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Sri T. Ashok Pai Vs. Commissioner of Income Tax, Bangalore | amendment of Section 271(1)(C) made in the year 1964 to hold : "Even after the amendment of 1964, the penalty proceedings, it is evident, continue to be penal proceedings. Similarly, the question whether the assessee has concealed the particulars of his income or has furnished inaccurate particulars of his income continues to remain a question of fact. Whether the Explanation has made a difference is while deciding the said question of fact the presumption created by it has to be applied, which has the effect of shifting the burden of proof. The entire material on record has to be considered keeping in mind the said presumption and a finding recorded." 24. The question came for consideration of this Court yet again in K.C. Builders and Anr v. Assistant Commissioner of Income-Tax 2004 (265) ITR 562 = (2004) 5 SCC 731), wherein it was held : "One of the amendments made to the abovementioned provisions is the omission of the word deliberately from the expression deliberately furnished inaccurate particulars of such income. It is implicit in the word concealed that there has been a deliberate act on the part of the assessee. The meaning of the word concealment as found in Shorter Oxfort English Dictionary, third edition, Volume I, is as follows :In law, the intentional suppression of truth or fact known, to the injury or prejudice of another.The word concealment inherently carried with it the element of mens rea. Therefore, the mere fact that some figure or some particulars have been disclosed by itself, even if it takes out the case from the purview of non-disclosure, it cannot by itself, even if it takes out the case from the purview of non-disclosure, it cannot by itself take out the case from the purview of non-disclosure, it cannot by itself take out the case from the purview of furnishing inaccurate particulars. Mere omission from the return of an item of receipt does neither amount to concealment nor deliberate furnishing of inaccurate particulars of income unless and until there is some evidence to show or some circumstances found from which it can be gathered that the omission was attributable to an intention or desire on the part of the assessee to hide or conceal the income so as to avoid the imposition of tax thereon. In order that a penalty under Section 271(1)(iii) may be imposed, it has to be proved that the assessee has consciously made the concealment or furnished inaccurate particulars of his income." 25. The said principle has been reiterated in M/s Virtual Soft Systems Ltd. v. Commissioner of Income Tax, Delhi 2007 (2) SCALE 612 , where it was held : "24. Section 271 of the Act is a penal provision and there are well established principles for the interpretation of such a penal provision. Such a provision has to be construed strictly and narrowly and not widely or with the object of advancing the object and intention of the legislature." 26. Referring to a large number of decisions, it was furthermore observed : "27. Every statutory provision for imposition of penalty has two distinct components: (i) That which lays down the conditions for imposition of penalty.(ii) That which provides for computation of the quantum of penalty.Section 271(1)(c) and clause (iiii) relate to the conditions for imposition of penalty, whereas, on the other hand , Explanation 4 to Section 271(1)(c) relates to the computation of the quantum of penalty.28. The provisions of Section 271(1)(c)(iii) prior to 1.4.1976, and after its amendment by the Finance Act, 1975 with effect from 1.4.1976, later provisions being applicable to the assessment year in question, being substantially the same except that in place of the word income in sub clause (iii) to sub clause (c) of Section 271 prior to its amendment by Finance Act, 1975, the expression "amount of tax sought to be evaded" have been substituted. Explanation 4 inserted for the purpose of clause (iii) where the expression "the amount of tax sought to be evaded", was inserted had in fact made no difference in so far as the main criteria, namely, absence of tax continued to exist, prior to or after 1.4.1976, changing only the measure or the scale as to the working of the penalty which earlier was with reference to the income and after the amendment related to the tax sought to be evaded. The sine qua non which was there prior or after the amendment on 1.4.1976 to the fact that there must be a positive income resulting in tax before any penalty could be levied continued to exist. The penalty imposed was in addition to any tax. If there was no tax, no penalty could be levied. The return filed declaring loss and assessment made at a reduced loss did not warrant any levy of penalty within the meaning of Section 271(1)(c)(iii) with or without Explanation 4." 27. In Commissioner of Income Tax, Indore v. Suresh Chandra Mital (2003) 11 SCC 729 , whereupon Mr. Datta, learned Additional Solicitor General relied, no reason was assigned and only the order of the High Court was not interfered with. Therein, it appears, the assessee pleaded that he had submitted the revised return of income which was not found to be sufficient. 28. In M. Janardhana Rao v. Joint Commissioner of Income Tax (2005) 2 SCC 324 , whereupon again reliance was placed by Mr. Datta, this Court was concerned with the meaning of the substantial question of law as obtaining in Section 271A of the Income Tax Act. We are not concerned with the said question in the present case. 29. It is not a case where penalty has been imposed for breach of contravention of a commercial statute where lack of or intention to contravene or existence of bona fie may not be of much importance. It is also not a case where penalty is mandatorily impossible. It was, therefore, not a case where the enabling provision should have been invoked. 30. For the reasons aforementioned the | 1[ds]The assessee is in appealaggrieved by and dissatisfied with a judgment dated 29.9.2005, passed by a Division Bench of the Karnataka High Court in ITRC No.492 of 1998 whereby and whereunder answer to the following question was rendered in the, on thefacts and in the circumstances of the case, the Tribunal was right in holding that penalty u/s.271(1)(C) was not exigible in the present casef an explanation given by the assessee with regard to the mistake committed by him has been treated to be bona fide and it has been found as of fact that he had acted on the basis of wrong legal advice, the question of his failure to discharge his burden in terms of explanation appended to Section 271(1)(C) of the Income Tax Act would not ariseThe order imposing penalty is quasi-criminal in nature and, thus, burden lies on the department to establish that the assessee had concealed his income. Since burden of proof in penalty proceedings varies from that in the assessment proceeding, a finding in an assessment proceeding that a particular receipt is income cannot automatically be adopted, though a finding in the assessment proceeding constitute good evidence in the penalty proceeding. In the penalty proceedings, thus, the authorities must consider the matter afresh as the question has to be considered from a different angleA mere omission or negligence would not constitute a deliberate act of suppressio veri or suggestio falsiIt is not a case where penalty has been imposed for breach of contravention of a commercial statute where lack of or intention to contravene or existence of bonamay not be of much importance. It is also not a case where penalty is mandatorily impossible. It was, therefore, not a case where the enabling provision should have been invoked | 1 | 3,620 | 327 | ### Instruction:
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amendment of Section 271(1)(C) made in the year 1964 to hold : "Even after the amendment of 1964, the penalty proceedings, it is evident, continue to be penal proceedings. Similarly, the question whether the assessee has concealed the particulars of his income or has furnished inaccurate particulars of his income continues to remain a question of fact. Whether the Explanation has made a difference is while deciding the said question of fact the presumption created by it has to be applied, which has the effect of shifting the burden of proof. The entire material on record has to be considered keeping in mind the said presumption and a finding recorded." 24. The question came for consideration of this Court yet again in K.C. Builders and Anr v. Assistant Commissioner of Income-Tax 2004 (265) ITR 562 = (2004) 5 SCC 731), wherein it was held : "One of the amendments made to the abovementioned provisions is the omission of the word deliberately from the expression deliberately furnished inaccurate particulars of such income. It is implicit in the word concealed that there has been a deliberate act on the part of the assessee. The meaning of the word concealment as found in Shorter Oxfort English Dictionary, third edition, Volume I, is as follows :In law, the intentional suppression of truth or fact known, to the injury or prejudice of another.The word concealment inherently carried with it the element of mens rea. Therefore, the mere fact that some figure or some particulars have been disclosed by itself, even if it takes out the case from the purview of non-disclosure, it cannot by itself, even if it takes out the case from the purview of non-disclosure, it cannot by itself take out the case from the purview of non-disclosure, it cannot by itself take out the case from the purview of furnishing inaccurate particulars. Mere omission from the return of an item of receipt does neither amount to concealment nor deliberate furnishing of inaccurate particulars of income unless and until there is some evidence to show or some circumstances found from which it can be gathered that the omission was attributable to an intention or desire on the part of the assessee to hide or conceal the income so as to avoid the imposition of tax thereon. In order that a penalty under Section 271(1)(iii) may be imposed, it has to be proved that the assessee has consciously made the concealment or furnished inaccurate particulars of his income." 25. The said principle has been reiterated in M/s Virtual Soft Systems Ltd. v. Commissioner of Income Tax, Delhi 2007 (2) SCALE 612 , where it was held : "24. Section 271 of the Act is a penal provision and there are well established principles for the interpretation of such a penal provision. Such a provision has to be construed strictly and narrowly and not widely or with the object of advancing the object and intention of the legislature." 26. Referring to a large number of decisions, it was furthermore observed : "27. Every statutory provision for imposition of penalty has two distinct components: (i) That which lays down the conditions for imposition of penalty.(ii) That which provides for computation of the quantum of penalty.Section 271(1)(c) and clause (iiii) relate to the conditions for imposition of penalty, whereas, on the other hand , Explanation 4 to Section 271(1)(c) relates to the computation of the quantum of penalty.28. The provisions of Section 271(1)(c)(iii) prior to 1.4.1976, and after its amendment by the Finance Act, 1975 with effect from 1.4.1976, later provisions being applicable to the assessment year in question, being substantially the same except that in place of the word income in sub clause (iii) to sub clause (c) of Section 271 prior to its amendment by Finance Act, 1975, the expression "amount of tax sought to be evaded" have been substituted. Explanation 4 inserted for the purpose of clause (iii) where the expression "the amount of tax sought to be evaded", was inserted had in fact made no difference in so far as the main criteria, namely, absence of tax continued to exist, prior to or after 1.4.1976, changing only the measure or the scale as to the working of the penalty which earlier was with reference to the income and after the amendment related to the tax sought to be evaded. The sine qua non which was there prior or after the amendment on 1.4.1976 to the fact that there must be a positive income resulting in tax before any penalty could be levied continued to exist. The penalty imposed was in addition to any tax. If there was no tax, no penalty could be levied. The return filed declaring loss and assessment made at a reduced loss did not warrant any levy of penalty within the meaning of Section 271(1)(c)(iii) with or without Explanation 4." 27. In Commissioner of Income Tax, Indore v. Suresh Chandra Mital (2003) 11 SCC 729 , whereupon Mr. Datta, learned Additional Solicitor General relied, no reason was assigned and only the order of the High Court was not interfered with. Therein, it appears, the assessee pleaded that he had submitted the revised return of income which was not found to be sufficient. 28. In M. Janardhana Rao v. Joint Commissioner of Income Tax (2005) 2 SCC 324 , whereupon again reliance was placed by Mr. Datta, this Court was concerned with the meaning of the substantial question of law as obtaining in Section 271A of the Income Tax Act. We are not concerned with the said question in the present case. 29. It is not a case where penalty has been imposed for breach of contravention of a commercial statute where lack of or intention to contravene or existence of bona fie may not be of much importance. It is also not a case where penalty is mandatorily impossible. It was, therefore, not a case where the enabling provision should have been invoked. 30. For the reasons aforementioned the
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1
### Explanation:
The assessee is in appealaggrieved by and dissatisfied with a judgment dated 29.9.2005, passed by a Division Bench of the Karnataka High Court in ITRC No.492 of 1998 whereby and whereunder answer to the following question was rendered in the, on thefacts and in the circumstances of the case, the Tribunal was right in holding that penalty u/s.271(1)(C) was not exigible in the present casef an explanation given by the assessee with regard to the mistake committed by him has been treated to be bona fide and it has been found as of fact that he had acted on the basis of wrong legal advice, the question of his failure to discharge his burden in terms of explanation appended to Section 271(1)(C) of the Income Tax Act would not ariseThe order imposing penalty is quasi-criminal in nature and, thus, burden lies on the department to establish that the assessee had concealed his income. Since burden of proof in penalty proceedings varies from that in the assessment proceeding, a finding in an assessment proceeding that a particular receipt is income cannot automatically be adopted, though a finding in the assessment proceeding constitute good evidence in the penalty proceeding. In the penalty proceedings, thus, the authorities must consider the matter afresh as the question has to be considered from a different angleA mere omission or negligence would not constitute a deliberate act of suppressio veri or suggestio falsiIt is not a case where penalty has been imposed for breach of contravention of a commercial statute where lack of or intention to contravene or existence of bonamay not be of much importance. It is also not a case where penalty is mandatorily impossible. It was, therefore, not a case where the enabling provision should have been invoked
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Daryao Singh Vs. State of Madhya Pradesh | skin looses coherence, the superficial layers peel off easily and blisters are formed. it is, therefore, not suprising that owning to the formation of gases the penis and the scrotum were swollen and there was the presence of maggots. 10. Before we answer the contention it is essential to notice a few facts. The evidence of PWs 1,3 and 4 is that the incident occurred in the field of the deceased. This fact is corroborated of PW--5 Motilal and PW 6--Parbatsingh. The find of blood on the grass blades and on the earth attached under the seizure memo Exh. p-8 confirms their testimony. The evidence of these witnesses further shows that the injured was taken in a cart to the village and from there to the Bhakheda police station. this is further established by PW 10 who has deposed that the vitim was brought in a cart to the village. the circle Inspector PW 12 also deposes that the corpse was brought to the police station and from there it was sent to the hospital for post mortem examination which was undertaken on 27th September, 1970 at 7.00 a.m. This evidence establishes the chain of events showing the movement of the dead body and rules out of the theory that death had taken place many days before 25th September, 1970, a theory not put to the witnesses in cross-examination. The direct testimony, therefore, does not support the theory urged on behalf of the appellant. 11. Counsel for the appellant, however, emphasised that the statement of PW 2 in cross-examination clearly established the existence of blisters, an objective fact, which clearly supports the defense theory that death had taken place 14 to 20 days prior to the date on which the post-mortem examination was held and thereby disprove the prosecution version that the victim of assault died on the evening of 25th September, 1970. It is interesting to note that table on which the learned counsel for the appellant relies is omitted from the 19th and 20th edition of the book. But that apart at pages 128-129 of the bok (Twentieth Edition) it is stated as under : "From twelve to eighteen hours after death in summer the green coloration spreads over the entire abdomen and the external genitals...............Side by side with the appearance of the greenish patch on the abodomen the body begins to emit a nauseating and unpleasant smell owing to gradual develoment of the gases of decomposition, some of which are sulphuretted hydrogen, marsh gas, carbon dioxide, ammonia and phosphoretted hydrogen. From twelve to eighteen hours after death in summer these gases collect in the intestine, consequently abdomen swells up. The sphincters relax, and the urine and faeces may escape. From eighteen to thirty-six or forty-eight hours after death the gases collect in the tissues, cavities and hollow viscera under considerable pressure with the result that the features become bloated and distored, the eyes are forcedout of their sockets, the tongue is protruded between the teeth, and the lips become swollen and everted. A frothy, reddish fluid or mucus is forced from the mouth and nostrils. Ultimately the features become obilterated and unrecognizable. The abdomen becomes greately distended; hence on opening the cavity the gas escapes with a loud explosive noise. Owing to the pressure of the gases the stomach contents are forced into the mouth the larynx and are seen running out of the mouth and nostrils. The breast of female bodies are greatly distended. The penis and scrotum become enormously swollen. The cellular tissues are inflated throughout, so that the shole body appears stouter and older than it actually is. These gases from blisters under the skin containing a reddish coloured fluid on the various parts of the body. When these bursts, the cuticle being softened peels of easily. These are characterised by absence of vital reaction. It will thus be seen that blisters appear after the process of decomposition sets in whithin eighteen to fotry eight hours. It shows that the existence of blisters does not mean that death had taken place 14 to 20 days ago. That is why PW 2 is cautious to use the pharseology the duration of the injury since death could be 14 to 20 days also. Having regard to the nature of the direct testimony to which we have adverted earlier andthe passage reproduced above, we find it difficult to accept the belated submissions of the learnd counsel for the appellant that the opinion of the medical expert PW 2 destroys the version of the prosecution witnesses, particularly PWs 1,3,4 and 10, that the deceased suffered a fatal wound on the evening of 25th September, 1970 to which he succumbed on that very day. We, therefore, reject this submission. 12. It was lastly submitted that the evidence of the radiologist. Keshav Shanker Varang, DW 3 goes to show that the appellant was a disabled person and it was not possible for him to cause an injury so serious as to cut the leg in two parts. In this connection, our attention was drawn to paragraph 7 of his deposition, wherein he has stated that looking to the fracture of the appellants leg and his chest condition he was a disabled person who could not run fast or walk quickly and, therefore, argued counsel, he could weild the sword with such ferocity as to cut the leg in to parts. In cross-examination he has admitted that he had not examined the muscle power the appellant. He conceded that the elbow was free and, therefore, he could use the weapon but not with great force. The High Court has considered this submission in paragraph 8 of its judgment and has rejected it. We do not think that having regard to the fact that the appellant alone was weilding the sword, it is to rely on this opinion evidence in preference to the direct evidence of three witnesses. High Court has rigtly rejected this submission and we need not dilate on it. | 0[ds]11. Counsel for the appellant, however, emphasised that the statement of PW 2 in cross-examination clearly established the existence of blisters, an objective fact, which clearly supports the defense theory that death had taken place 14 to 20 days prior to the date on which the post-mortem examination was held and thereby disprove the prosecution version that the victim of assault died on the evening of 25th September, 1970.It was lastly submitted that the evidence of the radiologist. Keshav Shanker Varang, DW 3 goes to show that the appellant was a disabled person and it was not possible for him to cause an injury so serious as to cut the leg in two parts. In this connection, our attention was drawn to paragraph 7 of his deposition, wherein he has stated that looking to the fracture of the appellants leg and his chest condition he was a disabled person who could not run fast or walk quickly and, therefore, argued counsel, he could weild the sword with such ferocity as to cut the leg in to parts. In cross-examination he has admitted that he had not examined the muscle power the appellant. He conceded that the elbow was free and, therefore, he could use the weapon but not with great force. The High Court has considered this submission in paragraph 8 of its judgment and has rejected it. We do not think that having regard to the fact that the appellant alone was weilding the sword, it is to rely on this opinion evidence in preference to the direct evidence of three witnesses. High Court has rigtly rejected this submission and we need not dilate on it. | 0 | 3,578 | 304 | ### Instruction:
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skin looses coherence, the superficial layers peel off easily and blisters are formed. it is, therefore, not suprising that owning to the formation of gases the penis and the scrotum were swollen and there was the presence of maggots. 10. Before we answer the contention it is essential to notice a few facts. The evidence of PWs 1,3 and 4 is that the incident occurred in the field of the deceased. This fact is corroborated of PW--5 Motilal and PW 6--Parbatsingh. The find of blood on the grass blades and on the earth attached under the seizure memo Exh. p-8 confirms their testimony. The evidence of these witnesses further shows that the injured was taken in a cart to the village and from there to the Bhakheda police station. this is further established by PW 10 who has deposed that the vitim was brought in a cart to the village. the circle Inspector PW 12 also deposes that the corpse was brought to the police station and from there it was sent to the hospital for post mortem examination which was undertaken on 27th September, 1970 at 7.00 a.m. This evidence establishes the chain of events showing the movement of the dead body and rules out of the theory that death had taken place many days before 25th September, 1970, a theory not put to the witnesses in cross-examination. The direct testimony, therefore, does not support the theory urged on behalf of the appellant. 11. Counsel for the appellant, however, emphasised that the statement of PW 2 in cross-examination clearly established the existence of blisters, an objective fact, which clearly supports the defense theory that death had taken place 14 to 20 days prior to the date on which the post-mortem examination was held and thereby disprove the prosecution version that the victim of assault died on the evening of 25th September, 1970. It is interesting to note that table on which the learned counsel for the appellant relies is omitted from the 19th and 20th edition of the book. But that apart at pages 128-129 of the bok (Twentieth Edition) it is stated as under : "From twelve to eighteen hours after death in summer the green coloration spreads over the entire abdomen and the external genitals...............Side by side with the appearance of the greenish patch on the abodomen the body begins to emit a nauseating and unpleasant smell owing to gradual develoment of the gases of decomposition, some of which are sulphuretted hydrogen, marsh gas, carbon dioxide, ammonia and phosphoretted hydrogen. From twelve to eighteen hours after death in summer these gases collect in the intestine, consequently abdomen swells up. The sphincters relax, and the urine and faeces may escape. From eighteen to thirty-six or forty-eight hours after death the gases collect in the tissues, cavities and hollow viscera under considerable pressure with the result that the features become bloated and distored, the eyes are forcedout of their sockets, the tongue is protruded between the teeth, and the lips become swollen and everted. A frothy, reddish fluid or mucus is forced from the mouth and nostrils. Ultimately the features become obilterated and unrecognizable. The abdomen becomes greately distended; hence on opening the cavity the gas escapes with a loud explosive noise. Owing to the pressure of the gases the stomach contents are forced into the mouth the larynx and are seen running out of the mouth and nostrils. The breast of female bodies are greatly distended. The penis and scrotum become enormously swollen. The cellular tissues are inflated throughout, so that the shole body appears stouter and older than it actually is. These gases from blisters under the skin containing a reddish coloured fluid on the various parts of the body. When these bursts, the cuticle being softened peels of easily. These are characterised by absence of vital reaction. It will thus be seen that blisters appear after the process of decomposition sets in whithin eighteen to fotry eight hours. It shows that the existence of blisters does not mean that death had taken place 14 to 20 days ago. That is why PW 2 is cautious to use the pharseology the duration of the injury since death could be 14 to 20 days also. Having regard to the nature of the direct testimony to which we have adverted earlier andthe passage reproduced above, we find it difficult to accept the belated submissions of the learnd counsel for the appellant that the opinion of the medical expert PW 2 destroys the version of the prosecution witnesses, particularly PWs 1,3,4 and 10, that the deceased suffered a fatal wound on the evening of 25th September, 1970 to which he succumbed on that very day. We, therefore, reject this submission. 12. It was lastly submitted that the evidence of the radiologist. Keshav Shanker Varang, DW 3 goes to show that the appellant was a disabled person and it was not possible for him to cause an injury so serious as to cut the leg in two parts. In this connection, our attention was drawn to paragraph 7 of his deposition, wherein he has stated that looking to the fracture of the appellants leg and his chest condition he was a disabled person who could not run fast or walk quickly and, therefore, argued counsel, he could weild the sword with such ferocity as to cut the leg in to parts. In cross-examination he has admitted that he had not examined the muscle power the appellant. He conceded that the elbow was free and, therefore, he could use the weapon but not with great force. The High Court has considered this submission in paragraph 8 of its judgment and has rejected it. We do not think that having regard to the fact that the appellant alone was weilding the sword, it is to rely on this opinion evidence in preference to the direct evidence of three witnesses. High Court has rigtly rejected this submission and we need not dilate on it.
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### Explanation:
11. Counsel for the appellant, however, emphasised that the statement of PW 2 in cross-examination clearly established the existence of blisters, an objective fact, which clearly supports the defense theory that death had taken place 14 to 20 days prior to the date on which the post-mortem examination was held and thereby disprove the prosecution version that the victim of assault died on the evening of 25th September, 1970.It was lastly submitted that the evidence of the radiologist. Keshav Shanker Varang, DW 3 goes to show that the appellant was a disabled person and it was not possible for him to cause an injury so serious as to cut the leg in two parts. In this connection, our attention was drawn to paragraph 7 of his deposition, wherein he has stated that looking to the fracture of the appellants leg and his chest condition he was a disabled person who could not run fast or walk quickly and, therefore, argued counsel, he could weild the sword with such ferocity as to cut the leg in to parts. In cross-examination he has admitted that he had not examined the muscle power the appellant. He conceded that the elbow was free and, therefore, he could use the weapon but not with great force. The High Court has considered this submission in paragraph 8 of its judgment and has rejected it. We do not think that having regard to the fact that the appellant alone was weilding the sword, it is to rely on this opinion evidence in preference to the direct evidence of three witnesses. High Court has rigtly rejected this submission and we need not dilate on it.
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M.V. Janardhan Reddy Vs. Vijaya Bank & Another | Act has to be exercised with judicial discretion regard being had to the interests of the Company and its creditors as well. This principle was followed in Rathnaswami Pillai v. Sadapathi Pillai and S. Soundarajan v. Roshan & Co. In A. Subbaraya Mudaliar v. K. Sundarajan, it was pointed out that the condition of confirmation by the Court being a safeguard against the property being said at an inadequate price, it will be not only proper but necessary that the Court in exercising the discretion which it undoubtedly has of accepting or refusing the highest bid at the auction held in pursuance of its orders, should see that the price fetched at the auction is an adequate price even though there is no suggestion of irregularity or fraud. It is well to bear in mind the other principle which is equally well-settled namely that once the Court comes to the conclusion that the price offered is adequate, no subsequent higher offer can constitute a valid ground for refusing confirmation of the sale or offer already received. [See the decision of the Madras High Court in Roshan & Cos case (supra)]. 25. It is true that the Recovery Officer confirmed the sale in favour of the appellant. But as we have already noted, in view of condition imposed by the Company Court, Recovery Officer did not have the power to confirm sale. An order passed by an officer having no authority of law has no effect. It neither creates any right in favour of a party for whom such order is made nor imposes any obligation on the opposite party against whom it was passed. 26. In Sikander Khan v. Radha Kishan, (2002) 9 SCC 405 : JT 2001 (10) SC 29 , auction sale of agricultural land was confirmed by the Collector. The judgment-debtor filed an application under Order 21, Rule 90 of the Code of Civil Procedure, 1908 contending that the Collector had no jurisdiction to confirm the sale and his action, therefore, was null and void. 27. Upholding the contention and setting aside the sale, this Court said; Learned counsel appearing for the appellants urged that the view taken by the High Court that the Collector had jurisdiction to confirm the auction-sale was patently erroneous. In other words, what the learned counsel contends is that under Section 71 of the Code read with Order 21 Rule 92 CPC, the Collector is only authorised to hold and conduct the auction-sale but he has no power to confirm the sale. According to him, the confirmation of auction-sale can only be done by the civil court after deciding the objections, if filed. We find substance in the argument. Order 21 Rule 92 of the Code of Civil Procedure provides that the civil court shall have power to make an order confirming the sale and thereupon the sale shall become absolute. What Section 71 of the Code provides is that where the execution of the decree is passed by the competent civil court, which cannot be satisfied and requires sale of the agricultural holding of a pakka tenant, the auction-sale of such land shall be conducted by the Collector on fulfilment of certain conditions. It is, therefore, crystal clear that only the auction-sale of an agricultural land is to be held and conducted by the orders of the Collector and not the confirmation of such sale. In view of the fact that in the present case the auction-sale of the appellants land was not confirmed by the civil court, the auction-sale was a nullity and the executing court was right when it set aside the impugned auction-sale. 28. It is true that when the Company Judge set aside the sale on March 17, 2006, the order was reversed by the Division Bench of the High Court since it was in breach of natural justice. That does not, however, mean that the Company Court could not pass fresh order after affording opportunity of hearing to the parties. In our opinion, the Company Court was right in passing fresh order after hearing the parties. If the Recovery Officer could not have confirmed the sale, obviously all actions taken in pursuance of confirmation of sale, such as, issuance of sale certificate, registration of documents, etc., would be of no consequence. Since the Company was in liquidation and Official Liquidator was in charge of the assets of the Company, he ought to have been associated with the auction proceedings, which was not done. This is also clear from the report submitted by the Official Liquidator and on that ground also, the auction sale was liable to be set aside. 29. Thus, taking into account overall circumstances, it cannot be said that by setting aside the sale, any illegality had been committed by the Court or the appellant had suffered. The grievance voiced by the appellant, therefore, is not well founded and cannot be upheld. 30. One thing, however, may be noted. In the auction held on December 19, 2005, the appellant was the highest bidder. His bid of Rs.67.50 lakhs was accepted and he paid the earnest money. Sale was confirmed albeit illegally, by the Recovery Officer on February 13, 2006 and he paid the remaining amount. The appellant thus paid the entire amount of Rs.67.50 lakhs. The sale was confirmed, sale certificate was issued and sale deed was registered in his favour. It is the case of the appellant that he had paid stamp duty of Rs.4 lakhs. Taking into consideration all these factors, in our opinion, ends of justice would be met if respondent No.3-M/s MSN Organics (P) Ltd., who has purchased the property for Rs.1.80 crores is directed to pay an amount of Rs.20,00,000/- (twenty lakhs only) to the appellant herein. In our judgment, payment of this amount to the appellant (auction-purchaser) would work as some solatium for his trouble and disappointment for the loss of that which is, perhaps, a good bargain [Chundi Charan v. Bankey Behary, (1899) 26 Cal 449 (FB)]. | 1[ds]19. Having heard the learned counsel for the parties and having given anxious consideration to the facts and circumstances in their entirety, in our opinion, it cannot be said that by setting aside sale, either the learned Company Judge or the Division Bench has committed any illegality which deserves interference in exercise of discretionary power under Article 136 of the Constitution22. The above orders leave no room of doubt that the Bank was permitted to go ahead with the proposed sale of the assets of the Company under liquidation by way of auction but such sale was subject to confirmation by the Company Court. It is, therefore, clear that all parties were aware about the condition as to confirmation of sale by the Company Court. It was, therefore, not open to Recovery Officer to confirm sale. The order passed and action taken by the Recovery Officer was in clear violation of and inconsistent with the specific condition imposed by the Company Court. In our considered opinion, therefore, the appellant cannot take any advantage of confirmation of sale by the Recovery Officer who did not possess the power to confirm sale25. It is true that the Recovery Officer confirmed the sale in favour of the appellant. But as we have already noted, in view of condition imposed by the Company Court, Recovery Officer did not have the power to confirm sale. An order passed by an officer having no authority of law has no effect. It neither creates any right in favour of a party for whom such order is made nor imposes any obligation on the opposite party against whom it was passed28. It is true that when the Company Judge set aside the sale on March 17, 2006, the order was reversed by the Division Bench of the High Court since it was in breach of natural justice. That does not, however, mean that the Company Court could not pass fresh order after affording opportunity of hearing to the parties. In our opinion, the Company Court was right in passing fresh order after hearing the parties. If the Recovery Officer could not have confirmed the sale, obviously all actions taken in pursuance of confirmation of sale, such as, issuance of sale certificate, registration of documents, etc., would be of no consequence. Since the Company was in liquidation and Official Liquidator was in charge of the assets of the Company, he ought to have been associated with the auction proceedings, which was not done. This is also clear from the report submitted by the Official Liquidator and on that ground also, the auction sale was liable to be set aside29. Thus, taking into account overall circumstances, it cannot be said that by setting aside the sale, any illegality had been committed by the Court or the appellant had suffered. The grievance voiced by the appellant, therefore, is not well founded and cannot be upheld30. One thing, however, may be noted. In the auction held on December 19, 2005, the appellant was the highest bidder. His bid of Rs.67.50 lakhs was accepted and he paid the earnest money. Sale was confirmed albeit illegally, by the Recovery Officer on February 13, 2006 and he paid the remaining amount. The appellant thus paid the entire amount of Rs.67.50 lakhs. The sale was confirmed, sale certificate was issued and sale deed was registered in his favour. It is the case of the appellant that he had paid stamp duty of Rs.4 lakhs. Taking into consideration all these factors, in our opinion, ends of justice would be met if respondent No.3-M/s MSN Organics (P) Ltd., who has purchased the property for Rs.1.80 crores is directed to pay an amount of Rs.20,00,000/- (twenty lakhs only) to the appellant herein. In our judgment, payment of this amount to the appellant (auction-purchaser) would work as some solatium for his trouble and disappointment for the loss of that which is, perhaps, a good bargain [Chundi Charan v. Bankey Behary, (1899) 26 Cal 449 (FB)] | 1 | 4,298 | 756 | ### 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:
Act has to be exercised with judicial discretion regard being had to the interests of the Company and its creditors as well. This principle was followed in Rathnaswami Pillai v. Sadapathi Pillai and S. Soundarajan v. Roshan & Co. In A. Subbaraya Mudaliar v. K. Sundarajan, it was pointed out that the condition of confirmation by the Court being a safeguard against the property being said at an inadequate price, it will be not only proper but necessary that the Court in exercising the discretion which it undoubtedly has of accepting or refusing the highest bid at the auction held in pursuance of its orders, should see that the price fetched at the auction is an adequate price even though there is no suggestion of irregularity or fraud. It is well to bear in mind the other principle which is equally well-settled namely that once the Court comes to the conclusion that the price offered is adequate, no subsequent higher offer can constitute a valid ground for refusing confirmation of the sale or offer already received. [See the decision of the Madras High Court in Roshan & Cos case (supra)]. 25. It is true that the Recovery Officer confirmed the sale in favour of the appellant. But as we have already noted, in view of condition imposed by the Company Court, Recovery Officer did not have the power to confirm sale. An order passed by an officer having no authority of law has no effect. It neither creates any right in favour of a party for whom such order is made nor imposes any obligation on the opposite party against whom it was passed. 26. In Sikander Khan v. Radha Kishan, (2002) 9 SCC 405 : JT 2001 (10) SC 29 , auction sale of agricultural land was confirmed by the Collector. The judgment-debtor filed an application under Order 21, Rule 90 of the Code of Civil Procedure, 1908 contending that the Collector had no jurisdiction to confirm the sale and his action, therefore, was null and void. 27. Upholding the contention and setting aside the sale, this Court said; Learned counsel appearing for the appellants urged that the view taken by the High Court that the Collector had jurisdiction to confirm the auction-sale was patently erroneous. In other words, what the learned counsel contends is that under Section 71 of the Code read with Order 21 Rule 92 CPC, the Collector is only authorised to hold and conduct the auction-sale but he has no power to confirm the sale. According to him, the confirmation of auction-sale can only be done by the civil court after deciding the objections, if filed. We find substance in the argument. Order 21 Rule 92 of the Code of Civil Procedure provides that the civil court shall have power to make an order confirming the sale and thereupon the sale shall become absolute. What Section 71 of the Code provides is that where the execution of the decree is passed by the competent civil court, which cannot be satisfied and requires sale of the agricultural holding of a pakka tenant, the auction-sale of such land shall be conducted by the Collector on fulfilment of certain conditions. It is, therefore, crystal clear that only the auction-sale of an agricultural land is to be held and conducted by the orders of the Collector and not the confirmation of such sale. In view of the fact that in the present case the auction-sale of the appellants land was not confirmed by the civil court, the auction-sale was a nullity and the executing court was right when it set aside the impugned auction-sale. 28. It is true that when the Company Judge set aside the sale on March 17, 2006, the order was reversed by the Division Bench of the High Court since it was in breach of natural justice. That does not, however, mean that the Company Court could not pass fresh order after affording opportunity of hearing to the parties. In our opinion, the Company Court was right in passing fresh order after hearing the parties. If the Recovery Officer could not have confirmed the sale, obviously all actions taken in pursuance of confirmation of sale, such as, issuance of sale certificate, registration of documents, etc., would be of no consequence. Since the Company was in liquidation and Official Liquidator was in charge of the assets of the Company, he ought to have been associated with the auction proceedings, which was not done. This is also clear from the report submitted by the Official Liquidator and on that ground also, the auction sale was liable to be set aside. 29. Thus, taking into account overall circumstances, it cannot be said that by setting aside the sale, any illegality had been committed by the Court or the appellant had suffered. The grievance voiced by the appellant, therefore, is not well founded and cannot be upheld. 30. One thing, however, may be noted. In the auction held on December 19, 2005, the appellant was the highest bidder. His bid of Rs.67.50 lakhs was accepted and he paid the earnest money. Sale was confirmed albeit illegally, by the Recovery Officer on February 13, 2006 and he paid the remaining amount. The appellant thus paid the entire amount of Rs.67.50 lakhs. The sale was confirmed, sale certificate was issued and sale deed was registered in his favour. It is the case of the appellant that he had paid stamp duty of Rs.4 lakhs. Taking into consideration all these factors, in our opinion, ends of justice would be met if respondent No.3-M/s MSN Organics (P) Ltd., who has purchased the property for Rs.1.80 crores is directed to pay an amount of Rs.20,00,000/- (twenty lakhs only) to the appellant herein. In our judgment, payment of this amount to the appellant (auction-purchaser) would work as some solatium for his trouble and disappointment for the loss of that which is, perhaps, a good bargain [Chundi Charan v. Bankey Behary, (1899) 26 Cal 449 (FB)].
### Response:
1
### Explanation:
19. Having heard the learned counsel for the parties and having given anxious consideration to the facts and circumstances in their entirety, in our opinion, it cannot be said that by setting aside sale, either the learned Company Judge or the Division Bench has committed any illegality which deserves interference in exercise of discretionary power under Article 136 of the Constitution22. The above orders leave no room of doubt that the Bank was permitted to go ahead with the proposed sale of the assets of the Company under liquidation by way of auction but such sale was subject to confirmation by the Company Court. It is, therefore, clear that all parties were aware about the condition as to confirmation of sale by the Company Court. It was, therefore, not open to Recovery Officer to confirm sale. The order passed and action taken by the Recovery Officer was in clear violation of and inconsistent with the specific condition imposed by the Company Court. In our considered opinion, therefore, the appellant cannot take any advantage of confirmation of sale by the Recovery Officer who did not possess the power to confirm sale25. It is true that the Recovery Officer confirmed the sale in favour of the appellant. But as we have already noted, in view of condition imposed by the Company Court, Recovery Officer did not have the power to confirm sale. An order passed by an officer having no authority of law has no effect. It neither creates any right in favour of a party for whom such order is made nor imposes any obligation on the opposite party against whom it was passed28. It is true that when the Company Judge set aside the sale on March 17, 2006, the order was reversed by the Division Bench of the High Court since it was in breach of natural justice. That does not, however, mean that the Company Court could not pass fresh order after affording opportunity of hearing to the parties. In our opinion, the Company Court was right in passing fresh order after hearing the parties. If the Recovery Officer could not have confirmed the sale, obviously all actions taken in pursuance of confirmation of sale, such as, issuance of sale certificate, registration of documents, etc., would be of no consequence. Since the Company was in liquidation and Official Liquidator was in charge of the assets of the Company, he ought to have been associated with the auction proceedings, which was not done. This is also clear from the report submitted by the Official Liquidator and on that ground also, the auction sale was liable to be set aside29. Thus, taking into account overall circumstances, it cannot be said that by setting aside the sale, any illegality had been committed by the Court or the appellant had suffered. The grievance voiced by the appellant, therefore, is not well founded and cannot be upheld30. One thing, however, may be noted. In the auction held on December 19, 2005, the appellant was the highest bidder. His bid of Rs.67.50 lakhs was accepted and he paid the earnest money. Sale was confirmed albeit illegally, by the Recovery Officer on February 13, 2006 and he paid the remaining amount. The appellant thus paid the entire amount of Rs.67.50 lakhs. The sale was confirmed, sale certificate was issued and sale deed was registered in his favour. It is the case of the appellant that he had paid stamp duty of Rs.4 lakhs. Taking into consideration all these factors, in our opinion, ends of justice would be met if respondent No.3-M/s MSN Organics (P) Ltd., who has purchased the property for Rs.1.80 crores is directed to pay an amount of Rs.20,00,000/- (twenty lakhs only) to the appellant herein. In our judgment, payment of this amount to the appellant (auction-purchaser) would work as some solatium for his trouble and disappointment for the loss of that which is, perhaps, a good bargain [Chundi Charan v. Bankey Behary, (1899) 26 Cal 449 (FB)]
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Oriental Insurance Co.Ltd Vs. Vithabai | Anil R. Dave, J. 1. Though served, none appeared for the respondents. 2. Leave granted. 3. The appellant - Insurance Company has challenged the validity of the Judgment dated 1st July, 2009 delivered by the Karnataka High Court, Circuit Bench at Gulbarga in MFA No. 30178 of 2009. 4. By virtue of the impugned judgment, the respondents-claimants, who had filed MVC No. 359 of 2006 before the Motor Accident Claims Tribunal, Bidar have been awarded higher amount of compensation. Being aggrieved by the enhancement of compensation, the insurance company has filed the appeal.5. The Tribunal was pleased to award Rs. 1,76,000/- by way of compensation with interest thereon @ 6% to the claimants - the widow and children of Vithal who had died in a motor accident. After considering the evidence adduced before the Tribunal, the Tribunal had come to a conclusion that average income of the deceased was Rs. 5,000/- per month. On the basis of the said income and looking to the relevant factors, including age of the deceased which was 56 years, the Tribunal had considered multiplier of `8 for determining the amount of compensation. The Tribunal had also considered the fact that the deceased was riding his cycle in the centre of the road and, therefore, he was also held to be negligent to the extent of 50%.6. An appeal was filed before the High Court by the claimants and after hearing the concerned advocates and looking to the facts of the case, the High Court enhanced the amount of compensation to Rs. 4,86,000/-. The High Court enhanced the compensation because it found that there was no evidence with regard to contributory negligence of the deceased and, therefore, the amount of compensation should not have been reduced. Moreover, the High Court increased the multiplier from `8 to `11, as the age of the deceased was 56 years, by relying upon the judgment delivered in the case of Gulam Khader vs. United India Insurance Ltd. reported in 2001 (1) KLJ 340. 7. The learned counsel appearing for the appellant-insurance company vehemently submitted that the High Court was in error while increasing the multiplier to `11 from `8. She submitted that the High Court did not consider the law laid down in the case of Sarla Verma(Smt.) and Others vs. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121 and the multiplier used in the Second Schedule to the Motor Vehicles Act. She also submitted that in view of the judgment delivered in the case of Sarla Verma (supra), the High Court was in error in considering the law laid down by the Karnataka High Court in the case of Gulam Khader (Supra). She further submitted that looking to the age of the deceased, the multiplier, as per the aforestated schedule should have been `8 and, therefore, the Tribunal had not committed any error in using `8 as a multiplier. In view of the said fact, the High Court ought not to have increased the multiplier to `11. 8. After considering the submission made by the learned counsel and looking to the law laid down by this Court and in view of the fact that the age of the deceased was 56 and, therefore, taking notice of the multiplier indicated in the Second Schedule of Motor Vehicles Act, we are of the view that the High Court was not justified in increasing the multiplier from `8 to `11. In our opinion, the Tribunal was right while considering `8 as a multiplier. We do no find any other error in the judgment delivered by the High Court and , therefore, we are of the view that instead of `11, the multiplier of `8 should be used while calculating the amount of compensation. In view of the said fact, a sum of Rs. 1,20,000/- shall be reduced on account of reduction in multiplier. While considering `11 as the multiplier, the High Court had determined the amount of compensation towards loss of dependency as Rs. 4,40,000/- which is hereby reduced to Rs. 3,20,000/- as multiplier has been reduced from `11 to `8.9. Except the above modification, no other interference is required in the impugned Judgment. Accordingly, the amount of compensation shall be recalculated and paid to the respondents-claimants with interest as directed by the Tribunal. The direction, as regards the depositing of the amount with a nationalized bank, shall continue. | 1[ds]8. After considering the submission made by the learned counsel and looking to the law laid down by this Court and in view of the fact that the age of the deceased was 56 and, therefore, taking notice of the multiplier indicated in the Second Schedule of Motor Vehicles Act, we are of the view that the High Court was not justified in increasing the multiplier from `8 to `11. In our opinion, the Tribunal was right while considering `8 as a multiplier. We do no find any other error in the judgment delivered by the High Court and , therefore, we are of the view that instead of `11, the multiplier of `8 should be used while calculating the amount of compensation. In view of the said fact, a sum of Rs. 1,20,000/shall be reduced on account of reduction in multiplier. While considering `11 as the multiplier, the High Court had determined the amount of compensation towards loss of dependency as Rs. 4,40,000/which is hereby reduced to Rs. 3,20,000/as multiplier has been reduced from `11 to `8.9. Except the above modification, no other interference is required in the impugned Judgment. Accordingly, the amount of compensation shall be recalculated and paid to thewith interest as directed by the Tribunal. The direction, as regards the depositing of the amount with a nationalized bank, shall continue. | 1 | 839 | 260 | ### 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:
Anil R. Dave, J. 1. Though served, none appeared for the respondents. 2. Leave granted. 3. The appellant - Insurance Company has challenged the validity of the Judgment dated 1st July, 2009 delivered by the Karnataka High Court, Circuit Bench at Gulbarga in MFA No. 30178 of 2009. 4. By virtue of the impugned judgment, the respondents-claimants, who had filed MVC No. 359 of 2006 before the Motor Accident Claims Tribunal, Bidar have been awarded higher amount of compensation. Being aggrieved by the enhancement of compensation, the insurance company has filed the appeal.5. The Tribunal was pleased to award Rs. 1,76,000/- by way of compensation with interest thereon @ 6% to the claimants - the widow and children of Vithal who had died in a motor accident. After considering the evidence adduced before the Tribunal, the Tribunal had come to a conclusion that average income of the deceased was Rs. 5,000/- per month. On the basis of the said income and looking to the relevant factors, including age of the deceased which was 56 years, the Tribunal had considered multiplier of `8 for determining the amount of compensation. The Tribunal had also considered the fact that the deceased was riding his cycle in the centre of the road and, therefore, he was also held to be negligent to the extent of 50%.6. An appeal was filed before the High Court by the claimants and after hearing the concerned advocates and looking to the facts of the case, the High Court enhanced the amount of compensation to Rs. 4,86,000/-. The High Court enhanced the compensation because it found that there was no evidence with regard to contributory negligence of the deceased and, therefore, the amount of compensation should not have been reduced. Moreover, the High Court increased the multiplier from `8 to `11, as the age of the deceased was 56 years, by relying upon the judgment delivered in the case of Gulam Khader vs. United India Insurance Ltd. reported in 2001 (1) KLJ 340. 7. The learned counsel appearing for the appellant-insurance company vehemently submitted that the High Court was in error while increasing the multiplier to `11 from `8. She submitted that the High Court did not consider the law laid down in the case of Sarla Verma(Smt.) and Others vs. Delhi Transport Corporation and Another reported in (2009) 6 SCC 121 and the multiplier used in the Second Schedule to the Motor Vehicles Act. She also submitted that in view of the judgment delivered in the case of Sarla Verma (supra), the High Court was in error in considering the law laid down by the Karnataka High Court in the case of Gulam Khader (Supra). She further submitted that looking to the age of the deceased, the multiplier, as per the aforestated schedule should have been `8 and, therefore, the Tribunal had not committed any error in using `8 as a multiplier. In view of the said fact, the High Court ought not to have increased the multiplier to `11. 8. After considering the submission made by the learned counsel and looking to the law laid down by this Court and in view of the fact that the age of the deceased was 56 and, therefore, taking notice of the multiplier indicated in the Second Schedule of Motor Vehicles Act, we are of the view that the High Court was not justified in increasing the multiplier from `8 to `11. In our opinion, the Tribunal was right while considering `8 as a multiplier. We do no find any other error in the judgment delivered by the High Court and , therefore, we are of the view that instead of `11, the multiplier of `8 should be used while calculating the amount of compensation. In view of the said fact, a sum of Rs. 1,20,000/- shall be reduced on account of reduction in multiplier. While considering `11 as the multiplier, the High Court had determined the amount of compensation towards loss of dependency as Rs. 4,40,000/- which is hereby reduced to Rs. 3,20,000/- as multiplier has been reduced from `11 to `8.9. Except the above modification, no other interference is required in the impugned Judgment. Accordingly, the amount of compensation shall be recalculated and paid to the respondents-claimants with interest as directed by the Tribunal. The direction, as regards the depositing of the amount with a nationalized bank, shall continue.
### Response:
1
### Explanation:
8. After considering the submission made by the learned counsel and looking to the law laid down by this Court and in view of the fact that the age of the deceased was 56 and, therefore, taking notice of the multiplier indicated in the Second Schedule of Motor Vehicles Act, we are of the view that the High Court was not justified in increasing the multiplier from `8 to `11. In our opinion, the Tribunal was right while considering `8 as a multiplier. We do no find any other error in the judgment delivered by the High Court and , therefore, we are of the view that instead of `11, the multiplier of `8 should be used while calculating the amount of compensation. In view of the said fact, a sum of Rs. 1,20,000/shall be reduced on account of reduction in multiplier. While considering `11 as the multiplier, the High Court had determined the amount of compensation towards loss of dependency as Rs. 4,40,000/which is hereby reduced to Rs. 3,20,000/as multiplier has been reduced from `11 to `8.9. Except the above modification, no other interference is required in the impugned Judgment. Accordingly, the amount of compensation shall be recalculated and paid to thewith interest as directed by the Tribunal. The direction, as regards the depositing of the amount with a nationalized bank, shall continue.
|
M.V. Karunakaran Vs. Krishnan(Dead) By L.Rs | Purchaser prayed for delivery of possession. Respondent obstructed thereto. An application for removal of obstruction was filed by the appellant. The Executing Court by a judgment and order dated 09.10.1979 dismissed the said application, directing the respondent to deposit a sum of Rs.590.07 , inter alia, on the premise that on the death of Madhavan, the partnership became dissolved and keeping in view the fact that the other partner was also dealing with certain items of the partnership assets, the legal heirs and representatives of Madhavan could sell the property. The respondent, therefore, was the lawful owner thereof.4. The appellate court, however, while dismissing the appeal also opined that the respondent being a co-owner of the property along with the auction purchaser, the trial court was not correct in directing the respondent to deposit a sum of Rs.590.07. In the second appeal preferred by the appellant, the High Court having not found any error in the said judgment, dismissed the same. It was opined that the partnership having been dissolved, the dissolved firm cannot have status of partnership subsequently. 5. Contention of Appellant is that Respondents are not the legal heirs of the dissolved firm and they have not derived any share. Therefore, the respondents had no right to offer resistance.6. It is not in dispute that the partnership stood dissolved on the death of Madhavan. The heirs and legal representatives, therefore, could transfer the property at least to the extent of their own share. 7. A distinction exists between the right of a partner to sell a property during subsistence of the partnership and the right of an erstwhile partner to sell the property of the firm after it stood dissolved. 8. It has been found as of fact by all the three courts that after purchasing the property from the heirs and legal representatives of Madhavan, the respondent herein had been put in possession and they had been residing therein when the auction sale was effected. He had caused some improvements and a new building had also been constructed by him. As a suit was filed after the deed of sale was executed and registered, the respondent was a necessary party. He was not arrayed as a party in the suit. He having been found to be in possession of the property as on the date when the delivery of possession of the property was sought to be effected; a fortiori he had a right to obstruct thereto. Once the title in respect of the property in question is found to be existing in the obstructionist, an application for removal of the obstruction as envisaged under Order 21 Rule 97 of the Code of Civil Procedure has rightly been determined in favour of the appellant. 9. What could be sold in the auction was the right, title and interest of the judgment-debtor in the property. The right of the auction purchaser, if any, keeping in view of the facts and circumstances of the case, could not have been determined in such a proceeding. Section 29 of the Indian Partnership Act, 1932 states as to what would be the interest of transferee of a partner. Sub-section (2) thereof determines the right of a transferee if the firm is dissolved or if the transferring partner ceases to be a partner thereof. The right the respective purchaser from the erstwhile partner of dissolved partnership, therefore, was required to be worked out in an independent proceeding. 10. In Addanki Narayanappa and Another v. Bhaskara Krishnappa (dead) and thereafter his heirs and others [AIR 1966 SC 1300 ], this Court opined : "The whole concept of partnership is to embark upon a joint venture and for that purchase to bring in as capital money or even property including immovable property. Once that is done whatever is brought in would cease to be the exclusive property of the person who brought it in. it would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the joint venture of the business of partnership. The person who brought it in would, therefore, not be able to claim or exercise any exclusive right over any property which he has brought in, much less over any other partnership property. He would not be able to exercise his right even to the extent of his share in the business of the partnership. As already stated his right during the subsistence of the partnership is to get his share of profits from time to time as maybe agreed upon among the partners and after the dissolution of the partnership or with his retirement from partnership of the value of his share in the net partnership assets as on the date of solution or retirement after a deduction of liabilities and prior charges" 11. Herein we have to consider the case from altogether a different angle. It is not a case where the partners of the firm were not the owners of the property. It is also not a case where the property was owned by the partnership firm. The partners as pre-existing co-owners had a definite share of the property. They merely applied their own property for running a business in partnership. On dissolution of the partnership, their right in the property revived. Using of a premises for business purpose would not automatically lead to the conclusion that the premises belonged to the partnership firm.12. The terms and conditions of the partnership agreement, in any event, are not known. It is also not the case where the partners ceased to be co-owners. If they continued to have undivided share in the property even during subsistence of partnership, question of their ceasing to have any interest therein on its automatic dissolution would not arise.13. Respondents were found to be in possession of the property. They were found to have some interest therein. In that view of the matter, we do not find any legal infirmity in the impugned judgment. | 0[ds]11. Herein we have to consider the case from altogether a different angle. It is not a case where the partners of the firm were not the owners of the property. It is also not a case where the property was owned by the partnership firm. The partners as pre-existing co-owners had a definite share of the property. They merely applied their own property for running a business in partnership. On dissolution of the partnership, their right in the property revived. Using of a premises for business purpose would not automatically lead to the conclusion that the premises belonged to the partnership firm.12. The terms and conditions of the partnership agreement, in any event, are not known. It is also not the case where the partners ceased to be co-owners. If they continued to have undivided share in the property even during subsistence of partnership, question of their ceasing to have any interest therein on its automatic dissolution would not arise.13. Respondents were found to be in possession of the property. They were found to have some interest therein. In that view of the matter, we do not find any legal infirmity in the impugned judgment. | 0 | 1,327 | 219 | ### 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:
Purchaser prayed for delivery of possession. Respondent obstructed thereto. An application for removal of obstruction was filed by the appellant. The Executing Court by a judgment and order dated 09.10.1979 dismissed the said application, directing the respondent to deposit a sum of Rs.590.07 , inter alia, on the premise that on the death of Madhavan, the partnership became dissolved and keeping in view the fact that the other partner was also dealing with certain items of the partnership assets, the legal heirs and representatives of Madhavan could sell the property. The respondent, therefore, was the lawful owner thereof.4. The appellate court, however, while dismissing the appeal also opined that the respondent being a co-owner of the property along with the auction purchaser, the trial court was not correct in directing the respondent to deposit a sum of Rs.590.07. In the second appeal preferred by the appellant, the High Court having not found any error in the said judgment, dismissed the same. It was opined that the partnership having been dissolved, the dissolved firm cannot have status of partnership subsequently. 5. Contention of Appellant is that Respondents are not the legal heirs of the dissolved firm and they have not derived any share. Therefore, the respondents had no right to offer resistance.6. It is not in dispute that the partnership stood dissolved on the death of Madhavan. The heirs and legal representatives, therefore, could transfer the property at least to the extent of their own share. 7. A distinction exists between the right of a partner to sell a property during subsistence of the partnership and the right of an erstwhile partner to sell the property of the firm after it stood dissolved. 8. It has been found as of fact by all the three courts that after purchasing the property from the heirs and legal representatives of Madhavan, the respondent herein had been put in possession and they had been residing therein when the auction sale was effected. He had caused some improvements and a new building had also been constructed by him. As a suit was filed after the deed of sale was executed and registered, the respondent was a necessary party. He was not arrayed as a party in the suit. He having been found to be in possession of the property as on the date when the delivery of possession of the property was sought to be effected; a fortiori he had a right to obstruct thereto. Once the title in respect of the property in question is found to be existing in the obstructionist, an application for removal of the obstruction as envisaged under Order 21 Rule 97 of the Code of Civil Procedure has rightly been determined in favour of the appellant. 9. What could be sold in the auction was the right, title and interest of the judgment-debtor in the property. The right of the auction purchaser, if any, keeping in view of the facts and circumstances of the case, could not have been determined in such a proceeding. Section 29 of the Indian Partnership Act, 1932 states as to what would be the interest of transferee of a partner. Sub-section (2) thereof determines the right of a transferee if the firm is dissolved or if the transferring partner ceases to be a partner thereof. The right the respective purchaser from the erstwhile partner of dissolved partnership, therefore, was required to be worked out in an independent proceeding. 10. In Addanki Narayanappa and Another v. Bhaskara Krishnappa (dead) and thereafter his heirs and others [AIR 1966 SC 1300 ], this Court opined : "The whole concept of partnership is to embark upon a joint venture and for that purchase to bring in as capital money or even property including immovable property. Once that is done whatever is brought in would cease to be the exclusive property of the person who brought it in. it would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the joint venture of the business of partnership. The person who brought it in would, therefore, not be able to claim or exercise any exclusive right over any property which he has brought in, much less over any other partnership property. He would not be able to exercise his right even to the extent of his share in the business of the partnership. As already stated his right during the subsistence of the partnership is to get his share of profits from time to time as maybe agreed upon among the partners and after the dissolution of the partnership or with his retirement from partnership of the value of his share in the net partnership assets as on the date of solution or retirement after a deduction of liabilities and prior charges" 11. Herein we have to consider the case from altogether a different angle. It is not a case where the partners of the firm were not the owners of the property. It is also not a case where the property was owned by the partnership firm. The partners as pre-existing co-owners had a definite share of the property. They merely applied their own property for running a business in partnership. On dissolution of the partnership, their right in the property revived. Using of a premises for business purpose would not automatically lead to the conclusion that the premises belonged to the partnership firm.12. The terms and conditions of the partnership agreement, in any event, are not known. It is also not the case where the partners ceased to be co-owners. If they continued to have undivided share in the property even during subsistence of partnership, question of their ceasing to have any interest therein on its automatic dissolution would not arise.13. Respondents were found to be in possession of the property. They were found to have some interest therein. In that view of the matter, we do not find any legal infirmity in the impugned judgment.
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11. Herein we have to consider the case from altogether a different angle. It is not a case where the partners of the firm were not the owners of the property. It is also not a case where the property was owned by the partnership firm. The partners as pre-existing co-owners had a definite share of the property. They merely applied their own property for running a business in partnership. On dissolution of the partnership, their right in the property revived. Using of a premises for business purpose would not automatically lead to the conclusion that the premises belonged to the partnership firm.12. The terms and conditions of the partnership agreement, in any event, are not known. It is also not the case where the partners ceased to be co-owners. If they continued to have undivided share in the property even during subsistence of partnership, question of their ceasing to have any interest therein on its automatic dissolution would not arise.13. Respondents were found to be in possession of the property. They were found to have some interest therein. In that view of the matter, we do not find any legal infirmity in the impugned judgment.
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The New Phaltan Sugar Works Limited & Others Vs. The State of Maharashtra & Others | only make a reference to Exhibit B which are proceedings for attachment. In other words there is no challenge in so far as to the orders of 2nd and 3rd respondents are concerned. It is then pointed out that the Revision preferred against the orders of the 2nd respondent was only by petitioners 2, 5, 6 and 7. The petitioner Nos. 1, 3 and 4 had not challenged the same. The order passed against them by the 2nd respondent has become final. It would not, therefore, be open to the said petitioners who had not challenged the order in Revision, for the first time to challenge the said order before this Court. On facts it is pointed out that the petitioner No.1 was served on 25th September, 2003 and was represented. Similarly, the petitioner No.2 was served as also petitioner No.7. These petitioners chose not to remain present before the 2nd respondent. They cannot now make a grievance assuming that they are allowed to do so for the first time before this Court, even though such ground is not taken in the petition, to contend that they had no opportunity. They were duly served and chose not to remain present and consequently the proceedings against them have proceeded exparte. Apart from that it is pointed out that the case of petitioners 2 to 7 in the Civil Suit was not of denial that the amount was not due and payable but their contention was that the said amount was due and payable by the petitioner No.1 and not by petitioner Nos. 2 to 7. It is, therefore, contended that the petitioner No.1, who had not challenged the order before the Revisional Authority and considering the admission by its own directors cannot now contend that the amount is not due and payable. Apart from that it is pointed out that the petitioners 2 to 7 also would be estopped from contending that the said amount is not due and payable considering their own admission and the material on record as reflected in the order dated 17th September, 2003 that the amount is due and payable. It is, therefore, pointed out that it will be futile exercise to remand the matter back to the respondent No.2 for reconsideration.Having heard Counsel on this aspect in our opinion what would emerges is that the petitioner Nos. 1, 2 and 7 were duly served and consequently they can have no grievance that they were not served. They did not avail of the opportunity. Petitioner No.1 had also not challenged the order in revision. In so far as Respondent Nos. 2 and 7 are concerned, they also choose not to appear though served. In the suit filed by them there are averments that petitioner No.1 had deducted the amounts and not remitted the amounts to respondent No.5. The challenge by these petitioners that the order against them is liable to be set aside must be rejected.That, however, cannot be said against the petitioners 3 to 6. From the dates narrated earlier it is clear that the respondent No.2 proceeded without satisfying himself that the said petitioners were duly served. In fact the petitioners 5 and 6 were served on 30th September, 2003 that is after the date of hearing whereas the petitioners 3 and 4 were served on the same date of hearing. There is nothing in the record to indicate whether the respondent No.2 had notice that the petitioners 3 and 4 were served. The order is so far as those petitioners are concerned, therefore, would be liable to be set aside.Another argument which needs to be noted is, that considering the amount involved the matter against all the petitioners is liable to be set aside. As noted earlier the petitioner No.1 never challenged the order passed by the respondent No.2 before the 3rd respondent. Even before this Court the petitioner No.1 has not disputed that the amount claimed is not due and payable. In paragraph 5 on the contrary the contention is that on account of various reasons the conditions of petitioner No.1 was affected seriously. The other aspect of the matter is that the Directors who represent the petitioner No.1. i.e. the petitioner Nos. 2 to 7 in the suit filed by them and which is adverted to earlier being Suit No.339 of 2003 have not denied that the said amount is not due and payable. Their only contention is that it is the petitioner No.1 who is liable and not them. In these circumstances and considering this aspect of the matter in so far as the petitioner Nos. 1, 2 and 7 are concerned who have been duly served it will not be possible to interfere with the finding in so far as the amount due and payable is concerned. Even in respect of the petitioner Nos. 3, 4, 5 and 6 it will be open to the respondent No.5 to contend before the Recovery Officer that they are bound by the admission made in the suit and that an order accordingly be passed in terms of the admission. It is, however, not necessary for this Court presently to hold that amounts to admission on the part of the said petitioners considering that the matter would be alive before the respondent No.2.8. The only other issue is of attachment. The order of attachment against the petitioner Nos.1, 2 and 7 cannot be interfered with. In so far as the petitioner Nos. 3 to 6 are concerned considering the earlier finding that they are liable along with the petitioner No.1 and as the liability of the petitioner No.1 has been established and as the contention of the petitioner Nos. 1, 2 7 is being rejected, it would be proper that the order of attachment continues also against the assets of petitioner Nos. 3 to 6 till such time the matter is decided by the Respondent No.2 and for a further period thereafter which will be set out in the direction to be issued. | 0[ds]5. At the outset it may be pointed out that to consider Section 22 of the S.I.C. (S.P.) Act, Section 22 must be attracted. In the instant case the petitioner No.1 is a company and the petitioner Nos. 2 to 7 are its Directors. The proceedings under Section 49 are not proceedings by way of a suit. At the highest the orders passed by the 2nd and 3rd respondents are sought to be executed and if Section 22 is applicable would fall under the expression execution, distress or the like against any of the properties of the Industrial Company. The Section further provides that no suit for the recovery of money or for enforcement of any security against Industrial Company or of any guarantee in respect of any loans, advances 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. In so far as the petitioner No.1 is concerned, as pointed out earlier, the proceedings under Section 49 not being a suit Section 22 would not be applicable. In so far as the petitioners 2 to 7 are concerned though they are directors the proceedings are not in respect of any guarantee which they had given to the petitioner No.1 towards any loans or advances granted to the industrial company. The proceedings, therefore, against the petitioner Nos. 2 to 7 cannot be stayed by virtue of Section 22 of the Act but could be proceeded with unlike the earlier part of the Section which provides that no proceedings for winding up of the industrial company or for execution distress or the like against any of the properties of the Industrial Company. There is no similar provision in so far as guarantors are concerned by which the proceedings for execution cannot be proceeded with. Therefore, it is clear that even considering the terminology used in Section 22, proceedings against petitioners 2 to 7 at any rate cannot be stayed nor proceedings for recovery can bethis situation if the amount cannot be recovered from the company the consequences would be that though the petitioner No.1 deducted the amount from the wages of its employees till such time the proceedings before B.I.F.R. were completed or B.I.F.R. permitted Respondent No.5 to proceed, the moneys could not be recovered from Petitioner No.1. In our opinion Section 22 would not be attracted in such cases as what is sought to be recovered are wages which were deducted from the employees and not remitted to respondent No.5 in terms of the instructions of the workmen. Another single Judge of this Court in the matter of payment of gratuity in the case of Modistone Ltd.Ors. Vs. Deputy Commissioner of Labour, MumbaiOrs., 1999 II CLR 371 held that gratuity payable would not attract the provisions of Section 22 of the SIC (S.P.) Act. Similarly another learned Judge in the case of Ralliwolf Ltd. Vs. Regional Provident Fund2001 (2) Mah. L. J. 169 took a view that the recovery of Provident Fund due to employees under the Employees Provident FundMiscellaneous Provisions Act, 1952 does not fall within the scope of Section 22(1). In our view considering the judgments of this Court it is clear that in the matter of wages and terminal dues of the workmen the provisions of Section 22 will not be attracted. The learned Counsel for the petitioners, however, had placed reliance in the case of Tata Davy Ltd. etc. v. State of OrissaOrs., JT 1997 (7) SC 216 . In that case the Apex Court had taken the view that the arrears of sales tax cannot be recovered under the provisions of Section 22 (1) by coercive process. In our opinion that judgment would be of no assistance to the petitioners. Recovery of arrears of sales tax was money recovered by the company on sale of goods. That cannot be equated with wages and terminal dues of workmen. There can be no difference or distinction between wages due and not paid and wages deducted and not remitted. In our view considering the consistent view of this Court that wages and terminal benefits are not be covered by Section 22 that argument will have to be rejected. If the provisions of Section 22 are not attracted the relief in terms of prayer clause (b) as prayed for by the petitioners will have to be rejected. As earlier noted the bar of Section 22 would not operate as against the petitioner Nos. 2 to 7 as recovery sought is not in respect of guarantee given by the petitioner Nos. 2 to 7 for and on behalf of petitioner No.1 for loans advanced. Similarly, in so far as petitioner No.1 is concerned what is sought to be recovered may be by respondent No.5 as their legal dues, are in fact wages of its employees which has been deducted from the wages by the petitioner No.1 and as such the bat of Section 22 would not behowever, cannot be said against the petitioners 3 to 6. From the dates narrated earlier it is clear that the respondent No.2 proceeded without satisfying himself that the said petitioners were duly served. In fact the petitioners 5 and 6 were served on 30th September, 2003 that is after the date of hearing whereas the petitioners 3 and 4 were served on the same date of hearing. There is nothing in the record to indicate whether the respondent No.2 had notice that the petitioners 3 and 4 were served. The order is so far as those petitioners are concerned, therefore, would be liable to be set aside.Another argument which needs to be noted is, that considering the amount involved the matter against all the petitioners is liable to be set aside. As noted earlier the petitioner No.1 never challenged the order passed by the respondent No.2 before the 3rd respondent. Even before this Court the petitioner No.1 has not disputed that the amount claimed is not due and payable. In paragraph 5 on the contrary the contention is that on account of various reasons the conditions of petitioner No.1 was affected seriously. The other aspect of the matter is that the Directors who represent the petitioner No.1. i.e. the petitioner Nos. 2 to 7 in the suit filed by them and which is adverted to earlier being Suit No.339 of 2003 have not denied that the said amount is not due and payable. Their only contention is that it is the petitioner No.1 who is liable and not them. In these circumstances and considering this aspect of the matter in so far as the petitioner Nos. 1, 2 and 7 are concerned who have been duly served it will not be possible to interfere with the finding in so far as the amount due and payable is concerned. Even in respect of the petitioner Nos. 3, 4, 5 and 6 it will be open to the respondent No.5 to contend before the Recovery Officer that they are bound by the admission made in the suit and that an order accordingly be passed in terms of the admission. It is, however, not necessary for this Court presently to hold that amounts to admission on the part of the said petitioners considering that the matter would be alive before the respondent No.2.8. The only other issue is of attachment. The order of attachment against the petitioner Nos.1, 2 and 7 cannot be interfered with. In so far as the petitioner Nos. 3 to 6 are concerned considering the earlier finding that they are liable along with the petitioner No.1 and as the liability of the petitioner No.1 has been established and as the contention of the petitioner Nos. 1, 2 7 is being rejected, it would be proper that the order of attachment continues also against the assets of petitioner Nos. 3 to 6 till such time the matter is decided by the Respondent No.2 and for a further period thereafter which will be set out in the direction to be issued. | 0 | 5,061 | 1,465 | ### 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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only make a reference to Exhibit B which are proceedings for attachment. In other words there is no challenge in so far as to the orders of 2nd and 3rd respondents are concerned. It is then pointed out that the Revision preferred against the orders of the 2nd respondent was only by petitioners 2, 5, 6 and 7. The petitioner Nos. 1, 3 and 4 had not challenged the same. The order passed against them by the 2nd respondent has become final. It would not, therefore, be open to the said petitioners who had not challenged the order in Revision, for the first time to challenge the said order before this Court. On facts it is pointed out that the petitioner No.1 was served on 25th September, 2003 and was represented. Similarly, the petitioner No.2 was served as also petitioner No.7. These petitioners chose not to remain present before the 2nd respondent. They cannot now make a grievance assuming that they are allowed to do so for the first time before this Court, even though such ground is not taken in the petition, to contend that they had no opportunity. They were duly served and chose not to remain present and consequently the proceedings against them have proceeded exparte. Apart from that it is pointed out that the case of petitioners 2 to 7 in the Civil Suit was not of denial that the amount was not due and payable but their contention was that the said amount was due and payable by the petitioner No.1 and not by petitioner Nos. 2 to 7. It is, therefore, contended that the petitioner No.1, who had not challenged the order before the Revisional Authority and considering the admission by its own directors cannot now contend that the amount is not due and payable. Apart from that it is pointed out that the petitioners 2 to 7 also would be estopped from contending that the said amount is not due and payable considering their own admission and the material on record as reflected in the order dated 17th September, 2003 that the amount is due and payable. It is, therefore, pointed out that it will be futile exercise to remand the matter back to the respondent No.2 for reconsideration.Having heard Counsel on this aspect in our opinion what would emerges is that the petitioner Nos. 1, 2 and 7 were duly served and consequently they can have no grievance that they were not served. They did not avail of the opportunity. Petitioner No.1 had also not challenged the order in revision. In so far as Respondent Nos. 2 and 7 are concerned, they also choose not to appear though served. In the suit filed by them there are averments that petitioner No.1 had deducted the amounts and not remitted the amounts to respondent No.5. The challenge by these petitioners that the order against them is liable to be set aside must be rejected.That, however, cannot be said against the petitioners 3 to 6. From the dates narrated earlier it is clear that the respondent No.2 proceeded without satisfying himself that the said petitioners were duly served. In fact the petitioners 5 and 6 were served on 30th September, 2003 that is after the date of hearing whereas the petitioners 3 and 4 were served on the same date of hearing. There is nothing in the record to indicate whether the respondent No.2 had notice that the petitioners 3 and 4 were served. The order is so far as those petitioners are concerned, therefore, would be liable to be set aside.Another argument which needs to be noted is, that considering the amount involved the matter against all the petitioners is liable to be set aside. As noted earlier the petitioner No.1 never challenged the order passed by the respondent No.2 before the 3rd respondent. Even before this Court the petitioner No.1 has not disputed that the amount claimed is not due and payable. In paragraph 5 on the contrary the contention is that on account of various reasons the conditions of petitioner No.1 was affected seriously. The other aspect of the matter is that the Directors who represent the petitioner No.1. i.e. the petitioner Nos. 2 to 7 in the suit filed by them and which is adverted to earlier being Suit No.339 of 2003 have not denied that the said amount is not due and payable. Their only contention is that it is the petitioner No.1 who is liable and not them. In these circumstances and considering this aspect of the matter in so far as the petitioner Nos. 1, 2 and 7 are concerned who have been duly served it will not be possible to interfere with the finding in so far as the amount due and payable is concerned. Even in respect of the petitioner Nos. 3, 4, 5 and 6 it will be open to the respondent No.5 to contend before the Recovery Officer that they are bound by the admission made in the suit and that an order accordingly be passed in terms of the admission. It is, however, not necessary for this Court presently to hold that amounts to admission on the part of the said petitioners considering that the matter would be alive before the respondent No.2.8. The only other issue is of attachment. The order of attachment against the petitioner Nos.1, 2 and 7 cannot be interfered with. In so far as the petitioner Nos. 3 to 6 are concerned considering the earlier finding that they are liable along with the petitioner No.1 and as the liability of the petitioner No.1 has been established and as the contention of the petitioner Nos. 1, 2 7 is being rejected, it would be proper that the order of attachment continues also against the assets of petitioner Nos. 3 to 6 till such time the matter is decided by the Respondent No.2 and for a further period thereafter which will be set out in the direction to be issued.
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amount cannot be recovered from the company the consequences would be that though the petitioner No.1 deducted the amount from the wages of its employees till such time the proceedings before B.I.F.R. were completed or B.I.F.R. permitted Respondent No.5 to proceed, the moneys could not be recovered from Petitioner No.1. In our opinion Section 22 would not be attracted in such cases as what is sought to be recovered are wages which were deducted from the employees and not remitted to respondent No.5 in terms of the instructions of the workmen. Another single Judge of this Court in the matter of payment of gratuity in the case of Modistone Ltd.Ors. Vs. Deputy Commissioner of Labour, MumbaiOrs., 1999 II CLR 371 held that gratuity payable would not attract the provisions of Section 22 of the SIC (S.P.) Act. Similarly another learned Judge in the case of Ralliwolf Ltd. Vs. Regional Provident Fund2001 (2) Mah. L. J. 169 took a view that the recovery of Provident Fund due to employees under the Employees Provident FundMiscellaneous Provisions Act, 1952 does not fall within the scope of Section 22(1). In our view considering the judgments of this Court it is clear that in the matter of wages and terminal dues of the workmen the provisions of Section 22 will not be attracted. The learned Counsel for the petitioners, however, had placed reliance in the case of Tata Davy Ltd. etc. v. State of OrissaOrs., JT 1997 (7) SC 216 . In that case the Apex Court had taken the view that the arrears of sales tax cannot be recovered under the provisions of Section 22 (1) by coercive process. In our opinion that judgment would be of no assistance to the petitioners. Recovery of arrears of sales tax was money recovered by the company on sale of goods. That cannot be equated with wages and terminal dues of workmen. There can be no difference or distinction between wages due and not paid and wages deducted and not remitted. In our view considering the consistent view of this Court that wages and terminal benefits are not be covered by Section 22 that argument will have to be rejected. If the provisions of Section 22 are not attracted the relief in terms of prayer clause (b) as prayed for by the petitioners will have to be rejected. As earlier noted the bar of Section 22 would not operate as against the petitioner Nos. 2 to 7 as recovery sought is not in respect of guarantee given by the petitioner Nos. 2 to 7 for and on behalf of petitioner No.1 for loans advanced. Similarly, in so far as petitioner No.1 is concerned what is sought to be recovered may be by respondent No.5 as their legal dues, are in fact wages of its employees which has been deducted from the wages by the petitioner No.1 and as such the bat of Section 22 would not behowever, cannot be said against the petitioners 3 to 6. From the dates narrated earlier it is clear that the respondent No.2 proceeded without satisfying himself that the said petitioners were duly served. In fact the petitioners 5 and 6 were served on 30th September, 2003 that is after the date of hearing whereas the petitioners 3 and 4 were served on the same date of hearing. There is nothing in the record to indicate whether the respondent No.2 had notice that the petitioners 3 and 4 were served. The order is so far as those petitioners are concerned, therefore, would be liable to be set aside.Another argument which needs to be noted is, that considering the amount involved the matter against all the petitioners is liable to be set aside. As noted earlier the petitioner No.1 never challenged the order passed by the respondent No.2 before the 3rd respondent. Even before this Court the petitioner No.1 has not disputed that the amount claimed is not due and payable. In paragraph 5 on the contrary the contention is that on account of various reasons the conditions of petitioner No.1 was affected seriously. The other aspect of the matter is that the Directors who represent the petitioner No.1. i.e. the petitioner Nos. 2 to 7 in the suit filed by them and which is adverted to earlier being Suit No.339 of 2003 have not denied that the said amount is not due and payable. Their only contention is that it is the petitioner No.1 who is liable and not them. In these circumstances and considering this aspect of the matter in so far as the petitioner Nos. 1, 2 and 7 are concerned who have been duly served it will not be possible to interfere with the finding in so far as the amount due and payable is concerned. Even in respect of the petitioner Nos. 3, 4, 5 and 6 it will be open to the respondent No.5 to contend before the Recovery Officer that they are bound by the admission made in the suit and that an order accordingly be passed in terms of the admission. It is, however, not necessary for this Court presently to hold that amounts to admission on the part of the said petitioners considering that the matter would be alive before the respondent No.2.8. The only other issue is of attachment. The order of attachment against the petitioner Nos.1, 2 and 7 cannot be interfered with. In so far as the petitioner Nos. 3 to 6 are concerned considering the earlier finding that they are liable along with the petitioner No.1 and as the liability of the petitioner No.1 has been established and as the contention of the petitioner Nos. 1, 2 7 is being rejected, it would be proper that the order of attachment continues also against the assets of petitioner Nos. 3 to 6 till such time the matter is decided by the Respondent No.2 and for a further period thereafter which will be set out in the direction to be issued.
