing with the goods as carriers". It is reasonable to think that the English Parliament in defining "terminal charges" in the Railway and Canals Act, 1889 intended to give effect to this view that provision of station accommodation and sidings entitled the Railway Administration to levy "terminal charges." When the Indian Legislature adopted the same definition in its own Act it is proper to think that it also was aware of the view taken in Halls Case, (1885) 15 QBD 505. This consideration fortifies the conclusion which we have already reached on an examination of the scheme of our own Act, apart from authorities, that the words "in respect of" used in S. 3 (!4) in the definition of "terminal charges" mean "for the provision of" and not "for the user of". 21. The necessary conclusion that follows is that irrespective of the fact of the actual user by any particular consignor of the stations, sidings and other things mentioned in S. 3 (14) "terminal charges" are leviable by reason of the mere fact that these things have been provided by the Railway Administration. The conclusion that necessarily follows therefrom is that the charges of Rs. 4.11 at either end sought to be levied by the Railway Administration in addition to the charges for carriage was "terminal charges" within the meaning of the Railway Act and the proposed levy being in accordance with Government Notification under S. 32 of the Act was nothing more than the application of standardized terminal charges. The Tribunal had therefore no jurisdiction to investigate the reasonableness or otherwise of the same and had no jurisdiction to reduce the same.The order made by the majority of the Tribunal cannot therefore be allowed to stand.
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word "rate" used in this section, (46C), as being "any fare charges or other payment for the carriage of any passenger, animals or goods" as defined in S. 3(13). Thus interpreted "station to station rate" in respect of goods will mean only a charge payable for carriage of goods as may be made specially applicable to a specific commodity booked between two specified stations for the carriage of the same. This would not include any charge made in addition to the charge for carriage. It must therefore be held that the words of the Local Advice Order stating the new station to station rate as so much plus "so much for terminal charge" are not strictly accurate. The proper way of giving information to parties concerned would be to state the station to station rate as consisting of the amount mentioned in the first part only-the charge for carriage-and to make a separate announcement as regards terminal charge. This inaccuracy in expression cannot however affect the substance of the matter. The fact that the terminal charge was mentioned as a part of the station to station rate is no reason to think that standardized terminal charges were not being applied14. It is clear therefore that even on the assumption made that on the definition of the terminals in S. 3 (14) no charges are payable unless certain services in addition to carriage are performed by the Railway Company, terminals were leviable in the present case at the Shamli end also and so the foundation for the argument that Rs. 4.11 being charged at the Shamli end was not really a terminal charge but some other charge in the garb of terminal disappearsIt is well-settled that a limited interpretation has to be made on words used by the legislature in spite of the generality of the language used where the literal interpretation in the general sense would be so unreasonable or absurd that the legislature should be presumed not to have intended the same.Is there any such reason for cutting down the result of the generality of the language used present here? The answer, in our opinion, must be in the negative. It is true that in many cases stations, sidings, wharves, depots, warehouses, cranes and other similar things will be used and it is arguable that in using the words "in respect of" the legislature had such user in mind. It is well to notice however that the legislature must have been equally aware that whereas in some cases accommodation provided by stations will be used, in some cases sidings will be used, in others wharves, in others warehouses and in other cases cranes, and in certain cases several of these may be used, in most cases there will be no use of all of these. From the practical point of view it is impossible to regulate terminal charges separately in respect of user of each of these several things mentioned. When therefore the legislature authorised the Central Government to fix terminals as defined in S. 3 (14), the intention must have been that the terminals leviable would not depend on how many of these things would be used. It is also worth noticing that the user of a depot, warehouse and cranes would necessarily mean some service rendered "thereat". If terminals did not include charges in respect of the provisions of depots, warehouses and cranes unless these were used, there would be no need of including these in the first portion as they would be covered by the second part of the definition, viz., "of any services rendered thereat". Far from being there any reason to cut down, the consequence of the generality of language used viz., "in respect of, there is thus good ground for thinking that the legislature used this language deliberately to cut across the difficulty of distinguishing in a particular case as to which of these things had been used or whether any of them had been used at all. Innumerable people carry goods over the Railways and many of them, for the purpose of the carriage make use of the stations, sidings, wharves, depots, warehouses, cranes and other similar matters, while many do not. Though at first sight it might seem unreasonable that those who had not used would have to pay the same charge as those who had made use of these, it is obvious that the interminable disputes that would arise between the Railway Administration and the Railway users, if the fact of user of stations, sidings and other things mentioned had to determine the amount payable, would be unhelpful not only to the Railway Administration but also to the using public. The sensible way was therefore to make a charge leviable for the mere provision of these things irrespective of whether any use was made thereof. That was the reason why such wide words "in respect of" was used. We are therefore of opinion that the words "in respect of" used in S. 3 (14) mean "for the provision of" and not "for the user of"21. The necessary conclusion that follows is that irrespective of the fact of the actual user by any particular consignor of the stations, sidings and other things mentioned in S. 3 (14) "terminal charges" are leviable by reason of the mere fact that these things have been provided by the Railway Administration. The conclusion that necessarily follows therefrom is that the charges of Rs. 4.11 at either end sought to be levied by the Railway Administration in addition to the charges for carriage was "terminal charges" within the meaning of the Railway Act and the proposed levy being in accordance with Government Notification under S. 32 of the Act was nothing more than the application of standardized terminal charges. The Tribunal had therefore no jurisdiction to investigate the reasonableness or otherwise of the same and had no jurisdiction to reduce the same.The order made by the majority of the Tribunal cannot therefore be allowed to stand.
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Union Of India And Others Vs. Maharaja Krishnagarh Mills Ltd.(In Liquidation) | ground that "federal sources of revenue" include the duty of excise in question. It is also clear that all outstanding dues from assessees including pending assessment and arrears have been by the terms of the agreement made over to the Centre. This agreement, as the preamble itself indicates, has been made in accordance with the provisions of Arts. 278 and 295 of the Constitution. The relevant portions of Art 278 are as under :-"278. (1) Notwithstanding anything in this Constitution, the Government of India, may, subject to the provisions of clause (2), enter into an agreement with the Government of a State specified in Part B of the First Schedule with respect to -(a) the levy and collection of any tax or duty leviable by the Government of India in such State and for the distribution of the proceeds thereof otherwise than in accordance with the provisions of this Chapter: ........and, when agreement is so entered into, the provisions of this Chapter shall in relation to such State have effect subject to the terms of such agreement."It is noteworthy that the provisions of Art. 278 override pro tanto other provisions of the Constitution including Art. 277 and the terms of the agreement override the provisions of the Chapter, namely Chapter I of Part XII. In this Chapter are contained Arts. 264 to 291. Thus, on a construction of the provisions of Arts. 277 and 278 it is clear that in the absence of any agreement between the Government of India and the Government of a State specified in Part B, duties of custom which immediately before the commencement of the Constitution were being lawfully levied by the Government of such a State continue to be levied by that State until provision to the contrary is made by Parliament by law, notwithstanding that such a duty is mentioned in the Union List. Article 277, therefore, is in the nature of a saving provision permitting the States to levy a tax or a duty which, after the Constitution, could be levied only by the Centre. But Art 277 must yield to any agreement made between the Government of India and the Government of a State in Part B in respect of such taxes or duties etc. The provision to the contrary contemplated by Article 277 was made by the Finance Act, XXV of 1950, S. 11, which extended the Central Excises and Salt Act, 1944, along with other Acts to the whole of India except the State of Jammu and Kashmir. But that section has effect only from April 1, 1950 and therefore does not apply to the arrears of duty of excise now in controversy. The agreement envisaged by Art. 278 was entered into as aforesaid on February 25, 1950.That agreement conceded to the Centre the right to levy and collect the arrears of the duty in question. The reasons given by the High Court for the conclusion that in spite of Art. 278 read with the agreement aforesaid, the Union Government was not entitled to realise the arrears - (1) that the agreement does not contain any specific provision about levy and collection of cotton excise duty in Rajasthan, (2) that the mere approval in the agreement of the principles set out in the report is not enough in view of Art. 277 which made a distinctly different provision from that contemplated in the report and (3) that the agreement could be only with respect to a duty which was leviable by the Government of India. In our opinion, none of these reasons aforesaid can stand in the way of the Union of India. Though the agreement does not in terms refer to levy and collection of cotton excise duty in Rajasthan, as a "federal source of revenue", is also covered by the agreement. Nor is it correct to say that the agreement read with the report is not enough to override the provisions of Art. 277. The agreement read with Art. 278, as already indicated, in terms, overrides the provisions of Art. 277. The only other reason which weighed with the High Court in getting over the terms of Art. 278 cannot also hold good. That a duty of the kind now in controversy on the date of the agreement after coming into force of the Constitution is leviable only be the Government of India even in respect of the State of Rajasthan is clear beyond all doubt. The Union List only, namely, entry 84 in the Seventh Schedule, authorises the levy and collection of the duty in question. Neither the State List, List II, nor the Concurrent List, List III, contains any such authorisation. It is true that Art. 277 has saved, for the time being, until Parliament made a provision to the contrary, the power of the State of Rajasthan to levy such a duty, but that is only a saving provision, in terms subject to the provisions of Art. 278. Thus, the combined operation of Arts. 277 and 278 read with the agreement vests the power of levy and collection of the duty in the Union of India. It is only in the absence of an agreement like the one we have in this case that the Rajasthan Government could continue to levy and collect the duty in question. The agreement between the two Governments completely displaced the operation of Art. 277 in regard inter alia to the levy of this duty so far as the State of Rajasthan in concerned. It is clear, therefore, that the High Court was in error in holding that Art. 277 was any answer to the claim of the Government of India and should override the provisions of Art. 278 read with the agreement. On a proper construction of these provisions, in our opinion, the result is just to the contrary. In this view of the matter, it is not necessary to consider the other arguments advanced on behalf of the appellants, whether Art. 295 should prevail over Art. 277. | 1[ds]It is, therefore, necessary for us first to determine that controversy. At the outset, it may be mentioned that the writ petition filed by the respondent in the High Court under Art, 226 of the Constitution did not allege any facts bearing on this part of the controversy. Thus, there was no foundation laid in the pleadings for a contention that the Rules aforesaid had not been promulgated on a proper authentication. As already indicated the petition was founded only on the lack of power in the Union Government to levy and collect the excise duty with reference to the provisions of the Central Excise and Salt Act of 1944 and the Rules framed thereunder. There is no reference to the provisions of Ordinance 25 of 1949 promulgated by the Rajasthan Government. It was only in the reply to the writ petition made by the respondent in the High Court that reliance was placed upon the said Ordinance and the Rules framed thereunder. We do not find any pleadings, or any petition by way of amendment of the pleadings, in the record of this case raising the contention that the Rules framed under the Ordinance aforesaid had not been promulgated on a proper authentication. The High Court, therefore, on the face of the pleadings, was not justified in permitting the petitioner before it to raise this contention, but our decision need not be rested on the lack of pleadingsauthority that promulgated the rules having intended the signature of the Law Secretary appearing at the beginning of the publication as an authentication of the rules, we are of opinion that the formal requirements of S. 8(2) of the Ordinance 5 of 1949 were satisfied. Whether the authentication appears in the beginning of the notification or at the end of it is not material so long as it is clear on a reference to the publication in the Gazette that the matter is substantially covered by the authentication, whether appearing at the beginning or the end of the notification. The High Court, therefore, was in error in coming to the conclusion that the authentication covered the Ordinance proper without the Rules framed thereunder. The correct conclusion from the record as it stands is that the authentication covers the entire notification including both the Ordinance proper and the Rules framed thereunder which became parts of theagreement envisaged by Art. 278 was entered into as aforesaid on February 25, 1950.That agreement conceded to the Centre the right to levy and collect the arrears of the duty in question. The reasons given by the High Court for the conclusion that in spite of Art. 278 read with the agreement aforesaid, the Union Government was not entitled to realise the arrears - (1) that the agreement does not contain any specific provision about levy and collection of cotton excise duty in Rajasthan, (2) that the mere approval in the agreement of the principles set out in the report is not enough in view of Art. 277 which made a distinctly different provision from that contemplated in the report and (3) that the agreement could be only with respect to a duty which was leviable by the Government of India. In our opinion, none of these reasons aforesaid can stand in the way of the Union of India. Though the agreement does not in terms refer to levy and collection of cotton excise duty in Rajasthan, as a "federal source of revenue", is also covered by the agreement. Nor is it correct to say that the agreement read with the report is not enough to override the provisions of Art. 277. The agreement read with Art. 278, as already indicated, in terms, overrides the provisions of Art. 277. The only other reason which weighed with the High Court in getting over the terms of Art. 278 cannot also hold good. That a duty of the kind now in controversy on the date of the agreement after coming into force of the Constitution is leviable only be the Government of India even in respect of the State of Rajasthan is clear beyond all doubt. The Union List only, namely, entry 84 in the Seventh Schedule, authorises the levy and collection of the duty in question. Neither the State List, List II, nor the Concurrent List, List III, contains any such authorisation. It is true that Art. 277 has saved, for the time being, until Parliament made a provision to the contrary, the power of the State of Rajasthan to levy such a duty, but that is only a saving provision, in terms subject to the provisions of Art. 278. Thus, the combined operation of Arts. 277 and 278 read with the agreement vests the power of levy and collection of the duty in the Union of India. It is only in the absence of an agreement like the one we have in this case that the Rajasthan Government could continue to levy and collect the duty in question. The agreement between the two Governments completely displaced the operation of Art. 277 in regard inter alia to the levy of this duty so far as the State of Rajasthan in concerned. It is clear, therefore, that the High Court was in error in holding that Art. 277 was any answer to the claim of the Government of India and should override the provisions of Art. 278 read with the agreement. On a proper construction of these provisions, in our opinion, the result is just to the contrary. In this view of the matter, it is not necessary to consider the other arguments advanced on behalf of the appellants, whether Art. 295 should prevail over Art. 277. | 1 | 4,296 | 1,048 | ### Instruction:
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ground that "federal sources of revenue" include the duty of excise in question. It is also clear that all outstanding dues from assessees including pending assessment and arrears have been by the terms of the agreement made over to the Centre. This agreement, as the preamble itself indicates, has been made in accordance with the provisions of Arts. 278 and 295 of the Constitution. The relevant portions of Art 278 are as under :-"278. (1) Notwithstanding anything in this Constitution, the Government of India, may, subject to the provisions of clause (2), enter into an agreement with the Government of a State specified in Part B of the First Schedule with respect to -(a) the levy and collection of any tax or duty leviable by the Government of India in such State and for the distribution of the proceeds thereof otherwise than in accordance with the provisions of this Chapter: ........and, when agreement is so entered into, the provisions of this Chapter shall in relation to such State have effect subject to the terms of such agreement."It is noteworthy that the provisions of Art. 278 override pro tanto other provisions of the Constitution including Art. 277 and the terms of the agreement override the provisions of the Chapter, namely Chapter I of Part XII. In this Chapter are contained Arts. 264 to 291. Thus, on a construction of the provisions of Arts. 277 and 278 it is clear that in the absence of any agreement between the Government of India and the Government of a State specified in Part B, duties of custom which immediately before the commencement of the Constitution were being lawfully levied by the Government of such a State continue to be levied by that State until provision to the contrary is made by Parliament by law, notwithstanding that such a duty is mentioned in the Union List. Article 277, therefore, is in the nature of a saving provision permitting the States to levy a tax or a duty which, after the Constitution, could be levied only by the Centre. But Art 277 must yield to any agreement made between the Government of India and the Government of a State in Part B in respect of such taxes or duties etc. The provision to the contrary contemplated by Article 277 was made by the Finance Act, XXV of 1950, S. 11, which extended the Central Excises and Salt Act, 1944, along with other Acts to the whole of India except the State of Jammu and Kashmir. But that section has effect only from April 1, 1950 and therefore does not apply to the arrears of duty of excise now in controversy. The agreement envisaged by Art. 278 was entered into as aforesaid on February 25, 1950.That agreement conceded to the Centre the right to levy and collect the arrears of the duty in question. The reasons given by the High Court for the conclusion that in spite of Art. 278 read with the agreement aforesaid, the Union Government was not entitled to realise the arrears - (1) that the agreement does not contain any specific provision about levy and collection of cotton excise duty in Rajasthan, (2) that the mere approval in the agreement of the principles set out in the report is not enough in view of Art. 277 which made a distinctly different provision from that contemplated in the report and (3) that the agreement could be only with respect to a duty which was leviable by the Government of India. In our opinion, none of these reasons aforesaid can stand in the way of the Union of India. Though the agreement does not in terms refer to levy and collection of cotton excise duty in Rajasthan, as a "federal source of revenue", is also covered by the agreement. Nor is it correct to say that the agreement read with the report is not enough to override the provisions of Art. 277. The agreement read with Art. 278, as already indicated, in terms, overrides the provisions of Art. 277. The only other reason which weighed with the High Court in getting over the terms of Art. 278 cannot also hold good. That a duty of the kind now in controversy on the date of the agreement after coming into force of the Constitution is leviable only be the Government of India even in respect of the State of Rajasthan is clear beyond all doubt. The Union List only, namely, entry 84 in the Seventh Schedule, authorises the levy and collection of the duty in question. Neither the State List, List II, nor the Concurrent List, List III, contains any such authorisation. It is true that Art. 277 has saved, for the time being, until Parliament made a provision to the contrary, the power of the State of Rajasthan to levy such a duty, but that is only a saving provision, in terms subject to the provisions of Art. 278. Thus, the combined operation of Arts. 277 and 278 read with the agreement vests the power of levy and collection of the duty in the Union of India. It is only in the absence of an agreement like the one we have in this case that the Rajasthan Government could continue to levy and collect the duty in question. The agreement between the two Governments completely displaced the operation of Art. 277 in regard inter alia to the levy of this duty so far as the State of Rajasthan in concerned. It is clear, therefore, that the High Court was in error in holding that Art. 277 was any answer to the claim of the Government of India and should override the provisions of Art. 278 read with the agreement. On a proper construction of these provisions, in our opinion, the result is just to the contrary. In this view of the matter, it is not necessary to consider the other arguments advanced on behalf of the appellants, whether Art. 295 should prevail over Art. 277.
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It is, therefore, necessary for us first to determine that controversy. At the outset, it may be mentioned that the writ petition filed by the respondent in the High Court under Art, 226 of the Constitution did not allege any facts bearing on this part of the controversy. Thus, there was no foundation laid in the pleadings for a contention that the Rules aforesaid had not been promulgated on a proper authentication. As already indicated the petition was founded only on the lack of power in the Union Government to levy and collect the excise duty with reference to the provisions of the Central Excise and Salt Act of 1944 and the Rules framed thereunder. There is no reference to the provisions of Ordinance 25 of 1949 promulgated by the Rajasthan Government. It was only in the reply to the writ petition made by the respondent in the High Court that reliance was placed upon the said Ordinance and the Rules framed thereunder. We do not find any pleadings, or any petition by way of amendment of the pleadings, in the record of this case raising the contention that the Rules framed under the Ordinance aforesaid had not been promulgated on a proper authentication. The High Court, therefore, on the face of the pleadings, was not justified in permitting the petitioner before it to raise this contention, but our decision need not be rested on the lack of pleadingsauthority that promulgated the rules having intended the signature of the Law Secretary appearing at the beginning of the publication as an authentication of the rules, we are of opinion that the formal requirements of S. 8(2) of the Ordinance 5 of 1949 were satisfied. Whether the authentication appears in the beginning of the notification or at the end of it is not material so long as it is clear on a reference to the publication in the Gazette that the matter is substantially covered by the authentication, whether appearing at the beginning or the end of the notification. The High Court, therefore, was in error in coming to the conclusion that the authentication covered the Ordinance proper without the Rules framed thereunder. The correct conclusion from the record as it stands is that the authentication covers the entire notification including both the Ordinance proper and the Rules framed thereunder which became parts of theagreement envisaged by Art. 278 was entered into as aforesaid on February 25, 1950.That agreement conceded to the Centre the right to levy and collect the arrears of the duty in question. The reasons given by the High Court for the conclusion that in spite of Art. 278 read with the agreement aforesaid, the Union Government was not entitled to realise the arrears - (1) that the agreement does not contain any specific provision about levy and collection of cotton excise duty in Rajasthan, (2) that the mere approval in the agreement of the principles set out in the report is not enough in view of Art. 277 which made a distinctly different provision from that contemplated in the report and (3) that the agreement could be only with respect to a duty which was leviable by the Government of India. In our opinion, none of these reasons aforesaid can stand in the way of the Union of India. Though the agreement does not in terms refer to levy and collection of cotton excise duty in Rajasthan, as a "federal source of revenue", is also covered by the agreement. Nor is it correct to say that the agreement read with the report is not enough to override the provisions of Art. 277. The agreement read with Art. 278, as already indicated, in terms, overrides the provisions of Art. 277. The only other reason which weighed with the High Court in getting over the terms of Art. 278 cannot also hold good. That a duty of the kind now in controversy on the date of the agreement after coming into force of the Constitution is leviable only be the Government of India even in respect of the State of Rajasthan is clear beyond all doubt. The Union List only, namely, entry 84 in the Seventh Schedule, authorises the levy and collection of the duty in question. Neither the State List, List II, nor the Concurrent List, List III, contains any such authorisation. It is true that Art. 277 has saved, for the time being, until Parliament made a provision to the contrary, the power of the State of Rajasthan to levy such a duty, but that is only a saving provision, in terms subject to the provisions of Art. 278. Thus, the combined operation of Arts. 277 and 278 read with the agreement vests the power of levy and collection of the duty in the Union of India. It is only in the absence of an agreement like the one we have in this case that the Rajasthan Government could continue to levy and collect the duty in question. The agreement between the two Governments completely displaced the operation of Art. 277 in regard inter alia to the levy of this duty so far as the State of Rajasthan in concerned. It is clear, therefore, that the High Court was in error in holding that Art. 277 was any answer to the claim of the Government of India and should override the provisions of Art. 278 read with the agreement. On a proper construction of these provisions, in our opinion, the result is just to the contrary. In this view of the matter, it is not necessary to consider the other arguments advanced on behalf of the appellants, whether Art. 295 should prevail over Art. 277.
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Harihar Prasad Singh And Another Vs. Must. Of Munshi Nath Prasadand Others | both those sections.15. In 97 Ind Cas 852 (Pat) (G), the suit was by a mortgagor after redemption to recover possession of lands, which had been leased by the mortgagee. The proprietor claimed that the lands were zirait; but the finding, however, was that they were raiyat lands, and that the mortgagee had inducted tenants into possession in the usual course of management. It was held that the tenants could not be ejected. The decision was expressly based on the fact that the lands were raiyati lands, and the learned Judges distinguished the cases in the learned Judges distinguished the cases in - Mahadeo Prasad v. Gajendhar Prasad, AIR 1924 Pat 362 (J) and - Jogeshwar Mazumdar v. Abed Mahomed Sirkar, 3 Cal WN 13 (K) on the ground that the lands which were the subject of mortgage therein were zerait lands. This decision does not support the broad proposition for which the respondents contend, and is really against them, as the mortgage in the present case is of kamat lands.16. In AIR 1930 Cal 738 (H), the facts were similar to those in 97 Ind Cas 852 (Pat) (G), except that the lands do not appear to have been raiyati lands. In holding that the mortgagor was not entitled to possession, Guha J. observed that the mortgage deed did not stand in the way of the tenants being settled by the mortgagee, and that whey they were so settled they had well defined rights under the Act, and could not be ejected. If S. 5(3) of the Act did not apply - and it would not, unless the letting was by the proprietor or tenure-holder - it is not stated what other provision of law operated to confer occupancy rights on the tenant. The learned Judge then referred to - Binad Lala Pakrashi v. Kalu Pramanik, 20 Cal 708 (L) as furnishing the principle on which the decision should rest. There, a tenant was put into possession by a person who claimed to be the proprietor, and though it subsequently turned out that he was not, it was held that the letting by him conferred on the tenant the status of a raiyat. As pointed out in - Peary Mohan Mondal v. Radhika Moham Hazra, 8 Cal WN 315 (M) and - Krishna Nath v. Mohomed Wafiz, AIR 1916 Cal 598 (N), the basis of the decision in 20 Cal 708 (L) was that the word "proprietor" in S. 5(3) would include a de facto as well as a de jure proprietor, and a tenant who is bona fide inducted into possession by him would have the status of a raiyat. This decision makes an inroad on the general principle that no one can confer a better right than what he has got, and later decisions have generally shown a disposition to confine its application within narrow limits. But even on its own ground, it can have no application when the person who admits a tenant is not, as required by S. 5(3), a proprietor de facto or de jure, but a mortgagee. The principle of the decision in 20 Cal 708 (L) does not therefore support the conclusion in AIR 1930 Cal 738 (H) that a tenant admitted by a mortgagee into possession acquires the status of a raiyat.17. In AIR 1937 Cal 763 (I), a permanent lease was granted by a mortgagee after he had obtained a decree for foreclosure. Subsequently, that decree was recalled in a suit by the Official Receiver representing one of the mortgagors and a fresh decree for redemption was passed. After redemption, the Official Receiver received rent from the lessee treating him as a tenant on the land. A transferee from the Official Receiver having subsequently instituted as suit in ejectment against the tenant, it was held that the latter had acquired a right of occupancy under S. 21 of the Act, and that the relief for khas possession could not be granted as against him. Notwithstanding that some of the observations in the judgment are widely expressed, the ground of the decision really is that when the Official Receiver accepted rent from the tenant, that amounted to an affirmance of the lease by him, and that would have the effect of bringing S. 5(3) directly into play and conferring on the tenant the status of a raiyat. The decisions discussed above do not lay down any acceptable principle that the lease by a mortgagee which is protected by S. 76(a), T. P. Act, operates by itself to confer a right of occupancy on the tenant under S. 21 of the Act.18. Some argument was founded by the respondents on the clause in Exhibits 2 and 3 that the mortgagee could get the lands cultivated. It was contended that this clause conferred authority on the mortgagee to settle raiyats on the lands, and that the tenants admitted in pursuance of this authority would be in the same position as if they had been admitted by the proprietor and the conditions of S. 5(3) would be satisfied. But then, the lands are private lands, and the clause in question is followed by the provision that on redemption the mortgagors would be entitled to resume "sir and khas possession", and that would be rendered nugatory if the deed is construed as authorising the mortgagees to settle tenants on the lands with the status of raiyats. The authority to get lands cultivated can only mean getting them cultivated through hired labour as contemplated in the definition of private lands. We are clearly of opinion that the mortgage deed conferred no authority on the mortgagees to admit tenants so as the confer on them rights of occupancy.19. In the result, we must hold that the defendants of the second party have failed to establish that they have any rights of occupancy over the suit lands, and that the plaintiffs are accordingly entitled to a decree in ejectment, with future mesne profits as claimed in the plaint. | 1[ds]These recitals are of considerable importance, as they occur in deeds inter-parties.The respondents are right in contending that they cannot be regarded as admissions by the mortgagees as the deeds were executed by the mortgagors; but they are certainly admissible under S. 13, Evidence Act, as assertions of title and as it is under these documents that the first party defendants claim, their probative value as against them and as against the second party defendants who claim under them is1(b) is a simple mortgage executed by Firangi Rai and others on 21-12-1901 in favour of one Chhotu Singh over some properties forming part of the suit lands. It also contains the recital that these properties are kamat khudkasht lands.They simply trust to the presumptions in their favour enacted in Ss. 120(2) and 103-B of the Act to non-suit the plaintiffs. But these are rebuttable presumptions, and they have, in our opinion, been rebutted by the evidence in the suit, which is all oneargument proceeds on a misconception about the true scope of S. 120. That section does not enact that no land shall be recorded as private, unless it is proved to have been cultivated as private land for 12 years prior to the date of theonly provides that when that is proved, it shall be recorded as private land. But when not such evidence is forthcoming, it does not preclude that fact from being established by "any other evidence that may be produced", if that is relevant and admissible under the provisions of the Evidencethe reasons already given, we are of opinion that it is sufficient to justify a finding in theA-1 and A-1(1) are certified copies of the objection petitions stated to have been filed by the mortgagors under S. 103-A of the Act, and they purport to have been signed by one Chulai Mahto as karpardaz of some of theplaintiffs deny the genuineness of the signatures in Exhibits A-1 and A-1(1) and also the authority of Chulai Mahto to represent the mortgagors. There is no evidence that the signatures on Exhibits A-1 and A-1(1) are true, but the defendants rely on the presumption enacted in S. 90, Evidence Act, in favour of theiris again to be noted that the objection on the merits raised in Exhibits A-1 and A-1(1) that the lands are bakasht lands in the possession of mortgagees is not one which it was to the interests of the mortgagors to put forward, as, if accepted, it would preclude them from admitting tenants in respect of them, without conferring on them the status of settled raiyats and occupancy rights under S. 21 of thewas only if the lands were private lands that the proprietor would be entitled to cultivate them personally, and that was the claim which they had been making consistently from 1893 onwards. The claim put forward in Exhibits A-1 and A-1(1) is destructive of the rights claimed all along by the mortgagors, and amounts to an admission that the lands are not private and raises the doubt that the petitions were not really inspired byrecitals in the lease deed, Exhibit 2(a) which was executed by the defendants of the second party, were inconsistent with their claim that the lands wereis, therefore, must to be said for the contention of the appellants that the proceedings evidenced by Exhibits A-1 and A-1 (1) were collusive inplaintiffs who claim that the lands are kamat have to establish it by clear and satisfactory evidence. If the evidence adduced by them is sufficient, as we have held it is, to establish it, the presumption under S. 103-B equally with that under S. 120(2) becomes displaced. In the result, we are of opinion that the suit lands are the private lands of thethe present case, the tenants got into possession under Exhibit 2(a), which was a lease for two years, and they would therefore be precluded from acquiring occupancy rights by virtue of thatpoint has not been argued whether, as Exhibit 2(a) is an agricultural lease the tenants who held over after the expiry of the period fixed therein, should not be considered to hold as tenants from year to year, on the principle enacted in Ss. 106 andmortgagee is no doubt the transferee of an interest in immovable property, and may in a loose sense be said to be the owner of that interest. But the definition of a proprietor requires that he should own the estate or part thereof and not merely an interest therein. It would be a contradiction in terms to say of a mortgagee that he owns the estate over which he owns anquestion whether for purposes of S. 21 of the Act a tenant from a mortgagee can be held to be a raiyat as defined in section 5(3) was considered by this Court in - Mahabir Gope v. Harbans Narian Singh, AIR 1952 SC 205 at p. 207 (F), and it was held that a mortgagee is neither a proprietor nor a tenure-holder, and a tenant inducted by him on the lands is not a raiyat within the definition of those terms under the Act. That decision governs this case.The contention of the respondents that the mortgagees could be considered as tenure-holders within S. 5(3) is equally untenable. Section 5(1) defines a tenure-holder as meaning a person who has acquired a right to hold lands for collecting rents or for bringing them into cultivation by establishing tenants thereon. In the present case, the lands were under the personal cultivation of the mortgagors at the time when they were mortgaged under Exhibits 2 and 3. There were then no raiyats on the land and no question of transferring the right to collect rent fromthat clause would apply only if the lands had to be brought afresh under cultivation, and that was not the position here. As the mortgagees are neither proprietors nor tenure-holders as defined in the Act, the tenants holding under them could not claim to be raiyats as defined in Ss. 5(2) and 5(3), and no occupancy rights could therefore be acquired by them under section 21 of theargument proceeds on a confusion of two wholly independent concepts distinct in their origin and different in their legalthe present case, assuming that the mortgagees had the power under S. 76(a), T. P. Act, to continue the lessees under Exhibit 2(a) as tenants on the lands after the termination of the period fixed therein, that would confer on them at best the status of tenants from year to year and not given them the right to continue in possession after the termination of the agricultural year during which the redemption takesthis view, the power of the mortgagee under S. 76(a), T. P. Act, to induct tenants in the usual course of management would not avail the respondents to claim occupancy rights over theif the respondents cannot resist the suit for ejectment either by reason of S. 76(a), T. P. Act, or S. 21, Bihar Tenancy Act, it is difficult to see how they could get such a right as the result of the interaction of both thosedecision does not support the broad proposition for which the respondents contend, and is really against them, as the mortgage in the present case is of kamatprinciple of the decision in 20 Cal 708 (L) does not therefore support the conclusion in AIR 1930 Cal 738 (H) that a tenant admitted by a mortgagee into possession acquires the status of adecisions discussed above do not lay down any acceptable principle that the lease by a mortgagee which is protected by S. 76(a), T. P. Act, operates by itself to confer a right of occupancy on the tenant under S. 21 of thethen, the lands are private lands, and the clause in question is followed by the provision that on redemption the mortgagors would be entitled to resume "sir and khas possession", and that would be rendered nugatory if the deed is construed as authorising the mortgagees to settle tenants on the lands with the status ofauthority to get lands cultivated can only mean getting them cultivated through hired labour as contemplated in the definition of private lands. We are clearly of opinion that the mortgage deed conferred no authority on the mortgagees to admit tenants so as the confer on them rights of occupancy.19. In the result, we must hold that the defendants of the second party have failed to establish that they have any rights of occupancy over the suit lands, and that the plaintiffs are accordingly entitled to a decree in ejectment, with future mesne profits as claimed in the | 1 | 6,141 | 1,604 | ### Instruction:
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both those sections.15. In 97 Ind Cas 852 (Pat) (G), the suit was by a mortgagor after redemption to recover possession of lands, which had been leased by the mortgagee. The proprietor claimed that the lands were zirait; but the finding, however, was that they were raiyat lands, and that the mortgagee had inducted tenants into possession in the usual course of management. It was held that the tenants could not be ejected. The decision was expressly based on the fact that the lands were raiyati lands, and the learned Judges distinguished the cases in the learned Judges distinguished the cases in - Mahadeo Prasad v. Gajendhar Prasad, AIR 1924 Pat 362 (J) and - Jogeshwar Mazumdar v. Abed Mahomed Sirkar, 3 Cal WN 13 (K) on the ground that the lands which were the subject of mortgage therein were zerait lands. This decision does not support the broad proposition for which the respondents contend, and is really against them, as the mortgage in the present case is of kamat lands.16. In AIR 1930 Cal 738 (H), the facts were similar to those in 97 Ind Cas 852 (Pat) (G), except that the lands do not appear to have been raiyati lands. In holding that the mortgagor was not entitled to possession, Guha J. observed that the mortgage deed did not stand in the way of the tenants being settled by the mortgagee, and that whey they were so settled they had well defined rights under the Act, and could not be ejected. If S. 5(3) of the Act did not apply - and it would not, unless the letting was by the proprietor or tenure-holder - it is not stated what other provision of law operated to confer occupancy rights on the tenant. The learned Judge then referred to - Binad Lala Pakrashi v. Kalu Pramanik, 20 Cal 708 (L) as furnishing the principle on which the decision should rest. There, a tenant was put into possession by a person who claimed to be the proprietor, and though it subsequently turned out that he was not, it was held that the letting by him conferred on the tenant the status of a raiyat. As pointed out in - Peary Mohan Mondal v. Radhika Moham Hazra, 8 Cal WN 315 (M) and - Krishna Nath v. Mohomed Wafiz, AIR 1916 Cal 598 (N), the basis of the decision in 20 Cal 708 (L) was that the word "proprietor" in S. 5(3) would include a de facto as well as a de jure proprietor, and a tenant who is bona fide inducted into possession by him would have the status of a raiyat. This decision makes an inroad on the general principle that no one can confer a better right than what he has got, and later decisions have generally shown a disposition to confine its application within narrow limits. But even on its own ground, it can have no application when the person who admits a tenant is not, as required by S. 5(3), a proprietor de facto or de jure, but a mortgagee. The principle of the decision in 20 Cal 708 (L) does not therefore support the conclusion in AIR 1930 Cal 738 (H) that a tenant admitted by a mortgagee into possession acquires the status of a raiyat.17. In AIR 1937 Cal 763 (I), a permanent lease was granted by a mortgagee after he had obtained a decree for foreclosure. Subsequently, that decree was recalled in a suit by the Official Receiver representing one of the mortgagors and a fresh decree for redemption was passed. After redemption, the Official Receiver received rent from the lessee treating him as a tenant on the land. A transferee from the Official Receiver having subsequently instituted as suit in ejectment against the tenant, it was held that the latter had acquired a right of occupancy under S. 21 of the Act, and that the relief for khas possession could not be granted as against him. Notwithstanding that some of the observations in the judgment are widely expressed, the ground of the decision really is that when the Official Receiver accepted rent from the tenant, that amounted to an affirmance of the lease by him, and that would have the effect of bringing S. 5(3) directly into play and conferring on the tenant the status of a raiyat. The decisions discussed above do not lay down any acceptable principle that the lease by a mortgagee which is protected by S. 76(a), T. P. Act, operates by itself to confer a right of occupancy on the tenant under S. 21 of the Act.18. Some argument was founded by the respondents on the clause in Exhibits 2 and 3 that the mortgagee could get the lands cultivated. It was contended that this clause conferred authority on the mortgagee to settle raiyats on the lands, and that the tenants admitted in pursuance of this authority would be in the same position as if they had been admitted by the proprietor and the conditions of S. 5(3) would be satisfied. But then, the lands are private lands, and the clause in question is followed by the provision that on redemption the mortgagors would be entitled to resume "sir and khas possession", and that would be rendered nugatory if the deed is construed as authorising the mortgagees to settle tenants on the lands with the status of raiyats. The authority to get lands cultivated can only mean getting them cultivated through hired labour as contemplated in the definition of private lands. We are clearly of opinion that the mortgage deed conferred no authority on the mortgagees to admit tenants so as the confer on them rights of occupancy.19. In the result, we must hold that the defendants of the second party have failed to establish that they have any rights of occupancy over the suit lands, and that the plaintiffs are accordingly entitled to a decree in ejectment, with future mesne profits as claimed in the plaint.