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Lakshmi Narain And Others Vs. District Excise Officer, Fatehpur & Ors | KRISHNA IYER, J. 1. We have today disposed of a batch of writ of petitions arising under the Punjab Excise Act, 1914 (Annexure A). There the petitioner had challenged Sec. 59(f)(v) and rule 37 as unconstitutional. In the present batch of writ petitions he contention is identical except that the enactment and rule are formally different but in pari materia. Sec. 41(e)(v) of the U.P. Excise Act empowers the Excise Commissioner to make rules fixing the days and hours during which licensed p remises may be kept opened or closed. Rule 13 is one such rule which forbids sale of liquor of all Tuesdays as well as the first day of every month`. Aggrieved by- rule 13 (as amended), because it prohibits liquor trade on the 1st of every month the petitioners, who are licensees, have come up to this Court challenging its vires. Rule 13 reads thus: 13B. All excise shops (including foreign liquor country spirit, home drugs, opium (tari and outstill shops) shall not be kept open on Independence day (August 15) Mahatma Ghana Birthday (October 2) and on the day of Mahatma Gandhis tragic death (January 30) every year an(l also on all Tuesdays as well as on the first day of every month. 2. Provided that if the first day of the month happen to be a public holiday, the day next following of that month shall be the day on which the excise shops shall not be kept open. Provided further Excise Commissioner, may in consultation with the Collector of the District concerned, waive the condition of not keeping an exercise shop open on Tuesday; or the first day of the month or the day next following of that month, as the case may be, for such specified period as he may think fit, in the case of hotels possessing a licence in Form F.L. for the sale of foreign liquor for the benefit of such foreign tourists as may hold a valid permit under the All India liquor permit scheme of the Government of India.The source of the rule-making power is Sec. 11(c)(v) which hardly needs reproduction. 3. It is easy to see that the provisions in the Punjab Law, challenged unsuccessfully before us, and the se U.P. provisions are virtually the same. The contentions put forward by counsel for the petitioners and the submissions by the Solicitor General and shri O. P. Rana in reply are also identical with what we have heard and considered in the Pun jab cases. Indeed, the U.P. cases, from the point of view of the State, are stronger because the licences were awarded at public auctions and all the conditions now objected to in these writ petitions regarding closure of business on certain days a re printed in the auction notice. With full knowledge of these restrictions, which they considered reasonable when they participated in the bids (and which we consider reasonable for reasons we have given in the Punjab cases), they took the licences. So their present challenge must meet with its Waterloo in the decision of this Court in the Punjab Cases. | 0[ds]3. It is easy to see that the provisions in the Punjab Law, challenged unsuccessfully before us, and the se U.P. provisions are virtually the same. The contentions put forward by counsel for the petitioners and the submissions by the Solicitor General and shri O. P. Rana in reply are also identical with what we have heard and considered in the Pun jab cases. Indeed, the U.P. cases, from the point of view of the State, are stronger because the licences were awarded at public auctions and all the conditions now objected to in these writ petitions regarding closure of business on certain days a re printed in the auction notice. With full knowledge of these restrictions, which they considered reasonable when they participated in the bids (and which we consider reasonable for reasons we have given in the Punjab cases), they took the licences. So their present challenge must meet with its Waterloo in the decision of this Court in the Punjab Cases. | 0 | 601 | 185 | ### 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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KRISHNA IYER, J. 1. We have today disposed of a batch of writ of petitions arising under the Punjab Excise Act, 1914 (Annexure A). There the petitioner had challenged Sec. 59(f)(v) and rule 37 as unconstitutional. In the present batch of writ petitions he contention is identical except that the enactment and rule are formally different but in pari materia. Sec. 41(e)(v) of the U.P. Excise Act empowers the Excise Commissioner to make rules fixing the days and hours during which licensed p remises may be kept opened or closed. Rule 13 is one such rule which forbids sale of liquor of all Tuesdays as well as the first day of every month`. Aggrieved by- rule 13 (as amended), because it prohibits liquor trade on the 1st of every month the petitioners, who are licensees, have come up to this Court challenging its vires. Rule 13 reads thus: 13B. All excise shops (including foreign liquor country spirit, home drugs, opium (tari and outstill shops) shall not be kept open on Independence day (August 15) Mahatma Ghana Birthday (October 2) and on the day of Mahatma Gandhis tragic death (January 30) every year an(l also on all Tuesdays as well as on the first day of every month. 2. Provided that if the first day of the month happen to be a public holiday, the day next following of that month shall be the day on which the excise shops shall not be kept open. Provided further Excise Commissioner, may in consultation with the Collector of the District concerned, waive the condition of not keeping an exercise shop open on Tuesday; or the first day of the month or the day next following of that month, as the case may be, for such specified period as he may think fit, in the case of hotels possessing a licence in Form F.L. for the sale of foreign liquor for the benefit of such foreign tourists as may hold a valid permit under the All India liquor permit scheme of the Government of India.The source of the rule-making power is Sec. 11(c)(v) which hardly needs reproduction. 3. It is easy to see that the provisions in the Punjab Law, challenged unsuccessfully before us, and the se U.P. provisions are virtually the same. The contentions put forward by counsel for the petitioners and the submissions by the Solicitor General and shri O. P. Rana in reply are also identical with what we have heard and considered in the Pun jab cases. Indeed, the U.P. cases, from the point of view of the State, are stronger because the licences were awarded at public auctions and all the conditions now objected to in these writ petitions regarding closure of business on certain days a re printed in the auction notice. With full knowledge of these restrictions, which they considered reasonable when they participated in the bids (and which we consider reasonable for reasons we have given in the Punjab cases), they took the licences. So their present challenge must meet with its Waterloo in the decision of this Court in the Punjab Cases.
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### Explanation:
3. It is easy to see that the provisions in the Punjab Law, challenged unsuccessfully before us, and the se U.P. provisions are virtually the same. The contentions put forward by counsel for the petitioners and the submissions by the Solicitor General and shri O. P. Rana in reply are also identical with what we have heard and considered in the Pun jab cases. Indeed, the U.P. cases, from the point of view of the State, are stronger because the licences were awarded at public auctions and all the conditions now objected to in these writ petitions regarding closure of business on certain days a re printed in the auction notice. With full knowledge of these restrictions, which they considered reasonable when they participated in the bids (and which we consider reasonable for reasons we have given in the Punjab cases), they took the licences. So their present challenge must meet with its Waterloo in the decision of this Court in the Punjab Cases.
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Hafiz Din Mohammad Haji Abdulla Vs. State of Maharashtra | the assessees, a sample form whereof is set out here below :-"(1) You will have to meet my demand of bidis in my area.(2) You will have to give delivery of bidis at Manmad station.(3) I will sell your bidis at the rate fixed by you adding to it the expenses incurred.(4) Money towards goods will be remitted to you as sales are effected or sometimes remittance will be made in advance.(5) After the goods are delivered, I shall be responsible for the damages or risk at my place or in transit.(6) I shall take from you, in lieu of my labour, Rs. 3-3-0 as commission per pitara.(7) You will have the right to increase or reduce the rate of bidis.(8) On the goods remaining in stock when the rate is increased or decreased, necessary adjustment of accounts will be made.(9) If I were to be acting in contravention of these conditions, you will have the right to cancel my agency. You will have right to make arrangements for the sale of your bidis as you think best."4. Whether this agreement creates a relation of principals and agent or vendors and purchaser between the assessees and the merchant to whom bidis were despatched is the sole question which falls to be determined in this appeal. The relation between the parties has manifestly to be ascertained in the light of the terms incorporated in the letter and the attendant circumstances. The designation which a party chooses to give to the relation, especially in cases of liability to pay tax, is of little consequence. The Court has in each case, having regard to the terms and the attendant circumstances, to ascertain the true relation between the parties without giving undue importance to the special expressions used by them. It is true that in commercial usage, especially in modern contracts, the expression "agents" or "agency" has acquired an extended meaning : often the so-called agent is merely a buyer who has been given favourable terms in a particular area to sell the manufacturers or suppliers goods. The use of the expression "agency" in clause (9) has therefore no special importance.5. A sale is transfer of property for a price. That is the true concept of "sale" under the Sale of Goods Act and also under the C.P. and Berar Sales Tax Act. Again, liability to pay sales tax arises under the C.P. and Berar Sales Tax Act if there be a sale of goods liable to tax, and not otherwise. Let us see whether the covenants in the agreement contemplate the transfer of property in the bidis despatched by the assessees to the merchants to whom they are despatched. By clause (3) of the agreement, the merchant receiving the bidis has agreed to sell them at the rates fixed by the assessees : he is only entitled to add to the rate fixed by the assessees the expenses incurred. By clause (6) the merchant is entitled to Rs. 3-3-0 as commission per box. That remuneration is expressly stated to be in lieu of "labour". By clause (7) the assessees are given the right to increase or reduce the rate of bidis; even in respect of goods which are in stock with the merchant the rate may be increased or decreased and on such alteration of the rate there is an obligation to make necessary adjustments in the accounts (see clause 8). By clause (9) if the merchant is found acting in contravention of the conditions, the assessees have the right to cancel the agency and have the right to make arrangements for the sale of bidis (remaining on hand) as they think best. Clause (9) therefore contemplates that if after the bidis have been despatched and before they are sold, "the agency" of the merchant is cancelled the assessees would have the right to arrange for sale of the bidis remaining in stock. These clauses clearly indicate that the bidis even in the hands of the merchants to whom they were despatched remained the property of the assessees. By clauses (3) and (9) these bidis in the hands of the merchants are expressly referred to as "your bidis". There is no warrant for assuming that the expression "your" in these clauses was intended to signify merely the bidis manufactured by and not of the ownership of the assessees. Clause (4) emphasizes that the property in the bidis despatched to the merchants remained with the assessees. By that clause the merchant undertakes to remit "money towards goods" after safes are effected. Therefore under the agreement between the parties the goods are to be sold at a price fixed by the supplier, the prices are liable to be altered at the instance of the supplier, the person to whom the goods are supplied is to receive a fixed remuneration for his exertion, and is liable to remit the price only after the sale is effected. These are clear indications that the relation is of principals and agent and not of vendors and purchaser. The terms of clause (1) imposing an obligation upon the assessees to meet the demands of bidis of the merchants in the areas assigned to them further emphasizes that character of the relation between the parties. It is true that by clause (5), for damages or risk to the goods during transit or in the shop of the merchant, the latter is responsible, but that does not alter the true nature of the right in which he holds the goods. It is open to an agent to undertake a liability in respect of goods after they are delivered to him even though the property in goods does not pass to him. Clause (2) providing for giving delivery at the town where the merchant resides has no special significance. The diverse clauses of the agreement in our judgment, create a relationship of principals and agent and not of vendors and purchaser between the assessees and the merchants to whom the bidis were despatched.The | 1[ds]These clauses clearly indicate that the bidis even in the hands of the merchants to whom they were despatched remained the property of the assessees. By clauses (3) and (9) these bidis in the hands of the merchants are expressly referred to as "your bidis". There is no warrant for assuming that the expression "your" in these clauses was intended to signify merely the bidis manufactured by and not of the ownership of the assessees. Clause (4) emphasizes that the property in the bidis despatched to the merchants remained with the assessees. By that clause the merchant undertakes to remit "money towards goods" after safes are effected. Therefore under the agreement between the parties the goods are to be sold at a price fixed by the supplier, the prices are liable to be altered at the instance of the supplier, the person to whom the goods are supplied is to receive a fixed remuneration for his exertion, and is liable to remit the price only after the sale is effected. These are clear indications that the relation is of principals and agent and not of vendors and purchaser. The terms of clause (1) imposing an obligation upon the assessees to meet the demands of bidis of the merchants in the areas assigned to them further emphasizes that character of the relation between the parties. It is true that by clause (5), for damages or risk to the goods during transit or in the shop of the merchant, the latter is responsible, but that does not alter the true nature of the right in which he holds the goods. It is open to an agent to undertake a liability in respect of goods after they are delivered to him even though the property in goods does not pass to him. Clause (2) providing for giving delivery at the town where the merchant resides has no special significance. The diverse clauses of the agreement in our judgment, create a relationship of principals and agent and not of vendors and purchaser between the assessees and the merchants to whom the bidis were despatched. | 1 | 1,362 | 391 | ### 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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the assessees, a sample form whereof is set out here below :-"(1) You will have to meet my demand of bidis in my area.(2) You will have to give delivery of bidis at Manmad station.(3) I will sell your bidis at the rate fixed by you adding to it the expenses incurred.(4) Money towards goods will be remitted to you as sales are effected or sometimes remittance will be made in advance.(5) After the goods are delivered, I shall be responsible for the damages or risk at my place or in transit.(6) I shall take from you, in lieu of my labour, Rs. 3-3-0 as commission per pitara.(7) You will have the right to increase or reduce the rate of bidis.(8) On the goods remaining in stock when the rate is increased or decreased, necessary adjustment of accounts will be made.(9) If I were to be acting in contravention of these conditions, you will have the right to cancel my agency. You will have right to make arrangements for the sale of your bidis as you think best."4. Whether this agreement creates a relation of principals and agent or vendors and purchaser between the assessees and the merchant to whom bidis were despatched is the sole question which falls to be determined in this appeal. The relation between the parties has manifestly to be ascertained in the light of the terms incorporated in the letter and the attendant circumstances. The designation which a party chooses to give to the relation, especially in cases of liability to pay tax, is of little consequence. The Court has in each case, having regard to the terms and the attendant circumstances, to ascertain the true relation between the parties without giving undue importance to the special expressions used by them. It is true that in commercial usage, especially in modern contracts, the expression "agents" or "agency" has acquired an extended meaning : often the so-called agent is merely a buyer who has been given favourable terms in a particular area to sell the manufacturers or suppliers goods. The use of the expression "agency" in clause (9) has therefore no special importance.5. A sale is transfer of property for a price. That is the true concept of "sale" under the Sale of Goods Act and also under the C.P. and Berar Sales Tax Act. Again, liability to pay sales tax arises under the C.P. and Berar Sales Tax Act if there be a sale of goods liable to tax, and not otherwise. Let us see whether the covenants in the agreement contemplate the transfer of property in the bidis despatched by the assessees to the merchants to whom they are despatched. By clause (3) of the agreement, the merchant receiving the bidis has agreed to sell them at the rates fixed by the assessees : he is only entitled to add to the rate fixed by the assessees the expenses incurred. By clause (6) the merchant is entitled to Rs. 3-3-0 as commission per box. That remuneration is expressly stated to be in lieu of "labour". By clause (7) the assessees are given the right to increase or reduce the rate of bidis; even in respect of goods which are in stock with the merchant the rate may be increased or decreased and on such alteration of the rate there is an obligation to make necessary adjustments in the accounts (see clause 8). By clause (9) if the merchant is found acting in contravention of the conditions, the assessees have the right to cancel the agency and have the right to make arrangements for the sale of bidis (remaining on hand) as they think best. Clause (9) therefore contemplates that if after the bidis have been despatched and before they are sold, "the agency" of the merchant is cancelled the assessees would have the right to arrange for sale of the bidis remaining in stock. These clauses clearly indicate that the bidis even in the hands of the merchants to whom they were despatched remained the property of the assessees. By clauses (3) and (9) these bidis in the hands of the merchants are expressly referred to as "your bidis". There is no warrant for assuming that the expression "your" in these clauses was intended to signify merely the bidis manufactured by and not of the ownership of the assessees. Clause (4) emphasizes that the property in the bidis despatched to the merchants remained with the assessees. By that clause the merchant undertakes to remit "money towards goods" after safes are effected. Therefore under the agreement between the parties the goods are to be sold at a price fixed by the supplier, the prices are liable to be altered at the instance of the supplier, the person to whom the goods are supplied is to receive a fixed remuneration for his exertion, and is liable to remit the price only after the sale is effected. These are clear indications that the relation is of principals and agent and not of vendors and purchaser. The terms of clause (1) imposing an obligation upon the assessees to meet the demands of bidis of the merchants in the areas assigned to them further emphasizes that character of the relation between the parties. It is true that by clause (5), for damages or risk to the goods during transit or in the shop of the merchant, the latter is responsible, but that does not alter the true nature of the right in which he holds the goods. It is open to an agent to undertake a liability in respect of goods after they are delivered to him even though the property in goods does not pass to him. Clause (2) providing for giving delivery at the town where the merchant resides has no special significance. The diverse clauses of the agreement in our judgment, create a relationship of principals and agent and not of vendors and purchaser between the assessees and the merchants to whom the bidis were despatched.The
### Response:
1
### Explanation:
These clauses clearly indicate that the bidis even in the hands of the merchants to whom they were despatched remained the property of the assessees. By clauses (3) and (9) these bidis in the hands of the merchants are expressly referred to as "your bidis". There is no warrant for assuming that the expression "your" in these clauses was intended to signify merely the bidis manufactured by and not of the ownership of the assessees. Clause (4) emphasizes that the property in the bidis despatched to the merchants remained with the assessees. By that clause the merchant undertakes to remit "money towards goods" after safes are effected. Therefore under the agreement between the parties the goods are to be sold at a price fixed by the supplier, the prices are liable to be altered at the instance of the supplier, the person to whom the goods are supplied is to receive a fixed remuneration for his exertion, and is liable to remit the price only after the sale is effected. These are clear indications that the relation is of principals and agent and not of vendors and purchaser. The terms of clause (1) imposing an obligation upon the assessees to meet the demands of bidis of the merchants in the areas assigned to them further emphasizes that character of the relation between the parties. It is true that by clause (5), for damages or risk to the goods during transit or in the shop of the merchant, the latter is responsible, but that does not alter the true nature of the right in which he holds the goods. It is open to an agent to undertake a liability in respect of goods after they are delivered to him even though the property in goods does not pass to him. Clause (2) providing for giving delivery at the town where the merchant resides has no special significance. The diverse clauses of the agreement in our judgment, create a relationship of principals and agent and not of vendors and purchaser between the assessees and the merchants to whom the bidis were despatched.
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Asger Ibrahim Amin Vs. Life Insurance Corp. Of India | court will have to keep in mind the purposes of the statutory provisions. 31. The general purpose of the 1995 Pension Scheme, read as a whole, is to grant pensionary benefits to employees, who had rendered service in the insurance companies and had retired after putting in the qualifying service in the insurance companies. Paras 22 and 30 of the 1995 Pension Scheme cannot be so construed so as to deprive of an employee of an insurance company, such as the appellant, who had put in the qualifying service for pension and who had voluntarily given up his service after serving 90 days? notice in accordance with sub-para (1) of Para 5 of the 1976 Scheme and after his notice was accepted by the appointing authority. 13. The Appellant ought not to be deprived of pension benefits merely because he styled his termination of services as ?resignation? or because there was no provision to retire voluntarily at that time. The commendable objective of the Pension Rule is to extend benefits to a class of people to tide over the crisis and vicissitudes of old age, and if there are some inconsistencies between the statutory provisions and the avowed objective of the statute so as to discriminate between the beneficiaries within the class, the end of justice obligates us to palliate the differences between the two and reconcile them as far as possible. We would be failing in our duty, if we go by the letter and not by the laudatory spirit of statutory provisions and the fundamental rights guaranteed under Article 14 of the Constitution of India. 14. Reserve Bank of India v. Cecil Dennis Solomon, (2004) 9 SCC 461 relied upon by the Respondent, although distinguishable on facts, has ventured to distinguish ?voluntary retirement? from ?resignation? in the following terms: 10. In service jurisprudence, the expressions ?superannuation?, ?voluntary retirement?, ?compulsory retirement? and ?resignation? convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time, but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. Other fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, the same is not denied. In case of the former, permission or notice is not mandated, while in case of the latter, permission of the employer concerned is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary. In Punjab National Bank v. P.K. Mittal (1989 Supp (2) SCC 175) on interpretation of Regulation 20(2) of the Punjab National Bank Regulations, it was held that resignation would automatically take effect from the date specified in the notice as there was no provision for any acceptance or rejection of the resignation by the employer. In Union of India v. Gopal Chandra Misra ((1978) 2 SCC 301 ) it was held in the case of a judge of the High Court having regard to Article 217 of the Constitution that he has a unilateral right or privilege to resign his office and his resignation becomes effective from the date which he, of his own volition, chooses. But where there is a provision empowering the employer not to accept the resignation, on certain circumstances e.g. pendency of disciplinary proceedings, the employer can exercise the power. (emphasis is ours) The legal position deducible from the above observations further amplifies that the so-called resignation tendered by the Appellant was after satisfactorily serving the period of 20 years ordinarily qualifying or enabling voluntary retirement. Furthermore, while there was no compulsion to do so, a waiver of the three months notice period was granted by the Respondent Corporation. The State being a model employer should construe the provisions of a beneficial legislation in a way that extends the benefit to its employees, instead of curtailing it. 15. The cases of Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 ; State of M.P. v. Yogendra Shrivastava, (2010) 12 SCC 538 ; M.R. Prabhakar v. Canara Bank, (2012) 9 SCC 671 ; National Insurance Co. Ltd. v. Kirpal Singh, (2014) 5 SCC 189 ; UCO Bank v. Sanwar Mal, (2004) 4 SCC 412 relied upon by the parties are distinguishable on facts from the present case. 16. We thus hold that the termination of services of the Appellant, in essence, was voluntary retirement within the ambit of Rule 31 of the Pension Rules of 1995. The Appellant is entitled for pension, provided he fulfils the condition of refunding of the entire amount of the Corporation?s contribution to the Provident Fund along with interest accrued thereon as provided in the Pension Rules of 1995. Considering the huge delay, not explained by proper reasons, on part of the Appellant in approaching the Court, we limit the benefits of arrears of pension payable to the Appellant to three years preceding the date of the petition filed before the High Court. These arrears of pension should be paid to the Appellant in one instalment within four weeks from the date of refund of the entire amount payable by the Appellant in accordance of the Pension Rules of 1995. In the alternative, the Appellant may opt to get the amount of refund adjusted against the arrears of pension. In the latter case, if the amount of arrear is more than the amount of refund required, then the remaining amount shall be paid within two weeks from the date of such request made by the Appellant. However, if the amount of arrears is less than the amount of refund required, then the pension shall be payable on monthly basis after the date on which the amount of refund is entirely adjusted. | 1[ds]4. As regards the issue of delay in matters pertaining to claims of pension, it has already been opined by this Court in Union of India v. Tarsem Singh, (2008) 8 SCC 648 that in cases of continuing or successive wrongs, delay and laches or limitation will not thwart the claim so long as the claim, if allowed, does not have any adverse repercussions on the settled third-party rights. This Court held:7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition(emphasis is ours)We respectfully concur with these observations which if extrapolated or applied to the factual matrix of the present case would have the effect of restricting the claim for pension, if otherwise sustainable in law, to three years previous to when it was raised in a judicial forum. Such claims recur month to month and would not stand extinguished on the application of the laws of prescription, merely because the legal remedy pertaining to the time barred part of it has become unavailable. This is too well entrenched in our jurisprudence, foreclosing any fresh considerationn our opinion, the advantage of these beneficent Rules should be extended even to the Appellant who was similarly placed as the retirees mentioned in Rule 3 but for the fact that he had ‘resigned? rather than retired. The two provisions caught in the crossfire are Rule 2(s), which defines ?retirement? and Rule 23, which deals with the ?forfeiture of service?:12. What is unmistakably evident in the case at hand is that the Appellant had worked continuously for over 20 years, that he sought to discontinue his services and requested waiver of three months notice in writing, and that the said notice was accepted by the Respondent Corporation and the Appellant was thereby allowed to discontinue his services. If one would examine Rule 31 of the Pension Rules juxtaposed with the aforementioned facts, it would at once be obvious and perceptible that the essential components of that Rule stand substantially fulfilled in the present case. In Sheelkumar, this Court was alive to the factum that each case calls for scrutiny on its own merits, but that such scrutiny should not be detached from the purpose and objective of the concerned statute. It thus observed:30. The aforesaid authorities would show that the court will have to construe the statutory provisions in each case to find out whether the termination of service of an employee was a termination by way of resignation or a termination by way of voluntary retirement and while construing the statutory provisions, the court will have to keep in mind the purposes of the statutory provisions31. The general purpose of the 1995 Pension Scheme, read as a whole, is to grant pensionary benefits to employees, who had rendered service in the insurance companies and had retired after putting in the qualifying service in the insurance companies. Paras 22 and 30 of the 1995 Pension Scheme cannot be so construed so as to deprive of an employee of an insurance company, such as the appellant, who had put in the qualifying service for pension and who had voluntarily given up his service after serving 90 days? notice in accordance with sub-para (1) of Para 5 of the 1976 Scheme and after his notice was accepted by the appointing authority13. The Appellant ought not to be deprived of pension benefits merely because he styled his termination of services as ?resignation? or because there was no provision to retire voluntarily at that time. The commendable objective of the Pension Rule is to extend benefits to a class of people to tide over the crisis and vicissitudes of old age, and if there are some inconsistencies between the statutory provisions and the avowed objective of the statute so as to discriminate between the beneficiaries within the class, the end of justice obligates us to palliate the differences between the two and reconcile them as far as possible. We would be failing in our duty, if we go by the letter and not by the laudatory spirit of statutory provisions and the fundamental rights guaranteed under Article 14 of the Constitution of IndiaThe legal position deducible from the above observations further amplifies that the so-called resignation tendered by the Appellant was after satisfactorily serving the period of 20 years ordinarily qualifying or enabling voluntary retirement. Furthermore, while there was no compulsion to do so, a waiver of the three months notice period was granted by the Respondent CorporationThe State being a model employer should construe the provisions of a beneficial legislation in a way that extends the benefit to its employees, instead of curtailing it | 1 | 5,750 | 1,120 | ### Instruction:
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court will have to keep in mind the purposes of the statutory provisions. 31. The general purpose of the 1995 Pension Scheme, read as a whole, is to grant pensionary benefits to employees, who had rendered service in the insurance companies and had retired after putting in the qualifying service in the insurance companies. Paras 22 and 30 of the 1995 Pension Scheme cannot be so construed so as to deprive of an employee of an insurance company, such as the appellant, who had put in the qualifying service for pension and who had voluntarily given up his service after serving 90 days? notice in accordance with sub-para (1) of Para 5 of the 1976 Scheme and after his notice was accepted by the appointing authority. 13. The Appellant ought not to be deprived of pension benefits merely because he styled his termination of services as ?resignation? or because there was no provision to retire voluntarily at that time. The commendable objective of the Pension Rule is to extend benefits to a class of people to tide over the crisis and vicissitudes of old age, and if there are some inconsistencies between the statutory provisions and the avowed objective of the statute so as to discriminate between the beneficiaries within the class, the end of justice obligates us to palliate the differences between the two and reconcile them as far as possible. We would be failing in our duty, if we go by the letter and not by the laudatory spirit of statutory provisions and the fundamental rights guaranteed under Article 14 of the Constitution of India. 14. Reserve Bank of India v. Cecil Dennis Solomon, (2004) 9 SCC 461 relied upon by the Respondent, although distinguishable on facts, has ventured to distinguish ?voluntary retirement? from ?resignation? in the following terms: 10. In service jurisprudence, the expressions ?superannuation?, ?voluntary retirement?, ?compulsory retirement? and ?resignation? convey different connotations. Voluntary retirement and resignation involve voluntary acts on the part of the employee to leave service. Though both involve voluntary acts, they operate differently. One of the basic distinctions is that in case of resignation it can be tendered at any time, but in the case of voluntary retirement, it can only be sought for after rendering prescribed period of qualifying service. Other fundamental distinction is that in case of the former, normally retiral benefits are denied but in case of the latter, the same is not denied. In case of the former, permission or notice is not mandated, while in case of the latter, permission of the employer concerned is a requisite condition. Though resignation is a bilateral concept, and becomes effective on acceptance by the competent authority, yet the general rule can be displaced by express provisions to the contrary. In Punjab National Bank v. P.K. Mittal (1989 Supp (2) SCC 175) on interpretation of Regulation 20(2) of the Punjab National Bank Regulations, it was held that resignation would automatically take effect from the date specified in the notice as there was no provision for any acceptance or rejection of the resignation by the employer. In Union of India v. Gopal Chandra Misra ((1978) 2 SCC 301 ) it was held in the case of a judge of the High Court having regard to Article 217 of the Constitution that he has a unilateral right or privilege to resign his office and his resignation becomes effective from the date which he, of his own volition, chooses. But where there is a provision empowering the employer not to accept the resignation, on certain circumstances e.g. pendency of disciplinary proceedings, the employer can exercise the power. (emphasis is ours) The legal position deducible from the above observations further amplifies that the so-called resignation tendered by the Appellant was after satisfactorily serving the period of 20 years ordinarily qualifying or enabling voluntary retirement. Furthermore, while there was no compulsion to do so, a waiver of the three months notice period was granted by the Respondent Corporation. The State being a model employer should construe the provisions of a beneficial legislation in a way that extends the benefit to its employees, instead of curtailing it. 15. The cases of Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 ; State of M.P. v. Yogendra Shrivastava, (2010) 12 SCC 538 ; M.R. Prabhakar v. Canara Bank, (2012) 9 SCC 671 ; National Insurance Co. Ltd. v. Kirpal Singh, (2014) 5 SCC 189 ; UCO Bank v. Sanwar Mal, (2004) 4 SCC 412 relied upon by the parties are distinguishable on facts from the present case. 16. We thus hold that the termination of services of the Appellant, in essence, was voluntary retirement within the ambit of Rule 31 of the Pension Rules of 1995. The Appellant is entitled for pension, provided he fulfils the condition of refunding of the entire amount of the Corporation?s contribution to the Provident Fund along with interest accrued thereon as provided in the Pension Rules of 1995. Considering the huge delay, not explained by proper reasons, on part of the Appellant in approaching the Court, we limit the benefits of arrears of pension payable to the Appellant to three years preceding the date of the petition filed before the High Court. These arrears of pension should be paid to the Appellant in one instalment within four weeks from the date of refund of the entire amount payable by the Appellant in accordance of the Pension Rules of 1995. In the alternative, the Appellant may opt to get the amount of refund adjusted against the arrears of pension. In the latter case, if the amount of arrear is more than the amount of refund required, then the remaining amount shall be paid within two weeks from the date of such request made by the Appellant. However, if the amount of arrears is less than the amount of refund required, then the pension shall be payable on monthly basis after the date on which the amount of refund is entirely adjusted.
### Response:
1
### Explanation:
Union of India v. Tarsem Singh, (2008) 8 SCC 648 that in cases of continuing or successive wrongs, delay and laches or limitation will not thwart the claim so long as the claim, if allowed, does not have any adverse repercussions on the settled third-party rights. This Court held:7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition(emphasis is ours)We respectfully concur with these observations which if extrapolated or applied to the factual matrix of the present case would have the effect of restricting the claim for pension, if otherwise sustainable in law, to three years previous to when it was raised in a judicial forum. Such claims recur month to month and would not stand extinguished on the application of the laws of prescription, merely because the legal remedy pertaining to the time barred part of it has become unavailable. This is too well entrenched in our jurisprudence, foreclosing any fresh considerationn our opinion, the advantage of these beneficent Rules should be extended even to the Appellant who was similarly placed as the retirees mentioned in Rule 3 but for the fact that he had ‘resigned? rather than retired. The two provisions caught in the crossfire are Rule 2(s), which defines ?retirement? and Rule 23, which deals with the ?forfeiture of service?:12. What is unmistakably evident in the case at hand is that the Appellant had worked continuously for over 20 years, that he sought to discontinue his services and requested waiver of three months notice in writing, and that the said notice was accepted by the Respondent Corporation and the Appellant was thereby allowed to discontinue his services. If one would examine Rule 31 of the Pension Rules juxtaposed with the aforementioned facts, it would at once be obvious and perceptible that the essential components of that Rule stand substantially fulfilled in the present case. In Sheelkumar, this Court was alive to the factum that each case calls for scrutiny on its own merits, but that such scrutiny should not be detached from the purpose and objective of the concerned statute. It thus observed:30. The aforesaid authorities would show that the court will have to construe the statutory provisions in each case to find out whether the termination of service of an employee was a termination by way of resignation or a termination by way of voluntary retirement and while construing the statutory provisions, the court will have to keep in mind the purposes of the statutory provisions31. The general purpose of the 1995 Pension Scheme, read as a whole, is to grant pensionary benefits to employees, who had rendered service in the insurance companies and had retired after putting in the qualifying service in the insurance companies. Paras 22 and 30 of the 1995 Pension Scheme cannot be so construed so as to deprive of an employee of an insurance company, such as the appellant, who had put in the qualifying service for pension and who had voluntarily given up his service after serving 90 days? notice in accordance with sub-para (1) of Para 5 of the 1976 Scheme and after his notice was accepted by the appointing authority13. The Appellant ought not to be deprived of pension benefits merely because he styled his termination of services as ?resignation? or because there was no provision to retire voluntarily at that time. The commendable objective of the Pension Rule is to extend benefits to a class of people to tide over the crisis and vicissitudes of old age, and if there are some inconsistencies between the statutory provisions and the avowed objective of the statute so as to discriminate between the beneficiaries within the class, the end of justice obligates us to palliate the differences between the two and reconcile them as far as possible. We would be failing in our duty, if we go by the letter and not by the laudatory spirit of statutory provisions and the fundamental rights guaranteed under Article 14 of the Constitution of IndiaThe legal position deducible from the above observations further amplifies that the so-called resignation tendered by the Appellant was after satisfactorily serving the period of 20 years ordinarily qualifying or enabling voluntary retirement. Furthermore, while there was no compulsion to do so, a waiver of the three months notice period was granted by the Respondent CorporationThe State being a model employer should construe the provisions of a beneficial legislation in a way that extends the benefit to its employees, instead of curtailing it
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Jupudy Pardha Sarathy Vs. Pentapati Rama Krishna & Others | Hindu for the first time as a grant without any pre-existing right under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. It has also been held that where the property is acquired by a Hindu female in lieu of right of maintenance inter alia, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of sub-section (2) even if the instrument, decree, order or award allotting the property to her prescribes a restricted estate in the property. Applying this principle, it must be held that the suit lands, which were given to Harmel Kaur by Gurdial Singh in lieu of her maintenance, were held by Harmel Kaur as full owner thereof and not as a limited owner notwithstanding the several restrictive covenants accompany-ing the grant. [Also see the recent decision of this Court in Mangat Mal v. Punni Devi where a right to residence in a house property was held to attract sub-section (1) of Section 14 notwithstanding the fact that the grant expressly conferred only a limited estate upon her.] According to sub-section (1), where any property is given to a female Hindu in lieu of her maintenance before the commencement of the Hindu Succession Act, such property becomes the absolute property of such female Hindu on the commencement of the Act provided the said property was possessed by her. Where, however, the property is given to a female Hindu towards her maintenance after the commencement of the Act, she becomes the absolute owner thereof the moment she is placed in possession of the said property (unless, of course, she is already in possession) notwithstanding the limitations and restrictions contained in the instrument, grant or award whereunder the property is given to her. This proposition follows from the words in sub-section (1), which insofar as is relevant read: Any property possessed by a female Hindu … after the commencement of this Act shall be held by her as full owner and not as a limited owner. In other words, though the instrument, grant, award or deed creates a limited estate or a restricted estate, as the case may be, it stands transformed into an absolute estate provided such property is given to a female Hindu in lieu of maintenance and is placed in her possession. So far as the expression possessed is concerned, it too has been the subject-matter of interpretation by several decisions of this Court to which it is not necessary to refer for the purpose of this case. 30. In Sadhu Singhs case, (2006) 8 SCC 75 , the facts of the case were quite different to that of the present case. In Sadhu Singhs case, this Court proceeded on the basis that the widow had no pre-existing right in the property, and therefore, the life estate given to her in the Will cannot get enlarged into absolute estate under Section 14(1) of the Act. 31. Mr. Vishwanathan, learned senior counsel for the appellants last contention was that in the absence of any pleading and proof from the side of the appellant to substantiate the plea that Veeraraghavamma was occupying the property in lieu of maintenance, Section 14 will not be automatically attracted. We do not find any substance in the submission made by the learned counsel. Indisputably, Exhibit A-2 is a document which very categorically provided that the property in question was given to Veeraraghavamma to enjoy the same till her life. Neither the genuineness of the said Exhibit A-2 was disputed nor it was disputed that Veeraraghavamma was enjoying the property by way of maintenance. In our considered opinion, unless the factum of bequeathing the property in favour of the wife and her continuous possession are disputed, the question of pleading and proof does not arise. In other words, no one disputed the arrangement made in the Will and Veeraraghavamma continued to enjoy the said property in lieu of maintenance. Hence, the ratio decided in G. Ramas case (supra) does not apply. 32. Further, indisputably, Mr. P. Venkata Subba Rao, the original owner of the property, realized the fact that his wife Veeraraghavamma was issueless and she has a pre-existing right to be maintained out of his property. He further realized that physically he was weak and may not survive for long period. He therefore, decided to give his properties to his family members. For the maintenance of his third wife Veeraraghavamma, he gave the tiled house with site and compound wall with the stipulation that she shall enjoy the property for life in lieu of maintenance. She will also be entitled to fetch water from the well and use other facilities. Admittedly, no one disputed the arrangements made in the Will and Veeraraghavamma continued to enjoy the said property. In view of the admitted position, we have no doubt to hold that by virtue of Section 14(1) of the Act, her limited right became absolute right to the suit property. 33. In the impugned judgment, the High Court has elaborately discussed the facts of the case and the law applicable thereto and came to the conclusion that the trial court committed serious error of law in holding that by virtue of Section 14(2) of the Act, her limited right has not become absolute. 34. Though no specific word has been mentioned in Exhibit A-2 that in lieu of maintenance life interest has been created in favour of Veeraraghavamma, in our opinion in whatever form a limited interest is created in her favour who was having a pre-existing right of maintenance, the same has become an absolute right by the operation of Section 14(1) of the Hindu Succession Act. 35. After giving our anxious consideration to the matter and the judicial pronouncements of this Court in a series of decisions, we hold that the impugned judgment of the High Court is perfectly in accordance with law and needs no interference by this Court. | 0[ds]33. In the impugned judgment, the High Court has elaborately discussed the facts of the case and the law applicable thereto and came to the conclusion that the trial court committed serious error of law in holding that by virtue of Section 14(2) of the Act, her limited right has not become absolute35. After giving our anxious consideration to the matter and the judicial pronouncements of this Court in a series of decisions, we hold that the impugned judgment of the High Court is perfectly in accordance with law and needs no interference by this Court | 0 | 8,841 | 108 | ### 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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Hindu for the first time as a grant without any pre-existing right under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. It has also been held that where the property is acquired by a Hindu female in lieu of right of maintenance inter alia, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of sub-section (2) even if the instrument, decree, order or award allotting the property to her prescribes a restricted estate in the property. Applying this principle, it must be held that the suit lands, which were given to Harmel Kaur by Gurdial Singh in lieu of her maintenance, were held by Harmel Kaur as full owner thereof and not as a limited owner notwithstanding the several restrictive covenants accompany-ing the grant. [Also see the recent decision of this Court in Mangat Mal v. Punni Devi where a right to residence in a house property was held to attract sub-section (1) of Section 14 notwithstanding the fact that the grant expressly conferred only a limited estate upon her.] According to sub-section (1), where any property is given to a female Hindu in lieu of her maintenance before the commencement of the Hindu Succession Act, such property becomes the absolute property of such female Hindu on the commencement of the Act provided the said property was possessed by her. Where, however, the property is given to a female Hindu towards her maintenance after the commencement of the Act, she becomes the absolute owner thereof the moment she is placed in possession of the said property (unless, of course, she is already in possession) notwithstanding the limitations and restrictions contained in the instrument, grant or award whereunder the property is given to her. This proposition follows from the words in sub-section (1), which insofar as is relevant read: Any property possessed by a female Hindu … after the commencement of this Act shall be held by her as full owner and not as a limited owner. In other words, though the instrument, grant, award or deed creates a limited estate or a restricted estate, as the case may be, it stands transformed into an absolute estate provided such property is given to a female Hindu in lieu of maintenance and is placed in her possession. So far as the expression possessed is concerned, it too has been the subject-matter of interpretation by several decisions of this Court to which it is not necessary to refer for the purpose of this case. 30. In Sadhu Singhs case, (2006) 8 SCC 75 , the facts of the case were quite different to that of the present case. In Sadhu Singhs case, this Court proceeded on the basis that the widow had no pre-existing right in the property, and therefore, the life estate given to her in the Will cannot get enlarged into absolute estate under Section 14(1) of the Act. 31. Mr. Vishwanathan, learned senior counsel for the appellants last contention was that in the absence of any pleading and proof from the side of the appellant to substantiate the plea that Veeraraghavamma was occupying the property in lieu of maintenance, Section 14 will not be automatically attracted. We do not find any substance in the submission made by the learned counsel. Indisputably, Exhibit A-2 is a document which very categorically provided that the property in question was given to Veeraraghavamma to enjoy the same till her life. Neither the genuineness of the said Exhibit A-2 was disputed nor it was disputed that Veeraraghavamma was enjoying the property by way of maintenance. In our considered opinion, unless the factum of bequeathing the property in favour of the wife and her continuous possession are disputed, the question of pleading and proof does not arise. In other words, no one disputed the arrangement made in the Will and Veeraraghavamma continued to enjoy the said property in lieu of maintenance. Hence, the ratio decided in G. Ramas case (supra) does not apply. 32. Further, indisputably, Mr. P. Venkata Subba Rao, the original owner of the property, realized the fact that his wife Veeraraghavamma was issueless and she has a pre-existing right to be maintained out of his property. He further realized that physically he was weak and may not survive for long period. He therefore, decided to give his properties to his family members. For the maintenance of his third wife Veeraraghavamma, he gave the tiled house with site and compound wall with the stipulation that she shall enjoy the property for life in lieu of maintenance. She will also be entitled to fetch water from the well and use other facilities. Admittedly, no one disputed the arrangements made in the Will and Veeraraghavamma continued to enjoy the said property. In view of the admitted position, we have no doubt to hold that by virtue of Section 14(1) of the Act, her limited right became absolute right to the suit property. 33. In the impugned judgment, the High Court has elaborately discussed the facts of the case and the law applicable thereto and came to the conclusion that the trial court committed serious error of law in holding that by virtue of Section 14(2) of the Act, her limited right has not become absolute. 34. Though no specific word has been mentioned in Exhibit A-2 that in lieu of maintenance life interest has been created in favour of Veeraraghavamma, in our opinion in whatever form a limited interest is created in her favour who was having a pre-existing right of maintenance, the same has become an absolute right by the operation of Section 14(1) of the Hindu Succession Act. 35. After giving our anxious consideration to the matter and the judicial pronouncements of this Court in a series of decisions, we hold that the impugned judgment of the High Court is perfectly in accordance with law and needs no interference by this Court.
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33. In the impugned judgment, the High Court has elaborately discussed the facts of the case and the law applicable thereto and came to the conclusion that the trial court committed serious error of law in holding that by virtue of Section 14(2) of the Act, her limited right has not become absolute35. After giving our anxious consideration to the matter and the judicial pronouncements of this Court in a series of decisions, we hold that the impugned judgment of the High Court is perfectly in accordance with law and needs no interference by this Court
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RANDHIR KAUR Vs. PRITHVI PAL SINGH & ORS | appeal in terms of the provisions of law as it existed prior to 1976, and held as under: 12. The scope of second appeal as envisaged by section 100 of the Civil Procedure Code and section 41 of the Punjab Courts Act has been a matter of judicial scrutiny a number of times by this court as well as by the final court, that is, the Suprems Court of India. The learned counsel for the appellant has actually made a reference in this regard to Detty Paitabhiramaswami v. S. Hanymayya [AIR 1959 SC 57 .], Madamanchi Ramappa v. Muthaluru Bojjappa [AIR 1962 SC 1933.], Bithal Dass Khanna v. Hafiz Abdul Hai [1969 S.C. Notes 481.] and Afsar Shaikh v. Soleman Bibi [(1976) 2 SCC 142 : AIR 1976 SC 163 .] . These pronouncements; in a nutshell, lay down that there is no jurisdiction to entertain a second appeal on the ground of a erroneous finding of fact, however gross or inexecusable the error may seem to be. Nor does the fact that the finding of the first appellate Court is upon some documentary evidence make it any the less a finding of fact. A Judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate court based upon an appreciation of the relevant evidence. Their Lordships have further observed that the only ground on which such an appeal can be said to be competent is where there is an error in law or procedure and not merely on an error on a question of fact. xx xx xx 14. In view of the above discussion, we are clearly of the view that the learned Single Judge exceeded his jurisdiction in setting aside the findings of the fact on issue No. 2. The provisions of section 100 being clear and unambiguous, there was no scope for interference with those findings. We thus allow the appeal and set aside the judgment of the learned Single Judge and affirm the judgment and decree passed by the District Judge. The parties are, however left to bear their own costs. 16) A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact. 17) In view of the above, we find that the High Court could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view. The learned first appellate court has considered the absence of clause in the first power of attorney to purchase land on behalf of the Plaintiff; the fact that the plaintiff has not appeared as witness. 18) A perusal of the findings recorded show that the learned first appellate court has returned a finding that the plaintiff was ready and willing to perform the contract and that the defendants cannot take plea that they were not aware that Dhanwant Singh was power of attorney holder. Therefore, the findings recorded by the first appellate court cannot be said to be contrary to law which may confer jurisdiction on the High Court to interfere with the findings of fact recorded by the first appellate court. 19) Learned counsel for the respondents have not raised any argument that the first appellate court has failed to determine some material issue of law which may confer jurisdiction on the High Court to interfere with the findings of fact nor there is any substantial error or defect in the procedure provided by the Code of Civil Procedure or by any other law for the time being in force which may possibly have produced error or defect in the decision on merits. Therefore, the High Court was not within its jurisdiction to interfere with the findings of fact only for the reason that plaintiff has failed to prove power of attorney in favour of Dhanwant Singh. 20) The agreement to purchase the land was entered into by the plaintiff through her son Dhanwant Singh when a sum of Rs.13,50,000/- was paid to the defendants. The defendants could accept a sum of Rs.13,50,000/- from Dhanwant Singh but they disputed the authority of Dhanwant Singh to enter into agreement to purchase on behalf of his mother. Dhanwant Singh had appeared in the office of the Sub Registrar for execution of the sale deed on January 31, 2005 with the plea that he has brought the balance sale consideration but the defendants have not turned up. In fact, the defendants relied upon their presence before the Sub Registrar on January 28, 2005 i.e. even before January 30, 2005, i.e. the date on which the execution of sale deed was fixed. January 30, 2005 was Sunday. Therefore, in terms of provisions of Section 10 of the General Clauses Act, 1897, it will be the next working day i.e. January 31, 2005 which will be deemed to be the date for performance of the agreement and on the said date, Dhanwant Singh appeared with balance sale consideration and marked himself present. 21) In respect of financial capacity, it has come on record that the sale deeds (Exh. P-15 and Exh. P-16) were executed by Randhir Kaur prior to January 30, 2005 for making payment to the defendants to execute the sale deed as per terms and conditions of the agreement. Therefore, the High Court was not within its jurisdiction to interfere in second appeal only for the reason that on the date of agreement, there was no specific power of attorney in favour of son of the plaintiff, Dhanwant Singh. | 1[ds]16) A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact17) In view of the above, we find that the High Court could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view. The learned first appellate court has considered the absence of clause in the first power of attorney to purchase land on behalf of the Plaintiff; the fact that the plaintiff has not appeared as witness18) A perusal of the findings recorded show that the learned first appellate court has returned a finding that the plaintiff was ready and willing to perform the contract and that the defendants cannot take plea that they were not aware that Dhanwant Singh was power of attorney holder. Therefore, the findings recorded by the first appellate court cannot be said to be contrary to law which may confer jurisdiction on the High Court to interfere with the findings of fact recorded by the first appellate court19) Learned counsel for the respondents have not raised any argument that the first appellate court has failed to determine some material issue of law which may confer jurisdiction on the High Court to interfere with the findings of fact nor there is any substantial error or defect in the procedure provided by the Code of Civil Procedure or by any other law for the time being in force which may possibly have produced error or defect in the decision on merits. Therefore, the High Court was not within its jurisdiction to interfere with the findings of fact only for the reason that plaintiff has failed to prove power of attorney in favour of Dhanwant Singh19) Learned counsel for the respondents have not raised any argument that the first appellate court has failed to determine some material issue of law which may confer jurisdiction on the High Court to interfere with the findings of fact nor there is any substantial error or defect in the procedure provided by the Code of Civil Procedure or by any other law for the time being in force which may possibly have produced error or defect in the decision on merits. Therefore, the High Court was not within its jurisdiction to interfere with the findings of fact only for the reason that plaintiff has failed to prove power of attorney in favour of Dhanwant Singh20) The agreement to purchase the land was entered into by the plaintiff through her son Dhanwant Singh when a sum of Rs.13,50,000/- was paid to the defendants. The defendants could accept a sum of Rs.13,50,000/- from Dhanwant Singh but they disputed the authority of Dhanwant Singh to enter into agreement to purchase on behalf of his mother. Dhanwant Singh had appeared in the office of the Sub Registrar for execution of the sale deed on January 31, 2005 with the plea that he has brought the balance sale consideration but the defendants have not turned up. In fact, the defendants relied upon their presence before the Sub Registrar on January 28, 2005 i.e. even before January 30, 2005, i.e. the date on which the execution of sale deed was fixed. January 30, 2005 was Sunday. Therefore, in terms of provisions of Section 10 of the General Clauses Act, 1897, it will be the next working day i.e. January 31, 2005 which will be deemed to be the date for performance of the agreement and on the said date, Dhanwant Singh appeared with balance sale consideration and marked himself present21) In respect of financial capacity, it has come on record that the sale deeds (Exh. P-15 and Exh. P-16) were executed by Randhir Kaur prior to January 30, 2005 for making payment to the defendants to execute the sale deed as per terms and conditions of the agreement. Therefore, the High Court was not within its jurisdiction to interfere in second appeal only for the reason that on the date of agreement, there was no specific power of attorney in favour of son of the plaintiff, Dhanwant Singh11) The effect of the Constitution Bench judgment in Pankajakshi is that in second appeal, the scope of interference within the Punjab and Haryana High Court would be the same as Code of Civil Procedure existed prior to 1976 amendment. The provisions of Section 41 of the Punjab Act and of Section 100 of the CPC are pari materia. | 1 | 3,848 | 868 | ### 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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appeal in terms of the provisions of law as it existed prior to 1976, and held as under: 12. The scope of second appeal as envisaged by section 100 of the Civil Procedure Code and section 41 of the Punjab Courts Act has been a matter of judicial scrutiny a number of times by this court as well as by the final court, that is, the Suprems Court of India. The learned counsel for the appellant has actually made a reference in this regard to Detty Paitabhiramaswami v. S. Hanymayya [AIR 1959 SC 57 .], Madamanchi Ramappa v. Muthaluru Bojjappa [AIR 1962 SC 1933.], Bithal Dass Khanna v. Hafiz Abdul Hai [1969 S.C. Notes 481.] and Afsar Shaikh v. Soleman Bibi [(1976) 2 SCC 142 : AIR 1976 SC 163 .] . These pronouncements; in a nutshell, lay down that there is no jurisdiction to entertain a second appeal on the ground of a erroneous finding of fact, however gross or inexecusable the error may seem to be. Nor does the fact that the finding of the first appellate Court is upon some documentary evidence make it any the less a finding of fact. A Judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate court based upon an appreciation of the relevant evidence. Their Lordships have further observed that the only ground on which such an appeal can be said to be competent is where there is an error in law or procedure and not merely on an error on a question of fact. xx xx xx 14. In view of the above discussion, we are clearly of the view that the learned Single Judge exceeded his jurisdiction in setting aside the findings of the fact on issue No. 2. The provisions of section 100 being clear and unambiguous, there was no scope for interference with those findings. We thus allow the appeal and set aside the judgment of the learned Single Judge and affirm the judgment and decree passed by the District Judge. The parties are, however left to bear their own costs. 16) A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact. 17) In view of the above, we find that the High Court could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view. The learned first appellate court has considered the absence of clause in the first power of attorney to purchase land on behalf of the Plaintiff; the fact that the plaintiff has not appeared as witness. 18) A perusal of the findings recorded show that the learned first appellate court has returned a finding that the plaintiff was ready and willing to perform the contract and that the defendants cannot take plea that they were not aware that Dhanwant Singh was power of attorney holder. Therefore, the findings recorded by the first appellate court cannot be said to be contrary to law which may confer jurisdiction on the High Court to interfere with the findings of fact recorded by the first appellate court. 19) Learned counsel for the respondents have not raised any argument that the first appellate court has failed to determine some material issue of law which may confer jurisdiction on the High Court to interfere with the findings of fact nor there is any substantial error or defect in the procedure provided by the Code of Civil Procedure or by any other law for the time being in force which may possibly have produced error or defect in the decision on merits. Therefore, the High Court was not within its jurisdiction to interfere with the findings of fact only for the reason that plaintiff has failed to prove power of attorney in favour of Dhanwant Singh. 20) The agreement to purchase the land was entered into by the plaintiff through her son Dhanwant Singh when a sum of Rs.13,50,000/- was paid to the defendants. The defendants could accept a sum of Rs.13,50,000/- from Dhanwant Singh but they disputed the authority of Dhanwant Singh to enter into agreement to purchase on behalf of his mother. Dhanwant Singh had appeared in the office of the Sub Registrar for execution of the sale deed on January 31, 2005 with the plea that he has brought the balance sale consideration but the defendants have not turned up. In fact, the defendants relied upon their presence before the Sub Registrar on January 28, 2005 i.e. even before January 30, 2005, i.e. the date on which the execution of sale deed was fixed. January 30, 2005 was Sunday. Therefore, in terms of provisions of Section 10 of the General Clauses Act, 1897, it will be the next working day i.e. January 31, 2005 which will be deemed to be the date for performance of the agreement and on the said date, Dhanwant Singh appeared with balance sale consideration and marked himself present. 21) In respect of financial capacity, it has come on record that the sale deeds (Exh. P-15 and Exh. P-16) were executed by Randhir Kaur prior to January 30, 2005 for making payment to the defendants to execute the sale deed as per terms and conditions of the agreement. Therefore, the High Court was not within its jurisdiction to interfere in second appeal only for the reason that on the date of agreement, there was no specific power of attorney in favour of son of the plaintiff, Dhanwant Singh.
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1
### Explanation:
16) A perusal of the aforesaid judgments would show that the jurisdiction in second appeal is not to interfere with the findings of fact on the ground that findings are erroneous, however, gross or inexcusable the error may seem to be. The findings of fact will also include the findings on the basis of documentary evidence. The jurisdiction to interfere in the second appeal is only where there is an error in law or procedure and not merely an error on a question of fact17) In view of the above, we find that the High Court could not interfere with the findings of fact recorded after appreciation of evidence merely because the High Court thought that another view would be a better view. The learned first appellate court has considered the absence of clause in the first power of attorney to purchase land on behalf of the Plaintiff; the fact that the plaintiff has not appeared as witness18) A perusal of the findings recorded show that the learned first appellate court has returned a finding that the plaintiff was ready and willing to perform the contract and that the defendants cannot take plea that they were not aware that Dhanwant Singh was power of attorney holder. Therefore, the findings recorded by the first appellate court cannot be said to be contrary to law which may confer jurisdiction on the High Court to interfere with the findings of fact recorded by the first appellate court19) Learned counsel for the respondents have not raised any argument that the first appellate court has failed to determine some material issue of law which may confer jurisdiction on the High Court to interfere with the findings of fact nor there is any substantial error or defect in the procedure provided by the Code of Civil Procedure or by any other law for the time being in force which may possibly have produced error or defect in the decision on merits. Therefore, the High Court was not within its jurisdiction to interfere with the findings of fact only for the reason that plaintiff has failed to prove power of attorney in favour of Dhanwant Singh19) Learned counsel for the respondents have not raised any argument that the first appellate court has failed to determine some material issue of law which may confer jurisdiction on the High Court to interfere with the findings of fact nor there is any substantial error or defect in the procedure provided by the Code of Civil Procedure or by any other law for the time being in force which may possibly have produced error or defect in the decision on merits. Therefore, the High Court was not within its jurisdiction to interfere with the findings of fact only for the reason that plaintiff has failed to prove power of attorney in favour of Dhanwant Singh20) The agreement to purchase the land was entered into by the plaintiff through her son Dhanwant Singh when a sum of Rs.13,50,000/- was paid to the defendants. The defendants could accept a sum of Rs.13,50,000/- from Dhanwant Singh but they disputed the authority of Dhanwant Singh to enter into agreement to purchase on behalf of his mother. Dhanwant Singh had appeared in the office of the Sub Registrar for execution of the sale deed on January 31, 2005 with the plea that he has brought the balance sale consideration but the defendants have not turned up. In fact, the defendants relied upon their presence before the Sub Registrar on January 28, 2005 i.e. even before January 30, 2005, i.e. the date on which the execution of sale deed was fixed. January 30, 2005 was Sunday. Therefore, in terms of provisions of Section 10 of the General Clauses Act, 1897, it will be the next working day i.e. January 31, 2005 which will be deemed to be the date for performance of the agreement and on the said date, Dhanwant Singh appeared with balance sale consideration and marked himself present21) In respect of financial capacity, it has come on record that the sale deeds (Exh. P-15 and Exh. P-16) were executed by Randhir Kaur prior to January 30, 2005 for making payment to the defendants to execute the sale deed as per terms and conditions of the agreement. Therefore, the High Court was not within its jurisdiction to interfere in second appeal only for the reason that on the date of agreement, there was no specific power of attorney in favour of son of the plaintiff, Dhanwant Singh11) The effect of the Constitution Bench judgment in Pankajakshi is that in second appeal, the scope of interference within the Punjab and Haryana High Court would be the same as Code of Civil Procedure existed prior to 1976 amendment. The provisions of Section 41 of the Punjab Act and of Section 100 of the CPC are pari materia.
|
Rajesh Kumar Singh & Ors Vs. The State of Uttar Pradesh & Ors | Constable Drivers, the Appellants participated in the selection test. They were selected and on completion of training they were appointed as Constable Drivers. Seniority list of Constable Drivers was prepared on 14.05.2015. In supersession of Government orders, the State Government in exercise of the power under Section 2 read with Section 46 (11) of the Police Act, 1861 framed Uttar Pradesh Police Motor Transport Unit Subordinate Officers Service Rules, 2015 (hereinafter, the 2015 Rules) to govern the selection, promotion, training, appointment, merit etc. and other conditions of service of the Motor Transport Unit of the Police Department. Posts of Inspector, Motor Transport, Sub-Inspector, Motor Transport, Head Constable, Motor Transport, Constable Driver and Head Constable Driver constitute the cadre of Motor Transport Subordinate Service. The post of Head Constable Driver Motor Transport according to the 2015 Rules, shall be filled up by selection from amongst Head Constables Drivers and Constable Drivers. Aggrieved by the Rules introducing the selection for appointment to the post of Head Constable Motor Transport, the Appellants filed a Writ Petition in the High Court of judicature at Allahabad. By a judgment dated 24.10.2017, the High Court dismissed the Writ Petition. Dissatisfied with the judgment of the High Court, the Appellants are before this Court. 2. Mr. V. Shekhar, learned Senior Counsel appearing for the Appellant submitted that the vertical mobility of Constable Drivers is by promotion as Head Constable Motor Transport and thereafter, Sub-Inspector and Inspector Motor Transport on the basis of seniority. The Appellants who were initially recruited as police Constables went through a selection process for being appointed as Constable Drivers. Introduction of another selection process for the purpose of being appointed as Head Constable Motor Transport by making Constable Drivers and Head Constable Drivers eligible for consideration is arbitrary and violative of Article 14 and 16 of the Constitution of India. He submitted that the Appellants have been stagnating in the post of Constable Drivers for a long period of time. 3. Ms. Garima Prasad, learned counsel appearing for the Respondent State of Uttar Pradesh argued that the post of Constable Driver is a technical post and the posts of Head Constable Motor Transport, Sub-Inspector Motor Transport and Inspector Motor Transport are highly technical. She contended that a Constable has to go through a process of selection to become a Constable Driver. To address the stagnation of the Constable Driver, several posts of Head Constable Drivers have been created. However, for being appointed to the post of Head Constable Motor Transport, Constable Drivers and Head Constable Drivers who are eligible to be considered are required to go through a process of selection. Thereafter, they will be entitled to be considered for promotion as Sub-Inspector Motor Transport and Inspector Motor Transport on the basis of seniority. She argued that there are 12,000 posts of Constable Drivers at present. 2498 posts of Head Constable Drivers have been created to which Constable Drivers are eligible for promotion on the basis of seniority. There are only 283 posts of Head Constables Motor Transport which is a highly technical post which can be filled up by selection from Constable Drivers and Head Constable Drivers. To address the concern of the Head Constable Drivers and Constable Drivers who are not appointed to the post of Head Constable Motor Transport that there are no avenues for promotion, there is a proposal to create 1000 posts of Sub-Inspector Drivers. Head Constable Drivers shall be entitled to be promoted to the post of SubInspector Drivers. 4. The 2015 Rules has a cadre consisting of 9126 Constable Drivers, 1098 Head Constable Drivers, 283 Head Constable Motor Transport, 99 Sub-Inspector Motor Transport and 9 Inspector Motor Transport. Rule 5 (c) which has been challenged by the Appellants in the Writ Petition provides for appointment to the post of Head Constable Motor Transport by selection from amongst Constable Drivers and Head Constable Drivers as per the procedure prescribed in appendix to the Rules. Rule 10 prescribes the procedure for selection and appointment to the post of Head Constable Motor Transport which is also assailed in the Writ Petition. The main grievance of the Appellants is that they have already undergone a selection process for their lateral movement as Constable Drivers. It is impermissible to make them to go through yet another selection process for appointment to the post of Head Constable Motor Transport. According to the Appellants, all Constable Drivers should be eligible to be promoted either as Head Constable Drivers or as Head Constable Motor Transport on the basis of seniority without going through any selection process. Referring to the appendix to the Rules, the Appellants submitted that there is nothing highly technical about the post of Head Constable Motor Transport. 5. It is clear from the structure of the cadre that there are only 283 posts of Head Constable Motor Transport which according to the Government is a highly technical post. Though the said post carries the same pay scale as Head Constable Drivers, lateral movement as Head Constable Motor Transport would provide an opportunity of vertical mobility as Sub-Inspector Motor Transport and Inspector Motor Transport. Addressing the concerns of Drivers, 1098 posts of Head Constable Drivers have been created and there is a proposal to create 1000 posts of Sub-Inspector Drivers. The posts of Head Constable Drivers and Sub-Inspector Drivers are filled up by promotion on the basis of seniority. 6. Rule 5 and 10 of the 2015 Rules are primarily challenged on the ground that the Appellants are forced to undergo a selection process for appointment to the post of Head Constable Motor Transport. The selection process is mandated due to the posts of Head Constable Motor Transport being highly technical. The Rules are neither discriminatory nor arbitrary. Constable Drivers can be promoted on the basis of seniority to Head Constable Drivers. If they desire to be appointed as Head Constable Motor Transport, then they have to go through selection process. No interference with the judgment of the High Court is warranted. | 0[ds]4. The 2015 Rules has a cadre consisting of 9126 Constable Drivers, 1098 Head Constable Drivers, 283 Head Constable Motor Transport, 99 Sub-Inspector Motor Transport and 9 Inspector Motor Transport. Rule 5 (c) which has been challenged by the Appellants in the Writ Petition provides for appointment to the post of Head Constable Motor Transport by selection from amongst Constable Drivers and Head Constable Drivers as per the procedure prescribed in appendix to the Rules. Rule 10 prescribes the procedure for selection and appointment to the post of Head Constable Motor Transport which is also assailed in the Writ Petition. The main grievance of the Appellants is that they have already undergone a selection process for their lateral movement as Constable Drivers. It is impermissible to make them to go through yet another selection process for appointment to the post of Head Constable Motor Transport. According to the Appellants, all Constable Drivers should be eligible to be promoted either as Head Constable Drivers or as Head Constable Motor Transport on the basis of seniority without going through any selection process. Referring to the appendix to the Rules, the Appellants submitted that there is nothing highly technical about the post of Head Constable Motor Transport.5. It is clear from the structure of the cadre that there are only 283 posts of Head Constable Motor Transport which according to the Government is a highly technical post. Though the said post carries the same pay scale as Head Constable Drivers, lateral movement as Head Constable Motor Transport would provide an opportunity of vertical mobility as Sub-Inspector Motor Transport and Inspector Motor Transport. Addressing the concerns of Drivers, 1098 posts of Head Constable Drivers have been created and there is a proposal to create 1000 posts of Sub-Inspector Drivers. The posts of Head Constable Drivers and Sub-Inspector Drivers are filled up by promotion on the basis of seniority.6. Rule 5 and 10 of the 2015 Rules are primarily challenged on the ground that the Appellants are forced to undergo a selection process for appointment to the post of Head Constable Motor Transport. The selection process is mandated due to the posts of Head Constable Motor Transport being highly technical. The Rules are neither discriminatory nor arbitrary. Constable Drivers can be promoted on the basis of seniority to Head Constable Drivers. If they desire to be appointed as Head Constable Motor Transport, then they have to go through selection process. No interference with the judgment of the High Court is warranted. | 0 | 1,121 | 448 | ### 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:
Constable Drivers, the Appellants participated in the selection test. They were selected and on completion of training they were appointed as Constable Drivers. Seniority list of Constable Drivers was prepared on 14.05.2015. In supersession of Government orders, the State Government in exercise of the power under Section 2 read with Section 46 (11) of the Police Act, 1861 framed Uttar Pradesh Police Motor Transport Unit Subordinate Officers Service Rules, 2015 (hereinafter, the 2015 Rules) to govern the selection, promotion, training, appointment, merit etc. and other conditions of service of the Motor Transport Unit of the Police Department. Posts of Inspector, Motor Transport, Sub-Inspector, Motor Transport, Head Constable, Motor Transport, Constable Driver and Head Constable Driver constitute the cadre of Motor Transport Subordinate Service. The post of Head Constable Driver Motor Transport according to the 2015 Rules, shall be filled up by selection from amongst Head Constables Drivers and Constable Drivers. Aggrieved by the Rules introducing the selection for appointment to the post of Head Constable Motor Transport, the Appellants filed a Writ Petition in the High Court of judicature at Allahabad. By a judgment dated 24.10.2017, the High Court dismissed the Writ Petition. Dissatisfied with the judgment of the High Court, the Appellants are before this Court. 2. Mr. V. Shekhar, learned Senior Counsel appearing for the Appellant submitted that the vertical mobility of Constable Drivers is by promotion as Head Constable Motor Transport and thereafter, Sub-Inspector and Inspector Motor Transport on the basis of seniority. The Appellants who were initially recruited as police Constables went through a selection process for being appointed as Constable Drivers. Introduction of another selection process for the purpose of being appointed as Head Constable Motor Transport by making Constable Drivers and Head Constable Drivers eligible for consideration is arbitrary and violative of Article 14 and 16 of the Constitution of India. He submitted that the Appellants have been stagnating in the post of Constable Drivers for a long period of time. 3. Ms. Garima Prasad, learned counsel appearing for the Respondent State of Uttar Pradesh argued that the post of Constable Driver is a technical post and the posts of Head Constable Motor Transport, Sub-Inspector Motor Transport and Inspector Motor Transport are highly technical. She contended that a Constable has to go through a process of selection to become a Constable Driver. To address the stagnation of the Constable Driver, several posts of Head Constable Drivers have been created. However, for being appointed to the post of Head Constable Motor Transport, Constable Drivers and Head Constable Drivers who are eligible to be considered are required to go through a process of selection. Thereafter, they will be entitled to be considered for promotion as Sub-Inspector Motor Transport and Inspector Motor Transport on the basis of seniority. She argued that there are 12,000 posts of Constable Drivers at present. 2498 posts of Head Constable Drivers have been created to which Constable Drivers are eligible for promotion on the basis of seniority. There are only 283 posts of Head Constables Motor Transport which is a highly technical post which can be filled up by selection from Constable Drivers and Head Constable Drivers. To address the concern of the Head Constable Drivers and Constable Drivers who are not appointed to the post of Head Constable Motor Transport that there are no avenues for promotion, there is a proposal to create 1000 posts of Sub-Inspector Drivers. Head Constable Drivers shall be entitled to be promoted to the post of SubInspector Drivers. 4. The 2015 Rules has a cadre consisting of 9126 Constable Drivers, 1098 Head Constable Drivers, 283 Head Constable Motor Transport, 99 Sub-Inspector Motor Transport and 9 Inspector Motor Transport. Rule 5 (c) which has been challenged by the Appellants in the Writ Petition provides for appointment to the post of Head Constable Motor Transport by selection from amongst Constable Drivers and Head Constable Drivers as per the procedure prescribed in appendix to the Rules. Rule 10 prescribes the procedure for selection and appointment to the post of Head Constable Motor Transport which is also assailed in the Writ Petition. The main grievance of the Appellants is that they have already undergone a selection process for their lateral movement as Constable Drivers. It is impermissible to make them to go through yet another selection process for appointment to the post of Head Constable Motor Transport. According to the Appellants, all Constable Drivers should be eligible to be promoted either as Head Constable Drivers or as Head Constable Motor Transport on the basis of seniority without going through any selection process. Referring to the appendix to the Rules, the Appellants submitted that there is nothing highly technical about the post of Head Constable Motor Transport. 5. It is clear from the structure of the cadre that there are only 283 posts of Head Constable Motor Transport which according to the Government is a highly technical post. Though the said post carries the same pay scale as Head Constable Drivers, lateral movement as Head Constable Motor Transport would provide an opportunity of vertical mobility as Sub-Inspector Motor Transport and Inspector Motor Transport. Addressing the concerns of Drivers, 1098 posts of Head Constable Drivers have been created and there is a proposal to create 1000 posts of Sub-Inspector Drivers. The posts of Head Constable Drivers and Sub-Inspector Drivers are filled up by promotion on the basis of seniority. 6. Rule 5 and 10 of the 2015 Rules are primarily challenged on the ground that the Appellants are forced to undergo a selection process for appointment to the post of Head Constable Motor Transport. The selection process is mandated due to the posts of Head Constable Motor Transport being highly technical. The Rules are neither discriminatory nor arbitrary. Constable Drivers can be promoted on the basis of seniority to Head Constable Drivers. If they desire to be appointed as Head Constable Motor Transport, then they have to go through selection process. No interference with the judgment of the High Court is warranted.
### Response:
0
### Explanation:
4. The 2015 Rules has a cadre consisting of 9126 Constable Drivers, 1098 Head Constable Drivers, 283 Head Constable Motor Transport, 99 Sub-Inspector Motor Transport and 9 Inspector Motor Transport. Rule 5 (c) which has been challenged by the Appellants in the Writ Petition provides for appointment to the post of Head Constable Motor Transport by selection from amongst Constable Drivers and Head Constable Drivers as per the procedure prescribed in appendix to the Rules. Rule 10 prescribes the procedure for selection and appointment to the post of Head Constable Motor Transport which is also assailed in the Writ Petition. The main grievance of the Appellants is that they have already undergone a selection process for their lateral movement as Constable Drivers. It is impermissible to make them to go through yet another selection process for appointment to the post of Head Constable Motor Transport. According to the Appellants, all Constable Drivers should be eligible to be promoted either as Head Constable Drivers or as Head Constable Motor Transport on the basis of seniority without going through any selection process. Referring to the appendix to the Rules, the Appellants submitted that there is nothing highly technical about the post of Head Constable Motor Transport.5. It is clear from the structure of the cadre that there are only 283 posts of Head Constable Motor Transport which according to the Government is a highly technical post. Though the said post carries the same pay scale as Head Constable Drivers, lateral movement as Head Constable Motor Transport would provide an opportunity of vertical mobility as Sub-Inspector Motor Transport and Inspector Motor Transport. Addressing the concerns of Drivers, 1098 posts of Head Constable Drivers have been created and there is a proposal to create 1000 posts of Sub-Inspector Drivers. The posts of Head Constable Drivers and Sub-Inspector Drivers are filled up by promotion on the basis of seniority.6. Rule 5 and 10 of the 2015 Rules are primarily challenged on the ground that the Appellants are forced to undergo a selection process for appointment to the post of Head Constable Motor Transport. The selection process is mandated due to the posts of Head Constable Motor Transport being highly technical. The Rules are neither discriminatory nor arbitrary. Constable Drivers can be promoted on the basis of seniority to Head Constable Drivers. If they desire to be appointed as Head Constable Motor Transport, then they have to go through selection process. No interference with the judgment of the High Court is warranted.
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State Of Orissa Vs. Durga Charan Das | made from among the section heads of the department concerned, the selection under the relevant Orissa Rule is made from a larger class of public servants indicated therein. We are not satisfied that this contention is well-founded. In the present proceedings, besides quoting the relevant rules in the petition, the respondent has led no further evidence to show what exactly is meant by the section heads of the department concerned mentioned in rule 2(1) of the Bihar Rules; and in the absence of any material, it would be difficult for us to accept Sri Andleys argument that the conditions for promotion prescribed by rule 2(1) of the Bihar Rules are substantially or radically different from the conditions prescribed by the relevant Orissa Rules, and thereby caused prejudice to the respondent within the meaning of rule 6 of the Protection Rules.Sri Andley also suggested that under the relevant Bihar Rule, promotion would go entirely by seniority, whereas under the Orissa Rule, it is on considerations of seniority coupled with merit. We do not think Sri Andley is right in assuming that selection under rule 2(1) of the Bihar Rules could have been intended to be made only by reference to seniority. The very concept of selection involves the consideration of seniority coupled with merit, which is generally described as the seniority-cum-merit. Besides, that aspect of the matter does not appear to have been argued before the High Court and in the absence of any material of the point and in the absence of any decision by the High Court on it, we cannot entertain this contention. 12. We may incidentally point out though in his petition, the respondent has made some vague allegations suggesting that the appellant did not deliberately appoint him in permanent vacancy of the Registrars post, he has produced no satisfactory evidence to support the said plea. On the other hand, it appears that in 1954, when the case of the respondent was examined by the Public Service Commission, it made a definite recommendation that he was fit or the post of Registrar for stopgap arrangements only, and it specifically added that he should not be given preference over those whose positions are higher up in the list even for vacancies exceeding a period of four months. This recommendations clearly indicates that the character roll of the respondent was not as satisfactory as it should have been; and so the argument that his appointment to the post of Registrar and confirmation in it were unduly delayed, loses all significance. 13. Sri Andley also attempted to argue that the decision of the High Court could be justified because, in law, the treatment meted out to the respondent can be properly characterized as discriminatory. In support of this plea, Sri Andley referred us to the case of Sri Beuria. It appears that Sri Beuria who was also transferred from Bihar to Orissa as a head assistant, was held entitled to get the pay of Registrar from 1 December, 1948, and this order which was passed on 12 October, 1960 was given retrospective effect from 1 December, 1948. It does appear that this order was passed on the basis that Sri Beuria was entitled to the salary of a Registrar, because Sri Prasad who was junior to him in Bihar was promoted to the rank of Registrar on 1 December, 1948. We do not see how this single case can be pressed into service by Sri Andley in support of his argument that there has been illegal discrimination against the respondent. On the view we have taken about the scope and effect of rule 6 of the Protection Rules, what the appellant has done in regard to Sri Beuria must prima facie, be held to be outside the rule, but the fact that in one case the appellant might have misconstrued the scope and effect of rule 6 of the Protection Rule, would not justify a claim by the respondent that the rule should be similarly misconstrued in all cases thereafter. Whether or not the respondent is entitled to claim his pension on the footing that he should be deemed to have been promoted and confirmed as Registrar on 23 August, 1956 must be determined in the light of what we regard to be the true scope and effect of rule 6 of the Protection Rules. What the appellant did in Sri Beurias case has no relevance in that behalf.Besides, if the respondent was serious about his plea about discrimination, he should have adduced more satisfactory evidence in support of such a plea. No evidence has been led in the present proceedings and no other case like the case of Sri Beuria has been cited. If the respondents plea of discrimination was accepted on the strength of the single case of Sri Beuria; it would follow that because the appellant placed a misconstruction on the relevant rule, it is bond to give effect to the said misconstruction for all times; that, plainly, cannot be said to be sound. 14. When we heard this appeal, we enquired from Sri Bindra whether the appellant was justified in pressing the present appeal against a single public servant like the respondent, particularly in view of the fact that it had treated Sri Beurias case on the basis of the interpretation of rule 6 of the Protection Rules on which the respondent relies. We were told that the appellant was anxious to have a decision from this Court on this point, because the present case would serve as test case and may be relied upon as a precedent by several public servants in Orissa who belong to the category of the respondent. In fact, in granting the certificate, the High Court has observed that the question raised is undoubtedly of public importance, because it will affect many other Government servants of the old Province of Bihar and Orissa who were permanently transferred to Orissa when that province was separated from Bihar on 1 April, 1936. 15. | 1[ds]It is well-known that promotion to a selection post is not a matter of right which can be claimed merely by seniority. Normally, in considering the question of a public servants claim for promotion to a selection post, his seniority and his merits have to be considered; and so, it seems to us very difficult to accept the view taken by the High Court that in rule 6 of the Protection Rules, a guarantee can be inferred in regard to promotion to a selection post. What the rule guarantees is that the public servants who were transferred to Orissa will not suffer in regard to their pay, allowances, leave and pension; and these respective conditions do not seem to include a claim for promotion to a higher selection post; and indeed, it seems very unlikely that any protection could ever have been reasonably intended to be given in regard to promotion to a selection post.It is true that in, 1939, a question arose whether the prospects of promotion of transferred officers were protected by the Protection Rules, and the Joint Public Service Commission for Bihar, Orissa and the Central Provinces, which was functioning in 1939, took the view that the said rules must be interpreted to require that an officer transferred from Bihar and Orissa to Orissa shall have prospects of promotion as good as he would have had in Bihar and Orissa, and when promoted shall draw pay not less than that which he would have drawn if so promoted in Bihar and OrissaIn our opinion, there can be no doubt that the interpretation placed by the Joint Public Service Commission on the Protection Rules, or the opinion expressed by the Governor of Orissa, though perhaps relevant, cannot have a material bearing on the construction of the rule in question when the matter reaches the Court. It is for the Court to consider the rule fairly, taking into account the spirit underlying the rule and the object intended to be achieved by it. Even the High Court has observed that"though, ordinarily, the right of promotion and confirmation in particular posts may be not be said to have been expressly protected by the Protection Rules, nevertheless, where these have a direct bearing either on the pay or the pension of a transferred officer, the protection must be deemed to cover these aspects also, having regard to the letter and spirit of the Protection Rules."This recommendations clearly indicates that the character roll of the respondent was not as satisfactory as it should have been; and so the argument that his appointment to the post of Registrar and confirmation in it were unduly delayed, loses all significanceNo evidence has been led in the present proceedings and no other case like the case of Sri Beuria has been cited. If the respondents plea of discrimination was accepted on the strength of the single case of Sri Beuria; it would follow that because the appellant placed a misconstruction on the relevant rule, it is bond to give effect to the said misconstruction for all times; that, plainly, cannot be said to be soundWhen we heard this appeal, we enquired from Sri Bindra whether the appellant was justified in pressing the present appeal against a single public servant like the respondent, particularly in view of the fact that it had treated Sri Beurias case on the basis of the interpretation of rule 6 of the Protection Rules on which the respondent relies. We were told that the appellant was anxious to have a decision from this Court on this point, because the present case would serve as test case and may be relied upon as a precedent by several public servants in Orissa who belong to the category of the respondent. In fact, in granting the certificate, the High Court has observed that the question raised is undoubtedly of public importance, because it will affect many other Government servants of the old Province of Bihar and Orissa who were permanently transferred to Orissa when that province was separated from Bihar on 1 April, 1936. | 1 | 4,114 | 740 | ### 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:
made from among the section heads of the department concerned, the selection under the relevant Orissa Rule is made from a larger class of public servants indicated therein. We are not satisfied that this contention is well-founded. In the present proceedings, besides quoting the relevant rules in the petition, the respondent has led no further evidence to show what exactly is meant by the section heads of the department concerned mentioned in rule 2(1) of the Bihar Rules; and in the absence of any material, it would be difficult for us to accept Sri Andleys argument that the conditions for promotion prescribed by rule 2(1) of the Bihar Rules are substantially or radically different from the conditions prescribed by the relevant Orissa Rules, and thereby caused prejudice to the respondent within the meaning of rule 6 of the Protection Rules.Sri Andley also suggested that under the relevant Bihar Rule, promotion would go entirely by seniority, whereas under the Orissa Rule, it is on considerations of seniority coupled with merit. We do not think Sri Andley is right in assuming that selection under rule 2(1) of the Bihar Rules could have been intended to be made only by reference to seniority. The very concept of selection involves the consideration of seniority coupled with merit, which is generally described as the seniority-cum-merit. Besides, that aspect of the matter does not appear to have been argued before the High Court and in the absence of any material of the point and in the absence of any decision by the High Court on it, we cannot entertain this contention. 12. We may incidentally point out though in his petition, the respondent has made some vague allegations suggesting that the appellant did not deliberately appoint him in permanent vacancy of the Registrars post, he has produced no satisfactory evidence to support the said plea. On the other hand, it appears that in 1954, when the case of the respondent was examined by the Public Service Commission, it made a definite recommendation that he was fit or the post of Registrar for stopgap arrangements only, and it specifically added that he should not be given preference over those whose positions are higher up in the list even for vacancies exceeding a period of four months. This recommendations clearly indicates that the character roll of the respondent was not as satisfactory as it should have been; and so the argument that his appointment to the post of Registrar and confirmation in it were unduly delayed, loses all significance. 13. Sri Andley also attempted to argue that the decision of the High Court could be justified because, in law, the treatment meted out to the respondent can be properly characterized as discriminatory. In support of this plea, Sri Andley referred us to the case of Sri Beuria. It appears that Sri Beuria who was also transferred from Bihar to Orissa as a head assistant, was held entitled to get the pay of Registrar from 1 December, 1948, and this order which was passed on 12 October, 1960 was given retrospective effect from 1 December, 1948. It does appear that this order was passed on the basis that Sri Beuria was entitled to the salary of a Registrar, because Sri Prasad who was junior to him in Bihar was promoted to the rank of Registrar on 1 December, 1948. We do not see how this single case can be pressed into service by Sri Andley in support of his argument that there has been illegal discrimination against the respondent. On the view we have taken about the scope and effect of rule 6 of the Protection Rules, what the appellant has done in regard to Sri Beuria must prima facie, be held to be outside the rule, but the fact that in one case the appellant might have misconstrued the scope and effect of rule 6 of the Protection Rule, would not justify a claim by the respondent that the rule should be similarly misconstrued in all cases thereafter. Whether or not the respondent is entitled to claim his pension on the footing that he should be deemed to have been promoted and confirmed as Registrar on 23 August, 1956 must be determined in the light of what we regard to be the true scope and effect of rule 6 of the Protection Rules. What the appellant did in Sri Beurias case has no relevance in that behalf.Besides, if the respondent was serious about his plea about discrimination, he should have adduced more satisfactory evidence in support of such a plea. No evidence has been led in the present proceedings and no other case like the case of Sri Beuria has been cited. If the respondents plea of discrimination was accepted on the strength of the single case of Sri Beuria; it would follow that because the appellant placed a misconstruction on the relevant rule, it is bond to give effect to the said misconstruction for all times; that, plainly, cannot be said to be sound. 14. When we heard this appeal, we enquired from Sri Bindra whether the appellant was justified in pressing the present appeal against a single public servant like the respondent, particularly in view of the fact that it had treated Sri Beurias case on the basis of the interpretation of rule 6 of the Protection Rules on which the respondent relies. We were told that the appellant was anxious to have a decision from this Court on this point, because the present case would serve as test case and may be relied upon as a precedent by several public servants in Orissa who belong to the category of the respondent. In fact, in granting the certificate, the High Court has observed that the question raised is undoubtedly of public importance, because it will affect many other Government servants of the old Province of Bihar and Orissa who were permanently transferred to Orissa when that province was separated from Bihar on 1 April, 1936. 15.
### Response:
1
### Explanation:
It is well-known that promotion to a selection post is not a matter of right which can be claimed merely by seniority. Normally, in considering the question of a public servants claim for promotion to a selection post, his seniority and his merits have to be considered; and so, it seems to us very difficult to accept the view taken by the High Court that in rule 6 of the Protection Rules, a guarantee can be inferred in regard to promotion to a selection post. What the rule guarantees is that the public servants who were transferred to Orissa will not suffer in regard to their pay, allowances, leave and pension; and these respective conditions do not seem to include a claim for promotion to a higher selection post; and indeed, it seems very unlikely that any protection could ever have been reasonably intended to be given in regard to promotion to a selection post.It is true that in, 1939, a question arose whether the prospects of promotion of transferred officers were protected by the Protection Rules, and the Joint Public Service Commission for Bihar, Orissa and the Central Provinces, which was functioning in 1939, took the view that the said rules must be interpreted to require that an officer transferred from Bihar and Orissa to Orissa shall have prospects of promotion as good as he would have had in Bihar and Orissa, and when promoted shall draw pay not less than that which he would have drawn if so promoted in Bihar and OrissaIn our opinion, there can be no doubt that the interpretation placed by the Joint Public Service Commission on the Protection Rules, or the opinion expressed by the Governor of Orissa, though perhaps relevant, cannot have a material bearing on the construction of the rule in question when the matter reaches the Court. It is for the Court to consider the rule fairly, taking into account the spirit underlying the rule and the object intended to be achieved by it. Even the High Court has observed that"though, ordinarily, the right of promotion and confirmation in particular posts may be not be said to have been expressly protected by the Protection Rules, nevertheless, where these have a direct bearing either on the pay or the pension of a transferred officer, the protection must be deemed to cover these aspects also, having regard to the letter and spirit of the Protection Rules."This recommendations clearly indicates that the character roll of the respondent was not as satisfactory as it should have been; and so the argument that his appointment to the post of Registrar and confirmation in it were unduly delayed, loses all significanceNo evidence has been led in the present proceedings and no other case like the case of Sri Beuria has been cited. If the respondents plea of discrimination was accepted on the strength of the single case of Sri Beuria; it would follow that because the appellant placed a misconstruction on the relevant rule, it is bond to give effect to the said misconstruction for all times; that, plainly, cannot be said to be soundWhen we heard this appeal, we enquired from Sri Bindra whether the appellant was justified in pressing the present appeal against a single public servant like the respondent, particularly in view of the fact that it had treated Sri Beurias case on the basis of the interpretation of rule 6 of the Protection Rules on which the respondent relies. We were told that the appellant was anxious to have a decision from this Court on this point, because the present case would serve as test case and may be relied upon as a precedent by several public servants in Orissa who belong to the category of the respondent. In fact, in granting the certificate, the High Court has observed that the question raised is undoubtedly of public importance, because it will affect many other Government servants of the old Province of Bihar and Orissa who were permanently transferred to Orissa when that province was separated from Bihar on 1 April, 1936.
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SANJAY PRAKASH & ORS Vs. UNION OF INDIA & ORS | any challenge to a particular qualification of any individual candidate rather their challenge was that without scrutiny large number of candidates, who were claiming qualification equivalent to CCC Certificate have been included without there being any scrutiny and without they fulfilling the qualification. The case of the writ petitioners was that the computer certificate issued by the private organisations and unregistered societies, who neither were recognised by the State Government or the Central Government or by any statutory body could not issue any certificate. We may further notice that the Division Bench also noticed the above argument of non-impleadment of all the selected candidates in the writ petition but the Division Bench has not based its judgment on the above argument. When the inclusion in the select list of large number of candidates is on the basis of an arbitrary or illegal process, the aggrieved parties can complain and in such cases necessity of impleadment of each and every person cannot be insisted. Furthermore, when select list contained names of 2211 candidates, it becomes unnecessary to implead every candidate in view of the nature of the challenge, which was levelled in the writ petition. Moreover, few selected candidates were also impleaded in the writ petitions in representative capacity. 8. While dealing with the present set of applications, I am not examining the legality of the judgment assailed on the ground of non-joinder of necessary parties. The applicants have approached this Court for being heard on the conflict points involved in these petitions. Thus the question I will have to examine is as to whether they can be given access to this set of petitions as parties. I shall be addressing only the plea for impleadment or intervention of the applicants. 9. In the event the petitions for Special Leave to Appeal are allowed and the plea of the petitioners for excluding deputationists from the senior administrative posts of the respective CAPFs eventually come to be accepted, it would obviously have an impact on the upper reaches of the service avenues of the IPS officers. The prayers made in SLP(C) No. 12158 of 2020 is quoted below for proper understanding of the scope of the petitions for Special Leave to Appeal:- Main Prayer It is therefore, most respectfully prayed that this Honble Court may graciously be pleased to: a) Grant Special Leave to Appeal to the petitioner against the impugned judgment and final order dated 27.07.2020 passed by the Honble High Court of Delhi at New Delhi in W.P.(C) No. 12751/2019; and b) Pass any other and further order or orders as this Honble Court may deem fit and proper in the facts and circumstances of the case. Prayers for Interim Relief: It is, therefore, most respectfully prayed that this Honble Court may graciously be pleased to: a. Grant stay of appointment of persons by way of deputation to any of the cadre posts of CISF Group A Executive Cadre; b. Grant ad interim ex-parte stay of the impugned judgment and final order dated 27.07.2020 passed by the Honble High Court of Delhi at New Delhi in W.P.(C) No. 12751/2019; and c. Pass any other and further order or orders as this Honble Court may deem fit and proper in the facts and circumstances of the case. Similar are the prayers in the other petitions for special leave to appeal. Before the High Court, the petitioners had mainly relied on an earlier decision of this Court in the case of Union of India vs Harananda [(2019) 14 SCC 126] . In this judgment, inter-alia, it was held that Railway Protection Force was to be constituted as Organised Group A Civil Service. 10. Argument advanced on behalf of the petitioners is that the applicants are not necessary or proper parties in this set of proceedings. The petitioners are seeking directions for amendments of a set of existing Rules and office memoranda, which provide for, inter-alia, filling up of certain percentage of senior administrative grade posts by deputation. Relief is sought here against the concerned arm of the Union Government over framing of service rules that would have the effect of, among other change in service structure, entail IPS officers from holding the senior positions of the respective Forces on deputation. But as I have already observed, by filing these applications, the applicants are volunteering their participation in these petitions to highlight their grievances. Thus the ratio of A. Janardhana (supra), which dealt with the aspects of leaving out a set of persons from whose interest could be affected by the outcome of a case, cannot be applied in this set of proceedings. The applicants claim for entry to these proceedings is founded on their possibility of being engaged on deputation to the senior administrative posts of CAPFs being adversely affected. Objections to their presence in these proceedings are mainly on two grounds. First is that the petitioners are questioning certain actions of the Government pertaining to clogging of promotional avenues of in-service officers of the CAPFs. In the event such plea of the petitioners is accepted by this Court, then the right of an IPS Officer to be in deputation will lapse or be largely impaired. Such deputation provisions do not originate from general principles of being placed on deputation, which is a recognized practise guiding organized services. Placing an IPS Officer on deputation in these Forces are integrally linked to the service rules of the respective Forces. Moreover, there is provision for deputation of IPS Officers as per the IPS Cadre Rules, 1954. Reference has been made to the schedule to Central Industrial Security Force (Group A Executive Cadre) Recruitment Rules, 2002, Rule 13 of the SSB Rules, 2009, schedule to the Central Reserve Police Border Force Group A General Duty Officers Recruitment Rules and Section 12 of ITBP Act, 1992 and schedule to the Border Security Force (Seniority, Promotion and Superannuation of Officers) Rules, 1978. These instruments provide for recruitment by deputation to the senior administrative posts of the CAPFs. | 1[ds]Prabodh Verma And Ors. vs State of Uttar Pradesh & Ors.[1984 (4) SCC 251 ] has been relied upon.In this Judgment, it has been, inter-alia held:-The real question before us, therefore, is the correctness of the decision of the High Court in the Sangh Case. Before we address ourselves to this question, we would like to point out that the writ petition filed by the Sangh suffered from two serious, though not incurable defects. The first defect was that of non-joinder of necessary parties. The only respondents to the Sanghs petition were the State of Uttar Pradesh and its concerned officers. Those who were vitally concerned, namely, the reserve pool teachers, were not made parties-not even by joining some of them in a representative capacity, considering that their number was too large for all of them to be joined individually as respondents. The matter, therefore, came to be decided in their absence. A High Court ought not to decide a writ petition under Article 226 of the Constitution without the persons who would be vitally affected by its judgment being before it as respondents or at least by some of them being before it as respondents in a representative capacity if their number is too large, and, therefore, the Allahabad High Court ought not to have proceeded to hear and dispose of the Sanghs writ petition without insisting upon the reserve pool teachers being made respondents to that writ petition, or at least some of them being made respondents in a representative capacity, and had the petitioners refused to do so, ought to have dismissed that petition for non-joinder of necessary parties.6. Similar view has been expressed by this Court in the case of A. Janardhana vs Union of India [1983 (3) SCC 601 ], though, in this case, a slightly different approach has been taken. It has been held in this authority:-It was contended that those members who have scored a march over the appellant in 1974 seniority list having not been impleaded as respondents, no relief can be given to the appellant. In the writ petition filed in the High Court, there were in all 418 respondents. Amongst them, first two were Union of India and Engineer-in-Chief, Army Headquarters, and the rest presumably must be those shown senior to the appellant. By an order made by the High Court, the names of Respondents 3 to 418 were deleted since notices could not be served on them on account of the difficulty in ascertaining their present addresses on their transfers subsequent to the filing of these petitions. However, it clearly appears that some direct recruits led by Mr Chitkara appeared through counsel Shri Murlidhar Rao and had made the submissions on behalf of the direct recruits. Further an application was made to this court by nine direct recruits led by Shri T. Sudhakar for being impleaded as parties, which application was granted and Mr P.R. Mridul, learned Senior Counsel appeared for them. Therefore, the case of direct recruits has not gone unrepresented and the contention can be negatived on this short ground. However, there is a more cogent reason why we would not countenance this contention. In this case, appellant does not claim seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents. We may in this connection refer to G.M., South Central Railway, Secundrabad v. A.V.R. Siddhanti. Repelling a contention on behalf of the appellant that the writ petitioners did not implead about 120 employees who were likely to be affected by the decision in the case, this court observed that [SCC para 15, p. 341 : SCC (L&S) p. 296] the respondents (original petitioners) are impeaching the validity of those policy decisions on the ground of their being violative of Articles 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating seniority of government servants is assailed. In such proceedings, the necessary parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the court. Approaching the matter from this angle, it may be noticed that relief is sought only against the Union of India and the concerned Ministry and not against any individual nor any seniority is claimed by anyone individual against another particular individual and therefore, even if technically the direct recruits were not before the court, the petition is not likely to fail on that ground. The contention of the respondents for this additional reason must also be negatived.8. While dealing with the present set of applications, I am not examining the legality of the judgment assailed on the ground of non-joinder of necessary parties. The applicants have approached this Court for being heard on the conflict points involved in these petitions.9. In the event the petitions for Special Leave to Appeal are allowed and the plea of the petitioners for excluding deputationists from the senior administrative posts of the respective CAPFs eventually come to be accepted, it would obviously have an impact on the upper reaches of the service avenues of the IPS officers.Similar are the prayers in the other petitions for special leave to appeal. Before the High Court, the petitioners had mainly relied on an earlier decision of this Court in the case of Union of India vs Harananda [(2019) 14 SCC 126] . In this judgment, inter-alia, it was held that Railway Protection Force was to be constituted as Organised Group A Civil Service.But as I have already observed, by filing these applications, the applicants are volunteering their participation in these petitions to highlight their grievances. Thus the ratio of A. Janardhana (supra), which dealt with the aspects of leaving out a set of persons from whose interest could be affected by the outcome of a case, cannot be applied in this set of proceedings. The applicants claim for entry to these proceedings is founded on their possibility of being engaged on deputation to the senior administrative posts of CAPFs being adversely affected. Objections to their presence in these proceedings are mainly on two grounds. First is that the petitioners are questioning certain actions of the Government pertaining to clogging of promotional avenues of in-service officers of the CAPFs. In the event such plea of the petitioners is accepted by this Court, then the right of an IPS Officer to be in deputation will lapse or be largely impaired. Such deputation provisions do not originate from general principles of being placed on deputation, which is a recognized practise guiding organized services. Placing an IPS Officer on deputation in these Forces are integrally linked to the service rules of the respective Forces. Moreover, there is provision for deputation of IPS Officers as per the IPS Cadre Rules, 1954. Reference has been made to the schedule to Central Industrial Security Force (Group A Executive Cadre) Recruitment Rules, 2002, Rule 13 of the SSB Rules, 2009, schedule to the Central Reserve Police Border Force Group A General Duty Officers Recruitment Rules and Section 12 of ITBP Act, 1992 and schedule to the Border Security Force (Seniority, Promotion and Superannuation of Officers) Rules, 1978. These instruments provide for recruitment by deputation to the senior administrative posts of the CAPFs.12. Objection was made as regards as intervention of the Indian Police Service Central Association. The Association have not filed any application for impleadment or intervention before the High Court. I have referred to paragraph 13 of the impugned judgment in this regard. Their intervention was not allowed but they were heard. I further find from the judgment that they were actually heard. They have argued before me on the point of impleadment on the basis of having filed caveat application. But while as caveators they have the right of being notified of the lodging of the SLPs in terms of Clause 2 of Order XV of the Supreme Court Rules, 2013, mere filing of caveat application cannot grant them an entry into a Petition for Special Leave to Appeal. Filing of Caveat by itself does not entitle them to be treated as a party to the proceeding. | 1 | 3,520 | 1,600 | ### 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:
any challenge to a particular qualification of any individual candidate rather their challenge was that without scrutiny large number of candidates, who were claiming qualification equivalent to CCC Certificate have been included without there being any scrutiny and without they fulfilling the qualification. The case of the writ petitioners was that the computer certificate issued by the private organisations and unregistered societies, who neither were recognised by the State Government or the Central Government or by any statutory body could not issue any certificate. We may further notice that the Division Bench also noticed the above argument of non-impleadment of all the selected candidates in the writ petition but the Division Bench has not based its judgment on the above argument. When the inclusion in the select list of large number of candidates is on the basis of an arbitrary or illegal process, the aggrieved parties can complain and in such cases necessity of impleadment of each and every person cannot be insisted. Furthermore, when select list contained names of 2211 candidates, it becomes unnecessary to implead every candidate in view of the nature of the challenge, which was levelled in the writ petition. Moreover, few selected candidates were also impleaded in the writ petitions in representative capacity. 8. While dealing with the present set of applications, I am not examining the legality of the judgment assailed on the ground of non-joinder of necessary parties. The applicants have approached this Court for being heard on the conflict points involved in these petitions. Thus the question I will have to examine is as to whether they can be given access to this set of petitions as parties. I shall be addressing only the plea for impleadment or intervention of the applicants. 9. In the event the petitions for Special Leave to Appeal are allowed and the plea of the petitioners for excluding deputationists from the senior administrative posts of the respective CAPFs eventually come to be accepted, it would obviously have an impact on the upper reaches of the service avenues of the IPS officers. The prayers made in SLP(C) No. 12158 of 2020 is quoted below for proper understanding of the scope of the petitions for Special Leave to Appeal:- Main Prayer It is therefore, most respectfully prayed that this Honble Court may graciously be pleased to: a) Grant Special Leave to Appeal to the petitioner against the impugned judgment and final order dated 27.07.2020 passed by the Honble High Court of Delhi at New Delhi in W.P.(C) No. 12751/2019; and b) Pass any other and further order or orders as this Honble Court may deem fit and proper in the facts and circumstances of the case. Prayers for Interim Relief: It is, therefore, most respectfully prayed that this Honble Court may graciously be pleased to: a. Grant stay of appointment of persons by way of deputation to any of the cadre posts of CISF Group A Executive Cadre; b. Grant ad interim ex-parte stay of the impugned judgment and final order dated 27.07.2020 passed by the Honble High Court of Delhi at New Delhi in W.P.(C) No. 12751/2019; and c. Pass any other and further order or orders as this Honble Court may deem fit and proper in the facts and circumstances of the case. Similar are the prayers in the other petitions for special leave to appeal. Before the High Court, the petitioners had mainly relied on an earlier decision of this Court in the case of Union of India vs Harananda [(2019) 14 SCC 126] . In this judgment, inter-alia, it was held that Railway Protection Force was to be constituted as Organised Group A Civil Service. 10. Argument advanced on behalf of the petitioners is that the applicants are not necessary or proper parties in this set of proceedings. The petitioners are seeking directions for amendments of a set of existing Rules and office memoranda, which provide for, inter-alia, filling up of certain percentage of senior administrative grade posts by deputation. Relief is sought here against the concerned arm of the Union Government over framing of service rules that would have the effect of, among other change in service structure, entail IPS officers from holding the senior positions of the respective Forces on deputation. But as I have already observed, by filing these applications, the applicants are volunteering their participation in these petitions to highlight their grievances. Thus the ratio of A. Janardhana (supra), which dealt with the aspects of leaving out a set of persons from whose interest could be affected by the outcome of a case, cannot be applied in this set of proceedings. The applicants claim for entry to these proceedings is founded on their possibility of being engaged on deputation to the senior administrative posts of CAPFs being adversely affected. Objections to their presence in these proceedings are mainly on two grounds. First is that the petitioners are questioning certain actions of the Government pertaining to clogging of promotional avenues of in-service officers of the CAPFs. In the event such plea of the petitioners is accepted by this Court, then the right of an IPS Officer to be in deputation will lapse or be largely impaired. Such deputation provisions do not originate from general principles of being placed on deputation, which is a recognized practise guiding organized services. Placing an IPS Officer on deputation in these Forces are integrally linked to the service rules of the respective Forces. Moreover, there is provision for deputation of IPS Officers as per the IPS Cadre Rules, 1954. Reference has been made to the schedule to Central Industrial Security Force (Group A Executive Cadre) Recruitment Rules, 2002, Rule 13 of the SSB Rules, 2009, schedule to the Central Reserve Police Border Force Group A General Duty Officers Recruitment Rules and Section 12 of ITBP Act, 1992 and schedule to the Border Security Force (Seniority, Promotion and Superannuation of Officers) Rules, 1978. These instruments provide for recruitment by deputation to the senior administrative posts of the CAPFs.
### Response:
1
### Explanation:
made the submissions on behalf of the direct recruits. Further an application was made to this court by nine direct recruits led by Shri T. Sudhakar for being impleaded as parties, which application was granted and Mr P.R. Mridul, learned Senior Counsel appeared for them. Therefore, the case of direct recruits has not gone unrepresented and the contention can be negatived on this short ground. However, there is a more cogent reason why we would not countenance this contention. In this case, appellant does not claim seniority over any particular individual in the background of any particular fact controverted by that person against whom the claim is made. The contention is that criteria adopted by the Union Government in drawing up the impugned seniority list are invalid and illegal and the relief is claimed against the Union Government restraining it from upsetting or quashing the already drawn up valid list and for quashing the impugned seniority list. Thus the relief is claimed against the Union Government and not against any particular individual. In this background, we consider it unnecessary to have all direct recruits to be impleaded as respondents. We may in this connection refer to G.M., South Central Railway, Secundrabad v. A.V.R. Siddhanti. Repelling a contention on behalf of the appellant that the writ petitioners did not implead about 120 employees who were likely to be affected by the decision in the case, this court observed that [SCC para 15, p. 341 : SCC (L&S) p. 296] the respondents (original petitioners) are impeaching the validity of those policy decisions on the ground of their being violative of Articles 14 and 16 of the Constitution. The proceedings are analogous to those in which the constitutionality of a statutory rule regulating seniority of government servants is assailed. In such proceedings, the necessary parties to be impleaded are those against whom the relief is sought, and in whose absence no effective decision can be rendered by the court. Approaching the matter from this angle, it may be noticed that relief is sought only against the Union of India and the concerned Ministry and not against any individual nor any seniority is claimed by anyone individual against another particular individual and therefore, even if technically the direct recruits were not before the court, the petition is not likely to fail on that ground. The contention of the respondents for this additional reason must also be negatived.8. While dealing with the present set of applications, I am not examining the legality of the judgment assailed on the ground of non-joinder of necessary parties. The applicants have approached this Court for being heard on the conflict points involved in these petitions.9. In the event the petitions for Special Leave to Appeal are allowed and the plea of the petitioners for excluding deputationists from the senior administrative posts of the respective CAPFs eventually come to be accepted, it would obviously have an impact on the upper reaches of the service avenues of the IPS officers.Similar are the prayers in the other petitions for special leave to appeal. Before the High Court, the petitioners had mainly relied on an earlier decision of this Court in the case of Union of India vs Harananda [(2019) 14 SCC 126] . In this judgment, inter-alia, it was held that Railway Protection Force was to be constituted as Organised Group A Civil Service.But as I have already observed, by filing these applications, the applicants are volunteering their participation in these petitions to highlight their grievances. Thus the ratio of A. Janardhana (supra), which dealt with the aspects of leaving out a set of persons from whose interest could be affected by the outcome of a case, cannot be applied in this set of proceedings. The applicants claim for entry to these proceedings is founded on their possibility of being engaged on deputation to the senior administrative posts of CAPFs being adversely affected. Objections to their presence in these proceedings are mainly on two grounds. First is that the petitioners are questioning certain actions of the Government pertaining to clogging of promotional avenues of in-service officers of the CAPFs. In the event such plea of the petitioners is accepted by this Court, then the right of an IPS Officer to be in deputation will lapse or be largely impaired. Such deputation provisions do not originate from general principles of being placed on deputation, which is a recognized practise guiding organized services. Placing an IPS Officer on deputation in these Forces are integrally linked to the service rules of the respective Forces. Moreover, there is provision for deputation of IPS Officers as per the IPS Cadre Rules, 1954. Reference has been made to the schedule to Central Industrial Security Force (Group A Executive Cadre) Recruitment Rules, 2002, Rule 13 of the SSB Rules, 2009, schedule to the Central Reserve Police Border Force Group A General Duty Officers Recruitment Rules and Section 12 of ITBP Act, 1992 and schedule to the Border Security Force (Seniority, Promotion and Superannuation of Officers) Rules, 1978. These instruments provide for recruitment by deputation to the senior administrative posts of the CAPFs.12. Objection was made as regards as intervention of the Indian Police Service Central Association. The Association have not filed any application for impleadment or intervention before the High Court. I have referred to paragraph 13 of the impugned judgment in this regard. Their intervention was not allowed but they were heard. I further find from the judgment that they were actually heard. They have argued before me on the point of impleadment on the basis of having filed caveat application. But while as caveators they have the right of being notified of the lodging of the SLPs in terms of Clause 2 of Order XV of the Supreme Court Rules, 2013, mere filing of caveat application cannot grant them an entry into a Petition for Special Leave to Appeal. Filing of Caveat by itself does not entitle them to be treated as a party to the proceeding.
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Gujarat Urja Vikas Nigam Ltd Vs. Essar Power Limited | obligation of GUVNL to issue dispatch instructions was not dependent on declaration of the available capacity by the EPL. Contrary view of the Tribunal is clearly erroneous. In paras 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. Re : (ii) : 23. The Commission in this aspect observed : ?8.4 In the present case, the PPA was executed on 30.5.1996 and remains operational for a period of twenty years. Under the terms of the PPA, the generating company i.e. EPL is required to declare availability and supply of electricity for the entire duration of the PPA, while the Petitioner GUVNL has an obligation to purchase electricity and pay the tariff in terms thereof. The dispute appears to have arisen sometime in 1998-99, when the CAG Report for the year 1998-99 rejected the contention of the Government that there was no adverse financial impact as a result of diversion of power. Thereafter, on or around 10.2.2000, a meeting was conducted with the GEB to discuss the issue of diversion. On 17.2.2000, EPL subject to certain conditions accepted that power is required to be supplied on a 58:42 basis. Attempts were made to renegotiate the PPA. By a letter dated 23.4.2002, GEB wrote to EPL identifying certain key areas for negotiation of PPA. The issue of allocation of power was also part of the agenda. Since the issue of allocation of power could not be settled, GEB by its letter dated 29.10.2003 raised a claim of Rs. 537 crores for the period 1.7.1996 to 31.3.1999. EPL by its letters dated 1.11.2003 and 1.12.2003 denied the claim of GUVNL. xxxx 9.10 Furthermore, in the letter dated 17.02.2000, EPL categorically agreed to the concept that power should be supplied in the ratio of 58:42 provided certain conditions are fulfilled. The conditions mentioned in the said letter will demonstrate that the each condition is either in the nature of additional concessions / modification that were sought by EPL or alleged defaults on the part of GUVNL, which was not agreed to by GUVNL. ? 24. It is clear from the above that the letters of the respondent acknowledged its liability to allocate the generated power to the appellant and to the ESL in the ratio of 58 : 42. The Tribunal in para 54 quoted above, held that the said letters could not be relied upon in support of the claim that the appellant was entitled to be allocated generated power in proportion of 58 : 42. This finding is clearly erroneous and is without any basis and is liable to be set aside. The finding of the Commission is based on record. Re : (iii) : 25. In interpreting Schedule VI, the Commission held that the EPL was liable to declare weekly capacity available and on that basis dispatch instructions were required to be issued (para 9.6). The contrary view taken by the Tribunal in para 45 and elsewhere is clearly contrary to the agreement between the parties as reflected in Schedule VI quoted above. Re : (iv) : 26. The main basis of the order of the Tribunal in rejecting the claim of the appellant is the finding that the respondent had no obligation to allocate available power in the ratio of 58 : 42 under the terms of the Agreement and in terms of correspondence between the parties. Apart from this, the Tribunal held that the appellant had claimed Rs.64 crores by way of full and final settlement (para 55) and that the appellant was in default in not opening letter of credit and not paying Rs.519 crores. In doing so, the Tribunal has ignored clear stipulation in the letter of the appellant dated 13th December, 2004 referred to in para 8.14 of the Commission that the amount of Rs.64 crores was not accepted by way of final settlement. Similarly, the Tribunal has ignored the supplementary agreement between the parties dated 18th December, 2003 followed by letter dated 19th December, 2003 (page 337 and 341,Vol.V) under which amount of Rs.289.40 crores was paid to the respondent by way of settlement for the delayed payment charges and other heads. Thus, the Tribunal was not justified in observing in para 75 that the appellant had defaulted in making payment of Rs.519 crores which was a breach of promise on the part of the appellant, thereby absolving the respondent of its obligation to supply power as per the agreement. Similar is the position with regard to letter of credit referred in para 17.6 of the order of the Tribunal. We have been informed that these aspects have been gone into by the State Commission in a subsequent dispute vide order dated 22nd October, 2014 and Appeal No.2 of 2015 against the said order before the Tribunal. We thus, make it clear that our observations may not be treated as affecting the decision of the said appeal. 27. We thus, hold that the order of the Tribunal is erroneous. The said order has given rise to the substantial question of law which has been discussed above, i.e., the interpretation of the Agreement between the parties and the obligation of the respondent to declare availability of generated power in the ratio of 58 : 42 and consequence of default therein. The Tribunal erroneously held that there was no pleading for making the claim. Thus, the Tribunal has committed error of law as well as of record in recording its finding as demonstrated above. It may also be noted that the Commission has left actual working out of the loss to be worked out separately and on that basis the appellant has already filed its claim which was pending consideration before the Commission. The said proceeding can now be revived in the light of our finding. | 1[ds]22. The agreement clearly contemplates the proportion of allocation of a capacity. The EPL has to fuel and operate the generating station to meet the requirement of electric output that can be generated corresponding to the allocated capacity. The appellant has to pay annual fixed cost as determined in terms of clause 7.1.1 of Schedule VII of the Agreement. The Commission is thus, right in observing that once the entire capacity has been allocated in two parts in a particular proportion, the contention of the EPL that it could sell power to ESL beyond the allocated capacity could not be accepted. The EPL was under obligation as per 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 the 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 the EPL. Contrary view of the Tribunal is clearly erroneous. In paras 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 Agreementletters of the respondent acknowledged its liability to allocate the generated power to the appellant and to the ESL in the ratio of 58 : 42. The Tribunal in para 54 quoted above, held that the said letters could not be relied upon in support of the claim that the appellant was entitled to be allocated generated power in proportion of 58 : 42. This finding is clearly erroneous and is without any basis and is liable to be set aside. The finding of the Commission is based on record25. In interpreting Schedule VI, the Commission held that the EPL was liable to declare weekly capacity available and on that basis dispatch instructions were required to be issued (para 9.6). The contrary view taken by the Tribunal in para 45 and elsewhere is clearly contrary to the agreement between the parties as reflected in Schedule VI quoted above | 1 | 10,461 | 399 | ### 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:
obligation of GUVNL to issue dispatch instructions was not dependent on declaration of the available capacity by the EPL. Contrary view of the Tribunal is clearly erroneous. In paras 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. Re : (ii) : 23. The Commission in this aspect observed : ?8.4 In the present case, the PPA was executed on 30.5.1996 and remains operational for a period of twenty years. Under the terms of the PPA, the generating company i.e. EPL is required to declare availability and supply of electricity for the entire duration of the PPA, while the Petitioner GUVNL has an obligation to purchase electricity and pay the tariff in terms thereof. The dispute appears to have arisen sometime in 1998-99, when the CAG Report for the year 1998-99 rejected the contention of the Government that there was no adverse financial impact as a result of diversion of power. Thereafter, on or around 10.2.2000, a meeting was conducted with the GEB to discuss the issue of diversion. On 17.2.2000, EPL subject to certain conditions accepted that power is required to be supplied on a 58:42 basis. Attempts were made to renegotiate the PPA. By a letter dated 23.4.2002, GEB wrote to EPL identifying certain key areas for negotiation of PPA. The issue of allocation of power was also part of the agenda. Since the issue of allocation of power could not be settled, GEB by its letter dated 29.10.2003 raised a claim of Rs. 537 crores for the period 1.7.1996 to 31.3.1999. EPL by its letters dated 1.11.2003 and 1.12.2003 denied the claim of GUVNL. xxxx 9.10 Furthermore, in the letter dated 17.02.2000, EPL categorically agreed to the concept that power should be supplied in the ratio of 58:42 provided certain conditions are fulfilled. The conditions mentioned in the said letter will demonstrate that the each condition is either in the nature of additional concessions / modification that were sought by EPL or alleged defaults on the part of GUVNL, which was not agreed to by GUVNL. ? 24. It is clear from the above that the letters of the respondent acknowledged its liability to allocate the generated power to the appellant and to the ESL in the ratio of 58 : 42. The Tribunal in para 54 quoted above, held that the said letters could not be relied upon in support of the claim that the appellant was entitled to be allocated generated power in proportion of 58 : 42. This finding is clearly erroneous and is without any basis and is liable to be set aside. The finding of the Commission is based on record. Re : (iii) : 25. In interpreting Schedule VI, the Commission held that the EPL was liable to declare weekly capacity available and on that basis dispatch instructions were required to be issued (para 9.6). The contrary view taken by the Tribunal in para 45 and elsewhere is clearly contrary to the agreement between the parties as reflected in Schedule VI quoted above. Re : (iv) : 26. The main basis of the order of the Tribunal in rejecting the claim of the appellant is the finding that the respondent had no obligation to allocate available power in the ratio of 58 : 42 under the terms of the Agreement and in terms of correspondence between the parties. Apart from this, the Tribunal held that the appellant had claimed Rs.64 crores by way of full and final settlement (para 55) and that the appellant was in default in not opening letter of credit and not paying Rs.519 crores. In doing so, the Tribunal has ignored clear stipulation in the letter of the appellant dated 13th December, 2004 referred to in para 8.14 of the Commission that the amount of Rs.64 crores was not accepted by way of final settlement. Similarly, the Tribunal has ignored the supplementary agreement between the parties dated 18th December, 2003 followed by letter dated 19th December, 2003 (page 337 and 341,Vol.V) under which amount of Rs.289.40 crores was paid to the respondent by way of settlement for the delayed payment charges and other heads. Thus, the Tribunal was not justified in observing in para 75 that the appellant had defaulted in making payment of Rs.519 crores which was a breach of promise on the part of the appellant, thereby absolving the respondent of its obligation to supply power as per the agreement. Similar is the position with regard to letter of credit referred in para 17.6 of the order of the Tribunal. We have been informed that these aspects have been gone into by the State Commission in a subsequent dispute vide order dated 22nd October, 2014 and Appeal No.2 of 2015 against the said order before the Tribunal. We thus, make it clear that our observations may not be treated as affecting the decision of the said appeal. 27. We thus, hold that the order of the Tribunal is erroneous. The said order has given rise to the substantial question of law which has been discussed above, i.e., the interpretation of the Agreement between the parties and the obligation of the respondent to declare availability of generated power in the ratio of 58 : 42 and consequence of default therein. The Tribunal erroneously held that there was no pleading for making the claim. Thus, the Tribunal has committed error of law as well as of record in recording its finding as demonstrated above. It may also be noted that the Commission has left actual working out of the loss to be worked out separately and on that basis the appellant has already filed its claim which was pending consideration before the Commission. The said proceeding can now be revived in the light of our finding.
### Response:
1
### Explanation:
22. The agreement clearly contemplates the proportion of allocation of a capacity. The EPL has to fuel and operate the generating station to meet the requirement of electric output that can be generated corresponding to the allocated capacity. The appellant has to pay annual fixed cost as determined in terms of clause 7.1.1 of Schedule VII of the Agreement. The Commission is thus, right in observing that once the entire capacity has been allocated in two parts in a particular proportion, the contention of the EPL that it could sell power to ESL beyond the allocated capacity could not be accepted. The EPL was under obligation as per 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 the 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 the EPL. Contrary view of the Tribunal is clearly erroneous. In paras 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 Agreementletters of the respondent acknowledged its liability to allocate the generated power to the appellant and to the ESL in the ratio of 58 : 42. The Tribunal in para 54 quoted above, held that the said letters could not be relied upon in support of the claim that the appellant was entitled to be allocated generated power in proportion of 58 : 42. This finding is clearly erroneous and is without any basis and is liable to be set aside. The finding of the Commission is based on record25. In interpreting Schedule VI, the Commission held that the EPL was liable to declare weekly capacity available and on that basis dispatch instructions were required to be issued (para 9.6). The contrary view taken by the Tribunal in para 45 and elsewhere is clearly contrary to the agreement between the parties as reflected in Schedule VI quoted above
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Bharat Petroleum Corp. Ltd Vs. B.M. Motors | even after payment is made, if partner nos. 1 and 2 do not give no objection, the Corporation shall reconstitute the firm waiving the No Objection. Challenging the judgment, Bharat Petroleum Corporation Limited has preferred the present appeal.6. The learned counsel appearing for the appellant –corporation contended that the agreement dated 3.5.1984 reconstituting the firm was not intimated to the Corporation and only after the death of partner Roop Rani Tandon the request for reconstitution of the firm was received in the year 2012 and the said proposal was not in accordance with their policy for reconstitution of partnership dealership and the High Court erred in directing the Corporation to proceed with the reconstitution of the firm waiving No Objection Certificate from respondent nos. 2 and 3 herein and hence the impugned judgment is liable to be set aside.7. Per contra the learned counsel appearing for the firm namely respondent No.1 herein contended that after the agreement dated 3.5.1984 respondent Nos. 2 and 3 herein are no longer partners of the firm and said fact was intimated to the Corporation and after the death of partner Roop Rani Tandon a request for reconstitution was submitted in writing and the Corporation is obliged to reconstitute the firm and the impugned judgment is sustainable. The learned counsel appearing for respondent nos. 2 and 3 submitted that even after the agreement dated 3.5.1984 respondent nos. 2 and 3 continued to be partners of the firm though their entitlement was restricted to the supply of 100 litres of petrol per month or its value thereof. 8. We carefully considered the rival contentions of the parties. The firm M/s B.M. Motors was constituted on 26.6.1973 with four partners and the said firm was running the retail outlet from 12.8.1975 onwards. It is also admitted that all the four partners entered into subsequent agreement dated 3.5.1984 and as per the terms and conditions of the said agreement partner nos. 1 and 2 namely respondent nos.2 and 3 herein would receive 100 litres of petrol per month or its value thereof. They further agreed that they will have neither right in the retail outlet nor claim right in the assets or liabilities of the firm and partner nos. 3 and 4 would run the retail outlet in the name of the firm. A reading of the agreement dated 3.5.1984 clearly reveals that respondent nos. 2 and 3 herein have virtually retired from the partnership and their entitlement was only to supply of 100 litres of petrol per month from the said date. In other words it cannot be said that the original partnership deed continued thereafter. It is also relevant to point out that partner nos. 3 and 4 were recognized as partners of the reconstituted firm from that date. The agreement dated 3.5.1984 was also acted upon and it is not in dispute that 100 litres of petrol per month was supplied to respondent nos. 2 and 3 herein till June 1993.9. Thereafter the firm instituted a suit being Civil Suit No.368 of 1995 against Respondent nos. 2 and 3 herein seeking for decree of permanent injunction to restrain them from interfering in the management and working of the plaintiffs retail outlet and the suit was decree ex-parte on 14.1.2004. Though respondent nos. 2 and 3 herein have claimed that they have filed an application to set aside the ex- parte decree and the same is still pending and the decree is in force. In other words the retail outlet in the name of the firm continue to be run by partner nos. 3 and 4 only for nearly three decades. In such circumstances the agreement dated 3.5.1984 is in effect the retirement deed executed by respondent nos. 2 and 3 herein from the firm B.M. Motors and it has to be treated as No Objection Certificate in so far as they are concerned. 10. Respondent No.1 herein in its counter affidavit dated 31.01.14 have stated that in compliance of the direction of the High Court in the impugned judgment, it had sent the bank draft/pay order dated 10.6.2013 for a sum of Rs.8,64,650/- issued by Canara Bank Kannauj Branch to respondent nos. 2 and 3 herein towards the value of 100 litres of petrol per month for the period from June 1993 to June 2013. Respondent Nos. 2 and 3 in their letter dated 28.6.2013 shown as Annexure CA-2 to the counter affidavit of respondent no.1 have acknowledged the receipt of the said pay order and have stated that they have kept the said pay order as security and will not encash it till the final decision is taken by the Corporation in respect of reconstitution of the firm. It appears that the said pay order has not been encashed and had expired. Be that as it may the order passed by the High Court is, in our opinion, just and equitable inasmuch as, while it had protected the interests of the retiring partners-respondents 2 and 3, it had ensured that they do not frustrate either the agreement by which they had surrendered their rights in the profit and losses of the partnership or interfere with the smooth running of the business by the continuing partners, in breach of the decree passed in their favour. The arrangement arrived at between the partners may not have been disclosed to the petitioner corporation but such non- disclosure should not be allowed to result in termination of the agency especially when one of the parties is acting unreasonably or armtwisting the other party, to extract an extra pound of flesh from it. The petitioner-corporation would in such a case be expected as a public sector entity, to act fairly and objectively to prevent one party taking undeserved advantage over the other on technical or procedural grounds. There is no gain saying that while considering reconstitution of the partnership the petitioner-corporation shall be free to stipulate conditions that would protect its business interest, goodwill and reputation among its consumers. | 1[ds]10. Respondent No.1 herein in its counter affidavit dated 31.01.14 have stated that in compliance of the direction of the High Court in the impugned judgment, it had sent the bank draft/pay order dated 10.6.2013 for a sum of Rs.8,64,650/issued by Canara Bank Kannauj Branch to respondent nos. 2 and 3 herein towards the value of 100 litres of petrol per month for the period from June 1993 to June 2013. Respondent Nos. 2 and 3 in their letter dated 28.6.2013 shown as Annexureto the counter affidavit of respondent no.1 have acknowledged the receipt of the said pay order and have stated that they have kept the said pay order as security and will not encash it till the final decision is taken by the Corporation in respect of reconstitution of the firm. It appears that the said pay order has not been encashed and had expired. Be that as it may the order passed by the High Court is, in our opinion, just and equitable inasmuch as, while it had protected the interests of the retiring2 and 3, it had ensured that they do not frustrate either the agreement by which they had surrendered their rights in the profit and losses of the partnership or interfere with the smooth running of the business by the continuing partners, in breach of the decree passed in their favour. The arrangement arrived at between the partners may not have been disclosed to the petitioner corporation but such nondisclosure should not be allowed to result in termination of the agency especially when one of the parties is acting unreasonably or armtwisting the other party, to extract an extra pound of flesh from it. Thewould in such a case be expected as a public sector entity, to act fairly and objectively to prevent one party taking undeserved advantage over the other on technical or procedural grounds. There is no gain saying that while considering reconstitution of the partnership theshall be free to stipulate conditions that would protect its business interest, goodwill and reputation among itsreading of the agreement dated 3.5.1984 clearly reveals that respondent nos. 2 and 3 herein have virtually retired from the partnership and their entitlement was only to supply of 100 litres of petrol per month from the said date. In other words it cannot be said that the original partnership deed continued thereafter. It is also relevant to point out that partner nos. 3 and 4 were recognized as partners of the reconstituted firm from that date. The agreement dated 3.5.1984 was also acted upon and it is not in dispute that 100 litres of petrol per month was supplied to respondent nos. 2 and 3 herein till June 1993.9. Thereafter the firm instituted a suit being Civil Suit No.368 of 1995 against Respondent nos. 2 and 3 herein seeking for decree of permanent injunction to restrain them from interfering in the management and working of the plaintiffs retail outlet and the suit was decreeon 14.1.2004. Though respondent nos. 2 and 3 herein have claimed that they have filed an application to set aside the exparte decree and the same is still pending and the decree is in force. In other words the retail outlet in the name of the firm continue to be run by partner nos. 3 and 4 only for nearly three decades. In such circumstances the agreement dated 3.5.1984 is in effect the retirement deed executed by respondent nos. 2 and 3 herein from the firm B.M. Motors and it has to be treated as No Objection Certificate in so far as they are concerned | 1 | 1,808 | 637 | ### 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:
even after payment is made, if partner nos. 1 and 2 do not give no objection, the Corporation shall reconstitute the firm waiving the No Objection. Challenging the judgment, Bharat Petroleum Corporation Limited has preferred the present appeal.6. The learned counsel appearing for the appellant –corporation contended that the agreement dated 3.5.1984 reconstituting the firm was not intimated to the Corporation and only after the death of partner Roop Rani Tandon the request for reconstitution of the firm was received in the year 2012 and the said proposal was not in accordance with their policy for reconstitution of partnership dealership and the High Court erred in directing the Corporation to proceed with the reconstitution of the firm waiving No Objection Certificate from respondent nos. 2 and 3 herein and hence the impugned judgment is liable to be set aside.7. Per contra the learned counsel appearing for the firm namely respondent No.1 herein contended that after the agreement dated 3.5.1984 respondent Nos. 2 and 3 herein are no longer partners of the firm and said fact was intimated to the Corporation and after the death of partner Roop Rani Tandon a request for reconstitution was submitted in writing and the Corporation is obliged to reconstitute the firm and the impugned judgment is sustainable. The learned counsel appearing for respondent nos. 2 and 3 submitted that even after the agreement dated 3.5.1984 respondent nos. 2 and 3 continued to be partners of the firm though their entitlement was restricted to the supply of 100 litres of petrol per month or its value thereof. 8. We carefully considered the rival contentions of the parties. The firm M/s B.M. Motors was constituted on 26.6.1973 with four partners and the said firm was running the retail outlet from 12.8.1975 onwards. It is also admitted that all the four partners entered into subsequent agreement dated 3.5.1984 and as per the terms and conditions of the said agreement partner nos. 1 and 2 namely respondent nos.2 and 3 herein would receive 100 litres of petrol per month or its value thereof. They further agreed that they will have neither right in the retail outlet nor claim right in the assets or liabilities of the firm and partner nos. 3 and 4 would run the retail outlet in the name of the firm. A reading of the agreement dated 3.5.1984 clearly reveals that respondent nos. 2 and 3 herein have virtually retired from the partnership and their entitlement was only to supply of 100 litres of petrol per month from the said date. In other words it cannot be said that the original partnership deed continued thereafter. It is also relevant to point out that partner nos. 3 and 4 were recognized as partners of the reconstituted firm from that date. The agreement dated 3.5.1984 was also acted upon and it is not in dispute that 100 litres of petrol per month was supplied to respondent nos. 2 and 3 herein till June 1993.9. Thereafter the firm instituted a suit being Civil Suit No.368 of 1995 against Respondent nos. 2 and 3 herein seeking for decree of permanent injunction to restrain them from interfering in the management and working of the plaintiffs retail outlet and the suit was decree ex-parte on 14.1.2004. Though respondent nos. 2 and 3 herein have claimed that they have filed an application to set aside the ex- parte decree and the same is still pending and the decree is in force. In other words the retail outlet in the name of the firm continue to be run by partner nos. 3 and 4 only for nearly three decades. In such circumstances the agreement dated 3.5.1984 is in effect the retirement deed executed by respondent nos. 2 and 3 herein from the firm B.M. Motors and it has to be treated as No Objection Certificate in so far as they are concerned. 10. Respondent No.1 herein in its counter affidavit dated 31.01.14 have stated that in compliance of the direction of the High Court in the impugned judgment, it had sent the bank draft/pay order dated 10.6.2013 for a sum of Rs.8,64,650/- issued by Canara Bank Kannauj Branch to respondent nos. 2 and 3 herein towards the value of 100 litres of petrol per month for the period from June 1993 to June 2013. Respondent Nos. 2 and 3 in their letter dated 28.6.2013 shown as Annexure CA-2 to the counter affidavit of respondent no.1 have acknowledged the receipt of the said pay order and have stated that they have kept the said pay order as security and will not encash it till the final decision is taken by the Corporation in respect of reconstitution of the firm. It appears that the said pay order has not been encashed and had expired. Be that as it may the order passed by the High Court is, in our opinion, just and equitable inasmuch as, while it had protected the interests of the retiring partners-respondents 2 and 3, it had ensured that they do not frustrate either the agreement by which they had surrendered their rights in the profit and losses of the partnership or interfere with the smooth running of the business by the continuing partners, in breach of the decree passed in their favour. The arrangement arrived at between the partners may not have been disclosed to the petitioner corporation but such non- disclosure should not be allowed to result in termination of the agency especially when one of the parties is acting unreasonably or armtwisting the other party, to extract an extra pound of flesh from it. The petitioner-corporation would in such a case be expected as a public sector entity, to act fairly and objectively to prevent one party taking undeserved advantage over the other on technical or procedural grounds. There is no gain saying that while considering reconstitution of the partnership the petitioner-corporation shall be free to stipulate conditions that would protect its business interest, goodwill and reputation among its consumers.
### Response:
1
### Explanation:
10. Respondent No.1 herein in its counter affidavit dated 31.01.14 have stated that in compliance of the direction of the High Court in the impugned judgment, it had sent the bank draft/pay order dated 10.6.2013 for a sum of Rs.8,64,650/issued by Canara Bank Kannauj Branch to respondent nos. 2 and 3 herein towards the value of 100 litres of petrol per month for the period from June 1993 to June 2013. Respondent Nos. 2 and 3 in their letter dated 28.6.2013 shown as Annexureto the counter affidavit of respondent no.1 have acknowledged the receipt of the said pay order and have stated that they have kept the said pay order as security and will not encash it till the final decision is taken by the Corporation in respect of reconstitution of the firm. It appears that the said pay order has not been encashed and had expired. Be that as it may the order passed by the High Court is, in our opinion, just and equitable inasmuch as, while it had protected the interests of the retiring2 and 3, it had ensured that they do not frustrate either the agreement by which they had surrendered their rights in the profit and losses of the partnership or interfere with the smooth running of the business by the continuing partners, in breach of the decree passed in their favour. The arrangement arrived at between the partners may not have been disclosed to the petitioner corporation but such nondisclosure should not be allowed to result in termination of the agency especially when one of the parties is acting unreasonably or armtwisting the other party, to extract an extra pound of flesh from it. Thewould in such a case be expected as a public sector entity, to act fairly and objectively to prevent one party taking undeserved advantage over the other on technical or procedural grounds. There is no gain saying that while considering reconstitution of the partnership theshall be free to stipulate conditions that would protect its business interest, goodwill and reputation among itsreading of the agreement dated 3.5.1984 clearly reveals that respondent nos. 2 and 3 herein have virtually retired from the partnership and their entitlement was only to supply of 100 litres of petrol per month from the said date. In other words it cannot be said that the original partnership deed continued thereafter. It is also relevant to point out that partner nos. 3 and 4 were recognized as partners of the reconstituted firm from that date. The agreement dated 3.5.1984 was also acted upon and it is not in dispute that 100 litres of petrol per month was supplied to respondent nos. 2 and 3 herein till June 1993.9. Thereafter the firm instituted a suit being Civil Suit No.368 of 1995 against Respondent nos. 2 and 3 herein seeking for decree of permanent injunction to restrain them from interfering in the management and working of the plaintiffs retail outlet and the suit was decreeon 14.1.2004. Though respondent nos. 2 and 3 herein have claimed that they have filed an application to set aside the exparte decree and the same is still pending and the decree is in force. In other words the retail outlet in the name of the firm continue to be run by partner nos. 3 and 4 only for nearly three decades. In such circumstances the agreement dated 3.5.1984 is in effect the retirement deed executed by respondent nos. 2 and 3 herein from the firm B.M. Motors and it has to be treated as No Objection Certificate in so far as they are concerned
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The Additional Assistant Commissioner Vs. Firm Jagmohandas Vijaykumar & Others | Hegde, J. 1. The point of law arising of decision in these appeals is covered by the decision of this Court in Civil Appeal No. 771 of 1966, decided on the 14th Aug.1968 (SC). In view of that decision these appeals have to be allowed. 2. In these appeals we are concerned with the scope of Ss. 8 and 10 of the Madhya Bharat Sales Tax Act (Act 30 of 1950) Samvat 2007. The Respondents are registered dealers under that Act as well as under the Central Sales Tax Act. The liability of one of the assessees is under the Central Sales Tax Act whereas the liability of the remaining two assessees is under the Madhya Bharat Sales Tax Act. But in either case the governing provisions are Ss. 8 and 10 of the Madhya Bharat Sales Tax Act. In the case of Respondent in C. A. No. 1774/67, we are concerned with the assessment year 1955-56. He had not submitted the required return but assessment proceedings against him were commenced on 13-8-1956, i.e. within five months from the end of the assessment year. In the case of others, they had filed the required returns within time though assessments were not made for several years. The question for consideration before the High Court was whether in view of the fact that there was delay of more than three years in making the assessment, the proceedings started were barred under S. 10 of Madhya Bharat Sales Tax Act. 3. As mentioned earlier, all the assessees with whom we are concerned in these cases have either submitted their returns within the time prescribed or assessment proceedings against them had been commenced within time though no. order of assessment was made. When the authorities under the Act issued Notices to the assessees to produce their accounts books for the purpose of their assessment, they moved the High Court to quash the Notices issued to them. The High Court accepted their Writ Petitions and quashed the impugned Notices 4. This Court in Civil Appeal No. 771 of 1966, dated 14-8-1968 (SC) has ruled that once an assessment proceeding has commenced thereafter there can be no. question of any bar of limitation under S. 10 of Madhya Bharat Sales Tax Act. It has further ruled that an assessment proceeding commences either when the assessee submits its return or the department issues Notice calling upon the assessee to submit his return or produce his accounts. In these cases, as seen earlier, the assessment proceedings were commenced within the time prescribed in Section 10 and, therefore, there can be no. question of any escapability of assessment. This Court has also ruled that Section 10 applies only to escaped assessments. The ratio of that decision governs the facts of these cases. 5. In view of our above conclusion, it is not necessary to consider about the applicability or the effect of Section 18-A of the Madhya Pradesh General Sales Tax Act 1958 as amended in 1964. | 1[ds]4. This Court in Civil Appeal No. 771 of 1966, dated8 (SC) has ruled that once an assessment proceeding has commenced thereafter there can be no. question of any bar of limitation under S. 10 of Madhya Bharat Sales Tax Act. It has further ruled that an assessment proceeding commences either when the assessee submits its return or the department issues Notice calling upon the assessee to submit his return or produce his accounts. In these cases, as seen earlier, the assessment proceedings were commenced within the time prescribed in Section 10 and, therefore, there can be no. question of any escapability of assessment. This Court has also ruled that Section 10 applies only to escaped assessments. The ratio of that decision governs the facts of these cases5. In view of our above conclusion, it is not necessary to consider about the applicability or the effect of SectionA of the Madhya Pradesh General Sales Tax Act 1958 as amended in 1964. | 1 | 552 | 183 | ### 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:
Hegde, J. 1. The point of law arising of decision in these appeals is covered by the decision of this Court in Civil Appeal No. 771 of 1966, decided on the 14th Aug.1968 (SC). In view of that decision these appeals have to be allowed. 2. In these appeals we are concerned with the scope of Ss. 8 and 10 of the Madhya Bharat Sales Tax Act (Act 30 of 1950) Samvat 2007. The Respondents are registered dealers under that Act as well as under the Central Sales Tax Act. The liability of one of the assessees is under the Central Sales Tax Act whereas the liability of the remaining two assessees is under the Madhya Bharat Sales Tax Act. But in either case the governing provisions are Ss. 8 and 10 of the Madhya Bharat Sales Tax Act. In the case of Respondent in C. A. No. 1774/67, we are concerned with the assessment year 1955-56. He had not submitted the required return but assessment proceedings against him were commenced on 13-8-1956, i.e. within five months from the end of the assessment year. In the case of others, they had filed the required returns within time though assessments were not made for several years. The question for consideration before the High Court was whether in view of the fact that there was delay of more than three years in making the assessment, the proceedings started were barred under S. 10 of Madhya Bharat Sales Tax Act. 3. As mentioned earlier, all the assessees with whom we are concerned in these cases have either submitted their returns within the time prescribed or assessment proceedings against them had been commenced within time though no. order of assessment was made. When the authorities under the Act issued Notices to the assessees to produce their accounts books for the purpose of their assessment, they moved the High Court to quash the Notices issued to them. The High Court accepted their Writ Petitions and quashed the impugned Notices 4. This Court in Civil Appeal No. 771 of 1966, dated 14-8-1968 (SC) has ruled that once an assessment proceeding has commenced thereafter there can be no. question of any bar of limitation under S. 10 of Madhya Bharat Sales Tax Act. It has further ruled that an assessment proceeding commences either when the assessee submits its return or the department issues Notice calling upon the assessee to submit his return or produce his accounts. In these cases, as seen earlier, the assessment proceedings were commenced within the time prescribed in Section 10 and, therefore, there can be no. question of any escapability of assessment. This Court has also ruled that Section 10 applies only to escaped assessments. The ratio of that decision governs the facts of these cases. 5. In view of our above conclusion, it is not necessary to consider about the applicability or the effect of Section 18-A of the Madhya Pradesh General Sales Tax Act 1958 as amended in 1964.
### Response:
1
### Explanation:
4. This Court in Civil Appeal No. 771 of 1966, dated8 (SC) has ruled that once an assessment proceeding has commenced thereafter there can be no. question of any bar of limitation under S. 10 of Madhya Bharat Sales Tax Act. It has further ruled that an assessment proceeding commences either when the assessee submits its return or the department issues Notice calling upon the assessee to submit his return or produce his accounts. In these cases, as seen earlier, the assessment proceedings were commenced within the time prescribed in Section 10 and, therefore, there can be no. question of any escapability of assessment. This Court has also ruled that Section 10 applies only to escaped assessments. The ratio of that decision governs the facts of these cases5. In view of our above conclusion, it is not necessary to consider about the applicability or the effect of SectionA of the Madhya Pradesh General Sales Tax Act 1958 as amended in 1964.
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NAZIR MOHAMED Vs. J.KAMALA AND ORS | had pleaded that he had been in complete possession of the suit premises, as owner, with absolute rights, ever since 1966, when his father had executed a Deed of Release in his favour and/or in other words for over 28 years as on the date of institution of the suit. 56. As held by the Privy Council in Peri v. Chrishold reported in (1907) PC 73, it cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner...and if the rightful owner does not come forward and assert his right of possession by law, within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is forever distinguished, and the possessory owner acquires an absolute title. 57. The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law. 58. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722 , this Court held: After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence It has been noticed time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the Code of Civil Procedure. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. 59. When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda Ghose AIR 2014 SC 152 . Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of Section 100 of the CPC. 60. The judgment and order of the High Court under appeal does not discuss or decide any question of law involved in the case, not to speak of substantial question of law. 61. Just as this Court has time and again deprecated the practice of dismissing a second appeal with a non-speaking order only recording that the case did not involve any substantial question of law, the High Court cannot also allow a second appeal, without discussing the question of law, which the High Court has done. | 1[ds]32. To be substantial, a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way.33. To be a question of law involved in the case, there must be first, a foundation for it laid in the pleadings, and the question should emerge from the sustainable findings of fact, arrived at by Courts of facts, and it must be necessary to decide that question of law for a just and proper decision of the case.34. Where no such question of law, nor even a mixed question of law and fact was urged before the Trial Court or the First Appellate Court, as in this case, a second appeal cannot be entertained, as held by this Court in Panchagopal Barua v. Vinesh Chandra Goswami AIR 1997 SC 1047 .35. Whether a question of law is a substantial one and whether such question is involved in the case or not, would depend on the facts and circumstances of each case. The paramount overall consideration is the need for striking a judicious balance between the indispensable obligation to do justice at all stages and the impelling necessity of avoiding prolongation in the life of any lis. This proposition finds support from Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179. 36. In a Second Appeal, the jurisdiction of the High Court being confined to substantial question of law, a finding of fact is not open to challenge in second appeal, even if the appreciation of evidence is palpably erroneous and the finding of fact incorrect as held in Ramchandra v. Ramalingam AIR 1963 SC 302 . An entirely new point, raised for the first time, before the High Court, is not a question involved in the case, unless it goes to the root of the matter.37. The principles relating to Section 100 CPC relevant for this case may be summarised thus :(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law. Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.38. With the greatest of respect to the High Court, neither of the two questions framed by the High Court is a question of law, far less a substantial question of law. There was no controversy before the High Court with regard to interpretation or legal effect of any document nor any wrong application of a principle of law, in construing a document, or otherwise, which might have given rise to a question of law. There was no debatable issue before the High Court which was not covered by settled principles of law and/or precedents.39. It is nobodys case that the decision rendered by the First Appellate Court on any material question, violated any settled question of law or was vitiated by perversity. It is nobodys case that the evidence taken as a whole does not reasonably support the finding of the First Appellate Court, or that the First Appellate Court interpreted the evidence on record in an absurd and/or capricious manner. It is also nobodys case that the First Appellate Court arrived at its decision ignoring or acting contrary to any settled legal principle.40. The First Appellate Court examined the evidence on record at length, and arrived at a reasoned conclusion, that the Appellant-Defendant was owner of a part of the suit premises and the Respondent-Plaintiff was owner of the other part of the suit premises. This finding is based on cogent and binding documents of title, including the registered deeds of conveyance by which the respective predecessors-in-interest of the Appellant-Defendant and Respondent-Plaintiff had acquired title over the suit premises. There was no erroneous inference from any proved fact. Nor had the burden of proof erroneously been shifted.41. The second question of law, that is, the question of whether the First Appellate Court was right in holding that the plaintiff was entitled to a declaration of title in respect of half of the suit property, has, as observed above, been decided in favour of the Respondent Plaintiff, based on pleadings and evidence. The conclusion of the First Appellate Court, of the entitlement of the Respondent Plaintiff to a declaration in respect of his half share in the suit property does not warrant interference in a second appeal.42. The first question framed by the High Court, that is, the question of whether the Lower Court /Appellate Court was right in refusing the Respondent Plaintiff relief of possession, when the Appellate Court had granted mesne profits to the Respondent Plaintiff, is based on the erroneous factual premises that the First Appellate Court had granted mesne profits to the Respondent Plaintiff, which the First Appellate Court had not done.43. The first question is not at all a question of law, far less any substantial question of law involved in the case.44. The High Court, with greatest of respect, has patently erred in its conclusion that there was contradiction in the findings of the First Appellate Court, in that the First Appellate Court had declined the Respondent Plaintiff the relief of delivery of possession of the suit property but had granted the Respondent Plaintiff mesne profits for three years, prior to the institution of the suit.45. Mesne profits are profits which a person in wrongful possession of property might have derived, but would not include profits due to improvements. There is no finding of the Appellant-Defendant being in wrongful possession of any part of the suit premises either by the Trial Court or by the First Appellate Court. The First Appellate Court has, nowhere used the expression mesne profit. What the High Court granted to the Respondent-Plaintiff was in the nature of reimbursement of profit derived by the Appellant by use, occupation and enjoyment of the Respondent-Plaintiffs portion of the suit premises and/or in other words reimbursement of income from the said portion of the suit premises or charges for use, occupation and enjoyment thereof.46. A decree of possession does not automatically follow a decree of declaration of title and ownership over property. It is well settled that, where a Plaintiff wants to establish that the Defendants original possession was permissive, it is for the Plaintiff to prove this allegation and if he fails to do so, it may be presumed that possession was adverse, unless there is evidence to the contrary.47. The Appellant-Defendant has in his written statement in the suit, denied the title and ownership of the Respondent- Plaintiff to the suit property. The Appellant-Defendant has asserted that the Appellant-Defendant is the owner of the suit property and has been in possession and in occupation of the suit premises as owner from the very inception.48. In our considered opinion, the High Court erred in law in proceeding to allow possession to the Respondent-Plaintiff on the ground that the Appellant-Defendant had not taken the defence of adverse possession, ignoring the well established principle that the Plaintiffs claim to reliefs is to be decided on the strength of the Plaintiffs case and not the weakness, if any, in the opponents case, as propounded by the Privy Council in Baba Kartar Singh v. Dayal Das reported in AIR 1939 PC 201 .49. From the pleadings filed by the Appellant-Defendant, it is patently clear that the Appellant-Defendant claimed the right of ownership of the suit property on the basis of a deed of conveyance, executed over 75 years ago. The Appellant- Defendant has claimed continuous possession since the year 1966 on the strength of a deed of release executed by his father. In other words, the Appellant-Defendant has claimed to be in possession of the suit premises, as owner, for almost 28 years prior to the institution of suit.50. In the facts and circumstances of this case, where the Appellant-Defendant was owner of only a portion of the suit property but has admittedly been in possession of the entire suit property, and the Appellant-Defendant has, in his written statement, claimed to be in continuous possession for years as owner, the defence of the Appellant in his written statement was, in effect and substance, of adverse possession even though ownership by adverse possession had not been pleaded in so many words. It is, however not necessary for this Court to examine the question of whether the Appellant-Defendant was entitled to claim title by adverse possession or not.51. A person claiming a decree of possession has to establish his entitlement to get such possession and also establish that his claim is not barred by the laws of limitation. He must show that he had possession before the alleged trespasser got possession.52. The maxim possession follows title is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation, as in the case of open spaces accessible to all. The presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else. In this case it is admitted that the Appellant-Defendant is in possession and not the Respondent Plaintiff.53. A suit for recovery of possession of immovable property is governed by the Limitation Act, 1963. Section 3 of the Limitation Act bars the institution of any suit after expiry of the period of limitation prescribed in the said Act. The Court is obliged to dismiss a suit filed after expiry of the period of limitation, even though the plea of limitation may not have been taken in defence.55. In the absence of any whisper in the plaint as to the date on which the Appellant-Defendant and/or his Predecessor-in- interest took possession of the suit property and in the absence of any whisper to show that the relief of decree for possession was within limitation, the High Court could not have reversed the finding of the First Appellate Court, and allowed the Respondent-Plaintiff the relief of recovery of possession, more so when the Appellant-Defendant had pleaded that he had been in complete possession of the suit premises, as owner, with absolute rights, ever since 1966, when his father had executed a Deed of Release in his favour and/or in other words for over 28 years as on the date of institution of the suit.56. As held by the Privy Council in Peri v. Chrishold reported in (1907) PC 73, it cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner...and if the rightful owner does not come forward and assert his right of possession by law, within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is forever distinguished, and the possessory owner acquires an absolute title.57. The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law.59. When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda Ghose AIR 2014 SC 152 . Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of Section 100 of the CPC.60. The judgment and order of the High Court under appeal does not discuss or decide any question of law involved in the case, not to speak of substantial question of law.61. Just as this Court has time and again deprecated the practice of dismissing a second appeal with a non-speaking order only recording that the case did not involve any substantial question of law, the High Court cannot also allow a second appeal, without discussing the question of law, which the High Court has done.25. A second appeal, or for that matter, any appeal is not a matter of right. The right of appeal is conferred by statute. A second appeal only lies on a substantial question of law. If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal. It was not open to the Respondent-Plaintiff to re-agitate facts or to call upon the High Court to reanalyze or re-appreciate evidence in a Second Appeal.26. Section 100 of the CPC, as amended, restricts the right of second appeal, to only those cases, where a substantial question of law is involved. The existence of a substantial question of law is the sine qua non for the exercise of jurisdiction under Section 100 of the CPC.27. The High Court framed the following Questions of law:-1. Whether the Lower Appellate Court is right in refusing the relief of possession especially when the Lower Appellate Court granted relief of mesne profits till delivery of possession.?2. Whether the Lower Appellate Court is right in holding that the plaintiff is entitled to a declaration in respect of half of the suit property overlooking the pleadings and the documents of title in the instant case? | 1 | 7,258 | 2,814 | ### Instruction:
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had pleaded that he had been in complete possession of the suit premises, as owner, with absolute rights, ever since 1966, when his father had executed a Deed of Release in his favour and/or in other words for over 28 years as on the date of institution of the suit. 56. As held by the Privy Council in Peri v. Chrishold reported in (1907) PC 73, it cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner...and if the rightful owner does not come forward and assert his right of possession by law, within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is forever distinguished, and the possessory owner acquires an absolute title. 57. The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law. 58. In Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722 , this Court held: After the amendment a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such a question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such a question was not formulated at the time of admission either by mistake or by inadvertence It has been noticed time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the Code of Civil Procedure. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this section. The substantial question of law has to be distinguished from a substantial question of fact. If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in second appeal. 59. When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda Ghose AIR 2014 SC 152 . Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of Section 100 of the CPC. 60. The judgment and order of the High Court under appeal does not discuss or decide any question of law involved in the case, not to speak of substantial question of law. 61. Just as this Court has time and again deprecated the practice of dismissing a second appeal with a non-speaking order only recording that the case did not involve any substantial question of law, the High Court cannot also allow a second appeal, without discussing the question of law, which the High Court has done.