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lands that the proprietor would be entitled to cultivate them personally, and that was the claim which they had been making consistently from 1893 onwards. The claim put forward in Exhibits A-1 and A-1(1) is destructive of the rights claimed all along by the mortgagors, and amounts to an admission that the lands are not private and raises the doubt that the petitions were not really inspired byrecitals in the lease deed, Exhibit 2(a) which was executed by the defendants of the second party, were inconsistent with their claim that the lands wereis, therefore, must to be said for the contention of the appellants that the proceedings evidenced by Exhibits A-1 and A-1 (1) were collusive inplaintiffs who claim that the lands are kamat have to establish it by clear and satisfactory evidence. If the evidence adduced by them is sufficient, as we have held it is, to establish it, the presumption under S. 103-B equally with that under S. 120(2) becomes displaced. In the result, we are of opinion that the suit lands are the private lands of thethe present case, the tenants got into possession under Exhibit 2(a), which was a lease for two years, and they would therefore be precluded from acquiring occupancy rights by virtue of thatpoint has not been argued whether, as Exhibit 2(a) is an agricultural lease the tenants who held over after the expiry of the period fixed therein, should not be considered to hold as tenants from year to year, on the principle enacted in Ss. 106 andmortgagee is no doubt the transferee of an interest in immovable property, and may in a loose sense be said to be the owner of that interest. But the definition of a proprietor requires that he should own the estate or part thereof and not merely an interest therein. It would be a contradiction in terms to say of a mortgagee that he owns the estate over which he owns anquestion whether for purposes of S. 21 of the Act a tenant from a mortgagee can be held to be a raiyat as defined in section 5(3) was considered by this Court in - Mahabir Gope v. Harbans Narian Singh, AIR 1952 SC 205 at p. 207 (F), and it was held that a mortgagee is neither a proprietor nor a tenure-holder, and a tenant inducted by him on the lands is not a raiyat within the definition of those terms under the Act. That decision governs this case.The contention of the respondents that the mortgagees could be considered as tenure-holders within S. 5(3) is equally untenable. Section 5(1) defines a tenure-holder as meaning a person who has acquired a right to hold lands for collecting rents or for bringing them into cultivation by establishing tenants thereon. In the present case, the lands were under the personal cultivation of the mortgagors at the time when they were mortgaged under Exhibits 2 and 3. There were then no raiyats on the land and no question of transferring the right to collect rent fromthat clause would apply only if the lands had to be brought afresh under cultivation, and that was not the position here. As the mortgagees are neither proprietors nor tenure-holders as defined in the Act, the tenants holding under them could not claim to be raiyats as defined in Ss. 5(2) and 5(3), and no occupancy rights could therefore be acquired by them under section 21 of theargument proceeds on a confusion of two wholly independent concepts distinct in their origin and different in their legalthe present case, assuming that the mortgagees had the power under S. 76(a), T. P. Act, to continue the lessees under Exhibit 2(a) as tenants on the lands after the termination of the period fixed therein, that would confer on them at best the status of tenants from year to year and not given them the right to continue in possession after the termination of the agricultural year during which the redemption takesthis view, the power of the mortgagee under S. 76(a), T. P. Act, to induct tenants in the usual course of management would not avail the respondents to claim occupancy rights over theif the respondents cannot resist the suit for ejectment either by reason of S. 76(a), T. P. Act, or S. 21, Bihar Tenancy Act, it is difficult to see how they could get such a right as the result of the interaction of both thosedecision does not support the broad proposition for which the respondents contend, and is really against them, as the mortgage in the present case is of kamatprinciple of the decision in 20 Cal 708 (L) does not therefore support the conclusion in AIR 1930 Cal 738 (H) that a tenant admitted by a mortgagee into possession acquires the status of adecisions discussed above do not lay down any acceptable principle that the lease by a mortgagee which is protected by S. 76(a), T. P. Act, operates by itself to confer a right of occupancy on the tenant under S. 21 of thethen, the lands are private lands, and the clause in question is followed by the provision that on redemption the mortgagors would be entitled to resume "sir and khas possession", and that would be rendered nugatory if the deed is construed as authorising the mortgagees to settle tenants on the lands with the status ofauthority to get lands cultivated can only mean getting them cultivated through hired labour as contemplated in the definition of private lands. We are clearly of opinion that the mortgage deed conferred no authority on the mortgagees to admit tenants so as the confer on them rights of occupancy.19. In the result, we must hold that the defendants of the second party have failed to establish that they have any rights of occupancy over the suit lands, and that the plaintiffs are accordingly entitled to a decree in ejectment, with future mesne profits as claimed in the
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State of Maharashtra, Bombay and Ors Vs. Britannia Biscuits Co. Ltd. and Ors | alia is that where the goods are delivered to the buyer on terms similar to the delivery of goods on approval or "on sale or return", the property in the goods therein passes to the buyer, if he does not signify his approval or acceptance and also does not return the goods within the time prescribed therefor. According to the said principle, the position of the purchaser, until he returns the goods within the prescribed period, is that of a bailee and on the expiry of the said period, he becomes a purchaser. Where however, the person to whom the goods ar delivered is under an obligation to return the goods, there is no question of sale ever coming into being and the person to whom the goods are delivered remains a bailee. The transaction herein is in its nature nearer to the situation contemplated by and to the principle of Section 24 - inasmuch as the tins were delivered to the buyer with the stipulation that if he returns the tins in which the biscuits were sold in good condition within three months, he will get back the deposit kept by him in that behalf. It meant that after the expiry of the said period, he had no right to claim the refund on return of goods. The transaction then became a sale. As stated above, the customer was under no obligation to return, as explained hereinbefore; he had a right to return the tins in good condition within three months. Correspondingly, the respondent-assessee was under an obligation to refund the deposit amount if the tins were returned within three months in good condition; after the expiry of three months, the respondent was under no such obligation though it may be that for his own business or other reasons, he may yet accept the return of the tins and refund the deposit 20. Mr. Vellapally, learned counsel for the respondent submitted that for constituting the "sale price" as defined by the Act, there must be a specific sale of goods to a specific buyer and that on the approach adopted by the Assessing authority and the First Appellate Authority (whereunder sale of tins is held to have taken place at the end of the accounting year when the respondent made the entries in his books) no such specificity is identifiable. In the absence of such identification of the sale and the purchaser, the learned counsel submitted, the "sale price" cannot be ascertained. The said contention is unacceptable in the facts of this case. From the facts set out in the judgment of the High Court, it appears that each customer/purchaser (evidently all of them were wholesalers) had an account with the respondent and when a particular number of tins were supplied to a customer, an entry was made to that effect in that customers account in the account books of the respondent besides making an entry in the other relevant account books of the respondent. It is further recorded in the judgment that when the customer returned the tins, a reverse entry was made in the customers account as well as in the relevant account books of the assessee. If so there could be no difficulty in identifying the customer who failed to return the tins. The submission of Mr. Vellapally is thus without a factual foundation 21. To test the validity of the contention urged by Mr. Vellapally, we put to him a straight question, viz., if the deposit amount appropriated by the respondent to its P & L account, treating it as a trading receipt, is not a sale price, then what is its nature ? The answer of the learned counsel was that it is compensation or damages for breach of obligation to return the tins by the purchaser/customer. But once we hold that thee was no such obligation, then the said trading receipt cannot be anything but sale price. No other label could be suggested for it 22. Mr. Vellapally relied upon the decision of this Court in Raj Steel v., State of A. P. in support of his propositions. The said decision lays down, following the earlier decision of this Court in Hyderabad Deccan Cigarette Factory v. State of A. P. that the question whether there was a sale of container along with the contents is not a question of law but one of fact and that the said question has to be decided in each case having regard to the facts of that particular case. But while determining this question the Court should not be led away by the manner in which the assessee has made entries in its own account books but must look to the substance of the transaction and decide what in truth and in reality it amounts to. This is approach and opinion both of the High Court as well as the Special Bench of the Tribunal. As held by us hereinbefore, this was a composite transaction; in case of non-return of the tins within three months it became a sale of the unreturned tins 23. We may mention in this connection that the decision of the Bombay High Court (Goa Bench) in Arlem Breweries ( 1983 (53) ITR 172 (Bom)) referred to and distinguished in the judgment under appeal has been noticed by this Court in Raj Steel In our opinion, just as in Arlem Breweries ( 1983 (53) ITR 172 (Bom)), in this case too, payment of an amount for the bottles in advance (called deposit) was a terms of the sale 24. We do not think it necessary to refer to various decision of the High Courts referred to in the judgment under appeal or to other decisions brought to our notice for the reason that each of those cases turned upon the terms and the language of the arrangement/transaction between the parties. We reiterate that the question arising herein is not a pure question of law; it is a mixed question of law and fact | 1[ds]9. The true nature of the transaction has to be decided in this case on the following materialthe endorsements on the price lists as well as the invoices issued by the respondent; the fact that in respect of sales to dealers in the city of Bombay and its suburbs; invoices showed sale of biscuits only and not of tins; that sale tax was charged only on the sale price of biscuits and and that refundable deposit was collected for tins supplied. The manner in which entries were made by the respondent in its account books including thek deposit account are also said to be relevant facts; there is also the finding that the appellant used to refund the deposit even in cases where the tins were returned after the expiry of three months. Yet another relevant fact is that in respect of bulk of sales, tins were also sold along with the biscuits and that only in case of sales in Bombay and its suburbs that this different practice was being followed. It is on the above material that we have to determine the question at issue. But before we do that, it would be appropriate to refer to a few relevant provisions in the Bombay Sales Tax Act12. We agree with Mr. Vellapally, learned counsel for the respondent that there is a difference in the approach adopted by the Assessing and the First Appellate Authorities and the approach adopted by the Tribunal. While the former held that the sale of tins took place when the respondent made the entries in its account books at the end of the accounting year writing off half the balance amount outstanding in thek account, the Tribunal has understood the transaction between the parties as involving a sale of tins along with the biscuits and held that when the tins were returned and the deposit refunded by the respondent, it was a case of purchase of tins by the respondent. But what is of interest to note is that the question which was referred by the Tribunal for the opinion of the High Court seems to reflect the approach adopted by the Assessing and the First Appellate Authorities rather than the approach adopted by the Tribunal. In fact, if the approach and reasoning of the Tribunal is accepted, the question referred by the Tribunal for the opinion of the High Court cannot be said to arise from the order of the Tribunal within the meaning of Section 61 of the Bombay Act and need not be answered. The proper coursewhich is indeed the course adopted by the High Courtis to take the question as stated and to answer it, keeping aside the interpretation placed by the Tribunal upon the transaction. In other words, we have to and we do proceed to answer the question accepting the approach and reasoning adopted by the Assessing Authority and the First Appellate Authority. A reading of the judgment of the High Court establishes beyond doubt that it has proceeded on this basis alone. Indeed, it may not have been open to the Tribunal to make out a new case not put forward either by the assessee or by the Assessing Authorities. We shall, therefore, take the basis adopted by the Assessing and the First Appellate Authorities for determining the question that has arisen herein13. We also agree with the High Court that the question whether there has been a sale of tins at the end of the accounting yearor along with the biscuits themselveshas to be determined on the precise terms of the transaction between the respondent and its customers and that n this aspect the manner in which the respondent maintained its accounts or made entries therein is not very much relevantIn our opinion, neither the endorsement on the price list not the endorsement on the invoice can be said to create an obligation to return. All that the endorsement on the price list says is that the deposit will be refunded on the return of the tins in good condition within three months. Similarly the endorsement on the invoice stated that the Companys liability to return the value (note the word value) of returnable tins extends only up to three months. Of course a finding has been recorded that in practice the respondent was not adhering to the said timelimit. But it cannot be said that either the aforesaid endorsements or said practice the respondent created an obligation upon the customer to return the tins. It was left to his choice. If he thought it would be more advantageous to him to return the tins and get back the deposit amount, he could do soThe fact remains that when the tin was not returned the said deposit was treated as a trading receipt (by making necessary entries in its books) treating 20 per cent of the deposit amount as profit. In all these circumstances, we are unable to agree with the High Court that the transaction/arrangement/understanding between the parties created an obligation upon the purchaser/customer to return the tins. Mr. Joseph Vellapally submitted that inasmuch as all the tins supplied to the purchasers were treated as the stock of the respondent in its account books, it must be presumed that the purchasers were in custody of the respondents property which they were obliged in law to return. Acceptance of this contention, in our opinion, amounts to attaching undue importance to the entries in the account books of the respondent and to ignoring the true nature of the transaction16. In our opinion, the transaction in question is neither a bailment nor a pledge. It was a composite transaction. It was to start with an entrustment which could result in a sale of tins in case ofn of the tins. While entrusting the tins, the respondent took care to stipulate and receive the value of the tins and a little moreto be precise 20 per cent. If the tin was returned, well and goodthe transaction remained one of entrustment. But if not returned within 3 months, it became a sale as per the terms of the transaction. The fact that the respondent was receiving back the tins even after the expiry of three months and returning the deposits was more by way ofy a business decisionrather than a matter of right or an obligation19. The principle of Section 24 inter alia is that where the goods are delivered to the buyer on terms similar to the delivery of goods on approval or "on sale or return", the property in the goods therein passes to the buyer, if he does not signify his approval or acceptance and also does not return the goods within the time prescribed therefor. According to the said principle, the position of the purchaser, until he returns the goods within the prescribed period, is that of a bailee and on the expiry of the said period, he becomes a purchaser. Where however, the person to whom the goods ar delivered is under an obligation to return the goods, there is no question of sale ever coming into being and the person to whom the goods are delivered remains a bailee. The transaction herein is in its nature nearer to the situation contemplated by and to the principle of Section 24inasmuch as the tins were delivered to the buyer with the stipulation that if he returns the tins in which the biscuits were sold in good condition within three months, he will get back the deposit kept by him in that behalf. It meant that after the expiry of the said period, he had no right to claim the refund on return of goods. The transaction then became a sale. As stated above, the customer was under no obligation to return, as explained hereinbefore; he had a right to return the tins in good condition within three months. Correspondingly, thee was under an obligation to refund the deposit amount if the tins were returned within three months in good condition; after the expiry of three months, the respondent was under no such obligation though it may be that for his own business or other reasons, he may yet accept the return of the tins and refund the depositFrom the facts set out in the judgment of the High Court, it appears that each customer/purchaser (evidently all of them were wholesalers) had an account with the respondent and when a particular number of tins were supplied to a customer, an entry was made to that effect in that customers account in the account books of the respondent besides making an entry in the other relevant account books of the respondent. It is further recorded in the judgment that when the customer returned the tins, a reverse entry was made in the customers account as well as in the relevant account books of the assessee. If so there could be no difficulty in identifying the customer who failed to return the tins. The submission of Mr. Vellapally is thus without a factual foundation24. We do not think it necessary to refer to various decision of the High Courts referred to in the judgment under appeal or to other decisions brought to our notice for the reason that each of those cases turned upon the terms and the language of the arrangement/transaction between the parties. We reiterate that the question arising herein is not a pure question of law; it is a mixed question of law and factIn our opinion, neither the endorsement on the price list not the endorsement on the invoice can be said to create an obligation to return. All that the endorsement on the price list says is that the deposit will be refunded on the return of the tins in good condition within three months. Similarly the endorsement on the invoice stated that the Companys liability to return the value (note the word value) of returnable tins extends only up to three months. Of course a finding has been recorded that in practice the respondent was not adhering to the said timelimit. But it cannot be said that either the aforesaid endorsements or said practice the respondent created an obligation upon the customer to return the tins. It was left to his choice. If he thought it would be more advantageous to him to return the tins and get back the deposit amount, he could do. On the other hand, if he found it more advantageous to retain the tins and forgo the deposit, it was equally open to him not to return the tins. (It is probably in view of this situation that the Tribunal understood and interpreted the transaction as involving a sale of tins along with the biscuits themselves, and a case of purchase of tins by the respondent when it received back the tins and refunded the deposit.) It must be remembered that sales of the respondent were spread all over the country and the normal practice was to sell the tin along with the biscuits contained therein and that it was also the most convenient and cheap method of selling the biscuits by the respondent. The sales within the city of Bombay and its suburbs represented only a small portion of its total volume of sales. It is only in the case of this small portion of its sales that the respondent followed a different practice aforesaid. Another circumstance to be kept in mind in this behalf is that the deposit amount stipulated, received and kept by the respondent was always a little higher (by 20 per cent as we shall indicate later) than the value of the tin. May be, this was done to induce the customer to return the tin, or may be the respondent was careful enough to provide for the consequences of, including the possibility of the transaction being treated as a sale and taxed as such.The fact remains that when the tin was not returned the said deposit was treated as a trading receipt (by making necessary entries in its books) treating 20 per cent of the deposit amount as profit. In all these circumstances, we are unable to agree with the High Court that the transaction/arrangement/understanding between the parties created an obligation upon the purchaser/customer to return the tins. | 1 | 5,623 | 2,185 | ### Instruction:
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alia is that where the goods are delivered to the buyer on terms similar to the delivery of goods on approval or "on sale or return", the property in the goods therein passes to the buyer, if he does not signify his approval or acceptance and also does not return the goods within the time prescribed therefor. According to the said principle, the position of the purchaser, until he returns the goods within the prescribed period, is that of a bailee and on the expiry of the said period, he becomes a purchaser. Where however, the person to whom the goods ar delivered is under an obligation to return the goods, there is no question of sale ever coming into being and the person to whom the goods are delivered remains a bailee. The transaction herein is in its nature nearer to the situation contemplated by and to the principle of Section 24 - inasmuch as the tins were delivered to the buyer with the stipulation that if he returns the tins in which the biscuits were sold in good condition within three months, he will get back the deposit kept by him in that behalf. It meant that after the expiry of the said period, he had no right to claim the refund on return of goods. The transaction then became a sale. As stated above, the customer was under no obligation to return, as explained hereinbefore; he had a right to return the tins in good condition within three months. Correspondingly, the respondent-assessee was under an obligation to refund the deposit amount if the tins were returned within three months in good condition; after the expiry of three months, the respondent was under no such obligation though it may be that for his own business or other reasons, he may yet accept the return of the tins and refund the deposit 20. Mr. Vellapally, learned counsel for the respondent submitted that for constituting the "sale price" as defined by the Act, there must be a specific sale of goods to a specific buyer and that on the approach adopted by the Assessing authority and the First Appellate Authority (whereunder sale of tins is held to have taken place at the end of the accounting year when the respondent made the entries in his books) no such specificity is identifiable. In the absence of such identification of the sale and the purchaser, the learned counsel submitted, the "sale price" cannot be ascertained. The said contention is unacceptable in the facts of this case. From the facts set out in the judgment of the High Court, it appears that each customer/purchaser (evidently all of them were wholesalers) had an account with the respondent and when a particular number of tins were supplied to a customer, an entry was made to that effect in that customers account in the account books of the respondent besides making an entry in the other relevant account books of the respondent. It is further recorded in the judgment that when the customer returned the tins, a reverse entry was made in the customers account as well as in the relevant account books of the assessee. If so there could be no difficulty in identifying the customer who failed to return the tins. The submission of Mr. Vellapally is thus without a factual foundation 21. To test the validity of the contention urged by Mr. Vellapally, we put to him a straight question, viz., if the deposit amount appropriated by the respondent to its P & L account, treating it as a trading receipt, is not a sale price, then what is its nature ? The answer of the learned counsel was that it is compensation or damages for breach of obligation to return the tins by the purchaser/customer. But once we hold that thee was no such obligation, then the said trading receipt cannot be anything but sale price. No other label could be suggested for it 22. Mr. Vellapally relied upon the decision of this Court in Raj Steel v., State of A. P. in support of his propositions. The said decision lays down, following the earlier decision of this Court in Hyderabad Deccan Cigarette Factory v. State of A. P. that the question whether there was a sale of container along with the contents is not a question of law but one of fact and that the said question has to be decided in each case having regard to the facts of that particular case. But while determining this question the Court should not be led away by the manner in which the assessee has made entries in its own account books but must look to the substance of the transaction and decide what in truth and in reality it amounts to. This is approach and opinion both of the High Court as well as the Special Bench of the Tribunal. As held by us hereinbefore, this was a composite transaction; in case of non-return of the tins within three months it became a sale of the unreturned tins 23. We may mention in this connection that the decision of the Bombay High Court (Goa Bench) in Arlem Breweries ( 1983 (53) ITR 172 (Bom)) referred to and distinguished in the judgment under appeal has been noticed by this Court in Raj Steel In our opinion, just as in Arlem Breweries ( 1983 (53) ITR 172 (Bom)), in this case too, payment of an amount for the bottles in advance (called deposit) was a terms of the sale 24. We do not think it necessary to refer to various decision of the High Courts referred to in the judgment under appeal or to other decisions brought to our notice for the reason that each of those cases turned upon the terms and the language of the arrangement/transaction between the parties. We reiterate that the question arising herein is not a pure question of law; it is a mixed question of law and fact
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business decisionrather than a matter of right or an obligation19. The principle of Section 24 inter alia is that where the goods are delivered to the buyer on terms similar to the delivery of goods on approval or "on sale or return", the property in the goods therein passes to the buyer, if he does not signify his approval or acceptance and also does not return the goods within the time prescribed therefor. According to the said principle, the position of the purchaser, until he returns the goods within the prescribed period, is that of a bailee and on the expiry of the said period, he becomes a purchaser. Where however, the person to whom the goods ar delivered is under an obligation to return the goods, there is no question of sale ever coming into being and the person to whom the goods are delivered remains a bailee. The transaction herein is in its nature nearer to the situation contemplated by and to the principle of Section 24inasmuch as the tins were delivered to the buyer with the stipulation that if he returns the tins in which the biscuits were sold in good condition within three months, he will get back the deposit kept by him in that behalf. It meant that after the expiry of the said period, he had no right to claim the refund on return of goods. The transaction then became a sale. As stated above, the customer was under no obligation to return, as explained hereinbefore; he had a right to return the tins in good condition within three months. Correspondingly, thee was under an obligation to refund the deposit amount if the tins were returned within three months in good condition; after the expiry of three months, the respondent was under no such obligation though it may be that for his own business or other reasons, he may yet accept the return of the tins and refund the depositFrom the facts set out in the judgment of the High Court, it appears that each customer/purchaser (evidently all of them were wholesalers) had an account with the respondent and when a particular number of tins were supplied to a customer, an entry was made to that effect in that customers account in the account books of the respondent besides making an entry in the other relevant account books of the respondent. It is further recorded in the judgment that when the customer returned the tins, a reverse entry was made in the customers account as well as in the relevant account books of the assessee. If so there could be no difficulty in identifying the customer who failed to return the tins. The submission of Mr. Vellapally is thus without a factual foundation24. We do not think it necessary to refer to various decision of the High Courts referred to in the judgment under appeal or to other decisions brought to our notice for the reason that each of those cases turned upon the terms and the language of the arrangement/transaction between the parties. We reiterate that the question arising herein is not a pure question of law; it is a mixed question of law and factIn our opinion, neither the endorsement on the price list not the endorsement on the invoice can be said to create an obligation to return. All that the endorsement on the price list says is that the deposit will be refunded on the return of the tins in good condition within three months. Similarly the endorsement on the invoice stated that the Companys liability to return the value (note the word value) of returnable tins extends only up to three months. Of course a finding has been recorded that in practice the respondent was not adhering to the said timelimit. But it cannot be said that either the aforesaid endorsements or said practice the respondent created an obligation upon the customer to return the tins. It was left to his choice. If he thought it would be more advantageous to him to return the tins and get back the deposit amount, he could do. On the other hand, if he found it more advantageous to retain the tins and forgo the deposit, it was equally open to him not to return the tins. (It is probably in view of this situation that the Tribunal understood and interpreted the transaction as involving a sale of tins along with the biscuits themselves, and a case of purchase of tins by the respondent when it received back the tins and refunded the deposit.) It must be remembered that sales of the respondent were spread all over the country and the normal practice was to sell the tin along with the biscuits contained therein and that it was also the most convenient and cheap method of selling the biscuits by the respondent. The sales within the city of Bombay and its suburbs represented only a small portion of its total volume of sales. It is only in the case of this small portion of its sales that the respondent followed a different practice aforesaid. Another circumstance to be kept in mind in this behalf is that the deposit amount stipulated, received and kept by the respondent was always a little higher (by 20 per cent as we shall indicate later) than the value of the tin. May be, this was done to induce the customer to return the tin, or may be the respondent was careful enough to provide for the consequences of, including the possibility of the transaction being treated as a sale and taxed as such.The fact remains that when the tin was not returned the said deposit was treated as a trading receipt (by making necessary entries in its books) treating 20 per cent of the deposit amount as profit. In all these circumstances, we are unable to agree with the High Court that the transaction/arrangement/understanding between the parties created an obligation upon the purchaser/customer to return the tins.