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of conveyance, executed over 75 years ago. The Appellant- Defendant has claimed continuous possession since the year 1966 on the strength of a deed of release executed by his father. In other words, the Appellant-Defendant has claimed to be in possession of the suit premises, as owner, for almost 28 years prior to the institution of suit.50. In the facts and circumstances of this case, where the Appellant-Defendant was owner of only a portion of the suit property but has admittedly been in possession of the entire suit property, and the Appellant-Defendant has, in his written statement, claimed to be in continuous possession for years as owner, the defence of the Appellant in his written statement was, in effect and substance, of adverse possession even though ownership by adverse possession had not been pleaded in so many words. It is, however not necessary for this Court to examine the question of whether the Appellant-Defendant was entitled to claim title by adverse possession or not.51. A person claiming a decree of possession has to establish his entitlement to get such possession and also establish that his claim is not barred by the laws of limitation. He must show that he had possession before the alleged trespasser got possession.52. The maxim possession follows title is limited in its application to property, which having regard to its nature, does not admit to actual and exclusive occupation, as in the case of open spaces accessible to all. The presumption that possession must be deemed to follow title, arises only where there is no definite proof of possession by anyone else. In this case it is admitted that the Appellant-Defendant is in possession and not the Respondent Plaintiff.53. A suit for recovery of possession of immovable property is governed by the Limitation Act, 1963. Section 3 of the Limitation Act bars the institution of any suit after expiry of the period of limitation prescribed in the said Act. The Court is obliged to dismiss a suit filed after expiry of the period of limitation, even though the plea of limitation may not have been taken in defence.55. In the absence of any whisper in the plaint as to the date on which the Appellant-Defendant and/or his Predecessor-in- interest took possession of the suit property and in the absence of any whisper to show that the relief of decree for possession was within limitation, the High Court could not have reversed the finding of the First Appellate Court, and allowed the Respondent-Plaintiff the relief of recovery of possession, more so when the Appellant-Defendant had pleaded that he had been in complete possession of the suit premises, as owner, with absolute rights, ever since 1966, when his father had executed a Deed of Release in his favour and/or in other words for over 28 years as on the date of institution of the suit.56. As held by the Privy Council in Peri v. Chrishold reported in (1907) PC 73, it cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner...and if the rightful owner does not come forward and assert his right of possession by law, within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is forever distinguished, and the possessory owner acquires an absolute title.57. The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law.59. When no substantial question of law is formulated, but a Second Appeal is decided by the High Court, the judgment of the High Court is vitiated in law, as held by this Court in Biswanath Ghosh v. Gobinda Ghose AIR 2014 SC 152 . Formulation of substantial question of law is mandatory and the mere reference to the ground mentioned in Memorandum of Second Appeal can not satisfy the mandate of Section 100 of the CPC.60. The judgment and order of the High Court under appeal does not discuss or decide any question of law involved in the case, not to speak of substantial question of law.61. Just as this Court has time and again deprecated the practice of dismissing a second appeal with a non-speaking order only recording that the case did not involve any substantial question of law, the High Court cannot also allow a second appeal, without discussing the question of law, which the High Court has done.25. A second appeal, or for that matter, any appeal is not a matter of right. The right of appeal is conferred by statute. A second appeal only lies on a substantial question of law. If statute confers a limited right of appeal, the Court cannot expand the scope of the appeal. It was not open to the Respondent-Plaintiff to re-agitate facts or to call upon the High Court to reanalyze or re-appreciate evidence in a Second Appeal.26. Section 100 of the CPC, as amended, restricts the right of second appeal, to only those cases, where a substantial question of law is involved. The existence of a substantial question of law is the sine qua non for the exercise of jurisdiction under Section 100 of the CPC.27. The High Court framed the following Questions of law:-1. Whether the Lower Appellate Court is right in refusing the relief of possession especially when the Lower Appellate Court granted relief of mesne profits till delivery of possession.?2. Whether the Lower Appellate Court is right in holding that the plaintiff is entitled to a declaration in respect of half of the suit property overlooking the pleadings and the documents of title in the instant case?
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Smt. Aruna Kumari Vs. Government Of Andhra Pradesh And Others | been disposed of by the Central Government but about 3 months later after its filling. It was argued that Section 14 of the Act clothes the authority with the power of revoking the detention order, and such a power carries with it the duty to exercise it whenever and as soon as changed or new factors call for the exercise of that power. Reliance was placed on the observations of this Court at page 786 in Haradhan Saha and Another v. The State of West Bengal and Others - 1975 (1) SCR 778 and those in paragraph 9 of the Judgment in Sat Pal v. The State of Punjab - 1982 (1) SCC 12. It is true that such a power coupled with the duty exists but the duty to exercise it arises only where new and relevant facts and circumstances come to light. This was not so here, and as observed in para 13 of the Judgment in State Of Uttar Pradesh v. Zavad Zama Khan - 1984 (3) SCC 505 , there is no right in favour of the detenu to get his successive representations based on the same grounds rejected earlier to be formally disposed of again. In any event no period of limitation is fixed for disposal of an application under Section 14 and as we have seen earlier the second representation filed by Lakshamana Rao indeed, was considered and rejected. 10. On behalf of the petitioner it was next contended that the fact that both Krishna Murthy and Smt. Mahati Singh had retracted their alleged statements before the police implicating Madhava Rao and the order in the criminal case granting bail to the detenu conditionally, were not placed before the detaining authority which has vitiated the detention order. It is claimed that as a matter of fact the aforesaid two persons never made any statement before the police or anybody else connecting Madhava Rao with the construction of Smt. Mahati Singhs house and it is incorrect to say that they were ever questioned by the police as alleged. Reference was made to the order passed in the criminal case on the anticipatory bail application of the detenu in which there is no such statement. The learned counsel argued that the absence of such a reference in the order leads to the conclusion that the police never examined them. 11. The High Court has rightly repelled a similar argument, pointing out that in the application for anticipatory bail of Smt. Mahati Singh it was categorically stated that the vigilance police had gone to the residence of her father and thoroughly interrogated her and her father. Krishna Murthy also made a similar statement in his application for anticipatory bail. It will, therefore, be idle to suggest otherwise merely for the reason that the Criminal Court did not choose in its order to mention these facts. Besides, it has along been established that the subjective satisfaction of the detaining authority as regards the factual existence of the condition on which the order of detention can be made, namely the grounds of detention constitute the foundation for the exercise of the power of detention and the Court cannot be invited to consider the propriety or sufficiency of the grounds on which the satisfaction of the detaining authority is based. Nor can the Court, on a review of the grounds, substitute its own opinion for that of the authority. In the instant case the ground of detention is only one, viz. the detenu was acting prejudicial to the maintenance of supplies of commodity, that is, levy cement, essential to the community by diverting it to the open market. The grounds of detention served along with the order are nothing but a narration of facts. The question whether the detenu was acting in a manner prejudicial to the maintenance of supplies essential to the life of the community is a matter of inference to be drawn from facts. The learned Advocate General was fair enough to accept before us that the applications for grant of anticipatory bail moved before the Criminal Court were not placed before the detaining authority. Even so, it could not be said that there was no material upon which the subjective satisfaction of the detaining authority could be based. It appears from the grounds, i.e., the facts set out that the detenu had made a statement admitting that he had diverted 600 bags of levy cement issued to him for use in the masonry ballast wall along the railway track and therefore the District Magistrate was justified in coming to the conclusion that he (the detenu) was acting in a manner prejudicial to the maintenance of supplies of the commodity essential to the community. The three decisions in Asha Devi v. K. Shiveraj, Additional Chief Secretary to the Government of Gujarat and Another - (1979) 2 SCR 215 , Mohd. Shakeel Wahid Ahmed v. State of Maharashtra and Others - (1983) 2 SCR 614 and Kurjibhai Dhanjibhai Patel v. State of Gujarat - (1985) 1 Scale 964 were cases where there was failure on the part of the sponsoring authority in not furnishing the relevant material to the detaining authority which was a vitiating factor. This Court had occasion to deal with them in Pushpadevi M. Jatia v. M. L. Wadhawan, Additional Secretary, Government of India and Others - (1987) 3 SCC 367 = 1987 (30) ELT 13 (S.C.), in para 12 of the its judgment. These decisions proceed on the well settled principle that if material and vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed, it would vitiate the subjective satisfaction rendering the detention order illegal. That is not so in the present case. There was ample material before the District Magistrate for him to base. His subjective satisfaction as to the necessary for passing impugned order, as stated by him in his affidavit. | 0[ds]It is true that it may not be a legally recorded confession which can be used as substantive evidence against the accused in the criminal case, but it cannot be completely brushed aside on that ground for the purpose of his preventive detention. The records further show that the oral evidence of the watchman and the labourer engaged in the house construction proved that it was the levy cement issued to the detenu which was being diverted at his instance. Before closing this chapter it may be restated that the sufficiency of the material available to the detaining authority is not to be examined by the Court.9. So far as the second representation filed by Madhava Raos cousin Lakshmana Rao is concerned, it has, in fact, been disposed of by the Central Government but about 3 months later after its filling. It was argued that Section 14 of the Act clothes the authority with the power of revoking the detention order, and such a power carries with it the duty to exercise it whenever and as soon as changed or new factors call for the exercise of that power. Reliance was placed on the observations of this Court at page 786 in Haradhan Saha and Another v. The State of West Bengal and Others - 1975 (1) SCR 778 and those in paragraph 9 of the Judgment in Sat Pal v. The State of Punjab - 1982 (1) SCC 12. It is true that such a power coupled with the duty exists but the duty to exercise it arises only where new and relevant facts and circumstances come to light. This was not so here, and as observed in para 13 of the Judgment in State Of Uttar Pradesh v. Zavad Zama Khan - 1984 (3) SCC 505 , there is no right in favour of the detenu to get his successive representations based on the same grounds rejected earlier to be formally disposed of again. In any event no period of limitation is fixed for disposal of an application under Section 14 and as we have seen earlier the second representation filed by Lakshamana Rao indeed, was considered and rejected.The High Court has rightly repelled a similar argument, pointing out that in the application for anticipatory bail of Smt. Mahati Singh it was categorically stated that the vigilance police had gone to the residence of her father and thoroughly interrogated her and her father. Krishna Murthy also made a similar statement in his application for anticipatory bail. It will, therefore, be idle to suggest otherwise merely for the reason that the Criminal Court did not choose in its order to mention these facts. Besides, it has along been established that the subjective satisfaction of the detaining authority as regards the factual existence of the condition on which the order of detention can be made, namely the grounds of detention constitute the foundation for the exercise of the power of detention and the Court cannot be invited to consider the propriety or sufficiency of the grounds on which the satisfaction of the detaining authority is based. Nor can the Court, on a review of the grounds, substitute its own opinion for that of the authority. In the instant case the ground of detention is only one, viz. the detenu was acting prejudicial to the maintenance of supplies of commodity, that is, levy cement, essential to the community by diverting it to the open market. The grounds of detention served along with the order are nothing but a narration of facts. The question whether the detenu was acting in a manner prejudicial to the maintenance of supplies essential to the life of the community is a matter of inference to be drawn from facts. The learned Advocate General was fair enough to accept before us that the applications for grant of anticipatory bail moved before the Criminal Court were not placed before the detaining authority. Even so, it could not be said that there was no material upon which the subjective satisfaction of the detaining authority could be based. It appears from the grounds, i.e., the facts set out that the detenu had made a statement admitting that he had diverted 600 bags of levy cement issued to him for use in the masonry ballast wall along the railway track and therefore the District Magistrate was justified in coming to the conclusion that he (the detenu) was acting in a manner prejudicial to the maintenance of supplies of the commodity essential to the community. The three decisions in Asha Devi v. K. Shiveraj, Additional Chief Secretary to the Government of Gujarat and Another - (1979) 2 SCR 215 , Mohd. Shakeel Wahid Ahmed v. State of Maharashtra and Others - (1983) 2 SCR 614 and Kurjibhai Dhanjibhai Patel v. State of Gujarat - (1985) 1 Scale 964 were cases where there was failure on the part of the sponsoring authority in not furnishing the relevant material to the detaining authority which was a vitiating factor. This Court had occasion to deal with them in Pushpadevi M. Jatia v. M. L. Wadhawan, Additional Secretary, Government of India and Others - (1987) 3 SCC 367 = 1987 (30) ELT 13 (S.C.), in para 12 of the its judgment. These decisions proceed on the well settled principle that if material and vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed, it would vitiate the subjective satisfaction rendering the detention order illegal. That is not so in the present case. There was ample material before the District Magistrate for him to base. His subjective satisfaction as to the necessary for passing impugned order, as stated by him in hisrepeatedly asked learned counsel for the petitioner to show any material indicating that the detenu was present on any date before the Criminal Court or was available to the police but it was conceded that there was no such document. In the second application for anticipatory bail reliance was placed on a medical certificate issued by a doctor. The diary indicates that the police inquired from the doctor on the 3rd of March, 1987 about the same pointing out that the accused was an absconder. There was, therefore, no doubt at all that in the police records the detenu was considered to be an absconder throughout till his arrest on the 18th of March, 1987. The affidavit of the District Magistrate filed before the High Court indicates that the further investigation in the case continued even after the arrest of Madhava Rao and the details of the ownership of the house in construction and the neighbouring shed and other similar relevant information could be collected only later and thus the investigation was complete onThe matter was placed before the District Magistrate onand he passed the impugned order on the following day, that is,A.I.R. 1974 SC 957 wherein the orders of detention were passed five months later. The first point urged on behalf of the petitioner, therefore, iscourse, a detention order not supported by any evidence may have to be quashed, but that is not the position here. There was clearly sufficient material before the District Magistrate to justify the forming of his opinion as stated earlier. The question was not raised in the writ petition filed before the High Court, and the plea based upon the brand of cement was belatedly taken in the case and has been dealt with at some length in the judgment of the High Court which is under challenge in the Special Leave Petition. We do not consider it necessary to repeat them but we would mention briefly the argument of the learned Advocate General which appears to be well founded. Our attention was drawn to the Gatepass (page 154 of the paperbook of the writ petition) showing the issuance of the levy cement "to the contractor", that is, Madhava Rao, which was signed by Mohammad Chand on behalf of the Railways and Babu, Madhava Raos employee. This does to mention the name of Eashwar Rao, the other employee of the contractor. It is not denied on behalf of the detenu that he has been executing many contract works for the Railways, and therefore it cannot be presumed that the same consignment was the subject matter of the Gatepass as well as the certificate relied upon on behalf of the petitioner. The point now urged on the basis of the brand of cement was taken on behalf of the petitioner belatedly as mentioned earlier. Besides, the detenu accepted the allegations against himself in his statement recorded under Section 161 of theCode of Criminal Procedure.It is true that it may not be a legally recorded confession which can be used as substantive evidence against the accused in the criminal case, but it cannot be completely brushed aside on that ground for the purpose of his preventive detention. The records further show that the oral evidence of the watchman and the labourer engaged in the house construction proved that it was the levy cement issued to the detenu which was being diverted at his instance. Before closing this chapter it may be restated that the sufficiency of the material available to the detaining authority is not to be examined by the Court. | 0 | 3,760 | 1,683 | ### Instruction:
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been disposed of by the Central Government but about 3 months later after its filling. It was argued that Section 14 of the Act clothes the authority with the power of revoking the detention order, and such a power carries with it the duty to exercise it whenever and as soon as changed or new factors call for the exercise of that power. Reliance was placed on the observations of this Court at page 786 in Haradhan Saha and Another v. The State of West Bengal and Others - 1975 (1) SCR 778 and those in paragraph 9 of the Judgment in Sat Pal v. The State of Punjab - 1982 (1) SCC 12. It is true that such a power coupled with the duty exists but the duty to exercise it arises only where new and relevant facts and circumstances come to light. This was not so here, and as observed in para 13 of the Judgment in State Of Uttar Pradesh v. Zavad Zama Khan - 1984 (3) SCC 505 , there is no right in favour of the detenu to get his successive representations based on the same grounds rejected earlier to be formally disposed of again. In any event no period of limitation is fixed for disposal of an application under Section 14 and as we have seen earlier the second representation filed by Lakshamana Rao indeed, was considered and rejected. 10. On behalf of the petitioner it was next contended that the fact that both Krishna Murthy and Smt. Mahati Singh had retracted their alleged statements before the police implicating Madhava Rao and the order in the criminal case granting bail to the detenu conditionally, were not placed before the detaining authority which has vitiated the detention order. It is claimed that as a matter of fact the aforesaid two persons never made any statement before the police or anybody else connecting Madhava Rao with the construction of Smt. Mahati Singhs house and it is incorrect to say that they were ever questioned by the police as alleged. Reference was made to the order passed in the criminal case on the anticipatory bail application of the detenu in which there is no such statement. The learned counsel argued that the absence of such a reference in the order leads to the conclusion that the police never examined them. 11. The High Court has rightly repelled a similar argument, pointing out that in the application for anticipatory bail of Smt. Mahati Singh it was categorically stated that the vigilance police had gone to the residence of her father and thoroughly interrogated her and her father. Krishna Murthy also made a similar statement in his application for anticipatory bail. It will, therefore, be idle to suggest otherwise merely for the reason that the Criminal Court did not choose in its order to mention these facts. Besides, it has along been established that the subjective satisfaction of the detaining authority as regards the factual existence of the condition on which the order of detention can be made, namely the grounds of detention constitute the foundation for the exercise of the power of detention and the Court cannot be invited to consider the propriety or sufficiency of the grounds on which the satisfaction of the detaining authority is based. Nor can the Court, on a review of the grounds, substitute its own opinion for that of the authority. In the instant case the ground of detention is only one, viz. the detenu was acting prejudicial to the maintenance of supplies of commodity, that is, levy cement, essential to the community by diverting it to the open market. The grounds of detention served along with the order are nothing but a narration of facts. The question whether the detenu was acting in a manner prejudicial to the maintenance of supplies essential to the life of the community is a matter of inference to be drawn from facts. The learned Advocate General was fair enough to accept before us that the applications for grant of anticipatory bail moved before the Criminal Court were not placed before the detaining authority. Even so, it could not be said that there was no material upon which the subjective satisfaction of the detaining authority could be based. It appears from the grounds, i.e., the facts set out that the detenu had made a statement admitting that he had diverted 600 bags of levy cement issued to him for use in the masonry ballast wall along the railway track and therefore the District Magistrate was justified in coming to the conclusion that he (the detenu) was acting in a manner prejudicial to the maintenance of supplies of the commodity essential to the community. The three decisions in Asha Devi v. K. Shiveraj, Additional Chief Secretary to the Government of Gujarat and Another - (1979) 2 SCR 215 , Mohd. Shakeel Wahid Ahmed v. State of Maharashtra and Others - (1983) 2 SCR 614 and Kurjibhai Dhanjibhai Patel v. State of Gujarat - (1985) 1 Scale 964 were cases where there was failure on the part of the sponsoring authority in not furnishing the relevant material to the detaining authority which was a vitiating factor. This Court had occasion to deal with them in Pushpadevi M. Jatia v. M. L. Wadhawan, Additional Secretary, Government of India and Others - (1987) 3 SCC 367 = 1987 (30) ELT 13 (S.C.), in para 12 of the its judgment. These decisions proceed on the well settled principle that if material and vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed, it would vitiate the subjective satisfaction rendering the detention order illegal. That is not so in the present case. There was ample material before the District Magistrate for him to base. His subjective satisfaction as to the necessary for passing impugned order, as stated by him in his affidavit.
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is, levy cement, essential to the community by diverting it to the open market. The grounds of detention served along with the order are nothing but a narration of facts. The question whether the detenu was acting in a manner prejudicial to the maintenance of supplies essential to the life of the community is a matter of inference to be drawn from facts. The learned Advocate General was fair enough to accept before us that the applications for grant of anticipatory bail moved before the Criminal Court were not placed before the detaining authority. Even so, it could not be said that there was no material upon which the subjective satisfaction of the detaining authority could be based. It appears from the grounds, i.e., the facts set out that the detenu had made a statement admitting that he had diverted 600 bags of levy cement issued to him for use in the masonry ballast wall along the railway track and therefore the District Magistrate was justified in coming to the conclusion that he (the detenu) was acting in a manner prejudicial to the maintenance of supplies of the commodity essential to the community. The three decisions in Asha Devi v. K. Shiveraj, Additional Chief Secretary to the Government of Gujarat and Another - (1979) 2 SCR 215 , Mohd. Shakeel Wahid Ahmed v. State of Maharashtra and Others - (1983) 2 SCR 614 and Kurjibhai Dhanjibhai Patel v. State of Gujarat - (1985) 1 Scale 964 were cases where there was failure on the part of the sponsoring authority in not furnishing the relevant material to the detaining authority which was a vitiating factor. This Court had occasion to deal with them in Pushpadevi M. Jatia v. M. L. Wadhawan, Additional Secretary, Government of India and Others - (1987) 3 SCC 367 = 1987 (30) ELT 13 (S.C.), in para 12 of the its judgment. These decisions proceed on the well settled principle that if material and vital facts which would influence the mind of the detaining authority one way or the other on the question whether or not to make the detention order, are not placed, it would vitiate the subjective satisfaction rendering the detention order illegal. That is not so in the present case. There was ample material before the District Magistrate for him to base. His subjective satisfaction as to the necessary for passing impugned order, as stated by him in hisrepeatedly asked learned counsel for the petitioner to show any material indicating that the detenu was present on any date before the Criminal Court or was available to the police but it was conceded that there was no such document. In the second application for anticipatory bail reliance was placed on a medical certificate issued by a doctor. The diary indicates that the police inquired from the doctor on the 3rd of March, 1987 about the same pointing out that the accused was an absconder. There was, therefore, no doubt at all that in the police records the detenu was considered to be an absconder throughout till his arrest on the 18th of March, 1987. The affidavit of the District Magistrate filed before the High Court indicates that the further investigation in the case continued even after the arrest of Madhava Rao and the details of the ownership of the house in construction and the neighbouring shed and other similar relevant information could be collected only later and thus the investigation was complete onThe matter was placed before the District Magistrate onand he passed the impugned order on the following day, that is,A.I.R. 1974 SC 957 wherein the orders of detention were passed five months later. The first point urged on behalf of the petitioner, therefore, iscourse, a detention order not supported by any evidence may have to be quashed, but that is not the position here. There was clearly sufficient material before the District Magistrate to justify the forming of his opinion as stated earlier. The question was not raised in the writ petition filed before the High Court, and the plea based upon the brand of cement was belatedly taken in the case and has been dealt with at some length in the judgment of the High Court which is under challenge in the Special Leave Petition. We do not consider it necessary to repeat them but we would mention briefly the argument of the learned Advocate General which appears to be well founded. Our attention was drawn to the Gatepass (page 154 of the paperbook of the writ petition) showing the issuance of the levy cement "to the contractor", that is, Madhava Rao, which was signed by Mohammad Chand on behalf of the Railways and Babu, Madhava Raos employee. This does to mention the name of Eashwar Rao, the other employee of the contractor. It is not denied on behalf of the detenu that he has been executing many contract works for the Railways, and therefore it cannot be presumed that the same consignment was the subject matter of the Gatepass as well as the certificate relied upon on behalf of the petitioner. The point now urged on the basis of the brand of cement was taken on behalf of the petitioner belatedly as mentioned earlier. Besides, the detenu accepted the allegations against himself in his statement recorded under Section 161 of theCode of Criminal Procedure.It is true that it may not be a legally recorded confession which can be used as substantive evidence against the accused in the criminal case, but it cannot be completely brushed aside on that ground for the purpose of his preventive detention. The records further show that the oral evidence of the watchman and the labourer engaged in the house construction proved that it was the levy cement issued to the detenu which was being diverted at his instance. Before closing this chapter it may be restated that the sufficiency of the material available to the detaining authority is not to be examined by the Court.
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Banoo J. Coyajee Vs. Shanta Genevieve Prommeret Parulekar | and his group over the 1st respondent company. If any other remedy at law is available to the petitioners in this connection they are free to avail of it. But we fail to see how the register of members can be rectified under section 155 of the Companies Act in respect of these shares when respondents were within their right in issuing these shares at par. Subsequent events :(48) WE would also like to refer to some subsequent events which also make difficult to set the clock back, so to speak. In the first place, by selling 3417 shares the executors received a sum of about Rs.80 lakhs. After discharging the liabilities under the will of the deceased Dr. Parulekar, net sale proceeds amounting to about Rs.60 Lakhs have been used to create a public charitable trust for the purposes set out by the settler in his will. The fund is now impressed with a public charitable trust. Secondly, the fund which were brought into the Company by respondent No. 5 and his controlling group of companies by purchasing the fresh issue of 17,666 shares, has also been utilised by the Company for its expansion, for investments and for the purchase of machinery. This fund also in not now available for being released to the original buyers.(49) In these circumstances the learned Single Judge, while allowing the petition, had directed the petitioners to bring in a sum of Rs. 80,73,000/- within the time stipulated by him under his order. The petitioners however, failed to deposit this amount or any part thereof in Court within the stipulated period. Their application for extension of time was also rejected by the learned Single Judge for reasons which are set out by him in his order of 31st March, 1988. In these circumstances and looking to the fact that the petitioners have not been able to raise the funds within the period given to them by the learned Single Judge for acquiring a controlling interest in the 1st respondent Company, we do not see how any reliefs can be granted to the petitioners. The direction of the learned Single Judge relating to the retention of 17,666 shares with the company until they are reallotted by the directors also, in our view, is a relief which is not within the ambit of section 155 of the Companies Act. Be that as it may, looking to these circumstances, it is difficult to grant any relief to the petitioners under section 155. They have been unable to avail of their rights under Article 57-A to acquire controlling interest in the 1st respondent Company. For various reasons with which we are not concerned, either they do not have the requisite funds, or for reasons best known to them, they have not availed of their rights as required by law. We may also mention in this connection the fact that even initially, the suit which they filed in a Poona Court was not a suit for specific performance of their right under Article 57-A, but only a suit to restrain the executors from selling the shares to anyone other than the petitioners. Only in August 1986 they filed the present company petition which again is for a limited relief under section 155 of the Companies Act and not a petition under section 397 or 398 of the Companies Act. It was only after the judgment was delivered by the learned Single Judge in this company petition that they have now filed two suits in March 1988 for specific performance. Section 155 is a discretionary remedy which is not normally resorted to when there are allegations of fraud. We need not however, go into this aspect of the matter because, in any event, for reasons which are set out by us in our order, the petitioners are not entitled to any relief as prayed for by them in the petition. The Judgment of 31st March 1988 :(50) THE appeals before us from the judgment of the learned Judge dated 31st March, 1988, declining to grant any extension of time, are all filed by either the trustees, the purchasers from the trustees or by the Company in respect of certain observations made in that judgment and order. The petitioners have not filed any appeal before us challenging the order refusing to extend time for the deposit of Rs. 80,73,000/ -. The impugned observations are in respect of the readiness and willingness of the petitioners to purchase the shares in question. The learned Judge has observed that on account of the failure of the petitioners to deposit Rs. 80,73,000/- within the stipulated period the petition stands dismissed. But the observations made in his judgment would continue to bind the parties. In view of the fact that the appeals from the main judgment are now allowed, the appellants from this part of the order can have no grievance now.(51) IN his judgment of 31st March, 1988 the learned Single Judge has also observed that in the suit for specific performance it would be open for the petitioners to show their capacity and to convince the Court that they are in a position to really purchase these shares and to enforce specific performance of the contract. These observations should not be interpreted to mean that the readiness and willingness of the petitioners will have to be judged only at the point of time when the suits for specific performance are decided. The learned Judge has merely referred to the fact that the question of readiness and willingness of the petitioners throughout the material period, to purchase these charges will have to be decided by the Court which tries those suits on the basis of the evidence which is available before the Court. These observations cannot be read to mean that if the law requires the petitioners to prove their readiness and willingness throughout the material period, the requirements of law have, in any manner, been modified by the learned Single Judge or by us. | 1[ds]It is therefore not necessary for all the trustees to sign the transferthe resolution of the trustees executors any one of the executors was entitled to sign the transfer forms. Hence the three executors who have signed transfer forms have done so as transferrers in valid exercise of power under the said resolution. At the highest the only defect is that they have not stated that they have signed the transfer forms on behalf of all the executors or in exercise of their authority under the said resolution. This, in our view, is, at the highest, only an irregularity which can be easily corrected by the transferrers. In these circumstances it would be futile to invalidate the registration of transfer of these shares when the transferrers can immediately submit fresh transfer forms signed by them on behalf of all the transferrers. As set out in the case of (Killick Nixon Ltd. v. Dhanrai Mills P. Ltd.) reported in 54 Company Cases 532 at pages 465, (A judgment to which one of us was a party), the Court should not accept any invitation to indulge in a futile exercise under section 155. The provisions of this section are not meant for correcting proceduralis therefore no question of the 1st petitioner contending that the majority decision of the trustees is not binding on her. In fact she has acted on the decision by accepting the shares offered to her at a valuation to be fixed by the auditors. Offer to othercontention also can not be accepted. The Company did inform all itsthat the trustees were proposing to sell the shares in question and that in the event of the petitioners not exercising their right under Articlethe shares would be available for purchase by the other shareholders. None of the other shareholders showed any interest in purchasing these shares. It was submitted before us that the 2nd petitioner, being acould have purchased these shares in her own right even if she had declined to purchase these shares as a nominee of the 1st petitioner, under ArticleThere is however, no material before us which would indicate that she had, at any time, informed the company that she proposed to exercise her rights as a shareholder to purchase these shares. Throughout, even in various litigations which are pending, her claim has been to enforce her rights under Articleas a nominee of the 1st petitioner. There is therefore no basis for the submission that the 2nd petitioner had exercised her rights as an ordinary shareholder to purchase these shares. Valuation by the AuditorsArticle 61 of the Articles of Association the auditors are required to certify in writing what, in their opinion, is the fair value of the shares in case there is any difference between the transferrer and the purchaser as to the fair value of a share. The article further provides that in fixing this fair value the auditors shall be considered as acting as anIN the first place, there is no material before us which would indicate that the valuation made by the auditors was not fair. On the contrary, while the auditors valued the shares at Rs.2160/each, at the actual sale to the 5th respondent and the companies controlled by him, the shares fetched a higher price of Rs. 2300/per share. We have also to bear in mind that the 3417 shares held by the trustees as also 93 shares held personally by some of the trustees, were sold as a controlling block of shares in the 1st respondent Company. They would therefore fetch a higher price. The trustees were also duty bound to obtain the best possible price for the shares because the sale proceeds were impressed with the public trust created by the settler. They were therefore entitled to sell these shares as a controlling block of shares in the 1st respondent, Company. As a consequence they seem to have fetched a good price of Rs.. The valuation made by the auditors, therefore, in this context cannot be considered as unfair.(34) THE petitioners have not relied upon the balance sheets of the Company or any other financial data of the company to establish that the valuation made by the auditors was unfair. The petitioners however contend that at a subsequent date, after having obtained control of the 1st respondent company, the Board of Directors issued an additional 17,666 shares at par. This according to the petitioners, would indicate that the valuation made by the auditors of the company was unfair. We do not see how a fresh issue of shares at a subsequent date at per can, in any manner affect the valuation earlier made by the auditors of the company of shares which were then available for sale. The Board of Directors are within their right in issuing fresh shares at par. They could have even issued bonus shares. This does not mean that the earlier share valuation which was made by the auditors in respect of the shares which were sold by one group of shareholders to another was unfair. In fact we have not been shown even the balance sheets of the company for the relevant dates in order to establish the petitioners claim upon the fact that they have made a complaint to the Institution of Auditors in respect of the conduct of the auditors of this company. That by itself cannot establish that the valuation wasdo not have any necessary material to indicate what were the funds available with the petitioners, what according to the petitioners was the fair value of the shares and whether the funds with the petitioners were adequate for the purchase of these shares at the "fair value" as claimed by the petitioners. The entire argument is therefore purely hypothetical. In fact, in this situation, there appears to be a clear conflict of interests and duties as far as the petitioners are concerned. The 1st petitioner, as an executor/trustee under the will of her husband was duty bound to realise the maximum possible price for the shares held by her along with other executors so that the maximum possible amount can be made available for the purposes of the trust created by her deceased husband. On the other hand, as a person who was entitled to purchase these shares in exercise of her right ofpreemption under Articleof the Article of association, she was interested in obtaining these shares at as low a price as possible. The second petitioner was only her nominee for the purpose of purchase of these shares. Both were therefore, equally interested in purchasing these shares at as low a price as possible. The entire challenge to the valuation made by the auditors of the company indicates the interest of the petitioners in obtaining these shares at as low a price as possible. Looking to this clear conflict of interests and duties, it is doubtful, whether the petitioners, so long as the 1st petitioner remained an executor/trustee, could have at all purchased these shares in exercise of their rights under ArticleIn any case we have no material to arrive at any finding of fraud or collusion on the part of the auditors, or even any deliberate overearlier stated, there is no material which would indicate that the executors asked the auditors to overvalue the shares. In fact, the shares when sold fetched a higher price that fixed by the auditors. Moreover in the case of respondents Nos. 3 and 4, their personal interest does not conflict with their interest as trustees and executors. Both were equally interested in getting as good a price as possible for the shares. They are therefore not in the same position as the petitioners. NaturalTHE entire argument is misconceived. The auditors were acting as experts and relying on their own skill and judgment in giving their valuation of shares. The question of applying principles of natural justice in such a case does not arise. In any case they were not bound to follow the procedure as suggested by the petitioners. Moreover, before giving their valuation certificate, the auditors did ask the petitioners whether they would like to make any submission or produce any material regarding the valuation of shares. They extended time for this purpose at the request of the petitioners. The petitioners however did not avail of this opportunity and on the last day of the extended time, claimed that natural justice was denied to them because the draft valuation etc. were not meant to them for comment : Hence this contention of the petitioners has no merit. Readiness and willingness of the petitioners tothese circumstances the executors were free to offer the shares for sale elsewhere in accordance with the articles of the company. There is no breach of any contract on the part of theDelhi High Court also said that the law does not require an agenda for a meeting of the Board of Directors and any business whatsoever can be transacted at the Board Meeting. In any case this is, at the highest, only an irregularity and it would not vitiate the transfer ofare not very impressed with this so called financialclearly indicates that respondent No. 5 and his group of shareholders, who were in control of the respondent Company, had decided to make a fresh issue of share capital of themselves at par so as to strengthen their control over the Company. For this purpose they brought in certain additional funds, being the price of these shares which they purchased atthis irregularity does not, in our view, vitiate the decision which was taken. As set out earlier, the Court will not interfere in the case of irregularities which can be cured. In the present case, even without these additional shares which were issued, respondent No. 5 and his group of shareholders had a majority control over the Company. This is clear from the votes which were cast at the Annual General Meeting in favour of and against this fresh issue of shares. 4260 votes were cast in favour of this resolution while 3049 votes were cast against the resolution. Hence they were and are in a position to get the fresh issue sanctioned at the meeting of the Company after notice. Moreover, at the same Annual General Meeting, it was decided that an extra ordinary general meeting of the Company would be called after proper notice to ratify this fresh issue of 17,666 shares at par. Such an extra ordinary general meeting was held after notice on 31st January, 1986 when the issue of these shares at par was ratified. According to the petitioners this ratification is invalid as the shareholders of the newly issued 17,666 shares also voted at this extra ordinary general meeting in favour of the resolution. But quite early, even if we ignore the 17,666 additional votes which were cast in favour of the resolution that remaining votes in favour, which are 4260, far exceed 3049 votes case against the resolution. The ratification is valid. We do not see any reason to invalidate thisdo not see how this issue of 17,666 shares at par can be invalidated, although undoubtedly, it has caused prejudice to the petitioners by strengthening the control of respondent No. 5 and his group over the 1st respondent company. If any other remedy at law is available to the petitioners in this connection they are free to avail of it. But we fail to see how the register of members can be rectified under section 155 of the Companies Act in respect of these shares when respondents were within their right in issuing these shares at par. Subsequent events:(50) THE appeals before us from the judgment of the learned Judge dated 31st March, 1988, declining to grant any extension of time, are all filed by either the trustees, the purchasers from the trustees or by the Company in respect of certain observations made in that judgment and order. The petitioners have not filed any appeal before us challenging the order refusing to extend time for the deposit of Rs.. The impugned observations are in respect of the readiness and willingness of the petitioners to purchase the shares in question. The learned Judge has observed that on account of the failure of the petitioners to deposit Rs. 80,73,000/within the stipulated period the petition stands dismissed. But the observations made in his judgment would continue to bind the parties. In view of the fact that the appeals from the main judgment are now allowed, the appellants from this part of the order can have no grievance now.(51) IN his judgment of 31st March, 1988 the learned Single Judge has also observed that in the suit for specific performance it would be open for the petitioners to show their capacity and to convince the Court that they are in a position to really purchase these shares and to enforce specific performance of the contract. These observations should not be interpreted to mean that the readiness and willingness of the petitioners will have to be judged only at the point of time when the suits for specific performance are decided. The learned Judge has merely referred to the fact that the question of readiness and willingness of the petitioners throughout the material period, to purchase these charges will have to be decided by the Court which tries those suits on the basis of the evidence which is available before the Court. These observations cannot be read to mean that if the law requires the petitioners to prove their readiness and willingness throughout the material period, the requirements of law have, in any manner, been modified by the learned Single Judge or bythese circumstances and looking to the fact that the petitioners have not been able to raise the funds within the period given to them by the learned Single Judge for acquiring a controlling interest in the 1st respondent Company, we do not see how any reliefs can be granted to the petitioners. The direction of the learned Single Judge relating to the retention of 17,666 shares with the company until they are reallotted by the directors also, in our view, is a relief which is not within the ambit of section 155 of the Companies Act. Be that as it may, looking to these circumstances, it is difficult to grant any relief to the petitioners under section 155. They have been unable to avail of their rights under Articleto acquire controlling interest in the 1st respondent Company. For various reasons with which we are not concerned, either they do not have the requisite funds, or for reasons best known to them, they have not availed of their rights as required by law. We may also mention in this connection the fact that even initially, the suit which they filed in a Poona Court was not a suit for specific performance of their right under Articlebut only a suit to restrain the executors from selling the shares to anyone other than the petitioners. Only in August 1986 they filed the present company petition which again is for a limited relief under section 155 of the Companies Act and not a petition under section 397 or 398 of the Companies Act. It was only after the judgment was delivered by the learned Single Judge in this company petition that they have now filed two suits in March 1988 for specific performance. Section 155 is a discretionary remedy which is not normally resorted to when there are allegations of fraud. We need not however, go into this aspect of the matter because, in any event, for reasons which are set out by us in our order, the petitioners are not entitled to any relief as prayed for by them in the petition. The Judgment of 31st March 1988: | 1 | 10,084 | 2,834 | ### Instruction:
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and his group over the 1st respondent company. If any other remedy at law is available to the petitioners in this connection they are free to avail of it. But we fail to see how the register of members can be rectified under section 155 of the Companies Act in respect of these shares when respondents were within their right in issuing these shares at par. Subsequent events :(48) WE would also like to refer to some subsequent events which also make difficult to set the clock back, so to speak. In the first place, by selling 3417 shares the executors received a sum of about Rs.80 lakhs. After discharging the liabilities under the will of the deceased Dr. Parulekar, net sale proceeds amounting to about Rs.60 Lakhs have been used to create a public charitable trust for the purposes set out by the settler in his will. The fund is now impressed with a public charitable trust. Secondly, the fund which were brought into the Company by respondent No. 5 and his controlling group of companies by purchasing the fresh issue of 17,666 shares, has also been utilised by the Company for its expansion, for investments and for the purchase of machinery. This fund also in not now available for being released to the original buyers.(49) In these circumstances the learned Single Judge, while allowing the petition, had directed the petitioners to bring in a sum of Rs. 80,73,000/- within the time stipulated by him under his order. The petitioners however, failed to deposit this amount or any part thereof in Court within the stipulated period. Their application for extension of time was also rejected by the learned Single Judge for reasons which are set out by him in his order of 31st March, 1988. In these circumstances and looking to the fact that the petitioners have not been able to raise the funds within the period given to them by the learned Single Judge for acquiring a controlling interest in the 1st respondent Company, we do not see how any reliefs can be granted to the petitioners. The direction of the learned Single Judge relating to the retention of 17,666 shares with the company until they are reallotted by the directors also, in our view, is a relief which is not within the ambit of section 155 of the Companies Act. Be that as it may, looking to these circumstances, it is difficult to grant any relief to the petitioners under section 155. They have been unable to avail of their rights under Article 57-A to acquire controlling interest in the 1st respondent Company. For various reasons with which we are not concerned, either they do not have the requisite funds, or for reasons best known to them, they have not availed of their rights as required by law. We may also mention in this connection the fact that even initially, the suit which they filed in a Poona Court was not a suit for specific performance of their right under Article 57-A, but only a suit to restrain the executors from selling the shares to anyone other than the petitioners. Only in August 1986 they filed the present company petition which again is for a limited relief under section 155 of the Companies Act and not a petition under section 397 or 398 of the Companies Act. It was only after the judgment was delivered by the learned Single Judge in this company petition that they have now filed two suits in March 1988 for specific performance. Section 155 is a discretionary remedy which is not normally resorted to when there are allegations of fraud. We need not however, go into this aspect of the matter because, in any event, for reasons which are set out by us in our order, the petitioners are not entitled to any relief as prayed for by them in the petition. The Judgment of 31st March 1988 :(50) THE appeals before us from the judgment of the learned Judge dated 31st March, 1988, declining to grant any extension of time, are all filed by either the trustees, the purchasers from the trustees or by the Company in respect of certain observations made in that judgment and order. The petitioners have not filed any appeal before us challenging the order refusing to extend time for the deposit of Rs. 80,73,000/ -. The impugned observations are in respect of the readiness and willingness of the petitioners to purchase the shares in question. The learned Judge has observed that on account of the failure of the petitioners to deposit Rs. 80,73,000/- within the stipulated period the petition stands dismissed. But the observations made in his judgment would continue to bind the parties. In view of the fact that the appeals from the main judgment are now allowed, the appellants from this part of the order can have no grievance now.(51) IN his judgment of 31st March, 1988 the learned Single Judge has also observed that in the suit for specific performance it would be open for the petitioners to show their capacity and to convince the Court that they are in a position to really purchase these shares and to enforce specific performance of the contract. These observations should not be interpreted to mean that the readiness and willingness of the petitioners will have to be judged only at the point of time when the suits for specific performance are decided. The learned Judge has merely referred to the fact that the question of readiness and willingness of the petitioners throughout the material period, to purchase these charges will have to be decided by the Court which tries those suits on the basis of the evidence which is available before the Court. These observations cannot be read to mean that if the law requires the petitioners to prove their readiness and willingness throughout the material period, the requirements of law have, in any manner, been modified by the learned Single Judge or by us.
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of shareholders had a majority control over the Company. This is clear from the votes which were cast at the Annual General Meeting in favour of and against this fresh issue of shares. 4260 votes were cast in favour of this resolution while 3049 votes were cast against the resolution. Hence they were and are in a position to get the fresh issue sanctioned at the meeting of the Company after notice. Moreover, at the same Annual General Meeting, it was decided that an extra ordinary general meeting of the Company would be called after proper notice to ratify this fresh issue of 17,666 shares at par. Such an extra ordinary general meeting was held after notice on 31st January, 1986 when the issue of these shares at par was ratified. According to the petitioners this ratification is invalid as the shareholders of the newly issued 17,666 shares also voted at this extra ordinary general meeting in favour of the resolution. But quite early, even if we ignore the 17,666 additional votes which were cast in favour of the resolution that remaining votes in favour, which are 4260, far exceed 3049 votes case against the resolution. The ratification is valid. We do not see any reason to invalidate thisdo not see how this issue of 17,666 shares at par can be invalidated, although undoubtedly, it has caused prejudice to the petitioners by strengthening the control of respondent No. 5 and his group over the 1st respondent company. If any other remedy at law is available to the petitioners in this connection they are free to avail of it. But we fail to see how the register of members can be rectified under section 155 of the Companies Act in respect of these shares when respondents were within their right in issuing these shares at par. Subsequent events:(50) THE appeals before us from the judgment of the learned Judge dated 31st March, 1988, declining to grant any extension of time, are all filed by either the trustees, the purchasers from the trustees or by the Company in respect of certain observations made in that judgment and order. The petitioners have not filed any appeal before us challenging the order refusing to extend time for the deposit of Rs.. The impugned observations are in respect of the readiness and willingness of the petitioners to purchase the shares in question. The learned Judge has observed that on account of the failure of the petitioners to deposit Rs. 80,73,000/within the stipulated period the petition stands dismissed. But the observations made in his judgment would continue to bind the parties. In view of the fact that the appeals from the main judgment are now allowed, the appellants from this part of the order can have no grievance now.(51) IN his judgment of 31st March, 1988 the learned Single Judge has also observed that in the suit for specific performance it would be open for the petitioners to show their capacity and to convince the Court that they are in a position to really purchase these shares and to enforce specific performance of the contract. These observations should not be interpreted to mean that the readiness and willingness of the petitioners will have to be judged only at the point of time when the suits for specific performance are decided. The learned Judge has merely referred to the fact that the question of readiness and willingness of the petitioners throughout the material period, to purchase these charges will have to be decided by the Court which tries those suits on the basis of the evidence which is available before the Court. These observations cannot be read to mean that if the law requires the petitioners to prove their readiness and willingness throughout the material period, the requirements of law have, in any manner, been modified by the learned Single Judge or bythese circumstances and looking to the fact that the petitioners have not been able to raise the funds within the period given to them by the learned Single Judge for acquiring a controlling interest in the 1st respondent Company, we do not see how any reliefs can be granted to the petitioners. The direction of the learned Single Judge relating to the retention of 17,666 shares with the company until they are reallotted by the directors also, in our view, is a relief which is not within the ambit of section 155 of the Companies Act. Be that as it may, looking to these circumstances, it is difficult to grant any relief to the petitioners under section 155. They have been unable to avail of their rights under Articleto acquire controlling interest in the 1st respondent Company. For various reasons with which we are not concerned, either they do not have the requisite funds, or for reasons best known to them, they have not availed of their rights as required by law. We may also mention in this connection the fact that even initially, the suit which they filed in a Poona Court was not a suit for specific performance of their right under Articlebut only a suit to restrain the executors from selling the shares to anyone other than the petitioners. Only in August 1986 they filed the present company petition which again is for a limited relief under section 155 of the Companies Act and not a petition under section 397 or 398 of the Companies Act. It was only after the judgment was delivered by the learned Single Judge in this company petition that they have now filed two suits in March 1988 for specific performance. Section 155 is a discretionary remedy which is not normally resorted to when there are allegations of fraud. We need not however, go into this aspect of the matter because, in any event, for reasons which are set out by us in our order, the petitioners are not entitled to any relief as prayed for by them in the petition. The Judgment of 31st March 1988:
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Ratan Lal Patel Vs. Dr. Hari Singh Gour Vishwavidyalaya & Another | M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned order dated 13.12.2021 passed by the Division Bench of the High Court of Madhya Pradesh, Principal Seat at Jabalpur in Review Petition/Application No. 1189/2020, by which the High Court has allowed the said review petition/application and has recalled order dated 10.11.2020 passed in Writ Appeal No. 748/2017 and has restored the said writ appeal to its file, the original writ petitioner – respondent in the writ appeal before the Division Bench has preferred the present appeal. 2. That the appellant herein filed Writ Petition No. 17517/2014 before the High Court challenging the order of superannuation and seeking directions to continue him in service till completion of age of 62 years. The said writ petition came to be allowed by the learned Single Judge along with other writ petitions and they were granted the extended age of retirement, i.e, up to 62 years. 2.1 The University filed Writ Appeal No. 748/2017 before the Division Bench of the High Court, challenging the judgment and order dated 23.03.2017 passed in Writ Petition No. 17517/2014. By a detailed judgment and order dated 10.11.2020, the Division Bench of the High Court dismissed the said writ appeal along with other appeals/petition and confirmed the judgment and order passed by the learned Single Judge. 2.2 That thereafter the University, through its Registrar, filed a review application before the Division Bench of the High Court. Order dated 10.11.2020 passed in Writ Appeal No. 748/2017 was sought to be reviewed/recalled/modified/set aside on number of grounds mentioned in the review application. By the impugned order, the Division Bench of the High Court has allowed the said review application and has recalled order dated 10.11.2020 passed in Writ Appeal No. 748/2017 and has restored the writ appeal to its original file. 2.3 Feeling aggrieved and dissatisfied with the impugned order passed by the Division Bench of the High Court allowing the review application and reviewing its earlier order dated 10.11.2020 passed in Writ Appeal No. 748/2017, the original writ petitioner before the learned Single Judge and the respondent in Writ Appeal No. 748/2017 has preferred the present appeal. 3. We have heard the learned counsel for the respective parties at length. We have gone through the impugned order dated 13.12.2021 passed by the High Court allowing the review application and recalling its earlier reasoned judgment and order dated 10.11.2020 dismissing the writ appeal. The same reads as under: Heard learned counsels. On considering the pleadings, it is noticed that there is apparent error on the face of record which calls for interference. The matter requires reconsideration. Hence, the order dated 10.11.2020 is reviewed and W.P. No. 8096 of 2020, W.A. No. 528 of 2017, W.A. No. 748 of 2017 and W.A. No. 753 of 2017 are restored to their files. These review petitions are disposed of. 4. Having considered the impugned order, it can be seen that the impugned order allowing the review application is a cryptic, nonreasoned and non-speaking order. Nothing has been mentioned and/or observed as to what was that error apparent on the face of the record which called for interference. It cannot be disputed that the review jurisdiction can be exercised only in a case where it is found that there is an error apparent on the face of the record and not otherwise. Therefore, while exercising the review jurisdiction, the Court has to first satisfy itself on any error apparent on the face of the record which calls for exercise of the review jurisdiction. Merely stating that there is an error apparent on the face of the record is not sufficient. It must be demonstrated that in fact there was an error apparent on the face of the record. There must be a speaking and reasoned order as to what was that error apparent on the face of the record, which called for interference and therefore a reasoned order is required to be passed. Unless such reasons are given and unless what was that error apparent on the face of the record is stated and mentioned in the order, the higher forum would not be in a position to know what has weighed with the Court while exercising the review jurisdiction and what was that error apparent on the face of the record. 5. In the present case, except stating that it is noticed that there is apparent error on the face of record which calls for interference, nothing has been mentioned on what was that error apparent on the face of the record. Therefore, the impugned order, allowing the review application being a cryptic and non-reasoned order, the same is unsustainable in law and deserves to be quashed and set aside. Hence, the matter is to be remanded to the Division Bench of the High Court to decide the review application afresh, in accordance with law and on its own merits and within the parameters of the review jurisdiction and to pass a speaking and reasoned order. | 1[ds]4. Having considered the impugned order, it can be seen that the impugned order allowing the review application is a cryptic, nonreasoned and non-speaking order. Nothing has been mentioned and/or observed as to what was that error apparent on the face of the record which called for interference. It cannot be disputed that the review jurisdiction can be exercised only in a case where it is found that there is an error apparent on the face of the record and not otherwise. Therefore, while exercising the review jurisdiction, the Court has to first satisfy itself on any error apparent on the face of the record which calls for exercise of the review jurisdiction. Merely stating that there is an error apparent on the face of the record is not sufficient. It must be demonstrated that in fact there was an error apparent on the face of the record. There must be a speaking and reasoned order as to what was that error apparent on the face of the record, which called for interference and therefore a reasoned order is required to be passed. Unless such reasons are given and unless what was that error apparent on the face of the record is stated and mentioned in the order, the higher forum would not be in a position to know what has weighed with the Court while exercising the review jurisdiction and what was that error apparent on the face of the record.5. In the present case, except stating that it is noticed that there is apparent error on the face of record which calls for interference, nothing has been mentioned on what was that error apparent on the face of the record. Therefore, the impugned order, allowing the review application being a cryptic and non-reasoned order, the same is unsustainable in law and deserves to be quashed and set aside. Hence, the matter is to be remanded to the Division Bench of the High Court to decide the review application afresh, in accordance with law and on its own merits and within the parameters of the review jurisdiction and to pass a speaking and reasoned order. | 1 | 915 | 386 | ### Instruction:
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M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned order dated 13.12.2021 passed by the Division Bench of the High Court of Madhya Pradesh, Principal Seat at Jabalpur in Review Petition/Application No. 1189/2020, by which the High Court has allowed the said review petition/application and has recalled order dated 10.11.2020 passed in Writ Appeal No. 748/2017 and has restored the said writ appeal to its file, the original writ petitioner – respondent in the writ appeal before the Division Bench has preferred the present appeal. 2. That the appellant herein filed Writ Petition No. 17517/2014 before the High Court challenging the order of superannuation and seeking directions to continue him in service till completion of age of 62 years. The said writ petition came to be allowed by the learned Single Judge along with other writ petitions and they were granted the extended age of retirement, i.e, up to 62 years. 2.1 The University filed Writ Appeal No. 748/2017 before the Division Bench of the High Court, challenging the judgment and order dated 23.03.2017 passed in Writ Petition No. 17517/2014. By a detailed judgment and order dated 10.11.2020, the Division Bench of the High Court dismissed the said writ appeal along with other appeals/petition and confirmed the judgment and order passed by the learned Single Judge. 2.2 That thereafter the University, through its Registrar, filed a review application before the Division Bench of the High Court. Order dated 10.11.2020 passed in Writ Appeal No. 748/2017 was sought to be reviewed/recalled/modified/set aside on number of grounds mentioned in the review application. By the impugned order, the Division Bench of the High Court has allowed the said review application and has recalled order dated 10.11.2020 passed in Writ Appeal No. 748/2017 and has restored the writ appeal to its original file. 2.3 Feeling aggrieved and dissatisfied with the impugned order passed by the Division Bench of the High Court allowing the review application and reviewing its earlier order dated 10.11.2020 passed in Writ Appeal No. 748/2017, the original writ petitioner before the learned Single Judge and the respondent in Writ Appeal No. 748/2017 has preferred the present appeal. 3. We have heard the learned counsel for the respective parties at length. We have gone through the impugned order dated 13.12.2021 passed by the High Court allowing the review application and recalling its earlier reasoned judgment and order dated 10.11.2020 dismissing the writ appeal. The same reads as under: Heard learned counsels. On considering the pleadings, it is noticed that there is apparent error on the face of record which calls for interference. The matter requires reconsideration. Hence, the order dated 10.11.2020 is reviewed and W.P. No. 8096 of 2020, W.A. No. 528 of 2017, W.A. No. 748 of 2017 and W.A. No. 753 of 2017 are restored to their files. These review petitions are disposed of. 4. Having considered the impugned order, it can be seen that the impugned order allowing the review application is a cryptic, nonreasoned and non-speaking order. Nothing has been mentioned and/or observed as to what was that error apparent on the face of the record which called for interference. It cannot be disputed that the review jurisdiction can be exercised only in a case where it is found that there is an error apparent on the face of the record and not otherwise. Therefore, while exercising the review jurisdiction, the Court has to first satisfy itself on any error apparent on the face of the record which calls for exercise of the review jurisdiction. Merely stating that there is an error apparent on the face of the record is not sufficient. It must be demonstrated that in fact there was an error apparent on the face of the record. There must be a speaking and reasoned order as to what was that error apparent on the face of the record, which called for interference and therefore a reasoned order is required to be passed. Unless such reasons are given and unless what was that error apparent on the face of the record is stated and mentioned in the order, the higher forum would not be in a position to know what has weighed with the Court while exercising the review jurisdiction and what was that error apparent on the face of the record. 5. In the present case, except stating that it is noticed that there is apparent error on the face of record which calls for interference, nothing has been mentioned on what was that error apparent on the face of the record. Therefore, the impugned order, allowing the review application being a cryptic and non-reasoned order, the same is unsustainable in law and deserves to be quashed and set aside. Hence, the matter is to be remanded to the Division Bench of the High Court to decide the review application afresh, in accordance with law and on its own merits and within the parameters of the review jurisdiction and to pass a speaking and reasoned order.
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4. Having considered the impugned order, it can be seen that the impugned order allowing the review application is a cryptic, nonreasoned and non-speaking order. Nothing has been mentioned and/or observed as to what was that error apparent on the face of the record which called for interference. It cannot be disputed that the review jurisdiction can be exercised only in a case where it is found that there is an error apparent on the face of the record and not otherwise. Therefore, while exercising the review jurisdiction, the Court has to first satisfy itself on any error apparent on the face of the record which calls for exercise of the review jurisdiction. Merely stating that there is an error apparent on the face of the record is not sufficient. It must be demonstrated that in fact there was an error apparent on the face of the record. There must be a speaking and reasoned order as to what was that error apparent on the face of the record, which called for interference and therefore a reasoned order is required to be passed. Unless such reasons are given and unless what was that error apparent on the face of the record is stated and mentioned in the order, the higher forum would not be in a position to know what has weighed with the Court while exercising the review jurisdiction and what was that error apparent on the face of the record.5. In the present case, except stating that it is noticed that there is apparent error on the face of record which calls for interference, nothing has been mentioned on what was that error apparent on the face of the record. Therefore, the impugned order, allowing the review application being a cryptic and non-reasoned order, the same is unsustainable in law and deserves to be quashed and set aside. Hence, the matter is to be remanded to the Division Bench of the High Court to decide the review application afresh, in accordance with law and on its own merits and within the parameters of the review jurisdiction and to pass a speaking and reasoned order.
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Mackinon Mackenzie Limited Vs. G.S. Raj and Others | trial Court held that there was breach of Section 25G of Industrial Disputes Act.33. At the cost of repetition it must be observed that in the instant case the Respondent company has failed to establish that for reasons recorded by them they deviated from Rule 25G. They failed to prove from the seniority list the retrenched workers and the reasons for retrenchment for particular workers. If the Respondent company had adduced such evidence then complainant union was bound to rebut the said evidence but as the Respondent company itself failed to mention the reasons for deviation the question of complainant union pleading that said deviation was not bonafide does not arose. Thus, after careful scrutiny of the entire evidence and position of law we have absolutely no hesitation to hold that in the instant case there was clear cut breach of Section 25G by the Respondent company.34. The learned trial Judge has specifically held that the Respondent company had in fact not published the notice as well as the seniority list on the notice board as contended by them. It is in fact established that defendant company had tried to keep every thing in secret and for that purpose only they had not displayed any notice of retrenchment on the notice board initially. They preferred to send the notices to the workers who were to be retrenched by RPAD. Though usually the letters from the company are sent after franking at the companys machine for the notices in question the said machines was not used and some different machines was used. That was obviously with a view that workers should not come to know early about the process of retrenchment. The learned trial Judge has rightly recorded the finding that 7 days notice as contemplated in Rule 81 of the Industrial Disputes (Bombay) Rule 1957 was not issued in the instant case. The said finding of fact is based on the evidence on record and proper appreciation of the same. We therefore feel that the same is unassailable.RULE 81 OF INDUSTRIAL DISPUTES (BOMBAY) RULES, 1957 says ---81. Maintenance of seniority list of workmen - (1) The employer shall prepare a list of all workmen in the particular category from which retrenchment is contemplated arranged according to the seniority of their service in that category and cause a copy thereof to be posted on a notice board in conspicuous place in the premises of the industrial establishment at least seven days before the actual date of retrenchment.35. Shri Grover, learned Counsel for the complainant union submitted that above mentioned Rule is mandatory and breach of the same amounts to unfair labour practice. For this proposition he has placed reliance on a case Navbharat Hindi Daily V/s. Navbharat Shramik Sangh- 1985 (I) LLJ Bombay 474 wherein it has been held that Section 25G can be followed only if seniority list has been prepared in accordance with the rule 81. The intention of such a list is to allow workmen to object to the said list and thereby avoid hardship. The exhibition of such a list is with a view to protect the interest of workmen and to provide safeguard against Section 25G and as such Rule 81 casts an obligation on the employer to strictly follow it. In fact it is very clear that Rule 81 has been introduced to ensure due compliance of Section 25G of Industrial Disputes Act. For this useful reference an be made to a case Trade Wings Ltd. V/s. Prabhakar 1992(1) LISSOM 9. The learned Counsel for the complaint union has also drawn our attention to a case Prakash M. Dalal V/s. Tata Engineers Locomotive 1996(1) LYSOL 13 wherein also it has been held that provisions contained in Rule 81 is for effective compliance of Section 25G and is mandatory and its breach would definitely vitiate any order of retrenchment of a workmen since in the absence of a seniority list. Compliance of Section 25G cannot be checked and verified. Thus there is catena of rulings in which it has been held that Rule 81 is mandatory. However Shri Cama, learned Advocate for the Respondent company vehemently argued before us that in Chemical Major Sabah V/s. Vistas Organic (1995) IS SLUR 466 the learned single Judge of this Honble Court (Coram: Shrikirshna J as His Lordship then was) has held that Rule 81 per se is only directory rule and not mandatory. The learned Counsel for the union however submitted that as in the case of Navbharat Daily Case, Division Bench of this Court has held that Rule 81 is mandatory, that decision holds the field and should be accepted. As against this, it was canvassed before us by the learned Advocate for the Respondent company that learned single Judge has in fact considered the observations in N.B. Hind Oil and has observed that Division bench has not laid down the proposition that Rule 81 per se is mandatory. However, as in the instant case there is clear cut breach of Section 25G of Industrial Dispute Act and Rule 81 of the Industrial Bombay Rule 1957, cumulative effect of the same is that action of retrenchment taken by the management is totally illegal and amounts to unfair labour practice.36. We are therefore of the view that the learned trial Judge has rightly declared that Respondent company has committed unfair labour practice under Item 9 of Schedule VI of the M.R.T Act 1971 by not displaying the seniority list as provided in Rule 81 of Industrial Disputes (Bombay) Rules 1957 at the time of retrenching workers and by committing breach of Section 25G of Industrial Disputes Act by not following the Rule of lst come first go and for not recording the reasons for deviation from the said Rule. The order passed by the learned Member, Industrial Court was legal and correct and therefore, the learned single Judge of this Court rejected the writ petition filed by the Respondent company. Thus, there is no substance in this appeal. | 0[ds]20. Bearing in mind the above definitions if we see the pleadings of Respondent Company as well as the evidence on record then also it is very clear that case in hand is not a clear case of closure but it can only be said that it is pertaining to retrenchment arising out of a particular policy adopted by the company viz. curtailing certain activities and closing certain departments of the company. Even if we see the statement of reasons, attached to the notice issued to the workmen, then also we find that the company has nowhere stated therein that they have taken a decision to close down the business entirely. On the contrary, it is stated by them that as company is running into losses the Board of Directors after considering all aspects have taken the decision to rationalise the activities in Bombay office and closing down of its activities apart from the property owning and development and portion of clearing and forwarding business relating to the contracts with Government of India institution such as Central Railway and Lubricant India Ltd. Admittedly, it is not even the case of the company that they took the decision to retrench the workers working in the respective departments which were to be closed. In case of closure, there is an end to the whole or to part of the industry on the other hand retrenchment is a termination of surplus or other employees during the subsistence of an industry.If really the Respondent company had an intention to resort to the policy of closure then certainly they had issued 60 days notice contemplated as per above section, but, admittedly, company has not done so and on the contrary tried to issue notice required for retrenchment. So, from all this material on record and the position of law we have no hesitation to hold that case in question is not a clear case of closure as contemplated under Section 2(cc) mentioned above and it is the case of retrenchment. We are therefore not inclined to accept the argument advanced by the learned Counsel for Respondent company in this behalf.While considering compliance of above mentioned sections, we find that Respondent company has not come forward with clean hands and they have in fact resorted to the method of hide and seek. It was argued on behalf of the Respondent company that there were no proper pleadings on the part of the complainant union in this behalf. According to learned Counsel for the company Shri Cama, it was necessary for the complainant union to state specifically how and in respect of whom rule of last come first go is not followed. It was necessary for the complainant union to specifically plead that junior persons retained in the company and senior persons who have been retrenched were in fact of same ability, grade and skill and as such there was no reason for the company to deviate from Rule 25G. However, with due respect we disagree with this proposition of learned Advocate for the company as the same does not stand to reasons. The bear reading of Section 25G of Industrial Disputes Act shows that power is given to the employer to deviate from rule but at the same time the Section makes it obligatory that said deviation must be for reasons recorded by the employer. If such reasons are recorded by the employer and the same are made known to workmen then they will be in a position to say and point out as to whether the said reasons are correct or not or where the same have gone wrong, but when employer has utterly failed to fulfil the statutory obligation of recording reasons for deviation how one can expect the employees or workmen to plead anything in that behalf. In the instant case there is nothing on record to indicate that the employer while carrying out the process of retrenchment has in fact recorded any such reasons. A feeble attempt is made on the part of the learned Counsel for the company to show that employer is not bound to show the said reasons at the time of retrenchment but the same can be shown for the first time in the court of law. However, this proposition is also very difficult to swallow. If we strictly take into consideration the language of Section 25G, according to us it in fact presupposes recording of reasons whenever retrenchment is made by not following the rule and there is deviation. When we find that reasons are not at all given the question as to whether the same are valid and satisfactory or not in fact does not arise.The Respondent company has tried to place on record one list showing that at the end of such list reasons for deviation were given by the company. However, we find that the said list is in fact not duly proved by the companys witness and as such the same in fact cannot be read in evidence. There is absolutely not an iota of evidence on record to show that the company had in fact passed any specific order with regard to retrenchment of workers from different categories and from different sections and while deviating from Rule 25G recorded reasons for the same. While dealing with this aspect we may consider the evidence adduced by both the parties with regard to displaying of retrenchment notice and seniority list. Right from the beginning the complainant union had taken a stand that the company had never displayed the seniority list of different categories. However, it is the contention of the Respondent company that they had published such notice on the companys notice board onHowever, the complainant union has examined in all 9 witnesses and all of them have stated that at the relevant time they were working in the company and they used to pass by the side of the notice board but they never found any such seniority notice or list on the notice board as contended by the Respondent company. It is true that all these 9 witnesses have been retrenched and as such they may be called as interested persons. However, at the same time it must be noted that there is nothing in their cross examination which would indicate that they are not trustworthy. What is more to be noted is that if really the company had displaced the notice and the seniority list as contended by them onit could have very well examined atleast few workers from the company who have not been retrenched but company has not done so. Not only that but if we see the evidence of the general manager of the Respondent company then also we find that his evidence is very vague and he has in fact no personal knowledge about many things that were happening in the company. He said that at the relevant time franking machine was not in operation while from the evidence of Awatarkar on record it is very clear that the said franking machine was in working condition at that time. This also shows that in order to keep the proposed retrenchment secret the notices to workmen were sent by using other frankingis true that some complaint is lodged by the licensees who had taken the premises from the company but admittedly they were introduced in the premises for the first time onso this itself shows that the evidence adduced by the company to show that notice regarding retrenchment and seniority list were displayed on the notice board is not at all trustworthy. The learned trial Judge has considered entire evidence on this point minutely and has rightly held that evidence of the workers in this behalf is trustworthy and the evidence of Respondent company cannot be accepted and believed. So, he has recorded a finding of fact that no notice of retrenchment and seniority list were published by the company on the notice board onas contended by the Company. Naturally, there is no reason to interfere with the said finding of fact while exercising writproposition advanced by the learned Advocate for the Respondent company that manager can deviate from rule for valid and satisfactory reasons is not at all in dispute but in the instant case the management has miserably failed to show that when they deivated from the rule they recorded reasons for the same and the said reasons are valid and satisfactory. Similarly, even in J.K. Iron and Steel Co. V/s Its workmen AIR 1960 SC 1288 the Apex Court has observed that if the employer departs from the rule of last come first go, without any acceptable or sound reasoning, a tribunal will be well justified to hold that the action of the management is not bonafide. It must be noted that it is only in his written submissions the learned Counsel for the Respondent company has tried to give some reasons for deviation from rule but as pointed out by us above the company had in fact not come with clean hands on this point and the learned trial Judge has rightly observed that there is no convincing evidence to show that proper seniority lists were displayed and deviation from the rule was for not validthe said case is of no use to the present company because here the company has not at all in fact published the seniority list. Besides, they had also not made known to all the workers as to who are the persons who have actually been retrenched and what is their seniority. When there was nothing on record for the workmen to come to know that there is deviation from Rule 25G the question of having pleadings that deviation is malafide does not arise. In such a case when workmen plead that there is a breach of Section 25G the same is certainly sufficient. It is for the company to establish as to whether there is no deviation and if there is deviation it is for the valid reasons. As pointed out by the learned Advocate for the complainant Union even in a case Industrial Chemicals Ltd. V/s Labour Court 1976 LLJ Madras 137 it has been held that in case of departure from the rule of "last come first go" the employer must assign reasons for retrenching workmen from service and record them in the notice of retrenchment. This is not done by respondent company in present case. So, the above stated case is also of no use to the Respondent Company.However, the facts of these cases are quite different and they in fact do not support the case o the present Respondent company. For example, in the later case the Court observed that the complainant must set out in the first instance the deviation to show that the management has adopted unfair labour practice and only then the other side be asked to lead evidence to rebut the same. In the present case by specifically raising plea that provision of Section 25G of Industrial Dispute Act have been followed by the Respondent company, the complainant union had in fact laid foundation regarding their grievance. Thereafter it was necessary for the Respondent company to adduce sufficient evidence to rebut the same and show that provisions of section 25G of Industrial Disputes Act are complied. However, as mentioned above Respondent company did not adduce any satisfactory evidence and as a result of the same the learned trial Court held that there was breach of Section 25G of Industrial Disputes Act.33. At the cost of repetition it must be observed that in the instant case the Respondent company has failed to establish that for reasons recorded by them they deviated from Rule 25G. They failed to prove from the seniority list the retrenched workers and the reasons for retrenchment for particular workers. If the Respondent company had adduced such evidence then complainant union was bound to rebut the said evidence but as the Respondent company itself failed to mention the reasons for deviation the question of complainant union pleading that said deviation was not bonafide does not arose. Thus, after careful scrutiny of the entire evidence and position of law we have absolutely no hesitation to hold that in the instant case there was clear cut breach of Section 25G by the Respondent company.34. The learned trial Judge has specifically held that the Respondent company had in fact not published the notice as well as the seniority list on the notice board as contended by them. It is in fact established that defendant company had tried to keep every thing in secret and for that purpose only they had not displayed any notice of retrenchment on the notice board initially. They preferred to send the notices to the workers who were to be retrenched by RPAD. Though usually the letters from the company are sent after franking at the companys machine for the notices in question the said machines was not used and some different machines was used. That was obviously with a view that workers should not come to know early about the process of retrenchment. The learned trial Judge has rightly recorded the finding that 7 days notice as contemplated in Rule 81 of the Industrial Disputes (Bombay) Rule 1957 was not issued in the instant case. The said finding of fact is based on the evidence on record and proper appreciation of the same. We therefore feel that the same isas in the instant case there is clear cut breach of Section 25G of Industrial Dispute Act and Rule 81 of the Industrial Bombay Rule 1957, cumulative effect of the same is that action of retrenchment taken by the management is totally illegal and amounts to unfair labour practice.36. We are therefore of the view that the learned trial Judge has rightly declared that Respondent company has committed unfair labour practice under Item 9 of Schedule VI of the M.R.T Act 1971 by not displaying the seniority list as provided in Rule 81 of Industrial Disputes (Bombay) Rules 1957 at the time of retrenching workers and by committing breach of Section 25G of Industrial Disputes Act by not following the Rule of lst come first go and for not recording the reasons for deviation from the said Rule. The order passed by the learned Member, Industrial Court was legal and correct and therefore, the learned single Judge of this Court rejected the writ petition filed by the Respondent company. Thus, there is no substance in this appeal. | 0 | 8,162 | 2,533 | ### Instruction:
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trial Court held that there was breach of Section 25G of Industrial Disputes Act.33. At the cost of repetition it must be observed that in the instant case the Respondent company has failed to establish that for reasons recorded by them they deviated from Rule 25G. They failed to prove from the seniority list the retrenched workers and the reasons for retrenchment for particular workers. If the Respondent company had adduced such evidence then complainant union was bound to rebut the said evidence but as the Respondent company itself failed to mention the reasons for deviation the question of complainant union pleading that said deviation was not bonafide does not arose. Thus, after careful scrutiny of the entire evidence and position of law we have absolutely no hesitation to hold that in the instant case there was clear cut breach of Section 25G by the Respondent company.34. The learned trial Judge has specifically held that the Respondent company had in fact not published the notice as well as the seniority list on the notice board as contended by them. It is in fact established that defendant company had tried to keep every thing in secret and for that purpose only they had not displayed any notice of retrenchment on the notice board initially. They preferred to send the notices to the workers who were to be retrenched by RPAD. Though usually the letters from the company are sent after franking at the companys machine for the notices in question the said machines was not used and some different machines was used. That was obviously with a view that workers should not come to know early about the process of retrenchment. The learned trial Judge has rightly recorded the finding that 7 days notice as contemplated in Rule 81 of the Industrial Disputes (Bombay) Rule 1957 was not issued in the instant case. The said finding of fact is based on the evidence on record and proper appreciation of the same. We therefore feel that the same is unassailable.RULE 81 OF INDUSTRIAL DISPUTES (BOMBAY) RULES, 1957 says ---81. Maintenance of seniority list of workmen - (1) The employer shall prepare a list of all workmen in the particular category from which retrenchment is contemplated arranged according to the seniority of their service in that category and cause a copy thereof to be posted on a notice board in conspicuous place in the premises of the industrial establishment at least seven days before the actual date of retrenchment.35. Shri Grover, learned Counsel for the complainant union submitted that above mentioned Rule is mandatory and breach of the same amounts to unfair labour practice. For this proposition he has placed reliance on a case Navbharat Hindi Daily V/s. Navbharat Shramik Sangh- 1985 (I) LLJ Bombay 474 wherein it has been held that Section 25G can be followed only if seniority list has been prepared in accordance with the rule 81. The intention of such a list is to allow workmen to object to the said list and thereby avoid hardship. The exhibition of such a list is with a view to protect the interest of workmen and to provide safeguard against Section 25G and as such Rule 81 casts an obligation on the employer to strictly follow it. In fact it is very clear that Rule 81 has been introduced to ensure due compliance of Section 25G of Industrial Disputes Act. For this useful reference an be made to a case Trade Wings Ltd. V/s. Prabhakar 1992(1) LISSOM 9. The learned Counsel for the complaint union has also drawn our attention to a case Prakash M. Dalal V/s. Tata Engineers Locomotive 1996(1) LYSOL 13 wherein also it has been held that provisions contained in Rule 81 is for effective compliance of Section 25G and is mandatory and its breach would definitely vitiate any order of retrenchment of a workmen since in the absence of a seniority list. Compliance of Section 25G cannot be checked and verified. Thus there is catena of rulings in which it has been held that Rule 81 is mandatory. However Shri Cama, learned Advocate for the Respondent company vehemently argued before us that in Chemical Major Sabah V/s. Vistas Organic (1995) IS SLUR 466 the learned single Judge of this Honble Court (Coram: Shrikirshna J as His Lordship then was) has held that Rule 81 per se is only directory rule and not mandatory. The learned Counsel for the union however submitted that as in the case of Navbharat Daily Case, Division Bench of this Court has held that Rule 81 is mandatory, that decision holds the field and should be accepted. As against this, it was canvassed before us by the learned Advocate for the Respondent company that learned single Judge has in fact considered the observations in N.B. Hind Oil and has observed that Division bench has not laid down the proposition that Rule 81 per se is mandatory. However, as in the instant case there is clear cut breach of Section 25G of Industrial Dispute Act and Rule 81 of the Industrial Bombay Rule 1957, cumulative effect of the same is that action of retrenchment taken by the management is totally illegal and amounts to unfair labour practice.36. We are therefore of the view that the learned trial Judge has rightly declared that Respondent company has committed unfair labour practice under Item 9 of Schedule VI of the M.R.T Act 1971 by not displaying the seniority list as provided in Rule 81 of Industrial Disputes (Bombay) Rules 1957 at the time of retrenching workers and by committing breach of Section 25G of Industrial Disputes Act by not following the Rule of lst come first go and for not recording the reasons for deviation from the said Rule. The order passed by the learned Member, Industrial Court was legal and correct and therefore, the learned single Judge of this Court rejected the writ petition filed by the Respondent company. Thus, there is no substance in this appeal.
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Apex Court has observed that if the employer departs from the rule of last come first go, without any acceptable or sound reasoning, a tribunal will be well justified to hold that the action of the management is not bonafide. It must be noted that it is only in his written submissions the learned Counsel for the Respondent company has tried to give some reasons for deviation from rule but as pointed out by us above the company had in fact not come with clean hands on this point and the learned trial Judge has rightly observed that there is no convincing evidence to show that proper seniority lists were displayed and deviation from the rule was for not validthe said case is of no use to the present company because here the company has not at all in fact published the seniority list. Besides, they had also not made known to all the workers as to who are the persons who have actually been retrenched and what is their seniority. When there was nothing on record for the workmen to come to know that there is deviation from Rule 25G the question of having pleadings that deviation is malafide does not arise. In such a case when workmen plead that there is a breach of Section 25G the same is certainly sufficient. It is for the company to establish as to whether there is no deviation and if there is deviation it is for the valid reasons. As pointed out by the learned Advocate for the complainant Union even in a case Industrial Chemicals Ltd. V/s Labour Court 1976 LLJ Madras 137 it has been held that in case of departure from the rule of "last come first go" the employer must assign reasons for retrenching workmen from service and record them in the notice of retrenchment. This is not done by respondent company in present case. So, the above stated case is also of no use to the Respondent Company.However, the facts of these cases are quite different and they in fact do not support the case o the present Respondent company. For example, in the later case the Court observed that the complainant must set out in the first instance the deviation to show that the management has adopted unfair labour practice and only then the other side be asked to lead evidence to rebut the same. In the present case by specifically raising plea that provision of Section 25G of Industrial Dispute Act have been followed by the Respondent company, the complainant union had in fact laid foundation regarding their grievance. Thereafter it was necessary for the Respondent company to adduce sufficient evidence to rebut the same and show that provisions of section 25G of Industrial Disputes Act are complied. However, as mentioned above Respondent company did not adduce any satisfactory evidence and as a result of the same the learned trial Court held that there was breach of Section 25G of Industrial Disputes Act.33. At the cost of repetition it must be observed that in the instant case the Respondent company has failed to establish that for reasons recorded by them they deviated from Rule 25G. They failed to prove from the seniority list the retrenched workers and the reasons for retrenchment for particular workers. If the Respondent company had adduced such evidence then complainant union was bound to rebut the said evidence but as the Respondent company itself failed to mention the reasons for deviation the question of complainant union pleading that said deviation was not bonafide does not arose. Thus, after careful scrutiny of the entire evidence and position of law we have absolutely no hesitation to hold that in the instant case there was clear cut breach of Section 25G by the Respondent company.34. The learned trial Judge has specifically held that the Respondent company had in fact not published the notice as well as the seniority list on the notice board as contended by them. It is in fact established that defendant company had tried to keep every thing in secret and for that purpose only they had not displayed any notice of retrenchment on the notice board initially. They preferred to send the notices to the workers who were to be retrenched by RPAD. Though usually the letters from the company are sent after franking at the companys machine for the notices in question the said machines was not used and some different machines was used. That was obviously with a view that workers should not come to know early about the process of retrenchment. The learned trial Judge has rightly recorded the finding that 7 days notice as contemplated in Rule 81 of the Industrial Disputes (Bombay) Rule 1957 was not issued in the instant case. The said finding of fact is based on the evidence on record and proper appreciation of the same. We therefore feel that the same isas in the instant case there is clear cut breach of Section 25G of Industrial Dispute Act and Rule 81 of the Industrial Bombay Rule 1957, cumulative effect of the same is that action of retrenchment taken by the management is totally illegal and amounts to unfair labour practice.36. We are therefore of the view that the learned trial Judge has rightly declared that Respondent company has committed unfair labour practice under Item 9 of Schedule VI of the M.R.T Act 1971 by not displaying the seniority list as provided in Rule 81 of Industrial Disputes (Bombay) Rules 1957 at the time of retrenching workers and by committing breach of Section 25G of Industrial Disputes Act by not following the Rule of lst come first go and for not recording the reasons for deviation from the said Rule. The order passed by the learned Member, Industrial Court was legal and correct and therefore, the learned single Judge of this Court rejected the writ petition filed by the Respondent company. Thus, there is no substance in this appeal.
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Onkar Nath Misra Vs. State Of Haryana | Santosh Hegde, J. 1. The appellant herein and some others were charged for certain misconduct of gheraoing some senior officers of the Company for long hours. It is also stated that during the gherao one of the officers, Manjeet Singh, received injuries. In a domestic enquiry conducted by the Management, the charge-sheeted employees were found guilty and they were dismissed from their service. 2. On a reference being made in regard to the dismissals including that of the appellant, the Industrial Tribunal-cum-Labour Court-I Faridabad by its award dated 24th of April, 2001 rejected the claim of the workmen, except in regard to one Pradeep Sharda whose claim was allowed. In regard to other workmen including the appellant herein the Labour Court believed the evidence of the Management witness Pritam Singh as also other materials produced as Ex.M-11 to M-15. On that basis the Labour Court came to the specific conclusion that the Management has established that the workmen named therein including the appellant took an active part in the gherao of H.S. Dhaliwal the then Vice-President (Works) and also caused injuries to Manjeet Singh one of the officers who was also gheraoed. Having come to the said conclusion and taking into consideration the gravity of the offence the Labour Court also came to the conclusion that the punishment of dismissal was justified on the facts and circumstances of the case.3. The award of the Labour Court came to be challenged by the appellant and one Megh Singh by way of two writ petitions before the Punjab and Haryana High Court which by a common judgment dismissed both the writ petitions. The High Court in the course of its order agreed with the Labour Court that the evidence produced by the Management marked as Ext. M-6 as also the documentary evidence Ext. M-11 to M-15 coupled with the evidence of Shri B.K. Uppal Vice-President clearly established the misconduct alleged against the writ petitioners before it. Learned counsel appearing for the petitioners had argued before the High Court that the Labour Court discriminated between them and Pradeep Sharma whose punishment was not upheld by the Labour Court even though the evidence in regard to all of them stood on a similar footing. The High Court agreed with the finding of the Labour Court that the case of the petitioners before it and Pradeep Sharma did not stand on the same footing inasmuch as from the material produced before the Labour Court it was clearly that Pradeep Sharma was falsely involved, while the misconduct alleged against the writ petitioners had been duly established. It also did not accept the argument of the learned counsel for the petitioners that the punishment was in any manner disproportionate to the misconduct proved.4. Against the common judgment in the two writ petitions, referred to herein above, two SLPs. were preferred before this Court and this Court while entertaining the same at the preliminary stage granted leave in respect of the present appeal only and rejected the other petition. Therefore, Civil Appeal No. 3670 of 2003 pertaining to the Onkar Nath Misra is before us for consideration. 5. Learned counsel appearing for the appellant seriously contended that from the entire material produced before the Labour Court in the form of Ext. M-11 to M-15 as well as the evidence of Pritam Singh and B.K. Uppal, the management had failed to establish the alleged misconduct. He also contended that there was absolutely no difference in the evidence produced by the Management between the case of the appellant and Pradeep Sharma who has been granted relief by the Labour Court. Per contra, the learned counsel appearing for the respondent pointed out that the Labour Court has taken into consideration the evidence brought on record during the domestic enquiry as also the material available before it and has rightly come to the conclusion that so far as the appellant is concerned his involvement in the gherao was clearly proved. He submitted the fact that Pradeep Sharma the other workman was exonerated of the misconduct alleged against him would not by itself further the case of the appellant in any manner, hence, the appellant is not entitled for relief in this appeal.6. We have perused the order of the Labour Court and the reasoning given therein which was reconsidered by the High Court and we are in agreement with the finding of the tribunal as well as by the High Court that from the material on record it is established that the appellant did take part in the gherao of the officers in which injury was caused to one of them. | 0[ds]6. We have perused the order of the Labour Court and the reasoning given therein which was reconsidered by the High Court and we are in agreement with the finding of the tribunal as well as by the High Court that from the material on record it is established that the appellant did take part in the gherao of the officers in which injury was caused to one of them. | 0 | 817 | 76 | ### Instruction:
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Santosh Hegde, J. 1. The appellant herein and some others were charged for certain misconduct of gheraoing some senior officers of the Company for long hours. It is also stated that during the gherao one of the officers, Manjeet Singh, received injuries. In a domestic enquiry conducted by the Management, the charge-sheeted employees were found guilty and they were dismissed from their service. 2. On a reference being made in regard to the dismissals including that of the appellant, the Industrial Tribunal-cum-Labour Court-I Faridabad by its award dated 24th of April, 2001 rejected the claim of the workmen, except in regard to one Pradeep Sharda whose claim was allowed. In regard to other workmen including the appellant herein the Labour Court believed the evidence of the Management witness Pritam Singh as also other materials produced as Ex.M-11 to M-15. On that basis the Labour Court came to the specific conclusion that the Management has established that the workmen named therein including the appellant took an active part in the gherao of H.S. Dhaliwal the then Vice-President (Works) and also caused injuries to Manjeet Singh one of the officers who was also gheraoed. Having come to the said conclusion and taking into consideration the gravity of the offence the Labour Court also came to the conclusion that the punishment of dismissal was justified on the facts and circumstances of the case.3. The award of the Labour Court came to be challenged by the appellant and one Megh Singh by way of two writ petitions before the Punjab and Haryana High Court which by a common judgment dismissed both the writ petitions. The High Court in the course of its order agreed with the Labour Court that the evidence produced by the Management marked as Ext. M-6 as also the documentary evidence Ext. M-11 to M-15 coupled with the evidence of Shri B.K. Uppal Vice-President clearly established the misconduct alleged against the writ petitioners before it. Learned counsel appearing for the petitioners had argued before the High Court that the Labour Court discriminated between them and Pradeep Sharma whose punishment was not upheld by the Labour Court even though the evidence in regard to all of them stood on a similar footing. The High Court agreed with the finding of the Labour Court that the case of the petitioners before it and Pradeep Sharma did not stand on the same footing inasmuch as from the material produced before the Labour Court it was clearly that Pradeep Sharma was falsely involved, while the misconduct alleged against the writ petitioners had been duly established. It also did not accept the argument of the learned counsel for the petitioners that the punishment was in any manner disproportionate to the misconduct proved.4. Against the common judgment in the two writ petitions, referred to herein above, two SLPs. were preferred before this Court and this Court while entertaining the same at the preliminary stage granted leave in respect of the present appeal only and rejected the other petition. Therefore, Civil Appeal No. 3670 of 2003 pertaining to the Onkar Nath Misra is before us for consideration. 5. Learned counsel appearing for the appellant seriously contended that from the entire material produced before the Labour Court in the form of Ext. M-11 to M-15 as well as the evidence of Pritam Singh and B.K. Uppal, the management had failed to establish the alleged misconduct. He also contended that there was absolutely no difference in the evidence produced by the Management between the case of the appellant and Pradeep Sharma who has been granted relief by the Labour Court. Per contra, the learned counsel appearing for the respondent pointed out that the Labour Court has taken into consideration the evidence brought on record during the domestic enquiry as also the material available before it and has rightly come to the conclusion that so far as the appellant is concerned his involvement in the gherao was clearly proved. He submitted the fact that Pradeep Sharma the other workman was exonerated of the misconduct alleged against him would not by itself further the case of the appellant in any manner, hence, the appellant is not entitled for relief in this appeal.6. We have perused the order of the Labour Court and the reasoning given therein which was reconsidered by the High Court and we are in agreement with the finding of the tribunal as well as by the High Court that from the material on record it is established that the appellant did take part in the gherao of the officers in which injury was caused to one of them.
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6. We have perused the order of the Labour Court and the reasoning given therein which was reconsidered by the High Court and we are in agreement with the finding of the tribunal as well as by the High Court that from the material on record it is established that the appellant did take part in the gherao of the officers in which injury was caused to one of them.
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Smt. Indrani Raja Durai & Ors Vs. Madras Motor & General Insurancecompany & Ors | 1. This appeal by special leave arises from the order dated July 5, 1974, of the Division Bench of the High Court of Madras in Appeal against Orders Nos. 34 and 178 of 1973. The facts are fairly clear. 2. On April 4, 1971, while the deceased, Rajadurai, was driving the motor cycle from western direction to eastern direction on the National Highway Madras to Bangalore at Kalathur junction, a motor vehicle had come in between. As a consequence, he had taken the extreme right to save his life. Consequently, the bus hit the motor cycle. As a result of which he died on the spot. The appellants are the widow and the children of the deceased who was aged about 31 years. The finding of the Tribunal is that the deceased was earning Rs. 800 per. month. On that basis the Tribunal awarded a sum of Rs. 1 lakh. The Tribunal held that there was contributory nepligence. On that basis, after giving the benefit of contributory negligence it fixed the amount at Rs. 1 lakh. The High Court reversed the finding on the ground that the driver of the bus was not negligent. The entire negligence was on the part of the deceased. As a consequence, the appellants are not entitled to compensation. Thus, this appeal by special leave. 3. We have scanned the evidence and the reasoning of the High Court and the Tribunal. Unfortunately, the High Court has not considered the evidence from the proper perspective. Since the driver of the bus equally was driving at a high speed, greater care was required of him to see that no accident took place. It would appear from the circumstances that the deceased, with a view to save himself from being sandwiched between the car and the bus, had taken to the extreme right. As a consequence, he hit the left bumper of the bus. It would thus be clear that the driver of the bus equally contributed to the accident. On the facts and circumstances, we think that negligence can be apportioned as 60 per cent. and 40 per cent. | 1[ds]3. We have scanned the evidence and the reasoning of the High Court and the Tribunal. Unfortunately, the High Court has not considered the evidence from the proper perspective. Since the driver of the bus equally was driving at a high speed, greater care was required of him to see that no accident took place. It would appear from the circumstances that the deceased, with a view to save himself from being sandwiched between the car and the bus, had taken to the extreme right. As a consequence, he hit the left bumper of the bus. It would thus be clear that the driver of the bus equally contributed to the accident. On the facts and circumstances, we think that negligence can be apportioned as 60 per cent. and 40 per cent. | 1 | 401 | 151 | ### Instruction:
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1. This appeal by special leave arises from the order dated July 5, 1974, of the Division Bench of the High Court of Madras in Appeal against Orders Nos. 34 and 178 of 1973. The facts are fairly clear. 2. On April 4, 1971, while the deceased, Rajadurai, was driving the motor cycle from western direction to eastern direction on the National Highway Madras to Bangalore at Kalathur junction, a motor vehicle had come in between. As a consequence, he had taken the extreme right to save his life. Consequently, the bus hit the motor cycle. As a result of which he died on the spot. The appellants are the widow and the children of the deceased who was aged about 31 years. The finding of the Tribunal is that the deceased was earning Rs. 800 per. month. On that basis the Tribunal awarded a sum of Rs. 1 lakh. The Tribunal held that there was contributory nepligence. On that basis, after giving the benefit of contributory negligence it fixed the amount at Rs. 1 lakh. The High Court reversed the finding on the ground that the driver of the bus was not negligent. The entire negligence was on the part of the deceased. As a consequence, the appellants are not entitled to compensation. Thus, this appeal by special leave. 3. We have scanned the evidence and the reasoning of the High Court and the Tribunal. Unfortunately, the High Court has not considered the evidence from the proper perspective. Since the driver of the bus equally was driving at a high speed, greater care was required of him to see that no accident took place. It would appear from the circumstances that the deceased, with a view to save himself from being sandwiched between the car and the bus, had taken to the extreme right. As a consequence, he hit the left bumper of the bus. It would thus be clear that the driver of the bus equally contributed to the accident. On the facts and circumstances, we think that negligence can be apportioned as 60 per cent. and 40 per cent.
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3. We have scanned the evidence and the reasoning of the High Court and the Tribunal. Unfortunately, the High Court has not considered the evidence from the proper perspective. Since the driver of the bus equally was driving at a high speed, greater care was required of him to see that no accident took place. It would appear from the circumstances that the deceased, with a view to save himself from being sandwiched between the car and the bus, had taken to the extreme right. As a consequence, he hit the left bumper of the bus. It would thus be clear that the driver of the bus equally contributed to the accident. On the facts and circumstances, we think that negligence can be apportioned as 60 per cent. and 40 per cent.
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Shyam Telelink Ltd Vs. Union Of India | Rs.7.3 crores was paid by the appellant in the beginning without any objection followed by a payment of Rs.70 lakhs made on 29th May, 2001. Although the appellant had sought waiver of the liquidated damages yet upon rejection of that request it had made the payment of the amount demanded which signified a clear acceptance on its part of the obligation to pay. If the appellant proposed to continue with its challenge to demand, nothing prevented it from taking recourse to appropriate proceedings and taking the adjudication process to its logical conclusion before exercising its option. Far from doing so, the appellant gave up the plea of waiver and deposited the amount which clearly indicates acceptance on its part of its liability to pay especially when it was only upon such payment that it could be permitted to avail of the Migration Package. Allowing the appellant at this stage to question the demand raised under the Migration Package would amount to permitting the appellant to accept what was favourable to it and reject what was not. The appellant cannot approbate and reprobate. The maxim qui approbat non reprobat (one who approbates cannot reprobate) is firmly embodied in English Common Law and often applied by Courts in this country. It is akin to the doctrine of benefits and burdens which at its most basic level provides that a person taking advantage under an instrument which both grants a benefit and imposes a burden cannot take the former without complying with the latter. A person cannot approbate and reprobate or accept and reject the same instrument. In Ambu Nair v. Kelu Nair AIR 1933 PC 167 the doctrine was explained thus: "Having thus, almost in terms, offered to be redeemed under the usufructuary mortgage in order to get payment of the other mortgage debt, the appellant, Their Lordships think, cannot now turn round and say that redemption under the usufructuary mortgage had been barred nearly seventeen years before he so obtained payment. It is a well- accepted principle that a party cannot both approbate and reprobate. He cannot, to use the words of Honyman, J. in Smith v. Baker (1878) LR 8 CP 350 at p. 357 `at the same time blow hot and cold. He cannot say at one time that the transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid, and at another time say it is void for the purpose of securing some further advantage." 14. View taken in the above decision has been reiterated by this Court in City Montessori School v. State of Uttar Pradesh and Ors. (2009) 14 SCC 253. To the same effect is the decision of this Court in New Bihar Biri Leaves Co. v. State of Bihar 1981 (1) SCC 537 where this Court said : "It is a fundamental principle of general application that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. The maxim is qui approbat non reprobat (one who approbates cannot reprobate). This principle, though originally borrowed from Scots Law, is now firmly embodied in English Common Law. According to it, a party to an instrument or transaction cannot take advantage of one part of a document or transaction and reject the rest. That is to say, no party can accept and reject the same instrument or transaction (Per Scrutton, L.J., Verschures Creameries Ltd. v. Hull & Netherlands Steamship Co.)" 15. The decision of this Court in R.N. Goswain v. Yashpal Dhir AIR 1993 SC 352 , brings in the doctrine of election in support of the very same conclusion in the following words : "10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage". [See: Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd. (1921) 2 KB 608, at p.612, Scrutton, L.J.] According to Halsburys Laws of England, 4th Edn., Vol. 16, "after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside". (para 1508)" 16. In America Estoppel by acceptance of benefits is one of the recognized situations that would prevent a party from taking up inconsistent positions qua a contract or transaction under which it has benefited.17. American Jurisprudence, 2nd Edition, Volume 28, pages 677-680 discusses `Estoppel by acceptance of benefits in the following passage: "Estoppel by the acceptance of benefits: Estoppel is frequently based upon the acceptance and retention, by one having knowledge or notice of the facts, of benefits from a transaction, contract, instrument, regulation which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistent positions. As a general principle, one who knowingly accepts the benefits of a contract or conveyance is estopped to deny the validity or binding effect on him of such contract or conveyance. This rule has to be applied to do equity and must not be applied in such a manner as to violate the principles of right and good conscience." 18. For the reasons set out by us hereinabove, we have no hesitation in holding that the appellant was not entitled to question the terms of the Migration Package after unconditionally accepting and acting upon the same. | 0[ds]9. In the light of the above admission which is the best evidence against the appellant, it is not open to the appellant to argue that it was ready to start commercial operations in February 1999. The Tribunal was, therefore, perfectly justified in holding that the commercial operations were started only on 5th June, 2000 and that for the intervening period such operations could not be commenced on account of deficiencies that were attributed entirely to the defects in the system which the appellant had installed. The Tribunal was also justified in our opinion in holding that the denial of permission to the appellant was neither arbitrary nor mala fide especially when the conditions in the licence agreement requiring the appellant to arrange and install suitable equipment to meet the prevailing technical specifications by Telecommunication Engineering Centre were not complied with nor were all performance tests required for successful commissioning of the services carried out by the Licensor before the services are commissioned for public use.10. The argument that the respondent has acted arbitrarily and in a discriminatory manner by overlooking similar deficiencies in the case of other service providers has also been correctly repelled by the Tribunal on the ground that the nature of the deficiencies found in the case of the appellant have not been found similar to those found in other cases where permission was granted. As a matter of fact, the appellant was given an opportunity to implead the other service providers so that the allegation could be examined in detail but the appellant failed to do so nor was any material placed on record to show that any discriminatory treatment was meted out to it. At any rate so long as the conditions of the agreement entitled the respondents to decline permission to commence commercial operations on account of failure on the part of the appellant to comply with the conditions stipulated in the said agreement, which condition included aefficient system, the fact that some other service providers were given permission in the peculiar facts of their cases and deficiencies allegedly noticed in their system could not make out a case for the appellant to question the demand raised on the basis of a package which the appellant had accepted unconditionally and pursuant to which acceptance a substantial part of the liquidated damages amounting to Rs.7.3 crores had been deposited by it without any demur.11. The Tribunal has also held and in our view correctly so that the computation of the liquidated damages forof the services as well as limiting the same to a total amount of Rs.8 crores was in conformity with the licence conditions executed between the parties. There is nothing before us to suggest that any error has crept in the computation of liquidated damages nor was any such error pointed out before the Tribunal. As a matter of fact, according to the respondents the amount of damages works out to Rs.29.86 crores was limited to Rs.8 crores in explicit terms of the limitation laid down in the licence agreement.12. The factual aspects apart we need to remember that the payment of liquidated damages was an essential condition of the Migration Package which was offered to the service providers. Unconditional acceptance of the package including the payment of outstanding licence fee with interest due thereon and liquidated damages was a specific requirement of the Migration Package which was unequivocally accepted by the appellant in terms of the declaration made in the followingWith reference to the letter No.842(Vol.V) (Pt.) dated 22nd July, 1999 on the subject noted above, I hereby covey unconditional acceptance on behalf of the Licensee with regard to the package proposed for migration of the existing licenses to NTP 1999 Regime on the terms and conditions in the letter under reference....The unconditional acceptance of the terms of the package and the benefit which the appellant derived under the same will estop the appellant from challenging the recovery of the dues under the package or the process of its determination. No dispute has been raised by the appellant and rightly so in regard to the payment of outstanding licence fee or the interest due thereon. The controversy is limited to the computation of liquidated damages of Rs.8 crores out of which Rs.7.3 crores was paid by the appellant in the beginning without any objection followed by a payment of Rs.70 lakhs made on 29th May, 2001. Although the appellant had sought waiver of the liquidated damages yet upon rejection of that request it had made the payment of the amount demanded which signified a clear acceptance on its part of the obligation to pay. If the appellant proposed to continue with its challenge to demand, nothing prevented it from taking recourse to appropriate proceedings and taking the adjudication process to its logical conclusion before exercising its option. Far from doing so, the appellant gave up the plea of waiver and deposited the amount which clearly indicates acceptance on its part of its liability to pay especially when it was only upon such payment that it could be permitted to avail of the Migration Package. Allowing the appellant at this stage to question the demand raised under the Migration Package would amount to permitting the appellant to accept what was favourable to it and reject what was not. The appellant cannot approbate and reprobate. The maxim qui approbat non reprobat (one who approbates cannot reprobate) is firmly embodied in English Common Law and often applied by Courts in this country. It is akin to the doctrine of benefits and burdens which at its most basic level provides that a person taking advantage under an instrument which both grants a benefit and imposes a burden cannot take the former without complying with the latter. A person cannot approbate and reprobate or accept and reject the same instrument.In America Estoppel by acceptance of benefits is one of the recognized situations that would prevent a party from taking up inconsistent positions qua a contract or transaction under which it has benefited.17. American Jurisprudence, 2nd Edition, Volume 28, pagesdiscusses `Estoppel by acceptance of benefits in the following passage:"Estoppel by the acceptance of benefits: Estoppel is frequently based upon the acceptance and retention, by one having knowledge or notice of the facts, of benefits from a transaction, contract, instrument, regulation which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistenta general principle, one who knowingly accepts the benefits of a contract or conveyance is estopped to deny the validity or binding effect on him of such contract or conveyance. This rule has to be applied to do equity and must not be applied in such a manner as to violate the principles of right and good conscience."18. For the reasons set out by us hereinabove, we have no hesitation in holding that the appellant was not entitled to question the terms of the Migration Package after unconditionally accepting and acting upon the same. | 0 | 3,599 | 1,239 | ### 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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Rs.7.3 crores was paid by the appellant in the beginning without any objection followed by a payment of Rs.70 lakhs made on 29th May, 2001. Although the appellant had sought waiver of the liquidated damages yet upon rejection of that request it had made the payment of the amount demanded which signified a clear acceptance on its part of the obligation to pay. If the appellant proposed to continue with its challenge to demand, nothing prevented it from taking recourse to appropriate proceedings and taking the adjudication process to its logical conclusion before exercising its option. Far from doing so, the appellant gave up the plea of waiver and deposited the amount which clearly indicates acceptance on its part of its liability to pay especially when it was only upon such payment that it could be permitted to avail of the Migration Package. Allowing the appellant at this stage to question the demand raised under the Migration Package would amount to permitting the appellant to accept what was favourable to it and reject what was not. The appellant cannot approbate and reprobate. The maxim qui approbat non reprobat (one who approbates cannot reprobate) is firmly embodied in English Common Law and often applied by Courts in this country. It is akin to the doctrine of benefits and burdens which at its most basic level provides that a person taking advantage under an instrument which both grants a benefit and imposes a burden cannot take the former without complying with the latter. A person cannot approbate and reprobate or accept and reject the same instrument. In Ambu Nair v. Kelu Nair AIR 1933 PC 167 the doctrine was explained thus: "Having thus, almost in terms, offered to be redeemed under the usufructuary mortgage in order to get payment of the other mortgage debt, the appellant, Their Lordships think, cannot now turn round and say that redemption under the usufructuary mortgage had been barred nearly seventeen years before he so obtained payment. It is a well- accepted principle that a party cannot both approbate and reprobate. He cannot, to use the words of Honyman, J. in Smith v. Baker (1878) LR 8 CP 350 at p. 357 `at the same time blow hot and cold. He cannot say at one time that the transaction is valid and thereby obtain some advantage to which he could only be entitled on the footing that it is valid, and at another time say it is void for the purpose of securing some further advantage." 14. View taken in the above decision has been reiterated by this Court in City Montessori School v. State of Uttar Pradesh and Ors. (2009) 14 SCC 253. To the same effect is the decision of this Court in New Bihar Biri Leaves Co. v. State of Bihar 1981 (1) SCC 537 where this Court said : "It is a fundamental principle of general application that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. The maxim is qui approbat non reprobat (one who approbates cannot reprobate). This principle, though originally borrowed from Scots Law, is now firmly embodied in English Common Law. According to it, a party to an instrument or transaction cannot take advantage of one part of a document or transaction and reject the rest. That is to say, no party can accept and reject the same instrument or transaction (Per Scrutton, L.J., Verschures Creameries Ltd. v. Hull & Netherlands Steamship Co.)" 15. The decision of this Court in R.N. Goswain v. Yashpal Dhir AIR 1993 SC 352 , brings in the doctrine of election in support of the very same conclusion in the following words : "10. Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage". [See: Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd. (1921) 2 KB 608, at p.612, Scrutton, L.J.] According to Halsburys Laws of England, 4th Edn., Vol. 16, "after taking an advantage under an order (for example for the payment of costs) a party may be precluded from saying that it is invalid and asking to set it aside". (para 1508)" 16. In America Estoppel by acceptance of benefits is one of the recognized situations that would prevent a party from taking up inconsistent positions qua a contract or transaction under which it has benefited.17. American Jurisprudence, 2nd Edition, Volume 28, pages 677-680 discusses `Estoppel by acceptance of benefits in the following passage: "Estoppel by the acceptance of benefits: Estoppel is frequently based upon the acceptance and retention, by one having knowledge or notice of the facts, of benefits from a transaction, contract, instrument, regulation which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistent positions. As a general principle, one who knowingly accepts the benefits of a contract or conveyance is estopped to deny the validity or binding effect on him of such contract or conveyance. This rule has to be applied to do equity and must not be applied in such a manner as to violate the principles of right and good conscience." 18. For the reasons set out by us hereinabove, we have no hesitation in holding that the appellant was not entitled to question the terms of the Migration Package after unconditionally accepting and acting upon the same.
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use.10. The argument that the respondent has acted arbitrarily and in a discriminatory manner by overlooking similar deficiencies in the case of other service providers has also been correctly repelled by the Tribunal on the ground that the nature of the deficiencies found in the case of the appellant have not been found similar to those found in other cases where permission was granted. As a matter of fact, the appellant was given an opportunity to implead the other service providers so that the allegation could be examined in detail but the appellant failed to do so nor was any material placed on record to show that any discriminatory treatment was meted out to it. At any rate so long as the conditions of the agreement entitled the respondents to decline permission to commence commercial operations on account of failure on the part of the appellant to comply with the conditions stipulated in the said agreement, which condition included aefficient system, the fact that some other service providers were given permission in the peculiar facts of their cases and deficiencies allegedly noticed in their system could not make out a case for the appellant to question the demand raised on the basis of a package which the appellant had accepted unconditionally and pursuant to which acceptance a substantial part of the liquidated damages amounting to Rs.7.3 crores had been deposited by it without any demur.11. The Tribunal has also held and in our view correctly so that the computation of the liquidated damages forof the services as well as limiting the same to a total amount of Rs.8 crores was in conformity with the licence conditions executed between the parties. There is nothing before us to suggest that any error has crept in the computation of liquidated damages nor was any such error pointed out before the Tribunal. As a matter of fact, according to the respondents the amount of damages works out to Rs.29.86 crores was limited to Rs.8 crores in explicit terms of the limitation laid down in the licence agreement.12. The factual aspects apart we need to remember that the payment of liquidated damages was an essential condition of the Migration Package which was offered to the service providers. Unconditional acceptance of the package including the payment of outstanding licence fee with interest due thereon and liquidated damages was a specific requirement of the Migration Package which was unequivocally accepted by the appellant in terms of the declaration made in the followingWith reference to the letter No.842(Vol.V) (Pt.) dated 22nd July, 1999 on the subject noted above, I hereby covey unconditional acceptance on behalf of the Licensee with regard to the package proposed for migration of the existing licenses to NTP 1999 Regime on the terms and conditions in the letter under reference....The unconditional acceptance of the terms of the package and the benefit which the appellant derived under the same will estop the appellant from challenging the recovery of the dues under the package or the process of its determination. No dispute has been raised by the appellant and rightly so in regard to the payment of outstanding licence fee or the interest due thereon. The controversy is limited to the computation of liquidated damages of Rs.8 crores out of which Rs.7.3 crores was paid by the appellant in the beginning without any objection followed by a payment of Rs.70 lakhs made on 29th May, 2001. Although the appellant had sought waiver of the liquidated damages yet upon rejection of that request it had made the payment of the amount demanded which signified a clear acceptance on its part of the obligation to pay. If the appellant proposed to continue with its challenge to demand, nothing prevented it from taking recourse to appropriate proceedings and taking the adjudication process to its logical conclusion before exercising its option. Far from doing so, the appellant gave up the plea of waiver and deposited the amount which clearly indicates acceptance on its part of its liability to pay especially when it was only upon such payment that it could be permitted to avail of the Migration Package. Allowing the appellant at this stage to question the demand raised under the Migration Package would amount to permitting the appellant to accept what was favourable to it and reject what was not. The appellant cannot approbate and reprobate. The maxim qui approbat non reprobat (one who approbates cannot reprobate) is firmly embodied in English Common Law and often applied by Courts in this country. It is akin to the doctrine of benefits and burdens which at its most basic level provides that a person taking advantage under an instrument which both grants a benefit and imposes a burden cannot take the former without complying with the latter. A person cannot approbate and reprobate or accept and reject the same instrument.In America Estoppel by acceptance of benefits is one of the recognized situations that would prevent a party from taking up inconsistent positions qua a contract or transaction under which it has benefited.17. American Jurisprudence, 2nd Edition, Volume 28, pagesdiscusses `Estoppel by acceptance of benefits in the following passage:"Estoppel by the acceptance of benefits: Estoppel is frequently based upon the acceptance and retention, by one having knowledge or notice of the facts, of benefits from a transaction, contract, instrument, regulation which he might have rejected or contested. This doctrine is obviously a branch of the rule against assuming inconsistenta general principle, one who knowingly accepts the benefits of a contract or conveyance is estopped to deny the validity or binding effect on him of such contract or conveyance. This rule has to be applied to do equity and must not be applied in such a manner as to violate the principles of right and good conscience."18. For the reasons set out by us hereinabove, we have no hesitation in holding that the appellant was not entitled to question the terms of the Migration Package after unconditionally accepting and acting upon the same.
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Sashi Prasad Barooah Vs. The Agriculture Income-Tax Officer, Shillong,Assam & Ors | in our opinion, should be in the affirmative. What the rule contemplates in that unless an order was made on the basis of the alleged partition of a Hindu undivided family, such family shall be deemed for the purposes of the Act to continue to be a Hindu undivided family. The rule thus relates to the working of the Act. Section 3 of the Act is the charging section and creates liability for tax in respect of the total agricultural income of every individual, Hindu undivided family, firm and other association of persons. Such a liability having already been created by the above provision, rule 23 reproduced earlier deals with the question as to who should be the person as defined in the Act who should be assessed in respect of the agricultural income arising from property in respect of which the Hindu undivided family was assessed hitherto. The rule provides that such family shall continue to be deemed as Hindu undivided family for the purposes of the Act unless an order is made on the basis of the partition amongst the members of the family. This is a matter of detail to carry out the purposes of the Act and the State Government, in our opinion, was well within its competence to make the impugned rule in exercise of its powers under sub-section (1) of section 50 of the ActThere is also nothing novel in a Hindu undivided family being taxed as such in spite of a claim of its disruption unless an order on the basis of the partition is made by the taxing authorities. Sub-section (1) of section 171 of the Income-tax Act, 1961, provides that a Hindu undivided family hitherto assessed as undivided shall be deemed for the purposes of the Act to continue to be a Hindu undivided family, except where and in so far as a finding of partition has been given under that section in respect of the Hindu undivided family. The fact that, unlike the Income-tax Act, there is no statutory provision in the Act with which we are concerned and the matter is dealt with by the rules framed under the Act would not make any material difference. The rules would be as much binding as would be the statutory provision in this respect. The only requirement is that the rules should be validly made in exercise of the powers conferred by the Act. So far as this aspect is concerned, we have already held above that the rule in question was validly made as it was within the competence of the State Government to make such rule. 12. The proposition is well settled that it is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods, and the like (See Pt. Banarsi Das Bhanot v. State of Madhya Pradesh [1958] 9 STC 388 (SC)). In that case this court dealt with the provisions of the Central Provinces and Berar Sales Tax Act, 1947. The said Act provided for exemption from taxation in respect of the supply of certain material. Power was also conferred upon the State Government to amend such exemption by notification. This court upheld the validity of that notificationWe may also refer to the case of Powell v. Apollo Candle Company Ltd. [1885] 10 App Cas 282, 291 (PC), which dealt with section 133 of the Customs Regulation Act of 1879 of New South Wales. That section conferred a power on the Governor to impose tax on certain articles of import. While repelling the challenge to the constitutional validity of that provision, the Privy Council observed" It is argued that the tax in question has been imposed by the Governor, and not by the Legislature, who alone had power to impose it. But the duties levied under the Order in Council are really levied by the authority of the Act under which the order is issued. The Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him. Under these circumstances, their Lordships are of opinion that the judgment of the Supreme Court was wrong in declaring section 133 of the Customs Regulations Act of 1879 to be beyond the power of the Legislature." 13. In V. M. Syed Mohamed & Co. v. State of Madras [1952] 3 STC 367 (Mad) the question was as to the vires of rules 4 and 16 framed under the Madras General Sales Tax Act. Section 5(vi) of that Act had left it to the rule-making authority to determine at which single point in the series of sales by successive dealers the tax should be levied, and pursuant thereto, rules 4 and 16 had provided that it was the purchaser who was liable to pay the tax in respect of sales of hides and skins. The validity of the rules was attacked on the ground that it was only the legislature that was competent to decide who shall be taxed, and that the determination of that question by the rule-making authorities was ultra vires. The Madras High Court rejected this connection, and held on a review of the authorities that the delegation of authority under section 5(vi) was within permissible constitutional limitsowells case [1885] 10 App Cas 282 (PC) as well as the case of V. M. Syed Mohamed [1952] 3 STC 367 (Mad) were referred to with approval by this court in the case of Pt. Banarsi Das Bhanot [1958] 9 STC 388 (SC). The above decisions clearly lend support for the conclusion arrived at by the High Court in the judgment under appeal that the State Government was within its competence to make rule 23 reproduced above. 14. | 0[ds]After giving the matter our consideration, we are of the opinion that the two contentions advanced by Mr. Sen on behalf of the appellant are not well-founded. It is consequently not necessary for us to go into the question as to what is the effect of the omission of the appellant to refer to the partition in the communications sent by him to the Agricultural Income-tax OfficerThe rule clearly states that where an order apportioning the liability to the tax on the basis of partition has not been passed in respect of a Hindu family hitherto assessed as undivided or joint, such family shall be deemed for the purposes of the Act, to continue to be a Hindu undivided or joint family. It would, therefore, follow that unless an order apportioning the liability to the tax on the basis of partition is passed in respect of a Hindu undivided family which was hitherto assessed as such undivided family, the said family shall be deemed for the purpose of the Act to continue to be a Hindu undivided family. Admittedly, no order apportioning the liability to the tax on the basis of the alleged partition has been passed in respect of the Hindu undivided family of which the appellant was the karta. As such, the aforesaid family shall continue to be treated, for the purposes of the Act, as Hindu undivided family. We are unable to subscribe to the submission of Mr. Sen that the above rule would apply only in those cases where the Hindu undivided family has already been assessed under the Act and the only thing which remains is the recovery of the tax in pursuance of the said assessment order. Such cases, in our view, are covered by the other part of rule 23. We are, however, not concerned with that part. So far as the part of rule 23 which has been reproduced above is concerned, its language is clear and unambiguous. The language clearly warrants the conclusion that in the absence of an order apportioning the liability to the tax on the basis of partition in respect of a Hindu undivided family hitherto assessed as undivided or joint, such family shall be deemed for the purposes of the Act to continue to be a Hindu undivided familyThe answer to this question, in our opinion, should be in the affirmative. What the rule contemplates in that unless an order was made on the basis of the alleged partition of a Hindu undivided family, such family shall be deemed for the purposes of the Act to continue to be a Hindu undivided family. The rule thus relates to the working of the Act. Section 3 of the Act is the charging section and creates liability for tax in respect of the total agricultural income of every individual, Hindu undivided family, firm and other association of persons. Such a liability having already been created by the above provision, rule 23 reproduced earlier deals with the question as to who should be the person as defined in the Act who should be assessed in respect of the agricultural income arising from property in respect of which the Hindu undivided family was assessed hitherto. The rule provides that such family shall continue to be deemed as Hindu undivided family for the purposes of the Act unless an order is made on the basis of the partition amongst the members of the family. This is a matter of detail to carry out the purposes of the Act and the State Government, in our opinion, was well within its competence to make the impugned rule in exercise of its powers under sub-section (1) of section 50 of the ActThere is also nothing novel in a Hindu undivided family being taxed as such in spite of a claim of its disruption unless an order on the basis of the partition is made by the taxing authorities. Sub-section (1) of section 171 ofthe Income-tax Act, 1961, provides that a Hindu undivided family hitherto assessed as undivided shall be deemed for the purposes of the Act to continue to be a Hindu undivided family, except where and in so far as a finding of partition has been given under that section in respect of the Hindu undivided family. The fact that, unlike the Income-tax Act, there is no statutory provision in the Act with which we are concerned and the matter is dealt with by the rules framed under the Act would not make any material difference. The rules would be as much binding as would be the statutory provision in this respect. The only requirement is that the rules should be validly made in exercise of the powers conferred by the Act. So far as this aspect is concerned, we have already held above that the rule in question was validly made as it was within the competence of the State Government to make such ruleThe above decisions clearly lend support for the conclusion arrived at by the High Court in the judgment under appeal that the State Government was within its competence to make rule 23 reproduced above | 0 | 4,134 | 913 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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in our opinion, should be in the affirmative. What the rule contemplates in that unless an order was made on the basis of the alleged partition of a Hindu undivided family, such family shall be deemed for the purposes of the Act to continue to be a Hindu undivided family. The rule thus relates to the working of the Act. Section 3 of the Act is the charging section and creates liability for tax in respect of the total agricultural income of every individual, Hindu undivided family, firm and other association of persons. Such a liability having already been created by the above provision, rule 23 reproduced earlier deals with the question as to who should be the person as defined in the Act who should be assessed in respect of the agricultural income arising from property in respect of which the Hindu undivided family was assessed hitherto. The rule provides that such family shall continue to be deemed as Hindu undivided family for the purposes of the Act unless an order is made on the basis of the partition amongst the members of the family. This is a matter of detail to carry out the purposes of the Act and the State Government, in our opinion, was well within its competence to make the impugned rule in exercise of its powers under sub-section (1) of section 50 of the ActThere is also nothing novel in a Hindu undivided family being taxed as such in spite of a claim of its disruption unless an order on the basis of the partition is made by the taxing authorities. Sub-section (1) of section 171 of the Income-tax Act, 1961, provides that a Hindu undivided family hitherto assessed as undivided shall be deemed for the purposes of the Act to continue to be a Hindu undivided family, except where and in so far as a finding of partition has been given under that section in respect of the Hindu undivided family. The fact that, unlike the Income-tax Act, there is no statutory provision in the Act with which we are concerned and the matter is dealt with by the rules framed under the Act would not make any material difference. The rules would be as much binding as would be the statutory provision in this respect. The only requirement is that the rules should be validly made in exercise of the powers conferred by the Act. So far as this aspect is concerned, we have already held above that the rule in question was validly made as it was within the competence of the State Government to make such rule. 12. The proposition is well settled that it is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods, and the like (See Pt. Banarsi Das Bhanot v. State of Madhya Pradesh [1958] 9 STC 388 (SC)). In that case this court dealt with the provisions of the Central Provinces and Berar Sales Tax Act, 1947. The said Act provided for exemption from taxation in respect of the supply of certain material. Power was also conferred upon the State Government to amend such exemption by notification. This court upheld the validity of that notificationWe may also refer to the case of Powell v. Apollo Candle Company Ltd. [1885] 10 App Cas 282, 291 (PC), which dealt with section 133 of the Customs Regulation Act of 1879 of New South Wales. That section conferred a power on the Governor to impose tax on certain articles of import. While repelling the challenge to the constitutional validity of that provision, the Privy Council observed" It is argued that the tax in question has been imposed by the Governor, and not by the Legislature, who alone had power to impose it. But the duties levied under the Order in Council are really levied by the authority of the Act under which the order is issued. The Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him. Under these circumstances, their Lordships are of opinion that the judgment of the Supreme Court was wrong in declaring section 133 of the Customs Regulations Act of 1879 to be beyond the power of the Legislature." 13. In V. M. Syed Mohamed & Co. v. State of Madras [1952] 3 STC 367 (Mad) the question was as to the vires of rules 4 and 16 framed under the Madras General Sales Tax Act. Section 5(vi) of that Act had left it to the rule-making authority to determine at which single point in the series of sales by successive dealers the tax should be levied, and pursuant thereto, rules 4 and 16 had provided that it was the purchaser who was liable to pay the tax in respect of sales of hides and skins. The validity of the rules was attacked on the ground that it was only the legislature that was competent to decide who shall be taxed, and that the determination of that question by the rule-making authorities was ultra vires. The Madras High Court rejected this connection, and held on a review of the authorities that the delegation of authority under section 5(vi) was within permissible constitutional limitsowells case [1885] 10 App Cas 282 (PC) as well as the case of V. M. Syed Mohamed [1952] 3 STC 367 (Mad) were referred to with approval by this court in the case of Pt. Banarsi Das Bhanot [1958] 9 STC 388 (SC). The above decisions clearly lend support for the conclusion arrived at by the High Court in the judgment under appeal that the State Government was within its competence to make rule 23 reproduced above. 14.
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After giving the matter our consideration, we are of the opinion that the two contentions advanced by Mr. Sen on behalf of the appellant are not well-founded. It is consequently not necessary for us to go into the question as to what is the effect of the omission of the appellant to refer to the partition in the communications sent by him to the Agricultural Income-tax OfficerThe rule clearly states that where an order apportioning the liability to the tax on the basis of partition has not been passed in respect of a Hindu family hitherto assessed as undivided or joint, such family shall be deemed for the purposes of the Act, to continue to be a Hindu undivided or joint family. It would, therefore, follow that unless an order apportioning the liability to the tax on the basis of partition is passed in respect of a Hindu undivided family which was hitherto assessed as such undivided family, the said family shall be deemed for the purpose of the Act to continue to be a Hindu undivided family. Admittedly, no order apportioning the liability to the tax on the basis of the alleged partition has been passed in respect of the Hindu undivided family of which the appellant was the karta. As such, the aforesaid family shall continue to be treated, for the purposes of the Act, as Hindu undivided family. We are unable to subscribe to the submission of Mr. Sen that the above rule would apply only in those cases where the Hindu undivided family has already been assessed under the Act and the only thing which remains is the recovery of the tax in pursuance of the said assessment order. Such cases, in our view, are covered by the other part of rule 23. We are, however, not concerned with that part. So far as the part of rule 23 which has been reproduced above is concerned, its language is clear and unambiguous. The language clearly warrants the conclusion that in the absence of an order apportioning the liability to the tax on the basis of partition in respect of a Hindu undivided family hitherto assessed as undivided or joint, such family shall be deemed for the purposes of the Act to continue to be a Hindu undivided familyThe answer to this question, in our opinion, should be in the affirmative. What the rule contemplates in that unless an order was made on the basis of the alleged partition of a Hindu undivided family, such family shall be deemed for the purposes of the Act to continue to be a Hindu undivided family. The rule thus relates to the working of the Act. Section 3 of the Act is the charging section and creates liability for tax in respect of the total agricultural income of every individual, Hindu undivided family, firm and other association of persons. Such a liability having already been created by the above provision, rule 23 reproduced earlier deals with the question as to who should be the person as defined in the Act who should be assessed in respect of the agricultural income arising from property in respect of which the Hindu undivided family was assessed hitherto. The rule provides that such family shall continue to be deemed as Hindu undivided family for the purposes of the Act unless an order is made on the basis of the partition amongst the members of the family. This is a matter of detail to carry out the purposes of the Act and the State Government, in our opinion, was well within its competence to make the impugned rule in exercise of its powers under sub-section (1) of section 50 of the ActThere is also nothing novel in a Hindu undivided family being taxed as such in spite of a claim of its disruption unless an order on the basis of the partition is made by the taxing authorities. Sub-section (1) of section 171 ofthe Income-tax Act, 1961, provides that a Hindu undivided family hitherto assessed as undivided shall be deemed for the purposes of the Act to continue to be a Hindu undivided family, except where and in so far as a finding of partition has been given under that section in respect of the Hindu undivided family. The fact that, unlike the Income-tax Act, there is no statutory provision in the Act with which we are concerned and the matter is dealt with by the rules framed under the Act would not make any material difference. The rules would be as much binding as would be the statutory provision in this respect. The only requirement is that the rules should be validly made in exercise of the powers conferred by the Act. So far as this aspect is concerned, we have already held above that the rule in question was validly made as it was within the competence of the State Government to make such ruleThe above decisions clearly lend support for the conclusion arrived at by the High Court in the judgment under appeal that the State Government was within its competence to make rule 23 reproduced above
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M/S Vinedale Distilleries Ltd Vs. Dena Bank | management of the Company in question, should be filed before the Honble Delhi High Court, which will decide the matters." 2. Having regard to the above direction, the Petitioners herein have prayed that the two above-mentioned matters filed under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as `the DRT Act) and Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as `the Securitization Act), both pending before the DRT, Hyderabad, be transferred to the DRT, Jhandewalan, Delhi. 3. Appearing in support of the Transfer Petitions, Mr. Chetan Sharma, learned Senior Advocate, submitted that since by virtue of the aforesaid order dated 4th January, 2008, all matters pertaining to the Petitioner Company and its management had been transferred to the Delhi High Court in order to avoid confusion, the proceedings pending before the DRT, Hyderabad, were also required to be transferred to the DRT, Jhandewalan, Delhi, so that all matters pertaining to the Vinedale Distilleries and its management could be heard and disposed of by the Delhi High Court exclusively. Mr. Sharma submitted that in order to avoid a possible conflict of decisions among Courts operating in different territorial jurisdictions in regard to the management and control of the Petitioner Company, this Court had directed all matters relating to the Company and its management to be decided by the Delhi High Court exclusively. Mr. Sharma submitted that even further proceedings against the Award of the DRT in Delhi would have to be filed before the Delhi High Court which was also in seisin of the matters pertaining to the management of the company. Mr. Sharma submitted that in the interest of justice and in keeping with the spirit of the order passed by this Court on 4th January, 2008, the pending proceedings before the DRT, Hyderabad, should be transferred to the DRT, Jhandewalan, Delhi. 4. Responding to Mr. Sharmas submissions, Mr. Rakesh Tikku, learned Advocate appearing for Respondent No.1 Bank, contended that in view of the disputes among the three groups fighting for the management of the Petitioner Company, the payment of the dues of the Bank were being successfully avoided. It was submitted that the present applications were nothing but a ploy to further defer payment of the outstanding dues of the Bank amounting to almost Rs.19 crores as on the date of the hearing. It was submitted that in the contest relating to the management of the Company, the payment of the dues of the Bank were being sidelined and the Bank was, therefore, willing to abide by any order that might be passed by this Court in the present Transfer Petitions since its only concern was to recover its dues from the Petitioner Company. In fact, learned counsel for the Bank questioned the manner in which one group, referred to as the S.K. Agarwal Group, had initiated the proceedings before the DRT, Hyderabad, challenging the order passed by the Bank under Section 13(4) of the Securitization Act in January, 2006, after a delay of 786 days. According to learned counsel, the very situation which this Court had wanted to avoid by its order dated 4th January, 2008, was sought to be frustrated by the filing of the Appeal by the S.K. Agarwal group before the DRT, Hyderabad, while all the other matters pertaining to the Company and its management were pending in Delhi. 5. The petitioners prayer for transfer of the pending proceedings before the DRT, Hyderabad, was, however, seriously opposed on behalf of private respondents. It was urged by Mr. E.C. Agrawala, learned Advocate appearing for the private respondents, that the proceedings before the DRT, Hyderabad, were not covered by the directions contained in the order passed by this Court on 4th January, 2008. Mr. Agrawala submitted that the said order related only to suits in regard to the management and control of the Petitioner Company. As far as the proceedings before the DRT, Hyderabad, are concerned, Mr. Agrawala submitted that they related to the recovery of the outstanding dues of the Bank which the Bank was entitled to initiate before the Debts Recovery Tribunal and had nothing to do with the management of the Company as such. It was urged that the proceedings before the DRT were and would have to be treated on a different footing in relation to the suits pending before the Delhi High Court for the right to manage the Company. Mr. Agrawala submitted that there was, therefore, no ground made out on behalf of the Petitioner Company for transfer of the proceedings before the DRT, Hyderabad, to the DRT, Jhandewalan, Delhi. 6. We have carefully considered the submissions made on behalf of the respective parties, and, although, technically speaking the proceedings before the DRT, Hyderabad, are not covered by the directions contained in the order of 4th January, 2008, due weightage has to be given to the intention of this Court that all matters pertaining to the management of the Petitioner Company should be heard and decided by one Court to avoid conflicting judgments. In fact, that was the very object and purport with which all the pending civil matters in the State of Andhra Pradesh touching the management of the Petitioner Company were directed to be heard by the Delhi High Court exclusively. In keeping with the above intention and purport of the said order, it was only but reasonable that the proceedings before the DRT, Hyderabad, should be transferred to the DRT, Jhandewalan, Delhi, since all the other proceedings relating to the management and control of the Petitioner Company are being heard by the Delhi High Court. Furthermore, it is the Delhi High Court which is the appellate forum against an order of the DRT, Delhi. Therefore, in keeping with the spirit of the directions contained in the order of 4th January, 2008, we are inclined to allow the Transfer Petition filed by M/s Vinedale Distilleries Ltd. | 1[ds]6. We have carefully considered the submissions made on behalf of the respective parties, and, although, technically speaking the proceedings before the DRT, Hyderabad, are not covered by the directions contained in the order of 4th January, 2008, due weightage has to be given to the intention of this Court that all matters pertaining to the management of the Petitioner Company should be heard and decided by one Court to avoid conflicting judgments. In fact, that was the very object and purport with which all the pending civil matters in the State of Andhra Pradesh touching the management of the Petitioner Company were directed to be heard by the Delhi High Court exclusively. In keeping with the above intention and purport of the said order, it was only but reasonable that the proceedings before the DRT, Hyderabad, should be transferred to the DRT, Jhandewalan, Delhi, since all the other proceedings relating to the management and control of the Petitioner Company are being heard by the Delhi High Court. Furthermore, it is the Delhi High Court which is the appellate forum against an order of the DRT, Delhi. Therefore, in keeping with the spirit of the directions contained in the order of 4th January, 2008, we are inclined to allow the Transfer Petition filed by M/s Vinedale Distilleries Ltd. | 1 | 1,312 | 247 | ### Instruction:
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management of the Company in question, should be filed before the Honble Delhi High Court, which will decide the matters." 2. Having regard to the above direction, the Petitioners herein have prayed that the two above-mentioned matters filed under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter referred to as `the DRT Act) and Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as `the Securitization Act), both pending before the DRT, Hyderabad, be transferred to the DRT, Jhandewalan, Delhi. 3. Appearing in support of the Transfer Petitions, Mr. Chetan Sharma, learned Senior Advocate, submitted that since by virtue of the aforesaid order dated 4th January, 2008, all matters pertaining to the Petitioner Company and its management had been transferred to the Delhi High Court in order to avoid confusion, the proceedings pending before the DRT, Hyderabad, were also required to be transferred to the DRT, Jhandewalan, Delhi, so that all matters pertaining to the Vinedale Distilleries and its management could be heard and disposed of by the Delhi High Court exclusively. Mr. Sharma submitted that in order to avoid a possible conflict of decisions among Courts operating in different territorial jurisdictions in regard to the management and control of the Petitioner Company, this Court had directed all matters relating to the Company and its management to be decided by the Delhi High Court exclusively. Mr. Sharma submitted that even further proceedings against the Award of the DRT in Delhi would have to be filed before the Delhi High Court which was also in seisin of the matters pertaining to the management of the company. Mr. Sharma submitted that in the interest of justice and in keeping with the spirit of the order passed by this Court on 4th January, 2008, the pending proceedings before the DRT, Hyderabad, should be transferred to the DRT, Jhandewalan, Delhi. 4. Responding to Mr. Sharmas submissions, Mr. Rakesh Tikku, learned Advocate appearing for Respondent No.1 Bank, contended that in view of the disputes among the three groups fighting for the management of the Petitioner Company, the payment of the dues of the Bank were being successfully avoided. It was submitted that the present applications were nothing but a ploy to further defer payment of the outstanding dues of the Bank amounting to almost Rs.19 crores as on the date of the hearing. It was submitted that in the contest relating to the management of the Company, the payment of the dues of the Bank were being sidelined and the Bank was, therefore, willing to abide by any order that might be passed by this Court in the present Transfer Petitions since its only concern was to recover its dues from the Petitioner Company. In fact, learned counsel for the Bank questioned the manner in which one group, referred to as the S.K. Agarwal Group, had initiated the proceedings before the DRT, Hyderabad, challenging the order passed by the Bank under Section 13(4) of the Securitization Act in January, 2006, after a delay of 786 days. According to learned counsel, the very situation which this Court had wanted to avoid by its order dated 4th January, 2008, was sought to be frustrated by the filing of the Appeal by the S.K. Agarwal group before the DRT, Hyderabad, while all the other matters pertaining to the Company and its management were pending in Delhi. 5. The petitioners prayer for transfer of the pending proceedings before the DRT, Hyderabad, was, however, seriously opposed on behalf of private respondents. It was urged by Mr. E.C. Agrawala, learned Advocate appearing for the private respondents, that the proceedings before the DRT, Hyderabad, were not covered by the directions contained in the order passed by this Court on 4th January, 2008. Mr. Agrawala submitted that the said order related only to suits in regard to the management and control of the Petitioner Company. As far as the proceedings before the DRT, Hyderabad, are concerned, Mr. Agrawala submitted that they related to the recovery of the outstanding dues of the Bank which the Bank was entitled to initiate before the Debts Recovery Tribunal and had nothing to do with the management of the Company as such. It was urged that the proceedings before the DRT were and would have to be treated on a different footing in relation to the suits pending before the Delhi High Court for the right to manage the Company. Mr. Agrawala submitted that there was, therefore, no ground made out on behalf of the Petitioner Company for transfer of the proceedings before the DRT, Hyderabad, to the DRT, Jhandewalan, Delhi. 6. We have carefully considered the submissions made on behalf of the respective parties, and, although, technically speaking the proceedings before the DRT, Hyderabad, are not covered by the directions contained in the order of 4th January, 2008, due weightage has to be given to the intention of this Court that all matters pertaining to the management of the Petitioner Company should be heard and decided by one Court to avoid conflicting judgments. In fact, that was the very object and purport with which all the pending civil matters in the State of Andhra Pradesh touching the management of the Petitioner Company were directed to be heard by the Delhi High Court exclusively. In keeping with the above intention and purport of the said order, it was only but reasonable that the proceedings before the DRT, Hyderabad, should be transferred to the DRT, Jhandewalan, Delhi, since all the other proceedings relating to the management and control of the Petitioner Company are being heard by the Delhi High Court. Furthermore, it is the Delhi High Court which is the appellate forum against an order of the DRT, Delhi. Therefore, in keeping with the spirit of the directions contained in the order of 4th January, 2008, we are inclined to allow the Transfer Petition filed by M/s Vinedale Distilleries Ltd.
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6. We have carefully considered the submissions made on behalf of the respective parties, and, although, technically speaking the proceedings before the DRT, Hyderabad, are not covered by the directions contained in the order of 4th January, 2008, due weightage has to be given to the intention of this Court that all matters pertaining to the management of the Petitioner Company should be heard and decided by one Court to avoid conflicting judgments. In fact, that was the very object and purport with which all the pending civil matters in the State of Andhra Pradesh touching the management of the Petitioner Company were directed to be heard by the Delhi High Court exclusively. In keeping with the above intention and purport of the said order, it was only but reasonable that the proceedings before the DRT, Hyderabad, should be transferred to the DRT, Jhandewalan, Delhi, since all the other proceedings relating to the management and control of the Petitioner Company are being heard by the Delhi High Court. Furthermore, it is the Delhi High Court which is the appellate forum against an order of the DRT, Delhi. Therefore, in keeping with the spirit of the directions contained in the order of 4th January, 2008, we are inclined to allow the Transfer Petition filed by M/s Vinedale Distilleries Ltd.
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State Of Assam & Ors Vs. Premadhar Baruah & Ors. Etc | of discretion by the authority who would terminate the service in the matter of selection or classification. It was said that arbitrary and uncontrolled power was left with the authority to select at its will any person against whom action would be taken and therefore the authority could discriminate between two railway servants to both of whom R. 148 (3) equally applied by taking action in one case and not taking it in the other. Shah, J., on the other hand said that if for the purpose of ensuring the interests and safety of the public and the State, power was reserved to the Railway Administration to terminate the employment under the Railways, it could not be said that the railway servants were singled out for a special or discriminatory treatment. The classification could be founded on an intelligible differentia distinguishing railway servants from others and such differentia had a rational relation to the objects to be achieved. With regard to the position of railway servants inter se Shah, J. said that if the employment was for a period defined or if the employment was till superannuation the rules contemplated termination of service by a notice in both cases. The Rule would therefore not deny equal protection because there was no discrimination between them and the same law which protected other servants in the same group protected the appellants in that case and also provided for determination of their employment. Shah, J. further said that the possibility or assumption of mala fide exercise of a power of determination of employment under rule 148 (3) could not be the correct method of testing the constitutionality of the rule. 17. In the present appeals, the High Court by its majority decision held that paragraph 4 of the memorandum of 21st March, 1963 offended Article 14 of the Constitution because a person who was physically fit and efficient was allowed to continue in service till he was 58 years of age whereas any other person who would satisfy the conditions of physical fitness and efficiency could be asked to retire on three months notice. It has to be appreciated first that a Government servant has no right to continue in service beyond the age of superannuation. A Government servant is retained beyond the age of superannuation when the Government in the exigencies of public service or on public grounds exercises its discretion to retain a Government servant in service after the age of superannuation. The scope for the exercise of this discretion is embodied in F. R. 56 (a) as well as in paragraph 4 of 21st March, 1963 memorandum which was challenged in the High Court to be an infraction of Article 14. 18. In the present case after 21st March, 1963 memorandum was superseded and abrogated by 2nd April, 1968 memorandum, the respondent could not draw any substance from 21st March, 1968 Memorandum. 2nd April, 1968, memorandum reduced the age of superannuation and withdrew the benefits which had been conferred by 21st March, 1963 memorandum. This was again done in the interest of the Government servants to prevent unemployment as a result of increase of age of superannuation. This Court in Bishun Narain Mishras case, (1965) 1 SCR 693 = (AIR 1965 SC 1567 ) (supra) in dealing with a notification directing all those who were between the age of 55 and 58 and had been retained in service could be retired on 31st December, 1961 said that the rule treated alike all those who were between the age of 55 and 58 years.In the present appeals, the 1963 notification treated all Government servants alike, namely, that they could be retained beyond the age of superannuation, but such retention depended upon the exigencies of the public service and the consideration of physical fitness and efficiency. Therefore it could not be said that the memorandum of 1963 infringed Article 14. 19. The High Court fell into the error of overlooking that 21st March, 1963 memorandum no longer occupied the field after the supersession of that memorandum by the memorandum dated 2nd April, 1968. Furthermore, if the order dated 21st march, 1963 was found to be bad, the entire order was to be struck down for the obvious reason that if the instrument was within the vice of Article 14 of the Constitution, the entire notification would perish. 20. We are of opinion that the High Court was in error in overlooking paragraph 4 of the memorandum dated 21st March, 1963. Paragraph 4 was as follows:"Notwithstanding anything contained in the foregoing paragraphs the appointing authority may require a Government servant to retire after he attained the age of 55 years on three months notice without assigning any reason." As we have already indicated paragraph 4 of the memorandum flowed form F. R. 56 (a). The Government could retain a Government servant beyond the age of superannuation. The Government has also the discretion to withdraw such retention in service because the retention does not confer any right on the Government servant. 21. Civil Appeal No. 1335 of 1969 relates to the case of Rasodhar Bora and Civil Appeal No. 1336 of 1969 is that of Premadhar Dutta. 22. Rasodhar Bora was born on 1st January, 1913 and would have retired on 1st January, 1968 on completion of the age of 55 years. He was found to be physically fit and efficient by the competent authorities and he was allowed to continue in service after the age of 55 years. Thereafter by a notice dated 1st July, 1968 there was a termination of his service on 30th September, 1968. 23. In Civil Appeal No. 1336 of 1969 Premadhar Dutta was born on 15th May, 1911 and he was due to retire on 15th May, 1966. He continued in service after reaching the age of 55 years. His service was terminated on 30th May, 1968, by a notice dated 28th May, 1968. 24. The contentions of both the respondents were similar to that of Premadhar Baruah. | 1[ds]The order dated 21st March, 1963 was an executive instruction. That order of 21st March, 1963 has to be read not only in the light of the order dated 2nd April, 1968 but also in relation to F. R. 56 (a). The memorandum of 2nd April, 1968 definitely stated that the benefit of raising the age of superannuation to 58 years as laid down in the office memorandum dated 21st March 1963 had been decided to be discontinued by the memorandum dated 2nd April, 1968. After the order dated 2nd April, 1968 came into existence the order of 21st March, 1963 is neither relevant nor effective11. The order dated 21st March, 1963 and the order dated 2nd April, 1968 are both executive instructions and they are not rules under Article 309 of the Constitution17. In the present appeals, the High Court by its majority decision held that paragraph 4 of the memorandum of 21st March, 1963 offended Article 14 of the Constitution because a person who was physically fit and efficient was allowed to continue in service till he was 58 years of age whereas any other person who would satisfy the conditions of physical fitness and efficiency could be asked to retire on three months notice. It has to be appreciated first that a Government servant has no right to continue in service beyond the age of superannuationA Government servant is retained beyond the age of superannuation when the Government in the exigencies of public service or on public grounds exercises its discretion to retain a Government servant in service after the age of superannuation. The scope for the exercise of this discretion is embodied in F. R. 56 (a) as well as in paragraph 4 of 21st March, 1963 memorandum which was challenged in the High Court to be an infraction of Article 1418. In the present case after 21st March, 1963 memorandum was superseded and abrogated by 2nd April, 1968 memorandum, the respondent could not draw any substance from 21st March, 1968 Memorandum. 2nd April, 1968, memorandum reduced the age of superannuation and withdrew the benefits which had been conferred by 21st March, 1963 memorandum. This was again done in the interest of the Government servants to prevent unemployment as a result of increase of age of superannuation. This Court in Bishun Narain Mishras case, (1965) 1 SCR 693 = (AIR 1965 SC 1567 ) (supra) in dealing with a notification directing all those who were between the age of 55 and 58 and had been retained in service could be retired on 31st December, 1961 said that the rule treated alike all those who were between the age of 55 and 58 years.In the present appeals, the 1963 notification treated all Government servants alike, namely, that they could be retained beyond the age of superannuation, but such retention depended upon the exigencies of the public service and the consideration of physical fitness and efficiency. Therefore it could not be said that the memorandum of 1963 infringed Article 1419. The High Court fell into the error of overlooking that 21st March, 1963 memorandum no longer occupied the field after the supersession of that memorandum by the memorandum dated 2nd April, 1968. Furthermore, if the order dated 21st march, 1963 was found to be bad, the entire order was to be struck down for the obvious reason that if the instrument was within the vice of Article 14 of the Constitution, the entire notification would perish20. We are of opinion that the High Court was in error in overlooking paragraph 4 of the memorandum dated 21st March, 1963. Paragraph 4 was as follows:"Notwithstanding anything contained in the foregoing paragraphs the appointing authority may require a Government servant to retire after he attained the age of 55 years on three months notice without assigning any reason."As we have already indicated paragraph 4 of the memorandum flowed form F. R. 56 (a). The Government could retain a Government servant beyond the age of superannuation. The Government has also the discretion to withdraw such retention in service because the retention does not confer any right on the Government servant21. Civil Appeal No. 1335 of 1969 relates to the case of Rasodhar Bora and Civil Appeal No. 1336 of 1969 is that of Premadhar Dutta22. Rasodhar Bora was born on 1st January, 1913 and would have retired on 1st January, 1968 on completion of the age of 55 years. He was found to be physically fit and efficient by the competent authorities and he was allowed to continue in service after the age of 55 years. Thereafter by a notice dated 1st July, 1968 there was a termination of his service on 30th September, 196823. In Civil Appeal No. 1336 of 1969 Premadhar Dutta was born on 15th May, 1911 and he was due to retire on 15th May, 1966. He continued in service after reaching the age of 55 years. His service was terminated on 30th May, 1968, by a notice dated 28th May, 196824. The contentions of both the respondents were similar to that of Premadhar Baruah. | 1 | 3,519 | 939 | ### Instruction:
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of discretion by the authority who would terminate the service in the matter of selection or classification. It was said that arbitrary and uncontrolled power was left with the authority to select at its will any person against whom action would be taken and therefore the authority could discriminate between two railway servants to both of whom R. 148 (3) equally applied by taking action in one case and not taking it in the other. Shah, J., on the other hand said that if for the purpose of ensuring the interests and safety of the public and the State, power was reserved to the Railway Administration to terminate the employment under the Railways, it could not be said that the railway servants were singled out for a special or discriminatory treatment. The classification could be founded on an intelligible differentia distinguishing railway servants from others and such differentia had a rational relation to the objects to be achieved. With regard to the position of railway servants inter se Shah, J. said that if the employment was for a period defined or if the employment was till superannuation the rules contemplated termination of service by a notice in both cases. The Rule would therefore not deny equal protection because there was no discrimination between them and the same law which protected other servants in the same group protected the appellants in that case and also provided for determination of their employment. Shah, J. further said that the possibility or assumption of mala fide exercise of a power of determination of employment under rule 148 (3) could not be the correct method of testing the constitutionality of the rule. 17. In the present appeals, the High Court by its majority decision held that paragraph 4 of the memorandum of 21st March, 1963 offended Article 14 of the Constitution because a person who was physically fit and efficient was allowed to continue in service till he was 58 years of age whereas any other person who would satisfy the conditions of physical fitness and efficiency could be asked to retire on three months notice. It has to be appreciated first that a Government servant has no right to continue in service beyond the age of superannuation. A Government servant is retained beyond the age of superannuation when the Government in the exigencies of public service or on public grounds exercises its discretion to retain a Government servant in service after the age of superannuation. The scope for the exercise of this discretion is embodied in F. R. 56 (a) as well as in paragraph 4 of 21st March, 1963 memorandum which was challenged in the High Court to be an infraction of Article 14. 18. In the present case after 21st March, 1963 memorandum was superseded and abrogated by 2nd April, 1968 memorandum, the respondent could not draw any substance from 21st March, 1968 Memorandum. 2nd April, 1968, memorandum reduced the age of superannuation and withdrew the benefits which had been conferred by 21st March, 1963 memorandum. This was again done in the interest of the Government servants to prevent unemployment as a result of increase of age of superannuation. This Court in Bishun Narain Mishras case, (1965) 1 SCR 693 = (AIR 1965 SC 1567 ) (supra) in dealing with a notification directing all those who were between the age of 55 and 58 and had been retained in service could be retired on 31st December, 1961 said that the rule treated alike all those who were between the age of 55 and 58 years.In the present appeals, the 1963 notification treated all Government servants alike, namely, that they could be retained beyond the age of superannuation, but such retention depended upon the exigencies of the public service and the consideration of physical fitness and efficiency. Therefore it could not be said that the memorandum of 1963 infringed Article 14. 19. The High Court fell into the error of overlooking that 21st March, 1963 memorandum no longer occupied the field after the supersession of that memorandum by the memorandum dated 2nd April, 1968. Furthermore, if the order dated 21st march, 1963 was found to be bad, the entire order was to be struck down for the obvious reason that if the instrument was within the vice of Article 14 of the Constitution, the entire notification would perish. 20. We are of opinion that the High Court was in error in overlooking paragraph 4 of the memorandum dated 21st March, 1963. Paragraph 4 was as follows:"Notwithstanding anything contained in the foregoing paragraphs the appointing authority may require a Government servant to retire after he attained the age of 55 years on three months notice without assigning any reason." As we have already indicated paragraph 4 of the memorandum flowed form F. R. 56 (a). The Government could retain a Government servant beyond the age of superannuation. The Government has also the discretion to withdraw such retention in service because the retention does not confer any right on the Government servant. 21. Civil Appeal No. 1335 of 1969 relates to the case of Rasodhar Bora and Civil Appeal No. 1336 of 1969 is that of Premadhar Dutta. 22. Rasodhar Bora was born on 1st January, 1913 and would have retired on 1st January, 1968 on completion of the age of 55 years. He was found to be physically fit and efficient by the competent authorities and he was allowed to continue in service after the age of 55 years. Thereafter by a notice dated 1st July, 1968 there was a termination of his service on 30th September, 1968. 23. In Civil Appeal No. 1336 of 1969 Premadhar Dutta was born on 15th May, 1911 and he was due to retire on 15th May, 1966. He continued in service after reaching the age of 55 years. His service was terminated on 30th May, 1968, by a notice dated 28th May, 1968. 24. The contentions of both the respondents were similar to that of Premadhar Baruah.