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Kabari Vs. Shivnath Sharoff | High Court. Such suit is also pending in the High Court.20. It is quite apparent, in the facts of the case, that the amendment which was sought for by the plaintiffs was required to be incorporated otherwise no effective relief could be given to the plaintiffs in the said suit No. 531 of 1981. For effective relief in the said suit, the transfer of the disputed property in favour of M/s Kabari Pvt. Ltd. is required to be set aside. Otherwise no decree for specific performance of contract for selling the said property in favour of the plaintiffs can be passed. In the aforesaid facts, the amendment of the plaint is essential for the maintainability of the suit. The contention that the suit was not required to be dismissed but the same may proceed without the amendment is misconceived and without any substance.21. Even if it is accepted that the plaintiffs having engaged a reputed firm of solicitors had justification in proceeding with the view that the carriage of proceedings required to be taken in the suit must have been taken properly by their solicitors, there was no occasion for the plaintiffs to depend on the solicitors when on August 8, 1991 the plaintiffs had admittedly been informed by the solicitors that the suit had been placed in the scrutiny list for not taking appropriate steps in effecting the amendment during the long span of ten years. It is an admitted position that the plaintiffs were not only fully aware of such gross laches and negligence but according to the plaintiffs, they being aware of such laches and negligence expressed shock and anguish for the inaction on the part of their solicitors. After August 8, 1981 the said suit appeared before the Senior Master of the High Court on a number of occasions but even then application for extension of time for effecting amendment was not made by the plaintiffs immediately. It is only on October 10, 1991, such an application was moved in Court but such application was rightly dismissed by the Court on March, 13, 1992. In our view, Mr. Nariman and Mr. Sanghi are fully justified in contending that when the plaintiffs admittedly came to know that their solicitors miserably failed to take appropriate steps in the suit for which the suit was liable to be dismissed, even then they did not take diligent steps.22. The plaintiffs also did not change their solicitors even when the suit was dismissed. On the contrary, they retained the solicitors for the purpose of preferring the appeals, both against the order dismissing the application for extension of time and also against the order of dismissal of the suit itself. The contention of the learned counsel for the appellants that the bogey of laches and negligence on the part of the solicitors of the plaintiffs by keeping the innocent plaintiffs in darkness and alleged discovery of further materials only after the change of solicitors has been raised designedly, does not appear to be ill founded. It did not appeal to the High Court that the plaintiffs became victim of the alleged laches and negligence on the part of the solicitors and they had been kept in darkness about such laches and negligence despite their best intention to be diligent and sincere in the carriage of proceedings of the said suit. On a clear finding that the plaintiffs were guilty of gross negligence in the carriage of proceedings in the said suit, both the appeals preferred by the plaintiffs appellants were dismissed by the Division Bench of the High Court. It is quite apparent and evident that in view of clear findings of the High Court about gross negligence and laches of the plaintiffs in dismissing the said appeals, the plaintiffs, as a last resort, filed special leave petitions before this Court and did not think of filing the review applications.23. Considering the facts of the case, we have no hesitation to hold that only at a later stage, the plaintiffs filed the review applications before the High Court on false and fabricated premises that after change of the solicitors, they could come to know about some relevant facts which could not be placed before the High Court on earlier occasion and accordingly review applications had been filed. It appears to us that at no point of time, the plaintiffs intended to change the solicitors and the said solicitors were retained not only for the purpose of preferring the appeals but they continued to act as solicitors of the plaintiffs till appeals were dismissed on contest. The contention of the appellants before us that the plaintiffs designedly changed the solicitors to put forth false and fabricated plea of discovery of some relevant materials only after change of solicitors, in an attempt to make some ground for review applications, is wholly justified. In our view, in any event, all relevant facts could be known to the plaintiffs if they had intended to know such facts seriously. There was also no impediment to change the solicitors earlier. In the facts of the case, it appears to us that there was no genuine occasion for filing the review applications. Such review application based on false and fabricated premises deserved to be dismissed in limine. The impugned order allowing the review applications has occasioned a grave failure of justice. We, therefore, feel no hesitation in setting aside the impugned order on merits by allowing the appeals.24. In our view, there is force in the contention of the learned counsel for the appellants that the expression ``from which an appeal is allowed appearing in Clause (a) of Order 47 Rule 1 of the Code of Civil Procedure, should be construed liberally keeping in mind the underlying principle involved in Order 47 Rule 1 (a) that before making the review applications no superior court has been moved for getting the self same relief, so that for the self same relief two parallel proceedings before two forum are not taken. | 0[ds]19. Having considered the facts and circumstances of the case and the orders dismissing the appeals and also the impugned judgment allowing the review applications by the High Court and having given out anxious consideration to the respective contentions of the learned Senior Counsel forcefully placed before us, it appears to us that the plaintiffs failed and neglected to take proper steps in the carriage of proceedings of the suit. The plaintiffs filed Suit No. 531 of 1981 in the ordinary original civil jurisdiction of the Calcutta High Court. An application for interim injunction was made by the plaintiffs for restraining the defendants, namely, the vendors of the suit property from dealing with or disposal of the suit premises and on such application, an ad interim order was passed in favour of the plaintiffs. On July 20, 1981, the interlocutory application appeared as New Motion when the defendants appeared and submitted before the High Court that the suit premises had already been transferred to a third party, namely, M/s Kabari Pvt. Ltd. The defendants (vendors) also disclosed to the Court that by four separate deeds of conveyance all dated July 16, 1981, the suit premises had been conveyed to M/s Kabari Pvt. Ltd. As the property in question had been conveyed prior to the institution of the suit, the plaintiffs felt the need to implead M/s Kabari Pvt. Ltd. also as a defendant in the said suit and they made an application for amendment of the plaint for incorporating facts not pleaded and also for moulding the prayer. As far back as in July 1982, the Court, after hearing the parties, allowed an application for amendment of the plaint and restrained M/s Kabari Pvt. Ltd. from alienating or encumbering the disputed premises. Pursuant to the leave granted for amendment of the plaint, a writ of summons was directed to be issued on July 14, 1982 to M/s Kabari Pvt. Ltd. It may be noted here that M/s Kabari Pvt. Ltd. instituted a suit for eviction of the plaintiffs in the Court of learned Subordinate Judge at Alipore because the plaintiffs were in possession of the disputed property as tenants. In view of the pendency of the said Suit No. 531 of 1981 in the ordinary original civil jurisdiction of the Calcutta High Court wherein the purchaser M/s Kabari Private Limited was restrained from alienating and encumbering the disputed property, the suit for eviction was also transferred to the High Court. Such suit is also pending in the High Court.20. It is quite apparent, in the facts of the case, that the amendment which was sought for by the plaintiffs was required to be incorporated otherwise no effective relief could be given to the plaintiffs in the said suit No. 531 of 1981. For effective relief in the said suit, the transfer of the disputed property in favour of M/s Kabari Pvt. Ltd. is required to be set aside. Otherwise no decree for specific performance of contract for selling the said property in favour of the plaintiffs can be passed. In the aforesaid facts, the amendment of the plaint is essential for the maintainability of the suit. The contention that the suit was not required to be dismissed but the same may proceed without the amendment is misconceived and without any substance.21. Even if it is accepted that the plaintiffs having engaged a reputed firm of solicitors had justification in proceeding with the view that the carriage of proceedings required to be taken in the suit must have been taken properly by their solicitors, there was no occasion for the plaintiffs to depend on the solicitors when on August 8, 1991 the plaintiffs had admittedly been informed by the solicitors that the suit had been placed in the scrutiny list for not taking appropriate steps in effecting the amendment during the long span of ten years. It is an admitted position that the plaintiffs were not only fully aware of such gross laches and negligence but according to the plaintiffs, they being aware of such laches and negligence expressed shock and anguish for the inaction on the part of their solicitors. After August 8, 1981 the said suit appeared before the Senior Master of the High Court on a number of occasions but even then application for extension of time for effecting amendment was not made by the plaintiffs immediately. It is only on October 10, 1991, such an application was moved in Court but such application was rightly dismissed by the Court on March, 13, 1992. In our view, Mr. Nariman and Mr. Sanghi are fully justified in contending that when the plaintiffs admittedly came to know that their solicitors miserably failed to take appropriate steps in the suit for which the suit was liable to be dismissed, even then they did not take diligent steps.22. The plaintiffs also did not change their solicitors even when the suit was dismissed. On the contrary, they retained the solicitors for the purpose of preferring the appeals, both against the order dismissing the application for extension of time and also against the order of dismissal of the suit itself. The contention of the learned counsel for the appellants that the bogey of laches and negligence on the part of the solicitors of the plaintiffs by keeping the innocent plaintiffs in darkness and alleged discovery of further materials only after the change of solicitors has been raised designedly, does not appear to be ill founded. It did not appeal to the High Court that the plaintiffs became victim of the alleged laches and negligence on the part of the solicitors and they had been kept in darkness about such laches and negligence despite their best intention to be diligent and sincere in the carriage of proceedings of the said suit. On a clear finding that the plaintiffs were guilty of gross negligence in the carriage of proceedings in the said suit, both the appeals preferred by the plaintiffs appellants were dismissed by the Division Bench of the High Court. It is quite apparent and evident that in view of clear findings of the High Court about gross negligence and laches of the plaintiffs in dismissing the said appeals, the plaintiffs, as a last resort, filed special leave petitions before this Court and did not think of filing the review applications.23. Considering the facts of the case, we have no hesitation to hold that only at a later stage, the plaintiffs filed the review applications before the High Court on false and fabricated premises that after change of the solicitors, they could come to know about some relevant facts which could not be placed before the High Court on earlier occasion and accordingly review applications had been filed. It appears to us that at no point of time, the plaintiffs intended to change the solicitors and the said solicitors were retained not only for the purpose of preferring the appeals but they continued to act as solicitors of the plaintiffs till appeals were dismissed on contest. The contention of the appellants before us that the plaintiffs designedly changed the solicitors to put forth false and fabricated plea of discovery of some relevant materials only after change of solicitors, in an attempt to make some ground for review applications, is wholly justified. In our view, in any event, all relevant facts could be known to the plaintiffs if they had intended to know such facts seriously. There was also no impediment to change the solicitors earlier. In the facts of the case, it appears to us that there was no genuine occasion for filing the review applications. Such review application based on false and fabricated premises deserved to be dismissed in limine. The impugned order allowing the review applications has occasioned a grave failure of justice. We, therefore, feel no hesitation in setting aside the impugned order on merits by allowing the appeals.24. In our view, there is force in the contention of the learned counsel for the appellants that the expression ``from which an appeal is allowed appearing in Clause (a) of Order 47 Rule 1 of the Code of Civil Procedure, should be construed liberally keeping in mind the underlying principle involved in Order 47 Rule 1 (a) that before making the review applications no superior court has been moved for getting the self same relief, so that for the self same relief two parallel proceedings before two forum are not taken. | 0 | 7,572 | 1,518 | ### Instruction:
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High Court. Such suit is also pending in the High Court.20. It is quite apparent, in the facts of the case, that the amendment which was sought for by the plaintiffs was required to be incorporated otherwise no effective relief could be given to the plaintiffs in the said suit No. 531 of 1981. For effective relief in the said suit, the transfer of the disputed property in favour of M/s Kabari Pvt. Ltd. is required to be set aside. Otherwise no decree for specific performance of contract for selling the said property in favour of the plaintiffs can be passed. In the aforesaid facts, the amendment of the plaint is essential for the maintainability of the suit. The contention that the suit was not required to be dismissed but the same may proceed without the amendment is misconceived and without any substance.21. Even if it is accepted that the plaintiffs having engaged a reputed firm of solicitors had justification in proceeding with the view that the carriage of proceedings required to be taken in the suit must have been taken properly by their solicitors, there was no occasion for the plaintiffs to depend on the solicitors when on August 8, 1991 the plaintiffs had admittedly been informed by the solicitors that the suit had been placed in the scrutiny list for not taking appropriate steps in effecting the amendment during the long span of ten years. It is an admitted position that the plaintiffs were not only fully aware of such gross laches and negligence but according to the plaintiffs, they being aware of such laches and negligence expressed shock and anguish for the inaction on the part of their solicitors. After August 8, 1981 the said suit appeared before the Senior Master of the High Court on a number of occasions but even then application for extension of time for effecting amendment was not made by the plaintiffs immediately. It is only on October 10, 1991, such an application was moved in Court but such application was rightly dismissed by the Court on March, 13, 1992. In our view, Mr. Nariman and Mr. Sanghi are fully justified in contending that when the plaintiffs admittedly came to know that their solicitors miserably failed to take appropriate steps in the suit for which the suit was liable to be dismissed, even then they did not take diligent steps.22. The plaintiffs also did not change their solicitors even when the suit was dismissed. On the contrary, they retained the solicitors for the purpose of preferring the appeals, both against the order dismissing the application for extension of time and also against the order of dismissal of the suit itself. The contention of the learned counsel for the appellants that the bogey of laches and negligence on the part of the solicitors of the plaintiffs by keeping the innocent plaintiffs in darkness and alleged discovery of further materials only after the change of solicitors has been raised designedly, does not appear to be ill founded. It did not appeal to the High Court that the plaintiffs became victim of the alleged laches and negligence on the part of the solicitors and they had been kept in darkness about such laches and negligence despite their best intention to be diligent and sincere in the carriage of proceedings of the said suit. On a clear finding that the plaintiffs were guilty of gross negligence in the carriage of proceedings in the said suit, both the appeals preferred by the plaintiffs appellants were dismissed by the Division Bench of the High Court. It is quite apparent and evident that in view of clear findings of the High Court about gross negligence and laches of the plaintiffs in dismissing the said appeals, the plaintiffs, as a last resort, filed special leave petitions before this Court and did not think of filing the review applications.23. Considering the facts of the case, we have no hesitation to hold that only at a later stage, the plaintiffs filed the review applications before the High Court on false and fabricated premises that after change of the solicitors, they could come to know about some relevant facts which could not be placed before the High Court on earlier occasion and accordingly review applications had been filed. It appears to us that at no point of time, the plaintiffs intended to change the solicitors and the said solicitors were retained not only for the purpose of preferring the appeals but they continued to act as solicitors of the plaintiffs till appeals were dismissed on contest. The contention of the appellants before us that the plaintiffs designedly changed the solicitors to put forth false and fabricated plea of discovery of some relevant materials only after change of solicitors, in an attempt to make some ground for review applications, is wholly justified. In our view, in any event, all relevant facts could be known to the plaintiffs if they had intended to know such facts seriously. There was also no impediment to change the solicitors earlier. In the facts of the case, it appears to us that there was no genuine occasion for filing the review applications. Such review application based on false and fabricated premises deserved to be dismissed in limine. The impugned order allowing the review applications has occasioned a grave failure of justice. We, therefore, feel no hesitation in setting aside the impugned order on merits by allowing the appeals.24. In our view, there is force in the contention of the learned counsel for the appellants that the expression ``from which an appeal is allowed appearing in Clause (a) of Order 47 Rule 1 of the Code of Civil Procedure, should be construed liberally keeping in mind the underlying principle involved in Order 47 Rule 1 (a) that before making the review applications no superior court has been moved for getting the self same relief, so that for the self same relief two parallel proceedings before two forum are not taken.
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High Court. Such suit is also pending in the High Court.20. It is quite apparent, in the facts of the case, that the amendment which was sought for by the plaintiffs was required to be incorporated otherwise no effective relief could be given to the plaintiffs in the said suit No. 531 of 1981. For effective relief in the said suit, the transfer of the disputed property in favour of M/s Kabari Pvt. Ltd. is required to be set aside. Otherwise no decree for specific performance of contract for selling the said property in favour of the plaintiffs can be passed. In the aforesaid facts, the amendment of the plaint is essential for the maintainability of the suit. The contention that the suit was not required to be dismissed but the same may proceed without the amendment is misconceived and without any substance.21. Even if it is accepted that the plaintiffs having engaged a reputed firm of solicitors had justification in proceeding with the view that the carriage of proceedings required to be taken in the suit must have been taken properly by their solicitors, there was no occasion for the plaintiffs to depend on the solicitors when on August 8, 1991 the plaintiffs had admittedly been informed by the solicitors that the suit had been placed in the scrutiny list for not taking appropriate steps in effecting the amendment during the long span of ten years. It is an admitted position that the plaintiffs were not only fully aware of such gross laches and negligence but according to the plaintiffs, they being aware of such laches and negligence expressed shock and anguish for the inaction on the part of their solicitors. After August 8, 1981 the said suit appeared before the Senior Master of the High Court on a number of occasions but even then application for extension of time for effecting amendment was not made by the plaintiffs immediately. It is only on October 10, 1991, such an application was moved in Court but such application was rightly dismissed by the Court on March, 13, 1992. In our view, Mr. Nariman and Mr. Sanghi are fully justified in contending that when the plaintiffs admittedly came to know that their solicitors miserably failed to take appropriate steps in the suit for which the suit was liable to be dismissed, even then they did not take diligent steps.22. The plaintiffs also did not change their solicitors even when the suit was dismissed. On the contrary, they retained the solicitors for the purpose of preferring the appeals, both against the order dismissing the application for extension of time and also against the order of dismissal of the suit itself. The contention of the learned counsel for the appellants that the bogey of laches and negligence on the part of the solicitors of the plaintiffs by keeping the innocent plaintiffs in darkness and alleged discovery of further materials only after the change of solicitors has been raised designedly, does not appear to be ill founded. It did not appeal to the High Court that the plaintiffs became victim of the alleged laches and negligence on the part of the solicitors and they had been kept in darkness about such laches and negligence despite their best intention to be diligent and sincere in the carriage of proceedings of the said suit. On a clear finding that the plaintiffs were guilty of gross negligence in the carriage of proceedings in the said suit, both the appeals preferred by the plaintiffs appellants were dismissed by the Division Bench of the High Court. It is quite apparent and evident that in view of clear findings of the High Court about gross negligence and laches of the plaintiffs in dismissing the said appeals, the plaintiffs, as a last resort, filed special leave petitions before this Court and did not think of filing the review applications.23. Considering the facts of the case, we have no hesitation to hold that only at a later stage, the plaintiffs filed the review applications before the High Court on false and fabricated premises that after change of the solicitors, they could come to know about some relevant facts which could not be placed before the High Court on earlier occasion and accordingly review applications had been filed. It appears to us that at no point of time, the plaintiffs intended to change the solicitors and the said solicitors were retained not only for the purpose of preferring the appeals but they continued to act as solicitors of the plaintiffs till appeals were dismissed on contest. The contention of the appellants before us that the plaintiffs designedly changed the solicitors to put forth false and fabricated plea of discovery of some relevant materials only after change of solicitors, in an attempt to make some ground for review applications, is wholly justified. In our view, in any event, all relevant facts could be known to the plaintiffs if they had intended to know such facts seriously. There was also no impediment to change the solicitors earlier. In the facts of the case, it appears to us that there was no genuine occasion for filing the review applications. Such review application based on false and fabricated premises deserved to be dismissed in limine. The impugned order allowing the review applications has occasioned a grave failure of justice. We, therefore, feel no hesitation in setting aside the impugned order on merits by allowing the appeals.24. In our view, there is force in the contention of the learned counsel for the appellants that the expression ``from which an appeal is allowed appearing in Clause (a) of Order 47 Rule 1 of the Code of Civil Procedure, should be construed liberally keeping in mind the underlying principle involved in Order 47 Rule 1 (a) that before making the review applications no superior court has been moved for getting the self same relief, so that for the self same relief two parallel proceedings before two forum are not taken.
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Shiv Chand Vs. Ujagar Singh and Another | dismissed under S. 86(1) of the Act. That provision states that the High Court shall dismiss an election petition which does not comply with the provisions of S. 82. The test is whether the election petition complies with S. 82, not whether the election-petitioner has failed to comply with S. 82. The substance of the matter must govern, because hyper- technicality, when the public policy of the statute is fulfilled, cannot be permitted to play the procedural tyrant to defeat a vital judicial process, namely, investigation into the merits of the election petition. 4. The result of the discussion is that Shri Mal Singh was entitled to have been impleaded as respondent. The refus al by the court to do so is illegal and based on a misinterpretation. Had he been impleaded the dismissal of the election petition would have been illegal. 5. Let us examine the reasons given by the learned Judge for the course he has adopted. Counsel for the respondent, in supporting the reasoning of the High Court, has relied on a ruling in R. Satyanarayana &ors. v. Saidayya and ors. (AIR 1969 A. P. 151.) The argument which has appealed to both the courts is the same and we regard it as fallacious. We do not propose to examine the discretionary dismissal of the application by the election-petitioner under order 1 Rule 10, et al, to implead Shri Mal Singh. We confine ourselves to S. 86(1) and S. 86(4) of the Act. According to the learn ed Judge, S. 86(4) has to be read down to cover only such candidates as are not required to be impleaded as respondents under S. 82 of the Act. For one thing, the grammatical construction of "any candidate" does not admit of such a narrow an d artificial meaning. The reason given by the court hardly impresses us. Indeed, we are not able to conceive easily of a case where a candidate who is neither the returned candidate nor one against whom corrupt practices are imputed would care to implead himself as respondent. He serves no purpose by getting so impleaded except the teasing and gaining experience of being a litigant. The mere assertion by the trial court that S. 86(1) would be rendered nugatory by a candidate like Mal Singh taking recourse to the provisions of sub-section (4) of s. 86 does not carry conviction nor are we able to glean into the intention of the legislature as the learned Judge states. Shri Mal Singh, having been a candidate, is one entitled to come within s. 86(4). On his application the court shall implead him. In this view, the question of substantial compliance and the mandatory or directory nature of the prescription in S. 82(b) do not arise.Shri Mehta relied upon Mohan Raj (Mohan Raj v. Surendra Kumar Tap aria &ors. [1969] 1 SCR 630 ) heavily. The question raised there was whether the provisions of the Code of Civil Procedure, especially order 6 Rule 17 and order 1 Rule 10 could be used in such a manner as to defeat the procedural policy and statutory imperative of A S. 82 of the Act. Obviously that cannot be done because the provisions of the Representation of the People Act where they lay down specific prescriptions must prevail and cannot be frustrated by importing the Code of Civil Procedure. Here, however, S. 86(4) of the Act itself entitles Mal Singh to be joined as respondent. That right cannot be defeated and once he comes on record as p arty the petition is in order and cannot be dismissed for non- joinder. Procedural tyranny compounded by lexically unwarranted technicality cannot be tolerated in a court. Moreover, once Mal Singh comes on the party array by virtue of S. 86(4) the fatal infirmity, if any, must be judged with reference to the petition as amended by the addition of the new respondent. It is the amended petition consequent on the addition under S. 86(4) of Mal Singh that has to be tested in the light of S. 86(1) read with S. 82(b) of the Act. 6. Several decisions have been cited before us by both the sides to buttress up their respective stances but we find only marginal relevance for those decisions and do not burden this judgment with the citations. 7. In this view, issue No. 2 was wrongly decided by the High Court. We hold that Shri Mal Singh should have been impleaded as a respondent. Since he has applied in this Court also for the same relief we direct him to be joined as a respondent to the election petition. We are not impressed with the submission of Shri Mehta for the respondent that there are suspicious features suggestive of collusion between the election-petitioner and Shri Mal Singh and that for that reason the petition to implead filed by Shri Mal Singh should be dismissed. It is quite conceivable that Shri Mal Singh against whom serious allegations have been made in the election petition would have sought to be impleaded so that he could clear the as persions made against him, to the satisfaction of the constituency through an adjudication in the court. Even assuming that there was an element of collusion that would not deprive him of his entitlement under S. 86(4) of the Act. Per haps the respondent (successfu candidate) may well rely on these and other features when enquiry is made into the merits of the matter and seek to persuade the court that when the petitioner himself was willing to abandon the allegations and Shri Mal Singh appeared on the scene under coincidentally dubious circumstances, the charge was liable to be disbelieved. It is not for us in this Court to express any opinion, one way or the other, on the matter except to point out that even as suming Shri Mehtas assumption of mala fides or collusion it has no bearing on the right of Shri Mal Singh to be joined as a respondent. | 1[ds]It is fairly clear that Shri Mal Singh was a necessary party since a corrupt practice was imputed to him3. Shri Mal Singh did apply within the stipulated period, and a plain reading of the provision justd entitles him to be joined as a respondent. Any candidate shall be entitled to be joined as a respondent, on the clear wording of the sectio n and since Shri Mal Singh is a candidate he is entitled to be joined as a respondent. When the text is plain, in the absence of compelling reasons, there is no justification for truncating its sense. If Shri Mal Singh is impleaded on his application then the election petition will have on the party array the candidate against whom allegations of corrupt practice have been made in the petition. That is to say, S. 82(b) will stand fulfilled. It is obvious that S. 82(b) requires the presence of every candidate against whom a corrupt practice has been alleged. What is imperative is the presence as a respondent of such a candidate, not however at whose instance he has been joined as a respondent. The purpose is obvious and two fold. When injurious averments are made against a candidate natural justice necessitates his being given an opportunity to meet those charges, because the consequence of such averments being upheld may be disastrous for such candidate. Secondly, in the absence of the party against whom charges have been levelled the reality of the adversary system will be missed. Above all, the constituency is vitally concerned with the investigation into and proof or disproof of corrupt practices of candidates at elections. Thus, the public policy behind S. 82(b) is the compulsive presence of the candidate against whom corrupt practice has been imputed. It is of no consequence whether he has been joined at his own instance or by the. In the present case, the petitioner did move to bring on record Shri Mal Singh but that was rejected. The petitioner alternatively sought to delete the corrupt practice imputed to Shri Mal Singh. That too was refused, if we may say so rig htlyWe are satisfied that if he is impleaded as a respondent the e lection petition cannot be dismissed under S. 86(1) of the Act. That provision states that the High Court shall dismiss an election petition which does not comply with the provisions of S. 82. The test is whether the election petition complies with S. 82, not whether ther has failed to comply with S. 82. The substance of the matter must govern, because hypertechnicality, when the public policy of the statute is fulfilled, cannot be permitted to play the procedural tyrant to defeat a vital judicial process, namely, investigation into the merits of the election petition4. The result of the discussion is that Shri Mal Singh was entitled to have been impleaded as respondent. The refus al by the court to do so is illegal and based on a misinterpretation. Had he been impleaded the dismissal of the election petition would have been illegalThe argument which has appealed to both the courts is the same and we regard it as fallacious. We do not propose to examine the discretionary dismissal of the application by ther under order 1 Rule 10, et al, to implead Shri Mal Singh. We confine ourselves to S. 86(1) and S. 86(4) of the Act. According to the learn ed Judge, S. 86(4) has to be read down to cover only such candidates as are not required to be impleaded as respondents under S. 82 of the Act. For one thing, the grammatical construction of "any candidate" does not admit of such a narrow an d artificial meaning. The reason given by the court hardly impresses us. Indeed, we are not able to conceive easily of a case where a candidate who is neither the returned candidate nor one against whom corrupt practices are imputed would care to implead himself as respondent. He serves no purpose by getting so impleaded except the teasing and gaining experience of being a litigant. The mere assertion by the trial court that S. 86(1) would be rendered nugatory by a candidate like Mal Singh taking recourse to the provisions ofn (4) of s. 86 does not carry conviction nor are we able to glean into the intention of the legislature as the learned Judge states. Shri Mal Singh, having been a candidate, is one entitled to come within s. 86(4). On his application the court shall implead him. In this view, the question of substantial compliance and the mandatory or directory nature of the prescription in S. 82(b) do not arise.Shri Mehta relied upon Mohan Raj (Mohan Raj v. Surendra Kumar Tap aria &ors. [1969] 1 SCR 630 ) heavily. The question raised there was whether the provisions of theCode of Civil Procedure, especially order 6 Rule 17 and order 1 Rule 10 could be used in such a manner as to defeat the procedural policy and statutory imperative of A S. 82 of the Act. Obviously that cannot be done because the provisions of the Representation of the People Act where they lay down specific prescriptions must prevail and cannot be frustrated by importing theCode of Civil Procedure. Here, however, S. 86(4) of the Act itself entitles Mal Singh to be joined as respondent. That right cannot be defeated and once he comes on record as p arty the petition is in order and cannot be dismissed for nonjoinder. Procedural tyranny compounded by lexically unwarranted technicality cannot be tolerated in a court. Moreover, once Mal Singh comes on the party array by virtue of S. 86(4) the fatal infirmity, if any, must be judged with reference to the petition as amended by the addition of the new respondent. It is the amended petition consequent on the addition under S. 86(4) of Mal Singh that has to be tested in the light of S. 86(1) read with S. 82(b) of the Act6. Several decisions have been cited before us by both the sides to buttress up their respective stances but we find only marginal relevance for those decisions and do not burden this judgment with the citations7. In this view, issue No. 2 was wrongly decided by the High Court. We hold that Shri Mal Singh should have been impleaded as a respondent. Since he has applied in this Court also for the same relief we direct him to be joined as a respondent to the election petition. We are not impressed with the submission of Shri Mehta for the respondent that there are suspicious features suggestive of collusion between ther and Shri Mal Singh and that for that reason the petition to implead filed by Shri Mal Singh should be dismissed. It is quite conceivable that Shri Mal Singh against whom serious allegations have been made in the election petition would have sought to be impleaded so that he could clear the as persions made against him, to the satisfaction of the constituency through an adjudication in the court. Even assuming that there was an element of collusion that would not deprive him of his entitlement under S. 86(4) of the Act. Per haps the respondent (successfu candidate) may well rely on these and other features when enquiry is made into the merits of the matter and seek to persuade the court that when the petitioner himself was willing to abandon the allegations and Shri Mal Singh appeared on the scene under coincidentally dubious circumstances, the charge was liable to be disbelieved. It is not for us in this Court to express any opinion, one way or the other, on the matter except to point out that even as suming Shri Mehtas assumption of mala fides or collusion it has no bearing on the right of Shri Mal Singh to be joined as a respondent. | 1 | 2,170 | 1,469 | ### Instruction:
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dismissed under S. 86(1) of the Act. That provision states that the High Court shall dismiss an election petition which does not comply with the provisions of S. 82. The test is whether the election petition complies with S. 82, not whether the election-petitioner has failed to comply with S. 82. The substance of the matter must govern, because hyper- technicality, when the public policy of the statute is fulfilled, cannot be permitted to play the procedural tyrant to defeat a vital judicial process, namely, investigation into the merits of the election petition. 4. The result of the discussion is that Shri Mal Singh was entitled to have been impleaded as respondent. The refus al by the court to do so is illegal and based on a misinterpretation. Had he been impleaded the dismissal of the election petition would have been illegal. 5. Let us examine the reasons given by the learned Judge for the course he has adopted. Counsel for the respondent, in supporting the reasoning of the High Court, has relied on a ruling in R. Satyanarayana &ors. v. Saidayya and ors. (AIR 1969 A. P. 151.) The argument which has appealed to both the courts is the same and we regard it as fallacious. We do not propose to examine the discretionary dismissal of the application by the election-petitioner under order 1 Rule 10, et al, to implead Shri Mal Singh. We confine ourselves to S. 86(1) and S. 86(4) of the Act. According to the learn ed Judge, S. 86(4) has to be read down to cover only such candidates as are not required to be impleaded as respondents under S. 82 of the Act. For one thing, the grammatical construction of "any candidate" does not admit of such a narrow an d artificial meaning. The reason given by the court hardly impresses us. Indeed, we are not able to conceive easily of a case where a candidate who is neither the returned candidate nor one against whom corrupt practices are imputed would care to implead himself as respondent. He serves no purpose by getting so impleaded except the teasing and gaining experience of being a litigant. The mere assertion by the trial court that S. 86(1) would be rendered nugatory by a candidate like Mal Singh taking recourse to the provisions of sub-section (4) of s. 86 does not carry conviction nor are we able to glean into the intention of the legislature as the learned Judge states. Shri Mal Singh, having been a candidate, is one entitled to come within s. 86(4). On his application the court shall implead him. In this view, the question of substantial compliance and the mandatory or directory nature of the prescription in S. 82(b) do not arise.Shri Mehta relied upon Mohan Raj (Mohan Raj v. Surendra Kumar Tap aria &ors. [1969] 1 SCR 630 ) heavily. The question raised there was whether the provisions of the Code of Civil Procedure, especially order 6 Rule 17 and order 1 Rule 10 could be used in such a manner as to defeat the procedural policy and statutory imperative of A S. 82 of the Act. Obviously that cannot be done because the provisions of the Representation of the People Act where they lay down specific prescriptions must prevail and cannot be frustrated by importing the Code of Civil Procedure. Here, however, S. 86(4) of the Act itself entitles Mal Singh to be joined as respondent. That right cannot be defeated and once he comes on record as p arty the petition is in order and cannot be dismissed for non- joinder. Procedural tyranny compounded by lexically unwarranted technicality cannot be tolerated in a court. Moreover, once Mal Singh comes on the party array by virtue of S. 86(4) the fatal infirmity, if any, must be judged with reference to the petition as amended by the addition of the new respondent. It is the amended petition consequent on the addition under S. 86(4) of Mal Singh that has to be tested in the light of S. 86(1) read with S. 82(b) of the Act. 6. Several decisions have been cited before us by both the sides to buttress up their respective stances but we find only marginal relevance for those decisions and do not burden this judgment with the citations. 7. In this view, issue No. 2 was wrongly decided by the High Court. We hold that Shri Mal Singh should have been impleaded as a respondent. Since he has applied in this Court also for the same relief we direct him to be joined as a respondent to the election petition. We are not impressed with the submission of Shri Mehta for the respondent that there are suspicious features suggestive of collusion between the election-petitioner and Shri Mal Singh and that for that reason the petition to implead filed by Shri Mal Singh should be dismissed. It is quite conceivable that Shri Mal Singh against whom serious allegations have been made in the election petition would have sought to be impleaded so that he could clear the as persions made against him, to the satisfaction of the constituency through an adjudication in the court. Even assuming that there was an element of collusion that would not deprive him of his entitlement under S. 86(4) of the Act. Per haps the respondent (successfu candidate) may well rely on these and other features when enquiry is made into the merits of the matter and seek to persuade the court that when the petitioner himself was willing to abandon the allegations and Shri Mal Singh appeared on the scene under coincidentally dubious circumstances, the charge was liable to be disbelieved. It is not for us in this Court to express any opinion, one way or the other, on the matter except to point out that even as suming Shri Mehtas assumption of mala fides or collusion it has no bearing on the right of Shri Mal Singh to be joined as a respondent.
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present case, the petitioner did move to bring on record Shri Mal Singh but that was rejected. The petitioner alternatively sought to delete the corrupt practice imputed to Shri Mal Singh. That too was refused, if we may say so rig htlyWe are satisfied that if he is impleaded as a respondent the e lection petition cannot be dismissed under S. 86(1) of the Act. That provision states that the High Court shall dismiss an election petition which does not comply with the provisions of S. 82. The test is whether the election petition complies with S. 82, not whether ther has failed to comply with S. 82. The substance of the matter must govern, because hypertechnicality, when the public policy of the statute is fulfilled, cannot be permitted to play the procedural tyrant to defeat a vital judicial process, namely, investigation into the merits of the election petition4. The result of the discussion is that Shri Mal Singh was entitled to have been impleaded as respondent. The refus al by the court to do so is illegal and based on a misinterpretation. Had he been impleaded the dismissal of the election petition would have been illegalThe argument which has appealed to both the courts is the same and we regard it as fallacious. We do not propose to examine the discretionary dismissal of the application by ther under order 1 Rule 10, et al, to implead Shri Mal Singh. We confine ourselves to S. 86(1) and S. 86(4) of the Act. According to the learn ed Judge, S. 86(4) has to be read down to cover only such candidates as are not required to be impleaded as respondents under S. 82 of the Act. For one thing, the grammatical construction of "any candidate" does not admit of such a narrow an d artificial meaning. The reason given by the court hardly impresses us. Indeed, we are not able to conceive easily of a case where a candidate who is neither the returned candidate nor one against whom corrupt practices are imputed would care to implead himself as respondent. He serves no purpose by getting so impleaded except the teasing and gaining experience of being a litigant. The mere assertion by the trial court that S. 86(1) would be rendered nugatory by a candidate like Mal Singh taking recourse to the provisions ofn (4) of s. 86 does not carry conviction nor are we able to glean into the intention of the legislature as the learned Judge states. Shri Mal Singh, having been a candidate, is one entitled to come within s. 86(4). On his application the court shall implead him. In this view, the question of substantial compliance and the mandatory or directory nature of the prescription in S. 82(b) do not arise.Shri Mehta relied upon Mohan Raj (Mohan Raj v. Surendra Kumar Tap aria &ors. [1969] 1 SCR 630 ) heavily. The question raised there was whether the provisions of theCode of Civil Procedure, especially order 6 Rule 17 and order 1 Rule 10 could be used in such a manner as to defeat the procedural policy and statutory imperative of A S. 82 of the Act. Obviously that cannot be done because the provisions of the Representation of the People Act where they lay down specific prescriptions must prevail and cannot be frustrated by importing theCode of Civil Procedure. Here, however, S. 86(4) of the Act itself entitles Mal Singh to be joined as respondent. That right cannot be defeated and once he comes on record as p arty the petition is in order and cannot be dismissed for nonjoinder. Procedural tyranny compounded by lexically unwarranted technicality cannot be tolerated in a court. Moreover, once Mal Singh comes on the party array by virtue of S. 86(4) the fatal infirmity, if any, must be judged with reference to the petition as amended by the addition of the new respondent. It is the amended petition consequent on the addition under S. 86(4) of Mal Singh that has to be tested in the light of S. 86(1) read with S. 82(b) of the Act6. Several decisions have been cited before us by both the sides to buttress up their respective stances but we find only marginal relevance for those decisions and do not burden this judgment with the citations7. In this view, issue No. 2 was wrongly decided by the High Court. We hold that Shri Mal Singh should have been impleaded as a respondent. Since he has applied in this Court also for the same relief we direct him to be joined as a respondent to the election petition. We are not impressed with the submission of Shri Mehta for the respondent that there are suspicious features suggestive of collusion between ther and Shri Mal Singh and that for that reason the petition to implead filed by Shri Mal Singh should be dismissed. It is quite conceivable that Shri Mal Singh against whom serious allegations have been made in the election petition would have sought to be impleaded so that he could clear the as persions made against him, to the satisfaction of the constituency through an adjudication in the court. Even assuming that there was an element of collusion that would not deprive him of his entitlement under S. 86(4) of the Act. Per haps the respondent (successfu candidate) may well rely on these and other features when enquiry is made into the merits of the matter and seek to persuade the court that when the petitioner himself was willing to abandon the allegations and Shri Mal Singh appeared on the scene under coincidentally dubious circumstances, the charge was liable to be disbelieved. It is not for us in this Court to express any opinion, one way or the other, on the matter except to point out that even as suming Shri Mehtas assumption of mala fides or collusion it has no bearing on the right of Shri Mal Singh to be joined as a respondent.
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C.Magesh Vs. State Of Karnataka | the bus” and “pelting of stones”. A33-Jagadish has been correctly identified by all the PWs, in deposition before Court. Further majority of the witnesses have assigned him the role of “pouring of kerosene” and PW-15 also mentions that “he set the bus on fire”. In addition to this A-33 has been assigned the role of “pelting stones”, “shouting slogans” and “blocking the exit of the bus” as well. Thus, there cannot be any escape for the aforesaid 5 accused from avoiding conviction and sentence awarded to them by Trial Court and confirmed in appeal by High Court. Even otherwise, there are concurrent findings of fact recorded against them, which cannot be interfered with in this appeal.44. However, on account of inconsistency, improper identification and in absence of specific role being attributed to A25-R. Ramesh and A46-Sharath Kumar, we are of the considered view that their conviction cannot be upheld. 45.Then the question arises before us is whether a case has been made out for recording acquittal of A25- R.Ramesh and A46-Sharath Kumar. Following inconsistencies have been noticed by us. 46. PW2, PW5, PW6, PW10 did not identify A25-Ramesh correctly. PW7, PW13 and PW14 did not identify him at all. PW8 identified him but does not assign any role to him. PW1, PW2, PW4, PW9, PW12, PW13, PW14, PW15 assigned him the role of shouting slogans. However PW4, PW12, PW13, PW14, assigned him further role, in addition to shouting slogans. PW3, PW5 and PW11 assigned him some other roles, different from shouting slogans.47. Coming to the case of A46-Sharath Kumar, all have identified him correctly but PW3, PW4, PW5 PW6, PW8, PW10, PW12 and PW14 did not depose about him at all.48. The majority of witnesses assigned him the role of assaulting with clubs. However, PW9, PW13 assigned different role to him but Doctor’s evidence does not disclose anywhere that the injuries sustained by any of the injured persons could have been caused with clubs, meaning thereby there was no mention with regard to cause of injury. Thus, he can also be given benefit of doubt. In view of the aforesaid inconsistencies available on record, it would not be safe to convict him.49. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasise, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh v. State of. U.P. reported in 2008 (11) SCR 286 has held: “The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy. The probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.” 50. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that “no man is guilty until proven so”, hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses.51. As has already been mentioned hereinabove A6-P.A. Bharathkumar has not preferred any appeal as his whereabouts are not known. Thus, these appeals have no concern with his conviction.52. Normally, it is not in practice to consider each and every individual evidence available; however we had to make an exception in this case since it involved certain alleged odious deeds of few individuals. In order to impart full and substantial justice, we made this exception. Criminal jurisprudence entails that a thorough appreciation of records needs to be done in order to do complete justice.53. It would be apt to mention herein that interlocutory applications were filed by some of the accused in the Trial Court under Sections 91 and 233 of the Cr.P.C. The applications mainly pertained to securing of certain materials, documents and witnesses to establish their defence. At the very outset it is pertinent to mention that in this particular matter there has been an inordinate delay, despite the High Court granting six months for the completion of the trial and thereafter another three months’ extension was sought by the Trial Court. As per Section 233, the Trial Court can refuse securing of defence evidence if it so feels that the same is being done to further delay the trial. The Trial Court had considered the judgment of the High Court of Karnataka in Crl. Rev. Petition No. 677/03, touching almost the identical issue, wherein it was held that the defence evidence has to be led without summoning of any documents and the counsel for the defence has conceded to the said point. Thus, we are of the opinion that Trial Court has committed no error in rejecting the above applications. Even otherwise there seems to be no prejudice caused to the accused by mere rejection of these applications.54. Only in the light of the aforesaid we have considered the case of each of the accused independently.55. In Criminal Appeal No.1029 of 2008, out of the seven accused appellants, we hereby confirm the conviction and sentence as awarded to them by the Trial Court and confirmed by High Court for the following 5 accused, viz., A1-R.Srinivas, A2-T.K.S. Kutti, A15-N.V.Ravi, A32-Dharanesh, A33-Jagadish, but record acquittal of A25-R. Ramesh and A46- Sharath Kumar. They be released forthwith if not required in any other criminal case.56. For the reasons recorded above, Crl. Appeal No.1 028 of 2008 filed by aforesaid 4 accused namely, A4- C.Magesh, A8 - Edwin Noyal, A16 - S Babu and A34- Nagraj is hereby allowed and they are acquitted. They be set at liberty forthwith, if not required in any other criminal case. | 1[ds]34. We would first like to take up Criminal Appeal No.1028 of 2008 preferred by four of those accused who have been found guilty for commission of offences under Section 302 and other allied sections by the High Court solely on the strength of two dying declarations of Sinija and Nagarathna marked as Exh. P29 and P30.35.offences.36. It is not in dispute that it was their statement recorded under Section 161 of the Cr.P.C. in the hospital by I.O. There was no need at that time to have obtained their signatures on the same as it is prohibited by Section 162 of the Cr.P.C. Doctors have certified that they were in a fit state of health to have their statements recorded only at the end of recording of their statements. No such certificate has been issued by the Doctors at the time their statement had commenced to be recorded. It is not in question answer form.37. The incident having taken place as far back as on 25.3.1999 in a metropolitan city like Bangalore, where several magistrates were available, prosecution never thought of getting their dying declarations recorded in presence of a magistrate. There is nothing on record even to suggest that from 25.3.1999 to 11.4.1999 when Sinija finally succumbed to the injuries and between 25.3.1999 to 22.4.1999 when Nagarathna succumbed to the injuries magistrate was not available. Even if prosecution would have put forth such a ground it had only to be discarded at the threshold as the same is inconceivable.38. We have also not appreciated the manner in which the High Court in a cryptic manner, without properly discussing the legal and factual aspect of the matter held the aforesaid 4 accused guilty for commission of the said offence in addition to the conviction of seven accused who had already been found guilty by Trial Court. After all, it was an appeal by the State against order of acquittal recorded by Trial Court.39. In an appeal preferred under Section 378 of the CrPC, no doubt, it is true that High Court has ample powers to go through the entire evidence and to arrive at its own conclusion but before reversing the finding of acquittal, following conditions should be always kept in mind namely,(i) the presumption of innocence of the accused should be kept in mind;(ii) if two views of the matter are possible view favourable to the accused should be taken; (iii) the Appellate Court should take into account the fact that the trial judge had the advantage of looking at the demeanor of witness; and(iv) the accused is entitled to benefit of doubt. But the doubt should be reasonable that is the doubt which rational thinking man with reasonable honesty and consciously entertained, more so, when the larger question with regard to treating Exh. P29 and Exh. P30 as dying declarations itself had become questionable.40. There was no occasion for the High Court to have passed order of conviction on the same, that too without removing the doubts with regard to correctness, legality and propriety of two dying declarations.41. Thus, in our considered opinion. Criminal Appeal No.1028 of 2008 filed by aforesaid four accused, convicted by High Court for the first time deserves to be allowed and is allowed. They be set at liberty if not required in any other case.42. Now, coming to the appeal of remaining 7 accused i.e. Criminal Appeal No.1029 of 2008, we have critically gone through the evidence of PW1 to PW 15, remaining passengers of the ill-fated bus on the unfortunate date, having sustained burn injuries on account of overt acts of the accused as mentioned hereinabove.43. After having gone through the entire evidence critically, we have absolutely no doubt in our mind that there has been a great consistency In the evidence of PW 1 to PW15 with regard to different roles attributed to AIR. Srinivas, he has been identified by the witnesses as one of the instigators who started shouting slogans against management of the Company and loyal workers, moreover PW- 12 & 14 have attributedon A-1 R.Srinivas A2-TKS. Kutti, was also attributed more or less the same role as that of A1- R Srinivas by the PWs. A15-N.V. Ravi, was correctly identified by all the witnesses, who have deposed about him. He has been attributed role ofkerosene on theexcept PW 4 & 14 did not depose about the same role played by him. He has further been attributed with theng remaining occupants from alighting from theA32-Dharanesh has been assigned with similar role as that of A-15 with the only difference that PW2 & 11 could not identify him correctly. He has been attributed the role ofg the exit of theng ofA33-Jagadish has been correctly identified by all the PWs, in deposition before Court. Further majority of the witnesses have assigned him the role ofand PW-15 also mentions thatset the bus onIn addition to this A-33 has been assigned the role ofng theexit of theas well. Thus, there cannot be any escape for the aforesaid 5 accused from avoiding conviction and sentence awarded to them by Trial Court and confirmed in appeal by High Court. Even otherwise, there are concurrent findings of fact recorded against them, which cannot be interfered with in this appeal.44. However, on account of inconsistency, improper identification and in absence of specific role being attributed to A25-R. Ramesh and A46-Sharath Kumar, we are of the considered view that their conviction cannot be upheld.PW2, PW5, PW6, PW10 did not identify A25-Ramesh correctly. PW7, PW13 and PW14 did not identify him at all. PW8 identified him but does not assign any role to him. PW1, PW2, PW4, PW9, PW12, PW13, PW14, PW15 assigned him the role of shouting slogans. However PW4, PW12, PW13, PW14, assigned him further role, in addition to shouting slogans. PW3, PW5 and PW11 assigned him some other roles, different from shouting slogans.47. Coming to the case of A46-Sharath Kumar, all have identified him correctly but PW3, PW4, PW5 PW6, PW8, PW10, PW12 and PW14 did not depose about him at all.48. The majority of witnesses assigned him the role of assaulting with clubs. However, PW9, PW13 assigned different role to him butevidence does not disclose anywhere that the injuries sustained by any of the injured persons could have been caused with clubs,y there was no mention with regard to cause of injury. Thus, he can also be given benefit of doubt. In view of the aforesaid inconsistencies available on record, it would not be safe to convict him.49. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasise, consistency is the keyword forthe conviction ofan accused. In this regard it is to be noted that this Court in the case titled Suraj Singh v. State of. U.P. reported in 2008 (11) SCR 286 hasevidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy. The probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle thatman is guilty until provenhence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and therebytest of consistency in evidence amongst all the witnesses.51. As has already been mentioned hereinabove A6-P.A. Bharathkumar has not preferred any appeal as his whereabouts are not known. Thus, these appeals have no concern with his conviction.52. Normally, it is not in practice to consider each and every individual evidence available; however we had to make an exception in this case since it involved certain alleged odious deeds of few individuals. In order to impart full and substantial justice, we made this exception. Criminal jurisprudence entails that a thorough appreciation of records needs to be done in order to do complete justice.53. It would be apt to mention herein that interlocutory applications were filed by some of the accused in the Trial Court under Sections 91 and 233 of the Cr.P.C. The applications mainly pertained toin materials, documents and witnesses to establish their defence. At the very outset it is pertinent to mention that in this particular matter there has been an inordinate delay, despite the High Court granting six months for the completion of the trial and thereafter another threeextension was sought by the Trial Court. As per Section 233, the Trial Court can refusece evidence if it so feels that the same is being done to further delay the trial. The Trial Court had considered the judgment of the High Court of Karnataka in Crl. Rev. Petition No. 677/03, touching almost the identical issue, wherein it was held that the defence evidence has to be led withoutny documents and the counsel for the defence has conceded to the said point. Thus, we are of the opinion that Trial Court has committed no error inve applications. Even otherwise there seems to be no prejudice caused to the accused by mere rejection of these applications.54. Only in the light of the aforesaid we have considered the case of each of the accused independently.55. In Criminal Appeal No.1029 of 2008, out of the seven accused appellants, we hereby confirm the conviction and sentence as awarded to them by the Trial Court and confirmed by High Court for the following 5 accused, viz., A1-R.Srinivas, A2-T.K.S. Kutti, A15-N.V.Ravi, A32-Dharanesh, A33-Jagadish, but record acquittal of A25-R. Ramesh and A46- Sharath Kumar. They be released forthwith if not required in any other criminal case.56. For the reasons recorded above, Crl. Appeal No.1 028 of 2008 filed by aforesaid 4 accused namely, A4- C.Magesh, A8 - Edwin Noyal, A16 - S Babu and A34- Nagraj is hereby allowed and they are acquitted. They be set at liberty forthwith, if not required in any other criminal case. | 1 | 5,716 | 1,881 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the bus” and “pelting of stones”. A33-Jagadish has been correctly identified by all the PWs, in deposition before Court. Further majority of the witnesses have assigned him the role of “pouring of kerosene” and PW-15 also mentions that “he set the bus on fire”. In addition to this A-33 has been assigned the role of “pelting stones”, “shouting slogans” and “blocking the exit of the bus” as well. Thus, there cannot be any escape for the aforesaid 5 accused from avoiding conviction and sentence awarded to them by Trial Court and confirmed in appeal by High Court. Even otherwise, there are concurrent findings of fact recorded against them, which cannot be interfered with in this appeal.44. However, on account of inconsistency, improper identification and in absence of specific role being attributed to A25-R. Ramesh and A46-Sharath Kumar, we are of the considered view that their conviction cannot be upheld. 45.Then the question arises before us is whether a case has been made out for recording acquittal of A25- R.Ramesh and A46-Sharath Kumar. Following inconsistencies have been noticed by us. 46. PW2, PW5, PW6, PW10 did not identify A25-Ramesh correctly. PW7, PW13 and PW14 did not identify him at all. PW8 identified him but does not assign any role to him. PW1, PW2, PW4, PW9, PW12, PW13, PW14, PW15 assigned him the role of shouting slogans. However PW4, PW12, PW13, PW14, assigned him further role, in addition to shouting slogans. PW3, PW5 and PW11 assigned him some other roles, different from shouting slogans.47. Coming to the case of A46-Sharath Kumar, all have identified him correctly but PW3, PW4, PW5 PW6, PW8, PW10, PW12 and PW14 did not depose about him at all.48. The majority of witnesses assigned him the role of assaulting with clubs. However, PW9, PW13 assigned different role to him but Doctor’s evidence does not disclose anywhere that the injuries sustained by any of the injured persons could have been caused with clubs, meaning thereby there was no mention with regard to cause of injury. Thus, he can also be given benefit of doubt. In view of the aforesaid inconsistencies available on record, it would not be safe to convict him.49. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasise, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh v. State of. U.P. reported in 2008 (11) SCR 286 has held: “The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy. The probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.” 50. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that “no man is guilty until proven so”, hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses.51. As has already been mentioned hereinabove A6-P.A. Bharathkumar has not preferred any appeal as his whereabouts are not known. Thus, these appeals have no concern with his conviction.52. Normally, it is not in practice to consider each and every individual evidence available; however we had to make an exception in this case since it involved certain alleged odious deeds of few individuals. In order to impart full and substantial justice, we made this exception. Criminal jurisprudence entails that a thorough appreciation of records needs to be done in order to do complete justice.53. It would be apt to mention herein that interlocutory applications were filed by some of the accused in the Trial Court under Sections 91 and 233 of the Cr.P.C. The applications mainly pertained to securing of certain materials, documents and witnesses to establish their defence. At the very outset it is pertinent to mention that in this particular matter there has been an inordinate delay, despite the High Court granting six months for the completion of the trial and thereafter another three months’ extension was sought by the Trial Court. As per Section 233, the Trial Court can refuse securing of defence evidence if it so feels that the same is being done to further delay the trial. The Trial Court had considered the judgment of the High Court of Karnataka in Crl. Rev. Petition No. 677/03, touching almost the identical issue, wherein it was held that the defence evidence has to be led without summoning of any documents and the counsel for the defence has conceded to the said point. Thus, we are of the opinion that Trial Court has committed no error in rejecting the above applications. Even otherwise there seems to be no prejudice caused to the accused by mere rejection of these applications.54. Only in the light of the aforesaid we have considered the case of each of the accused independently.55. In Criminal Appeal No.1029 of 2008, out of the seven accused appellants, we hereby confirm the conviction and sentence as awarded to them by the Trial Court and confirmed by High Court for the following 5 accused, viz., A1-R.Srinivas, A2-T.K.S. Kutti, A15-N.V.Ravi, A32-Dharanesh, A33-Jagadish, but record acquittal of A25-R. Ramesh and A46- Sharath Kumar. They be released forthwith if not required in any other criminal case.56. For the reasons recorded above, Crl. Appeal No.1 028 of 2008 filed by aforesaid 4 accused namely, A4- C.Magesh, A8 - Edwin Noyal, A16 - S Babu and A34- Nagraj is hereby allowed and they are acquitted. They be set at liberty forthwith, if not required in any other criminal case.
### Response:
1
### Explanation:
R Srinivas by the PWs. A15-N.V. Ravi, was correctly identified by all the witnesses, who have deposed about him. He has been attributed role ofkerosene on theexcept PW 4 & 14 did not depose about the same role played by him. He has further been attributed with theng remaining occupants from alighting from theA32-Dharanesh has been assigned with similar role as that of A-15 with the only difference that PW2 & 11 could not identify him correctly. He has been attributed the role ofg the exit of theng ofA33-Jagadish has been correctly identified by all the PWs, in deposition before Court. Further majority of the witnesses have assigned him the role ofand PW-15 also mentions thatset the bus onIn addition to this A-33 has been assigned the role ofng theexit of theas well. Thus, there cannot be any escape for the aforesaid 5 accused from avoiding conviction and sentence awarded to them by Trial Court and confirmed in appeal by High Court. Even otherwise, there are concurrent findings of fact recorded against them, which cannot be interfered with in this appeal.44. However, on account of inconsistency, improper identification and in absence of specific role being attributed to A25-R. Ramesh and A46-Sharath Kumar, we are of the considered view that their conviction cannot be upheld.PW2, PW5, PW6, PW10 did not identify A25-Ramesh correctly. PW7, PW13 and PW14 did not identify him at all. PW8 identified him but does not assign any role to him. PW1, PW2, PW4, PW9, PW12, PW13, PW14, PW15 assigned him the role of shouting slogans. However PW4, PW12, PW13, PW14, assigned him further role, in addition to shouting slogans. PW3, PW5 and PW11 assigned him some other roles, different from shouting slogans.47. Coming to the case of A46-Sharath Kumar, all have identified him correctly but PW3, PW4, PW5 PW6, PW8, PW10, PW12 and PW14 did not depose about him at all.48. The majority of witnesses assigned him the role of assaulting with clubs. However, PW9, PW13 assigned different role to him butevidence does not disclose anywhere that the injuries sustained by any of the injured persons could have been caused with clubs,y there was no mention with regard to cause of injury. Thus, he can also be given benefit of doubt. In view of the aforesaid inconsistencies available on record, it would not be safe to convict him.49. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasise, consistency is the keyword forthe conviction ofan accused. In this regard it is to be noted that this Court in the case titled Suraj Singh v. State of. U.P. reported in 2008 (11) SCR 286 hasevidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy. The probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle thatman is guilty until provenhence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and therebytest of consistency in evidence amongst all the witnesses.51. As has already been mentioned hereinabove A6-P.A. Bharathkumar has not preferred any appeal as his whereabouts are not known. Thus, these appeals have no concern with his conviction.52. Normally, it is not in practice to consider each and every individual evidence available; however we had to make an exception in this case since it involved certain alleged odious deeds of few individuals. In order to impart full and substantial justice, we made this exception. Criminal jurisprudence entails that a thorough appreciation of records needs to be done in order to do complete justice.53. It would be apt to mention herein that interlocutory applications were filed by some of the accused in the Trial Court under Sections 91 and 233 of the Cr.P.C. The applications mainly pertained toin materials, documents and witnesses to establish their defence. At the very outset it is pertinent to mention that in this particular matter there has been an inordinate delay, despite the High Court granting six months for the completion of the trial and thereafter another threeextension was sought by the Trial Court. As per Section 233, the Trial Court can refusece evidence if it so feels that the same is being done to further delay the trial. The Trial Court had considered the judgment of the High Court of Karnataka in Crl. Rev. Petition No. 677/03, touching almost the identical issue, wherein it was held that the defence evidence has to be led withoutny documents and the counsel for the defence has conceded to the said point. Thus, we are of the opinion that Trial Court has committed no error inve applications. Even otherwise there seems to be no prejudice caused to the accused by mere rejection of these applications.54. Only in the light of the aforesaid we have considered the case of each of the accused independently.55. In Criminal Appeal No.1029 of 2008, out of the seven accused appellants, we hereby confirm the conviction and sentence as awarded to them by the Trial Court and confirmed by High Court for the following 5 accused, viz., A1-R.Srinivas, A2-T.K.S. Kutti, A15-N.V.Ravi, A32-Dharanesh, A33-Jagadish, but record acquittal of A25-R. Ramesh and A46- Sharath Kumar. They be released forthwith if not required in any other criminal case.56. For the reasons recorded above, Crl. Appeal No.1 028 of 2008 filed by aforesaid 4 accused namely, A4- C.Magesh, A8 - Edwin Noyal, A16 - S Babu and A34- Nagraj is hereby allowed and they are acquitted. They be set at liberty forthwith, if not required in any other criminal case.
|
T. N. K. Govindarajulu Chetty Vs. Commissioner Of Income-Tax, Madras | It is therefore necessary to determine whether the obligation to pay interest awarded under the order of the High Court of Madras arose out of the statute or out of the award. In Satinder Singh v. Umrao Singh, (1961) 3 SCR 676 = (AIR 1961 SC 908 ) lands forming part of Cis-Sutlej Jagir were compulsorily acquired under the East Punjab Acquisition and Requisition of Immovable Property (Temporary Powers) Act, 1948. The claimants to the lands claimed in addition to statutory compensation interest from the date from which they were dispossessed and till the date of payment of compensation. The arbitrator appointed under the Act awarded interest on the amount of compensation and the High Court of Punjab in appeal confirmed the order. This Court held that the claimants were entitled to interest on the compensation amount from the date of dispossession till the date on which the amount of compensation was paid to the claimants. Section 5 of the East Punjab Acquisition and Requisition of Immovable Property (Temporary Powers) Act, 1948, set out the principles according to which compensation was to be paid in regard to the acquired property, and by clause (e) thereof it was provided that the arbitrator in making the award shall have regard to the provisions of sub-section (1) of Section 23 of the Land Acquisition Act, 1894 in so far as the same may be applicable. The Act contained no express provision for payment of interest on compensation determined by the arbitrator. This Court rejected the contention of the State of Punjab, that Sections 28 and 34 of the Land Acquisition Act which dealt with the payment of interest were not intended to apply to the proceedings before the arbitrator. It was observed : Stated broadly the act of taking possession of immovable property generally implied an agreement to pay interest on the value of the property and it is on this principle that a claim for interest is made against the State. The Court further observed : It would thus be noticed that the claim for interest proceeds on the assumption that when the owner of immovable property loses possession of it he is entitled to claim interest in place of right to retain possession. The question which we have to consider is whether the application of this rule is intended to be excluded by the Act of 1948, and as we have already observed, the mere fact that Section 5 (e) of the Act makes Section 23(1) of the Land Acquisition Act of 1894 applicable we cannot reasonably infer that the Act intends to exclude the application of this general rule in the matter of the payment of interest. The Court also observed : When a claim for payment of interest is made by a person whose immovable property has been acquired compulsorily he is not making claim for damages properly or technically so called; he is basing his claim on the general rule that if he is deprived of his land he should be put in possession or compensation immediately; if not, in lieu of possession taken by compulsory acquisition interest should be paid to him on the said amount of compensation. The scheme of the East Punjab Acquisition and Requisition of Immovable Property (Temporary Powers) Act, l948 is similar to the scheme of the Requisitioned Land (Continuance of Powers) Act, 1947. The Court in Satinder Singhs case, (l96l) 3 SCR 676 = (AIR 1961 SC 908 ) held that because of the injunction expressly to apply the provisions of Section 23 (1) of the Land Acquisition Act, 1894, in the determination of compensation, the application of Sections 28 and 34 dealing with the payment of interest on the amount awarded as compensation cannot be deemed excluded. The Court also held that when the owner of property is dispossessed pursuant to an order for compulsory acquisition an agreement that the acquiring authority will pay interest on the amount of compensation is implied. 11. The reasoning on which the right of the owner of the lands acquired to interest was affirmed in Satinder Singhs case, (1961) 3 SCR 676 = (AIR 1961 SC 908 ) prima facie, applies in this case. Counsel for the assessees contended that the application of Sections 28 and 34 of the Land Acquisition Act in proceedings for arbitration under the Requisitioned Lands (Continuance of Powers) Act, 1947, was expressly excluded by Section 19 (1) (g) of the Defence of India Act which enacted that : Save as provided in this Section and in any rules made thereunder, nothing in any law for the time being. in force shall apply to arbitration under this Section. But Clause (g) is not susceptible of any such interpretation. Clauses (a) to (f) of Section 19 (1) are a Code relating to arbitration in determining the compensation payable to a person deprived of his property. Provisions relating to payment of interest are not, however, part of the law relating to arbitration and there is nothing in clause (g) which excludes the application of the substantive law relating to payment of interest when the arbitration is determining the amount of compensation. 12. We are therefore of the view that the principle on which (l924) 8 Tax Cas 595 and (1929) 14 Tax Cas 580 were based has no application to this case. It may be recalled that in those cases the arbitrator and the Arbitral Tribunal were in awarding interest, not seeking to give effect to or to recognize a right to interest, conferred by statute or contract. The source of the right to interest in both the cases did not arise from the statute or agreement.In the case on hand, the right to interest arose by virtue of the provisions of Sections 28 and 34 of the Land Acquisition Act, 1894, and the arbitrator and the High Court merely gave effect to that right in awarding interest on the amount of compensation. Interest received by the assessee was therefore properly held taxable. | 0[ds]According to the view taken by this Court in Dr. Shamlal Narulas case, 1964-53 ITR 151 = (AIR 1964 SC 1878 ) if the source of the obligation imposed by the statute to pay interest arises because the claimant is kept out of his money, the interest received is chargeable to tax as income. The same principle would apply if interest is payable under the terms of an agreement and the Court or the arbitrator gives effect to the terms of the agreement-express or implied - and awards interest which has been agreed to be paid11. The reasoning on which the right of the owner of the lands acquired to interest was affirmed in Satinder Singhs case, (1961) 3 SCR 676 = (AIR 1961 SC 908 ) prima facie, applies in this case12. We are therefore of the view that the principle on which (l924) 8 Tax Cas 595 and (1929) 14 Tax Cas 580 were based has no application to this case. It may be recalled that in those cases the arbitrator and the Arbitral Tribunal were in awarding interest, not seeking to give effect to or to recognize a right to interest, conferred by statute or contract. The source of the right to interest in both the cases did not arise from the statute or agreement.In the case on hand, the right to interest arose by virtue of the provisions of Sections 28 and 34 of the Land Acquisition Act, 1894, and the arbitrator and the High Court merely gave effect to that right in awarding interest on the amount of compensation. Interest received by the assessee was therefore properly held taxable9. But it must be noticed that liability to pay interest arose in Ballantines case, (1924) 8 Tax Cas 595 under the award of the arbitrator and in the Executors of Bonner Maurice as Executor of Edward Kays case, (1929) 14 Tax Cas 580 under the order of the Mixed Arbitral Tribunal and in each case it was held that what was paid, though called interest, was in truth compensation for loss suffered on account of deprivation ofg to the view taken by this Court in Dr. Shamlal Narulas case,3 ITR 151 = (AIR 1964 SC 1878 ) if the source of the obligation imposed by the statute to pay interest arises because the claimant is kept out of his money, the interest received is chargeable to tax as income. The same principle would apply if interest is payable under the terms of an agreement and the Court or the arbitrator gives effect to the terms of theand awards interest which has been agreed to be paid10. It is therefore necessary to determine whetherthe obligation to pay interest awarded under the order of the High Court of Madras arose out of the statute or out of the. In Satinder Singh v. Umrao Singh, (1961) 3 SCR 676 = (AIR 1961 SC 908 ) lands forming part ofj Jagir were compulsorily acquired under the East Punjab Acquisition and Requisition of Immovable Property (Temporary Powers) Act, 1948. The claimants to the lands claimed in addition to statutory compensation interest from the date from which they were dispossessed and till the date of payment of compensation. The arbitrator appointed under the Act awarded interest on the amount of compensation and the High Court of Punjab in appeal confirmed the order. This Court held that the claimants were entitled to interest on the compensation amount from the date of dispossession till the date on which the amount of compensation was paid to the claimants. Section 5 of the East Punjab Acquisition and Requisition of Immovable Property (Temporary Powers) Act, 1948, set out the principles according to which compensation was to be paid in regard to the acquired property, and by clause (e) thereof it was provided that the arbitrator in making the award shall have regard to the provisions ofn (1) of Section 23 of the Land Acquisition Act, 1894 in so far as the same may be applicable. The Act contained no express provision for payment of interest on compensation determined by the arbitrator. This Court rejected the contention of the State of Punjab, that Sections 28 and 34 of the Land Acquisition Act which dealt with the payment of interest were not intended to apply to the proceedings before the arbitrator. It was observed :Stated broadly the act of taking possession of immovable property generally implied an agreement to pay interest on the value of the property and it is on this principle that a claim for interest is made against the StateThe Court further observed :It would thus be noticed that the claim for interest proceeds on the assumption that when the owner of immovable property loses possession of it he is entitled to claim interest in place of right to retain possession. The question which we have to consider is whether the application of this rule is intended to be excluded by the Act of 1948, and as we have already observed, the mere fact that Section 5 (e) of the Act makes Section 23(1) of the Land Acquisition Act of 1894 applicable we cannot reasonably infer that the Act intends to exclude the application of this general rule in the matter of the payment of interestThe Court also observed :When a claim for payment of interest is made by a person whose immovable property has been acquired compulsorily he is not making claim for damages properly or technically so called; he is basing his claim on the general rule that if he is deprived of his land he should be put in possession or compensation immediately; if not, in lieu of possession taken by compulsory acquisition interest should be paid to him on the said amount of compensationThe scheme of the East Punjab Acquisition and Requisition of Immovable Property (Temporary Powers) Act, l948 is similar to the scheme of the Requisitioned Land (Continuance of Powers) Act, 1947. The Court in Satinder Singhs case, (l96l) 3 SCR 676 = (AIR 1961 SC 908 ) held that because of the injunction expressly to apply the provisions of Section 23 (1) of the Land Acquisition Act, 1894, in the determination of compensation, the application of Sections 28 and 34 dealing with the payment of interest on the amount awarded as compensation cannot be deemed excluded. The Court also held that when the owner of property is dispossessed pursuant to an order for compulsory acquisition an agreement that the acquiring authority will pay interest on the amount of compensation is implied. | 0 | 3,495 | 1,191 | ### 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:
It is therefore necessary to determine whether the obligation to pay interest awarded under the order of the High Court of Madras arose out of the statute or out of the award. In Satinder Singh v. Umrao Singh, (1961) 3 SCR 676 = (AIR 1961 SC 908 ) lands forming part of Cis-Sutlej Jagir were compulsorily acquired under the East Punjab Acquisition and Requisition of Immovable Property (Temporary Powers) Act, 1948. The claimants to the lands claimed in addition to statutory compensation interest from the date from which they were dispossessed and till the date of payment of compensation. The arbitrator appointed under the Act awarded interest on the amount of compensation and the High Court of Punjab in appeal confirmed the order. This Court held that the claimants were entitled to interest on the compensation amount from the date of dispossession till the date on which the amount of compensation was paid to the claimants. Section 5 of the East Punjab Acquisition and Requisition of Immovable Property (Temporary Powers) Act, 1948, set out the principles according to which compensation was to be paid in regard to the acquired property, and by clause (e) thereof it was provided that the arbitrator in making the award shall have regard to the provisions of sub-section (1) of Section 23 of the Land Acquisition Act, 1894 in so far as the same may be applicable. The Act contained no express provision for payment of interest on compensation determined by the arbitrator. This Court rejected the contention of the State of Punjab, that Sections 28 and 34 of the Land Acquisition Act which dealt with the payment of interest were not intended to apply to the proceedings before the arbitrator. It was observed : Stated broadly the act of taking possession of immovable property generally implied an agreement to pay interest on the value of the property and it is on this principle that a claim for interest is made against the State. The Court further observed : It would thus be noticed that the claim for interest proceeds on the assumption that when the owner of immovable property loses possession of it he is entitled to claim interest in place of right to retain possession. The question which we have to consider is whether the application of this rule is intended to be excluded by the Act of 1948, and as we have already observed, the mere fact that Section 5 (e) of the Act makes Section 23(1) of the Land Acquisition Act of 1894 applicable we cannot reasonably infer that the Act intends to exclude the application of this general rule in the matter of the payment of interest. The Court also observed : When a claim for payment of interest is made by a person whose immovable property has been acquired compulsorily he is not making claim for damages properly or technically so called; he is basing his claim on the general rule that if he is deprived of his land he should be put in possession or compensation immediately; if not, in lieu of possession taken by compulsory acquisition interest should be paid to him on the said amount of compensation. The scheme of the East Punjab Acquisition and Requisition of Immovable Property (Temporary Powers) Act, l948 is similar to the scheme of the Requisitioned Land (Continuance of Powers) Act, 1947. The Court in Satinder Singhs case, (l96l) 3 SCR 676 = (AIR 1961 SC 908 ) held that because of the injunction expressly to apply the provisions of Section 23 (1) of the Land Acquisition Act, 1894, in the determination of compensation, the application of Sections 28 and 34 dealing with the payment of interest on the amount awarded as compensation cannot be deemed excluded. The Court also held that when the owner of property is dispossessed pursuant to an order for compulsory acquisition an agreement that the acquiring authority will pay interest on the amount of compensation is implied. 11. The reasoning on which the right of the owner of the lands acquired to interest was affirmed in Satinder Singhs case, (1961) 3 SCR 676 = (AIR 1961 SC 908 ) prima facie, applies in this case. Counsel for the assessees contended that the application of Sections 28 and 34 of the Land Acquisition Act in proceedings for arbitration under the Requisitioned Lands (Continuance of Powers) Act, 1947, was expressly excluded by Section 19 (1) (g) of the Defence of India Act which enacted that : Save as provided in this Section and in any rules made thereunder, nothing in any law for the time being. in force shall apply to arbitration under this Section. But Clause (g) is not susceptible of any such interpretation. Clauses (a) to (f) of Section 19 (1) are a Code relating to arbitration in determining the compensation payable to a person deprived of his property. Provisions relating to payment of interest are not, however, part of the law relating to arbitration and there is nothing in clause (g) which excludes the application of the substantive law relating to payment of interest when the arbitration is determining the amount of compensation. 12. We are therefore of the view that the principle on which (l924) 8 Tax Cas 595 and (1929) 14 Tax Cas 580 were based has no application to this case. It may be recalled that in those cases the arbitrator and the Arbitral Tribunal were in awarding interest, not seeking to give effect to or to recognize a right to interest, conferred by statute or contract. The source of the right to interest in both the cases did not arise from the statute or agreement.In the case on hand, the right to interest arose by virtue of the provisions of Sections 28 and 34 of the Land Acquisition Act, 1894, and the arbitrator and the High Court merely gave effect to that right in awarding interest on the amount of compensation. Interest received by the assessee was therefore properly held taxable.
### Response:
0
### Explanation:
right of the owner of the lands acquired to interest was affirmed in Satinder Singhs case, (1961) 3 SCR 676 = (AIR 1961 SC 908 ) prima facie, applies in this case12. We are therefore of the view that the principle on which (l924) 8 Tax Cas 595 and (1929) 14 Tax Cas 580 were based has no application to this case. It may be recalled that in those cases the arbitrator and the Arbitral Tribunal were in awarding interest, not seeking to give effect to or to recognize a right to interest, conferred by statute or contract. The source of the right to interest in both the cases did not arise from the statute or agreement.In the case on hand, the right to interest arose by virtue of the provisions of Sections 28 and 34 of the Land Acquisition Act, 1894, and the arbitrator and the High Court merely gave effect to that right in awarding interest on the amount of compensation. Interest received by the assessee was therefore properly held taxable9. But it must be noticed that liability to pay interest arose in Ballantines case, (1924) 8 Tax Cas 595 under the award of the arbitrator and in the Executors of Bonner Maurice as Executor of Edward Kays case, (1929) 14 Tax Cas 580 under the order of the Mixed Arbitral Tribunal and in each case it was held that what was paid, though called interest, was in truth compensation for loss suffered on account of deprivation ofg to the view taken by this Court in Dr. Shamlal Narulas case,3 ITR 151 = (AIR 1964 SC 1878 ) if the source of the obligation imposed by the statute to pay interest arises because the claimant is kept out of his money, the interest received is chargeable to tax as income. The same principle would apply if interest is payable under the terms of an agreement and the Court or the arbitrator gives effect to the terms of theand awards interest which has been agreed to be paid10. It is therefore necessary to determine whetherthe obligation to pay interest awarded under the order of the High Court of Madras arose out of the statute or out of the. In Satinder Singh v. Umrao Singh, (1961) 3 SCR 676 = (AIR 1961 SC 908 ) lands forming part ofj Jagir were compulsorily acquired under the East Punjab Acquisition and Requisition of Immovable Property (Temporary Powers) Act, 1948. The claimants to the lands claimed in addition to statutory compensation interest from the date from which they were dispossessed and till the date of payment of compensation. The arbitrator appointed under the Act awarded interest on the amount of compensation and the High Court of Punjab in appeal confirmed the order. This Court held that the claimants were entitled to interest on the compensation amount from the date of dispossession till the date on which the amount of compensation was paid to the claimants. Section 5 of the East Punjab Acquisition and Requisition of Immovable Property (Temporary Powers) Act, 1948, set out the principles according to which compensation was to be paid in regard to the acquired property, and by clause (e) thereof it was provided that the arbitrator in making the award shall have regard to the provisions ofn (1) of Section 23 of the Land Acquisition Act, 1894 in so far as the same may be applicable. The Act contained no express provision for payment of interest on compensation determined by the arbitrator. This Court rejected the contention of the State of Punjab, that Sections 28 and 34 of the Land Acquisition Act which dealt with the payment of interest were not intended to apply to the proceedings before the arbitrator. It was observed :Stated broadly the act of taking possession of immovable property generally implied an agreement to pay interest on the value of the property and it is on this principle that a claim for interest is made against the StateThe Court further observed :It would thus be noticed that the claim for interest proceeds on the assumption that when the owner of immovable property loses possession of it he is entitled to claim interest in place of right to retain possession. The question which we have to consider is whether the application of this rule is intended to be excluded by the Act of 1948, and as we have already observed, the mere fact that Section 5 (e) of the Act makes Section 23(1) of the Land Acquisition Act of 1894 applicable we cannot reasonably infer that the Act intends to exclude the application of this general rule in the matter of the payment of interestThe Court also observed :When a claim for payment of interest is made by a person whose immovable property has been acquired compulsorily he is not making claim for damages properly or technically so called; he is basing his claim on the general rule that if he is deprived of his land he should be put in possession or compensation immediately; if not, in lieu of possession taken by compulsory acquisition interest should be paid to him on the said amount of compensationThe scheme of the East Punjab Acquisition and Requisition of Immovable Property (Temporary Powers) Act, l948 is similar to the scheme of the Requisitioned Land (Continuance of Powers) Act, 1947. The Court in Satinder Singhs case, (l96l) 3 SCR 676 = (AIR 1961 SC 908 ) held that because of the injunction expressly to apply the provisions of Section 23 (1) of the Land Acquisition Act, 1894, in the determination of compensation, the application of Sections 28 and 34 dealing with the payment of interest on the amount awarded as compensation cannot be deemed excluded. The Court also held that when the owner of property is dispossessed pursuant to an order for compulsory acquisition an agreement that the acquiring authority will pay interest on the amount of compensation is implied.