### Response:
1
### Explanation:
The order dated 21st March, 1963 was an executive instruction. That order of 21st March, 1963 has to be read not only in the light of the order dated 2nd April, 1968 but also in relation to F. R. 56 (a). The memorandum of 2nd April, 1968 definitely stated that the benefit of raising the age of superannuation to 58 years as laid down in the office memorandum dated 21st March 1963 had been decided to be discontinued by the memorandum dated 2nd April, 1968. After the order dated 2nd April, 1968 came into existence the order of 21st March, 1963 is neither relevant nor effective11. The order dated 21st March, 1963 and the order dated 2nd April, 1968 are both executive instructions and they are not rules under Article 309 of the Constitution17. In the present appeals, the High Court by its majority decision held that paragraph 4 of the memorandum of 21st March, 1963 offended Article 14 of the Constitution because a person who was physically fit and efficient was allowed to continue in service till he was 58 years of age whereas any other person who would satisfy the conditions of physical fitness and efficiency could be asked to retire on three months notice. It has to be appreciated first that a Government servant has no right to continue in service beyond the age of superannuationA Government servant is retained beyond the age of superannuation when the Government in the exigencies of public service or on public grounds exercises its discretion to retain a Government servant in service after the age of superannuation. The scope for the exercise of this discretion is embodied in F. R. 56 (a) as well as in paragraph 4 of 21st March, 1963 memorandum which was challenged in the High Court to be an infraction of Article 1418. In the present case after 21st March, 1963 memorandum was superseded and abrogated by 2nd April, 1968 memorandum, the respondent could not draw any substance from 21st March, 1968 Memorandum. 2nd April, 1968, memorandum reduced the age of superannuation and withdrew the benefits which had been conferred by 21st March, 1963 memorandum. This was again done in the interest of the Government servants to prevent unemployment as a result of increase of age of superannuation. This Court in Bishun Narain Mishras case, (1965) 1 SCR 693 = (AIR 1965 SC 1567 ) (supra) in dealing with a notification directing all those who were between the age of 55 and 58 and had been retained in service could be retired on 31st December, 1961 said that the rule treated alike all those who were between the age of 55 and 58 years.In the present appeals, the 1963 notification treated all Government servants alike, namely, that they could be retained beyond the age of superannuation, but such retention depended upon the exigencies of the public service and the consideration of physical fitness and efficiency. Therefore it could not be said that the memorandum of 1963 infringed Article 1419. The High Court fell into the error of overlooking that 21st March, 1963 memorandum no longer occupied the field after the supersession of that memorandum by the memorandum dated 2nd April, 1968. Furthermore, if the order dated 21st march, 1963 was found to be bad, the entire order was to be struck down for the obvious reason that if the instrument was within the vice of Article 14 of the Constitution, the entire notification would perish20. We are of opinion that the High Court was in error in overlooking paragraph 4 of the memorandum dated 21st March, 1963. Paragraph 4 was as follows:"Notwithstanding anything contained in the foregoing paragraphs the appointing authority may require a Government servant to retire after he attained the age of 55 years on three months notice without assigning any reason."As we have already indicated paragraph 4 of the memorandum flowed form F. R. 56 (a). The Government could retain a Government servant beyond the age of superannuation. The Government has also the discretion to withdraw such retention in service because the retention does not confer any right on the Government servant21. Civil Appeal No. 1335 of 1969 relates to the case of Rasodhar Bora and Civil Appeal No. 1336 of 1969 is that of Premadhar Dutta22. Rasodhar Bora was born on 1st January, 1913 and would have retired on 1st January, 1968 on completion of the age of 55 years. He was found to be physically fit and efficient by the competent authorities and he was allowed to continue in service after the age of 55 years. Thereafter by a notice dated 1st July, 1968 there was a termination of his service on 30th September, 196823. In Civil Appeal No. 1336 of 1969 Premadhar Dutta was born on 15th May, 1911 and he was due to retire on 15th May, 1966. He continued in service after reaching the age of 55 years. His service was terminated on 30th May, 1968, by a notice dated 28th May, 196824. The contentions of both the respondents were similar to that of Premadhar Baruah.
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Madhuband Colliery Vs. Their Workmen | was submitted that the tribunal was wrong in taking the view that the conditions of service of the respondent were governed by standing order Ex. W. 17 of the standing orders for the coalmining industry as certified by the Chief Labour Commissioner. It was pointed out that these standing orders came into operation on 29 March, 1960, long after the dismissal of the respondent. Rule 26 of the standing order, Ex. W. 17, provided that the workmen are liable to be transferred from one colliery to another "only when both the collieries were under the same management" and when such transfers did not cause any prejudice to their wages and other conditions of service. The tribunal considered that the transfer of the respondent was in contravention of rule 26 and was, therefore, illegal. In our opinion, the argument put forward on behalf of the appellant is well-founded and must be accepted as correct. It is not disputed in this case that standing order, Ex. W. 17, came into operation on 29 March, 1960, long after the dismissal of the respondent and the tribunal was in error in applying rule 26 of this standing order for testing the legality of the order of dismissal of the respondent. On the contrary, it appears to us that the service rules of Karam Chand Thapar & Bros., Ltd., Ex. M., were the relevant rules which governed the case of the respondent. There is evidence that Madhuband Colliery and Central Sounda Colliery are in the management of Karam Chand Thapar & Bros., Ltd. It is true that the respondent had been appointed in 1953 in the Real Jambad Colliery of which Karam Chand Thapar & Bros., Ltd., were only the secretary and treasurer and not the managing agents. It appears that the Real Jambad Colliery had no standing orders in 1953 in which year the respondent was appointed. It also appears that the Madhuband Colliery had no standing orders in 1956 at the time the respondent was transferred to that colliery from the Real Jambad Colliery. The order of transfer dated 30 July, 1956 reads as follows :"By mutual consent, the appointment of Sardar Jagir Singh, a welfare officer under training, at our Madhuband Colliery with effect from 1 August, 1956 is hereby confirmed.4. For the purposes of length of service, provident fund and leave accumulation the appointment of Sardar Jagir Singh under the company shall be taken and/or counted as in continuation of his services with his previous employer, the Real Jambad Coal Company, Ltd.For Jharia and Raniganj Collieries, Ltd.For Karam Chand Thaper & Bros. (Private), Ltd.(Sd.) -, General Secretary, Managing Agents."5. In the absence of any express contract between the parties or in the absence of certified standing orders it must be held that the conditions of service of the respondent are governed by the service rules of Karam Chand Thapar & Bros., Ltd., Ex. M., which applied to the employees of all the companies under the management and control of Karam Chand Thapar & Bros., Ltd. It is admitted that Madhuband Colliery and Central Sounda Colliery are both under the management of Karam Chand Thapar & Bros., Ltd., who are the managing agents of these collieries. The tribunal has expressed the view that the service rules, Ex. M, cannot apply to the respondent because Karam Chand Thapar & Bros., Ltd., are not the owners of the two collieries and therefore they cannot be "in control and management of the collieries" within the meaning of rule 1 of the service rules, Ex. M. The tribunal has stated that the expression "management and control" in rule 1 of Ex. M. should be interpreted to mean management and control as owner as such. In our opinion, the tribunal fell into an error in the interpretation of this phrase "management and control" occurring in rule 1 of Ex. M. It is manifest that Karam Chand Thapar & Bros., Ltd., being managing agents of the Central Sounda Colliery and Madhuband Colliery, are in management and control of these collieries within the meaning of rule 1 of Ex. M and it follows therefore that the service conditions of the respondent are governed by Ex. M. Now, rule 4 (b) of Ex. M states that :"the services of an employee shall be liable to transfer at any time and from time to time from one company or companies to another company or companies under the management of Karam Chand Thapar & Bros. (Private), Ltd., or any of their allied concerns."6. It is manifest that Karam Chand Thapar & Bros. were lawfully entitled to transfer the respondent from Madhuband Colliery to Central Sounda Colliery on 14 September, 1959 under rule 4(b) of the service rules, Ex. M, which were the relevant rules applicable to the case of the respondent. In this connexion we may add that in his representation, Ex. M. 5, to which we will presently refer, the respondent expressly admitted that these rules applied to him and based his claim on them.7. On the question of victimization no evidence was led on behalf of the respondent to show that he was transferred because of his trade union activities. On 14 May, 1959 the respondent made a representation to the Chief Labour Commissioner (Central), New Delhi, claiming a certain amount of money on account of arrears of pay and the like which was denied by the management. To the letter from the respondent, Ex. M. 5, the management replied on 15 July, 1959, Ex. M. 6, challenging his allegations. There is noting in Ex. M. 5 or M. 6 to suggest that the respondent was transferred because of his trade union activities. In our opinion, the finding of the tribunal on this point is vitiated in law because there is total lack of evidence to support this finding.8. For the reasons already given we hold that the transfer of Sardar Jagir Singh from Madhuband Colliery to Central Sounda Colliery and his ultimate discharge from service was legal and justified. | 1[ds]In the absence of any express contract between the parties or in the absence of certified standing orders it must be held that the conditions of service of the respondent are governed by the service rules of Karam Chand Thapar & Bros., Ltd., Ex. M., which applied to the employees of all the companies under the management and control of Karam Chand Thapar & Bros., Ltd. It is admitted that Madhuband Colliery and Central Sounda Colliery are both under the management of Karam Chand Thapar & Bros., Ltd., who are the managing agents of these collieries. The tribunal has expressed the view that the service rules, Ex. M, cannot apply to the respondent because Karam Chand Thapar & Bros., Ltd., are not the owners of the two collieries and therefore they cannot be "in control and management of the collieries" within the meaning of rule 1 of the service rules, Ex. M. The tribunal has stated that the expression "management and control" in rule 1 of Ex. M. should be interpreted to mean management and control as owner as such. In our opinion, the tribunal fell into an error in the interpretation of this phrase "management and control" occurring in rule 1 of Ex. M. It is manifest that Karam Chand Thapar & Bros., Ltd., being managing agents of the Central Sounda Colliery and Madhuband Colliery, are in management and control of these collieries within the meaning of rule 1 of Ex. M and it follows therefore that the service conditions of the respondent are governed by Ex. M. Now, rule 4 (b) of Ex. M states that :"the services of an employee shall be liable to transfer at any time and from time to time from one company or companies to another company or companies under the management of Karam Chand Thapar & Bros. (Private), Ltd., or any of their alliedis manifest that Karam Chand Thapar & Bros. were lawfully entitled to transfer the respondent from Madhuband Colliery to Central Sounda Colliery on 14 September, 1959 under rule 4(b) of the service rules, Ex. M, which were the relevant rules applicable to the case of the respondent. In this connexion we may add that in his representation, Ex. M. 5, to which we will presently refer, the respondent expressly admitted that these rules applied to him and based his claim onis noting in Ex. M. 5 or M. 6 to suggest that the respondent was transferred because of his trade union activities. In our opinion, the finding of the tribunal on this point is vitiated in law because there is total lack of evidence to support thisthe reasons already given we hold that the transfer of Sardar Jagir Singh from Madhuband Colliery to Central Sounda Colliery and his ultimate discharge from service was legal and justified. | 1 | 1,550 | 530 | ### 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:
was submitted that the tribunal was wrong in taking the view that the conditions of service of the respondent were governed by standing order Ex. W. 17 of the standing orders for the coalmining industry as certified by the Chief Labour Commissioner. It was pointed out that these standing orders came into operation on 29 March, 1960, long after the dismissal of the respondent. Rule 26 of the standing order, Ex. W. 17, provided that the workmen are liable to be transferred from one colliery to another "only when both the collieries were under the same management" and when such transfers did not cause any prejudice to their wages and other conditions of service. The tribunal considered that the transfer of the respondent was in contravention of rule 26 and was, therefore, illegal. In our opinion, the argument put forward on behalf of the appellant is well-founded and must be accepted as correct. It is not disputed in this case that standing order, Ex. W. 17, came into operation on 29 March, 1960, long after the dismissal of the respondent and the tribunal was in error in applying rule 26 of this standing order for testing the legality of the order of dismissal of the respondent. On the contrary, it appears to us that the service rules of Karam Chand Thapar & Bros., Ltd., Ex. M., were the relevant rules which governed the case of the respondent. There is evidence that Madhuband Colliery and Central Sounda Colliery are in the management of Karam Chand Thapar & Bros., Ltd. It is true that the respondent had been appointed in 1953 in the Real Jambad Colliery of which Karam Chand Thapar & Bros., Ltd., were only the secretary and treasurer and not the managing agents. It appears that the Real Jambad Colliery had no standing orders in 1953 in which year the respondent was appointed. It also appears that the Madhuband Colliery had no standing orders in 1956 at the time the respondent was transferred to that colliery from the Real Jambad Colliery. The order of transfer dated 30 July, 1956 reads as follows :"By mutual consent, the appointment of Sardar Jagir Singh, a welfare officer under training, at our Madhuband Colliery with effect from 1 August, 1956 is hereby confirmed.4. For the purposes of length of service, provident fund and leave accumulation the appointment of Sardar Jagir Singh under the company shall be taken and/or counted as in continuation of his services with his previous employer, the Real Jambad Coal Company, Ltd.For Jharia and Raniganj Collieries, Ltd.For Karam Chand Thaper & Bros. (Private), Ltd.(Sd.) -, General Secretary, Managing Agents."5. In the absence of any express contract between the parties or in the absence of certified standing orders it must be held that the conditions of service of the respondent are governed by the service rules of Karam Chand Thapar & Bros., Ltd., Ex. M., which applied to the employees of all the companies under the management and control of Karam Chand Thapar & Bros., Ltd. It is admitted that Madhuband Colliery and Central Sounda Colliery are both under the management of Karam Chand Thapar & Bros., Ltd., who are the managing agents of these collieries. The tribunal has expressed the view that the service rules, Ex. M, cannot apply to the respondent because Karam Chand Thapar & Bros., Ltd., are not the owners of the two collieries and therefore they cannot be "in control and management of the collieries" within the meaning of rule 1 of the service rules, Ex. M. The tribunal has stated that the expression "management and control" in rule 1 of Ex. M. should be interpreted to mean management and control as owner as such. In our opinion, the tribunal fell into an error in the interpretation of this phrase "management and control" occurring in rule 1 of Ex. M. It is manifest that Karam Chand Thapar & Bros., Ltd., being managing agents of the Central Sounda Colliery and Madhuband Colliery, are in management and control of these collieries within the meaning of rule 1 of Ex. M and it follows therefore that the service conditions of the respondent are governed by Ex. M. Now, rule 4 (b) of Ex. M states that :"the services of an employee shall be liable to transfer at any time and from time to time from one company or companies to another company or companies under the management of Karam Chand Thapar & Bros. (Private), Ltd., or any of their allied concerns."6. It is manifest that Karam Chand Thapar & Bros. were lawfully entitled to transfer the respondent from Madhuband Colliery to Central Sounda Colliery on 14 September, 1959 under rule 4(b) of the service rules, Ex. M, which were the relevant rules applicable to the case of the respondent. In this connexion we may add that in his representation, Ex. M. 5, to which we will presently refer, the respondent expressly admitted that these rules applied to him and based his claim on them.7. On the question of victimization no evidence was led on behalf of the respondent to show that he was transferred because of his trade union activities. On 14 May, 1959 the respondent made a representation to the Chief Labour Commissioner (Central), New Delhi, claiming a certain amount of money on account of arrears of pay and the like which was denied by the management. To the letter from the respondent, Ex. M. 5, the management replied on 15 July, 1959, Ex. M. 6, challenging his allegations. There is noting in Ex. M. 5 or M. 6 to suggest that the respondent was transferred because of his trade union activities. In our opinion, the finding of the tribunal on this point is vitiated in law because there is total lack of evidence to support this finding.8. For the reasons already given we hold that the transfer of Sardar Jagir Singh from Madhuband Colliery to Central Sounda Colliery and his ultimate discharge from service was legal and justified.
### Response:
1
### Explanation:
In the absence of any express contract between the parties or in the absence of certified standing orders it must be held that the conditions of service of the respondent are governed by the service rules of Karam Chand Thapar & Bros., Ltd., Ex. M., which applied to the employees of all the companies under the management and control of Karam Chand Thapar & Bros., Ltd. It is admitted that Madhuband Colliery and Central Sounda Colliery are both under the management of Karam Chand Thapar & Bros., Ltd., who are the managing agents of these collieries. The tribunal has expressed the view that the service rules, Ex. M, cannot apply to the respondent because Karam Chand Thapar & Bros., Ltd., are not the owners of the two collieries and therefore they cannot be "in control and management of the collieries" within the meaning of rule 1 of the service rules, Ex. M. The tribunal has stated that the expression "management and control" in rule 1 of Ex. M. should be interpreted to mean management and control as owner as such. In our opinion, the tribunal fell into an error in the interpretation of this phrase "management and control" occurring in rule 1 of Ex. M. It is manifest that Karam Chand Thapar & Bros., Ltd., being managing agents of the Central Sounda Colliery and Madhuband Colliery, are in management and control of these collieries within the meaning of rule 1 of Ex. M and it follows therefore that the service conditions of the respondent are governed by Ex. M. Now, rule 4 (b) of Ex. M states that :"the services of an employee shall be liable to transfer at any time and from time to time from one company or companies to another company or companies under the management of Karam Chand Thapar & Bros. (Private), Ltd., or any of their alliedis manifest that Karam Chand Thapar & Bros. were lawfully entitled to transfer the respondent from Madhuband Colliery to Central Sounda Colliery on 14 September, 1959 under rule 4(b) of the service rules, Ex. M, which were the relevant rules applicable to the case of the respondent. In this connexion we may add that in his representation, Ex. M. 5, to which we will presently refer, the respondent expressly admitted that these rules applied to him and based his claim onis noting in Ex. M. 5 or M. 6 to suggest that the respondent was transferred because of his trade union activities. In our opinion, the finding of the tribunal on this point is vitiated in law because there is total lack of evidence to support thisthe reasons already given we hold that the transfer of Sardar Jagir Singh from Madhuband Colliery to Central Sounda Colliery and his ultimate discharge from service was legal and justified.
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RAJASTHAN STATE ROAD TRANSPORT CORPORATION LTD. & ORS. Vs. SMT. MOHANI DEVI & ANR | subsequent to the death of the husband, the respondent had filed the writ petition before the High Court of judicature for Rajasthan, Bench at Jaipur in S.B. Civil Writ Petition No.2839/2012. The learned Single Judge while considering the case of the respondent merely took note of the legal position which had been enunciated by this Court in the facts of those cases which had been referred and with a bare reference to Clause 19D(2) of the Rules arrived at the conclusion that the application for voluntary retirement was deemed to have been accepted and therefore, directed that the appellants to treat the respondents husband to have retired from service on the date he was relieved and pay the retiral benefits. The Division Bench has reiterated the said position. 11. Having heard the learned counsel for the parties, we find that the factual aspects which were relevant for decision making in the instant case has not been referred by the High Court during the course of its order but has merely assumed that the voluntary retirement application should be deemed to have been accepted when there was no rejection. As noticed from the objection statement filed by the respondent herein herself, the right to seek for voluntary retirement is stipulated in Rule 50 of Rajasthan Civil Services Pension Rules, 1996. As indicated above, since the same provides for 20 years of qualifying service, the respondents husband had qualified to apply. However, what is relevant to take note is that sub-Rule(2) thereof provides that the notice of voluntary retirement given by the employee shall require acceptance by the appointing authority. In the instant case, the undisputed position is that there was no acceptance and in that circumstance the husband of the respondent had submitted his resignation on 03.05.2006. Though the High Court has indicated deemed acceptance, the same would not be justified in the instant facts since the position which has not been taken note by the High Court is that as on the date when the husband of the respondent had made the application for voluntary retirement on 28.07.2005 the husband of the respondent had already been issued Charge¬Sheets bearing No.7352 dated 16.12.2004 and bearing No.4118 dated 11.07.2005 alleging misconduct. Though the respondent, through the objection statement seeks to contend that the charge alleged against her husband was not justified, that aspect of the matter would not be germane to the present consideration since the position of law is well established that pending disciplinary proceedings if an application for voluntary retirement is submitted there would be no absolute right seeking for acceptance since the employer if keen on proceeding with the inquiry would be entitled not to consider the application for voluntary retirement. Hence there would be no obligation to accept. In the instant facts the proceedings relating to the charge sheet was taken forward and completed through the final order dated 03.09.2005. The punishment of withholding of the increment was imposed. In such circumstance the non¬ consideration of the application for voluntary retirement would be justified. 12. Be that as it may, as noted the inquiry had been completed and thereafter when the respondents husband submitted the resignation on 03.05.2006, the same was processed, accepted, he was relieved on 31.05.2006 and the payment of terminal benefits were made which had been accepted by him. During his lifetime up to 14.04.2011 the husband did not raise any issue with regard to the same. It is only thereafter the respondent has filed the writ petition before the High Court. Primarily it is to be noticed that when the application for voluntary retirement was filed on 28.07.2005 and had not been favourably considered by the employer, instead of submitting the resignation on 03.05.2006, if any legal right was available the appropriate course ought to have been to seek for acceptance of the application by initiating appropriate legal proceedings. Instead the respondents husband had yielded to the position of non¬ acceptance of the application for voluntary retirement and has thereafter submitted his resignation. The acceptance of the resignation was acted upon by receiving the terminal benefits. If that be the position, when the writ petition was filed belatedly in the year 2012 and that too after the death of the employee who had not raised any grievance during his life time, consideration of the prayer made by the respondent was not justified. The High Court has, therefore, committed an error in passing the concurrent orders. 13. The learned counsel for the respondent would submit that even if it is a case of resignation the deceased husband of the respondent was entitled to the payment of gratuity as he had put in the qualifying service. The learned counsel for the appellant would contend that the gratuity amount had been paid. In that regard, the reference made to para 9 of the writ appeal filed before the High Court would however indicate that though reference is made to the payment disbursed to the respondents husband while accepting the resignation, the same does not disclose that the gratuity amount has been paid. Further, in the appeal filed before this Court the appellants have sought to justify the non¬payment of the gratuity as the husband of the respondent had resigned from service. As rightly pointed out by the learned counsel for the respondents, Section 4(1)(b) of the Payment of Gratuity Act, 1972 provides that the gratuity shall be payable if the termination of employment is after 5 years of continuous service and such termination would include resignation as well. In that view, if the gratuity amount has not been paid to the respondents husband, the liability to pay the same would subsist and the respondent No.1 will be entitled to receive the same in accordance with the provisions of the Act. In that regard it is directed that the appellants shall accordingly calculate the gratuity and pay the same to the respondent No.1, if already not paid. Such payment shall be made within four weeks from this date. | 1[ds]11. Having heard the learned counsel for the parties, we find that the factual aspects which were relevant for decision making in the instant case has not been referred by the High Court during the course of its order but has merely assumed that the voluntary retirement application should be deemed to have been accepted when there was no rejection. As noticed from the objection statement filed by the respondent herein herself, the right to seek for voluntary retirement is stipulated in Rule 50 of Rajasthan Civil Services Pension Rules, 1996. As indicated above, since the same provides for 20 years of qualifying service, the respondents husband had qualified to apply. However, what is relevant to take note is that sub-Rule(2) thereof provides that the notice of voluntary retirement given by the employee shall require acceptance by the appointing authority. In the instant case, the undisputed position is that there was no acceptance and in that circumstance the husband of the respondent had submitted his resignation on 03.05.2006. Though the High Court has indicated deemed acceptance, the same would not be justified in the instant facts since the position which has not been taken note by the High Court is that as on the date when the husband of the respondent had made the application for voluntary retirement on 28.07.2005 the husband of the respondent had already been issued Charge¬Sheets bearing No.7352 dated 16.12.2004 and bearing No.4118 dated 11.07.2005 alleging misconduct. Though the respondent, through the objection statement seeks to contend that the charge alleged against her husband was not justified, that aspect of the matter would not be germane to the present consideration since the position of law is well established that pending disciplinary proceedings if an application for voluntary retirement is submitted there would be no absolute right seeking for acceptance since the employer if keen on proceeding with the inquiry would be entitled not to consider the application for voluntary retirement. Hence there would be no obligation to accept. In the instant facts the proceedings relating to the charge sheet was taken forward and completed through the final order dated 03.09.2005. The punishment of withholding of the increment was imposed. In such circumstance the non¬ consideration of the application for voluntary retirement would be justified12. Be that as it may, as noted the inquiry had been completed and thereafter when the respondents husband submitted the resignation on 03.05.2006, the same was processed, accepted, he was relieved on 31.05.2006 and the payment of terminal benefits were made which had been accepted by him. During his lifetime up to 14.04.2011 the husband did not raise any issue with regard to the same. It is only thereafter the respondent has filed the writ petition before the High Court. Primarily it is to be noticed that when the application for voluntary retirement was filed on 28.07.2005 and had not been favourably considered by the employer, instead of submitting the resignation on 03.05.2006, if any legal right was available the appropriate course ought to have been to seek for acceptance of the application by initiating appropriate legal proceedings. Instead the respondents husband had yielded to the position of non¬ acceptance of the application for voluntary retirement and has thereafter submitted his resignation. The acceptance of the resignation was acted upon by receiving the terminal benefits. If that be the position, when the writ petition was filed belatedly in the year 2012 and that too after the death of the employee who had not raised any grievance during his life time, consideration of the prayer made by the respondent was not justified. The High Court has, therefore, committed an error in passing the concurrent ordersIn that regard, the reference made to para 9 of the writ appeal filed before the High Court would however indicate that though reference is made to the payment disbursed to the respondents husband while accepting the resignation, the same does not disclose that the gratuity amount has been paid. Further, in the appeal filed before this Court the appellants have sought to justify the non¬payment of the gratuity as the husband of the respondent had resigned from service. As rightly pointed out by the learned counsel for the respondents, Section 4(1)(b) of the Payment of Gratuity Act, 1972 provides that the gratuity shall be payable if the termination of employment is after 5 years of continuous service and such termination would include resignation as well. In that view, if the gratuity amount has not been paid to the respondents husband, the liability to pay the same would subsist and the respondent No.1 will be entitled to receive the same in accordance with the provisions of the Act. In that regard it is directed that the appellants shall accordingly calculate the gratuity and pay the same to the respondent No.1, if already not paid. Such payment shall be made within four weeks from this date. | 1 | 1,955 | 882 | ### 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:
subsequent to the death of the husband, the respondent had filed the writ petition before the High Court of judicature for Rajasthan, Bench at Jaipur in S.B. Civil Writ Petition No.2839/2012. The learned Single Judge while considering the case of the respondent merely took note of the legal position which had been enunciated by this Court in the facts of those cases which had been referred and with a bare reference to Clause 19D(2) of the Rules arrived at the conclusion that the application for voluntary retirement was deemed to have been accepted and therefore, directed that the appellants to treat the respondents husband to have retired from service on the date he was relieved and pay the retiral benefits. The Division Bench has reiterated the said position. 11. Having heard the learned counsel for the parties, we find that the factual aspects which were relevant for decision making in the instant case has not been referred by the High Court during the course of its order but has merely assumed that the voluntary retirement application should be deemed to have been accepted when there was no rejection. As noticed from the objection statement filed by the respondent herein herself, the right to seek for voluntary retirement is stipulated in Rule 50 of Rajasthan Civil Services Pension Rules, 1996. As indicated above, since the same provides for 20 years of qualifying service, the respondents husband had qualified to apply. However, what is relevant to take note is that sub-Rule(2) thereof provides that the notice of voluntary retirement given by the employee shall require acceptance by the appointing authority. In the instant case, the undisputed position is that there was no acceptance and in that circumstance the husband of the respondent had submitted his resignation on 03.05.2006. Though the High Court has indicated deemed acceptance, the same would not be justified in the instant facts since the position which has not been taken note by the High Court is that as on the date when the husband of the respondent had made the application for voluntary retirement on 28.07.2005 the husband of the respondent had already been issued Charge¬Sheets bearing No.7352 dated 16.12.2004 and bearing No.4118 dated 11.07.2005 alleging misconduct. Though the respondent, through the objection statement seeks to contend that the charge alleged against her husband was not justified, that aspect of the matter would not be germane to the present consideration since the position of law is well established that pending disciplinary proceedings if an application for voluntary retirement is submitted there would be no absolute right seeking for acceptance since the employer if keen on proceeding with the inquiry would be entitled not to consider the application for voluntary retirement. Hence there would be no obligation to accept. In the instant facts the proceedings relating to the charge sheet was taken forward and completed through the final order dated 03.09.2005. The punishment of withholding of the increment was imposed. In such circumstance the non¬ consideration of the application for voluntary retirement would be justified. 12. Be that as it may, as noted the inquiry had been completed and thereafter when the respondents husband submitted the resignation on 03.05.2006, the same was processed, accepted, he was relieved on 31.05.2006 and the payment of terminal benefits were made which had been accepted by him. During his lifetime up to 14.04.2011 the husband did not raise any issue with regard to the same. It is only thereafter the respondent has filed the writ petition before the High Court. Primarily it is to be noticed that when the application for voluntary retirement was filed on 28.07.2005 and had not been favourably considered by the employer, instead of submitting the resignation on 03.05.2006, if any legal right was available the appropriate course ought to have been to seek for acceptance of the application by initiating appropriate legal proceedings. Instead the respondents husband had yielded to the position of non¬ acceptance of the application for voluntary retirement and has thereafter submitted his resignation. The acceptance of the resignation was acted upon by receiving the terminal benefits. If that be the position, when the writ petition was filed belatedly in the year 2012 and that too after the death of the employee who had not raised any grievance during his life time, consideration of the prayer made by the respondent was not justified. The High Court has, therefore, committed an error in passing the concurrent orders. 13. The learned counsel for the respondent would submit that even if it is a case of resignation the deceased husband of the respondent was entitled to the payment of gratuity as he had put in the qualifying service. The learned counsel for the appellant would contend that the gratuity amount had been paid. In that regard, the reference made to para 9 of the writ appeal filed before the High Court would however indicate that though reference is made to the payment disbursed to the respondents husband while accepting the resignation, the same does not disclose that the gratuity amount has been paid. Further, in the appeal filed before this Court the appellants have sought to justify the non¬payment of the gratuity as the husband of the respondent had resigned from service. As rightly pointed out by the learned counsel for the respondents, Section 4(1)(b) of the Payment of Gratuity Act, 1972 provides that the gratuity shall be payable if the termination of employment is after 5 years of continuous service and such termination would include resignation as well. In that view, if the gratuity amount has not been paid to the respondents husband, the liability to pay the same would subsist and the respondent No.1 will be entitled to receive the same in accordance with the provisions of the Act. In that regard it is directed that the appellants shall accordingly calculate the gratuity and pay the same to the respondent No.1, if already not paid. Such payment shall be made within four weeks from this date.
### Response:
1
### Explanation:
11. Having heard the learned counsel for the parties, we find that the factual aspects which were relevant for decision making in the instant case has not been referred by the High Court during the course of its order but has merely assumed that the voluntary retirement application should be deemed to have been accepted when there was no rejection. As noticed from the objection statement filed by the respondent herein herself, the right to seek for voluntary retirement is stipulated in Rule 50 of Rajasthan Civil Services Pension Rules, 1996. As indicated above, since the same provides for 20 years of qualifying service, the respondents husband had qualified to apply. However, what is relevant to take note is that sub-Rule(2) thereof provides that the notice of voluntary retirement given by the employee shall require acceptance by the appointing authority. In the instant case, the undisputed position is that there was no acceptance and in that circumstance the husband of the respondent had submitted his resignation on 03.05.2006. Though the High Court has indicated deemed acceptance, the same would not be justified in the instant facts since the position which has not been taken note by the High Court is that as on the date when the husband of the respondent had made the application for voluntary retirement on 28.07.2005 the husband of the respondent had already been issued Charge¬Sheets bearing No.7352 dated 16.12.2004 and bearing No.4118 dated 11.07.2005 alleging misconduct. Though the respondent, through the objection statement seeks to contend that the charge alleged against her husband was not justified, that aspect of the matter would not be germane to the present consideration since the position of law is well established that pending disciplinary proceedings if an application for voluntary retirement is submitted there would be no absolute right seeking for acceptance since the employer if keen on proceeding with the inquiry would be entitled not to consider the application for voluntary retirement. Hence there would be no obligation to accept. In the instant facts the proceedings relating to the charge sheet was taken forward and completed through the final order dated 03.09.2005. The punishment of withholding of the increment was imposed. In such circumstance the non¬ consideration of the application for voluntary retirement would be justified12. Be that as it may, as noted the inquiry had been completed and thereafter when the respondents husband submitted the resignation on 03.05.2006, the same was processed, accepted, he was relieved on 31.05.2006 and the payment of terminal benefits were made which had been accepted by him. During his lifetime up to 14.04.2011 the husband did not raise any issue with regard to the same. It is only thereafter the respondent has filed the writ petition before the High Court. Primarily it is to be noticed that when the application for voluntary retirement was filed on 28.07.2005 and had not been favourably considered by the employer, instead of submitting the resignation on 03.05.2006, if any legal right was available the appropriate course ought to have been to seek for acceptance of the application by initiating appropriate legal proceedings. Instead the respondents husband had yielded to the position of non¬ acceptance of the application for voluntary retirement and has thereafter submitted his resignation. The acceptance of the resignation was acted upon by receiving the terminal benefits. If that be the position, when the writ petition was filed belatedly in the year 2012 and that too after the death of the employee who had not raised any grievance during his life time, consideration of the prayer made by the respondent was not justified. The High Court has, therefore, committed an error in passing the concurrent ordersIn that regard, the reference made to para 9 of the writ appeal filed before the High Court would however indicate that though reference is made to the payment disbursed to the respondents husband while accepting the resignation, the same does not disclose that the gratuity amount has been paid. Further, in the appeal filed before this Court the appellants have sought to justify the non¬payment of the gratuity as the husband of the respondent had resigned from service. As rightly pointed out by the learned counsel for the respondents, Section 4(1)(b) of the Payment of Gratuity Act, 1972 provides that the gratuity shall be payable if the termination of employment is after 5 years of continuous service and such termination would include resignation as well. In that view, if the gratuity amount has not been paid to the respondents husband, the liability to pay the same would subsist and the respondent No.1 will be entitled to receive the same in accordance with the provisions of the Act. In that regard it is directed that the appellants shall accordingly calculate the gratuity and pay the same to the respondent No.1, if already not paid. Such payment shall be made within four weeks from this date.
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First Additional Wealth Tax Officer, Kozhikode, and Others Vs. Khan Bahadur Mammed Keyi and Others | dealt with together. One of the appeals (No. 262) arises out of a writ petition by the karanavan of a Muslim Mopla tarwad in the District of North Malabar, governed by the Marumakkathayam law. The other four appeals arise out of writ petitions by karanavans of Hindu undivided families in Malabar and Cochin. These five writ petitions challenged the constitutionality of the Wealth-tax Act, No. 27 of 1957 (hereinafter referred to as the Act) and prayed for the quashing of the wealth-tax assessments made in these cases. There are certain differences of facts in the five petitions, but we do not propose to refer to those differences as we propose to confine ourselves to the attack on the constitutionality of the Act The main contentions of the respondents before the High Court with respect to the constitutionality of the Act were two-fold, namely---(1) that Parliament was not competent to include Hindu undivided families in the charging section 3 of the Act in view of the provision in Entry 86 of List I of the Seventh Schedule to the Constitution and (2) that the provision relating to Hindu undivided families was discriminatory and denied equal protection of laws and was, therefore, hit by article 14 of the Constitution2. The High Court held on the first question that Parliament was competent to include Hindu undivided families in section 3 of the Act. On the second question, the High Court held that though the contention under article 14 had not been taken in the petitions before it in the form in which it was presented at the time of argument, it was open to it to go into the question in view of certain adjournments granted to the parties in this connection and also in view of the fact that the matter had been fully argued before it by learned counsel for the parties. Eventually the High Court said that the issue as to discrimination had been fully argued on both sides and the department had sufficient opportunity to meet the objection under article 14 and it, therefore, finally proceeded to consider the same. The main contention under this head before the High Court was that the Act though it subjected Hindu undivided families to a tax under section 3 thereof made no provision for Muslim Mopla tarwads which were also undivided families and, therefore, there was discrimination so far as undivided families were concerned. In that connection the contention of the appellant before the High Court was that muslim Mopla tarwads were so insignificant in number that their existence could be ignored and the practice of the appellant had been to assess such tarwads under the Act as individuals.3. The High Court however was not impressed by this contention on behalf of the appellant and said that it behoved the department to furnish some information to sustain the contention that Muslim Mopla tarwads were so insignificant in number as to be negligible and that had not been done. The High Court, therefore, finally held that there was discrimination as between Hindu undivided families and Muslim Mopla tarwads which were also undivided families and, therefore, the charging section in so far as it governed undivided families was hit by article 14We have come to the conclusion that these cases must be remanded to the High Court for further consideration after giving parties an opportunity to place full facts in connection with the application of article 14 before it. The High Court itself pointed out that there was no averment on behalf of the writ petitioners before the High Court (now respondents before us) on the lines on which the argument finally developed at the bearing. It is true that some adjournments were granted by the High Court in this connection ; but we are not satisfied that the case for the application or otherwise of article 14 was properly put before the High Court by either side. We should like also to point out that the High Court seemed to take the view that it was for the State to show that article 14 was not applicable. This is not correct, for it is for the party who comes forward with the allegation that equality before the law or the equal protection of the laws is being denied to him to adduce facts to prove such denial. It would therefore, have been open to the High Court, in the absence of proper allegation supported by proper facts on the part of the respondents, to dismiss their writ petitions. This court has repeatedly pointed out that the issue about the constitutional validity of any statutory provision cannot be effectivley or satisfactorily determined unless the petitioner sets out specific pleas and adduces satisfactory evidence in support of them. But we feel in the interest of justice that it is necessary that an opportunity should be given to the respondents to put forward their case under article 14 properly before the High Court supported by facts and figures.4. We are also of opinion that after such facts and figures are put forward by the respondents before the High Court, an opportunity should be given to the State to meet the facts and figures and thereafter the High Court should proceed to consider whether there has been denial of equality before the law or of equal protection of the laws so far as undivided families are concerned. In this view of the matter, it is unnecessary at this stage for us to consider whether the view of the High Court on the first question relating to legislative competence is or is not correct. We, therefore, allow the appeals, set aside the orders of the High Court and remand the cases to the High Court to consider whether article 14 applies in these cases or not after giving parties opportunity of putting forward their respective cases before it, supported by facts and figures. In the circumstances we order the parties to bear their own costs in this court. | 1[ds]We have come to the conclusion that these cases must be remanded to the High Court for further consideration after giving parties an opportunity to place full facts in connection with the application of article 14 before it. The High Court itself pointed out that there was no averment on behalf of the writ petitioners before the High Court (now respondents before us) on the lines on which the argument finally developed at the bearing. It is true that some adjournments were granted by the High Court in this connection ; but we are not satisfied that the case for the application or otherwise of article 14 was properly put before the High Court by either side. We should like also to point out that the High Court seemed to take the view that it was for the State to show that article 14 was not applicable. This is not correct, for it is for the party who comes forward with the allegation that equality before the law or the equal protection of the laws is being denied to him to adduce facts to prove such denial. It would therefore, have been open to the High Court, in the absence of proper allegation supported by proper facts on the part of the respondents, to dismiss their writ petitions. This court has repeatedly pointed out that the issue about the constitutional validity of any statutory provision cannot be effectivley or satisfactorily determined unless the petitioner sets out specific pleas and adduces satisfactory evidence in support of them. But we feel in the interest of justice that it is necessary that an opportunity should be given to the respondents to put forward their case under article 14 properly before the High Court supported by facts and figures.4. We are also of opinion that after such facts and figures are put forward by the respondents before the High Court, an opportunity should be given to the State to meet the facts and figures and thereafter the High Court should proceed to consider whether there has been denial of equality before the law or of equal protection of the laws so far as undivided families are concerned. In this view of the matter, it is unnecessary at this stage for us to consider whether the view of the High Court on the first question relating to legislative competence is or is not correct. We, therefore, allow the appeals, set aside the orders of the High Court and remand the cases to the High Court to consider whether article 14 applies in these cases or not after giving parties opportunity of putting forward their respective cases before it, supported by facts and figures. In the circumstances we order the parties to bear their own costs in this court. | 1 | 1,095 | 492 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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dealt with together. One of the appeals (No. 262) arises out of a writ petition by the karanavan of a Muslim Mopla tarwad in the District of North Malabar, governed by the Marumakkathayam law. The other four appeals arise out of writ petitions by karanavans of Hindu undivided families in Malabar and Cochin. These five writ petitions challenged the constitutionality of the Wealth-tax Act, No. 27 of 1957 (hereinafter referred to as the Act) and prayed for the quashing of the wealth-tax assessments made in these cases. There are certain differences of facts in the five petitions, but we do not propose to refer to those differences as we propose to confine ourselves to the attack on the constitutionality of the Act The main contentions of the respondents before the High Court with respect to the constitutionality of the Act were two-fold, namely---(1) that Parliament was not competent to include Hindu undivided families in the charging section 3 of the Act in view of the provision in Entry 86 of List I of the Seventh Schedule to the Constitution and (2) that the provision relating to Hindu undivided families was discriminatory and denied equal protection of laws and was, therefore, hit by article 14 of the Constitution2. The High Court held on the first question that Parliament was competent to include Hindu undivided families in section 3 of the Act. On the second question, the High Court held that though the contention under article 14 had not been taken in the petitions before it in the form in which it was presented at the time of argument, it was open to it to go into the question in view of certain adjournments granted to the parties in this connection and also in view of the fact that the matter had been fully argued before it by learned counsel for the parties. Eventually the High Court said that the issue as to discrimination had been fully argued on both sides and the department had sufficient opportunity to meet the objection under article 14 and it, therefore, finally proceeded to consider the same. The main contention under this head before the High Court was that the Act though it subjected Hindu undivided families to a tax under section 3 thereof made no provision for Muslim Mopla tarwads which were also undivided families and, therefore, there was discrimination so far as undivided families were concerned. In that connection the contention of the appellant before the High Court was that muslim Mopla tarwads were so insignificant in number that their existence could be ignored and the practice of the appellant had been to assess such tarwads under the Act as individuals.3. The High Court however was not impressed by this contention on behalf of the appellant and said that it behoved the department to furnish some information to sustain the contention that Muslim Mopla tarwads were so insignificant in number as to be negligible and that had not been done. The High Court, therefore, finally held that there was discrimination as between Hindu undivided families and Muslim Mopla tarwads which were also undivided families and, therefore, the charging section in so far as it governed undivided families was hit by article 14We have come to the conclusion that these cases must be remanded to the High Court for further consideration after giving parties an opportunity to place full facts in connection with the application of article 14 before it. The High Court itself pointed out that there was no averment on behalf of the writ petitioners before the High Court (now respondents before us) on the lines on which the argument finally developed at the bearing. It is true that some adjournments were granted by the High Court in this connection ; but we are not satisfied that the case for the application or otherwise of article 14 was properly put before the High Court by either side. We should like also to point out that the High Court seemed to take the view that it was for the State to show that article 14 was not applicable. This is not correct, for it is for the party who comes forward with the allegation that equality before the law or the equal protection of the laws is being denied to him to adduce facts to prove such denial. It would therefore, have been open to the High Court, in the absence of proper allegation supported by proper facts on the part of the respondents, to dismiss their writ petitions. This court has repeatedly pointed out that the issue about the constitutional validity of any statutory provision cannot be effectivley or satisfactorily determined unless the petitioner sets out specific pleas and adduces satisfactory evidence in support of them. But we feel in the interest of justice that it is necessary that an opportunity should be given to the respondents to put forward their case under article 14 properly before the High Court supported by facts and figures.4. We are also of opinion that after such facts and figures are put forward by the respondents before the High Court, an opportunity should be given to the State to meet the facts and figures and thereafter the High Court should proceed to consider whether there has been denial of equality before the law or of equal protection of the laws so far as undivided families are concerned. In this view of the matter, it is unnecessary at this stage for us to consider whether the view of the High Court on the first question relating to legislative competence is or is not correct. We, therefore, allow the appeals, set aside the orders of the High Court and remand the cases to the High Court to consider whether article 14 applies in these cases or not after giving parties opportunity of putting forward their respective cases before it, supported by facts and figures. In the circumstances we order the parties to bear their own costs in this court.
### Response:
1
### Explanation:
We have come to the conclusion that these cases must be remanded to the High Court for further consideration after giving parties an opportunity to place full facts in connection with the application of article 14 before it. The High Court itself pointed out that there was no averment on behalf of the writ petitioners before the High Court (now respondents before us) on the lines on which the argument finally developed at the bearing. It is true that some adjournments were granted by the High Court in this connection ; but we are not satisfied that the case for the application or otherwise of article 14 was properly put before the High Court by either side. We should like also to point out that the High Court seemed to take the view that it was for the State to show that article 14 was not applicable. This is not correct, for it is for the party who comes forward with the allegation that equality before the law or the equal protection of the laws is being denied to him to adduce facts to prove such denial. It would therefore, have been open to the High Court, in the absence of proper allegation supported by proper facts on the part of the respondents, to dismiss their writ petitions. This court has repeatedly pointed out that the issue about the constitutional validity of any statutory provision cannot be effectivley or satisfactorily determined unless the petitioner sets out specific pleas and adduces satisfactory evidence in support of them. But we feel in the interest of justice that it is necessary that an opportunity should be given to the respondents to put forward their case under article 14 properly before the High Court supported by facts and figures.4. We are also of opinion that after such facts and figures are put forward by the respondents before the High Court, an opportunity should be given to the State to meet the facts and figures and thereafter the High Court should proceed to consider whether there has been denial of equality before the law or of equal protection of the laws so far as undivided families are concerned. In this view of the matter, it is unnecessary at this stage for us to consider whether the view of the High Court on the first question relating to legislative competence is or is not correct. We, therefore, allow the appeals, set aside the orders of the High Court and remand the cases to the High Court to consider whether article 14 applies in these cases or not after giving parties opportunity of putting forward their respective cases before it, supported by facts and figures. In the circumstances we order the parties to bear their own costs in this court.
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Ashok Leyland Limited Vs. Union of India & Others | of Maharashtra. Those orders have become final, now the Tamil Nadu authorities are seeking to reopen the assessment and proposing to treat the said movement of vehicle from Tamil Nadu to Maharashtra as inter State sales. Suppose, tomorrow it is held by the Tamil Nadu authorities that they were indeed inter State sales and tax is levied and collected by the Tamil Nadu State, can the appellant go and legitimately ask the Maharashtra authorities to refund the tax paid by it on the sale of vehicles in Maharashtra? It may not be able to do so, as the law now stands. The Maharashtra authorities may well tell the appellant that those orders have become final and their orders cannot be reopened because authorities of another State have taken a contrary view. We are not sure whether it is possible to stipulate that while deciding the question whether the said transfer of vehicles constitutes inter State sale or not, the Tamil Nadu authorities shall give notice to, implead the Maharashtra Sales Tax authorities, hear them and decide so that their decision would be binding upon the Maharashtra authorities. The law as now in force does not appear to permit such a course more particularly in a situation whether the orders of Maharashtra Sales Tax authorities have become final, as stated above. The Maharashtra authorities may well refuse to appear before the Tamil Nadu authorities. They may not accept the jurisdiction of Tamil Nadu authorities over them or over the orders passed by them. They may also refuse to submit to the jurisdiction of the Tamil Nadu authorities. On this aspect, we must, however, notice an observation in a recent decision of this Court in Bharat Heavy Electrical Limited v. Union of India, wherein the following observation occurs at Page 239: If a dispute arises in which State is the tax lawfully leviable, the authorities under the Act have got to decide it. If, in a given case, an assessee says that the particular transaction which is sought to be taxed in State A has already been taxed in State B, nothing prevents him from impleading State B in proceedings in State A and have the matter decided in the presence of all parties. It must be remembered that while acting under the Central Sales Tax Act, the State machinery acts as the machinery of the Central Government and not as the machinery of the State Government; in law, it is as if it belongs to the Central Government. This view of ours get reinforced if one keeps the provisions in S.8(2A) of the Central Sales Tax Act view. The said observation, no doubt, projects a point of view, but it has to be understood in the particular facts of that case. In that case, orders of Sales Tax authorities of any particular State had not become final. When more than one State sought to tax the same transaction on different bases, BHEL came to this Court by way of a writ petition under Art.32 of the Constitution and certain directions were made by this Court. Moreover, the matter there was decided by the High Court and the various State governments who were impleaded as respondents did not object to the jurisdiction of the High Court to decide the dispute - dispute as to the true nature of the transaction and who should tax it. In this matter, the situation is different. The orders of several State authorities have become final and there is no way provided by the Act following which the finality of those orders can be undone and the question of the true nature of the transaction decided afresh with participation of the State authorities of both the States. There is yet another fact, viz., the state governments are objecting to the jurisdiction of Tamil Nadu Sale Tax authorities to summon them and decide the question which may require them to revise their own orders. This situation did not arise in BHEL. It is in this situation that the idea of a Central mechanism has come to fore. This does not of course, mean that this Court cannot devise an appropriate method to meet the interests of justice. It can. Appropriate directions can always be given to both the concerned States to submit to the jurisdiction of a particular designated Court or Tribunal which will decide the question regarding the true nature of the transaction after hearing all the affected parties. The fact that those orders of authorities in certain proceedings have become final may not stand in the way of this Court giving appropriate directions under Art.32 or 136 or 142, as the case may be, but that situation has not yet arisen in this case. Let the Tamil Nadu assessing authorities first decide the matters before them. Thereafter, if the orders are against the appellant, we permit the appellant to file the appeal(s) directly before the Tribunal. If the Tribunal decides in favour of the appellant, no further question would arise. But if it decides against the appellant, to wit, if it holds that the sale of vehicles to the STUs, of various States are inter State sales and if it is found that those very transactions have also been taxed as intra State sales under the State sales tax enactments of another State, that would be the stage for considering the advisability of giving appropriate directions of the nature contemplated above by this Court - that is, of course, if by that time, no central mechanism to meet such a situation comes into existence. 23. In the interest of inter State trade and commerce, the suggestion for creation of a central mechanism to decide such dispute - which are really in nature of inter State disputes - may be well worth considering; every dealer affected may not be in a position to approach this Court for appropriate directions. It is for the Government of India to consider this aspect and take necessary decision in that behalf. | 0[ds]12. We find difficult to agree with Sri Parasaran that S.6A creates a conclusive presumption. It is true that if the particulars stated in the declaration/Form F are found to be true, the assessing authority shall pass an order, either at the time of making of the assessment or at any time before, that the contents of Form F are accepted as true. On such order being made, it shall be deemed that the movement of goods to which the form relates has been occasioned otherwise than as a result of sale. But there are no words in S.6A which can be said to create a conclusive presumption or clothe the "deemed" fact with a conclusive character. All that it says is that if the particulars stated in Form F are true, certain fact shall be presumed - or shall be or deemed to have taken place, as the case may be. It is not possible to agree that the word "deemed" in Sub-section (2) of S.6A can be understood as creating a conclusive presumption nor is it possible to agree that the fact "deemed" is final and conclusive. S.6A merely states a rule of evidence. It says that where a dealer claims that certain goods have been moved from one State to another and that such movement has occasioned otherwise than as a result of sale, the burden of proving the same lies upon him. Besides creating the said rule of evidence, the section also sets out how the said burden can be discharged. It can be discharged by producing Form F and on the particulars stated in the said form being found true on being enquired into by the assessing officer. From this it does not follow that once an order is made accepting Form F as true, it is not subject to the power of reopening or revision contained in S.16 and 32 of the Tamil Nadu General Sales Tax Act read with S.92 of the Central Sales Tax Act. After all, S.6A is also one of the provisions in this Act. There is no reason to elevate it to a higher status than the rest of the provisions. If it were the intention of the Parliament to invest the "deemed" fact with the status of a conclusive presumption, the Parliament would have said so. The Court cannot supply that requirement. Ordinarily speaking, an order accepting or rejecting - Form F as true will be passed only during the assessment proceedings. There may be cases where such an order is passed earlier to the making of the assessment. Even so, such an order is incidental to and integrally connected with the assessment of the dealer. The High Court has characterised the said provision as a step in aid of assessment. Be that as it may, if the very assessment is subject to the power of reopening or revision, it is ununderstandable as to how an order under S.6A(2) is not similarly amenable. The power to reopen can be exercised under S.16 of the Tamil Nadu General Sales Tax Act "where for any reason, the whole or any part of the turnover of business of a dealer has escaped assessment to tax". The power is very wide, though it may be that it should not be mechanically or lightly exercised.We are, therefore, of the opinion that S.6A does not create a conclusive presumption and that an order accepting Form F, whether passed during the assessment or at any point earlier thereto, is ultimately a part and parcel of the order of assessment. Its amenability to power of reopening and revision depends upon the provisions of the concerned Slate sales tax enactment by virtue of S.9(2). It is also not possible to agree that an order under S.6A(2) has an independent existence. It does not have. An order refusing to accept Form F may or may not be appealable independently depending upon the provisions of the local sales tax enactment but it is certainly capable of being questioned in the appeal preferred against the order of assessment - for the simple reason that an order accepting or rejecting Form F does affect the quantum of turnover taxable under the Act. So far as the power of reopening is concerned, it is enough for us to say that if the order(s) accepting Form(s) F is sought to be reopened, it can be done as part of reopening of assessment or, may be, independently - that depends upon the language of the relevant provision in the local sales tax enactment. In the present case, the provision relevant is S.16 of the Tamil Nadu General Sales Tax Act. From the language of S.16, it appears that it may be possible to reopen an order accepting Form F as true without, at the same time, reopening the assessment. Even so, it must be noticed that such a reopening necessarily leads to revision/modification of the assessment order. It is equally obvious that if the reopening is confined to the order accepting Form F as true, the inquiry shall be confined to the matters relevant thereto. Whether that power has been exercised validly in these cases does not fall for our consideration. Hence, no opinion need be expressed on that aspect. The fact that the assessments are sought to be reopened only in respect of the turnover relating to sale of vehicles to State Transport Undertakings in various State but not with respect to turnover relating to sales to persons other than STUs cannot be a ground to invalidate the proceedings taken.Having thus disposed of the main contentions of the appellant, we must yet say that the situation the appellant is facing is no doubt real, which may indeed put it in good amount of jeopardy. If the vehicles which have been sold to, say, Maharashtra STU have been moved to the appellants RSO in Maharashtra and that RSO has issued Form F (which Form F has been accepted by the Tamil Nadu authorities during the course of assessment of the appellant for the relevant assessment year) reopening the said assessment/orders accepting Forms F after a number of years, seeking to treat the said movement of goods as consequent upon or incidental to contract(s) of sale (and, therefore, amounting to inter State sale taxable in the State of Tamil Nadu does present the appellant with a serious problem inasmuch as it says that it has already paid tax on sale of said vehicles in Maharashtra under the Bombay Sales Tax Act.In the interest of inter State trade and commerce, the suggestion for creation of a central mechanism to decide such dispute - which are really in nature of inter State disputes - may be well worth considering; every dealer affected may not be in a position to approach this Court for appropriate directions. It is for the Government of India to consider this aspect and take necessary decision in that behalf. | 0 | 9,632 | 1,273 | ### 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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of Maharashtra. Those orders have become final, now the Tamil Nadu authorities are seeking to reopen the assessment and proposing to treat the said movement of vehicle from Tamil Nadu to Maharashtra as inter State sales. Suppose, tomorrow it is held by the Tamil Nadu authorities that they were indeed inter State sales and tax is levied and collected by the Tamil Nadu State, can the appellant go and legitimately ask the Maharashtra authorities to refund the tax paid by it on the sale of vehicles in Maharashtra? It may not be able to do so, as the law now stands. The Maharashtra authorities may well tell the appellant that those orders have become final and their orders cannot be reopened because authorities of another State have taken a contrary view. We are not sure whether it is possible to stipulate that while deciding the question whether the said transfer of vehicles constitutes inter State sale or not, the Tamil Nadu authorities shall give notice to, implead the Maharashtra Sales Tax authorities, hear them and decide so that their decision would be binding upon the Maharashtra authorities. The law as now in force does not appear to permit such a course more particularly in a situation whether the orders of Maharashtra Sales Tax authorities have become final, as stated above. The Maharashtra authorities may well refuse to appear before the Tamil Nadu authorities. They may not accept the jurisdiction of Tamil Nadu authorities over them or over the orders passed by them. They may also refuse to submit to the jurisdiction of the Tamil Nadu authorities. On this aspect, we must, however, notice an observation in a recent decision of this Court in Bharat Heavy Electrical Limited v. Union of India, wherein the following observation occurs at Page 239: If a dispute arises in which State is the tax lawfully leviable, the authorities under the Act have got to decide it. If, in a given case, an assessee says that the particular transaction which is sought to be taxed in State A has already been taxed in State B, nothing prevents him from impleading State B in proceedings in State A and have the matter decided in the presence of all parties. It must be remembered that while acting under the Central Sales Tax Act, the State machinery acts as the machinery of the Central Government and not as the machinery of the State Government; in law, it is as if it belongs to the Central Government. This view of ours get reinforced if one keeps the provisions in S.8(2A) of the Central Sales Tax Act view. The said observation, no doubt, projects a point of view, but it has to be understood in the particular facts of that case. In that case, orders of Sales Tax authorities of any particular State had not become final. When more than one State sought to tax the same transaction on different bases, BHEL came to this Court by way of a writ petition under Art.32 of the Constitution and certain directions were made by this Court. Moreover, the matter there was decided by the High Court and the various State governments who were impleaded as respondents did not object to the jurisdiction of the High Court to decide the dispute - dispute as to the true nature of the transaction and who should tax it. In this matter, the situation is different. The orders of several State authorities have become final and there is no way provided by the Act following which the finality of those orders can be undone and the question of the true nature of the transaction decided afresh with participation of the State authorities of both the States. There is yet another fact, viz., the state governments are objecting to the jurisdiction of Tamil Nadu Sale Tax authorities to summon them and decide the question which may require them to revise their own orders. This situation did not arise in BHEL. It is in this situation that the idea of a Central mechanism has come to fore. This does not of course, mean that this Court cannot devise an appropriate method to meet the interests of justice. It can. Appropriate directions can always be given to both the concerned States to submit to the jurisdiction of a particular designated Court or Tribunal which will decide the question regarding the true nature of the transaction after hearing all the affected parties. The fact that those orders of authorities in certain proceedings have become final may not stand in the way of this Court giving appropriate directions under Art.32 or 136 or 142, as the case may be, but that situation has not yet arisen in this case. Let the Tamil Nadu assessing authorities first decide the matters before them. Thereafter, if the orders are against the appellant, we permit the appellant to file the appeal(s) directly before the Tribunal. If the Tribunal decides in favour of the appellant, no further question would arise. But if it decides against the appellant, to wit, if it holds that the sale of vehicles to the STUs, of various States are inter State sales and if it is found that those very transactions have also been taxed as intra State sales under the State sales tax enactments of another State, that would be the stage for considering the advisability of giving appropriate directions of the nature contemplated above by this Court - that is, of course, if by that time, no central mechanism to meet such a situation comes into existence. 23. In the interest of inter State trade and commerce, the suggestion for creation of a central mechanism to decide such dispute - which are really in nature of inter State disputes - may be well worth considering; every dealer affected may not be in a position to approach this Court for appropriate directions. It is for the Government of India to consider this aspect and take necessary decision in that behalf.
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to agree that the word "deemed" in Sub-section (2) of S.6A can be understood as creating a conclusive presumption nor is it possible to agree that the fact "deemed" is final and conclusive. S.6A merely states a rule of evidence. It says that where a dealer claims that certain goods have been moved from one State to another and that such movement has occasioned otherwise than as a result of sale, the burden of proving the same lies upon him. Besides creating the said rule of evidence, the section also sets out how the said burden can be discharged. It can be discharged by producing Form F and on the particulars stated in the said form being found true on being enquired into by the assessing officer. From this it does not follow that once an order is made accepting Form F as true, it is not subject to the power of reopening or revision contained in S.16 and 32 of the Tamil Nadu General Sales Tax Act read with S.92 of the Central Sales Tax Act. After all, S.6A is also one of the provisions in this Act. There is no reason to elevate it to a higher status than the rest of the provisions. If it were the intention of the Parliament to invest the "deemed" fact with the status of a conclusive presumption, the Parliament would have said so. The Court cannot supply that requirement. Ordinarily speaking, an order accepting or rejecting - Form F as true will be passed only during the assessment proceedings. There may be cases where such an order is passed earlier to the making of the assessment. Even so, such an order is incidental to and integrally connected with the assessment of the dealer. The High Court has characterised the said provision as a step in aid of assessment. Be that as it may, if the very assessment is subject to the power of reopening or revision, it is ununderstandable as to how an order under S.6A(2) is not similarly amenable. The power to reopen can be exercised under S.16 of the Tamil Nadu General Sales Tax Act "where for any reason, the whole or any part of the turnover of business of a dealer has escaped assessment to tax". The power is very wide, though it may be that it should not be mechanically or lightly exercised.We are, therefore, of the opinion that S.6A does not create a conclusive presumption and that an order accepting Form F, whether passed during the assessment or at any point earlier thereto, is ultimately a part and parcel of the order of assessment. Its amenability to power of reopening and revision depends upon the provisions of the concerned Slate sales tax enactment by virtue of S.9(2). It is also not possible to agree that an order under S.6A(2) has an independent existence. It does not have. An order refusing to accept Form F may or may not be appealable independently depending upon the provisions of the local sales tax enactment but it is certainly capable of being questioned in the appeal preferred against the order of assessment - for the simple reason that an order accepting or rejecting Form F does affect the quantum of turnover taxable under the Act. So far as the power of reopening is concerned, it is enough for us to say that if the order(s) accepting Form(s) F is sought to be reopened, it can be done as part of reopening of assessment or, may be, independently - that depends upon the language of the relevant provision in the local sales tax enactment. In the present case, the provision relevant is S.16 of the Tamil Nadu General Sales Tax Act. From the language of S.16, it appears that it may be possible to reopen an order accepting Form F as true without, at the same time, reopening the assessment. Even so, it must be noticed that such a reopening necessarily leads to revision/modification of the assessment order. It is equally obvious that if the reopening is confined to the order accepting Form F as true, the inquiry shall be confined to the matters relevant thereto. Whether that power has been exercised validly in these cases does not fall for our consideration. Hence, no opinion need be expressed on that aspect. The fact that the assessments are sought to be reopened only in respect of the turnover relating to sale of vehicles to State Transport Undertakings in various State but not with respect to turnover relating to sales to persons other than STUs cannot be a ground to invalidate the proceedings taken.Having thus disposed of the main contentions of the appellant, we must yet say that the situation the appellant is facing is no doubt real, which may indeed put it in good amount of jeopardy. If the vehicles which have been sold to, say, Maharashtra STU have been moved to the appellants RSO in Maharashtra and that RSO has issued Form F (which Form F has been accepted by the Tamil Nadu authorities during the course of assessment of the appellant for the relevant assessment year) reopening the said assessment/orders accepting Forms F after a number of years, seeking to treat the said movement of goods as consequent upon or incidental to contract(s) of sale (and, therefore, amounting to inter State sale taxable in the State of Tamil Nadu does present the appellant with a serious problem inasmuch as it says that it has already paid tax on sale of said vehicles in Maharashtra under the Bombay Sales Tax Act.In the interest of inter State trade and commerce, the suggestion for creation of a central mechanism to decide such dispute - which are really in nature of inter State disputes - may be well worth considering; every dealer affected may not be in a position to approach this Court for appropriate directions. It is for the Government of India to consider this aspect and take necessary decision in that behalf.
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Union of India and Another Vs. S.A. Razak | CHINNAPPA REDDY, J.The respondent was working as Station Master at Jadupudi Railway Station, when, he received a notice dated April 10/11. 1969, from the Divisional Operating Superintendent, South Eastern Railway, Khurda Road, purporting to retire him from service with effect from the forenoon of August 18, 1969, under. Rule 2046 of the Indian Railway Establishment Code, on attaining the age of superannuation. The respondent submitted a representation claiming that he was entitled to continue in service till he attained the age of fifty eight years and that he could not be retired from service on attaining the age of fifty five years only. As his representation evoked no. response, the respondent filed a Writ Petition in the High Court of Orissa to have the order retiring him from service quashed. The High Court of Orissa allowed the Writ Petition on the ground that the order retiring the respondent from service was passed by the Divisional Operating Superintendent whereas it should have been passed by the Commercial Traffic Manager who was the original appointing authority. The High Court referred to Art. 311 (1) of Constitution and cases decided thereunder. There cannot be the slightest doubt that the High Court was entirely wrong in proceeding as if Art. 311 had any application. This was not a case of imposition of any penalty but a case of retirement on attaining the age of superannuation. The only question was whether the age of superannuation in the case of the respondent was fifty five years or fifty eight years. The question whether the authority who issued the order retiring the respondent from service was subordinate to the authority who appointed the respondent did not at all arise for consideration. Having said this much we do not feel called upon to interfere in this appeal under Art. 136 as the respondent attained the age of fifty eight years also long ago and, must have duly retired. | 0[ds]There cannot be the slightest doubt that the High Court was entirely wrong in proceeding as if Art. 311 had any application. This was not a case of imposition of any penalty but a case of retirement on attaining the age of superannuation. The only question was whether the age of superannuation in the case of the respondent was fifty five years or fifty eight years. The question whether the authority who issued the order retiring the respondent from service was subordinate to the authority who appointed the respondent did not at all arise for consideration. Having said this much we do not feel called upon to interfere in this appeal under Art. 136 as the respondent attained the age of fifty eight years also long ago and, must have duly retired. | 0 | 351 | 145 | ### 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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CHINNAPPA REDDY, J.The respondent was working as Station Master at Jadupudi Railway Station, when, he received a notice dated April 10/11. 1969, from the Divisional Operating Superintendent, South Eastern Railway, Khurda Road, purporting to retire him from service with effect from the forenoon of August 18, 1969, under. Rule 2046 of the Indian Railway Establishment Code, on attaining the age of superannuation. The respondent submitted a representation claiming that he was entitled to continue in service till he attained the age of fifty eight years and that he could not be retired from service on attaining the age of fifty five years only. As his representation evoked no. response, the respondent filed a Writ Petition in the High Court of Orissa to have the order retiring him from service quashed. The High Court of Orissa allowed the Writ Petition on the ground that the order retiring the respondent from service was passed by the Divisional Operating Superintendent whereas it should have been passed by the Commercial Traffic Manager who was the original appointing authority. The High Court referred to Art. 311 (1) of Constitution and cases decided thereunder. There cannot be the slightest doubt that the High Court was entirely wrong in proceeding as if Art. 311 had any application. This was not a case of imposition of any penalty but a case of retirement on attaining the age of superannuation. The only question was whether the age of superannuation in the case of the respondent was fifty five years or fifty eight years. The question whether the authority who issued the order retiring the respondent from service was subordinate to the authority who appointed the respondent did not at all arise for consideration. Having said this much we do not feel called upon to interfere in this appeal under Art. 136 as the respondent attained the age of fifty eight years also long ago and, must have duly retired.
### Response:
0
### Explanation:
There cannot be the slightest doubt that the High Court was entirely wrong in proceeding as if Art. 311 had any application. This was not a case of imposition of any penalty but a case of retirement on attaining the age of superannuation. The only question was whether the age of superannuation in the case of the respondent was fifty five years or fifty eight years. The question whether the authority who issued the order retiring the respondent from service was subordinate to the authority who appointed the respondent did not at all arise for consideration. Having said this much we do not feel called upon to interfere in this appeal under Art. 136 as the respondent attained the age of fifty eight years also long ago and, must have duly retired.