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Nasiruddin & Others Vs. State of Uttar Pradesh through Secretary | regarded as an instrument by which tolls of any description are let. In other words, by awarding such contract to the appellants, the Corporation had let their right to the appellants to collect the fees from a class of persons and for carrying on particular activity in the city.17. The expression "Lease" under the Stamp Act has a wider meaning as compared to its original meaning contained in Section 105 of Transfer of Property Act (for short "the T.P. Act"). If "Lease" under Section 2(16) of the Stamp Act includes therein four specified category of documents set out in clauses (a) to (d), we do not find any such inclusion in Section 105 of the Transfer of Property Act. It is for this reason, we are of the view that the definition of "Lease" for the purpose of Stamp Act is extensive in nature. It is also clear from the use of the expression "and includes also" in Section 2 (16) of the Stamp Act.18. So by fiction, "any instrument by which tolls of any description are let" is considered as "Lease" for the purpose of payment of stamp duty under the Stamp Act.19. Justice G.P. Singh, the learned author in his book "Principles of Statutory Interpretation" in 13th edition - at pages 179 and 180 has dealt with this subject under the heading "Definition sections or interpretation clause". In its sub-heading (a) "Restrictive and extensive definition", the author has explained as to where the words "mean", "include", "includes", and "means and includes" are used in any definition clause in the Act then how such definition should be interpreted. The following passage is apposite to quote."(a) Restrictive and extensive definitionsThe Legislature has power to define a word even artificially. So the definition of a word in the definition section may either be restrictive of its ordinary meaning or it may be extensive of the same. When a word is defined to `mean such and such, the definition is prima facie restrictive and exhaustive; whereas, where the word defined is declared to `include such and such, the definition is prima facie extensive. When by an amending Act, the word `includes was substituted for the word `means in a definition section, it was held that the intention was to make it more extensive. Further, a definition may be in the form of `means and includes, where again the definition is exhaustive, on the other hand, if a word is defined `to apply to and include, the definition is understood as extensive. These meanings of the expressions `means, `includes and `means and includes have been reiterated in Delhi Development Authority v. Bhola Nath Sharma, 2011(1) R.C.R.(Civil) 820 : 2011(1) Recent Apex Judgments (R.A.J.) 296 : (2011) 2 SCC 54. The use of word `any e.g. any building also connotes extension for `any is a word of very wide meaning and prima facie the use of it excludes limitation."20. In our opinion, the aforesaid rule of interpretation applies while interpreting the definition of Lease under Section 2(16) of the Stamp Act.21. As mentioned above, the Corporation in these cases awarded the contract to the appellants to recover the tolls (fees) from squatters, vendors, kiosks etc. and for parking the vehicles in specified places. The contract was, therefore, for recovery of tolls and created rights and liabilities in favour of contracting parties qua each other. It cannot be disputed that the expression "tolls of any description" in clause (c) would include all kinds of levy, charges, fees etc. which the Corporation is entitled to charge under its Bye-laws (41). A fortiori, the fees in question would also fall under Section 2(16)(c) of the Stamp Act.22. In our opinion, the contract in question also satisfied the definition of the expression "Instrument" as defined in Section 2(14) of the Stamp Act because it created a right and liability and lastly, it also satisfied the definition of expression "executed" and "execution" as defined in Section 2 (12) of the Stamp Act because it contained the signature of contracting parties.23. Learned counsel for the appellants, however, placed reliance on the decision of this Court in New Bus-Stand Shop Owners Association v. Corporaton of Kozhikode & Anr. 2010(1) R.C.R.(Civil) 404 : 2010(1) Recent Apex Judgments (R.A.J.) 15 : [2009 (10) SCC 455 ] and contended that in the light of the law laid down in the case of New Bus-stand Shop Owners Association (supra), the contract in question has characteristics of a "license" but not of a "lease" and, therefore, the contract would attract a stamp duty payable on a License Deed under the Stamp Act.24. In our view, the law laid down in the case of New Bus-stand Shop Owners Association (supra) is not applicable to the case at hand and is distinguishable on facts.25. In the case of New Bus-stand Shop Owners Association (supra), the Corporation of Kozhikode had let out their shops to several persons and executed agreement in their favour. The question, however, arose as to the true nature of the agreement, whether it is a "license agreement" or a "lease agreement". Their Lordships on construction of the terms of agreement held that the agreement was a license and accordingly chargeable to stamp duty as "License" under the Kerala Stamp Act.26. Such is not the case here. The case at hand relates to the right to collect the tolls let by the Corporation to the person concerned. It squarely attracts Section 2(16)(c) of the Stamp Act and partakes the character of a "Lease".27. In the light of foregoing discussion, we are of the considered opinion that the contract in question is a "Lease" as defined in Section 2(16)(c) of the Stamp Act and is accordingly chargeable to payment of stamp duty as per the rates prescribed in Article 35 of Schedule I of the Stamp Act as "Lease". The conclusion arrived at by the Single Judge in Mohammad Ali v. Board of Revenue, U.P. (supra) is, therefore, correct which we support with our reasoning given supra. | 0[ds]11. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals. In our opinion, the conclusion arrived at by the High Court in the case of Mohammad Ali v. Board of Revenue, U.P. (supra) is just and proper calling for no interference for the reasons given by us hereinbelow.In our considered opinion, reading of the contract in question would show that it was meant to collect tolls (fees) called "Tehbazari" in local parlance from squatters, venders, kiosks etc. and was for collecting parking fees. Such contract, in our view, is regarded as an instrument by which tolls of any description are let. In other words, by awarding such contract to the appellants, the Corporation had let their right to the appellants to collect the fees from a class of persons and for carrying on particular activity in the city.17. The expression "Lease" under the Stamp Act has a wider meaning as compared to its original meaning contained in Section 105 of Transfer of Property Act (for short "the T.P. Act"). If "Lease" under Section 2(16) of the Stamp Act includes therein four specified category of documents set out in clauses (a) to (d), we do not find any such inclusion in Section 105 of the Transfer of Property Act. It is for this reason, we are of the view that the definition of "Lease" for the purpose of Stamp Act is extensive in nature. It is also clear from the use of the expression "and includes also" in Section 2 (16) of the Stamp Act.In our opinion, the aforesaid rule of interpretation applies while interpreting the definition of Lease under Section 2(16) of the Stamp Act.21. As mentioned above, the Corporation in these cases awarded the contract to the appellants to recover the tolls (fees) from squatters, vendors, kiosks etc. and for parking the vehicles in specified places. The contract was, therefore, for recovery of tolls and created rights and liabilities in favour of contracting parties qua each other. It cannot be disputed that the expression "tolls of any description" in clause (c) would include all kinds of levy, charges, fees etc. which the Corporation is entitled to charge under its(41). A fortiori, the fees in question would also fall under Section 2(16)(c) of the Stamp Act.22. In our opinion, the contract in question also satisfied the definition of the expression "Instrument" as defined in Section 2(14) of the Stamp Act because it created a right and liability and lastly, it also satisfied the definition of expression "executed" and "execution" as defined in Section 2 (12) of the Stamp Act because it contained the signature of contracting parties.In our view, the law laid down in the case of NewShop Owners Association (supra) is not applicable to the case at hand and is distinguishable on facts.Such is not the case here. The case at hand relates to the right to collect the tolls let by the Corporation to the person concerned. It squarely attracts Section 2(16)(c) of the Stamp Act and partakes the character of a "Lease".27. In the light of foregoing discussion, we are of the considered opinion that the contract in question is a "Lease" as defined in Section 2(16)(c) of the Stamp Act and is accordingly chargeable to payment of stamp duty as per the rates prescribed in Article 35 of Schedule I of the Stamp Act as "Lease". The conclusion arrived at by the Single Judge in Mohammad Ali v. Board of Revenue, U.P. (supra) is, therefore, correct which we support with our reasoning given supra. | 0 | 2,834 | 739 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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regarded as an instrument by which tolls of any description are let. In other words, by awarding such contract to the appellants, the Corporation had let their right to the appellants to collect the fees from a class of persons and for carrying on particular activity in the city.17. The expression "Lease" under the Stamp Act has a wider meaning as compared to its original meaning contained in Section 105 of Transfer of Property Act (for short "the T.P. Act"). If "Lease" under Section 2(16) of the Stamp Act includes therein four specified category of documents set out in clauses (a) to (d), we do not find any such inclusion in Section 105 of the Transfer of Property Act. It is for this reason, we are of the view that the definition of "Lease" for the purpose of Stamp Act is extensive in nature. It is also clear from the use of the expression "and includes also" in Section 2 (16) of the Stamp Act.18. So by fiction, "any instrument by which tolls of any description are let" is considered as "Lease" for the purpose of payment of stamp duty under the Stamp Act.19. Justice G.P. Singh, the learned author in his book "Principles of Statutory Interpretation" in 13th edition - at pages 179 and 180 has dealt with this subject under the heading "Definition sections or interpretation clause". In its sub-heading (a) "Restrictive and extensive definition", the author has explained as to where the words "mean", "include", "includes", and "means and includes" are used in any definition clause in the Act then how such definition should be interpreted. The following passage is apposite to quote."(a) Restrictive and extensive definitionsThe Legislature has power to define a word even artificially. So the definition of a word in the definition section may either be restrictive of its ordinary meaning or it may be extensive of the same. When a word is defined to `mean such and such, the definition is prima facie restrictive and exhaustive; whereas, where the word defined is declared to `include such and such, the definition is prima facie extensive. When by an amending Act, the word `includes was substituted for the word `means in a definition section, it was held that the intention was to make it more extensive. Further, a definition may be in the form of `means and includes, where again the definition is exhaustive, on the other hand, if a word is defined `to apply to and include, the definition is understood as extensive. These meanings of the expressions `means, `includes and `means and includes have been reiterated in Delhi Development Authority v. Bhola Nath Sharma, 2011(1) R.C.R.(Civil) 820 : 2011(1) Recent Apex Judgments (R.A.J.) 296 : (2011) 2 SCC 54. The use of word `any e.g. any building also connotes extension for `any is a word of very wide meaning and prima facie the use of it excludes limitation."20. In our opinion, the aforesaid rule of interpretation applies while interpreting the definition of Lease under Section 2(16) of the Stamp Act.21. As mentioned above, the Corporation in these cases awarded the contract to the appellants to recover the tolls (fees) from squatters, vendors, kiosks etc. and for parking the vehicles in specified places. The contract was, therefore, for recovery of tolls and created rights and liabilities in favour of contracting parties qua each other. It cannot be disputed that the expression "tolls of any description" in clause (c) would include all kinds of levy, charges, fees etc. which the Corporation is entitled to charge under its Bye-laws (41). A fortiori, the fees in question would also fall under Section 2(16)(c) of the Stamp Act.22. In our opinion, the contract in question also satisfied the definition of the expression "Instrument" as defined in Section 2(14) of the Stamp Act because it created a right and liability and lastly, it also satisfied the definition of expression "executed" and "execution" as defined in Section 2 (12) of the Stamp Act because it contained the signature of contracting parties.23. Learned counsel for the appellants, however, placed reliance on the decision of this Court in New Bus-Stand Shop Owners Association v. Corporaton of Kozhikode & Anr. 2010(1) R.C.R.(Civil) 404 : 2010(1) Recent Apex Judgments (R.A.J.) 15 : [2009 (10) SCC 455 ] and contended that in the light of the law laid down in the case of New Bus-stand Shop Owners Association (supra), the contract in question has characteristics of a "license" but not of a "lease" and, therefore, the contract would attract a stamp duty payable on a License Deed under the Stamp Act.24. In our view, the law laid down in the case of New Bus-stand Shop Owners Association (supra) is not applicable to the case at hand and is distinguishable on facts.25. In the case of New Bus-stand Shop Owners Association (supra), the Corporation of Kozhikode had let out their shops to several persons and executed agreement in their favour. The question, however, arose as to the true nature of the agreement, whether it is a "license agreement" or a "lease agreement". Their Lordships on construction of the terms of agreement held that the agreement was a license and accordingly chargeable to stamp duty as "License" under the Kerala Stamp Act.26. Such is not the case here. The case at hand relates to the right to collect the tolls let by the Corporation to the person concerned. It squarely attracts Section 2(16)(c) of the Stamp Act and partakes the character of a "Lease".27. In the light of foregoing discussion, we are of the considered opinion that the contract in question is a "Lease" as defined in Section 2(16)(c) of the Stamp Act and is accordingly chargeable to payment of stamp duty as per the rates prescribed in Article 35 of Schedule I of the Stamp Act as "Lease". The conclusion arrived at by the Single Judge in Mohammad Ali v. Board of Revenue, U.P. (supra) is, therefore, correct which we support with our reasoning given supra.
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11. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals. In our opinion, the conclusion arrived at by the High Court in the case of Mohammad Ali v. Board of Revenue, U.P. (supra) is just and proper calling for no interference for the reasons given by us hereinbelow.In our considered opinion, reading of the contract in question would show that it was meant to collect tolls (fees) called "Tehbazari" in local parlance from squatters, venders, kiosks etc. and was for collecting parking fees. Such contract, in our view, is regarded as an instrument by which tolls of any description are let. In other words, by awarding such contract to the appellants, the Corporation had let their right to the appellants to collect the fees from a class of persons and for carrying on particular activity in the city.17. The expression "Lease" under the Stamp Act has a wider meaning as compared to its original meaning contained in Section 105 of Transfer of Property Act (for short "the T.P. Act"). If "Lease" under Section 2(16) of the Stamp Act includes therein four specified category of documents set out in clauses (a) to (d), we do not find any such inclusion in Section 105 of the Transfer of Property Act. It is for this reason, we are of the view that the definition of "Lease" for the purpose of Stamp Act is extensive in nature. It is also clear from the use of the expression "and includes also" in Section 2 (16) of the Stamp Act.In our opinion, the aforesaid rule of interpretation applies while interpreting the definition of Lease under Section 2(16) of the Stamp Act.21. As mentioned above, the Corporation in these cases awarded the contract to the appellants to recover the tolls (fees) from squatters, vendors, kiosks etc. and for parking the vehicles in specified places. The contract was, therefore, for recovery of tolls and created rights and liabilities in favour of contracting parties qua each other. It cannot be disputed that the expression "tolls of any description" in clause (c) would include all kinds of levy, charges, fees etc. which the Corporation is entitled to charge under its(41). A fortiori, the fees in question would also fall under Section 2(16)(c) of the Stamp Act.22. In our opinion, the contract in question also satisfied the definition of the expression "Instrument" as defined in Section 2(14) of the Stamp Act because it created a right and liability and lastly, it also satisfied the definition of expression "executed" and "execution" as defined in Section 2 (12) of the Stamp Act because it contained the signature of contracting parties.In our view, the law laid down in the case of NewShop Owners Association (supra) is not applicable to the case at hand and is distinguishable on facts.Such is not the case here. The case at hand relates to the right to collect the tolls let by the Corporation to the person concerned. It squarely attracts Section 2(16)(c) of the Stamp Act and partakes the character of a "Lease".27. In the light of foregoing discussion, we are of the considered opinion that the contract in question is a "Lease" as defined in Section 2(16)(c) of the Stamp Act and is accordingly chargeable to payment of stamp duty as per the rates prescribed in Article 35 of Schedule I of the Stamp Act as "Lease". The conclusion arrived at by the Single Judge in Mohammad Ali v. Board of Revenue, U.P. (supra) is, therefore, correct which we support with our reasoning given supra.
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Smt. Shaharyar Bano and Another Vs. Sanwal Das | the trial Court refused to give a decree for specific performance on the ground that the agreement was vague. The High Court took the view that the agreement included the portion occupied by the defendants as well as the portion let out to the tenants, in other words that the defendants had agreed to sell all what they owned in these premises except the portion to the left of the passage which had been given to their maternal uncle. We have carefully gone through the evidence and are of the view that what was agreed to be sold was only the portion which was in the occupation of the defendants and the agreement did not include the portion which was let out to the tenants. It follows that the passage would be common to the portion in the occupation of the defendants as well as the portion let out to the tenants. 5. In the plaint as originally filed the plaintiff had only stated that the defendants had contracted to sell to him a house. By a later amendment a map was attached to the plaint and both the portions were claimed. After the amendment of the plaint the 1st defendant specifically stated that the plaintiff has included in the site plan and in the boundaries described in the plaint two houses, that the portion described on the western side of the site plan is entirely a separate house and has nothing to do with the alleged agreement. She also stated that the passage was not included in the agreement. That all the witnesses as well as parties proceeded on the basis that the portion occupied by the defendants was one house and the portion let out to the tenants was another house would be obvious from the evidence which we will presently set out. 6. Though the plaintiff in his evidence says that he questioned the 1st defendant about the entire house which she wanted to sell, he explained it by saying that the entire house meant the door, sahan (probably open courtyard) beyond the door and the double storey which was in the outer portion of the house in which she resides, he does not say anything about the house in the occupation of the tenants. In cross-examination he stated that two houses are not there, there is only one house containing three sahans (open courtyard), outer double storeyed (house) of the western side is not the separate house but it is the portion of this very house. He admits that the defendants told him that there were tenants in the outer double storeyed portion. This is important because the agreement, Ex. P-1 mentions only the house in which the defendants were living. It does not mention the portion which was in the occupation of the tenants and it was for the plaintiff to have made sure if he wanted his agreement to include the portion in the occupation of the tenants to have it specifically mentioned. P. W. 2 states that when he went to the defendants in order to bargain about the purchase of the house they told him that they wanted to sell the sahan together with the double storeyed building, meaning thereby the portion in the occupation of the tenants. But in cross-examination he speaks of the front double storeyed house (meaning the portion in the occupation of the tenants) and the house towards the right (meaning the portion in the occupation of the defendants) P. W. 3 states that the defendants told him that they wanted to sell sahan of the inner side adjacent tothe main gate, double storeyed house behind the sahan, the house in which they were living and two sahans to its back side. But even he did not say, when Ex. P-1 was written and read over, that there should be mention about the portion occupied by the tenants. He also says that inside the door after passing through the sahan one has to go into the houses showing thereby that the portion in the occupation of the tenants and the portion in the occupation of the defendants were treated as two different houses. D. W. 1 states that besides the residential home of Shaharyar Bano (1st defendant) there was a khandhar (dilapidated portion of a house) and one house also in her property and this second house was at the last end of the passage which was in front of the residential house of Shaharyar Bano. Nothing was elicited in his cross-examination to establish anything to the contrary, D. W. 3 who was once in occupation as a tenant of the portion now in dispute stated that he was a tenant in the separate house from the residential house of Shaharyar Bano and that for going to the house in which he was living, he was required to go through the passage from inside the main gate, and the house in which Shaharyar Bano resides and the house in which he was living as a tenant were separate. He was not even cross-examined. 7. It is therefore obvious that everybody concerned in the matter proceeded on the assumption that there were two houses, one occupied by defendants and another in the occupation of the tenants. The agreement mentions the house in which the defendants were living as the subject matter of the agreement. The words entire house cannot in any way militate against this fact. It will only by the entire house which the defendants were living. As we stated earlier, the plaintiff was aware of the fact that there was a portion of the premises which was referred to and understood as a separate house by all those concerned and which was in the occupation of the tenants. If the agreement was to include that portion also it was his duty to have it specifically mentioned in the agreement. Not having done so he has got to fail in his claim regarding that portion of the house. | 1[ds]Points 1 and 2do not really call for much comments nor are they susceptible to much argumentin their support. The contract, Ex.1 is quite clear and definite. The fact that the vendee was asked to consult his pleader and get pacci receipt executed did not make the contract dependent upon the vendee consulting his pleader and getting the pacci receipt. The fact that he did not return thereafter to get pacci receipt does not make the contracts binding on the appellants. As regards the rights of the, it appears that some of them applied to be added as parties in this suit and on the plaintiffs objection their applications were dismissed. We do not see how it affects right of the plaintiff to get the decree for specific performance of the agreement with him if he is prepared to take what the defendants agreed to convey to him and took the risk of its turning out to be less than what they had agreed to sell to him. That is an effect what the High Court has provided and we see no. flaw in this4. The most important point is what was it that was agreed to be sold. It appears that the premises in question, to use that colourless term because of the confusion which the use of the word house has led to in this case, seems to consist of three portions and a passage. In one of the portions the defendants were residing. That was to the right hand side of the passage. At the end of the passage was another portion which had been leased to tenants, and to the left hand side of the passage was the portion which is specifically excepted from the agreement as having been given to the maternal uncle of the defendants. The claim of the plaintiff was for the house occupied by the defendant as well as the house which was let out to the tenants and the passage as a whole. According to the defendants only the house which they were occupying was agreed to be sold. It is because of this confusion that the trial Court refused to give a decree for specific performance on the ground that the agreement was vague. The High Court took the view that the agreement included the portion occupied by the defendants as well as the portion let out to the tenants, in other words that the defendants had agreed to sell all what they owned in these premises except the portion to the left of the passage which had been given to their maternal uncle. We have carefully gone through the evidence and are of the view that what was agreed to be sold was only the portion which was in the occupation of the defendants and the agreement did not include the portion which was let out to the tenants. It follows that the passage would be common to the portion in the occupation of the defendants as well as the portion let out to the tenants7. It is therefore obvious that everybody concerned in the matter proceeded on the assumption that there were two houses, one occupied by defendants and another in the occupation of the tenants. The agreement mentions the house in which the defendants were living as the subject matter of the agreement. The words entire house cannot in any way militate against this fact. It will only by the entire house which the defendants were living. As we stated earlier, the plaintiff was aware of the fact that there was a portion of the premises which was referred to and understood as a separate house by all those concerned and which was in the occupation of the tenants. If the agreement was to include that portion also it was his duty to have it specifically mentioned in the agreement. Not having done so he has got to fail in his claim regarding that portion of the house. | 1 | 2,117 | 700 | ### 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 trial Court refused to give a decree for specific performance on the ground that the agreement was vague. The High Court took the view that the agreement included the portion occupied by the defendants as well as the portion let out to the tenants, in other words that the defendants had agreed to sell all what they owned in these premises except the portion to the left of the passage which had been given to their maternal uncle. We have carefully gone through the evidence and are of the view that what was agreed to be sold was only the portion which was in the occupation of the defendants and the agreement did not include the portion which was let out to the tenants. It follows that the passage would be common to the portion in the occupation of the defendants as well as the portion let out to the tenants. 5. In the plaint as originally filed the plaintiff had only stated that the defendants had contracted to sell to him a house. By a later amendment a map was attached to the plaint and both the portions were claimed. After the amendment of the plaint the 1st defendant specifically stated that the plaintiff has included in the site plan and in the boundaries described in the plaint two houses, that the portion described on the western side of the site plan is entirely a separate house and has nothing to do with the alleged agreement. She also stated that the passage was not included in the agreement. That all the witnesses as well as parties proceeded on the basis that the portion occupied by the defendants was one house and the portion let out to the tenants was another house would be obvious from the evidence which we will presently set out. 6. Though the plaintiff in his evidence says that he questioned the 1st defendant about the entire house which she wanted to sell, he explained it by saying that the entire house meant the door, sahan (probably open courtyard) beyond the door and the double storey which was in the outer portion of the house in which she resides, he does not say anything about the house in the occupation of the tenants. In cross-examination he stated that two houses are not there, there is only one house containing three sahans (open courtyard), outer double storeyed (house) of the western side is not the separate house but it is the portion of this very house. He admits that the defendants told him that there were tenants in the outer double storeyed portion. This is important because the agreement, Ex. P-1 mentions only the house in which the defendants were living. It does not mention the portion which was in the occupation of the tenants and it was for the plaintiff to have made sure if he wanted his agreement to include the portion in the occupation of the tenants to have it specifically mentioned. P. W. 2 states that when he went to the defendants in order to bargain about the purchase of the house they told him that they wanted to sell the sahan together with the double storeyed building, meaning thereby the portion in the occupation of the tenants. But in cross-examination he speaks of the front double storeyed house (meaning the portion in the occupation of the tenants) and the house towards the right (meaning the portion in the occupation of the defendants) P. W. 3 states that the defendants told him that they wanted to sell sahan of the inner side adjacent tothe main gate, double storeyed house behind the sahan, the house in which they were living and two sahans to its back side. But even he did not say, when Ex. P-1 was written and read over, that there should be mention about the portion occupied by the tenants. He also says that inside the door after passing through the sahan one has to go into the houses showing thereby that the portion in the occupation of the tenants and the portion in the occupation of the defendants were treated as two different houses. D. W. 1 states that besides the residential home of Shaharyar Bano (1st defendant) there was a khandhar (dilapidated portion of a house) and one house also in her property and this second house was at the last end of the passage which was in front of the residential house of Shaharyar Bano. Nothing was elicited in his cross-examination to establish anything to the contrary, D. W. 3 who was once in occupation as a tenant of the portion now in dispute stated that he was a tenant in the separate house from the residential house of Shaharyar Bano and that for going to the house in which he was living, he was required to go through the passage from inside the main gate, and the house in which Shaharyar Bano resides and the house in which he was living as a tenant were separate. He was not even cross-examined. 7. It is therefore obvious that everybody concerned in the matter proceeded on the assumption that there were two houses, one occupied by defendants and another in the occupation of the tenants. The agreement mentions the house in which the defendants were living as the subject matter of the agreement. The words entire house cannot in any way militate against this fact. It will only by the entire house which the defendants were living. As we stated earlier, the plaintiff was aware of the fact that there was a portion of the premises which was referred to and understood as a separate house by all those concerned and which was in the occupation of the tenants. If the agreement was to include that portion also it was his duty to have it specifically mentioned in the agreement. Not having done so he has got to fail in his claim regarding that portion of the house.
### Response:
1
### Explanation:
Points 1 and 2do not really call for much comments nor are they susceptible to much argumentin their support. The contract, Ex.1 is quite clear and definite. The fact that the vendee was asked to consult his pleader and get pacci receipt executed did not make the contract dependent upon the vendee consulting his pleader and getting the pacci receipt. The fact that he did not return thereafter to get pacci receipt does not make the contracts binding on the appellants. As regards the rights of the, it appears that some of them applied to be added as parties in this suit and on the plaintiffs objection their applications were dismissed. We do not see how it affects right of the plaintiff to get the decree for specific performance of the agreement with him if he is prepared to take what the defendants agreed to convey to him and took the risk of its turning out to be less than what they had agreed to sell to him. That is an effect what the High Court has provided and we see no. flaw in this4. The most important point is what was it that was agreed to be sold. It appears that the premises in question, to use that colourless term because of the confusion which the use of the word house has led to in this case, seems to consist of three portions and a passage. In one of the portions the defendants were residing. That was to the right hand side of the passage. At the end of the passage was another portion which had been leased to tenants, and to the left hand side of the passage was the portion which is specifically excepted from the agreement as having been given to the maternal uncle of the defendants. The claim of the plaintiff was for the house occupied by the defendant as well as the house which was let out to the tenants and the passage as a whole. According to the defendants only the house which they were occupying was agreed to be sold. It is because of this confusion that the trial Court refused to give a decree for specific performance on the ground that the agreement was vague. The High Court took the view that the agreement included the portion occupied by the defendants as well as the portion let out to the tenants, in other words that the defendants had agreed to sell all what they owned in these premises except the portion to the left of the passage which had been given to their maternal uncle. We have carefully gone through the evidence and are of the view that what was agreed to be sold was only the portion which was in the occupation of the defendants and the agreement did not include the portion which was let out to the tenants. It follows that the passage would be common to the portion in the occupation of the defendants as well as the portion let out to the tenants7. It is therefore obvious that everybody concerned in the matter proceeded on the assumption that there were two houses, one occupied by defendants and another in the occupation of the tenants. The agreement mentions the house in which the defendants were living as the subject matter of the agreement. The words entire house cannot in any way militate against this fact. It will only by the entire house which the defendants were living. As we stated earlier, the plaintiff was aware of the fact that there was a portion of the premises which was referred to and understood as a separate house by all those concerned and which was in the occupation of the tenants. If the agreement was to include that portion also it was his duty to have it specifically mentioned in the agreement. Not having done so he has got to fail in his claim regarding that portion of the house.
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Golla Rajanna Etc. Etc Vs. The Divisional Manager And Anr Etc Etc | petitioner No.1 has suffered 35% of the disablement, the second petitioner has suffered 35% of the disablement, the third petitioner has suffered 35% of disablement, the 4th and 5th petitioners have suffered 40% of disablement each and 6th petitioner has suffered 35% of the disablement with subsequent loss of earnings and decided the above issue No.1 in favour of the petitioners."4. Accordingly, the appellants were awarded the compensation based on their wages.5. The Insurance Company challenged the order passed by the Workmens Compensation Commissioner, under Section 30(1) of The Workmens Compensation Act, 1923 (hereinafter referred to as "the Act") mainly on the ground that the injuries had not been proved before the Workmens Compensation Commissioner, and therefore, the appellants were not entitled to the compensation as awarded by the Workmens Compensation Commissioner. The High Court has clearly held that ... "the dispute is in respect of the nature of injuries suffered by the claimants".6. The relevant consideration by the High Court appears at paragraph-9 of the impugned judgment:"9. ... this Court is of the opinion that the accident appears to be true involving the offending lory, but, the injuries said to have suffered by the claimants is not established, in as much as, there is no document on record to substantiate the same, except the wound certificates issued by the Community Health Centre immediately after the accident. However, the said document also appears to be fabricated and fails in as much as, the X-ray stated in each of these certificate is not proved by any one of the petitioners before the Commissioner. Assuming for a moment that the X-ray of the claimant was taken, where it was taken and when it was taken is not forthcoming. Admittedly, the Community Health Centre, are not provided with x-ray machine so as to take the X-ray and assess the nature of injuries suffered by the claimants. In that view of the matter, this Court feel that the entire exercise by the petitioners before the Commissioner is to create a make-believe situation to show that indeed in the said accident said to have taken place on 15.8.2008 (sic) they have suffered serious injuries which was resulted in permanent disability to whole body of each ranging from 35% to 40% resulting in loss of earning capacity to equal percentage. In that view of the matter, this Court feel that the grounds urged by the Insurance Company in these appeals appears to be true and correct which is required to be upheld by this Court."7. The High Court went further to hold that on the basis of the available evidence, the disability would only be to the extent of 5% of the whole body resulting in 5% of the loss of earning capacity. Paragraph-10 of the impugned judgment deals with the issue, which reads as follows:"10. In that view of the matter, the common judgment and order passed by the Tribunal in these petitions before the Commissioner is required to be modified having regard to the nature of injuries and disability suffered by the claimants due to the accident. Accordingly, this Court holds that all the petitioners before the Tribunal have suffered disability to the extent of 5% to the whole body resulting in 5% loss of earning capacity."8. Accordingly, the compensation has been reworked. Thus, aggrieved, the appellants are before this Court.9. Section 30 of the Act provides for appeals to the High Court. To the extent, the provision reads as follows:"30. Appeals.-(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:-(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;[(aa) an order awarding interest or penalty under section 4A;](b) an order refusing to allow redemption of a halfmonthly payment;(c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant;(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of subsection (2) of section 12; or(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions:Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appealand, in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees:"(Emphasis supplied)10. The Workmens Compensation Commissioner, having regard to the evidence, had returned a finding on the nature of injury and the percentage of disability. It is purely a question of fact. There is no case for the insurance company that the finding is based on no evidence at all or that it is perverse. Under Section 4(1)(c)(ii) of the Act, the percentage of permanent disability needs to be assessed only by a qualified medical practitioner. There is no case for the respondents that the doctor who issued the disability certificate is not a qualified medical practitioner, as defined under the Act. Thus, the Workmens Compensation Commissioner has passed the order based on the certificate of disability issued by the doctor and which has been duly proved before the Workmens Compensation Commissioner.11. Under the scheme of the Act, the Workmens Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act. | 1[ds]10. The Workmens Compensation Commissioner, having regard to the evidence, had returned a finding on the nature of injury and the percentage of disability. It is purely a question of fact. There is no case for the insurance company that the finding is based on no evidence at all or that it is perverse. Under Section 4(1)(c)(ii) of the Act, the percentage of permanent disability needs to be assessed only by a qualified medical practitioner. There is no case for the respondents that the doctor who issued the disability certificate is not a qualified medical practitioner, as defined under the Act. Thus, the Workmens Compensation Commissioner has passed the order based on the certificate of disability issued by the doctor and which has been duly proved before the Workmens Compensation Commissioner.11. Under the scheme of the Act, the Workmens Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation.Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured tothe evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act. | 1 | 1,289 | 256 | ### 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:
petitioner No.1 has suffered 35% of the disablement, the second petitioner has suffered 35% of the disablement, the third petitioner has suffered 35% of disablement, the 4th and 5th petitioners have suffered 40% of disablement each and 6th petitioner has suffered 35% of the disablement with subsequent loss of earnings and decided the above issue No.1 in favour of the petitioners."4. Accordingly, the appellants were awarded the compensation based on their wages.5. The Insurance Company challenged the order passed by the Workmens Compensation Commissioner, under Section 30(1) of The Workmens Compensation Act, 1923 (hereinafter referred to as "the Act") mainly on the ground that the injuries had not been proved before the Workmens Compensation Commissioner, and therefore, the appellants were not entitled to the compensation as awarded by the Workmens Compensation Commissioner. The High Court has clearly held that ... "the dispute is in respect of the nature of injuries suffered by the claimants".6. The relevant consideration by the High Court appears at paragraph-9 of the impugned judgment:"9. ... this Court is of the opinion that the accident appears to be true involving the offending lory, but, the injuries said to have suffered by the claimants is not established, in as much as, there is no document on record to substantiate the same, except the wound certificates issued by the Community Health Centre immediately after the accident. However, the said document also appears to be fabricated and fails in as much as, the X-ray stated in each of these certificate is not proved by any one of the petitioners before the Commissioner. Assuming for a moment that the X-ray of the claimant was taken, where it was taken and when it was taken is not forthcoming. Admittedly, the Community Health Centre, are not provided with x-ray machine so as to take the X-ray and assess the nature of injuries suffered by the claimants. In that view of the matter, this Court feel that the entire exercise by the petitioners before the Commissioner is to create a make-believe situation to show that indeed in the said accident said to have taken place on 15.8.2008 (sic) they have suffered serious injuries which was resulted in permanent disability to whole body of each ranging from 35% to 40% resulting in loss of earning capacity to equal percentage. In that view of the matter, this Court feel that the grounds urged by the Insurance Company in these appeals appears to be true and correct which is required to be upheld by this Court."7. The High Court went further to hold that on the basis of the available evidence, the disability would only be to the extent of 5% of the whole body resulting in 5% of the loss of earning capacity. Paragraph-10 of the impugned judgment deals with the issue, which reads as follows:"10. In that view of the matter, the common judgment and order passed by the Tribunal in these petitions before the Commissioner is required to be modified having regard to the nature of injuries and disability suffered by the claimants due to the accident. Accordingly, this Court holds that all the petitioners before the Tribunal have suffered disability to the extent of 5% to the whole body resulting in 5% loss of earning capacity."8. Accordingly, the compensation has been reworked. Thus, aggrieved, the appellants are before this Court.9. Section 30 of the Act provides for appeals to the High Court. To the extent, the provision reads as follows:"30. Appeals.-(1) An appeal shall lie to the High Court from the following orders of a Commissioner, namely:-(a) an order awarding as compensation a lump sum whether by way of redemption of a half-monthly payment or otherwise or disallowing a claim in full or in part for a lump sum;[(aa) an order awarding interest or penalty under section 4A;](b) an order refusing to allow redemption of a halfmonthly payment;(c) an order providing for the distribution of compensation among the dependants of a deceased workman, or disallowing any claim of a person alleging himself to be such dependant;(d) an order allowing or disallowing any claim for the amount of an indemnity under the provisions of subsection (2) of section 12; or(e) an order refusing to register a memorandum of agreement or registering the same or providing for the registration of the same subject to conditions:Provided that no appeal shall lie against any order unless a substantial question of law is involved in the appealand, in the case of an order other than an order such as is referred to in clause (b), unless the amount in dispute in the appeal is not less than three hundred rupees:"(Emphasis supplied)10. The Workmens Compensation Commissioner, having regard to the evidence, had returned a finding on the nature of injury and the percentage of disability. It is purely a question of fact. There is no case for the insurance company that the finding is based on no evidence at all or that it is perverse. Under Section 4(1)(c)(ii) of the Act, the percentage of permanent disability needs to be assessed only by a qualified medical practitioner. There is no case for the respondents that the doctor who issued the disability certificate is not a qualified medical practitioner, as defined under the Act. Thus, the Workmens Compensation Commissioner has passed the order based on the certificate of disability issued by the doctor and which has been duly proved before the Workmens Compensation Commissioner.11. Under the scheme of the Act, the Workmens Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation. Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured to re-appreciate the evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act.
### Response:
1
### Explanation:
10. The Workmens Compensation Commissioner, having regard to the evidence, had returned a finding on the nature of injury and the percentage of disability. It is purely a question of fact. There is no case for the insurance company that the finding is based on no evidence at all or that it is perverse. Under Section 4(1)(c)(ii) of the Act, the percentage of permanent disability needs to be assessed only by a qualified medical practitioner. There is no case for the respondents that the doctor who issued the disability certificate is not a qualified medical practitioner, as defined under the Act. Thus, the Workmens Compensation Commissioner has passed the order based on the certificate of disability issued by the doctor and which has been duly proved before the Workmens Compensation Commissioner.11. Under the scheme of the Act, the Workmens Compensation Commissioner is the last authority on facts. The Parliament has thought it fit to restrict the scope of the appeal only to substantial questions of law, being a welfare legislation.Unfortunately, the High Court has missed this crucial question of limited jurisdiction and has ventured tothe evidence and recorded its own findings on percentage of disability for which also there is no basis. The whole exercise made by the High Court is not within the competence of the High Court under Section 30 of the Act.
|
M/S. Empire Industries Limited Vs. State of Maharashtra, Industries, Energy and Labour Department & Others | in conditions of service in respect of any matter specified in Fourth Schedule. In other words, if the change proposed does not cover any matter in Fourth schedule, section 9A is not attracted and in that case no notice would be necessary. Therefore, for the employer, who desires to reduce or remove surplus workmen, section 9A read with item No.11 in the Fourth Schedule clearly provides the machinery by which that exercise could be undertaken.8. At this stage we would also like to consider an alternative submission advanced by Ms.Gayatri Singh, learned counsel for respondent no.3 - union, that it was possible for the appellant to terminate the services of the workmen by following the procedure under section 25N of the I.D. Act since admittedly there were more than 100 workmen working in the company. It was not disputed that the company had more than 100 workmen at the relevant time. As a matter of fact, the workmen working at the relevant time were above 400. The provisions under section 25N for retrenchment and section 250 for closure in Chapter V-B of the I.D. Act are mandatory as held by the Apex Court in Workmen of Meenakshi Mills Ltd. and ors Vs. Meenakshi Mills Ltd. and Anr., (1992) 3 SCC 336. These provisions provide that in case of retrenchment the company has to make an application seeking retrenchment of a particular number of employees, giving details, seniority etc of the employees and the nature of their work and further justification for the said retrenchment. Notice of its application also requires to be given to the workmen. The appropriate authorities, after giving an opportunity of being heard and considering an evidence on record, is expected to pass order under section 25N. It was therefore, submitted that even if it is assumed in the facts of the present case, that the provisions of section 9A are not attracted, it was open for the appellant to resort to the remedy provided under section 25N of the I.D. Act for reduction of manpower and the company was not bound/obliged to raise the dispute by issuing notice of lock out.9. The employer cannot be encouraged to resort to an indirect method to defeat the very object and the scheme of the I.D. Act by allowing it to raise a dispute which, otherwise, could be dealt with by resorting to the mandatory provisions in the I.D. Act. By allowing the management to raise a dispute, such as reduction of manpower, which could be remedied by resorting to the provisions of the I.D. Act cannot be allowed to be raised by issuing a lock out notice and seek reference under section 10(1). If the employer is allowed to raise such dispute, it would not only defeat the object of the Act but it would render the provisions which are mandatory in nature meaningless. The I.D. Act provides the manner and the machinery by which an exercise of reduction of surplus workmen can be undertaken. As observed by the learned Single Judge and with which we respectfully agree that apart from following the procedural requirements, there is no embargo on the employer to reduce the number of workmen and, therefore, the demand of reduction of the manpower in the present case is not a dispute which the employer was obliged/bound to raise with the workmen and to have it referred for adjudication at the instance of the employer. The learned Single Judge has rightly rejected the contention advanced on behalf of the appellant that the issue of reduction of manpower also ought to have been referred for adjudication. As observed earlier, the scheme of I.D. Act provides sufficient machinery for reduction of workmen.10. In the present case, it cannot be overlooked that when a notice of change dated 27.8.1990 under section 9A was given by the appellant it was given only for fixing ceiling on D.A. and no reference whatsoever was made in the said notice to their demand of reduction of surplus labour. Respondent No.1 made reference vide their order dated 12.2.1992 in pursuance of the notice of change that was given under section 9A by the appellant for fixing ceiling on D.A, whereas the notice of lock out was given on 28.9.1991 and it was started on 14.10.1991. The reference under section 10(1) in pursuance of the charter of demands dated 21.11.1991 was made on 23.9.1992. The aforementioned dates clearly demonstrate that it was possible for the appellant to give notice of change under section 9A for reduction of surplus workmen also. There was no reason for the appellant to raise a dispute in respect of surplus workmen in the lock out notice. If the companies are allowed to raise dispute relating to reduction of man power, for which remedies in the scheme of the Act are clearly provided and which could be availed of by the employer without any difficulty, the very object of the Act would be defeated. The remedies available in law which are mandatory in nature, cannot be rendered meaningless. The appellant had ample powers under the provisions of the I.D. Act to reduce the number of workmen and it was not bound to raise a dispute with the workmen and to have it referred for adjudication at their instance. It is against this backdrop, in our opinion the judgment of the Apex Court in the case of Delhi Administration (supra) would be inapplicable. After having observed that the employer was not bound to raise the dispute relating to manpower what remains is only demand of reduction of D.A. In other words, the demand/dispute raised in respect of reduction of manpower could not have been referred under section 10(1) and, therefore, the order passed under section 10(3) of the I.D. Act cannot be faulted. We have, therefore, no hesitation in dismissing this letters patent appeal filed against the order of learned Single Judge upholding the order under section 10(3) by which the lock out declared and started by the employer was prohibited. | 0[ds]It is on the basis of this judgment it was submitted that the management had raised two demands/dispute, viz. ceiling on D.A. and reduction of surplus labour/manpower. Out of which the dispute in respect of ceiling on D.A. only was referred to and, therefore, respondent no.1 had no jurisdiction to pass prohibitory orders under section 10(3) of the I.D. Act against the lock out which was declared in respect of their specific demand/dispute for reduction of surplus labour. It was, therefore, submitted that in any case respondent no.1 could not have passed the order under section 10(3) in the reference made under section 10(1) in pursuance of the charter of demands of the9A clearly provides that no employer, who proposes to effect any change in conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change, without giving a notice to the workmen who are likely to be affected by such change. Item 11 of the fourth Schedule provides any increases or reduction other than casual in the number of persons employed or to be employed in any occupation or process or department or shift, not occasioned by circumstances over which the employer has no control. The Apex Court in the case of L. Robert DSouza and Executive Engineer, Southern Railway and another, 1982 (I) LLJ 330 had an occasion to deal with the provisions contained in section 9A. In that case, it was observed that in order to attract Section 9A the employer must be desirous of effecting a change in conditions of service in respect of any matter specified in Fourth Schedule. If the change proposed does not cover any matter in Fourth Schedule section 9A is not attracted and in that case no notice is necessary. Similarly the Apex Court in Indian Oil Corporation Ltd case (supra) while dealing with Item No.11 of Schedule IV of the I.D. Act, observed that sudden withdrawal of the concession in the conditions of service would materially and adversely affect the workmen. A plain reading of section 9A of the I.D. Act would show in order to attract that section an employer must be desirous of effecting a change in conditions of service in respect of any matter specified in Fourth Schedule. In other words, if the change proposed does not cover any matter in Fourth schedule, section 9A is not attracted and in that case no notice would be necessary. Therefore, for the employer, who desires to reduce or remove surplus workmen, section 9A read with item No.11 in the Fourth Schedule clearly provides the machinery by which that exercise could be undertaken.8. At this stage we would also like to consider an alternative submission advanced by Ms.Gayatri Singh, learned counsel for respondent no.3union, that it was possible for the appellant to terminate the services of the workmen by following the procedure under section 25N of the I.D. Act since admittedly there were more than 100 workmen working in the company. It was not disputed that the company had more than 100 workmen at the relevant time. As a matter of fact, the workmen working at the relevant time were above 400. The provisions under section 25N for retrenchment and section 250 for closure in Chapterof the I.D. Act are mandatory as held by the Apex Court in Workmen of Meenakshi Mills Ltd. and ors Vs. Meenakshi Mills Ltd. and Anr., (1992) 3 SCC 336. These provisions provide that in case of retrenchment the company has to make an application seeking retrenchment of a particular number of employees, giving details, seniority etc of the employees and the nature of their work and further justification for the said retrenchment. Notice of its application also requires to be given to the workmen. The appropriate authorities, after giving an opportunity of being heard and considering an evidence on record, is expected to pass order under section 25N. It was therefore, submitted that even if it is assumed in the facts of the present case, that the provisions of section 9A are not attracted, it was open for the appellant to resort to the remedy provided under section 25N of the I.D. Act for reduction of manpower and the company was not bound/obliged to raise the dispute by issuing notice of lock out.9. The employer cannot be encouraged to resort to an indirect method to defeat the very object and the scheme of the I.D. Act by allowing it to raise a dispute which, otherwise, could be dealt with by resorting to the mandatory provisions in the I.D. Act. By allowing the management to raise a dispute, such as reduction of manpower, which could be remedied by resorting to the provisions of the I.D. Act cannot be allowed to be raised by issuing a lock out notice and seek reference under section 10(1). If the employer is allowed to raise such dispute, it would not only defeat the object of the Act but it would render the provisions which are mandatory in nature meaningless. The I.D. Act provides the manner and the machinery by which an exercise of reduction of surplus workmen can be undertaken. As observed by the learned Single Judge and with which we respectfully agree that apart from following the procedural requirements, there is no embargo on the employer to reduce the number of workmen and, therefore, the demand of reduction of the manpower in the present case is not a dispute which the employer was obliged/bound to raise with the workmen and to have it referred for adjudication at the instance of the employer. The learned Single Judge has rightly rejected the contention advanced on behalf of the appellant that the issue of reduction of manpower also ought to have been referred for adjudication. As observed earlier, the scheme of I.D. Act provides sufficient machinery for reduction of workmen.10. In the present case, it cannot be overlooked that when a notice of change dated 27.8.1990 under section 9A was given by the appellant it was given only for fixing ceiling on D.A. and no reference whatsoever was made in the said notice to their demand of reduction of surplus labour. Respondent No.1 made reference vide their order dated 12.2.1992 in pursuance of the notice of change that was given under section 9A by the appellant for fixing ceiling on D.A, whereas the notice of lock out was given on 28.9.1991 and it was started on 14.10.1991. The reference under section 10(1) in pursuance of the charter of demands dated 21.11.1991 was made on 23.9.1992. The aforementioned dates clearly demonstrate that it was possible for the appellant to give notice of change under section 9A for reduction of surplus workmen also. There was no reason for the appellant to raise a dispute in respect of surplus workmen in the lock out notice. If the companies are allowed to raise dispute relating to reduction of man power, for which remedies in the scheme of the Act are clearly provided and which could be availed of by the employer without any difficulty, the very object of the Act would be defeated. The remedies available in law which are mandatory in nature, cannot be rendered meaningless. The appellant had ample powers under the provisions of the I.D. Act to reduce the number of workmen and it was not bound to raise a dispute with the workmen and to have it referred for adjudication at their instance. It is against this backdrop, in our opinion the judgment of the Apex Court in the case of Delhi Administration (supra) would be inapplicable. After having observed that the employer was not bound to raise the dispute relating to manpower what remains is only demand of reduction of D.A. In other words, the demand/dispute raised in respect of reduction of manpower could not have been referred under section 10(1) and, therefore, the order passed under section 10(3) of the I.D. Act cannot be faulted. We have, therefore, no hesitation in dismissing this letters patent appeal filed against the order of learned Single Judge upholding the order under section 10(3) by which the lock out declared and started by the employer was prohibited. | 0 | 4,791 | 1,509 | ### 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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in conditions of service in respect of any matter specified in Fourth Schedule. In other words, if the change proposed does not cover any matter in Fourth schedule, section 9A is not attracted and in that case no notice would be necessary. Therefore, for the employer, who desires to reduce or remove surplus workmen, section 9A read with item No.11 in the Fourth Schedule clearly provides the machinery by which that exercise could be undertaken.8. At this stage we would also like to consider an alternative submission advanced by Ms.Gayatri Singh, learned counsel for respondent no.3 - union, that it was possible for the appellant to terminate the services of the workmen by following the procedure under section 25N of the I.D. Act since admittedly there were more than 100 workmen working in the company. It was not disputed that the company had more than 100 workmen at the relevant time. As a matter of fact, the workmen working at the relevant time were above 400. The provisions under section 25N for retrenchment and section 250 for closure in Chapter V-B of the I.D. Act are mandatory as held by the Apex Court in Workmen of Meenakshi Mills Ltd. and ors Vs. Meenakshi Mills Ltd. and Anr., (1992) 3 SCC 336. These provisions provide that in case of retrenchment the company has to make an application seeking retrenchment of a particular number of employees, giving details, seniority etc of the employees and the nature of their work and further justification for the said retrenchment. Notice of its application also requires to be given to the workmen. The appropriate authorities, after giving an opportunity of being heard and considering an evidence on record, is expected to pass order under section 25N. It was therefore, submitted that even if it is assumed in the facts of the present case, that the provisions of section 9A are not attracted, it was open for the appellant to resort to the remedy provided under section 25N of the I.D. Act for reduction of manpower and the company was not bound/obliged to raise the dispute by issuing notice of lock out.9. The employer cannot be encouraged to resort to an indirect method to defeat the very object and the scheme of the I.D. Act by allowing it to raise a dispute which, otherwise, could be dealt with by resorting to the mandatory provisions in the I.D. Act. By allowing the management to raise a dispute, such as reduction of manpower, which could be remedied by resorting to the provisions of the I.D. Act cannot be allowed to be raised by issuing a lock out notice and seek reference under section 10(1). If the employer is allowed to raise such dispute, it would not only defeat the object of the Act but it would render the provisions which are mandatory in nature meaningless. The I.D. Act provides the manner and the machinery by which an exercise of reduction of surplus workmen can be undertaken. As observed by the learned Single Judge and with which we respectfully agree that apart from following the procedural requirements, there is no embargo on the employer to reduce the number of workmen and, therefore, the demand of reduction of the manpower in the present case is not a dispute which the employer was obliged/bound to raise with the workmen and to have it referred for adjudication at the instance of the employer. The learned Single Judge has rightly rejected the contention advanced on behalf of the appellant that the issue of reduction of manpower also ought to have been referred for adjudication. As observed earlier, the scheme of I.D. Act provides sufficient machinery for reduction of workmen.10. In the present case, it cannot be overlooked that when a notice of change dated 27.8.1990 under section 9A was given by the appellant it was given only for fixing ceiling on D.A. and no reference whatsoever was made in the said notice to their demand of reduction of surplus labour. Respondent No.1 made reference vide their order dated 12.2.1992 in pursuance of the notice of change that was given under section 9A by the appellant for fixing ceiling on D.A, whereas the notice of lock out was given on 28.9.1991 and it was started on 14.10.1991. The reference under section 10(1) in pursuance of the charter of demands dated 21.11.1991 was made on 23.9.1992. The aforementioned dates clearly demonstrate that it was possible for the appellant to give notice of change under section 9A for reduction of surplus workmen also. There was no reason for the appellant to raise a dispute in respect of surplus workmen in the lock out notice. If the companies are allowed to raise dispute relating to reduction of man power, for which remedies in the scheme of the Act are clearly provided and which could be availed of by the employer without any difficulty, the very object of the Act would be defeated. The remedies available in law which are mandatory in nature, cannot be rendered meaningless. The appellant had ample powers under the provisions of the I.D. Act to reduce the number of workmen and it was not bound to raise a dispute with the workmen and to have it referred for adjudication at their instance. It is against this backdrop, in our opinion the judgment of the Apex Court in the case of Delhi Administration (supra) would be inapplicable. After having observed that the employer was not bound to raise the dispute relating to manpower what remains is only demand of reduction of D.A. In other words, the demand/dispute raised in respect of reduction of manpower could not have been referred under section 10(1) and, therefore, the order passed under section 10(3) of the I.D. Act cannot be faulted. We have, therefore, no hesitation in dismissing this letters patent appeal filed against the order of learned Single Judge upholding the order under section 10(3) by which the lock out declared and started by the employer was prohibited.
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a change in conditions of service in respect of any matter specified in Fourth Schedule. In other words, if the change proposed does not cover any matter in Fourth schedule, section 9A is not attracted and in that case no notice would be necessary. Therefore, for the employer, who desires to reduce or remove surplus workmen, section 9A read with item No.11 in the Fourth Schedule clearly provides the machinery by which that exercise could be undertaken.8. At this stage we would also like to consider an alternative submission advanced by Ms.Gayatri Singh, learned counsel for respondent no.3union, that it was possible for the appellant to terminate the services of the workmen by following the procedure under section 25N of the I.D. Act since admittedly there were more than 100 workmen working in the company. It was not disputed that the company had more than 100 workmen at the relevant time. As a matter of fact, the workmen working at the relevant time were above 400. The provisions under section 25N for retrenchment and section 250 for closure in Chapterof the I.D. Act are mandatory as held by the Apex Court in Workmen of Meenakshi Mills Ltd. and ors Vs. Meenakshi Mills Ltd. and Anr., (1992) 3 SCC 336. These provisions provide that in case of retrenchment the company has to make an application seeking retrenchment of a particular number of employees, giving details, seniority etc of the employees and the nature of their work and further justification for the said retrenchment. Notice of its application also requires to be given to the workmen. The appropriate authorities, after giving an opportunity of being heard and considering an evidence on record, is expected to pass order under section 25N. It was therefore, submitted that even if it is assumed in the facts of the present case, that the provisions of section 9A are not attracted, it was open for the appellant to resort to the remedy provided under section 25N of the I.D. Act for reduction of manpower and the company was not bound/obliged to raise the dispute by issuing notice of lock out.9. The employer cannot be encouraged to resort to an indirect method to defeat the very object and the scheme of the I.D. Act by allowing it to raise a dispute which, otherwise, could be dealt with by resorting to the mandatory provisions in the I.D. Act. By allowing the management to raise a dispute, such as reduction of manpower, which could be remedied by resorting to the provisions of the I.D. Act cannot be allowed to be raised by issuing a lock out notice and seek reference under section 10(1). If the employer is allowed to raise such dispute, it would not only defeat the object of the Act but it would render the provisions which are mandatory in nature meaningless. The I.D. Act provides the manner and the machinery by which an exercise of reduction of surplus workmen can be undertaken. As observed by the learned Single Judge and with which we respectfully agree that apart from following the procedural requirements, there is no embargo on the employer to reduce the number of workmen and, therefore, the demand of reduction of the manpower in the present case is not a dispute which the employer was obliged/bound to raise with the workmen and to have it referred for adjudication at the instance of the employer. The learned Single Judge has rightly rejected the contention advanced on behalf of the appellant that the issue of reduction of manpower also ought to have been referred for adjudication. As observed earlier, the scheme of I.D. Act provides sufficient machinery for reduction of workmen.10. In the present case, it cannot be overlooked that when a notice of change dated 27.8.1990 under section 9A was given by the appellant it was given only for fixing ceiling on D.A. and no reference whatsoever was made in the said notice to their demand of reduction of surplus labour. Respondent No.1 made reference vide their order dated 12.2.1992 in pursuance of the notice of change that was given under section 9A by the appellant for fixing ceiling on D.A, whereas the notice of lock out was given on 28.9.1991 and it was started on 14.10.1991. The reference under section 10(1) in pursuance of the charter of demands dated 21.11.1991 was made on 23.9.1992. The aforementioned dates clearly demonstrate that it was possible for the appellant to give notice of change under section 9A for reduction of surplus workmen also. There was no reason for the appellant to raise a dispute in respect of surplus workmen in the lock out notice. If the companies are allowed to raise dispute relating to reduction of man power, for which remedies in the scheme of the Act are clearly provided and which could be availed of by the employer without any difficulty, the very object of the Act would be defeated. The remedies available in law which are mandatory in nature, cannot be rendered meaningless. The appellant had ample powers under the provisions of the I.D. Act to reduce the number of workmen and it was not bound to raise a dispute with the workmen and to have it referred for adjudication at their instance. It is against this backdrop, in our opinion the judgment of the Apex Court in the case of Delhi Administration (supra) would be inapplicable. After having observed that the employer was not bound to raise the dispute relating to manpower what remains is only demand of reduction of D.A. In other words, the demand/dispute raised in respect of reduction of manpower could not have been referred under section 10(1) and, therefore, the order passed under section 10(3) of the I.D. Act cannot be faulted. We have, therefore, no hesitation in dismissing this letters patent appeal filed against the order of learned Single Judge upholding the order under section 10(3) by which the lock out declared and started by the employer was prohibited.
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Dr. Ramji Dwivedi Vs. State of Uttar Pradesh and Others | appointment. The order became effective the moment it is issued. The effect of this order is that the Selection Committee had no right to select the appellant nor the Committee of Management had any power to make the appointment.Mr. Sanghi further contended that this order was never received by the institution and therefore the power of the Committee of Management notwithstanding the fact that its power to make appointment was suspended remained intact and therefore the appointment of the appellant would be va lid: There is no merit in the submission because the letter dated May 1, 1981 which has been extracted hereinafter clearly shows that on April 7, 1981 the order contained in the radiogram was communicated to the Manager of the Institution. There is no affidavit in opposition of the then Manager of Institution or any responsible person then in charge of the management denying the receipt of the letter dated May 1, 1981. This letter shows that on April 8, 1981 the Institution ha d received the order that the power of appointment of Principal has been withdrawn or suspended. If the order was valid and power to make appointment was withdrawn or suspended it would not be open to the Selection Committee to make and select appellant nor the Manager on behalf of the Committee of Management can issue appointment order dated April 27, 1981 to the appellant and the appointment of the appellant would be by a body not authorised to make the appointment and hence ineffective though it may not be invalid.7. In view of the finding that sub-sec. (4) of s. 9 did confer power on the State Government to make, modify or rescind the regulation or make any other order consistent with the provisions of the Act, the second contention of Mr. Sanghi is equally bound to fail.It is therefore necessary to turn to the alternative contention based on sub-sec. (10) of s. 16-E. The marginal note of sec. 16-E reads:"Procedure for selection of teachers and head of institutions. Sub-sec. (I) confers power on the Committee of the Management to make appointment."Sub-sec. 10 provides as under:("10.) Where the State Government., in case of the appointment o f Head of Institution and the Director in the case of the appointment of teacher of an institution is satisfied that any person has been appointed as Head of Institution or teacher, as the case may be, in contravention of the provisions of this Act, the State Government or, as the case may be, the Director may, after affording an opportunity of being heard to such person, cancel such appointment and pass such consequential order as may be necessary."8. It was urged that if the State Government is satisfied that any person has been appointed as head of an Institution in contravention of the provisions of the Act, the State Government after affording an opportunity of being heard to such person cancel such appointment and pass such consequential order as may be necessary. Mr. Sanghi vehemently contended that if the appointment of appellant is in contravention of the provisions of the Act, the State Government was bound to hear the appellant before making any consequential order. Sub-sec. (I O) provides for a contingency where an appointment is made and the State Government later on comes to know that the appointment has been made in contravention of the Act in respect of a particular individual that the rules of natural justice require that he may be heard before making an order, adverse to such person. The present case is not one which can be dealt with or was required to be de alt with by sub-sec. (10). The situation is that the power of appointment conferred by regulation on Committee of Management of all- non-government aided institutions was withdrawn or suspended. The Committee of Management had no pow er to make the appointment. It cannot be said that the appointment was in contravention of any provision of the Act. Therefore sub- sec. (10) is not attracted in this case and the contention must fail.Undoubtedly appellant is a highly qualified person. There was nothing hanky panky in his appointment. If the power to make appointment was riot suspended we would have no difficulty in upholding the appointment of the appellant and we are not oblivious to the machinations of Shri Jagannath, who possibly thought that the appellant would be a formidable rival and wanted him to be out of way. The private management, at the instance of Shri Jagannath appears to have subsequently backed out from the appointment of the appellant which at one stage they were willing to defend. But as there was no power of appointment, we are unable to help the appellant. However, we would like to make it very clear that the appointment was otherwise valid, though ineffective and if appellant under the orders of the High Court functioned as Principal, discharged his duties and was paid, no question of recovery of amount paid to him could arise and neither the Government nor the Committee of Management nor the Institution would be entitled to recover any salary paid to the appellant.9. The State Government promulgated the U.P. Secondary Education Service Commission and Selection Board ordinance, 1981 (8 of 1981) which was replaced by the act bearing the identical name. The Act envisages setting up of a Commission for selecting and recommending appointments of teachers including Heads of Institution. The College is topless and an unfair advantage is being taken of this situation by Jagannath whose credentials to be appointed as Principal are still to be investigated. It is the statutory duty of the Commission to proceed to take effective steps to fill in the post of Principal of the College. It is imperative that the State Government should direct the Commission to take necessary steps to fill in the post of Principal of Sri Nath Intermediate College Garhmalpur Ballia within three months from today. Appellant would be eligible to apply for the same. W | 0[ds]The present case is not one which can be dealt with or was required to be de alt with by sub-sec. (10). The situation is that the power of appointment conferred by regulation on Committee of Management of all- non-government aided institutions was withdrawn or suspended. The Committee of Management had no pow er to make the appointment. It cannot be said that the appointment was in contravention of any provision of the Act. Therefore sub- sec. (10) is not attracted in this case and the contention must fail.Undoubtedly appellant is a highly qualified person. There was nothing hanky panky in his appointment. If the power to make appointment was riot suspended we would have no difficulty in upholding the appointment of the appellant and we are not oblivious to the machinations of Shri Jagannath, who possibly thought that the appellant would be a formidable rival and wanted him to be out of way. The private management, at the instance of Shri Jagannath appears to have subsequently backed out from the appointment of the appellant which at one stage they were willing to defend. But as there was no power of appointment, we are unable to help the appellant. However, we would like to make it very clear that the appointment was otherwise valid, though ineffective and if appellant under the orders of the High Court functioned as Principal, discharged his duties and was paid, no question of recovery of amount paid to him could arise and neither the Government nor the Committee of Management nor the Institution would be entitled to recover any salary paid to theState Government promulgated the U.P. Secondary Education Service Commission and Selection Board ordinance, 1981 (8 of 1981) which was replaced by the act bearing the identical name. The Act envisages setting up of a Commission for selecting and recommending appointments of teachers including Heads of Institution. The College is topless and an unfair advantage is being taken of this situation by Jagannath whose credentials to be appointed as Principal are still to be investigated. It is the statutory duty of the Commission to proceed to take effective steps to fill in the post of Principal of the College. It is imperative that the State Government should direct the Commission to take necessary steps to fill in the post of Principal of Sri Nath Intermediate College Garhmalpur Ballia within three months from today. Appellant would be eligible to apply for the same. | 0 | 3,769 | 445 | ### 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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appointment. The order became effective the moment it is issued. The effect of this order is that the Selection Committee had no right to select the appellant nor the Committee of Management had any power to make the appointment.Mr. Sanghi further contended that this order was never received by the institution and therefore the power of the Committee of Management notwithstanding the fact that its power to make appointment was suspended remained intact and therefore the appointment of the appellant would be va lid: There is no merit in the submission because the letter dated May 1, 1981 which has been extracted hereinafter clearly shows that on April 7, 1981 the order contained in the radiogram was communicated to the Manager of the Institution. There is no affidavit in opposition of the then Manager of Institution or any responsible person then in charge of the management denying the receipt of the letter dated May 1, 1981. This letter shows that on April 8, 1981 the Institution ha d received the order that the power of appointment of Principal has been withdrawn or suspended. If the order was valid and power to make appointment was withdrawn or suspended it would not be open to the Selection Committee to make and select appellant nor the Manager on behalf of the Committee of Management can issue appointment order dated April 27, 1981 to the appellant and the appointment of the appellant would be by a body not authorised to make the appointment and hence ineffective though it may not be invalid.7. In view of the finding that sub-sec. (4) of s. 9 did confer power on the State Government to make, modify or rescind the regulation or make any other order consistent with the provisions of the Act, the second contention of Mr. Sanghi is equally bound to fail.It is therefore necessary to turn to the alternative contention based on sub-sec. (10) of s. 16-E. The marginal note of sec. 16-E reads:"Procedure for selection of teachers and head of institutions. Sub-sec. (I) confers power on the Committee of the Management to make appointment."Sub-sec. 10 provides as under:("10.) Where the State Government., in case of the appointment o f Head of Institution and the Director in the case of the appointment of teacher of an institution is satisfied that any person has been appointed as Head of Institution or teacher, as the case may be, in contravention of the provisions of this Act, the State Government or, as the case may be, the Director may, after affording an opportunity of being heard to such person, cancel such appointment and pass such consequential order as may be necessary."8. It was urged that if the State Government is satisfied that any person has been appointed as head of an Institution in contravention of the provisions of the Act, the State Government after affording an opportunity of being heard to such person cancel such appointment and pass such consequential order as may be necessary. Mr. Sanghi vehemently contended that if the appointment of appellant is in contravention of the provisions of the Act, the State Government was bound to hear the appellant before making any consequential order. Sub-sec. (I O) provides for a contingency where an appointment is made and the State Government later on comes to know that the appointment has been made in contravention of the Act in respect of a particular individual that the rules of natural justice require that he may be heard before making an order, adverse to such person. The present case is not one which can be dealt with or was required to be de alt with by sub-sec. (10). The situation is that the power of appointment conferred by regulation on Committee of Management of all- non-government aided institutions was withdrawn or suspended. The Committee of Management had no pow er to make the appointment. It cannot be said that the appointment was in contravention of any provision of the Act. Therefore sub- sec. (10) is not attracted in this case and the contention must fail.Undoubtedly appellant is a highly qualified person. There was nothing hanky panky in his appointment. If the power to make appointment was riot suspended we would have no difficulty in upholding the appointment of the appellant and we are not oblivious to the machinations of Shri Jagannath, who possibly thought that the appellant would be a formidable rival and wanted him to be out of way. The private management, at the instance of Shri Jagannath appears to have subsequently backed out from the appointment of the appellant which at one stage they were willing to defend. But as there was no power of appointment, we are unable to help the appellant. However, we would like to make it very clear that the appointment was otherwise valid, though ineffective and if appellant under the orders of the High Court functioned as Principal, discharged his duties and was paid, no question of recovery of amount paid to him could arise and neither the Government nor the Committee of Management nor the Institution would be entitled to recover any salary paid to the appellant.9. The State Government promulgated the U.P. Secondary Education Service Commission and Selection Board ordinance, 1981 (8 of 1981) which was replaced by the act bearing the identical name. The Act envisages setting up of a Commission for selecting and recommending appointments of teachers including Heads of Institution. The College is topless and an unfair advantage is being taken of this situation by Jagannath whose credentials to be appointed as Principal are still to be investigated. It is the statutory duty of the Commission to proceed to take effective steps to fill in the post of Principal of the College. It is imperative that the State Government should direct the Commission to take necessary steps to fill in the post of Principal of Sri Nath Intermediate College Garhmalpur Ballia within three months from today. Appellant would be eligible to apply for the same. W
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The present case is not one which can be dealt with or was required to be de alt with by sub-sec. (10). The situation is that the power of appointment conferred by regulation on Committee of Management of all- non-government aided institutions was withdrawn or suspended. The Committee of Management had no pow er to make the appointment. It cannot be said that the appointment was in contravention of any provision of the Act. Therefore sub- sec. (10) is not attracted in this case and the contention must fail.Undoubtedly appellant is a highly qualified person. There was nothing hanky panky in his appointment. If the power to make appointment was riot suspended we would have no difficulty in upholding the appointment of the appellant and we are not oblivious to the machinations of Shri Jagannath, who possibly thought that the appellant would be a formidable rival and wanted him to be out of way. The private management, at the instance of Shri Jagannath appears to have subsequently backed out from the appointment of the appellant which at one stage they were willing to defend. But as there was no power of appointment, we are unable to help the appellant. However, we would like to make it very clear that the appointment was otherwise valid, though ineffective and if appellant under the orders of the High Court functioned as Principal, discharged his duties and was paid, no question of recovery of amount paid to him could arise and neither the Government nor the Committee of Management nor the Institution would be entitled to recover any salary paid to theState Government promulgated the U.P. Secondary Education Service Commission and Selection Board ordinance, 1981 (8 of 1981) which was replaced by the act bearing the identical name. The Act envisages setting up of a Commission for selecting and recommending appointments of teachers including Heads of Institution. The College is topless and an unfair advantage is being taken of this situation by Jagannath whose credentials to be appointed as Principal are still to be investigated. It is the statutory duty of the Commission to proceed to take effective steps to fill in the post of Principal of the College. It is imperative that the State Government should direct the Commission to take necessary steps to fill in the post of Principal of Sri Nath Intermediate College Garhmalpur Ballia within three months from today. Appellant would be eligible to apply for the same.