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Vivian Joseh Ferreira & Another Vs. Municipal Corporation of Greater Bombay & Others | a challenge against its constitutional validity. The decision in Railroad Retirement Board v. Alton Railroad Co., (1934) 79 Law Ed. 1468 learned heavily be counsel, disapproving a provision establishing a compulsory bonus system of employees on all carriers treating them all as a single employer, on the ground that it imposed upon solvent carriers the burden of furnishing money necessary to meet the demands of the system upon insolvent carriers, cannot apply as the decision turned on due process clause, a clause not available in our Constitution. 31. The levy of the cess under Section 27 of the Act is not based on the principle of quid pro quo. Its object is not to repair all residential premises, but to preserve and prolong their lives in order to avert the dilemma caused by the acute shortage of residential accommodation on the one hand, and the reluctance and/or inability of the owners to carry out repairs resulting from the Rent Act, on the other, and to establish an agency so that structural repairs to buildings in dangerous or ruinous conditions canbe carried out. The finances for these objects are provided from a fund from the impugned cess and contributions by the State and the Corporation. 32. The contention that some of the buildings falling in categories B and C would not need structural repairs throughout the life of the Act or that such repairs would be carried out in buildings not cared for by defaulting landlords takes no notice of the fact that the primary object of the Act is not to repair all buildings subject to cess but to prevent the annually recurrent mischief of house collapses and the human tragedy and deprivations they cause. The cess being thus levied to prevent such disasters there is no question of unequal treatment between one class of owners and another. The classification of buildings into three categories is based as already stated on their age and the construction current during the periods of their erection. It is therefore based on an intelligible differentia and it closely related to the objects of the legislation. There is, therefore, no question of unequals being treated as equals, as each building in respect of which the cess is payable falls within the surveillance of the Board and has to be structurally repaired if the need were to arise. The principle laid down in Moopil Nairs case, (1961) 3 SCR 77 = (AIR 1961 SC 552 ) or in New Manek Chowk Spinning and Weaving Mills Co. Ltd. v. Municipal Corporation of the City of Ahmedabad (1967) 2 SCR 679 = (AIR 1967 SC 1801 ) clearly does not apply to the present case. 33. The objection to the exemptions under Section 28 can be met by the fact that buildings in each of the groups therein set out form a distinct class by themselves. Buildings in Clause (a) to (f) are buildings to which the Rent Act does not apply and therefore, the considerations for which the cess is levied do not apply to them. Buildings used for non-residential purposes do not fall within the scope of the Act, and therefore, had to be excluded from the levy of the cess. Clause (g), (h) and (j) read with the newly inserted Clause (ia) were, however, objected to. Buildings vesting in or leased to co-operative housing societies registered under the Maharashtra Co-operative Societies Act, 1960 form a class by themselves and cannot be equated with buildings built by individuals. A perusal of that Act is sufficient to satisfy that the relations between a society and its members to whom apartments are either allotted or lessed are not the same as those between landlords and tenants. There is besides considerable control of the Registrar, Co-operative Societies, over the administration of the funds of the societies and their expenditure and an overall supervision over their affairs. The Badekar Committee, no doubt, sounded a warning in respect of some of the buildings put up by some of such societies. But these are exceptions and the Legislature could not have carved out a sub-clause in respect of them. The Committee, however had observed that these societies in the present state of the property market were the only real instrumentalities through which an increase in the residential accommodation can at present be achieved, and therefore, should be encouraged. 34. Likewise, the relations between the owners and persons occupying their buildings under leave and licence cannot be equated with relations between landlords and tenants. The circumstances which led to the imposition of the cess do not apply to premises in the occupation of licencees because such licensees have no rights such as the tenants have, namely, irremoveability and the freezing of rents, and the consequential reluctance or inability of the landlords to maintain their premises in tenantable repairs. There is no such statutory control over compensation paid by them as there is in the case of standard rent. Considerations applicable to them are, therefore, quite different. The two classes of occupiers, therefore, cannot be equated. The premises occupied by licensees thus form a distinct class by themselves and could not have been lumped together with tenanted premises without the danger of a challenge under Article 14. 35. So far as the buildings occupied by owners themselves and falling under Clause (h) are concerned counsel frankly conceded that different considerations would apply and therefore no objection could be taken to their being exempted from the tax. If buildings used for non-residential purposes or on the basis of leave and licence are validly treated differently, buildings, if used partly for one and partly for another such purpose or purposes can also be similarly treated provided that no part or parts thereof are occupied or used for a purpose other than those specified in the three clauses. Since these buildings forming separate classes by themselves from the tenanted residential premises, the provisions for exempting them cannot be held as violative of the equal protection clause. 36. | 0[ds]The Act, thus, does not take notice of the actualities in the sense that though a building built in 1939 but wherein extensive repairs have been carried out in 1968 would be a better building than another built in 1950 yet the former has to pay the tax at a higher percentage than the latter. The categorisation of the buildings, therefore, was arbitrary and not based on any rational principle. Counsel also attacked the exemptions given to buildings falling under cls. (g), (h), (i) and (j) of S.28 as being irrational and without being founded on any principle. Lastly, he urged that the classification between buildings constructed before the Act and those constructed thereafter was not valid since there was no nexus between the date fixed under the Act and the objects of the Act. Even assuming that the Act were to be found to be valid, those buildings which were sound in condition and were likely to remain so throughout the life of the Act could be separated from the rest and a restraint against tax being enforced in respect of them can be imposed. The attack against the validity of the Act thus falls under two heads: (a) that the cess is not for a public purpose as it results in bounties to owners whose buildings need structural repairs at the expense of those whose buildings are sound and are not likely to need any such repairs, and (b) that it suffers from arbitrariness and is violative of Art.1411. With such a situation it was no wonder that collapses of buildings became almost an annual occurrence particularly during rainy seasons. In 1965, the State Government appointed the Bedekar Committee to examine the problem15. It is well recognised that a Legislature does not have to tax everything in order to tax something. It can pick and choose districts, objects, persons, methods and even rates of taxation as long as it does so reasonably (Willis Constitution Law of the United States, 587). A taxing statute is not invalid on the ground of discrimination merely because other objects could have been but are not taxed by the legislature. (Ravi Varma v. Union of India (1969) 3 SCR 827 = (AIR 1969 SC 1094 ).) When a statute divides the objects of tax into groups or categories, so long as there is equality and uniformity within each group the tax cannot be attacked on the ground of its being discriminatory, although due to fortuitous circumstances or a particular situation some included in a class or group may get some advantage over others, provided of course they are not sought out for special treatment: ((1963) 3 SCR 809 = (AIR 1963 SC 591 ). Likewise the mere fact that a tax falls more heavily on some in the same group or category is by itself not a ground for its invalidity, for then hardly any tax, for instance, sales tax and excise tax, can escape such a charge. (Twyford Tea Co. Ltd. v. State of Kerala (1970) 3 SCR 383 = (AIR 1970 SC 1133 ).)Both the purpose of the cess and its use are without doubt for public purpose. The purpose is to prevent collapses and the suffering they must cause including rendering several persons homeless, a condition accentuated by the demand for accommodation outrunning the supply. The use is for preservation and prolonging the life of the buildings existing at the date of the enactment of the Act by carrying out structural repairs where owners due to diverse reasons refuse or are reluctant to spend their capital on such preservation, jeopardising the life of their properties and due to the peculiar conditions in the property market find it profitable to render buildings into vacant plots. If in implementing the purpose, which, as aforesaid, is demonstrably pubic, some benefit reaches particular individuals, the statute, which does not directly purport so to do, cannot be invalidatedThe division of such existing structures into three categories was evidently made in the light of the survey of buildings by the Corporation and the report of Bedekar Committee and the classification of buildings made therein on the basis of age and the kind of construction in vogue in the respective periods in which they were errected. That being so, it is impossible to say that the aforesaid groupings of buildings was unprincipled, whimsical or arbitraryTo that the answer is two-fold. Firstly, that the tax payable is on the rateable value of each building which differs from building to building, and secondly, it is distributed between owners and the tenants, the former bearing 10% of it only. To make such distribution reasonable and just, the Legislature suspended during the life of the Act some of the obligations of the owners under the Rent Act and revived the obligations of the tenants under Section 108(m) of the Transfer of Property Act, though retaining the powers of the Corporation obviously on the overriding consideration of public health. It is true that even so, some of the owners, whose buildings do not need structural repairs, have to pay the tax, the proceeds of which would be spent for carrying out repairs to buildings whose landlords have been neglectful. The argument, in other words, is reduced to this, namely, that there would be one class of tax-payer who would not get the return and individual benefit while the other would get it at the expense of the former. Such an argument, however, can be urged almost against every tax and every public expenditure and no tax can ever escape such a consure. The grievance that individual tax-payers get more or less return from the tax proceeds has hardly ever been entertained and would not be a sustainable ground for a challenge against its constitutional validity. The decision in Railroad Retirement Board v. Alton Railroad Co., (1934) 79 Law Ed. 1468 learned heavily be counsel, disapproving a provision establishing a compulsory bonus system of employees on all carriers treating them all as a single employer, on the ground that it imposed upon solvent carriers the burden of furnishing money necessary to meet the demands of the system upon insolvent carriers, cannot apply as the decision turned on due process clause, a clause not available in our ConstitutionThe levy of the cess under Section 27 of the Act is not based on the principle of quid pro quo. Its object is not to repair all residential premises, but to preserve and prolong their lives in order to avert the dilemma caused by the acute shortage of residential accommodation on the one hand, and the reluctance and/or inability of the owners to carry out repairs resulting from the Rent Act, on the other, and to establish an agency so that structural repairs to buildings in dangerous or ruinous conditions canbe carried out. The finances for these objects are provided from a fund from the impugned cess and contributions by the State and the CorporationThe objection to the exemptions under Section 28 can be met by the fact that buildings in each of the groups therein set out form a distinct class by themselves. Buildings in Clause (a) to (f) are buildings to which the Rent Act does not apply and therefore, the considerations for which the cess is levied do not apply to them. Buildings used for non-residential purposes do not fall within the scope of the Act, and therefore, had to be excluded from the levy of the cess. Clause (g), (h) and (j) read with the newly inserted Clause (ia) were, however, objected to. Buildings vesting in or leased to co-operative housing societies registered under the Maharashtra Co-operative Societies Act, 1960 form a class by themselves and cannot be equated with buildings built by individuals. A perusal of that Act is sufficient to satisfy that the relations between a society and its members to whom apartments are either allotted or lessed are not the same as those between landlords and tenants. There is besides considerable control of the Registrar, Co-operative Societies, over the administration of the funds of the societies and their expenditure and an overall supervision over their affairs. The Badekar Committee, no doubt, sounded a warning in respect of some of the buildings put up by some of such societies. But these are exceptions and the Legislature could not have carved out a sub-clause in respect of them. The Committee, however had observed that these societies in the present state of the property market were the only real instrumentalities through which an increase in the residential accommodation can at present be achieved, and therefore, should be encouragedLikewise, the relations between the owners and persons occupying their buildings under leave and licence cannot be equated with relations between landlords and tenants. The circumstances which led to the imposition of the cess do not apply to premises in the occupation of licencees because such licensees have no rights such as the tenants have, namely, irremoveability and the freezing of rents, and the consequential reluctance or inability of the landlords to maintain their premises in tenantable repairs. There is no such statutory control over compensation paid by them as there is in the case of standard rent. Considerations applicable to them are, therefore, quite different. The two classes of occupiers, therefore, cannot be equated. The premises occupied by licensees thus form a distinct class by themselves and could not have been lumped together with tenanted premises without the danger of a challenge under Article 14So far as the buildings occupied by owners themselves and falling under Clause (h) are concerned counsel frankly conceded that different considerations would apply and therefore no objection could be taken to their being exempted from the tax. If buildings used for non-residential purposes or on the basis of leave and licence are validly treated differently, buildings, if used partly for one and partly for another such purpose or purposes can also be similarly treated provided that no part or parts thereof are occupied or used for a purpose other than those specified in the three clauses. Since these buildings forming separate classes by themselves from the tenanted residential premises, the provisions for exempting them cannot be held as violative of the equal protection clause. | 0 | 9,346 | 1,896 | ### 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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a challenge against its constitutional validity. The decision in Railroad Retirement Board v. Alton Railroad Co., (1934) 79 Law Ed. 1468 learned heavily be counsel, disapproving a provision establishing a compulsory bonus system of employees on all carriers treating them all as a single employer, on the ground that it imposed upon solvent carriers the burden of furnishing money necessary to meet the demands of the system upon insolvent carriers, cannot apply as the decision turned on due process clause, a clause not available in our Constitution. 31. The levy of the cess under Section 27 of the Act is not based on the principle of quid pro quo. Its object is not to repair all residential premises, but to preserve and prolong their lives in order to avert the dilemma caused by the acute shortage of residential accommodation on the one hand, and the reluctance and/or inability of the owners to carry out repairs resulting from the Rent Act, on the other, and to establish an agency so that structural repairs to buildings in dangerous or ruinous conditions canbe carried out. The finances for these objects are provided from a fund from the impugned cess and contributions by the State and the Corporation. 32. The contention that some of the buildings falling in categories B and C would not need structural repairs throughout the life of the Act or that such repairs would be carried out in buildings not cared for by defaulting landlords takes no notice of the fact that the primary object of the Act is not to repair all buildings subject to cess but to prevent the annually recurrent mischief of house collapses and the human tragedy and deprivations they cause. The cess being thus levied to prevent such disasters there is no question of unequal treatment between one class of owners and another. The classification of buildings into three categories is based as already stated on their age and the construction current during the periods of their erection. It is therefore based on an intelligible differentia and it closely related to the objects of the legislation. There is, therefore, no question of unequals being treated as equals, as each building in respect of which the cess is payable falls within the surveillance of the Board and has to be structurally repaired if the need were to arise. The principle laid down in Moopil Nairs case, (1961) 3 SCR 77 = (AIR 1961 SC 552 ) or in New Manek Chowk Spinning and Weaving Mills Co. Ltd. v. Municipal Corporation of the City of Ahmedabad (1967) 2 SCR 679 = (AIR 1967 SC 1801 ) clearly does not apply to the present case. 33. The objection to the exemptions under Section 28 can be met by the fact that buildings in each of the groups therein set out form a distinct class by themselves. Buildings in Clause (a) to (f) are buildings to which the Rent Act does not apply and therefore, the considerations for which the cess is levied do not apply to them. Buildings used for non-residential purposes do not fall within the scope of the Act, and therefore, had to be excluded from the levy of the cess. Clause (g), (h) and (j) read with the newly inserted Clause (ia) were, however, objected to. Buildings vesting in or leased to co-operative housing societies registered under the Maharashtra Co-operative Societies Act, 1960 form a class by themselves and cannot be equated with buildings built by individuals. A perusal of that Act is sufficient to satisfy that the relations between a society and its members to whom apartments are either allotted or lessed are not the same as those between landlords and tenants. There is besides considerable control of the Registrar, Co-operative Societies, over the administration of the funds of the societies and their expenditure and an overall supervision over their affairs. The Badekar Committee, no doubt, sounded a warning in respect of some of the buildings put up by some of such societies. But these are exceptions and the Legislature could not have carved out a sub-clause in respect of them. The Committee, however had observed that these societies in the present state of the property market were the only real instrumentalities through which an increase in the residential accommodation can at present be achieved, and therefore, should be encouraged. 34. Likewise, the relations between the owners and persons occupying their buildings under leave and licence cannot be equated with relations between landlords and tenants. The circumstances which led to the imposition of the cess do not apply to premises in the occupation of licencees because such licensees have no rights such as the tenants have, namely, irremoveability and the freezing of rents, and the consequential reluctance or inability of the landlords to maintain their premises in tenantable repairs. There is no such statutory control over compensation paid by them as there is in the case of standard rent. Considerations applicable to them are, therefore, quite different. The two classes of occupiers, therefore, cannot be equated. The premises occupied by licensees thus form a distinct class by themselves and could not have been lumped together with tenanted premises without the danger of a challenge under Article 14. 35. So far as the buildings occupied by owners themselves and falling under Clause (h) are concerned counsel frankly conceded that different considerations would apply and therefore no objection could be taken to their being exempted from the tax. If buildings used for non-residential purposes or on the basis of leave and licence are validly treated differently, buildings, if used partly for one and partly for another such purpose or purposes can also be similarly treated provided that no part or parts thereof are occupied or used for a purpose other than those specified in the three clauses. Since these buildings forming separate classes by themselves from the tenanted residential premises, the provisions for exempting them cannot be held as violative of the equal protection clause. 36.
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which they were errected. That being so, it is impossible to say that the aforesaid groupings of buildings was unprincipled, whimsical or arbitraryTo that the answer is two-fold. Firstly, that the tax payable is on the rateable value of each building which differs from building to building, and secondly, it is distributed between owners and the tenants, the former bearing 10% of it only. To make such distribution reasonable and just, the Legislature suspended during the life of the Act some of the obligations of the owners under the Rent Act and revived the obligations of the tenants under Section 108(m) of the Transfer of Property Act, though retaining the powers of the Corporation obviously on the overriding consideration of public health. It is true that even so, some of the owners, whose buildings do not need structural repairs, have to pay the tax, the proceeds of which would be spent for carrying out repairs to buildings whose landlords have been neglectful. The argument, in other words, is reduced to this, namely, that there would be one class of tax-payer who would not get the return and individual benefit while the other would get it at the expense of the former. Such an argument, however, can be urged almost against every tax and every public expenditure and no tax can ever escape such a consure. The grievance that individual tax-payers get more or less return from the tax proceeds has hardly ever been entertained and would not be a sustainable ground for a challenge against its constitutional validity. The decision in Railroad Retirement Board v. Alton Railroad Co., (1934) 79 Law Ed. 1468 learned heavily be counsel, disapproving a provision establishing a compulsory bonus system of employees on all carriers treating them all as a single employer, on the ground that it imposed upon solvent carriers the burden of furnishing money necessary to meet the demands of the system upon insolvent carriers, cannot apply as the decision turned on due process clause, a clause not available in our ConstitutionThe levy of the cess under Section 27 of the Act is not based on the principle of quid pro quo. Its object is not to repair all residential premises, but to preserve and prolong their lives in order to avert the dilemma caused by the acute shortage of residential accommodation on the one hand, and the reluctance and/or inability of the owners to carry out repairs resulting from the Rent Act, on the other, and to establish an agency so that structural repairs to buildings in dangerous or ruinous conditions canbe carried out. The finances for these objects are provided from a fund from the impugned cess and contributions by the State and the CorporationThe objection to the exemptions under Section 28 can be met by the fact that buildings in each of the groups therein set out form a distinct class by themselves. Buildings in Clause (a) to (f) are buildings to which the Rent Act does not apply and therefore, the considerations for which the cess is levied do not apply to them. Buildings used for non-residential purposes do not fall within the scope of the Act, and therefore, had to be excluded from the levy of the cess. Clause (g), (h) and (j) read with the newly inserted Clause (ia) were, however, objected to. Buildings vesting in or leased to co-operative housing societies registered under the Maharashtra Co-operative Societies Act, 1960 form a class by themselves and cannot be equated with buildings built by individuals. A perusal of that Act is sufficient to satisfy that the relations between a society and its members to whom apartments are either allotted or lessed are not the same as those between landlords and tenants. There is besides considerable control of the Registrar, Co-operative Societies, over the administration of the funds of the societies and their expenditure and an overall supervision over their affairs. The Badekar Committee, no doubt, sounded a warning in respect of some of the buildings put up by some of such societies. But these are exceptions and the Legislature could not have carved out a sub-clause in respect of them. The Committee, however had observed that these societies in the present state of the property market were the only real instrumentalities through which an increase in the residential accommodation can at present be achieved, and therefore, should be encouragedLikewise, the relations between the owners and persons occupying their buildings under leave and licence cannot be equated with relations between landlords and tenants. The circumstances which led to the imposition of the cess do not apply to premises in the occupation of licencees because such licensees have no rights such as the tenants have, namely, irremoveability and the freezing of rents, and the consequential reluctance or inability of the landlords to maintain their premises in tenantable repairs. There is no such statutory control over compensation paid by them as there is in the case of standard rent. Considerations applicable to them are, therefore, quite different. The two classes of occupiers, therefore, cannot be equated. The premises occupied by licensees thus form a distinct class by themselves and could not have been lumped together with tenanted premises without the danger of a challenge under Article 14So far as the buildings occupied by owners themselves and falling under Clause (h) are concerned counsel frankly conceded that different considerations would apply and therefore no objection could be taken to their being exempted from the tax. If buildings used for non-residential purposes or on the basis of leave and licence are validly treated differently, buildings, if used partly for one and partly for another such purpose or purposes can also be similarly treated provided that no part or parts thereof are occupied or used for a purpose other than those specified in the three clauses. Since these buildings forming separate classes by themselves from the tenanted residential premises, the provisions for exempting them cannot be held as violative of the equal protection clause.
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Satish Churan Law Vs. H. K. Ganguly | be taken by a witness or any person on his behalf on his giving an undertaking that such notes shall be used only for the purpose of re-examination of the witness. It is also provided that on the conclusion of the examination, the notes shall, unless otherwise directed, be handed over to the Court for destruction. Rule 28 provides, inter alia, that the notes shall not be open to the inspection of any creditor, contributory or other person, except the official liquidator, nor shall a copy thereof or extract there from be supplied to any person other than the official liquidator, save upon orders of the Court. The proceedings for examination under s. 477 being intended to be commenced only in the interest of the Company and for the purpose of collecting evidence for the affective prosecution of the liquidation are by rules expressly to be commenced by order which may on the application of the official liquidator be made ex parte. The order does not purport to decide any question in dispute between the Company and the persons sought to be examined. It only proceeds upon the satisfaction of the Court that the person should be examined in the interest of the Company, it appearing to the Court just proper that he should be so examined. There is nothing in the scheme of the Act which indicates that an order passed for the examination of a person under s. 477 may be made only after serving a notice upon such person : the Rules expressly contemplated that the order may be made ex parte. Rules of natural justice are therefore not violated merely by the issue of an order requiring a person or persons to appear before a Court for his examination under s. 477.Nor do the rules of procedure framed by this Court for examination under s. 477 contemplate any right of inspection of the statement of the official liquidator. As we have already pointed out, r. 243 contemplates an order ex parte and the scheme of the Rule further emphasises the fact that all these enquiries are intended as already discussed to be confidential proceedings. The person whose examination is sought to the held, has therefore no right to inspect the statement made by the liquidator on which the order of the Court proceeds. Rule 360 of the Companies (Court) Rules provides that every duly authorised officer of the Central Government, and, save as otherwise provided by these Rules, every person who has been a director or officer of a company which is being wound up, shall be entitled, free of charge, at all reasonable times to inspect the file of the proceedings of the liquidation and to take copies or extracts from any document therein, and, on payment of the prescribed charges, to be furnished with such copies or extracts. The right to inspection is given in respect of the file of the proceedings of the liquidation. But the statement made by the official liquidator under Rule 243 does not form part of the file of the proceedings of the liquidation. The statement is not to be made on oath : it has to be shown to the Company Judge and the Judge has to apply his mind to the contents thereof, but it does not, as pointed out by Mr. Justice Law, form part of the liquidation proceedings. In the Company (Court) Rules, there is no rule specifying the documents which are to be included in the file of the liquidation proceedings. The order passed by the Court and the summons issued thereon may be regarded as forming part of the file of the proceedings of liquidation, but having regard to the nature of the statement made by the official liquidator on which this Judges order is passed, it is not part of the file of the proceedings of liquidation. The person summoned even if he is an officer or director of the company, is therefore not entitled to inspection thereof relying upon Rule 360.It was urged by counsel for the appellant that the petition for an order under s. 477 was inextricably connected with the statement of the official liquidator, and if the party affected by the order was entitled to inspect the petition, he was entitled to inspect the statement which formed part of the petition. There is however, no warrant for the view that the petition and the statement form part of the same document. The petition has, it is true, to be supported by a statement, but the statement is independent of the petition. 7. It appears that the practice of the Calcutta High Court, prior to the promulgation of the Companies (Court) Rules, was different. Under r. 195 an application for examination of a person under s. 195 of the Indian Companies Act 1913, could be made ex parte to the Judge but it had to be by petition verified by the official liquidator stating the facts upon which the application was based. It was also provided that at the hearing, the Judge may, if satisfied that a prima facie case for examination had been made out, direct the issue of a summons or summonses against the person or persons named in the order for examination and/or for the production of the documents. Manifestly, the order could be obtained on a petition which was required to be verified by the official liquidator and there had to be a formal hearing and only if a prima facie case for hearing had been made out the order could be made. Under the Companies (Court) Rules a different practice, which approaches the practice prevailing in the English Courts has been set up. The mere fact that under r. 195 of the Calcutta High Court Rules under Act of 1913 the appellant might have had a right of access to the statement on which the order was founded will not be an adequate ground for holding that the earlier practice must continue to prevail. | 0[ds]It was never suggested before the High Court that the order was made without considering the material facts and circumstances. The Court has made the order in exercise of the jurisdiction vested in it and in the absence of any material to show that the order was made for a collateral purpose or by misleading the Court, the appellant is not entitled to have the order vacatedThe person whose examination is sought to the held, has therefore no right to inspect the statement made by the liquidator on which the order of the Court proceeds. Rule 360 of the Companies (Court) Rules provides that every duly authorised officer of the Central Government, and, save as otherwise provided by these Rules, every person who has been a director or officer of a company which is being wound up, shall be entitled, free of charge, at all reasonable times to inspect the file of the proceedings of the liquidation and to take copies or extracts from any document therein, and, on payment of the prescribed charges, to be furnished with such copies or extracts. The right to inspection is given in respect of the file of the proceedings of the liquidation. But the statement made by the official liquidator under Rule 243 does not form part of the file of the proceedings of the liquidation. The statement is not to be made on oath : it has to be shown to the Company Judge and the Judge has to apply his mind to the contents thereof, but it does not, as pointed out by Mr. Justice Law, form part of the liquidation proceedings. In the Company (Court) Rules, there is no rule specifying the documents which are to be included in the file of the liquidation proceedings. The order passed by the Court and the summons issued thereon may be regarded as forming part of the file of the proceedings of liquidation, but having regard to the nature of the statement made by the official liquidator on which this Judges order is passed, it is not part of the file of the proceedings of liquidation. The person summoned even if he is an officer or director of the company, is therefore not entitled to inspection thereof relying upon Rule 360.It was urged by counsel for the appellant that the petition for an order under s. 477 was inextricably connected with the statement of the official liquidator, and if the party affected by the order was entitled to inspect the petition, he was entitled to inspect the statement which formed part of the petition. There is however, no warrant for the view that the petition and the statement form part of the same document. The petition has, it is true, to be supported by a statement, but the statement is independent of the petitionIt appears that the practice of the Calcutta High Court, prior to the promulgation of the Companies (Court) Rules, was different. Under r. 195 an application for examination of a person under s. 195 of the Indian Companies Act 1913, could be made ex parte to the Judge but it had to be by petition verified by the official liquidator stating the facts upon which the application was based. It was also provided that at the hearing, the Judge may, if satisfied that a prima facie case for examination had been made out, direct the issue of a summons or summonses against the person or persons named in the order for examination and/or for the production of the documents. Manifestly, the order could be obtained on a petition which was required to be verified by the official liquidator and there had to be a formal hearing and only if a prima facie case for hearing had been made out the order could be made. Under the Companies (Court) Rules a different practice, which approaches the practice prevailing in the English Courts has been set up. The mere fact that under r. 195 of the Calcutta High Court Rules under Act of 1913 the appellant might have had a right of access to the statement on which the order was founded will not be an adequate ground for holding that the earlier practice must continue to prevail. | 0 | 5,994 | 766 | ### 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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be taken by a witness or any person on his behalf on his giving an undertaking that such notes shall be used only for the purpose of re-examination of the witness. It is also provided that on the conclusion of the examination, the notes shall, unless otherwise directed, be handed over to the Court for destruction. Rule 28 provides, inter alia, that the notes shall not be open to the inspection of any creditor, contributory or other person, except the official liquidator, nor shall a copy thereof or extract there from be supplied to any person other than the official liquidator, save upon orders of the Court. The proceedings for examination under s. 477 being intended to be commenced only in the interest of the Company and for the purpose of collecting evidence for the affective prosecution of the liquidation are by rules expressly to be commenced by order which may on the application of the official liquidator be made ex parte. The order does not purport to decide any question in dispute between the Company and the persons sought to be examined. It only proceeds upon the satisfaction of the Court that the person should be examined in the interest of the Company, it appearing to the Court just proper that he should be so examined. There is nothing in the scheme of the Act which indicates that an order passed for the examination of a person under s. 477 may be made only after serving a notice upon such person : the Rules expressly contemplated that the order may be made ex parte. Rules of natural justice are therefore not violated merely by the issue of an order requiring a person or persons to appear before a Court for his examination under s. 477.Nor do the rules of procedure framed by this Court for examination under s. 477 contemplate any right of inspection of the statement of the official liquidator. As we have already pointed out, r. 243 contemplates an order ex parte and the scheme of the Rule further emphasises the fact that all these enquiries are intended as already discussed to be confidential proceedings. The person whose examination is sought to the held, has therefore no right to inspect the statement made by the liquidator on which the order of the Court proceeds. Rule 360 of the Companies (Court) Rules provides that every duly authorised officer of the Central Government, and, save as otherwise provided by these Rules, every person who has been a director or officer of a company which is being wound up, shall be entitled, free of charge, at all reasonable times to inspect the file of the proceedings of the liquidation and to take copies or extracts from any document therein, and, on payment of the prescribed charges, to be furnished with such copies or extracts. The right to inspection is given in respect of the file of the proceedings of the liquidation. But the statement made by the official liquidator under Rule 243 does not form part of the file of the proceedings of the liquidation. The statement is not to be made on oath : it has to be shown to the Company Judge and the Judge has to apply his mind to the contents thereof, but it does not, as pointed out by Mr. Justice Law, form part of the liquidation proceedings. In the Company (Court) Rules, there is no rule specifying the documents which are to be included in the file of the liquidation proceedings. The order passed by the Court and the summons issued thereon may be regarded as forming part of the file of the proceedings of liquidation, but having regard to the nature of the statement made by the official liquidator on which this Judges order is passed, it is not part of the file of the proceedings of liquidation. The person summoned even if he is an officer or director of the company, is therefore not entitled to inspection thereof relying upon Rule 360.It was urged by counsel for the appellant that the petition for an order under s. 477 was inextricably connected with the statement of the official liquidator, and if the party affected by the order was entitled to inspect the petition, he was entitled to inspect the statement which formed part of the petition. There is however, no warrant for the view that the petition and the statement form part of the same document. The petition has, it is true, to be supported by a statement, but the statement is independent of the petition. 7. It appears that the practice of the Calcutta High Court, prior to the promulgation of the Companies (Court) Rules, was different. Under r. 195 an application for examination of a person under s. 195 of the Indian Companies Act 1913, could be made ex parte to the Judge but it had to be by petition verified by the official liquidator stating the facts upon which the application was based. It was also provided that at the hearing, the Judge may, if satisfied that a prima facie case for examination had been made out, direct the issue of a summons or summonses against the person or persons named in the order for examination and/or for the production of the documents. Manifestly, the order could be obtained on a petition which was required to be verified by the official liquidator and there had to be a formal hearing and only if a prima facie case for hearing had been made out the order could be made. Under the Companies (Court) Rules a different practice, which approaches the practice prevailing in the English Courts has been set up. The mere fact that under r. 195 of the Calcutta High Court Rules under Act of 1913 the appellant might have had a right of access to the statement on which the order was founded will not be an adequate ground for holding that the earlier practice must continue to prevail.
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It was never suggested before the High Court that the order was made without considering the material facts and circumstances. The Court has made the order in exercise of the jurisdiction vested in it and in the absence of any material to show that the order was made for a collateral purpose or by misleading the Court, the appellant is not entitled to have the order vacatedThe person whose examination is sought to the held, has therefore no right to inspect the statement made by the liquidator on which the order of the Court proceeds. Rule 360 of the Companies (Court) Rules provides that every duly authorised officer of the Central Government, and, save as otherwise provided by these Rules, every person who has been a director or officer of a company which is being wound up, shall be entitled, free of charge, at all reasonable times to inspect the file of the proceedings of the liquidation and to take copies or extracts from any document therein, and, on payment of the prescribed charges, to be furnished with such copies or extracts. The right to inspection is given in respect of the file of the proceedings of the liquidation. But the statement made by the official liquidator under Rule 243 does not form part of the file of the proceedings of the liquidation. The statement is not to be made on oath : it has to be shown to the Company Judge and the Judge has to apply his mind to the contents thereof, but it does not, as pointed out by Mr. Justice Law, form part of the liquidation proceedings. In the Company (Court) Rules, there is no rule specifying the documents which are to be included in the file of the liquidation proceedings. The order passed by the Court and the summons issued thereon may be regarded as forming part of the file of the proceedings of liquidation, but having regard to the nature of the statement made by the official liquidator on which this Judges order is passed, it is not part of the file of the proceedings of liquidation. The person summoned even if he is an officer or director of the company, is therefore not entitled to inspection thereof relying upon Rule 360.It was urged by counsel for the appellant that the petition for an order under s. 477 was inextricably connected with the statement of the official liquidator, and if the party affected by the order was entitled to inspect the petition, he was entitled to inspect the statement which formed part of the petition. There is however, no warrant for the view that the petition and the statement form part of the same document. The petition has, it is true, to be supported by a statement, but the statement is independent of the petitionIt appears that the practice of the Calcutta High Court, prior to the promulgation of the Companies (Court) Rules, was different. Under r. 195 an application for examination of a person under s. 195 of the Indian Companies Act 1913, could be made ex parte to the Judge but it had to be by petition verified by the official liquidator stating the facts upon which the application was based. It was also provided that at the hearing, the Judge may, if satisfied that a prima facie case for examination had been made out, direct the issue of a summons or summonses against the person or persons named in the order for examination and/or for the production of the documents. Manifestly, the order could be obtained on a petition which was required to be verified by the official liquidator and there had to be a formal hearing and only if a prima facie case for hearing had been made out the order could be made. Under the Companies (Court) Rules a different practice, which approaches the practice prevailing in the English Courts has been set up. The mere fact that under r. 195 of the Calcutta High Court Rules under Act of 1913 the appellant might have had a right of access to the statement on which the order was founded will not be an adequate ground for holding that the earlier practice must continue to prevail.
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Dilawarsab Babusab Mullasab & Others Vs. Special Land Acquisition Officer | Alagiriswami, J.1. These four appeals arise out of the judgment of the High Court of Mysore in four appeals in certain land acquisition matters.2. The lands with the acquisition of which we are concerned were acquired by the Government of Mysore for the Malaprabha project. They are situated in Gondi village of Parasgad Taluka. The preliminary notification under Section 4 was published on 26-9-1963 and 12-12-1963 and the Land Acquisition Officer made his award on 22-3-1969. The appellants applied for reference to the Civil Court under Section 18 of the Land Acquisition Act. The Civil Judge, Belgaum considered these four cases along with another case with which we are not concerned and delivered a common judgment in all the five cases.3. In L. A. C. No. 990 of 1970 a total extent of 7 acres 27 gunthas were acquired. The Land Acquisition Officer had granted compensation at the rate of Rs. 1,200/- per acre in respect of 6 acres 17 gunthas. For all these land the Civil Judge granted compensation at the rate of Rs. 4,000/- an acre. it should be noticed at this stage that the claimants did not file an claims when they received notice under Section 9 of the Land Acquisition Act.4. In L. A. C. No. 991 of 1970 the extent of land involved is 24 acres and 15 gunthas. Out of these the claimants said that 10 acres is bagayat and 14 actress 15 gunthas is jiyarat. Here also they did not file any claim under Section 9. The Land Acquisition Officer had granted compensation at the rate of Rs. 3,500/- for one acre and Rs. 2,000/- per acre for two acres and Rs. 1,200/- per acre for the balance of 21 acres 15 gunthas. The Court took Rs. 300/- per acre as the annual income of the bagayat land and Rs. 200/- per acre for jirayat land and on that basis allowed Rs. 6,000/- per acre compensation for bagayat lands and Rs. 4,000/- per acre for the jirayat lands.5. In L. A. C. No. 993 of 1970 the lands involved were 10 acres 5 gunthas. The Court took Rs. 300/- per acre as the annual income and allowed compensation at the rate of Rs. 4,000/- per acre.6. In L. A. C. No. 994 of 1970 land measuring 12 acres 37 gunthas was involved. The Land Acquisition Officer had granted Rs. 1,3000/- per acre. The Court took Rs. 200/- per acre as the annual income and fixed Rs. 4,000/- as the compensation per acre. It was alleged in this case that except the notice of payment no other notice was served.7. The High Court did not discuss the evidence in any of these appeals but on the basis of their judgment in M. F. A. No. 68 of 1971 fixed the compensation for bagayat lands at Rs. 4,000/- per acre and for jirayat of kushki lands at Rs. 2,500/- per acre.8. Before us it was urged that M. F. A. No. 68 of 1971 was concerned with the lands in the village of Badli and that as lands in as many as 34 villages were acquired for the Malaprabha project the prices fixed for lands in one village cannot be made the basis for fixing the compensation in respect of the land in another village. It was urged that the evidence available in the case which had been discussed by the Civil Judge had not been discussed at all by the High Court.9. It is to be noted that according to the data furnished by the Agricultural Research Station the net annual income was Rs. 87.59 per acre. On that basis the compensation which the parties would have been entitled to in respect of kushki lands will be only about Rs. 1750/- as against the sum of Rs., 2500/- per acre granted by the High Court. The Civil Judge has placed too much reliance on the oral evidence on behalf of the claimants about the income from the lands. That was merely oral evidence and was not supported by any documentary evidence. The best evidence would have been the evidence of sales of similar lands at about the time of the notification under Section 4 (1). But no such evidence was produced.10. In the circumstances we are not able to hold that the High Courts judgment is unsupportable though we feel it would have been better if the High Court had written a more reasoned judgment. Considering also the fact that in three of these appeals at least the parties had not appeared before the Land Acquisition Officer and put forward any specific amount as the compensation due they would not have been entitled to any compensation higher than what was awarded by the Land Acquisition Officer. | 0[ds]9. It is to be noted that according to the data furnished by the Agricultural Research Station the net annual income was Rs. 87.59 per acre. On that basis the compensation which the parties would have been entitled to in respect of kushki lands will be only about Rs. 1750/as against the sum of Rs., 2500/per acre granted by the High Court. The Civil Judge has placed too much reliance on the oral evidence on behalf of the claimants about the income from the lands. That was merely oral evidence and was not supported by any documentary evidence. The best evidence would have been the evidence of sales of similar lands at about the time of the notification under Section 4 (1). But no such evidence was produced.10. In the circumstances we are not able to hold that the High Courts judgment is unsupportable though we feel it would have been better if the High Court had written a more reasoned judgment. Considering also the fact that in three of these appeals at least the parties had not appeared before the Land Acquisition Officer and put forward any specific amount as the compensation due they would not have been entitled to any compensation higher than what was awarded by the Land Acquisition Officer. | 0 | 857 | 231 | ### 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:
Alagiriswami, J.1. These four appeals arise out of the judgment of the High Court of Mysore in four appeals in certain land acquisition matters.2. The lands with the acquisition of which we are concerned were acquired by the Government of Mysore for the Malaprabha project. They are situated in Gondi village of Parasgad Taluka. The preliminary notification under Section 4 was published on 26-9-1963 and 12-12-1963 and the Land Acquisition Officer made his award on 22-3-1969. The appellants applied for reference to the Civil Court under Section 18 of the Land Acquisition Act. The Civil Judge, Belgaum considered these four cases along with another case with which we are not concerned and delivered a common judgment in all the five cases.3. In L. A. C. No. 990 of 1970 a total extent of 7 acres 27 gunthas were acquired. The Land Acquisition Officer had granted compensation at the rate of Rs. 1,200/- per acre in respect of 6 acres 17 gunthas. For all these land the Civil Judge granted compensation at the rate of Rs. 4,000/- an acre. it should be noticed at this stage that the claimants did not file an claims when they received notice under Section 9 of the Land Acquisition Act.4. In L. A. C. No. 991 of 1970 the extent of land involved is 24 acres and 15 gunthas. Out of these the claimants said that 10 acres is bagayat and 14 actress 15 gunthas is jiyarat. Here also they did not file any claim under Section 9. The Land Acquisition Officer had granted compensation at the rate of Rs. 3,500/- for one acre and Rs. 2,000/- per acre for two acres and Rs. 1,200/- per acre for the balance of 21 acres 15 gunthas. The Court took Rs. 300/- per acre as the annual income of the bagayat land and Rs. 200/- per acre for jirayat land and on that basis allowed Rs. 6,000/- per acre compensation for bagayat lands and Rs. 4,000/- per acre for the jirayat lands.5. In L. A. C. No. 993 of 1970 the lands involved were 10 acres 5 gunthas. The Court took Rs. 300/- per acre as the annual income and allowed compensation at the rate of Rs. 4,000/- per acre.6. In L. A. C. No. 994 of 1970 land measuring 12 acres 37 gunthas was involved. The Land Acquisition Officer had granted Rs. 1,3000/- per acre. The Court took Rs. 200/- per acre as the annual income and fixed Rs. 4,000/- as the compensation per acre. It was alleged in this case that except the notice of payment no other notice was served.7. The High Court did not discuss the evidence in any of these appeals but on the basis of their judgment in M. F. A. No. 68 of 1971 fixed the compensation for bagayat lands at Rs. 4,000/- per acre and for jirayat of kushki lands at Rs. 2,500/- per acre.8. Before us it was urged that M. F. A. No. 68 of 1971 was concerned with the lands in the village of Badli and that as lands in as many as 34 villages were acquired for the Malaprabha project the prices fixed for lands in one village cannot be made the basis for fixing the compensation in respect of the land in another village. It was urged that the evidence available in the case which had been discussed by the Civil Judge had not been discussed at all by the High Court.9. It is to be noted that according to the data furnished by the Agricultural Research Station the net annual income was Rs. 87.59 per acre. On that basis the compensation which the parties would have been entitled to in respect of kushki lands will be only about Rs. 1750/- as against the sum of Rs., 2500/- per acre granted by the High Court. The Civil Judge has placed too much reliance on the oral evidence on behalf of the claimants about the income from the lands. That was merely oral evidence and was not supported by any documentary evidence. The best evidence would have been the evidence of sales of similar lands at about the time of the notification under Section 4 (1). But no such evidence was produced.10. In the circumstances we are not able to hold that the High Courts judgment is unsupportable though we feel it would have been better if the High Court had written a more reasoned judgment. Considering also the fact that in three of these appeals at least the parties had not appeared before the Land Acquisition Officer and put forward any specific amount as the compensation due they would not have been entitled to any compensation higher than what was awarded by the Land Acquisition Officer.
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9. It is to be noted that according to the data furnished by the Agricultural Research Station the net annual income was Rs. 87.59 per acre. On that basis the compensation which the parties would have been entitled to in respect of kushki lands will be only about Rs. 1750/as against the sum of Rs., 2500/per acre granted by the High Court. The Civil Judge has placed too much reliance on the oral evidence on behalf of the claimants about the income from the lands. That was merely oral evidence and was not supported by any documentary evidence. The best evidence would have been the evidence of sales of similar lands at about the time of the notification under Section 4 (1). But no such evidence was produced.10. In the circumstances we are not able to hold that the High Courts judgment is unsupportable though we feel it would have been better if the High Court had written a more reasoned judgment. Considering also the fact that in three of these appeals at least the parties had not appeared before the Land Acquisition Officer and put forward any specific amount as the compensation due they would not have been entitled to any compensation higher than what was awarded by the Land Acquisition Officer.
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Satluj Jal Vidyut Nigam Ltd. Vs. Sangh Dass | for Resettlement and Rehabilitation of persons being displaced due to construction of NJPC at indicated below: a) To allot developed agricultural land, to each family, who is rendered landless, equivalent to the area acquired or 5 bighas, whichever is less. This 5 bighas would include any land left with the family after acquisition. This would be done only after the certificate of his having become landless is submitted duly signed by Sub-Divisional Magistrate, Rampur. b) To provide a house with a building up plinth area of 45 sqm. to each landless family whose house is acquired alternatively to pay Rs. 45,000/- to each landless family, whose house is acquired, and constructs his house at his own cost, with a plinth area of 45 sqm. or more. In case of such persons constructs less than 45 sqm. plinth area, then the amount to be given will be worked out in direct proportion to the area of house constructed vis-a-vis Rs. 45,000/- as the cost of 45 sqm. plith area. c) To provide water supply, electricity, street light and approach paths in the rehabilitation colonies at project cost. d) To provide transportation at project cost for physical mobilization of all the displaced families, as soon as the houses get constructed premises/shops allotted to any oustee on preferential basis shall be utilized by the outsee for his bonafide use only. e) To provide suitable employment to one members of each displaced family according to his capability and qualifications subject to availability of vacancies. However, persons who are allotted shops would not be eligible for benefit of employment and vice-versa. f) To incur the estimated expenditure of Rs. 184 lacs on rehabilitation (Annexure VIII of the Rehabilitation Plan) against an ad hoc provision of Rs.18 lacs in Detailed Project Report (September, 1986 price level). 5. The first respondent applied to the Sub-Divisional Magistrate, Rampur, who had been appointed as Resettlement and Rehabilitation Officer, for issuance of landless certificate. Such a certificate was issued by the SDM to the first respondent. On the strength of the said certificate the first respondent called upon the appellant-Corporation to make available to him the benefits under the Resettlement and rehabilitation scheme. The appellant, however, refused to do so on the ground that the respondent herein was not the real owner of the land which had been acquired. The first respondent moved to the High Court under Article 226 of the Constitution by way of a writ petition being CWP No.1783/96. He pointed out in the petition that he had continued to be in possession of the land and was earning his livelihood from it; that his entire land has been acquired for the benefit of the appellant-Corporation; since there was an objection raised with regard to his right to receive the compensation, the Land Acquisition Collector referred the matter to the District Judge, Rampur under section 30 of the Land Acquisition Act for determining his entitlement; the District Judge Rampur held that the first respondent was entitled to claim the entire amount of compensation deposited in the Court; that inasmuch as the entire land held by the first respondent had been acquired for the benefit of the appellant-Corporation, the respondent was entitled to the benefits flowing from the Resettlement and rehabilitation scheme which was not being made available to him. The respondents opposed the prayer made in the petition and inter alia contended that the first respondent was not really the owner in possession of the land in question and he had no title to the land. 6. The High Court noticed that the District Judge had found that the first respondent was entitled to claim compensation in respect of the 11.4 bighas of land in its award. The Sub-Division Officer, Rampur had certified that the entire land in possession of the first respondent had been acquired for the Hydro Electric project and that there was no more land remaining with him. There was also a certificate issued by the Patwari of the concerned area certifying that the first respondent had constructed his house on the land in question. The High Court, in the circumstances, allowed the writ petition. 7. Hence, this appeal. 8. The learned counsel for the appellant attempted to raise the issue as to whether the title of the land in question had vested in the State Government. In our view it is not necessary for us to enter into this controversy. Nor, are we impressed by the reliance placed on the undertaking in the Patta to the effect that if ultimately it is held that the land belongs to the State Government the first respondent would be liable to pay the compensation to the State Government. That is a matter between the said Raj Kumar Rajinder Singh, the State Government and the first respondent. The writ petitioner was before the High Court only for claiming his rights flowing from the Resettlement and rehabilitation scheme. The High Court justifiably took the view that it was not open to the present appellant to challenge the ownership of the first respondent especially when he had been paid the compensation for acquisition of the land under the orders of the District Judge, Rampur. 9. In our judgment the view taken by the High Court is correct and needs to interference. The whole purpose of the Resettlement and Rehabilitation scheme was to ensure that families rendered landless by the acquisition of land were made available some benefits apart from the compensation payable under the provisions of the Land Acquisition Act. There does not seem to by any doubt that the first respondent fulfilled all the requirements under the Resettlement and Rehabilitation Scheme formulated by the Resolution of the Corporation dated 27.11.1991. 10. In these circumstances, we are of the view that the High Court was justified in concluding that, irrespective of the dispute between the State Government and the said Raj Kumar Rajinder Singh, the first respondent was entitled to the benefits flowing from the Resettlement and Rehabilitation Scheme. | 0[ds]6. The High Court noticed that the District Judge had found that the first respondent was entitled to claim compensation in respect of the 11.4 bighas of land in its award.There was also a certificate issued by the Patwari of the concerned area certifying that the first respondent had constructed his house on the land in question. The High Court, in the circumstances, allowed the writ petitione view that the High Court was justified in concluding that, irrespective of the dispute between the State Government and the said Raj Kumar Rajinder Singh, the first respondent was entitled to the benefits flowing from the Resettlement and Rehabilitation Scheme. | 0 | 1,724 | 118 | ### 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:
for Resettlement and Rehabilitation of persons being displaced due to construction of NJPC at indicated below: a) To allot developed agricultural land, to each family, who is rendered landless, equivalent to the area acquired or 5 bighas, whichever is less. This 5 bighas would include any land left with the family after acquisition. This would be done only after the certificate of his having become landless is submitted duly signed by Sub-Divisional Magistrate, Rampur. b) To provide a house with a building up plinth area of 45 sqm. to each landless family whose house is acquired alternatively to pay Rs. 45,000/- to each landless family, whose house is acquired, and constructs his house at his own cost, with a plinth area of 45 sqm. or more. In case of such persons constructs less than 45 sqm. plinth area, then the amount to be given will be worked out in direct proportion to the area of house constructed vis-a-vis Rs. 45,000/- as the cost of 45 sqm. plith area. c) To provide water supply, electricity, street light and approach paths in the rehabilitation colonies at project cost. d) To provide transportation at project cost for physical mobilization of all the displaced families, as soon as the houses get constructed premises/shops allotted to any oustee on preferential basis shall be utilized by the outsee for his bonafide use only. e) To provide suitable employment to one members of each displaced family according to his capability and qualifications subject to availability of vacancies. However, persons who are allotted shops would not be eligible for benefit of employment and vice-versa. f) To incur the estimated expenditure of Rs. 184 lacs on rehabilitation (Annexure VIII of the Rehabilitation Plan) against an ad hoc provision of Rs.18 lacs in Detailed Project Report (September, 1986 price level). 5. The first respondent applied to the Sub-Divisional Magistrate, Rampur, who had been appointed as Resettlement and Rehabilitation Officer, for issuance of landless certificate. Such a certificate was issued by the SDM to the first respondent. On the strength of the said certificate the first respondent called upon the appellant-Corporation to make available to him the benefits under the Resettlement and rehabilitation scheme. The appellant, however, refused to do so on the ground that the respondent herein was not the real owner of the land which had been acquired. The first respondent moved to the High Court under Article 226 of the Constitution by way of a writ petition being CWP No.1783/96. He pointed out in the petition that he had continued to be in possession of the land and was earning his livelihood from it; that his entire land has been acquired for the benefit of the appellant-Corporation; since there was an objection raised with regard to his right to receive the compensation, the Land Acquisition Collector referred the matter to the District Judge, Rampur under section 30 of the Land Acquisition Act for determining his entitlement; the District Judge Rampur held that the first respondent was entitled to claim the entire amount of compensation deposited in the Court; that inasmuch as the entire land held by the first respondent had been acquired for the benefit of the appellant-Corporation, the respondent was entitled to the benefits flowing from the Resettlement and rehabilitation scheme which was not being made available to him. The respondents opposed the prayer made in the petition and inter alia contended that the first respondent was not really the owner in possession of the land in question and he had no title to the land. 6. The High Court noticed that the District Judge had found that the first respondent was entitled to claim compensation in respect of the 11.4 bighas of land in its award. The Sub-Division Officer, Rampur had certified that the entire land in possession of the first respondent had been acquired for the Hydro Electric project and that there was no more land remaining with him. There was also a certificate issued by the Patwari of the concerned area certifying that the first respondent had constructed his house on the land in question. The High Court, in the circumstances, allowed the writ petition. 7. Hence, this appeal. 8. The learned counsel for the appellant attempted to raise the issue as to whether the title of the land in question had vested in the State Government. In our view it is not necessary for us to enter into this controversy. Nor, are we impressed by the reliance placed on the undertaking in the Patta to the effect that if ultimately it is held that the land belongs to the State Government the first respondent would be liable to pay the compensation to the State Government. That is a matter between the said Raj Kumar Rajinder Singh, the State Government and the first respondent. The writ petitioner was before the High Court only for claiming his rights flowing from the Resettlement and rehabilitation scheme. The High Court justifiably took the view that it was not open to the present appellant to challenge the ownership of the first respondent especially when he had been paid the compensation for acquisition of the land under the orders of the District Judge, Rampur. 9. In our judgment the view taken by the High Court is correct and needs to interference. The whole purpose of the Resettlement and Rehabilitation scheme was to ensure that families rendered landless by the acquisition of land were made available some benefits apart from the compensation payable under the provisions of the Land Acquisition Act. There does not seem to by any doubt that the first respondent fulfilled all the requirements under the Resettlement and Rehabilitation Scheme formulated by the Resolution of the Corporation dated 27.11.1991. 10. In these circumstances, we are of the view that the High Court was justified in concluding that, irrespective of the dispute between the State Government and the said Raj Kumar Rajinder Singh, the first respondent was entitled to the benefits flowing from the Resettlement and Rehabilitation Scheme.
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6. The High Court noticed that the District Judge had found that the first respondent was entitled to claim compensation in respect of the 11.4 bighas of land in its award.There was also a certificate issued by the Patwari of the concerned area certifying that the first respondent had constructed his house on the land in question. The High Court, in the circumstances, allowed the writ petitione view that the High Court was justified in concluding that, irrespective of the dispute between the State Government and the said Raj Kumar Rajinder Singh, the first respondent was entitled to the benefits flowing from the Resettlement and Rehabilitation Scheme.
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Shriram Jhunjhunwala Vs. The State Of Bombay And Others | its order regarding the grant of prospecting licence to the appellant over an area of 83.18 acres should be modified to the extent that the area granted under the prospecting licence be restricted to the virgin area of 51.18 acres, as the area of 32 acres had been previously held under a mining lease by Messrs. Akbar Ali Munwar Ali and had not by then been thrown open for re-grant. It was further directed by the Union Government, that that area of 32 acres be thrown open for re-grant. In consequence of this direction by the Union Government, the State Government modified its order dated June 18, 1951, granting the prospecting licence to the appellant and restricted that licence to the virgin area of 51.18 acres only.6. Thereafter, some time in April 1953, applications were invited for the grant of mining lease with respect to the area of 32 acres. The appellant submitted an application for the grant of the mining lease for 83.18 acres. The respondent No. 3 did not file any fresh application. On April 30, 1954, the State Government granted a mining lease for manganese ore over an area of 51.18 acres and did not grant the lease for the area of 32 acres, stating in its letter to the Deputy Commissioner that that area had been granted to respondent No. 3 under mining lease, as directed by the Union Government, under Rule 57 of the Mineral Concession Rules.7. Sometime thereafter, on May 17, 1954, the appellant filed the petition under Art. 226 of the Constitution in the High Court, praying for the quashing of the order of the Union Government, respondent No. 2, granting 32 acres of area in dispute to respondent No. 3, by the issue of a writ of certiorari and also for the issue of a direction that the appellant was entitled to the mining lease in respect of that area.8. The High Court dismissed this petition, holding that in order to give the relief prayed for it was essential that the order of the Union Government be quashed and, as the High Court could not reach it, it would be incongruous to direct the State Government to ignore the order of the Union Government, it is against this order that this appeal has been filed.9. This appeal has no force. The prayer in the writ petition was for the quashing of the order of the Union Government granting 32 acres of area in dispute to respondent No. 3, by issue of a writ of certiorari and for the issue of a direction that the applicant was entitled to a mining lease in respect of the said area of 32 acres. The order of the Union Government could not by quashed by the High Court of Bombay, as it did not exercise territorial jurisdiction over the Union Government. The High Court could not issue the directions prayed for even if it could issue such a direction till the order of the Union Government granting the mining lease of 32 acres to respondent No. 3 was set aside.10. In this view of the matter, it is unnecessary to consider the points urged for the appellant that the order of the Union Government was not an order within its jurisdiction inasmuch as it passed it without issuing notice to the appellant or affording him an opportunity to be heard on the review application filed by respondent No. 3. The question, in this farm, was not raised before the High Court and if it had been raised it would not have been within the jurisdiction of the High Court to interfere with it.11. It has also been urged that the Union Government had no jurisdiction to pass the order dated April 7, 1954, under R. 57 of the Rules when, in fact, no application for review by respondent No. 3 was pending before it, as the review application filed by respondent No. 3 on November 26, 1951, had been disposed of by the Union Government on September S. 1952. The review application however, was not in fact finally disposed of by the letter from the Union Government to the State Government dated September 5, 1952. That letter asked the State Government to reduce the area of the prospecting licence granted to the appellant to 51.18 acres an to throw open or regrant the remaining area of 32 acres. The letter conveyed no order of the Union Government about the way in which the Union Government was disposing of the review application. It is clear from the several letters on record that the Union Government never treated the review proceedings before it to have been disposed of Respondent No. 3 was informed by those letters that the matter was under consideration. It is therefore not correct to say that there was no review application pending with the Union Government on April 7, 1954, when it passed the order cancelling the orders of the State Government dated October 20, 1951, and directing the State Government to grant a mining lease for manganese ore over an area of 32 acres to respondent No. 3, provided he was otherwise eligible.12. The State Government, as urged for the appellant, has the power, under the Rules, to grant the mining lease. But its granting such a lease is subject to the orders on a review by the Union Government. Its order is final, subject to the order of the Union Government, when the Union Government directed the grant of the mining lease for an area of 32 acres to respondent No. 3, the State Government had to under such grant in accordance with the directions of the Union Government. In fact, at that stage, the State Government only effectuates the order of the Union Government. It carries not that order which remains the final order. The contention that the effective order is ultimately of the State Government and therefore can be quashed by the High Court is not open to the appellant. | 0[ds]10. In this view of the matter, it is unnecessary to consider the points urged for the appellant that the order of the Union Government was not an order within its jurisdiction inasmuch as it passed it without issuing notice to the appellant or affording him an opportunity to be heard on the review application filed by respondent No. 3. The question, in this farm, was not raised before the High Court and if it had been raised it would not have been within the jurisdiction of the High Court to interfere withletter conveyed no order of the Union Government about the way in which the Union Government was disposing of the review application. It is clear from the several letters on record that the Union Government never treated the review proceedings before it to have been disposed of Respondent No. 3 was informed by those letters that the matter was under consideration. It is therefore not correct to say that there was no review application pending with the Union Government on April 7, 1954, when it passed the order cancelling the orders of the State Government dated October 20, 1951, and directing the State Government to grant a mining lease for manganese ore over an area of 32 acres to respondent No. 3, provided he was otherwise eligible.12.The State Government, as urged for the appellant, has the power, under the Rules, to grant the mining lease.But its granting such a lease is subject to the orders on a review by the Union Government. Its order is final, subject to the order of the Union Government, when the Union Government directed the grant of the mining lease for an area of 32 acres to respondent No. 3, the State Government had to under such grant in accordance with the directions of the Union Government. In fact, at that stage, the State Government only effectuates the order of the Union Government. It carries not that order which remains the final order. The contention that the effective order is ultimately of the State Government and therefore can be quashed by the High Court is not open to the appellant. | 0 | 1,317 | 391 | ### 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:
its order regarding the grant of prospecting licence to the appellant over an area of 83.18 acres should be modified to the extent that the area granted under the prospecting licence be restricted to the virgin area of 51.18 acres, as the area of 32 acres had been previously held under a mining lease by Messrs. Akbar Ali Munwar Ali and had not by then been thrown open for re-grant. It was further directed by the Union Government, that that area of 32 acres be thrown open for re-grant. In consequence of this direction by the Union Government, the State Government modified its order dated June 18, 1951, granting the prospecting licence to the appellant and restricted that licence to the virgin area of 51.18 acres only.6. Thereafter, some time in April 1953, applications were invited for the grant of mining lease with respect to the area of 32 acres. The appellant submitted an application for the grant of the mining lease for 83.18 acres. The respondent No. 3 did not file any fresh application. On April 30, 1954, the State Government granted a mining lease for manganese ore over an area of 51.18 acres and did not grant the lease for the area of 32 acres, stating in its letter to the Deputy Commissioner that that area had been granted to respondent No. 3 under mining lease, as directed by the Union Government, under Rule 57 of the Mineral Concession Rules.7. Sometime thereafter, on May 17, 1954, the appellant filed the petition under Art. 226 of the Constitution in the High Court, praying for the quashing of the order of the Union Government, respondent No. 2, granting 32 acres of area in dispute to respondent No. 3, by the issue of a writ of certiorari and also for the issue of a direction that the appellant was entitled to the mining lease in respect of that area.8. The High Court dismissed this petition, holding that in order to give the relief prayed for it was essential that the order of the Union Government be quashed and, as the High Court could not reach it, it would be incongruous to direct the State Government to ignore the order of the Union Government, it is against this order that this appeal has been filed.9. This appeal has no force. The prayer in the writ petition was for the quashing of the order of the Union Government granting 32 acres of area in dispute to respondent No. 3, by issue of a writ of certiorari and for the issue of a direction that the applicant was entitled to a mining lease in respect of the said area of 32 acres. The order of the Union Government could not by quashed by the High Court of Bombay, as it did not exercise territorial jurisdiction over the Union Government. The High Court could not issue the directions prayed for even if it could issue such a direction till the order of the Union Government granting the mining lease of 32 acres to respondent No. 3 was set aside.10. In this view of the matter, it is unnecessary to consider the points urged for the appellant that the order of the Union Government was not an order within its jurisdiction inasmuch as it passed it without issuing notice to the appellant or affording him an opportunity to be heard on the review application filed by respondent No. 3. The question, in this farm, was not raised before the High Court and if it had been raised it would not have been within the jurisdiction of the High Court to interfere with it.11. It has also been urged that the Union Government had no jurisdiction to pass the order dated April 7, 1954, under R. 57 of the Rules when, in fact, no application for review by respondent No. 3 was pending before it, as the review application filed by respondent No. 3 on November 26, 1951, had been disposed of by the Union Government on September S. 1952. The review application however, was not in fact finally disposed of by the letter from the Union Government to the State Government dated September 5, 1952. That letter asked the State Government to reduce the area of the prospecting licence granted to the appellant to 51.18 acres an to throw open or regrant the remaining area of 32 acres. The letter conveyed no order of the Union Government about the way in which the Union Government was disposing of the review application. It is clear from the several letters on record that the Union Government never treated the review proceedings before it to have been disposed of Respondent No. 3 was informed by those letters that the matter was under consideration. It is therefore not correct to say that there was no review application pending with the Union Government on April 7, 1954, when it passed the order cancelling the orders of the State Government dated October 20, 1951, and directing the State Government to grant a mining lease for manganese ore over an area of 32 acres to respondent No. 3, provided he was otherwise eligible.12. The State Government, as urged for the appellant, has the power, under the Rules, to grant the mining lease. But its granting such a lease is subject to the orders on a review by the Union Government. Its order is final, subject to the order of the Union Government, when the Union Government directed the grant of the mining lease for an area of 32 acres to respondent No. 3, the State Government had to under such grant in accordance with the directions of the Union Government. In fact, at that stage, the State Government only effectuates the order of the Union Government. It carries not that order which remains the final order. The contention that the effective order is ultimately of the State Government and therefore can be quashed by the High Court is not open to the appellant.
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### Explanation:
10. In this view of the matter, it is unnecessary to consider the points urged for the appellant that the order of the Union Government was not an order within its jurisdiction inasmuch as it passed it without issuing notice to the appellant or affording him an opportunity to be heard on the review application filed by respondent No. 3. The question, in this farm, was not raised before the High Court and if it had been raised it would not have been within the jurisdiction of the High Court to interfere withletter conveyed no order of the Union Government about the way in which the Union Government was disposing of the review application. It is clear from the several letters on record that the Union Government never treated the review proceedings before it to have been disposed of Respondent No. 3 was informed by those letters that the matter was under consideration. It is therefore not correct to say that there was no review application pending with the Union Government on April 7, 1954, when it passed the order cancelling the orders of the State Government dated October 20, 1951, and directing the State Government to grant a mining lease for manganese ore over an area of 32 acres to respondent No. 3, provided he was otherwise eligible.12.The State Government, as urged for the appellant, has the power, under the Rules, to grant the mining lease.But its granting such a lease is subject to the orders on a review by the Union Government. Its order is final, subject to the order of the Union Government, when the Union Government directed the grant of the mining lease for an area of 32 acres to respondent No. 3, the State Government had to under such grant in accordance with the directions of the Union Government. In fact, at that stage, the State Government only effectuates the order of the Union Government. It carries not that order which remains the final order. The contention that the effective order is ultimately of the State Government and therefore can be quashed by the High Court is not open to the appellant.
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PRINCIPAL COMMISSIONER OF INCOME TAX(CENTRAL) 1 Vs. NRA IRON AND STEEL PVT. LTD. THROUGH DIRECTOR | A.Y. 2009 – 10. The Power of Attorney appoints all four partners of the firm i.e. Mr. Mohan Lal, Advocate, Mr. Ashwani Kumar, Chartered Accountant, Mr. Sanjeev Narayan, Chartered Accountant and Mr. Surender Kumar, FCA as their Counsel, and authorizes them to represent the Applicant – Company at all stages of the proceedings. The Power of Attorney executed by the Applicant – Company in favour of Mr. Sanjeev Narayan was placed on record. 9. It was further submitted on behalf of the Revenue that even though Mr. Sanjeev Narayan has stated that he underwent the cataract surgery on 04.01.2019 and 23.01.2019, this was much after the Notice had been served on 13.12.2018. Hence, there was ample time for him to inform his clients of the pendency of the proceedings. 10. It was further submitted that Mr. Sanjeev Narayan had appeared before the Tax Authorities after the date of service on 13.12.2018, and prior to his surgery, to represent the Applicant – Company and its sister concerns on 14.12.2018, 21.12.2018, 28.12.2018 and 29.12.2018. In these circumstances it was pointed out that there was no merit in the contention raised by the Applicant – Company, and hence no ground was made out to Re-call the Judgment and Order dated 05.03.2019 passed by this Court. 11. We have heard the learned Counsel for the parties and perused the record. This Court in C.A. No. 2463 of 2019, issued Notice to the Assessee - Applicant vide Order dated 12.11.2018. Since dasti service was effected on 13.12.2018 on the Applicant – Company, the matter was listed on 02.01.2019. However, none appeared on behalf of the Applicant – Company. The Court further adjourned the matter by two weeks, and posted the case on 18.01.2019, when it was ordered that in case the Applicant – Company chooses not to enter appearance, the matter would be proceeded ex-parte. The matter was, thereafter, listed on 23.01.2019, when the following Order was passed: ?Notice was issued in the matter on 12.11.2018, Office report dated 22.12.2018 indicated that notice was served upon the sole Respondent but none had entered appearance. By order dated 02.01.2019, last opportunity was given to the Respondent and it was indicated that if the Respondent chose not to enter appearance, the matter would be disposed of ex-parte. Even then none has entered appearance. Having gone through the matter, we give one more opportunity to the Respondent to enter appearance and make submissions with respect to the merits of the matter. If the Respondent still chooses not to appear, the matter shall definitely be decided ex-parte.?(emphasis supplied) The Applicant – Company remained unrepresented despite service on its authorised representative, on 31.01.2019, and on 05.02.2019, when the matter was taken up for final hearing, and judgment was reserved. 12. During oral hearing on the Re-call Application, a submission was made by the Counsel for the Applicant – Company that Mr. Sanjeev Narayan was not the ?principal officer? of the Applicant – Company, and hence service could not have been effected upon him. Section 2(35) defines ?principal officer? as follows : ?2. In this Act, unless the context otherwise requires,— (35) "principal officer", used with reference to a local authority or a company or any other public body or any association of persons or anybody of individuals, means— (a) the secretary, treasurer, manager or agent of the authority, company, association or body, or (b) any person connected with the management or administration of the local authority, company, association or body upon whom the Assessing Officer has served a notice of his intention of treating him as the principal officer thereof ;?(emphasis supplied) The term ‘agent? would certainly include a power of attorney holder. In State of Rajasthan v. Basant Nehata 2005 (12) SCC 77 this Court held that : ?A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent.?(emphasis supplied) Mr. Sanjeev Narayan admittedly being the Power of Attorney holder of the Applicant – M/s. NRA Iron & Steel Pvt. Ltd. for the A.Y. 2009 – 10 was the agent of the Assesse – Company, and hence Notice could be served on him as the agent of the Assessee – Company in this case.13. The ground taken by Mr. Sanjeev Narayan that even though Notice was served on 13.12.2018, he assumed that they were ?some Income Tax Return Documents? lacks credibility. It is difficult to accept that the envelope containing the dasti Notice from this Court was considered to be ?some Income Tax Return documents?. The deponent does not at all disclose as to when the envelope containing the dasti Notice was ever opened. Furthermore, the ground urged that the Chartered Accountant was suffering from an advanced stage of cataract, and hence was constrained from informing his clients is again not worthy of credence. The dasti Notice was admittedly served on him on 13.12.2018 at his office, which was much prior to his surgery which he states took place on 04.01.2019. Mr. Narayan had sufficient time to inform the Applicant – Company of the proceedings, prior to his surgery. Furthermore, Mr. Narayan appeared before the Income Tax Authorities to represent the Applicant – Company and its sister concerns on various dates prior to his surgery i.e. on 14.12.2018, 21.12.2018, 28.12.2018 and 29.12.2018. 14. Keeping in view the above-mentioned facts and circumstances, this Court is satisfied that the Applicant – Company was duly served through their authorized representative, and were provided sufficient opportunities to appear before this Court, and contest the matter. The Applicant – Company chose to let the matter proceed ex- parte. The grounds for Re-call of the Judgment are devoid of any merit whatsoever. | 0[ds]Mr. Sanjeev Narayan admittedly being the Power of Attorney holder of the Applicant – M/s. NRA Iron & Steel Pvt. Ltd. for the A.Y. 2009 – 10 was the agent of the Assesse – Company, and hence Notice could be served on him as the agent of the Assessee – Company in this case.The ground taken by Mr. Sanjeev Narayan that even though Notice was served on 13.12.2018, he assumed that theywere ?some Income Tax Return Documents? lacks credibility. It is difficult to accept that the envelope containing the dasti Notice from this Court was considered to be ?some Income Tax Return documents?. The deponent does not at all disclose as to when the envelope containing the dasti Notice was everthe ground urged that the Chartered Accountant was suffering from an advanced stage of cataract, and hence was constrained from informing his clients is again not worthy of credence. The dasti Notice was admittedly served on him on 13.12.2018 at his office, which was much prior to his surgery which he states took place on 04.01.2019. Mr. Narayan had sufficient time to inform the Applicant – Company of the proceedings, prior to hisMr. Narayan appeared before the Income Tax Authorities to represent the Applicant – Company and its sister concerns on various dates prior to his surgery i.e. on 14.12.2018, 21.12.2018, 28.12.2018 and 29.12.2018.Keeping in view the above-mentioned facts and circumstances, this Court is satisfied that the Applicant – Company was duly served through their authorized representative, and were provided sufficient opportunities to appear before this Court, and contest the matter. The Applicant – Company chose to let the matter proceed ex- parte. The grounds for Re-call of the Judgment are devoid of any merit whatsoever. | 0 | 1,721 | 316 | ### 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:
A.Y. 2009 – 10. The Power of Attorney appoints all four partners of the firm i.e. Mr. Mohan Lal, Advocate, Mr. Ashwani Kumar, Chartered Accountant, Mr. Sanjeev Narayan, Chartered Accountant and Mr. Surender Kumar, FCA as their Counsel, and authorizes them to represent the Applicant – Company at all stages of the proceedings. The Power of Attorney executed by the Applicant – Company in favour of Mr. Sanjeev Narayan was placed on record. 9. It was further submitted on behalf of the Revenue that even though Mr. Sanjeev Narayan has stated that he underwent the cataract surgery on 04.01.2019 and 23.01.2019, this was much after the Notice had been served on 13.12.2018. Hence, there was ample time for him to inform his clients of the pendency of the proceedings. 10. It was further submitted that Mr. Sanjeev Narayan had appeared before the Tax Authorities after the date of service on 13.12.2018, and prior to his surgery, to represent the Applicant – Company and its sister concerns on 14.12.2018, 21.12.2018, 28.12.2018 and 29.12.2018. In these circumstances it was pointed out that there was no merit in the contention raised by the Applicant – Company, and hence no ground was made out to Re-call the Judgment and Order dated 05.03.2019 passed by this Court. 11. We have heard the learned Counsel for the parties and perused the record. This Court in C.A. No. 2463 of 2019, issued Notice to the Assessee - Applicant vide Order dated 12.11.2018. Since dasti service was effected on 13.12.2018 on the Applicant – Company, the matter was listed on 02.01.2019. However, none appeared on behalf of the Applicant – Company. The Court further adjourned the matter by two weeks, and posted the case on 18.01.2019, when it was ordered that in case the Applicant – Company chooses not to enter appearance, the matter would be proceeded ex-parte. The matter was, thereafter, listed on 23.01.2019, when the following Order was passed: ?Notice was issued in the matter on 12.11.2018, Office report dated 22.12.2018 indicated that notice was served upon the sole Respondent but none had entered appearance. By order dated 02.01.2019, last opportunity was given to the Respondent and it was indicated that if the Respondent chose not to enter appearance, the matter would be disposed of ex-parte. Even then none has entered appearance. Having gone through the matter, we give one more opportunity to the Respondent to enter appearance and make submissions with respect to the merits of the matter. If the Respondent still chooses not to appear, the matter shall definitely be decided ex-parte.?(emphasis supplied) The Applicant – Company remained unrepresented despite service on its authorised representative, on 31.01.2019, and on 05.02.2019, when the matter was taken up for final hearing, and judgment was reserved. 12. During oral hearing on the Re-call Application, a submission was made by the Counsel for the Applicant – Company that Mr. Sanjeev Narayan was not the ?principal officer? of the Applicant – Company, and hence service could not have been effected upon him. Section 2(35) defines ?principal officer? as follows : ?2. In this Act, unless the context otherwise requires,— (35) "principal officer", used with reference to a local authority or a company or any other public body or any association of persons or anybody of individuals, means— (a) the secretary, treasurer, manager or agent of the authority, company, association or body, or (b) any person connected with the management or administration of the local authority, company, association or body upon whom the Assessing Officer has served a notice of his intention of treating him as the principal officer thereof ;?(emphasis supplied) The term ‘agent? would certainly include a power of attorney holder. In State of Rajasthan v. Basant Nehata 2005 (12) SCC 77 this Court held that : ?A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent.?(emphasis supplied) Mr. Sanjeev Narayan admittedly being the Power of Attorney holder of the Applicant – M/s. NRA Iron & Steel Pvt. Ltd. for the A.Y. 2009 – 10 was the agent of the Assesse – Company, and hence Notice could be served on him as the agent of the Assessee – Company in this case.13. The ground taken by Mr. Sanjeev Narayan that even though Notice was served on 13.12.2018, he assumed that they were ?some Income Tax Return Documents? lacks credibility. It is difficult to accept that the envelope containing the dasti Notice from this Court was considered to be ?some Income Tax Return documents?. The deponent does not at all disclose as to when the envelope containing the dasti Notice was ever opened. Furthermore, the ground urged that the Chartered Accountant was suffering from an advanced stage of cataract, and hence was constrained from informing his clients is again not worthy of credence. The dasti Notice was admittedly served on him on 13.12.2018 at his office, which was much prior to his surgery which he states took place on 04.01.2019. Mr. Narayan had sufficient time to inform the Applicant – Company of the proceedings, prior to his surgery. Furthermore, Mr. Narayan appeared before the Income Tax Authorities to represent the Applicant – Company and its sister concerns on various dates prior to his surgery i.e. on 14.12.2018, 21.12.2018, 28.12.2018 and 29.12.2018. 14. Keeping in view the above-mentioned facts and circumstances, this Court is satisfied that the Applicant – Company was duly served through their authorized representative, and were provided sufficient opportunities to appear before this Court, and contest the matter. The Applicant – Company chose to let the matter proceed ex- parte. The grounds for Re-call of the Judgment are devoid of any merit whatsoever.
### Response:
0
### Explanation:
Mr. Sanjeev Narayan admittedly being the Power of Attorney holder of the Applicant – M/s. NRA Iron & Steel Pvt. Ltd. for the A.Y. 2009 – 10 was the agent of the Assesse – Company, and hence Notice could be served on him as the agent of the Assessee – Company in this case.The ground taken by Mr. Sanjeev Narayan that even though Notice was served on 13.12.2018, he assumed that theywere ?some Income Tax Return Documents? lacks credibility. It is difficult to accept that the envelope containing the dasti Notice from this Court was considered to be ?some Income Tax Return documents?. The deponent does not at all disclose as to when the envelope containing the dasti Notice was everthe ground urged that the Chartered Accountant was suffering from an advanced stage of cataract, and hence was constrained from informing his clients is again not worthy of credence. The dasti Notice was admittedly served on him on 13.12.2018 at his office, which was much prior to his surgery which he states took place on 04.01.2019. Mr. Narayan had sufficient time to inform the Applicant – Company of the proceedings, prior to hisMr. Narayan appeared before the Income Tax Authorities to represent the Applicant – Company and its sister concerns on various dates prior to his surgery i.e. on 14.12.2018, 21.12.2018, 28.12.2018 and 29.12.2018.Keeping in view the above-mentioned facts and circumstances, this Court is satisfied that the Applicant – Company was duly served through their authorized representative, and were provided sufficient opportunities to appear before this Court, and contest the matter. The Applicant – Company chose to let the matter proceed ex- parte. The grounds for Re-call of the Judgment are devoid of any merit whatsoever.
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Jewellers Narandas and Sons Vs. Oriental Insurance Company Limited | The appellants are manufacturers and exporters of jewellery. The appellants insured a consignment of gold with the respondent-Insurance Company. The delivery of the gold was to be made to a consignee in Kuwait. Due to invasion of Kuwait by the Iraqi forces the consignment was lost/destroyed/stolen from the strong room at the Kuwait Airport. The appellant claimed the insured amount from the Insurance Company. But despite repeated requests by the appellants the claim was not honoured. The appellants filed a petition before the National Consumer Disputes Redressal Commission (the Commission). By a detailed judgment the Commission came to the conclusion that there was no deficiency on the part of the Insurance Company in rendering service to the appellants. We see no ground to interfere with the reasoning and the conclusions reached by the Commission in its judgment. We further agree with the Commission that the appellants have a remedy to approach the civil court in respect of the appellants claim against the Insurance Company. | 0[ds]By a detailed judgment the Commission came to the conclusion that there was no deficiency on the part of the Insurance Company in rendering service to the appellants. We see no ground to interfere with the reasoning and the conclusions reached by the Commission in its judgment. We further agree with the Commission that the appellants have a remedy to approach the civil court in respect of the appellants claim against the Insurance Company. | 0 | 176 | 81 | ### 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 appellants are manufacturers and exporters of jewellery. The appellants insured a consignment of gold with the respondent-Insurance Company. The delivery of the gold was to be made to a consignee in Kuwait. Due to invasion of Kuwait by the Iraqi forces the consignment was lost/destroyed/stolen from the strong room at the Kuwait Airport. The appellant claimed the insured amount from the Insurance Company. But despite repeated requests by the appellants the claim was not honoured. The appellants filed a petition before the National Consumer Disputes Redressal Commission (the Commission). By a detailed judgment the Commission came to the conclusion that there was no deficiency on the part of the Insurance Company in rendering service to the appellants. We see no ground to interfere with the reasoning and the conclusions reached by the Commission in its judgment. We further agree with the Commission that the appellants have a remedy to approach the civil court in respect of the appellants claim against the Insurance Company.
### Response:
0
### Explanation:
By a detailed judgment the Commission came to the conclusion that there was no deficiency on the part of the Insurance Company in rendering service to the appellants. We see no ground to interfere with the reasoning and the conclusions reached by the Commission in its judgment. We further agree with the Commission that the appellants have a remedy to approach the civil court in respect of the appellants claim against the Insurance Company.