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P. Punnaiah and Ors Vs. Jeypore Sugar Co. Ltd. and Ors | by the member personally. 12. Mr. Vinoo Bhagat, learned Counsel for the appellant invited our attention to a decision of the Division Bench of the Bombay High Court in Killick Nixon Limited and Ors. v. Bank of India and Ors, (1985) 57 Com Cases 831. In this case it is held that the General Power of Attorney-holder empowered to grant consent under Section 399(3). The General Power of Attorney concerned therein is substantially in the same terms as the one concerned herein. We agree with the said decision. 13. Mr. Sibal brought to our notice a few decisions to which we may advert now. A learned single Judge of Allahabad High Court held in Makhan Lal Jain and Anr. v. The Amrit Banaspati Co. Ltd. and Ors., AIR1953All326 that the consent in writing contemplated by Section 153(C)(3) of Companies Act, 1913 requires that the writing itself should indicate that the members have affixed their signatures, having applied their mind to the question before them and have consented for the action being taken. (Section 153(c)(3) of the Companies Act, 1913, considered in the said decision broadly corresponds to Section 399(3). Looking at the sheets of papers allegedly constituting the consent of the consenting members, the learned Judge held that having regard to their contents, they cannot be treated as consent letters. Learned Judge held that the writing itself should indicate that the person has applied his mind to the question before him and has given his consent and that where a petitioner obtained another shareholders signature on a blank piece of paper and sought to supplement it by an affidavit or an oral sworn statement of the member himself or his agent cannot be said to have complied with the requirements of the section. Nowhere does the decision say that such consent must be given by the member personally and that it cannot be given through his agent. 14. Mr. Sibal relied upon the decision of this Court in Charanjit Lal Chowdhury v. The Union of India and Ors., [1950]1SCR869 and in particular the statement in para 78 at page 62. In the said paragraph, this Court considered the question whether the shares held by a person can be said to be property within the meaning of Articles 31(2) and 19(1)(f) and whether acquisition of the company by the Government amounts to acquisition of the shares of the shareholders. The petitioner contended that it does. Repelling the said contention, S.R. Das, J. observed: These rights, as already stated, are, no doubt, privileges incidental to the ownership of the share which itself is property, but it cannot, in my opinion, be said that these rights, by themselves, and apart from the share are, property within the meaning of those articles, for those articles only regard that as property which can by itself be acquired, disposed of or taken possession of. The right to vote for the election of directors, the right to pass resolutions and the right to present a petition for winding up are personal rights flowing from the ownership of the share and cannot by themselves and apart from the share be acquired or disposed of or taken possession of as contemplated by those articles. The second question is assuming that these rights are by themselves property, what is the effect of the Ordinance and the Act on such property. It is nobodys case that the Ordinance or the Act has authorised any acquisition by the State of this property of the shareholder or that there has in fact been any such acquisition. The only question then is whether this property of the shareholder meaning thereby only the rights mentioned above, has been taken possession of by the State. It will be noticed that by the Ordinance or the Act these particular rights of the shareholder have not been entirely taken away, for he can still exercise these rights subject, of course, to the sanction of the Government. Assuming however, that the letters placed on these rights are tantamount to the taking away of the rights altogether, there is nothing to indicate that the Ordinance or the Act has, after taking away the rights from the shareholder, vested them in the State or in any other person named by it so as to enable the State or any other person to exercise those rights of the shareholder. 15. The observations to the effect that the right to present an application of winding up and the right to vote for the election of Directors are the personal rights of shareholders must be understood in the context of the question considered therein. The observations cannot be torn from their context to hold that the said right cannot be exercised through an agent. That was not the issue before the Court. Mr. Sibal also brought to our notice the decision of this Court in R. Subba Rao v. Commissioner of income-tax, Madras, [1956]30ITR163(SC) . The matter arose under Section 26(A) of the Indian Income Tax Act, 1922 read with Rules 2 and 6 of the Rule framed in that behalf. The Rules provided that an application for renewal of registration of the firm shall be signed personally by all the partners. It is because of the said requirement that it was held that partners must sign such an application personally. In the absence of any such expression in Section 399(3), the said decision is of no help to the respondents herein. 16. Mr. Sibal lastly contended that the petition was filed as far back as in 1978 and that over the years, certain Directors have ceased to be directors by death or otherwise and that some new directors have come into Office. An affidavit was handed over across the bar stating that some of the directors have expired. The affidavit, however, does not say that any new directors have come into office or that in their absence the present appeal is not maintainable. We need not, therefore, express any opinion on this contention. | 1[ds]7. A reading of the several clause of the G.P.A. discloses ex-fade that the powers given thereunder are wide enough to take in the power to grant the consent under Section 399(3). Under the said deed, Smt. Rajeshwari empowered her father to manage and otherwise administer her movable and immovable properties including shares and stock as may be held by her and to take all proceedings before all the authorities and Courts concerning the said properties and shares. The deed also empowered him to sign all necessary papers relevant in that behalf and to file them in courts and generally to do all things as may be necessary to safeguard her interest. It is obvious that in pursuance of the said deed, it would have been perfectly legitimate for the first appellant to institute suits, petitions and other proceedings with respect to the shares or other movable and immovable properties held by Smt. Rajeshwari. Indeed it would well have been within the power of the G.P.A. holder to have himself figured as an applicant, acting in the name of Smt. Rajeshwari, in the said application filed under Sections 397/398. If so, there appears no reason why the consent could not have been given by the Power of Attorney holder which is only a step towards protecting the interest of Rajeshwari. It in effect means joining the tiling of the application under Section 397/398. May be that there are some functions/duties which cannot be performed through a Power of Attorney Agent (e.g., quasi-judicial/judicial functions) but there appears to be no good reason why the consent contemplated by Section 399(3) cannot be given by such Power of Attorney-holder, when indeed he could himself have filed such an application in the name of and on behalf of Smt. Rajeshwari. In this connection we may notice yet another fact. With a view to counter-act the objection taken by the respondents, the appellants filed an affidavit of Smt. Rajeshwari wherein she affirmed that on her recent visit to India she was apprised by her father of the affairs of the first respondent-company and of the proposal to file an application against the first respondent-company and its management alleging oppression and mismanagement. She affirmed that she had authorised her father to act on her behalf as her G.P.A. in that behalf and to take all such steps as he deemed proper to protect her interest.8. The Company Judge and the Division Bench have, however, taken the view that the consent to be granted by a member of the Company under Section 399(3) must be a conscious decision of the member himself/herself. They opined that the member must personally apply his mind to the advisability of granting consent and then grant it. In this view of the matter, they held, the G.P.A.-holder is not competent to grant the consent.9. We are unable to agree with the said reasoning. Section 399 or Sub-section (3) thereof does not either expressly or by necessary implication indicate that the consent to be accorded thereunder should be given by the member personally. As we have emphasised hereinabove, the first appellant could have filed, or joined as an applicant in an application under Sections 397/398 in the name of and for and on behalf of Smt. Rajeshwari as her G.P.A. holder. No question of consent would have and could have arisen in such a case. If so, it is un-understandable as to why and how he could not have given consent on behalf of Smt. Rajeshwari, the member, under Section 399(3). No rule or decision could be brought to our notice saying that the consent under Section 399(3) cannot be given by a G.P.A.-holder (who is empowered by the principal to manage and administer the shares and stocks held by the principal and to take all necessary steps and proceedings in all Courts, Offices and Tribunals in that behalf). In this connection, it is relevant to notice that shares may also be held by a company or other corporate body. Question may arise what does one mean by a personal decision by a company or other juristic person. Be that as it may, we see no warrant for holding that Section 399(3) is an exception to the normal rule of agency. The normal rule is that whatever a person can do himself, he can do it through his agent, except certain functions which may be personal in nature or otherwise do not admit of such delegation. The consent contemplated by Section 399(3) falls under the general rule and not under the exception.11. What the Rule says is that the letters of consent signed by the consenting members shall be annexed to the petition alongwith their names and addresses and other prescribed particulars. The Rule does not in any manner indicate that the consent should be given by the member personally.the Division Bench of the Bombay High Court in Killick Nixon Limited and Ors. v. Bank of India and Ors, (1985) 57 Com Cases 831.In this case it is held that the General Power of Attorney-holder empowered to grant consent under Section 399(3). The General Power of Attorney concerned therein is substantially in the same terms as the one concerned herein. We agree with the said decision.15. The observations to the effect that the right to present an application of winding up and the right to vote for the election of Directors are the personal rights of shareholders must be understood in the context of the question considered therein. The observations cannot be torn from their context to hold that the said right cannot be exercised through an agent. That was not the issue before the Court.Mr. Sibal also brought to our notice the decision of this Court in R. Subba Rao v. Commissioner of income-tax, Madras, [1956]30ITR163(SC) .The matter arose under Section 26(A) of the Indian Income Tax Act, 1922 read with Rules 2 and 6 of the Rule framed in that behalf. The Rules provided that an application for renewal of registration of the firmshall be signed personally by all the partners. It is because of the said requirement that it was held that partners must sign such an application personally. In the absence of any such expression in Section 399(3), the said decision is of no help to the respondents herein.The affidavit, however, does not say that any new directors have come into office or that in their absence the present appeal is not maintainable. We need not, therefore, express any opinion on this contention. | 1 | 3,495 | 1,219 | ### Instruction:
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by the member personally. 12. Mr. Vinoo Bhagat, learned Counsel for the appellant invited our attention to a decision of the Division Bench of the Bombay High Court in Killick Nixon Limited and Ors. v. Bank of India and Ors, (1985) 57 Com Cases 831. In this case it is held that the General Power of Attorney-holder empowered to grant consent under Section 399(3). The General Power of Attorney concerned therein is substantially in the same terms as the one concerned herein. We agree with the said decision. 13. Mr. Sibal brought to our notice a few decisions to which we may advert now. A learned single Judge of Allahabad High Court held in Makhan Lal Jain and Anr. v. The Amrit Banaspati Co. Ltd. and Ors., AIR1953All326 that the consent in writing contemplated by Section 153(C)(3) of Companies Act, 1913 requires that the writing itself should indicate that the members have affixed their signatures, having applied their mind to the question before them and have consented for the action being taken. (Section 153(c)(3) of the Companies Act, 1913, considered in the said decision broadly corresponds to Section 399(3). Looking at the sheets of papers allegedly constituting the consent of the consenting members, the learned Judge held that having regard to their contents, they cannot be treated as consent letters. Learned Judge held that the writing itself should indicate that the person has applied his mind to the question before him and has given his consent and that where a petitioner obtained another shareholders signature on a blank piece of paper and sought to supplement it by an affidavit or an oral sworn statement of the member himself or his agent cannot be said to have complied with the requirements of the section. Nowhere does the decision say that such consent must be given by the member personally and that it cannot be given through his agent. 14. Mr. Sibal relied upon the decision of this Court in Charanjit Lal Chowdhury v. The Union of India and Ors., [1950]1SCR869 and in particular the statement in para 78 at page 62. In the said paragraph, this Court considered the question whether the shares held by a person can be said to be property within the meaning of Articles 31(2) and 19(1)(f) and whether acquisition of the company by the Government amounts to acquisition of the shares of the shareholders. The petitioner contended that it does. Repelling the said contention, S.R. Das, J. observed: These rights, as already stated, are, no doubt, privileges incidental to the ownership of the share which itself is property, but it cannot, in my opinion, be said that these rights, by themselves, and apart from the share are, property within the meaning of those articles, for those articles only regard that as property which can by itself be acquired, disposed of or taken possession of. The right to vote for the election of directors, the right to pass resolutions and the right to present a petition for winding up are personal rights flowing from the ownership of the share and cannot by themselves and apart from the share be acquired or disposed of or taken possession of as contemplated by those articles. The second question is assuming that these rights are by themselves property, what is the effect of the Ordinance and the Act on such property. It is nobodys case that the Ordinance or the Act has authorised any acquisition by the State of this property of the shareholder or that there has in fact been any such acquisition. The only question then is whether this property of the shareholder meaning thereby only the rights mentioned above, has been taken possession of by the State. It will be noticed that by the Ordinance or the Act these particular rights of the shareholder have not been entirely taken away, for he can still exercise these rights subject, of course, to the sanction of the Government. Assuming however, that the letters placed on these rights are tantamount to the taking away of the rights altogether, there is nothing to indicate that the Ordinance or the Act has, after taking away the rights from the shareholder, vested them in the State or in any other person named by it so as to enable the State or any other person to exercise those rights of the shareholder. 15. The observations to the effect that the right to present an application of winding up and the right to vote for the election of Directors are the personal rights of shareholders must be understood in the context of the question considered therein. The observations cannot be torn from their context to hold that the said right cannot be exercised through an agent. That was not the issue before the Court. Mr. Sibal also brought to our notice the decision of this Court in R. Subba Rao v. Commissioner of income-tax, Madras, [1956]30ITR163(SC) . The matter arose under Section 26(A) of the Indian Income Tax Act, 1922 read with Rules 2 and 6 of the Rule framed in that behalf. The Rules provided that an application for renewal of registration of the firm shall be signed personally by all the partners. It is because of the said requirement that it was held that partners must sign such an application personally. In the absence of any such expression in Section 399(3), the said decision is of no help to the respondents herein. 16. Mr. Sibal lastly contended that the petition was filed as far back as in 1978 and that over the years, certain Directors have ceased to be directors by death or otherwise and that some new directors have come into Office. An affidavit was handed over across the bar stating that some of the directors have expired. The affidavit, however, does not say that any new directors have come into office or that in their absence the present appeal is not maintainable. We need not, therefore, express any opinion on this contention.
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sign all necessary papers relevant in that behalf and to file them in courts and generally to do all things as may be necessary to safeguard her interest. It is obvious that in pursuance of the said deed, it would have been perfectly legitimate for the first appellant to institute suits, petitions and other proceedings with respect to the shares or other movable and immovable properties held by Smt. Rajeshwari. Indeed it would well have been within the power of the G.P.A. holder to have himself figured as an applicant, acting in the name of Smt. Rajeshwari, in the said application filed under Sections 397/398. If so, there appears no reason why the consent could not have been given by the Power of Attorney holder which is only a step towards protecting the interest of Rajeshwari. It in effect means joining the tiling of the application under Section 397/398. May be that there are some functions/duties which cannot be performed through a Power of Attorney Agent (e.g., quasi-judicial/judicial functions) but there appears to be no good reason why the consent contemplated by Section 399(3) cannot be given by such Power of Attorney-holder, when indeed he could himself have filed such an application in the name of and on behalf of Smt. Rajeshwari. In this connection we may notice yet another fact. With a view to counter-act the objection taken by the respondents, the appellants filed an affidavit of Smt. Rajeshwari wherein she affirmed that on her recent visit to India she was apprised by her father of the affairs of the first respondent-company and of the proposal to file an application against the first respondent-company and its management alleging oppression and mismanagement. She affirmed that she had authorised her father to act on her behalf as her G.P.A. in that behalf and to take all such steps as he deemed proper to protect her interest.8. The Company Judge and the Division Bench have, however, taken the view that the consent to be granted by a member of the Company under Section 399(3) must be a conscious decision of the member himself/herself. They opined that the member must personally apply his mind to the advisability of granting consent and then grant it. In this view of the matter, they held, the G.P.A.-holder is not competent to grant the consent.9. We are unable to agree with the said reasoning. Section 399 or Sub-section (3) thereof does not either expressly or by necessary implication indicate that the consent to be accorded thereunder should be given by the member personally. As we have emphasised hereinabove, the first appellant could have filed, or joined as an applicant in an application under Sections 397/398 in the name of and for and on behalf of Smt. Rajeshwari as her G.P.A. holder. No question of consent would have and could have arisen in such a case. If so, it is un-understandable as to why and how he could not have given consent on behalf of Smt. Rajeshwari, the member, under Section 399(3). No rule or decision could be brought to our notice saying that the consent under Section 399(3) cannot be given by a G.P.A.-holder (who is empowered by the principal to manage and administer the shares and stocks held by the principal and to take all necessary steps and proceedings in all Courts, Offices and Tribunals in that behalf). In this connection, it is relevant to notice that shares may also be held by a company or other corporate body. Question may arise what does one mean by a personal decision by a company or other juristic person. Be that as it may, we see no warrant for holding that Section 399(3) is an exception to the normal rule of agency. The normal rule is that whatever a person can do himself, he can do it through his agent, except certain functions which may be personal in nature or otherwise do not admit of such delegation. The consent contemplated by Section 399(3) falls under the general rule and not under the exception.11. What the Rule says is that the letters of consent signed by the consenting members shall be annexed to the petition alongwith their names and addresses and other prescribed particulars. The Rule does not in any manner indicate that the consent should be given by the member personally.the Division Bench of the Bombay High Court in Killick Nixon Limited and Ors. v. Bank of India and Ors, (1985) 57 Com Cases 831.In this case it is held that the General Power of Attorney-holder empowered to grant consent under Section 399(3). The General Power of Attorney concerned therein is substantially in the same terms as the one concerned herein. We agree with the said decision.15. The observations to the effect that the right to present an application of winding up and the right to vote for the election of Directors are the personal rights of shareholders must be understood in the context of the question considered therein. The observations cannot be torn from their context to hold that the said right cannot be exercised through an agent. That was not the issue before the Court.Mr. Sibal also brought to our notice the decision of this Court in R. Subba Rao v. Commissioner of income-tax, Madras, [1956]30ITR163(SC) .The matter arose under Section 26(A) of the Indian Income Tax Act, 1922 read with Rules 2 and 6 of the Rule framed in that behalf. The Rules provided that an application for renewal of registration of the firmshall be signed personally by all the partners. It is because of the said requirement that it was held that partners must sign such an application personally. In the absence of any such expression in Section 399(3), the said decision is of no help to the respondents herein.The affidavit, however, does not say that any new directors have come into office or that in their absence the present appeal is not maintainable. We need not, therefore, express any opinion on this contention.
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Deb Sadhan Roy Vs. State Of West Bengal | on the same day which was approved by the State Government on January 27, 1971, so that the mandatory provisions of the Act both in respect of the report to be made to the State Government within five days from the date of the order and the approval of the detention within twelve days from the date of detention were satisfied. On the 27th itself a report was made to the Central Government as required under Section 13. The State Government placed the detention order, the grounds and the report etc. before the Advisory Board on February 18, 1971, which is also within 30 days from the date of detention as required under Section 10. The State Government rejected the representation made by the detenu on March 15, 1971, and the Advisory Board submitted its report that there was sufficient cause for his detention on March 23, 1971, which was confirmed on April 8, 1971. In the note file of the Government which we perused, though confirmation was recorded within three months, the communication was made later on August 26, 1971. The mandatory provisions, therefore, are fully complied with.13. The next question is whether the grounds are vague and irrelevant. These are as follows :(i) that on January 7, 1971, night you and your associates including Somesh Chandra Deb mutilated the statue of the eminent Indian Poet Rabindra Nath Tagore installed in a public place at Boilapara in Bishnupur town and thereby caused insult to an object of public veneration.(ii) That on January 11, 1971, at about 01.45 hrs. you and your associates broke into the Post Office situated at Rashikgunj in Bishnupur town and caused mischief to it by fire by destroying its official records by burning.It was contended that the associates of the petitioner has not been specified and therefore it will be difficult for the petitioner to make effective representation in respect thereof. We think there is no validity in this submission. Not only the dates and the time in each of the grounds have been mentioned but the acts of the petitioner have been specified in detail to enable him to make an effective representation. In our view it is not necessary for the petitioner to make an effective representation to specify all his associates because they may not have been known. The petitioner is being detained in respect of his acts and if in association with others he has acted in a manner prejudicial to the maintenance of the public order, his detention cannot be said to be illegal.14. It is again contended relying on Madhu Limaye v. Sub-Divisional Magistrate, Monghyr and Others, [1970 (3) SCC 746 ] and Dr. Ram Manohar Lohia v. State of Bihar and Others, [(1966) 1 SCR 709 : AIR 1966 SC 740 ] that the act specified in each of the grounds do not amount to disturbance of public order though they may effect law and order. This contention is equally untenable because Section 3(2) of the Act defines the expression "acting in any manner prejudicial to the security of the State or the maintenance of public order" as given in sub-clause (a) to (e) to the said sub-section. We are here in this case concerned with the definition given in Section 3(2)(c) which makes any act causing insult to the Indian National Flag or to any other object of public veneration, whether by mutilating, damaging, burning, defiling, destroying or otherwise, or instigating any person to do so. The explanation to this sub-clause includes in the causing of insult to any object of public veneration, any portrait or statue of an eminent Indian, installed in a public place as a mark of respect to him or to his memory. The validity of sub-section (2) of Section 3 of the Act was challenged recently in the case of State of West Bengal v. Ashok Dey and Others, (supra) but this Court held that it was valid. The challenge to clauses (a), (b), (d) and (e) dealing with disturbance of a publics order in the State with respect to which it was said there can be no two opinions about the Acts covered by those being likely to be prejudicial to the maintains of public order. In regard to clause (c) the argument that insulting the object of public veneration in privacy without the act causing insult being noticed by anyone who holds them in veneration could have no rational nexus with the disturbance of public order or security of State, was in the abstract described as attractive. In the light of the circumstances in which the Act was passed the mischief intended to be removed by this enactment and the object and purpose of enacting it, this Court held that clause (c) of sub-section (2) considered in the background of sub-section (1) of Section 3 can "be construed to mean, causing insult to the Indian National Flag or any other object of public veneration in such a situation as reasonably exposes the act, causing such insult to the view of those who hold these objects in veneration or to the public view and it would not cover cases where the Indian National Flag or other object of public veneration is mutilated, damaged, burnt, defiled or destroyed completely unseen or when incapable of being seen by anyone whose feelings are likely to be hurt thereby. The act causing insult referred to in clause (c) must be such as would be capable of arousing the feelings of indignation in someone and that can only be the case when insult is caused in the circumstances just explained", and was accordingly restricted to such situation. The challenge there was negatived. In this case what is said to have been defiled by the petitioner and his associates is the statue of Rabindra Nath Tagore, a Poet and sage venerated by all in this country and affords a sufficient ground for detention. The other ground also directly connects the act with the disturbance of public order. | 0[ds]7. It may be pertinent to refer to clause (4) of Article 22 of the Constitution under which no law providing for Preventive Detention shall authorise the detention of a person for a longer period than there months unless a Board consisting of persons who have or have been or are qualified to be appointed as Judges of the High Court, as referred to above, has reported within three months that there is in its opinion sufficient cause for such detention. It is evident from this provision that a law for Preventive Detention up to three months can be made under clause (4) subject to the limitation contained in clauses (5) to (7) of the Article. If a longer period of detention is to be provided for the law must subject to clauses (5) to (7) make provision for a reference to a Board as provided in clause (4) and for it to report on the sufficiently or otherwise of the detention which should be within three months from the date of detention. This requirement however is not insisted upon in cases where a law is made under sub-clause (a) of clause (7) of the said Article. In cases where the law provides for a reference to the Board or the receipt of its affirmative opinion the initial detention is any tentative for three months and only when the Board reports that there is sufficient cause for detention that the question of confirmation and extension of the period beyond three months will arise. The mere fact that the provision of a law under Article 22(4) requires a reference to be made to the Board within a particular period for the Board to make its report by a specified time is not enough. The State Government has to take action only after a report is received from the Board expressing its opinion as to the sufficient or otherwise of the detention. If the opinion of the Board that there is sufficient cause is received after three months from the detention the detention will be illegal as it is a contravention of the mandatory provision of clause (4). In cases where the report is received within three months that there is no sufficient cause for detention but no action is taken thereon by the State Government to release the detenu or where its opinion is that there is sufficient cause, the detenu is neither automatically released nor is the period of his detention extended. It is therefore a crucial requirement of the Constitutional provision that the appropriate Government has to take action on the report of the Board, because as we said on that action would depend the revocation of the order and his release or the continuance of the detention beyond three months. In other words even where the Board is of opinion that there is sufficient cause the State Government is not bound to confirm that opinion. It can notwithstanding that opinion revoke the order. No doubt such a power can be exercised even after the confirmation of the order but that is not to deny the State Government the power to revoke the order even before confirming it. Viewed from any angle it is essential that the appropriate Government should take positive action on the report of the Board which action alone determines whether the detention is to be terminated or continued. It would therefore prima facie appear that that action should be taken immediately after the receipt of the opinion of the Board or at any rate within there months from the date a person is detained. It is for this reason after the Constitution every legislation dealing with Preventive Detention has made specific provision for confirmation and continuance of detention in view of the Constitutional mandate contained in Article 22(4). A period within which the appropriate Government has to make a reference to the Board, the period within which the Board has to make a report on the sufficiency of the ground for detention is provided for which has been uniformly one month and ten weeks respectively. The period of ten weeks for the submission of the report by the Board where Article 22(4) provides for twelve weeks is designdly fixed because that would give the appropriate Governments two weeks to confirm and extend the period or not to confirm. Of course the opinion of the Board need not necessarily be given on the last day of the expiry of the ten weeks. It is quite possible that this information may be submitted to the appropriate Government well within ten weeks. In such cases a question whether the confirmation and extension has to be made by the appropriate Government within a reasonable period may arise for consideration, but in any case failure to confirm and extend the period within three months will result in the detention becoming illegal the moment the three months period has elapsed without such confirmation. Any subsequent action by the appropriate Government after the three months cannot have the effect of extending the period of detention. This view of ours is further fortified by Section 13 of the Act where the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under Section 12 shall be twelve months from the date of detention. This requirement would suggest that the extension of the period of detention beyond three months up to a maximum of twelve months is from the date of confirmation of the opinion of the Board which if unconfirmed would not extend the period beyond three months. If so at what point of time should that be confirmed ? It would be meaningless to suggest that the confirmation of the Boards opinion can take place beyond three months when the period of detention has come to an end and has not been extended by the want of it. Looking at it in a different way what these provisions amount to is that no person can be detained for any period beyond three months or for any period thereafter up to twelve months unless the Boards opinion is confirmed within threeonly the dates and the time in each of the grounds have been mentioned but the acts of the petitioner have been specified in detail to enable him to make an effective representation. In our view it is not necessary for the petitioner to make an effective representation to specify all his associates because they may not have been known. The petitioner is being detained in respect of his acts and if in association with others he has acted in a manner prejudicial to the maintenance of the public order, his detention cannot be said to beare here in this case concerned with the definition given in Section 3(2)(c) which makes any act causing insult to the Indian National Flag or to any other object of public veneration, whether by mutilating, damaging, burning, defiling, destroying or otherwise, or instigating any person to do so. The explanation to this sub-clause includes in the causing of insult to any object of public veneration, any portrait or statue of an eminent Indian, installed in a public place as a mark of respect to him or to his memory. The validity of sub-section (2) of Section 3 of the Act was challenged recently in the case of State of West Bengal v. Ashok Dey and Others, (supra) but this Court held that it was valid. The challenge to clauses (a), (b), (d) and (e) dealing with disturbance of a publics order in the State with respect to which it was said there can be no two opinions about the Acts covered by those being likely to be prejudicial to the maintains of public order. In regard to clause (c) the argument that insulting the object of public veneration in privacy without the act causing insult being noticed by anyone who holds them in veneration could have no rational nexus with the disturbance of public order or security of State, was in the abstract described as attractive. In the light of the circumstances in which the Act was passed the mischief intended to be removed by this enactment and the object and purpose of enacting it, this Court held that clause (c) of sub-section (2) considered in the background of sub-section (1) of Section 3 can "be construed to mean, causing insult to the Indian National Flag or any other object of public veneration in such a situation as reasonably exposes the act, causing such insult to the view of those who hold these objects in veneration or to the public view and it would not cover cases where the Indian National Flag or other object of public veneration is mutilated, damaged, burnt, defiled or destroyed completely unseen or when incapable of being seen by anyone whose feelings are likely to be hurt thereby. The act causing insult referred to in clause (c) must be such as would be capable of arousing the feelings of indignation in someone and that can only be the case when insult is caused in the circumstances just explained", and was accordingly restricted to such situation. The challenge there was negatived. In this case what is said to have been defiled by the petitioner and his associates is the statue of Rabindra Nath Tagore, a Poet and sage venerated by all in this country and affords a sufficient ground for detention. The other ground also directly connects the act with the disturbance of public order. | 0 | 5,382 | 1,721 | ### Instruction:
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on the same day which was approved by the State Government on January 27, 1971, so that the mandatory provisions of the Act both in respect of the report to be made to the State Government within five days from the date of the order and the approval of the detention within twelve days from the date of detention were satisfied. On the 27th itself a report was made to the Central Government as required under Section 13. The State Government placed the detention order, the grounds and the report etc. before the Advisory Board on February 18, 1971, which is also within 30 days from the date of detention as required under Section 10. The State Government rejected the representation made by the detenu on March 15, 1971, and the Advisory Board submitted its report that there was sufficient cause for his detention on March 23, 1971, which was confirmed on April 8, 1971. In the note file of the Government which we perused, though confirmation was recorded within three months, the communication was made later on August 26, 1971. The mandatory provisions, therefore, are fully complied with.13. The next question is whether the grounds are vague and irrelevant. These are as follows :(i) that on January 7, 1971, night you and your associates including Somesh Chandra Deb mutilated the statue of the eminent Indian Poet Rabindra Nath Tagore installed in a public place at Boilapara in Bishnupur town and thereby caused insult to an object of public veneration.(ii) That on January 11, 1971, at about 01.45 hrs. you and your associates broke into the Post Office situated at Rashikgunj in Bishnupur town and caused mischief to it by fire by destroying its official records by burning.It was contended that the associates of the petitioner has not been specified and therefore it will be difficult for the petitioner to make effective representation in respect thereof. We think there is no validity in this submission. Not only the dates and the time in each of the grounds have been mentioned but the acts of the petitioner have been specified in detail to enable him to make an effective representation. In our view it is not necessary for the petitioner to make an effective representation to specify all his associates because they may not have been known. The petitioner is being detained in respect of his acts and if in association with others he has acted in a manner prejudicial to the maintenance of the public order, his detention cannot be said to be illegal.14. It is again contended relying on Madhu Limaye v. Sub-Divisional Magistrate, Monghyr and Others, [1970 (3) SCC 746 ] and Dr. Ram Manohar Lohia v. State of Bihar and Others, [(1966) 1 SCR 709 : AIR 1966 SC 740 ] that the act specified in each of the grounds do not amount to disturbance of public order though they may effect law and order. This contention is equally untenable because Section 3(2) of the Act defines the expression "acting in any manner prejudicial to the security of the State or the maintenance of public order" as given in sub-clause (a) to (e) to the said sub-section. We are here in this case concerned with the definition given in Section 3(2)(c) which makes any act causing insult to the Indian National Flag or to any other object of public veneration, whether by mutilating, damaging, burning, defiling, destroying or otherwise, or instigating any person to do so. The explanation to this sub-clause includes in the causing of insult to any object of public veneration, any portrait or statue of an eminent Indian, installed in a public place as a mark of respect to him or to his memory. The validity of sub-section (2) of Section 3 of the Act was challenged recently in the case of State of West Bengal v. Ashok Dey and Others, (supra) but this Court held that it was valid. The challenge to clauses (a), (b), (d) and (e) dealing with disturbance of a publics order in the State with respect to which it was said there can be no two opinions about the Acts covered by those being likely to be prejudicial to the maintains of public order. In regard to clause (c) the argument that insulting the object of public veneration in privacy without the act causing insult being noticed by anyone who holds them in veneration could have no rational nexus with the disturbance of public order or security of State, was in the abstract described as attractive. In the light of the circumstances in which the Act was passed the mischief intended to be removed by this enactment and the object and purpose of enacting it, this Court held that clause (c) of sub-section (2) considered in the background of sub-section (1) of Section 3 can "be construed to mean, causing insult to the Indian National Flag or any other object of public veneration in such a situation as reasonably exposes the act, causing such insult to the view of those who hold these objects in veneration or to the public view and it would not cover cases where the Indian National Flag or other object of public veneration is mutilated, damaged, burnt, defiled or destroyed completely unseen or when incapable of being seen by anyone whose feelings are likely to be hurt thereby. The act causing insult referred to in clause (c) must be such as would be capable of arousing the feelings of indignation in someone and that can only be the case when insult is caused in the circumstances just explained", and was accordingly restricted to such situation. The challenge there was negatived. In this case what is said to have been defiled by the petitioner and his associates is the statue of Rabindra Nath Tagore, a Poet and sage venerated by all in this country and affords a sufficient ground for detention. The other ground also directly connects the act with the disturbance of public order.
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months from the date a person is detained. It is for this reason after the Constitution every legislation dealing with Preventive Detention has made specific provision for confirmation and continuance of detention in view of the Constitutional mandate contained in Article 22(4). A period within which the appropriate Government has to make a reference to the Board, the period within which the Board has to make a report on the sufficiency of the ground for detention is provided for which has been uniformly one month and ten weeks respectively. The period of ten weeks for the submission of the report by the Board where Article 22(4) provides for twelve weeks is designdly fixed because that would give the appropriate Governments two weeks to confirm and extend the period or not to confirm. Of course the opinion of the Board need not necessarily be given on the last day of the expiry of the ten weeks. It is quite possible that this information may be submitted to the appropriate Government well within ten weeks. In such cases a question whether the confirmation and extension has to be made by the appropriate Government within a reasonable period may arise for consideration, but in any case failure to confirm and extend the period within three months will result in the detention becoming illegal the moment the three months period has elapsed without such confirmation. Any subsequent action by the appropriate Government after the three months cannot have the effect of extending the period of detention. This view of ours is further fortified by Section 13 of the Act where the maximum period for which any person may be detained in pursuance of any detention order which has been confirmed under Section 12 shall be twelve months from the date of detention. This requirement would suggest that the extension of the period of detention beyond three months up to a maximum of twelve months is from the date of confirmation of the opinion of the Board which if unconfirmed would not extend the period beyond three months. If so at what point of time should that be confirmed ? It would be meaningless to suggest that the confirmation of the Boards opinion can take place beyond three months when the period of detention has come to an end and has not been extended by the want of it. Looking at it in a different way what these provisions amount to is that no person can be detained for any period beyond three months or for any period thereafter up to twelve months unless the Boards opinion is confirmed within threeonly the dates and the time in each of the grounds have been mentioned but the acts of the petitioner have been specified in detail to enable him to make an effective representation. In our view it is not necessary for the petitioner to make an effective representation to specify all his associates because they may not have been known. The petitioner is being detained in respect of his acts and if in association with others he has acted in a manner prejudicial to the maintenance of the public order, his detention cannot be said to beare here in this case concerned with the definition given in Section 3(2)(c) which makes any act causing insult to the Indian National Flag or to any other object of public veneration, whether by mutilating, damaging, burning, defiling, destroying or otherwise, or instigating any person to do so. The explanation to this sub-clause includes in the causing of insult to any object of public veneration, any portrait or statue of an eminent Indian, installed in a public place as a mark of respect to him or to his memory. The validity of sub-section (2) of Section 3 of the Act was challenged recently in the case of State of West Bengal v. Ashok Dey and Others, (supra) but this Court held that it was valid. The challenge to clauses (a), (b), (d) and (e) dealing with disturbance of a publics order in the State with respect to which it was said there can be no two opinions about the Acts covered by those being likely to be prejudicial to the maintains of public order. In regard to clause (c) the argument that insulting the object of public veneration in privacy without the act causing insult being noticed by anyone who holds them in veneration could have no rational nexus with the disturbance of public order or security of State, was in the abstract described as attractive. In the light of the circumstances in which the Act was passed the mischief intended to be removed by this enactment and the object and purpose of enacting it, this Court held that clause (c) of sub-section (2) considered in the background of sub-section (1) of Section 3 can "be construed to mean, causing insult to the Indian National Flag or any other object of public veneration in such a situation as reasonably exposes the act, causing such insult to the view of those who hold these objects in veneration or to the public view and it would not cover cases where the Indian National Flag or other object of public veneration is mutilated, damaged, burnt, defiled or destroyed completely unseen or when incapable of being seen by anyone whose feelings are likely to be hurt thereby. The act causing insult referred to in clause (c) must be such as would be capable of arousing the feelings of indignation in someone and that can only be the case when insult is caused in the circumstances just explained", and was accordingly restricted to such situation. The challenge there was negatived. In this case what is said to have been defiled by the petitioner and his associates is the statue of Rabindra Nath Tagore, a Poet and sage venerated by all in this country and affords a sufficient ground for detention. The other ground also directly connects the act with the disturbance of public order.
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Mallesappa Bandeppa Desai And Others Vs. Desai Mallappa And Others | she would like to join the litigation. Respondent 2 has stated in his evidence that Neelamma, was not willing to join the said litigation and respondent 1 has supported this version. The High Court thought that the evidence of Neelamma was also consistent with the story set up by respondent 1. That is one of the main reasons why the High Court held that the decree passed in the said suit did not ensure for the benefit of the family. In assuming that Neelamma supported the version of respondent 1 the High Court has obviously misread her evidence. This is what Neelamma has stated in her evidence : "Defendants 1 and 2 came to me at the time of filing their suits and said that the expenses are likely to be heavy and that minors properties would not be wasted. I said I had no objection and gave my consent". The High Court has read her evidence to mean that she was not prepared to waste the properties of her minor sons and so she refused to join the adventure, and in doing so it thought that the statement of respondent 2 was that the minors properties should not be wasted, whereas according to the witness the said statement was that the minors properties "would" not be wasted. It would be noticed that it makes substantial difference whether the words used were "would not" or "should not". We have no doubt that on the evidence as it stands the inference is wholly unjustified that Neelamma refused to ;join respondents 1 and 2. Besides, as we have already pointed out, the evidence of respondents 1 and 2 has been disbelieved by both the Courts, and in fact the conduct of respondent 1 whereby he wanted a defeat the claims of his nephews has been very strongly criticised by both the Courts. Therefore, we feel no hesitation in holding that the trial Court was right in coming to the conclusion that respondents 1 and 2 consulted Neelamma and with her consent the suit was filed and was intended to be fought by the two respondents not for themselves individually but with the knowledge that respondent 1 represented the undivided family of which he was the manager. If that be so, then it must follow that the decree which was passed in favour of respondent 1 was not for his personal benefit but for the benefit of the whole family.15. In this connection it is necessary to bear in mind that respondent 1 has not shown by any reliable evidence that the expenses for the said litigation were borne by him out of his pocket. It is true that both the courts have found that respondent 1 purchased certain properties for Rs. 600/- in 1925 (Ex. B-4).We do not know what the income of the said properties was; obviously it could not be of any significant order; but in out opinion there is no doubt that where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund. The onus, of proof must in such a case be placed on the manager and not on his coparceners. But, apart from the question of onus, the evidence given by respondent 1 in this case has been disbelieved, and in the absence of any satisfactory material to show that respondent 1 had any means of his own it would be idle to contend that the expenses incurred for the litigation in question were not borne by the joint family income. Therefore, apart from the fact that Neelamma was consulted and agreed to joint the adventure on behalf of her sons, it is clear that the expenses for the litigation were borne by the whole family from its own joint funds. This fact also shows that the property acquired by respondent 1 under the compromise decree was acquired by him as representing the family of which he was the manager. The result is that the view taken by the High Court in respect of the properties in Schedule C must be reversed and that of the trial Court restored.16. That leaves a minor point about three items of property, Serial Nos. 63, 64 and 65, in Schedule A. These items of property form part of Jonnagiri property and we have already held that the appellants cannot make any claim to the whole of this property. It appears that though the trail judge passed a decree in favour of the appellants in respect of Serial Nos. 4 to 61 in Schedule A, he did not recognise the appellants share in the three serial numbers in question because he held that they were not part of the joint family property but belonged exclusively to respondent 1. It also appears that these properties originally belonged to the joint family of the parties but they were sold by Kari Ramappa and his two brothers to Channappa as long ago as 1898. That is how they formed part of Channappas estate. Both the courts have found that the sale deed in question was a real and genuine transaction, and they have rejected the appellants case to the contrary. Respondent 1 claims these items under a deed of surrender executed in his favour by Channamma (Ex. B-3) on December 5, 1938. This document is accepted as genuine by both the courts and it is not disputed that the surrender effected by it is valid under Hindu law. Indeed this document is wholly inconsistent with the appellants case that Channamma wanted to convert her separate properties into properties of the joint family of her husband. Therefore, there is no substance in the appellants argument that they should be given a share in these three items of property. | 1[ds]It would thus be clear that the relevant text and the commentary are not dealing with a case where the separate property of a coparcener independently acquired by him is thrown into the common stock with the deliberate intention of extinguishing its separate character and impressing upon it the character of the joint family property. The subject matter of the discussion is addition to the common stock made by the efforts of a coparancer with the assistance of the common stock itself. Therefore, in our opinion, the said text cannot be treated as the basis for the doctrine of blending as it has been judicially evolved.It is, we think, unnecessary to investigate whether any other text can be treated as the foundation of the said doctrine since the said doctrine has been recognised in several decisions and has now become a part of Hinduour opinion, it is difficult to answer this question in favour of the appellants. The rule of blending postulates that a coparcener who is interested in the coparcenary property and who owns separate property of his own may by deliberate and intentional conduct treat his separate property as forming part of the coparcenary property. If it appears that property which is separately acquired has been deliberately and voluntarily thrown by the owner into the joint stock with the clear intention of abandoning his claim on the said property and with the object of assimilating it to the joint family property, then the said property becomes a part of the joint family estate; in other words, the separate property of a coparcener loses its separate character by reason of a coparancer of the owners conduct and get thrown into the common stock of which it becomes a part. This doctrine, therefore, inevitably postulates that the owner of the separate property is a coparcener who has an interest in the coparcener property and desires to blend his separate property with the coparcenery property. There can be no doubt that the conduct on which a plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property to convert his property into an item of joint family property. A mere intention of benefit the members of the family by allowing them the use of the income coming from the said property may not necessarily be enough to justify an inference of blending; but the basis of the doctrine is the existence of coparcenery and coparcenery property as well as the existence of the separate property of a coparcener. How this doctrine can be applied to the case of a Hindu female who has acquired immovable property form her father as a limited owner it is difficult to understand. Such a Hindu female is not a coparcener and as such has no interest in coparcenery property. She holds the property as a limited owner, and on her death the property has to devolve, on the next reversioner. Under Hindu Law it is open to a limited owner like a Hindu female succeeding to her mothers estate as in Madras or a Hindu widow succeeding to her husbands estate, to effect herself and accelerate the revision by surrender ; but, as is well known, surrender has to be effected according to the rules recognised in that behalf. A Hindu female owning a limited estate cannot circumvent the rules of surrender and allow the members of her husbands family to treat her limited estate as part of the joint property belonging to the said family. On first principles such a result would be inconsistent with the basic notion of blending and the basic character of a limited owners title to the property held by her. This aspect of the matter has apparently not been argued before the Courts below and has not been considered by them. Thus, if the doctrine of blending cannot be invoked in regard to the property held by Channamma, the appellants claim in respect of the said property can and must be rejected on this preliminary ground alone.However, we will briefly indicate the nature of the evidence on which the plea of blending was sought to be supported. It appears that in 1921 a deed of maintenance was executed in favour of Gurushantappas widow Parvathamma by the three surviving brothers of Guruchantappa. This deed was attested by their father Kari Ramappa. It is clear that this deed includes some of the lands which Channamma had acquired by succession to her father (Ex.Subsequently, on July 5, 1923, some additional properties belonging to Channamma were charged to the said maintenance (Ex.It also appears that pattas in respect of the same lands belonging to Channamma were obtained in the names of the members of the family; and consequently, the said pattas were shown in the relevant revenue papers. Broadly stated, that is the nature of the evidence on which the plea of blending rests. It is obvious that even if the doctrine of blending were applicable it would be impossible to hold that the transactions on which it is sought to be supported can lead to the reference that Channamma did any act from which her deliberate intention to give up her title over the properties, in favour of the members of her husbands family can be inferred. It is not difficult to imagine Channammas position in the family. If her husband and her sons dealt with her property as they thought fit to do Channamma may not know about it, and even if she knew about it, may not think it necessary to object because she would not be averse to giving some income from her property to her sons or to her widowedAs we have already pointed out, the conduct of the owner on which the plea of merger can be invoked must be clear and unequivocal, and the evidence about it must be of such a strong character as to justify an inference that the owner wanted to extinguish his title over the property and impress upon it the character of the joint family property. Besides, as we will later point out, Channamma executed a deed of surrender in 1938, and the said document is wholly inconsistent with the plea that she intended to give up her title to the property in favour of her husbands joint family. However, this discussion is purely academic since we have already held that the principle of blending cannot be invoked in respect of the limited estate held by Channamma. Therefore, we must hold that the High Court was right in rejecting the appellants claim in respect of the properties in Jonnagiri.It is clear that at the time when the said suit was filed respondent 2 was a presumptive reversioner and not respondent 1; but it appears that respondent 2 wanted the help of respondent 1 to fight the litigation, and both of them joined in bringing the said suit. It is common ground that respondent 2 asked Neelamma whether she would like to join the litigation. Respondent 2 has stated in his evidence that Neelamma, was not willing to join the said litigation and respondent 1 has supported this version. The High Court thought that the evidence of Neelamma was also consistent with the story set up by respondent 1. That is one of the main reasons why the High Court held that the decree passed in the said suit did not ensure for the benefit of the family. In assuming that Neelamma supported the version of respondent 1 the High Court has obviously misread her evidence. This is what Neelamma has stated in her evidence : "Defendants 1 and 2 came to me at the time of filing their suits and said that the expenses are likely to be heavy and that minors properties would not be wasted. I said I had no objection and gave my consent". The High Court has read her evidence to mean that she was not prepared to waste the properties of her minor sons and so she refused to join the adventure, and in doing so it thought that the statement of respondent 2 was that the minors properties should not be wasted, whereas according to the witness the said statement was that the minors properties "would" not be wasted. It would be noticed that it makes substantial difference whether the words used were "would not" or "should not". We have no doubt that on the evidence as it stands the inference is wholly unjustified that Neelamma refused to ;join respondents 1 and 2. Besides, as we have already pointed out, the evidence of respondents 1 and 2 has been disbelieved by both the Courts, and in fact the conduct of respondent 1 whereby he wanted a defeat the claims of his nephews has been very strongly criticised by both the Courts. Therefore, we feel no hesitation in holding that the trial Court was right in coming to the conclusion that respondents 1 and 2 consulted Neelamma and with her consent the suit was filed and was intended to be fought by the two respondents not for themselves individually but with the knowledge that respondent 1 represented the undivided family of which he was the manager. If that be so, then it must follow that the decree which was passed in favour of respondent 1 was not for his personal benefit but for the benefit of the whole family.15. In this connection it is necessary to bear in mind that respondent 1 has not shown by any reliable evidence that the expenses for the said litigation were borne by him out of his pocket. It is true that both the courts have found that respondent 1 purchased certain properties for Rs. 600/in 1925 (Ex.do not know what the income of the said properties was; obviously it could not be of any significant order; but in out opinion there is no doubt that where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund. The onus, of proof must in such a case be placed on the manager and not on his coparceners. But, apart from the question of onus, the evidence given by respondent 1 in this case has been disbelieved, and in the absence of any satisfactory material to show that respondent 1 had any means of his own it would be idle to contend that the expenses incurred for the litigation in question were not borne by the joint family income. Therefore, apart from the fact that Neelamma was consulted and agreed to joint the adventure on behalf of her sons, it is clear that the expenses for the litigation were borne by the whole family from its own joint funds. This fact also shows that the property acquired by respondent 1 under the compromise decree was acquired by him as representing the family of which he was the manager. The result is that the view taken by the High Court in respect of the properties in Schedule C must be reversed and that of the trial Court restored.16. That leaves a minor point about three items of property, Serial Nos. 63, 64 and 65, in Schedule A. These items of property form part of Jonnagiri property and we have already held that the appellants cannot make any claim to the whole of this property. It appears that though the trail judge passed a decree in favour of the appellants in respect of Serial Nos. 4 to 61 in Schedule A, he did not recognise the appellants share in the three serial numbers in question because he held that they were not part of the joint family property but belonged exclusively to respondent 1. It also appears that these properties originally belonged to the joint family of the parties but they were sold by Kari Ramappa and his two brothers to Channappa as long ago as 1898. That is how they formed part of Channappas estate. Both the courts have found that the sale deed in question was a real and genuine transaction, and they have rejected the appellants case to the contrary. Respondent 1 claims these items under a deed of surrender executed in his favour by Channamma (Ex.on December 5, 1938. This document is accepted as genuine by both the courts and it is not disputed that the surrender effected by it is valid under Hindu law. Indeed this document is wholly inconsistent with the appellants case that Channamma wanted to convert her separate properties into properties of the joint family of her husband. Therefore, there is no substance in the appellants argument that they should be given a share in these three items of property. | 1 | 4,807 | 2,301 | ### Instruction:
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she would like to join the litigation. Respondent 2 has stated in his evidence that Neelamma, was not willing to join the said litigation and respondent 1 has supported this version. The High Court thought that the evidence of Neelamma was also consistent with the story set up by respondent 1. That is one of the main reasons why the High Court held that the decree passed in the said suit did not ensure for the benefit of the family. In assuming that Neelamma supported the version of respondent 1 the High Court has obviously misread her evidence. This is what Neelamma has stated in her evidence : "Defendants 1 and 2 came to me at the time of filing their suits and said that the expenses are likely to be heavy and that minors properties would not be wasted. I said I had no objection and gave my consent". The High Court has read her evidence to mean that she was not prepared to waste the properties of her minor sons and so she refused to join the adventure, and in doing so it thought that the statement of respondent 2 was that the minors properties should not be wasted, whereas according to the witness the said statement was that the minors properties "would" not be wasted. It would be noticed that it makes substantial difference whether the words used were "would not" or "should not". We have no doubt that on the evidence as it stands the inference is wholly unjustified that Neelamma refused to ;join respondents 1 and 2. Besides, as we have already pointed out, the evidence of respondents 1 and 2 has been disbelieved by both the Courts, and in fact the conduct of respondent 1 whereby he wanted a defeat the claims of his nephews has been very strongly criticised by both the Courts. Therefore, we feel no hesitation in holding that the trial Court was right in coming to the conclusion that respondents 1 and 2 consulted Neelamma and with her consent the suit was filed and was intended to be fought by the two respondents not for themselves individually but with the knowledge that respondent 1 represented the undivided family of which he was the manager. If that be so, then it must follow that the decree which was passed in favour of respondent 1 was not for his personal benefit but for the benefit of the whole family.15. In this connection it is necessary to bear in mind that respondent 1 has not shown by any reliable evidence that the expenses for the said litigation were borne by him out of his pocket. It is true that both the courts have found that respondent 1 purchased certain properties for Rs. 600/- in 1925 (Ex. B-4).We do not know what the income of the said properties was; obviously it could not be of any significant order; but in out opinion there is no doubt that where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund. The onus, of proof must in such a case be placed on the manager and not on his coparceners. But, apart from the question of onus, the evidence given by respondent 1 in this case has been disbelieved, and in the absence of any satisfactory material to show that respondent 1 had any means of his own it would be idle to contend that the expenses incurred for the litigation in question were not borne by the joint family income. Therefore, apart from the fact that Neelamma was consulted and agreed to joint the adventure on behalf of her sons, it is clear that the expenses for the litigation were borne by the whole family from its own joint funds. This fact also shows that the property acquired by respondent 1 under the compromise decree was acquired by him as representing the family of which he was the manager. The result is that the view taken by the High Court in respect of the properties in Schedule C must be reversed and that of the trial Court restored.16. That leaves a minor point about three items of property, Serial Nos. 63, 64 and 65, in Schedule A. These items of property form part of Jonnagiri property and we have already held that the appellants cannot make any claim to the whole of this property. It appears that though the trail judge passed a decree in favour of the appellants in respect of Serial Nos. 4 to 61 in Schedule A, he did not recognise the appellants share in the three serial numbers in question because he held that they were not part of the joint family property but belonged exclusively to respondent 1. It also appears that these properties originally belonged to the joint family of the parties but they were sold by Kari Ramappa and his two brothers to Channappa as long ago as 1898. That is how they formed part of Channappas estate. Both the courts have found that the sale deed in question was a real and genuine transaction, and they have rejected the appellants case to the contrary. Respondent 1 claims these items under a deed of surrender executed in his favour by Channamma (Ex. B-3) on December 5, 1938. This document is accepted as genuine by both the courts and it is not disputed that the surrender effected by it is valid under Hindu law. Indeed this document is wholly inconsistent with the appellants case that Channamma wanted to convert her separate properties into properties of the joint family of her husband. Therefore, there is no substance in the appellants argument that they should be given a share in these three items of property.
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respondent 2 asked Neelamma whether she would like to join the litigation. Respondent 2 has stated in his evidence that Neelamma, was not willing to join the said litigation and respondent 1 has supported this version. The High Court thought that the evidence of Neelamma was also consistent with the story set up by respondent 1. That is one of the main reasons why the High Court held that the decree passed in the said suit did not ensure for the benefit of the family. In assuming that Neelamma supported the version of respondent 1 the High Court has obviously misread her evidence. This is what Neelamma has stated in her evidence : "Defendants 1 and 2 came to me at the time of filing their suits and said that the expenses are likely to be heavy and that minors properties would not be wasted. I said I had no objection and gave my consent". The High Court has read her evidence to mean that she was not prepared to waste the properties of her minor sons and so she refused to join the adventure, and in doing so it thought that the statement of respondent 2 was that the minors properties should not be wasted, whereas according to the witness the said statement was that the minors properties "would" not be wasted. It would be noticed that it makes substantial difference whether the words used were "would not" or "should not". We have no doubt that on the evidence as it stands the inference is wholly unjustified that Neelamma refused to ;join respondents 1 and 2. Besides, as we have already pointed out, the evidence of respondents 1 and 2 has been disbelieved by both the Courts, and in fact the conduct of respondent 1 whereby he wanted a defeat the claims of his nephews has been very strongly criticised by both the Courts. Therefore, we feel no hesitation in holding that the trial Court was right in coming to the conclusion that respondents 1 and 2 consulted Neelamma and with her consent the suit was filed and was intended to be fought by the two respondents not for themselves individually but with the knowledge that respondent 1 represented the undivided family of which he was the manager. If that be so, then it must follow that the decree which was passed in favour of respondent 1 was not for his personal benefit but for the benefit of the whole family.15. In this connection it is necessary to bear in mind that respondent 1 has not shown by any reliable evidence that the expenses for the said litigation were borne by him out of his pocket. It is true that both the courts have found that respondent 1 purchased certain properties for Rs. 600/in 1925 (Ex.do not know what the income of the said properties was; obviously it could not be of any significant order; but in out opinion there is no doubt that where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund. The onus, of proof must in such a case be placed on the manager and not on his coparceners. But, apart from the question of onus, the evidence given by respondent 1 in this case has been disbelieved, and in the absence of any satisfactory material to show that respondent 1 had any means of his own it would be idle to contend that the expenses incurred for the litigation in question were not borne by the joint family income. Therefore, apart from the fact that Neelamma was consulted and agreed to joint the adventure on behalf of her sons, it is clear that the expenses for the litigation were borne by the whole family from its own joint funds. This fact also shows that the property acquired by respondent 1 under the compromise decree was acquired by him as representing the family of which he was the manager. The result is that the view taken by the High Court in respect of the properties in Schedule C must be reversed and that of the trial Court restored.16. That leaves a minor point about three items of property, Serial Nos. 63, 64 and 65, in Schedule A. These items of property form part of Jonnagiri property and we have already held that the appellants cannot make any claim to the whole of this property. It appears that though the trail judge passed a decree in favour of the appellants in respect of Serial Nos. 4 to 61 in Schedule A, he did not recognise the appellants share in the three serial numbers in question because he held that they were not part of the joint family property but belonged exclusively to respondent 1. It also appears that these properties originally belonged to the joint family of the parties but they were sold by Kari Ramappa and his two brothers to Channappa as long ago as 1898. That is how they formed part of Channappas estate. Both the courts have found that the sale deed in question was a real and genuine transaction, and they have rejected the appellants case to the contrary. Respondent 1 claims these items under a deed of surrender executed in his favour by Channamma (Ex.on December 5, 1938. This document is accepted as genuine by both the courts and it is not disputed that the surrender effected by it is valid under Hindu law. Indeed this document is wholly inconsistent with the appellants case that Channamma wanted to convert her separate properties into properties of the joint family of her husband. Therefore, there is no substance in the appellants argument that they should be given a share in these three items of property.
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Improvement Trust, Ludhiana Vs. Ujagar Singh | High Court and the appeal/revision of the appellant was dismissed on 9/5/2003. In the light of the aforesaid orders the objections preferred by appellant herein purportedly filed under Order 21 Rule 90 of the CPC met with the fate of dismissal. Appellant also filed an application for review of the order dated 9/5/2003 passed by High Court under Order 47 Rule 1 of the CPC but was also dismissed on 8/7/2004, against which C.A. No.2395/2008 has been filed before this Court. Since parties are same and common issues arise for consideration they are heard analogously and disposed of by a common order. 10. Learned senior counsel appearing for appellant Mr. Salil Sagar with Mr. Arun K. Sinha, contended that appellant had been contesting the matter in right earnest right from the very beginning and had implicit faith and confidence in his Advocate Mr. P.K. Jain, who had been appearing for the appellant not only in this case but in several other cases. According to him there was no reason to doubt that he would not appear on various dates of hearing and then would not even inform the appellant about the progress of the case. In other words, it has been contended that whatever best was possible to be done by the appellant that had been done, therefore even though there has been some delay, on account of non-communication of the passing of the impugned order challenged in appeal, delay should have been condoned and the matter should not have been thrown at the threshold. To show its bonafides various order-sheets passed by Trial Court and the Executing Court have been brought to our notice. The envelop maintained by Mr. P.K.Jain, Advocate, for keeping the brief, has been filed to show that dates of hearing were mentioned therein. 11. On the other hand, Mr. Vijay Hansaria, learned senior counsel appearing for respondent No.5, with his polite yet usual vehemence submitted that list of dates as filed by the Company would show and reveal the callous and negligent attitude of the appellant or its Advocate, therefore no indulgence should be shown to it. It was contended that the indifferent attitude of the appellant in prosecuting the matter had not come to an end and Appellant had learnt no lessons from its previous defaults. 12. Even though appeal was dismissed by First Appellate Court on the ground of delay, stood confirmed by the High Court but even the Special Leave Petition was delayed by 258 days in refiling there was further delay of 90 days. No doubt it is true that this Court after considering the appellants application was pleased to condone delay and leave was granted. But this has been argued by Mr. Vijay Hansaria to show the conduct, behaviour and attitude of the appellant in prosecuting the matter. 13. Be that as it may, we are of the opinion that the delay in filing the first appeal before District Judge, Ludhiana, for setting aside the sale has not been so huge warranting its dismissal on such hypertechnical ground. In fact, according to us, appellant had taken all possible steps to prosecute the matter within time. Had there been an intimation sent to the appellant by Mr. P.K. Jain, its erstwhile Advocate, and if even thereafter appellant had acted callously then we could have understood the negligent attitude of the appellant but that was not the case here. No sooner the appellant came to know about the dismissal of its objection filed before the Executing Court, under Order 21 Rule 90 of the CPC it made enquiries and filed the appeal. While considering the application for condonation of delay no straight jacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. From the conduct behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter. Even though Mr. Vijay Hansaria appearing for the respondent No.5 has argued the matter at length and tried his best to persuade us to come to the conclusion that no sufficient grounds made out to interfere with the concurrent findings of facts but we are afraid, we are not satisfied with the line of arguments so adopted by the counsel for respondent No.5 and cannot subscribe to the same. 14. After all, justice can be done only when the matter is fought on merits and in accordance with law rather than to dispose it of on such technicalities and that too at the threshold. Both sides had tried to argue the matter on merits but we refrain ourselves from touching the merits of the matter as that can best be done by the Executing Court which had denied an opportunity to the appellant to lead evidence and to prove the issues so formulated. 15. In our opinion, ends of justice would be met by setting aside the impugned orders and matter is remitted to the Executing Court to consider and dispose of appellants objections filed under Order 21 Rule 90 of CPC on merits and in accordance with law, at an early date. It is pertinent to point out that unless malafides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technicalities. 16. Apart from the above, appellant would not have gained in any manner whatsoever, by not filing the appeal within the period of limitation. It is also worth noticing that delay was also not that huge, which could not have been condoned, without putting the respondents to harm or prejudice. It is the duty of the Court to see to it that justice should be done between the parties. | 1[ds]13. Be that as it may, we are of the opinion that the delay in filing the first appeal before District Judge, Ludhiana, for setting aside the sale has not been so huge warranting its dismissal on such hypertechnical ground. In fact, according to us, appellant had taken all possible steps to prosecute the matter within time. Had there been an intimation sent to the appellant by Mr. P.K. Jain, its erstwhile Advocate, and if even thereafter appellant had acted callously then we could have understood the negligent attitude of the appellant but that was not the case here. No sooner the appellant came to know about the dismissal of its objection filed before the Executing Court, under Order 21 Rule 90 of the CPC it made enquiries and filed the appeal. While considering the application for condonation of delay no straight jacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. From the conduct behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter. Even though Mr. Vijay Hansaria appearing for the respondent No.5 has argued the matter at length and tried his best to persuade us to come to the conclusion that no sufficient grounds made out to interfere with the concurrent findings of facts but we are afraid, we are not satisfied with the line of arguments so adopted by the counsel for respondent No.5 and cannot subscribe to the same14. After all, justice can be done only when the matter is fought on merits and in accordance with law rather than to dispose it of on such technicalities and that too at the threshold. Both sides had tried to argue the matter on merits but we refrain ourselves from touching the merits of the matter as that can best be done by the Executing Court which had denied an opportunity to the appellant to lead evidence and to prove the issues so formulated15. In our opinion, ends of justice would be met by setting aside the impugned orders and matter is remitted to the Executing Court to consider and dispose of appellants objections filed under Order 21 Rule 90 of CPC on merits and in accordance with law, at an early date. It is pertinent to point out that unless malafides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technicalities16. Apart from the above, appellant would not have gained in any manner whatsoever, by not filing the appeal within the period of limitation. It is also worth noticing that delay was also not that huge, which could not have been condoned, without putting the respondents to harm or prejudice. It is the duty of the Court to see to it that justice should be done between the parties. | 1 | 1,880 | 572 | ### 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:
High Court and the appeal/revision of the appellant was dismissed on 9/5/2003. In the light of the aforesaid orders the objections preferred by appellant herein purportedly filed under Order 21 Rule 90 of the CPC met with the fate of dismissal. Appellant also filed an application for review of the order dated 9/5/2003 passed by High Court under Order 47 Rule 1 of the CPC but was also dismissed on 8/7/2004, against which C.A. No.2395/2008 has been filed before this Court. Since parties are same and common issues arise for consideration they are heard analogously and disposed of by a common order. 10. Learned senior counsel appearing for appellant Mr. Salil Sagar with Mr. Arun K. Sinha, contended that appellant had been contesting the matter in right earnest right from the very beginning and had implicit faith and confidence in his Advocate Mr. P.K. Jain, who had been appearing for the appellant not only in this case but in several other cases. According to him there was no reason to doubt that he would not appear on various dates of hearing and then would not even inform the appellant about the progress of the case. In other words, it has been contended that whatever best was possible to be done by the appellant that had been done, therefore even though there has been some delay, on account of non-communication of the passing of the impugned order challenged in appeal, delay should have been condoned and the matter should not have been thrown at the threshold. To show its bonafides various order-sheets passed by Trial Court and the Executing Court have been brought to our notice. The envelop maintained by Mr. P.K.Jain, Advocate, for keeping the brief, has been filed to show that dates of hearing were mentioned therein. 11. On the other hand, Mr. Vijay Hansaria, learned senior counsel appearing for respondent No.5, with his polite yet usual vehemence submitted that list of dates as filed by the Company would show and reveal the callous and negligent attitude of the appellant or its Advocate, therefore no indulgence should be shown to it. It was contended that the indifferent attitude of the appellant in prosecuting the matter had not come to an end and Appellant had learnt no lessons from its previous defaults. 12. Even though appeal was dismissed by First Appellate Court on the ground of delay, stood confirmed by the High Court but even the Special Leave Petition was delayed by 258 days in refiling there was further delay of 90 days. No doubt it is true that this Court after considering the appellants application was pleased to condone delay and leave was granted. But this has been argued by Mr. Vijay Hansaria to show the conduct, behaviour and attitude of the appellant in prosecuting the matter. 13. Be that as it may, we are of the opinion that the delay in filing the first appeal before District Judge, Ludhiana, for setting aside the sale has not been so huge warranting its dismissal on such hypertechnical ground. In fact, according to us, appellant had taken all possible steps to prosecute the matter within time. Had there been an intimation sent to the appellant by Mr. P.K. Jain, its erstwhile Advocate, and if even thereafter appellant had acted callously then we could have understood the negligent attitude of the appellant but that was not the case here. No sooner the appellant came to know about the dismissal of its objection filed before the Executing Court, under Order 21 Rule 90 of the CPC it made enquiries and filed the appeal. While considering the application for condonation of delay no straight jacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. From the conduct behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter. Even though Mr. Vijay Hansaria appearing for the respondent No.5 has argued the matter at length and tried his best to persuade us to come to the conclusion that no sufficient grounds made out to interfere with the concurrent findings of facts but we are afraid, we are not satisfied with the line of arguments so adopted by the counsel for respondent No.5 and cannot subscribe to the same. 14. After all, justice can be done only when the matter is fought on merits and in accordance with law rather than to dispose it of on such technicalities and that too at the threshold. Both sides had tried to argue the matter on merits but we refrain ourselves from touching the merits of the matter as that can best be done by the Executing Court which had denied an opportunity to the appellant to lead evidence and to prove the issues so formulated. 15. In our opinion, ends of justice would be met by setting aside the impugned orders and matter is remitted to the Executing Court to consider and dispose of appellants objections filed under Order 21 Rule 90 of CPC on merits and in accordance with law, at an early date. It is pertinent to point out that unless malafides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technicalities. 16. Apart from the above, appellant would not have gained in any manner whatsoever, by not filing the appeal within the period of limitation. It is also worth noticing that delay was also not that huge, which could not have been condoned, without putting the respondents to harm or prejudice. It is the duty of the Court to see to it that justice should be done between the parties.
### Response:
1
### Explanation:
13. Be that as it may, we are of the opinion that the delay in filing the first appeal before District Judge, Ludhiana, for setting aside the sale has not been so huge warranting its dismissal on such hypertechnical ground. In fact, according to us, appellant had taken all possible steps to prosecute the matter within time. Had there been an intimation sent to the appellant by Mr. P.K. Jain, its erstwhile Advocate, and if even thereafter appellant had acted callously then we could have understood the negligent attitude of the appellant but that was not the case here. No sooner the appellant came to know about the dismissal of its objection filed before the Executing Court, under Order 21 Rule 90 of the CPC it made enquiries and filed the appeal. While considering the application for condonation of delay no straight jacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from its facts and the circumstances in which the party acts and behaves. From the conduct behaviour and attitude of the appellant it cannot be said that it had been absolutely callous and negligent in prosecuting the matter. Even though Mr. Vijay Hansaria appearing for the respondent No.5 has argued the matter at length and tried his best to persuade us to come to the conclusion that no sufficient grounds made out to interfere with the concurrent findings of facts but we are afraid, we are not satisfied with the line of arguments so adopted by the counsel for respondent No.5 and cannot subscribe to the same14. After all, justice can be done only when the matter is fought on merits and in accordance with law rather than to dispose it of on such technicalities and that too at the threshold. Both sides had tried to argue the matter on merits but we refrain ourselves from touching the merits of the matter as that can best be done by the Executing Court which had denied an opportunity to the appellant to lead evidence and to prove the issues so formulated15. In our opinion, ends of justice would be met by setting aside the impugned orders and matter is remitted to the Executing Court to consider and dispose of appellants objections filed under Order 21 Rule 90 of CPC on merits and in accordance with law, at an early date. It is pertinent to point out that unless malafides are writ large on the conduct of the party, generally as a normal rule, delay should be condoned. In the legal arena, an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technicalities16. Apart from the above, appellant would not have gained in any manner whatsoever, by not filing the appeal within the period of limitation. It is also worth noticing that delay was also not that huge, which could not have been condoned, without putting the respondents to harm or prejudice. It is the duty of the Court to see to it that justice should be done between the parties.
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