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M.R. Pratap Vs. V.M. Muthukrishnan | to file the verified return. He also submitted that according to the newly introduced Sections 278B and 278C (introduced on 1st October, 1975) a director in the case of the company and a karta in the case of a Hindu Undivided Family, can be prosecuted, and, therefore, by virtue of the said new amendments, the legislature in its wisdom has thought it fit to bring the managing director also along with the company as accused person only by this amendment which takes effects from 1st October 1975, and this introduction of the amendment will go in support of the appellants contention that the legislature itself had not, during the relevant period in this case, intended the managing director to be included and so the managing director cannot be prosecuted at all in this case. If was urged that if the contention of the prosecution that the managing director can be prosecuted before 1st October, 1975 is correct, then there was no necessity for this amendment to fill up the lacuna, and, therefore, before 1st October, 1975, in view of Section 279(1A), the assessee alone can be prosecuted10. Learned counsel for the respondent in reply to this argument submitted that the main decision of the Supreme Court in Kapurchands case, 1969 AIR(SC) 682) (Supra) that the karta cannot be detained in a civil jail, rests on Section 222 which specifically uses the word "assessee" and, therefore, the conclusion arrived at in that case, while dealing with Section 222, cannot be availed of by the appellant in this case. Before the learned single Judge reliance was also placed on the decision of the Madras High Court in Inspecting Assistant Commissioner of Income-tax v. Chotabhai Javerbhai 1941 (9) ITR 604 : 1941 AIR(Mad) 941), wherein Horwill, J., while dealing with Section 52 of the Indian Income-tax Act, 1922 (corresponding to Section 277 of the 1961 Act), has held that the word "person" in that section does not necessarily mean the assessee and that it must be given its ordinary dictionary meaning and that it includes a person duly authorised 11. It appears that in view of the dictum of this Court in Kapurchands case, 1969 AIR(SC) 682)(Supra) we are unable to accept the arguments advanced by the learned counsel for the appellant. On the other hand we are of the view that the appellant cannot escape on the plea that the word "person" used in Section 277 refers only to an assessee but not the person who has made the verification on behalf of the said assessee 12. It has been found by the learned single Judge that the verification of the return which was signed by the appellant was signed by him in his capacity as principal officer. Learned counsel for the appellant submitted that Parliament has now, by the Taxation Laws (Amendment) Act of 1975, which took effect from 1st April, 1976, removed the expression "the principal officer" occurring in Section 140(c), insofar as it related to a company, and instead has substituted the words "the managing director ... or, where there is no managing director, by any Director thereof". It was thus contended that the substitution of the words "managing director" for the term "principal officer" is an indication to show that the expression "principal officer" will not relate to the managing director and that is why the above substitution has now taken place 13. We are afraid we cannot also agree with this submission of the learned counsel for the appellant. Section 2(35) of the Act defines the term "principal officer" and Section 2(20) of the Act defines the term "director". Section 2, sub-section (24) of the Companies Act defines the word "manager". At the relevant time Section 197A of the Companies Act provided that no company shall appoint or employ at the same time more than one of the following categories of managerial personnel, viz., the managing director and the manager. In the present case the appellant admittedly was the Managing Director of the Company and he was thus the principal officer thereof. Rule 12(1) of the Income-Tax Rules states that the return of income shall, in the case of a company, be in Form No. 1 and be verified in the manner indicated therein. In view of Section 139 read with Section 140(c) of the Act the return has to be signed by the principal officer of the company. A statutory obligation is cast on the principal officer to sign the tax returns. The substitution of the words made under the new Amendment Act will not in any way alter the position with regard to the operation of the provisions of the Income-Tax Act as against a managing director of a company when he has signed the return of the company in such capacity. The effect of the amended Section 140(c) of the Act is that the companys return of income should be signed only by the managing director or by any director, when there is no managing director, and not by the secretary or the treasurer, who are however included within the meaning of "principal officer" under Section 2(35) of the Act. By the introduction of Section 278B by the Taxation Laws (Amendment) Act of 1975, with effect from 1st October, 1975, it is enacted that where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The effect of the new section is to make every person connected with the affairs of the company, apart from the managing director who has signed the return, liable to be proceeded against and punished14. We are in complete agreement with the reasonings and conclusion of the High Court. No other point was urged. | 0[ds]We are afraid we cannot also agree with this submission of the learned counsel for the appellant. Section 2(35) of the Act defines the term "principal officer" and Section 2(20) of the Act defines the term "director". Section 2, sub-section (24) of the Companies Act defines the word "manager". At the relevant time Section 197A of the Companies Act provided that no company shall appoint or employ at the same time more than one of the following categories of managerial personnel, viz., the managing director and the manager. In the present case the appellant admittedly was the Managing Director of the Company and he was thus the principal officer thereof. Rule 12(1) of the Income-Tax Rules states that the return of income shall, in the case of a company, be in Form No. 1 and be verified in the manner indicated therein. In view of Section 139 read with Section 140(c) of the Act the return has to be signed by the principal officer of the company. A statutory obligation is cast on the principal officer to sign the tax returns. The substitution of the words made under the new Amendment Act will not in any way alter the position with regard to the operation of the provisions of the Income-Tax Act as against a managing director of a company when he has signed the return of the company in such capacity. The effect of the amended Section 140(c) of the Act is that the companys return of income should be signed only by the managing director or by any director, when there is no managing director, and not by the secretary or the treasurer, who are however included within the meaning of "principal officer" under Section 2(35) of the Act. By the introduction of Section 278B by the Taxation Laws (Amendment) Act of 1975, with effect from 1st October, 1975, it is enacted that where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The effect of the new section is to make every person connected with the affairs of the company, apart from the managing director who has signed the return, liable to be proceeded against and punished14. We are in complete agreement with the reasonings and conclusion of the High Court. No other point was urged. | 0 | 2,665 | 505 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
to file the verified return. He also submitted that according to the newly introduced Sections 278B and 278C (introduced on 1st October, 1975) a director in the case of the company and a karta in the case of a Hindu Undivided Family, can be prosecuted, and, therefore, by virtue of the said new amendments, the legislature in its wisdom has thought it fit to bring the managing director also along with the company as accused person only by this amendment which takes effects from 1st October 1975, and this introduction of the amendment will go in support of the appellants contention that the legislature itself had not, during the relevant period in this case, intended the managing director to be included and so the managing director cannot be prosecuted at all in this case. If was urged that if the contention of the prosecution that the managing director can be prosecuted before 1st October, 1975 is correct, then there was no necessity for this amendment to fill up the lacuna, and, therefore, before 1st October, 1975, in view of Section 279(1A), the assessee alone can be prosecuted10. Learned counsel for the respondent in reply to this argument submitted that the main decision of the Supreme Court in Kapurchands case, 1969 AIR(SC) 682) (Supra) that the karta cannot be detained in a civil jail, rests on Section 222 which specifically uses the word "assessee" and, therefore, the conclusion arrived at in that case, while dealing with Section 222, cannot be availed of by the appellant in this case. Before the learned single Judge reliance was also placed on the decision of the Madras High Court in Inspecting Assistant Commissioner of Income-tax v. Chotabhai Javerbhai 1941 (9) ITR 604 : 1941 AIR(Mad) 941), wherein Horwill, J., while dealing with Section 52 of the Indian Income-tax Act, 1922 (corresponding to Section 277 of the 1961 Act), has held that the word "person" in that section does not necessarily mean the assessee and that it must be given its ordinary dictionary meaning and that it includes a person duly authorised 11. It appears that in view of the dictum of this Court in Kapurchands case, 1969 AIR(SC) 682)(Supra) we are unable to accept the arguments advanced by the learned counsel for the appellant. On the other hand we are of the view that the appellant cannot escape on the plea that the word "person" used in Section 277 refers only to an assessee but not the person who has made the verification on behalf of the said assessee 12. It has been found by the learned single Judge that the verification of the return which was signed by the appellant was signed by him in his capacity as principal officer. Learned counsel for the appellant submitted that Parliament has now, by the Taxation Laws (Amendment) Act of 1975, which took effect from 1st April, 1976, removed the expression "the principal officer" occurring in Section 140(c), insofar as it related to a company, and instead has substituted the words "the managing director ... or, where there is no managing director, by any Director thereof". It was thus contended that the substitution of the words "managing director" for the term "principal officer" is an indication to show that the expression "principal officer" will not relate to the managing director and that is why the above substitution has now taken place 13. We are afraid we cannot also agree with this submission of the learned counsel for the appellant. Section 2(35) of the Act defines the term "principal officer" and Section 2(20) of the Act defines the term "director". Section 2, sub-section (24) of the Companies Act defines the word "manager". At the relevant time Section 197A of the Companies Act provided that no company shall appoint or employ at the same time more than one of the following categories of managerial personnel, viz., the managing director and the manager. In the present case the appellant admittedly was the Managing Director of the Company and he was thus the principal officer thereof. Rule 12(1) of the Income-Tax Rules states that the return of income shall, in the case of a company, be in Form No. 1 and be verified in the manner indicated therein. In view of Section 139 read with Section 140(c) of the Act the return has to be signed by the principal officer of the company. A statutory obligation is cast on the principal officer to sign the tax returns. The substitution of the words made under the new Amendment Act will not in any way alter the position with regard to the operation of the provisions of the Income-Tax Act as against a managing director of a company when he has signed the return of the company in such capacity. The effect of the amended Section 140(c) of the Act is that the companys return of income should be signed only by the managing director or by any director, when there is no managing director, and not by the secretary or the treasurer, who are however included within the meaning of "principal officer" under Section 2(35) of the Act. By the introduction of Section 278B by the Taxation Laws (Amendment) Act of 1975, with effect from 1st October, 1975, it is enacted that where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The effect of the new section is to make every person connected with the affairs of the company, apart from the managing director who has signed the return, liable to be proceeded against and punished14. We are in complete agreement with the reasonings and conclusion of the High Court. No other point was urged.
### Response:
0
### Explanation:
We are afraid we cannot also agree with this submission of the learned counsel for the appellant. Section 2(35) of the Act defines the term "principal officer" and Section 2(20) of the Act defines the term "director". Section 2, sub-section (24) of the Companies Act defines the word "manager". At the relevant time Section 197A of the Companies Act provided that no company shall appoint or employ at the same time more than one of the following categories of managerial personnel, viz., the managing director and the manager. In the present case the appellant admittedly was the Managing Director of the Company and he was thus the principal officer thereof. Rule 12(1) of the Income-Tax Rules states that the return of income shall, in the case of a company, be in Form No. 1 and be verified in the manner indicated therein. In view of Section 139 read with Section 140(c) of the Act the return has to be signed by the principal officer of the company. A statutory obligation is cast on the principal officer to sign the tax returns. The substitution of the words made under the new Amendment Act will not in any way alter the position with regard to the operation of the provisions of the Income-Tax Act as against a managing director of a company when he has signed the return of the company in such capacity. The effect of the amended Section 140(c) of the Act is that the companys return of income should be signed only by the managing director or by any director, when there is no managing director, and not by the secretary or the treasurer, who are however included within the meaning of "principal officer" under Section 2(35) of the Act. By the introduction of Section 278B by the Taxation Laws (Amendment) Act of 1975, with effect from 1st October, 1975, it is enacted that where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly. The effect of the new section is to make every person connected with the affairs of the company, apart from the managing director who has signed the return, liable to be proceeded against and punished14. We are in complete agreement with the reasonings and conclusion of the High Court. No other point was urged.
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Kumaon Mandal Vikas Nigam Ltd Vs. Girja Shankat Pant | the judge was a director of a charity closely allied to A.I. and sharing, in this respect, A.I.s objects. Only in cases where a judge is taking an active role as trustee or director of a charity which is closely allied to and acting with a party to the litigation should a judge normally be concerned either to recuse himself or disclose the position to the parties. However, there may well be other exceptional cases in which the judge would be well advised to disclose a possible interest." Lord Hutton also in Pinochets case (supra) observed : "there could be cases where the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation." 26. Incidentally in Locabail, Locabail (U.K.) Ltd. v. Bayfield Properties Ltd., 2000 Q.B. 451, the Court of Appeal upon a detail analysis of the cited decision in Reg. v. Gough, 1993 A.C. 646, together with the Dimes case, (3 House of Lords Cases 759) : Pinochet case (supra), Australian High Courts decision in the case of re J.R.L., Ex parte C.J.L., 1986(161) CLR 342, as also the Federal Court in re Ebner 1999(161) A.L.R. 557 and on the decision of the Constitution Court of South Africa in President of the Republic of South Africa v. South African Rugby Football Union, 1999(4) S.A. 147, stated that it would be rather dangerous and futile to attempt a define or list the factors which may or may not give rise to a real danger of bias. The Court of Appeal continued to the effect that everything will depend upon facts which may include the nature of the issue to be decided. It further observed : "By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the cause; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such persons evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakuta v. Kelly, 1989(167) C.L.R. 568) or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat; every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be." 27. The Court of Appeal judgment in Locabail (supra) though apparently as noticed above sounded a different note but in fact, in more occasions than one in the judgment itself, it has been clarified that conceptually the issue of bias ought to be decided on the facts and circumstances of the individual case - a slight shift undoubtedly from the original thinking pertaining to the concept of bias to the effect that a mere apprehension of bias could otherwise be sufficient. 28. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom - In the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained. If on the other hand, the allegation pertaining to bias is rather fanciful and otherwise to avoid a particular court, tribunal or authority, question of declaring them to be unsustainable would not arise. The requirement is availability of positive and cogent evidence and it is in this context that we do record our concurrence with the view expressed by the Court of Appeal in Locabail case (supra).29. Having discussed the issue as above in the contextual facts, we do feel it expedient to record that the action of the Managing Director in the matter of withdrawal of authority as noticed above and subsequent introduction of charges, in particular, the list of the charges as noted above and the further factum of issuance of an eighteen page letter of termination on the self same date and within a few hours after the pretended hearing was given, cannot but be ascribed to be wholly and totally biased.30. On the wake of the aforesaid, we are unable to record our concurrencewith the submissions of the appellant. The judgment under appeal, in our view, cannot be faulted in any way whatsoever. | 0[ds]29. Having discussed the issue as above in the contextual facts, we do feel it expedient to record that the action of the Managing Director in the matter of withdrawal of authority as noticed above and subsequent introduction of charges, in particular, the list of the charges as noted above and the further factum of issuance of an eighteen page letter of termination on the self same date and within a few hours after the pretended hearing was given, cannot but be ascribed to be wholly and totally biased.30. On the wake of the aforesaid, we are unable to record our concurrencewith the submissions of the appellant. The judgment under appeal, in our view, cannot be faulted in any way whatsoever. | 0 | 8,141 | 138 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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the judge was a director of a charity closely allied to A.I. and sharing, in this respect, A.I.s objects. Only in cases where a judge is taking an active role as trustee or director of a charity which is closely allied to and acting with a party to the litigation should a judge normally be concerned either to recuse himself or disclose the position to the parties. However, there may well be other exceptional cases in which the judge would be well advised to disclose a possible interest." Lord Hutton also in Pinochets case (supra) observed : "there could be cases where the interest of the judge in the subject matter of the proceedings arising from his strong commitment to some cause or belief or his association with a person or body involved in the proceedings could shake public confidence in the administration of justice as much as a shareholding (which might be small) in a public company involved in the litigation." 26. Incidentally in Locabail, Locabail (U.K.) Ltd. v. Bayfield Properties Ltd., 2000 Q.B. 451, the Court of Appeal upon a detail analysis of the cited decision in Reg. v. Gough, 1993 A.C. 646, together with the Dimes case, (3 House of Lords Cases 759) : Pinochet case (supra), Australian High Courts decision in the case of re J.R.L., Ex parte C.J.L., 1986(161) CLR 342, as also the Federal Court in re Ebner 1999(161) A.L.R. 557 and on the decision of the Constitution Court of South Africa in President of the Republic of South Africa v. South African Rugby Football Union, 1999(4) S.A. 147, stated that it would be rather dangerous and futile to attempt a define or list the factors which may or may not give rise to a real danger of bias. The Court of Appeal continued to the effect that everything will depend upon facts which may include the nature of the issue to be decided. It further observed : "By contrast, a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case; or if the judge were closely acquainted with any member of the public involved in the case, particularly if the credibility of that individual could be significant in the decision of the cause; or if, in a case where the credibility of any individual were an issue to be decided by the judge, he had in a previous case rejected the evidence of that person in such outspoken terms as to throw doubt on his ability to approach such persons evidence with an open mind on any later occasion; or if on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on his ability to try the issue with an objective judicial mind (see Vakuta v. Kelly, 1989(167) C.L.R. 568) or if, for any other reason, there were real ground for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment to bear on the issues before him. The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat; every application must be decided on the facts and circumstances of the individual case. The greater the passage of time between the event relied on as showing a danger of bias and the case in which the objection is raised, the weaker (other things being equal) the objection will be." 27. The Court of Appeal judgment in Locabail (supra) though apparently as noticed above sounded a different note but in fact, in more occasions than one in the judgment itself, it has been clarified that conceptually the issue of bias ought to be decided on the facts and circumstances of the individual case - a slight shift undoubtedly from the original thinking pertaining to the concept of bias to the effect that a mere apprehension of bias could otherwise be sufficient. 28. The test, therefore, is as to whether a mere apprehension of bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be collated and necessary conclusion drawn therefrom - In the event however the conclusion is otherwise inescapable that there is existing a real danger of bias, the administrative action cannot be sustained. If on the other hand, the allegation pertaining to bias is rather fanciful and otherwise to avoid a particular court, tribunal or authority, question of declaring them to be unsustainable would not arise. The requirement is availability of positive and cogent evidence and it is in this context that we do record our concurrence with the view expressed by the Court of Appeal in Locabail case (supra).29. Having discussed the issue as above in the contextual facts, we do feel it expedient to record that the action of the Managing Director in the matter of withdrawal of authority as noticed above and subsequent introduction of charges, in particular, the list of the charges as noted above and the further factum of issuance of an eighteen page letter of termination on the self same date and within a few hours after the pretended hearing was given, cannot but be ascribed to be wholly and totally biased.30. On the wake of the aforesaid, we are unable to record our concurrencewith the submissions of the appellant. The judgment under appeal, in our view, cannot be faulted in any way whatsoever.
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29. Having discussed the issue as above in the contextual facts, we do feel it expedient to record that the action of the Managing Director in the matter of withdrawal of authority as noticed above and subsequent introduction of charges, in particular, the list of the charges as noted above and the further factum of issuance of an eighteen page letter of termination on the self same date and within a few hours after the pretended hearing was given, cannot but be ascribed to be wholly and totally biased.30. On the wake of the aforesaid, we are unable to record our concurrencewith the submissions of the appellant. The judgment under appeal, in our view, cannot be faulted in any way whatsoever.
|
Nehru Motor Transport Cooperative Society Ltd., And Others Vs. The State Of Rajasthan And Others | is invalid. It is not disputed that the Legal Remembrancer did give a hearing to the objectors after the order of the High Court. What is urged however is that the objectors should have been allowed to give evidence afresh before the Legal Remembrancer finally disposed of the objections. We are of opinion that though the result of the order of the High Court was to set aside the order of the Legal Remembrancer dated May 31, 1962, it cannot be said that the order of the High Court wiped out the evidence which the objectors had given before the Legal Remembrancer on the first occasion. We have already mentioned the two grounds on which the High Court set aside the final scheme as published on June 16, 1962, and those grounds had nothing to do with the evidence which was already produced. In our opinion, it was open to the Legal Remembrancer to take that evidence into account and it was not necessary that evidence should be given again, particularly when no fresh issues arose; nor was the Legal Remembrancer bound to take fresh evidence simply because the final scheme as published on June 16, 1962 had been set aside on account of certain technical and Legal defects. When the objectors had been given full opportunity to lead evidence on the previous occasion which was still there for the Legal Remembrancer to take into account, it was sufficient for the Legal Remembrancer, to hear the objectors arguments in full after the order of the High Court in the light of the observations made by it, and the petitioners therefore cannot have any grievance on the score that they were not given any hearing after the order of the High Court. If it is borne in mind that the order passed by the High Court in the proceedings was in the nature of a remand order, all these objections will plainly be untenable.As to the contention that the Rules do not provide for compelling the attendance of witnesses and all that the Legal Remembrancer can do is to summon witnesses who may or may not appear in answer to the summonses, it is enough to say that the proceedings before the Legal Remembrancer though quasi-judicial are not exactly like proceedings in court. In proceedings of this kind, it may very well be concluded when a witness is summoned and does not appear, that he does not wish to give evidence, and that may be the reason why no provision is made in the Rules for any coercive process. We think in the circumstances of the hearing to be given by the Legal Remembrancer, it is enough if he takes evidence of the witnesses whom the objectors bring before him themselves and if he helps them to secure their attendance by issue of summonses. But the fact that the Rules do not provide for coercive processes does not mean in the special circumstances of the hearing before the Legal Remembrancer that there can be no proper hearing without such coercive processes. We are therefore of opinion that the Legal Remembrancer did give a hearing to the objectors after the order of the High Court and that in the circumstances that hearing was a proper and sufficient hearing. The challenge therefore to the validity of the scheme as published on June 16, 1962, on this ground be rejected.Re. (5).7. Lastly we come to the question of discrimination. The argument is based on the fact that the twelve partially overlapping routes to which we have already alluded have not been touched by the scheme. That is undoubtedly so. We have already pointed out that in the case of some of these routes one terminus is on the Jodhpur-Bilara-Beawar-Ajmer road while the other is not on this road. In some cases neither termini is on this road and only a part of the route overlaps this road. The argument is that as the permit-holders on these partially overlapping routes have not been touched by the scheme, there is discrimination inasmuch as the permit-holders on the three routes which were totally overlapping the route which was being taken over, have been completely excluded. We do not think that this amounts to discrimination. It may be pointed out that under s. 68C it is open to take over any area or route to the complete or partial exclusion of other persons. Therefore, it was open to the State Government to take over this route only and exclude those who may be playing completely on this route or parts thereof and unless it can be shown that others who are similarly situated have not been excluded from the scheme there can be no question of discrimination. In our opinion it cannot be said that those permit-holders whose routes were completely covered by the route taken over stand on the same footing as those whose routes were only partially covered by the route taken over. It may very well have been considered that in the first instance only those permit-holders will be excluded whose routes are completely covered by the routes taken over, and if that is permissible under the law it cannot be said that that would amount to discrimination when there is an obvious distinction between routes completely covered by the route to be taken over and the routes partially covered by the route to be taken over. We have been informed that since this scheme was approved steps have been taken even to exclude those permit-holders whose routes are partially covered by making their permits ineffective over the overlapping part of the route. But that apart, we can see no ground to uphold the plea of discrimination in the present case, for routes completely covered by the route taken over stand on a different footing from the routes only partially covered. The contention therefore that the final scheme as published on August 31, 1962 is bad because it discriminates in this manner, must be rejected. | 0[ds]It was therefore in our opinion unnecessary to bring in the question of the twelve partially overlapping routes when objections to this draft scheme were being considered. There is no doubt that the Roadways was also responsible for the introduction of this confusion for it seems to have been urged on its behalf, when the objections were considered on the first occasion, that these partially overlapping routes were also meant to be covered by the draft scheme, even though they were not mentioned in the draft scheme as required by r. 3 of the Rules and no notice had been issued to the permit-holders of thoserespect, it seems to us that this observation of the High Court is not correct. If the scheme did not include the partially overlapping routes - as it undoubtedly did not, in spite of what the objectors might have said and what the Roadways might have maintained before the Legal Remembrancer on the first occasion - it was not open to the Legal Remembrancer to include these overlapping routes in the scheme at all and he could not do so even if he had given notice to the permit-holders on these overlapping routes. The question therefore whether the final approval of the draft scheme as published on August 31, 1962 is an approval of a part of the scheme only, leaving another part of the scheme unapproved and therefore liable to enforcement later, can only admit of one answer, namely, that the approval was of the scheme as acontention therefore on behalf of the petitioners that part of the scheme has been approved and the rest of it has been left unapproved, can have no force on the facts of the present case. The twelve overlapping routes were never meant to be affected by the scheme which left them untouched. The contention that only part of the scheme has been approved appears to have been based on the fact that these routes have not been rendered ineffective as to the overlapping part. But as these routes were never included in the draft scheme, the approval given to the draft scheme without touching these routes cannot in the circumstances be called an approval of a part of the scheme.Nor do we think that there is any force in the contention that the Legal Remembrancer abdicated his judgment when going into the question on the second occasion after the judgment of the High Court. The order of the Legal Remembrancer dated August 17, 1962 shows that he reconsidered the entire matter after hearing further arguments and there can be no doubt that he was exercising his own judgment when he finally decided to approve the draft scheme with certain modification. What the Legal Remembrancer has done in this case is to reappraise the evidence in the light of the legal position indicated by the High Court. Nor do we think that there is any substance in the argument that the order of the Legal Remembrancer dated August 17, 1962, is a review of his earlier order dated May 31, 1962. No question of review of that order arises for that order was in effect set aside when the High Court set aside the final scheme as published on June 16, 1962. It is true that that publication made certain further modifications into the scheme as approved by the Legal Remembrancer but that in our opinion makes to difference to the fact that the order of the High Court setting aside the final scheme as published on June 16, 1962 put an end to the order of the Legal Remembrancer dated May 31, 1962 also. This argument as to review has been raised because of the observation in the judgment of the High Court that the scheme as finally published on June 16, 1962 was not the decision of the Legal Remembrancer because of the changes made in it by the State Government and therefore it was open to him to modify it, though he might have signed his decision and pronounced it. With respect, we consider that this observation is not correct. It may be that the State Government had no authority to modify the decision of the Legal Remembrancer but when the High Court set aside the finally approved scheme as published on June 16, 1962, it meant the decision of the Legal Remembrancer dated May 31, 1962, also came to an end, for the final scheme as published on June 16, 1962 was undoubtedly based on it, even though there were further changes in that decision at the time of publication. In the present case the order of the High Court was analogous to a remand as understood in courts of law. What the Legal Remembrancer did on the second occasion was to reappraise the evidence in the light of the law laid down by the High Court. Therefore, it cannot be said that the decision of the Legal Remembrancer on August 17, 1962, is a review of his earlier decision dated May 31, 1962. It must be treated as a fresh decision, after the High Court had set aside the final scheme as published on June 16, 1962. Though therefore the proposition put forward on behalf of the petitioners may be accepted as correct, there is no scope for applying the principles contained in these propositions to the facts of this case. The contention therefore that the scheme as finally published on August 31, 1962 is bad because it militates against these principles must beare of opinion that though the result of the order of the High Court was to set aside the order of the Legal Remembrancer dated May 31, 1962, it cannot be said that the order of the High Court wiped out the evidence which the objectors had given before the Legal Remembrancer on the first occasion. We have already mentioned the two grounds on which the High Court set aside the final scheme as published on June 16, 1962, and those grounds had nothing to do with the evidence which was already produced. In our opinion, it was open to the Legal Remembrancer to take that evidence into account and it was not necessary that evidence should be given again, particularly when no fresh issues arose; nor was the Legal Remembrancer bound to take fresh evidence simply because the final scheme as published on June 16, 1962 had been set aside on account of certain technical and Legal defects. When the objectors had been given full opportunity to lead evidence on the previous occasion which was still there for the Legal Remembrancer to take into account, it was sufficient for the Legal Remembrancer, to hear the objectors arguments in full after the order of the High Court in the light of the observations made by it, and the petitioners therefore cannot have any grievance on the score that they were not given any hearing after the order of the High Court. If it is borne in mind that the order passed by the High Court in the proceedings was in the nature of a remand order, all these objections will plainly be untenable.As to the contention that the Rules do not provide for compelling the attendance of witnesses and all that the Legal Remembrancer can do is to summon witnesses who may or may not appear in answer to the summonses, it is enough to say that the proceedings before the Legal Remembrancer though quasi-judicial are not exactly like proceedings in court. In proceedings of this kind, it may very well be concluded when a witness is summoned and does not appear, that he does not wish to give evidence, and that may be the reason why no provision is made in the Rules for any coercive process. We think in the circumstances of the hearing to be given by the Legal Remembrancer, it is enough if he takes evidence of the witnesses whom the objectors bring before him themselves and if he helps them to secure their attendance by issue of summonses. But the fact that the Rules do not provide for coercive processes does not mean in the special circumstances of the hearing before the Legal Remembrancer that there can be no proper hearing without such coercive processes. We are therefore of opinion that the Legal Remembrancer did give a hearing to the objectors after the order of the High Court and that in the circumstances that hearing was a proper and sufficient hearing. The challenge therefore to the validity of the scheme as published on June 16, 1962, on this ground bewe come to the question of discrimination. The argument is based on the fact that the twelve partially overlapping routes to which we have already alluded have not been touched by the scheme. That is undoubtedly so. We have already pointed out that in the case of some of these routes one terminus is on the Jodhpur-Bilara-Beawar-Ajmer road while the other is not on this road. In some cases neither termini is on this road and only a part of the route overlaps this road. The argument is that as the permit-holders on these partially overlapping routes have not been touched by the scheme, there is discrimination inasmuch as the permit-holders on the three routes which were totally overlapping the route which was being taken over, have been completely excluded. We do not think that this amounts to discrimination. It may be pointed out that under s. 68C it is open to take over any area or route to the complete or partial exclusion of other persons. Therefore, it was open to the State Government to take over this route only and exclude those who may be playing completely on this route or parts thereof and unless it can be shown that others who are similarly situated have not been excluded from the scheme there can be no question of discrimination. In our opinion it cannot be said that those permit-holders whose routes were completely covered by the route taken over stand on the same footing as those whose routes were only partially covered by the route taken over. It may very well have been considered that in the first instance only those permit-holders will be excluded whose routes are completely covered by the routes taken over, and if that is permissible under the law it cannot be said that that would amount to discrimination when there is an obvious distinction between routes completely covered by the route to be taken over and the routes partially covered by the route to be taken over. We have been informed that since this scheme was approved steps have been taken even to exclude those permit-holders whose routes are partially covered by making their permits ineffective over the overlapping part of the route. But that apart, we can see no ground to uphold the plea of discrimination in the present case, for routes completely covered by the route taken over stand on a different footing from the routes only partially covered. The contention therefore that the final scheme as published on August 31, 1962 is bad because it discriminates in this manner, must be rejected. | 0 | 4,196 | 1,983 | ### Instruction:
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is invalid. It is not disputed that the Legal Remembrancer did give a hearing to the objectors after the order of the High Court. What is urged however is that the objectors should have been allowed to give evidence afresh before the Legal Remembrancer finally disposed of the objections. We are of opinion that though the result of the order of the High Court was to set aside the order of the Legal Remembrancer dated May 31, 1962, it cannot be said that the order of the High Court wiped out the evidence which the objectors had given before the Legal Remembrancer on the first occasion. We have already mentioned the two grounds on which the High Court set aside the final scheme as published on June 16, 1962, and those grounds had nothing to do with the evidence which was already produced. In our opinion, it was open to the Legal Remembrancer to take that evidence into account and it was not necessary that evidence should be given again, particularly when no fresh issues arose; nor was the Legal Remembrancer bound to take fresh evidence simply because the final scheme as published on June 16, 1962 had been set aside on account of certain technical and Legal defects. When the objectors had been given full opportunity to lead evidence on the previous occasion which was still there for the Legal Remembrancer to take into account, it was sufficient for the Legal Remembrancer, to hear the objectors arguments in full after the order of the High Court in the light of the observations made by it, and the petitioners therefore cannot have any grievance on the score that they were not given any hearing after the order of the High Court. If it is borne in mind that the order passed by the High Court in the proceedings was in the nature of a remand order, all these objections will plainly be untenable.As to the contention that the Rules do not provide for compelling the attendance of witnesses and all that the Legal Remembrancer can do is to summon witnesses who may or may not appear in answer to the summonses, it is enough to say that the proceedings before the Legal Remembrancer though quasi-judicial are not exactly like proceedings in court. In proceedings of this kind, it may very well be concluded when a witness is summoned and does not appear, that he does not wish to give evidence, and that may be the reason why no provision is made in the Rules for any coercive process. We think in the circumstances of the hearing to be given by the Legal Remembrancer, it is enough if he takes evidence of the witnesses whom the objectors bring before him themselves and if he helps them to secure their attendance by issue of summonses. But the fact that the Rules do not provide for coercive processes does not mean in the special circumstances of the hearing before the Legal Remembrancer that there can be no proper hearing without such coercive processes. We are therefore of opinion that the Legal Remembrancer did give a hearing to the objectors after the order of the High Court and that in the circumstances that hearing was a proper and sufficient hearing. The challenge therefore to the validity of the scheme as published on June 16, 1962, on this ground be rejected.Re. (5).7. Lastly we come to the question of discrimination. The argument is based on the fact that the twelve partially overlapping routes to which we have already alluded have not been touched by the scheme. That is undoubtedly so. We have already pointed out that in the case of some of these routes one terminus is on the Jodhpur-Bilara-Beawar-Ajmer road while the other is not on this road. In some cases neither termini is on this road and only a part of the route overlaps this road. The argument is that as the permit-holders on these partially overlapping routes have not been touched by the scheme, there is discrimination inasmuch as the permit-holders on the three routes which were totally overlapping the route which was being taken over, have been completely excluded. We do not think that this amounts to discrimination. It may be pointed out that under s. 68C it is open to take over any area or route to the complete or partial exclusion of other persons. Therefore, it was open to the State Government to take over this route only and exclude those who may be playing completely on this route or parts thereof and unless it can be shown that others who are similarly situated have not been excluded from the scheme there can be no question of discrimination. In our opinion it cannot be said that those permit-holders whose routes were completely covered by the route taken over stand on the same footing as those whose routes were only partially covered by the route taken over. It may very well have been considered that in the first instance only those permit-holders will be excluded whose routes are completely covered by the routes taken over, and if that is permissible under the law it cannot be said that that would amount to discrimination when there is an obvious distinction between routes completely covered by the route to be taken over and the routes partially covered by the route to be taken over. We have been informed that since this scheme was approved steps have been taken even to exclude those permit-holders whose routes are partially covered by making their permits ineffective over the overlapping part of the route. But that apart, we can see no ground to uphold the plea of discrimination in the present case, for routes completely covered by the route taken over stand on a different footing from the routes only partially covered. The contention therefore that the final scheme as published on August 31, 1962 is bad because it discriminates in this manner, must be rejected.
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the proposition put forward on behalf of the petitioners may be accepted as correct, there is no scope for applying the principles contained in these propositions to the facts of this case. The contention therefore that the scheme as finally published on August 31, 1962 is bad because it militates against these principles must beare of opinion that though the result of the order of the High Court was to set aside the order of the Legal Remembrancer dated May 31, 1962, it cannot be said that the order of the High Court wiped out the evidence which the objectors had given before the Legal Remembrancer on the first occasion. We have already mentioned the two grounds on which the High Court set aside the final scheme as published on June 16, 1962, and those grounds had nothing to do with the evidence which was already produced. In our opinion, it was open to the Legal Remembrancer to take that evidence into account and it was not necessary that evidence should be given again, particularly when no fresh issues arose; nor was the Legal Remembrancer bound to take fresh evidence simply because the final scheme as published on June 16, 1962 had been set aside on account of certain technical and Legal defects. When the objectors had been given full opportunity to lead evidence on the previous occasion which was still there for the Legal Remembrancer to take into account, it was sufficient for the Legal Remembrancer, to hear the objectors arguments in full after the order of the High Court in the light of the observations made by it, and the petitioners therefore cannot have any grievance on the score that they were not given any hearing after the order of the High Court. If it is borne in mind that the order passed by the High Court in the proceedings was in the nature of a remand order, all these objections will plainly be untenable.As to the contention that the Rules do not provide for compelling the attendance of witnesses and all that the Legal Remembrancer can do is to summon witnesses who may or may not appear in answer to the summonses, it is enough to say that the proceedings before the Legal Remembrancer though quasi-judicial are not exactly like proceedings in court. In proceedings of this kind, it may very well be concluded when a witness is summoned and does not appear, that he does not wish to give evidence, and that may be the reason why no provision is made in the Rules for any coercive process. We think in the circumstances of the hearing to be given by the Legal Remembrancer, it is enough if he takes evidence of the witnesses whom the objectors bring before him themselves and if he helps them to secure their attendance by issue of summonses. But the fact that the Rules do not provide for coercive processes does not mean in the special circumstances of the hearing before the Legal Remembrancer that there can be no proper hearing without such coercive processes. We are therefore of opinion that the Legal Remembrancer did give a hearing to the objectors after the order of the High Court and that in the circumstances that hearing was a proper and sufficient hearing. The challenge therefore to the validity of the scheme as published on June 16, 1962, on this ground bewe come to the question of discrimination. The argument is based on the fact that the twelve partially overlapping routes to which we have already alluded have not been touched by the scheme. That is undoubtedly so. We have already pointed out that in the case of some of these routes one terminus is on the Jodhpur-Bilara-Beawar-Ajmer road while the other is not on this road. In some cases neither termini is on this road and only a part of the route overlaps this road. The argument is that as the permit-holders on these partially overlapping routes have not been touched by the scheme, there is discrimination inasmuch as the permit-holders on the three routes which were totally overlapping the route which was being taken over, have been completely excluded. We do not think that this amounts to discrimination. It may be pointed out that under s. 68C it is open to take over any area or route to the complete or partial exclusion of other persons. Therefore, it was open to the State Government to take over this route only and exclude those who may be playing completely on this route or parts thereof and unless it can be shown that others who are similarly situated have not been excluded from the scheme there can be no question of discrimination. In our opinion it cannot be said that those permit-holders whose routes were completely covered by the route taken over stand on the same footing as those whose routes were only partially covered by the route taken over. It may very well have been considered that in the first instance only those permit-holders will be excluded whose routes are completely covered by the routes taken over, and if that is permissible under the law it cannot be said that that would amount to discrimination when there is an obvious distinction between routes completely covered by the route to be taken over and the routes partially covered by the route to be taken over. We have been informed that since this scheme was approved steps have been taken even to exclude those permit-holders whose routes are partially covered by making their permits ineffective over the overlapping part of the route. But that apart, we can see no ground to uphold the plea of discrimination in the present case, for routes completely covered by the route taken over stand on a different footing from the routes only partially covered. The contention therefore that the final scheme as published on August 31, 1962 is bad because it discriminates in this manner, must be rejected.
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Electronics Corporation Of India Ltd Vs. Elec. Corp. Of India Service Eng. Union | a consideration of the facts and the circumstances of this case we direct that the contracts which have been terminated already should be renewed on the same terms and the petitioners will be permitted to work on the basis of this contract. As regards others whose contracts are yet to and their contracts will be renewed as soon as the present terms end and they will also be permitted to work on the basis of the same terms of the contract. We do not find any basis for the contention that the Agreement-in-question are contracts of service.If there is any shortage of work then the available work will be equally distributed amongst the service engineers. Fresh appointments may be considered if the quantum of work justifies.The writ petition pending before the High Court are disposed of.The special leave petition is disposed of accordingly.” 13. Though clarification was later on sought for and this Court clarified that where the contracts are different and contain clauses which exclude the application of the decision in the earlier batch, they should not be held to be bound by the original decision. It is accepted that against the decision in writ petitions filed by almost similarly situated persons before the Delhi High Court, which dismissed the claim by order dated 15.3.1989 in C.W. No. 2855/88 this Court was moved and order dated 16.8.1989 was passed. Though the High Court in the present judgment referred to a decision of the learned Single Judge of the Calcutta High Court to hold that employer employee relationship existed, the Division Bench of the said High Court set aside the order of the learned Single Judge by its order dated 26.4.2004 in M.A.T. No. 1427 of 1998. It is fairly accepted by learned Counsel for the respondent that there has been no further challenge to the orders passed by the Division Bench of the Calcutta High Court. The Tribunal rightly noted the relevant features and observed after making a comparison of the duties of claimants and the regular employees that employer employee-relationship did not exist. 14. A very important conclusion of the Tribunal was that there are no regular posts like Service Engineers or Licensees or retainer in the company and such contracts are entered into by the Company to attend to additional work as and when required. It was further noted that there is a definite procedure for appointment of personnel of the appellant-Company. It was pointed out that the question of designating the claimants as Tradesmen or Technical Officer on permanent basis in the Company does not arise as they have neither requisite qualifications for holding any of the above posts nor were they employees of the Company and they have not been employed after following the procedure required for appointment of the personnel of the Company. Further, technical officers cannot claim to be workmen under the Act as they did mainly supervisory duties and drew wages exceeding Rs. 1,600/- p.m. The Company was entering into individual contracts with its retainers and there was no compulsion whatsoever to enter into the contract year after year. As a matter of fact, it was note that some of the workmen of the Corporation opted for working in terms of those individual contracts as they found the same to be more lucrative and paying rather than being regular employees. There is no denial of this position by learned Counsel for the respondent. 15. With reference to the evidence of the witness examined by the claimants it is clear that even he (Mr. Kasbekar) agreed that the service engineers and the licensees were independent contractors. The agreement signed by them makes the position clear. He accepted that no appointment letter was ever given by the company. They have not enrolled their names with the Employment Exchange. The first agreement was signed in 1978. He joined the company along with others in view of the advertisement regarding retainership. He also accepted that seven persons as noted above were previously working in the company, but left the service and joined as retainers. They were aware at the time of signing the agreement about the service conditions, salary, benefits given to regular workers.16. It was fairly accepted and admitted that taking into consideration that retainership was more beneficial than the regular service employees, all the seven employees left the service of the company and accepted the retainership. It was also accepted that there were several retainers who were working in several places like Delhi, Calcutta, Lucknow. One significant admission was that complaints of T.V. sets were made by the customers to the appellant company. The retainers used to visit the company for collecting complaints, collecting components, for receiving payments and for repairing the calledback sets. Except for these reasons, they were not required to go to the company.17. A further significant admission was that there were several types of employees working in the company whose work cannot be compared with that of the retainers. Whenever the retainers went on leave they used to provide a substitute to the company. The Tribunal also noted that the witness has admitted that the scheme was for retainership and there was no question of his asking for absorption as regular employees. Till 1989-90 they were getting more income than the regular employees and, therefore, had not sought for regularization. But since 1989-90 they found the regular employees were getting more salary than their income, and, therefore, they claimed regularization. Further 2.24% deduction towards Income- tax was made from the bills of the retainers in view of the contract and that was not applicable to the case of salaries of the regular employees. He accepted that he did not know about the nature of work and working hours of the regular employees. Factually, it was found that the retainers were getting Rs. 90/- per set. The agreement was on job contract basis. In Clause 15 of the agreement, there was a provision for arbitration under the Indian Arbitration Act, 1940. | 1[ds]8. There are no regular posts like Service Engineers or the Licensees or Retainers in the company and such contracts are entered into by the Company to attend the additional work as and when required in accordance with terms and conditions of the contracts. The regular employees are governed by the service condition as applicable to the Company, whereas the Service Engineers/Licensees are governed by the individual contracts signed by them with the Company. It is quite evident that service conditions under which the regular employees of the Company function are totally different and incomparable and, therefore, there cannot be similar wages for different kind of work under different conditions applicable to different categories of persons. So the demand of regularization of the employment of the Service Engineers is not maintainable. They were only required to attend the complaints received in respect of T.V. sets allotted to them and they were not doing any other work in connection with the said sets, whereas the regular employees of the company are required to do other work in addition to the servicing of the T.V. sets manufactured by the Company. The terms of the employment of the regular employees of the company are governed by the standing orders of the Company under the Industrial Employment (Standing Orders) Act as well as the provisions of the Act whereas the terms of the employment of the Service Engineers/Licensees are governed in terms of individual contracts entered into by the Company with them. Assuming without admitting that the Service Engineers are required to be absorbed by the Company, then the same also is practically impossible for the Company to implement, as the Company is the Central Government Undertaking, and it is governed by the directions of the Government. Regular employees are required to work for fixed and regular hours. The Service Engineers/Licensees were not required to adhere to follow any specific schedule or routine. The Service Engineers cannot claim any regularization or absorption in the Company and, hence they are not entitled to parity of wage scales and other benefits which are provided to the regular employees of the Company. The Service Engineers are required to work as per their convenience without any interference of whatsoever nature from the Company. It is quite evident that the nature of duties performed by the regular employees of the Company and Service Engineers are quite different and distinct and, the same cannot be compared. It is submitted that regular employees were totally at the disposal of the Company during their duty hours and they were under its direct supervision, control and management, whereas the Service Engineers/Licensees were not under any such supervision, control or management and, so also they were required to work as per their convenience and, their services were not available to the Company during any fixed or particular hours or as per its convenience.It is not in dispute that the claimants were retained for a very long period of time by the appellant on the basis of a contract entered into between them and the company. Dispute was raised in respect of permanency, absorption, regularization and pay scale only in 1992 and, therefore, appeared to be an after-thought and a highly belated claim. No reason was set out as to why such belated demand was raised. That itself was indicative of the fact that the concerned persons were of the view that they were retainers and did not have any master and servant relationship with the company. The agreements indicate that they were entered into for a period of few months. A minimum 250 sets in a year was allotted to each retainer. The agreement to appoint as Service Engineers/Licensees as retainer contains some clauses which throw considerable light.A very important conclusion of the Tribunal was that there are no regular posts like Service Engineers or Licensees or retainer in the company and such contracts are entered into by the Company to attend to additional work as and when required. It was further noted that there is a definite procedure for appointment of personnel of the appellant-Company. It was pointed out that the question of designating the claimants as Tradesmen or Technical Officer on permanent basis in the Company does not arise as they have neither requisite qualifications for holding any of the above posts nor were they employees of the Company and they have not been employed after following the procedure required for appointment of the personnel of the Company. Further, technical officers cannot claim to be workmen under the Act as they did mainly supervisory duties and drew wages exceeding Rs. 1,600/- p.m. The Company was entering into individual contracts with its retainers and there was no compulsion whatsoever to enter into the contract year after year. As a matter of fact, it was note that some of the workmen of the Corporation opted for working in terms of those individual contracts as they found the same to be more lucrative and paying rather than being regular employees. There is no denial of this position by learned Counsel for the respondent.With reference to the evidence of the witness examined by the claimants it is clear that even he (Mr. Kasbekar) agreed that the service engineers and the licensees were independent contractors. The agreement signed by them makes the position clear. He accepted that no appointment letter was ever given by the company. They have not enrolled their names with the Employment Exchange. The first agreement was signed in 1978. He joined the company along with others in view of the advertisement regarding retainership. He also accepted that seven persons as noted above were previously working in the company, but left the service and joined as retainers. They were aware at the time of signing the agreement about the service conditions, salary, benefits given to regular workers.16. It was fairly accepted and admitted that taking into consideration that retainership was more beneficial than the regular service employees, all the seven employees left the service of the company and accepted the retainership. It was also accepted that there were several retainers who were working in several places like Delhi, Calcutta, Lucknow. One significant admission was that complaints of T.V. sets were made by the customers to the appellant company. The retainers used to visit the company for collecting complaints, collecting components, for receiving payments and for repairing the calledback sets. Except for these reasons, they were not required to go to the company.17. A further significant admission was that there were several types of employees working in the company whose work cannot be compared with that of the retainers. Whenever the retainers went on leave they used to provide a substitute to the company. The Tribunal also noted that the witness has admitted that the scheme was for retainership and there was no question of his asking for absorption as regular employees. Till 1989-90 they were getting more income than the regular employees and, therefore, had not sought for regularization. But since 1989-90 they found the regular employees were getting more salary than their income, and, therefore, they claimed regularization. Further 2.24% deduction towards Income- tax was made from the bills of the retainers in view of the contract and that was not applicable to the case of salaries of the regular employees. He accepted that he did not know about the nature of work and working hours of the regular employees. Factually, it was found that the retainers were getting Rs. 90/- per set. The agreement was on job contract basis. In Clause 15 of the agreement, there was a provision for arbitration under the Indian Arbitration Act, 1940. | 1 | 3,273 | 1,379 | ### 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:
a consideration of the facts and the circumstances of this case we direct that the contracts which have been terminated already should be renewed on the same terms and the petitioners will be permitted to work on the basis of this contract. As regards others whose contracts are yet to and their contracts will be renewed as soon as the present terms end and they will also be permitted to work on the basis of the same terms of the contract. We do not find any basis for the contention that the Agreement-in-question are contracts of service.If there is any shortage of work then the available work will be equally distributed amongst the service engineers. Fresh appointments may be considered if the quantum of work justifies.The writ petition pending before the High Court are disposed of.The special leave petition is disposed of accordingly.” 13. Though clarification was later on sought for and this Court clarified that where the contracts are different and contain clauses which exclude the application of the decision in the earlier batch, they should not be held to be bound by the original decision. It is accepted that against the decision in writ petitions filed by almost similarly situated persons before the Delhi High Court, which dismissed the claim by order dated 15.3.1989 in C.W. No. 2855/88 this Court was moved and order dated 16.8.1989 was passed. Though the High Court in the present judgment referred to a decision of the learned Single Judge of the Calcutta High Court to hold that employer employee relationship existed, the Division Bench of the said High Court set aside the order of the learned Single Judge by its order dated 26.4.2004 in M.A.T. No. 1427 of 1998. It is fairly accepted by learned Counsel for the respondent that there has been no further challenge to the orders passed by the Division Bench of the Calcutta High Court. The Tribunal rightly noted the relevant features and observed after making a comparison of the duties of claimants and the regular employees that employer employee-relationship did not exist. 14. A very important conclusion of the Tribunal was that there are no regular posts like Service Engineers or Licensees or retainer in the company and such contracts are entered into by the Company to attend to additional work as and when required. It was further noted that there is a definite procedure for appointment of personnel of the appellant-Company. It was pointed out that the question of designating the claimants as Tradesmen or Technical Officer on permanent basis in the Company does not arise as they have neither requisite qualifications for holding any of the above posts nor were they employees of the Company and they have not been employed after following the procedure required for appointment of the personnel of the Company. Further, technical officers cannot claim to be workmen under the Act as they did mainly supervisory duties and drew wages exceeding Rs. 1,600/- p.m. The Company was entering into individual contracts with its retainers and there was no compulsion whatsoever to enter into the contract year after year. As a matter of fact, it was note that some of the workmen of the Corporation opted for working in terms of those individual contracts as they found the same to be more lucrative and paying rather than being regular employees. There is no denial of this position by learned Counsel for the respondent. 15. With reference to the evidence of the witness examined by the claimants it is clear that even he (Mr. Kasbekar) agreed that the service engineers and the licensees were independent contractors. The agreement signed by them makes the position clear. He accepted that no appointment letter was ever given by the company. They have not enrolled their names with the Employment Exchange. The first agreement was signed in 1978. He joined the company along with others in view of the advertisement regarding retainership. He also accepted that seven persons as noted above were previously working in the company, but left the service and joined as retainers. They were aware at the time of signing the agreement about the service conditions, salary, benefits given to regular workers.16. It was fairly accepted and admitted that taking into consideration that retainership was more beneficial than the regular service employees, all the seven employees left the service of the company and accepted the retainership. It was also accepted that there were several retainers who were working in several places like Delhi, Calcutta, Lucknow. One significant admission was that complaints of T.V. sets were made by the customers to the appellant company. The retainers used to visit the company for collecting complaints, collecting components, for receiving payments and for repairing the calledback sets. Except for these reasons, they were not required to go to the company.17. A further significant admission was that there were several types of employees working in the company whose work cannot be compared with that of the retainers. Whenever the retainers went on leave they used to provide a substitute to the company. The Tribunal also noted that the witness has admitted that the scheme was for retainership and there was no question of his asking for absorption as regular employees. Till 1989-90 they were getting more income than the regular employees and, therefore, had not sought for regularization. But since 1989-90 they found the regular employees were getting more salary than their income, and, therefore, they claimed regularization. Further 2.24% deduction towards Income- tax was made from the bills of the retainers in view of the contract and that was not applicable to the case of salaries of the regular employees. He accepted that he did not know about the nature of work and working hours of the regular employees. Factually, it was found that the retainers were getting Rs. 90/- per set. The agreement was on job contract basis. In Clause 15 of the agreement, there was a provision for arbitration under the Indian Arbitration Act, 1940.
### Response:
1
### Explanation:
as the Company is the Central Government Undertaking, and it is governed by the directions of the Government. Regular employees are required to work for fixed and regular hours. The Service Engineers/Licensees were not required to adhere to follow any specific schedule or routine. The Service Engineers cannot claim any regularization or absorption in the Company and, hence they are not entitled to parity of wage scales and other benefits which are provided to the regular employees of the Company. The Service Engineers are required to work as per their convenience without any interference of whatsoever nature from the Company. It is quite evident that the nature of duties performed by the regular employees of the Company and Service Engineers are quite different and distinct and, the same cannot be compared. It is submitted that regular employees were totally at the disposal of the Company during their duty hours and they were under its direct supervision, control and management, whereas the Service Engineers/Licensees were not under any such supervision, control or management and, so also they were required to work as per their convenience and, their services were not available to the Company during any fixed or particular hours or as per its convenience.It is not in dispute that the claimants were retained for a very long period of time by the appellant on the basis of a contract entered into between them and the company. Dispute was raised in respect of permanency, absorption, regularization and pay scale only in 1992 and, therefore, appeared to be an after-thought and a highly belated claim. No reason was set out as to why such belated demand was raised. That itself was indicative of the fact that the concerned persons were of the view that they were retainers and did not have any master and servant relationship with the company. The agreements indicate that they were entered into for a period of few months. A minimum 250 sets in a year was allotted to each retainer. The agreement to appoint as Service Engineers/Licensees as retainer contains some clauses which throw considerable light.A very important conclusion of the Tribunal was that there are no regular posts like Service Engineers or Licensees or retainer in the company and such contracts are entered into by the Company to attend to additional work as and when required. It was further noted that there is a definite procedure for appointment of personnel of the appellant-Company. It was pointed out that the question of designating the claimants as Tradesmen or Technical Officer on permanent basis in the Company does not arise as they have neither requisite qualifications for holding any of the above posts nor were they employees of the Company and they have not been employed after following the procedure required for appointment of the personnel of the Company. Further, technical officers cannot claim to be workmen under the Act as they did mainly supervisory duties and drew wages exceeding Rs. 1,600/- p.m. The Company was entering into individual contracts with its retainers and there was no compulsion whatsoever to enter into the contract year after year. As a matter of fact, it was note that some of the workmen of the Corporation opted for working in terms of those individual contracts as they found the same to be more lucrative and paying rather than being regular employees. There is no denial of this position by learned Counsel for the respondent.With reference to the evidence of the witness examined by the claimants it is clear that even he (Mr. Kasbekar) agreed that the service engineers and the licensees were independent contractors. The agreement signed by them makes the position clear. He accepted that no appointment letter was ever given by the company. They have not enrolled their names with the Employment Exchange. The first agreement was signed in 1978. He joined the company along with others in view of the advertisement regarding retainership. He also accepted that seven persons as noted above were previously working in the company, but left the service and joined as retainers. They were aware at the time of signing the agreement about the service conditions, salary, benefits given to regular workers.16. It was fairly accepted and admitted that taking into consideration that retainership was more beneficial than the regular service employees, all the seven employees left the service of the company and accepted the retainership. It was also accepted that there were several retainers who were working in several places like Delhi, Calcutta, Lucknow. One significant admission was that complaints of T.V. sets were made by the customers to the appellant company. The retainers used to visit the company for collecting complaints, collecting components, for receiving payments and for repairing the calledback sets. Except for these reasons, they were not required to go to the company.17. A further significant admission was that there were several types of employees working in the company whose work cannot be compared with that of the retainers. Whenever the retainers went on leave they used to provide a substitute to the company. The Tribunal also noted that the witness has admitted that the scheme was for retainership and there was no question of his asking for absorption as regular employees. Till 1989-90 they were getting more income than the regular employees and, therefore, had not sought for regularization. But since 1989-90 they found the regular employees were getting more salary than their income, and, therefore, they claimed regularization. Further 2.24% deduction towards Income- tax was made from the bills of the retainers in view of the contract and that was not applicable to the case of salaries of the regular employees. He accepted that he did not know about the nature of work and working hours of the regular employees. Factually, it was found that the retainers were getting Rs. 90/- per set. The agreement was on job contract basis. In Clause 15 of the agreement, there was a provision for arbitration under the Indian Arbitration Act, 1940.
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Voltas Limited Vs. Tehsildar, Thane & Others | and from the commencement of the Act "no person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which the Act applies". It is, therefore, open to the authorities to specify a date from which the excess land shall be deemed to have been vested free from encumbrances in the State. But it is not that in all cases it is the date of operation of the Act i.e. February 17, 1976 which divests the owner over his land. 22.This is also clear from sections 20 and 21 of the Act which provide for exemption from operation of the Act in certain cases. This legal position becomes clear from the decision of the Supreme Court in Smt.Darothi Clare Parreira and others vs. State of Maharashtra and Ors. AIR 1996 SC 2553 , wherein the relevant date for vesting in the State was held to be 12th March, 1979. In paragraph 5, the Court observed;"Having considered the respective contentions, the question that arises for consideration is :whether publication of the notification under Section 10(3) of the Act in the Gazette is in accordance with law No doubt, this question was not squarely put in issue before the High Court in the manner in which Shri Naik and Shri Bobde have posed before us. Having considered the scheme of the Act, we find that there is no force in their contentions. It is true that Section 3 postulates that except as otherwise provided in the Act, on and from the commencement of the Act, no person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which the Act applies under sub-section (2) of Section 3. Sections 6 to 10 prescribe the procedure for determination of the excess urban land. Admittedly after filing of statement, opportunity had been given, they had been heard and excess land over the ceiling limit had been determined. Pursuant to the decision taken under Section 10(1) of the Act, objections came to be filed under Section 10(2) and objections also were considered and an opportunity was given before their consideration and objections came to be rejected. The question then is : whether the competent authority has to await the decision under Sections 20 and 21 before declaring and publishing the excess land under Section 10(3) by a notification in the Gazette. The scheme of the Act does indicate that until the date of the publication in the Gazette prescribing a date on and from which the excess land stands vested in the State, the owner continues to be the owner of the excess land and entitled to remain in possession thereof. On publication of the notification under Section 10(3) and after putting a date from which the land stands vested in the State and after publication of the notification in the gazette and on and from the date mentioned therein, the excess vacant land stands vested in the State free from all encumbrances, subject to the decision in appeal, if any, filed according to law." (emphasis supplied)23.In Special Officer & Competent Authority, Urban Land Ceilings, Hyderabad and Anr. vs. P.S.Rao (2000) 2 SCC 451 also, a similar view was taken by the Supreme Court. In paragraph 9 the Court observed;"But, the word "hold" in Section 20(1)(a) or Section 20(1)(b) cannot, in our opinion, have the same meaning that can be attributed to it as in Section 2(1). The very definition in Section 2(1) states that the sub-section applies unless there is anything in the context which suggests a different meaning to be given. In our view, in the context of Section 20(1)(a) and Section 20(1)(b), the definition given in Section 2 (l) cannot be applied. The reason is that such a construction will make Section 20 unworkable and otiose. We have pointed out above that it is not possible to make any meaningful application for exemption under Section 20(1)(a) or (b) unless the exact quantum of excess is determined under Section 10 after following the various provisions of the Act relating to statutory deductions and mode of computation. If the contention of the State referred to above is to be accepted, then the peculiar position will be as follows: as stated by us, before the excess is determined, a person will not be able to seek exemption because he does not know what is the actual excess land held and once the excess is determined, he cannot apply because he is not holding the excess land. Thus, the entire object of Section will be frustrated. That is why we say that the definition of the words "to hold" in Section 2(1) cannot be applied in the context of Section 20(1)(a) or Section 20(1)(b)."24.From the above decisions, to us, it is clear that the conditions imposed on the Company when the land was acquired by the Government under the provisions of the Land Acquisition Act and was given to the petitioner on certain terms and conditions and Sanad was issued in favour of the Company by laying down terms and conditions of use of the land operated and the company was bound by those conditions. When there was breach of conditions, it was open to the respondents to take appropriate proceedings in accordance with law including recovery of unearned profit in accordance with Government policy. The action, therefore, cannot be held to be objectionable in principle and the grievance of the petitioner is not justified.25.So far as the quantum is concerned, it was stated in the affidavit in reply that the respondents have no objection if the matter is remanded to the Collector, Thane, by directing him to pass appropriate order in accordance with law after affording hearing to the petitioner. The learned Advocate General also stated that the appropriate course is to set aside that part of the order by issuing direction to the Collector to pass fresh order. To that extent, therefore, the grievance of the petitioner is justified. | 1[ds]18.So far as the main grievance of the petitioner that no action could have been taken against the petitioner on the terms and conditions of Sanad and breach thereof in view of passing of the Urban Land Ceiling Act, exemption granted under the Act, is notand cannot be upheld. As is clear, land has been granted by the Government to the Company under the Land Acquisition Act for a particular purpose. The land was granted to the petitioner Company on those conditions. A Sanad was issued wherein those conditions have been specified. The learned Advocate General is, therefore, in our opinion, right in submitting that the petitioner company wasoccupant. Section 29 of the Maharashtra Land Revenue Code, 1966, recognises certain class of persons as occupants. Occupants of Class I hold unalienated land in perpetuity and without any restrictions on the right of transfer. Occupants of Class II, however, hold unalienated land in perpetuity, but subject to the restrictions on the right to transfer. In the instant case, possession of the land was given to the petitioner Company by the Government for a particular purpose. Several conditions were, therefore, imposed in the Sanad and the Company was bound to comply with those conditions. In our opinion, it was not open to the Company to ignore those conditions. Passing of an order of exemption under the Ceiling Act would not wipe out conditions of Sanad. It was, therefore, open to theto direct the Company to act in accordance with the terms and conditions of Sanad. When the petitioner has not observed those conditions and committed breach thereof by disposing the property, it was open to the respondents to demand unearned income in accordance with the policy of the Government.19.We are also not impressed by the argument that in view of the provisions of the Ceiling Act, terms and conditions imposed in Sanad would notare not impressed by the argument of the learned counsel for the petitioner. Section 10(3) enacts that the excess land referred to in the notification underof the said Section will be vested in the Government "with effect from such date as may be specified in the declaration". Thus, it is the date which is specified in the notification that is material and with effect from that date the land will get vested in the Government. To us, it is clear that in view of the provisions of Section 3 of the Act which declares that except as otherwise provided in the Act, on and from the commencement of the Act "no person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which the Act applies". It is, therefore, open to the authorities to specify a date from which the excess land shall be deemed to have been vested free from encumbrances in the State. But it is not that in all cases it is the date of operation of the Act i.e. February 17, 1976 which divests the owner over hisis also clear from sections 20 and 21 of the Act which provide for exemption from operation of the Act in certain cases. This legal position becomes clear from the decision of the Supreme Court in Smt.Darothi Clare Parreira and others vs. State of Maharashtra and Ors. AIR 1996 SC 2553 , wherein the relevant date for vesting in the State was held to be 12th March,the above decisions, to us, it is clear that the conditions imposed on the Company when the land was acquired by the Government under the provisions of the Land Acquisition Act and was given to the petitioner on certain terms and conditions and Sanad was issued in favour of the Company by laying down terms and conditions of use of the land operated and the company was bound by those conditions. When there was breach of conditions, it was open to the respondents to take appropriate proceedings in accordance with law including recovery of unearned profit in accordance with Government policy. The action, therefore, cannot be held to be objectionable in principle and the grievance of the petitioner is not justified.25.So far as the quantum is concerned, it was stated in the affidavit in reply that the respondents have no objection if the matter is remanded to the Collector, Thane, by directing him to pass appropriate order in accordance with law after affording hearing to the petitioner. The learned Advocate General also stated that the appropriate course is to set aside that part of the order by issuing direction to the Collector to pass fresh order. To that extent, therefore, the grievance of the petitioner is justified. | 1 | 4,056 | 849 | ### 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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and from the commencement of the Act "no person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which the Act applies". It is, therefore, open to the authorities to specify a date from which the excess land shall be deemed to have been vested free from encumbrances in the State. But it is not that in all cases it is the date of operation of the Act i.e. February 17, 1976 which divests the owner over his land. 22.This is also clear from sections 20 and 21 of the Act which provide for exemption from operation of the Act in certain cases. This legal position becomes clear from the decision of the Supreme Court in Smt.Darothi Clare Parreira and others vs. State of Maharashtra and Ors. AIR 1996 SC 2553 , wherein the relevant date for vesting in the State was held to be 12th March, 1979. In paragraph 5, the Court observed;"Having considered the respective contentions, the question that arises for consideration is :whether publication of the notification under Section 10(3) of the Act in the Gazette is in accordance with law No doubt, this question was not squarely put in issue before the High Court in the manner in which Shri Naik and Shri Bobde have posed before us. Having considered the scheme of the Act, we find that there is no force in their contentions. It is true that Section 3 postulates that except as otherwise provided in the Act, on and from the commencement of the Act, no person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which the Act applies under sub-section (2) of Section 3. Sections 6 to 10 prescribe the procedure for determination of the excess urban land. Admittedly after filing of statement, opportunity had been given, they had been heard and excess land over the ceiling limit had been determined. Pursuant to the decision taken under Section 10(1) of the Act, objections came to be filed under Section 10(2) and objections also were considered and an opportunity was given before their consideration and objections came to be rejected. The question then is : whether the competent authority has to await the decision under Sections 20 and 21 before declaring and publishing the excess land under Section 10(3) by a notification in the Gazette. The scheme of the Act does indicate that until the date of the publication in the Gazette prescribing a date on and from which the excess land stands vested in the State, the owner continues to be the owner of the excess land and entitled to remain in possession thereof. On publication of the notification under Section 10(3) and after putting a date from which the land stands vested in the State and after publication of the notification in the gazette and on and from the date mentioned therein, the excess vacant land stands vested in the State free from all encumbrances, subject to the decision in appeal, if any, filed according to law." (emphasis supplied)23.In Special Officer & Competent Authority, Urban Land Ceilings, Hyderabad and Anr. vs. P.S.Rao (2000) 2 SCC 451 also, a similar view was taken by the Supreme Court. In paragraph 9 the Court observed;"But, the word "hold" in Section 20(1)(a) or Section 20(1)(b) cannot, in our opinion, have the same meaning that can be attributed to it as in Section 2(1). The very definition in Section 2(1) states that the sub-section applies unless there is anything in the context which suggests a different meaning to be given. In our view, in the context of Section 20(1)(a) and Section 20(1)(b), the definition given in Section 2 (l) cannot be applied. The reason is that such a construction will make Section 20 unworkable and otiose. We have pointed out above that it is not possible to make any meaningful application for exemption under Section 20(1)(a) or (b) unless the exact quantum of excess is determined under Section 10 after following the various provisions of the Act relating to statutory deductions and mode of computation. If the contention of the State referred to above is to be accepted, then the peculiar position will be as follows: as stated by us, before the excess is determined, a person will not be able to seek exemption because he does not know what is the actual excess land held and once the excess is determined, he cannot apply because he is not holding the excess land. Thus, the entire object of Section will be frustrated. That is why we say that the definition of the words "to hold" in Section 2(1) cannot be applied in the context of Section 20(1)(a) or Section 20(1)(b)."24.From the above decisions, to us, it is clear that the conditions imposed on the Company when the land was acquired by the Government under the provisions of the Land Acquisition Act and was given to the petitioner on certain terms and conditions and Sanad was issued in favour of the Company by laying down terms and conditions of use of the land operated and the company was bound by those conditions. When there was breach of conditions, it was open to the respondents to take appropriate proceedings in accordance with law including recovery of unearned profit in accordance with Government policy. The action, therefore, cannot be held to be objectionable in principle and the grievance of the petitioner is not justified.25.So far as the quantum is concerned, it was stated in the affidavit in reply that the respondents have no objection if the matter is remanded to the Collector, Thane, by directing him to pass appropriate order in accordance with law after affording hearing to the petitioner. The learned Advocate General also stated that the appropriate course is to set aside that part of the order by issuing direction to the Collector to pass fresh order. To that extent, therefore, the grievance of the petitioner is justified.
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18.So far as the main grievance of the petitioner that no action could have been taken against the petitioner on the terms and conditions of Sanad and breach thereof in view of passing of the Urban Land Ceiling Act, exemption granted under the Act, is notand cannot be upheld. As is clear, land has been granted by the Government to the Company under the Land Acquisition Act for a particular purpose. The land was granted to the petitioner Company on those conditions. A Sanad was issued wherein those conditions have been specified. The learned Advocate General is, therefore, in our opinion, right in submitting that the petitioner company wasoccupant. Section 29 of the Maharashtra Land Revenue Code, 1966, recognises certain class of persons as occupants. Occupants of Class I hold unalienated land in perpetuity and without any restrictions on the right of transfer. Occupants of Class II, however, hold unalienated land in perpetuity, but subject to the restrictions on the right to transfer. In the instant case, possession of the land was given to the petitioner Company by the Government for a particular purpose. Several conditions were, therefore, imposed in the Sanad and the Company was bound to comply with those conditions. In our opinion, it was not open to the Company to ignore those conditions. Passing of an order of exemption under the Ceiling Act would not wipe out conditions of Sanad. It was, therefore, open to theto direct the Company to act in accordance with the terms and conditions of Sanad. When the petitioner has not observed those conditions and committed breach thereof by disposing the property, it was open to the respondents to demand unearned income in accordance with the policy of the Government.19.We are also not impressed by the argument that in view of the provisions of the Ceiling Act, terms and conditions imposed in Sanad would notare not impressed by the argument of the learned counsel for the petitioner. Section 10(3) enacts that the excess land referred to in the notification underof the said Section will be vested in the Government "with effect from such date as may be specified in the declaration". Thus, it is the date which is specified in the notification that is material and with effect from that date the land will get vested in the Government. To us, it is clear that in view of the provisions of Section 3 of the Act which declares that except as otherwise provided in the Act, on and from the commencement of the Act "no person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which the Act applies". It is, therefore, open to the authorities to specify a date from which the excess land shall be deemed to have been vested free from encumbrances in the State. But it is not that in all cases it is the date of operation of the Act i.e. February 17, 1976 which divests the owner over hisis also clear from sections 20 and 21 of the Act which provide for exemption from operation of the Act in certain cases. This legal position becomes clear from the decision of the Supreme Court in Smt.Darothi Clare Parreira and others vs. State of Maharashtra and Ors. AIR 1996 SC 2553 , wherein the relevant date for vesting in the State was held to be 12th March,the above decisions, to us, it is clear that the conditions imposed on the Company when the land was acquired by the Government under the provisions of the Land Acquisition Act and was given to the petitioner on certain terms and conditions and Sanad was issued in favour of the Company by laying down terms and conditions of use of the land operated and the company was bound by those conditions. When there was breach of conditions, it was open to the respondents to take appropriate proceedings in accordance with law including recovery of unearned profit in accordance with Government policy. The action, therefore, cannot be held to be objectionable in principle and the grievance of the petitioner is not justified.25.So far as the quantum is concerned, it was stated in the affidavit in reply that the respondents have no objection if the matter is remanded to the Collector, Thane, by directing him to pass appropriate order in accordance with law after affording hearing to the petitioner. The learned Advocate General also stated that the appropriate course is to set aside that part of the order by issuing direction to the Collector to pass fresh order. To that extent, therefore, the grievance of the petitioner is justified.
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Kayjay Industries (P) Ltd Vs. Asnew Drums (P) Ltd. & Ors | of the price the act of confirmation of the sale would not be a proper exercise of judicial discretion."Be it by a receiver, commissioner, liquidator or Court this principle must govern. This proposition has been propounded in many rulings cited before us and summed up by the High Courts. The expressions material irregularity in the conduct of the sale must be benignantly construed to cover the climax act of the Court accepting the highest bid. Indeed, under the Civil Procedure Code, it is the Court which conducts the sale its duty to apply its mind to the material actors bearing its mind to the material factors bearing on the reasonableness of the price offered is part of the process of obtaining a proper price in the course of the sale. Therefore, failure to apply its mind to this aspect of the conduct of the sale may amount to material irregularity Mere, substantial injury without material irregularity is not enough even as material irregularity not linked directly to inadequacy of the price is insufficient. And where a Court mechanically conducts the sale or routinely signs assent to the sale papers, not bothering to see if the offer is too low and a better price could have been obtained, and in fact the price is substantially inadequate, there is the presence of both the elements of irregularity and injury. But it is not as if the Court should go on adjourning the sale till a good price is got, it being a notorious fact that Court sales and market prices are distant neighbours. Otherwise, decree-holders can never get the property of the debtor sold. Nor is it right to judge the unfairness of the price by hindsight wisdom. May be, subsequent events, not within the ken of the executing Court when holding the sale, may prove that had the sale been adjourned a better price could have been had. What is expected of the Judge is not to be a prophet but a pragmatist and merely to make a realistic appraisal of the factors, and, if satisfied that, in the given circumstances, the bid is acceptable, conclude the sale. The Court may consider the fair value of the property, the general economic trends, the large sum required to be produced by the bidder, the formation of a syndicate, the futility of postponements and the possibility of litigation, and several other factors dependent on the facts of each case. Once that is done, the matter ends there. No speaking order is called for and no meticulous post mortem is proper. If the Court has fairly, even if silently, applied its mind to the relevant considerations before it while accepting the final bid, no probe in retrospect is permissible. Otherwise, a new threat to certainty of Court sales will be introduced.10. So viewed we are satisfied that the district Court had exercised a conscientious and lively discretion in concluding the sale at Rs. 11.5 lakhs. If the market value was over 17 lakhs, it is unfortunate that a lesser price was fetched. Mere inadequacy of price cannot demolish every Court sale. Here, the Court tried its best, time after time, to raise the price. Well-known industrialists in the public and private sectors knew about it and turned up. Offers reached a stationary off indefinitely in recovering its dues on baseless expectations and distant, prospects. The judgment-debtor himself, by his litigious exercises, would have contributed to the possible buyers being afraid of hurdles ahead. After all, producing around Rs. 11.4 lakhs openly to buy an industry is not easy even for apparently affluent businessmen. The sale proceedings had been pending too long and the first respondent could not, even when given the opportunity, produce buyers by private negotiation. Not even a valuers report was produced by him. We are satisfied that the District Judge had committed no material irregularity in the conduct of the sale in accepting the highest offer of the appellant on September 3, 1969.11. Shri Parekh has levelled a number of criticisms of the Court sale which we regret are more captious than substantial, more factitious than genuine. Complaining about the rains in Bombay that day i.e. September 3, dissecting the Corona Electricals valuation for minor omission and errors, holding up the exaggerated figure of about Rs. 38 lakhs as the market value of the property and other like circumstances can hardly convince anyone that the hoped-for happy day would arrive when a handsome price would be forthcoming if the auction were adjourned ad labitum at the instance of the judgment debtor. Prima facia it may look a little odd that a financial organisation in the public sector, which a special responsibility to the people not to play with public funds or advance for shady enterprises or persons should have readily lent a huge amount of Rs. 10 lakhs on a valuation obviously bloated as is established by the sequel, and struggled for long years to recoup the money. This aspect of the matter, we hope, will receive the anxious attention of the concerned authorities so that public money may be handled by pubic servants with public responsibility and concern for public benefit. However, we do not wish to express any opinion because we have no material before us as to what were the circumstances in which Den Bank advanced the loan, what were the other securities given by the Company, and what was the then worth of the guarantors.12. Several other unsuccessful grounds were urged before the High Court by the judgment-debtor and we need not go over those grounds again as they possess little merit. Nor need we consider the ambit of appellate power to review discretion exercised by the trial Court (vide Ward v. James), (1966) 1 QB 273 at p. 293 since here we are concerned with no appeal against the approval of the sale by the executing Court but with an order refusing to set aside the sale under Order XXI, Rule 90, and an appeal therefrom. | 1[ds]Indeed, in the present case, the executing Court had admittedly declined to affirm the highest bids made on 16-5-1969, June 5, 1969 and August 28, 1969, its anxiety to secure a better price being the main reason. If Court sales are too frequently adjourned with a view to obtaining a still higher price it may prove a self-defeating exercise, for industrialists will lose faith in the actual sale taking place and may not care to travel up to the place of auction being uncertain that the sale would at all go through. The judgment-debtors plea for postponement in the expectation of a higher price in the future may strain the credibility of the Court sale itself and may yield diminishing returns as was proved in this very case.8. A material circumstance which weakens the first respondents case is that on both the dates-August 28 and September 3-Shri B. Paul, director of the judgment-debtor company was present at the auction and never voiced any grievance about the conduct of the sale or asked for its postponement on the ground that better price may be obtained on a later date. Equally significant is the fact sworn to by the authorised officer of the Corporation that the valuation of the total assets was around Rs. 15 lakhs when the application was made by the petitioner Corporation for sale of the assets under Section 31 of the State Financial Corporation Act and that the said estimate was given on the basis of the information supplied by the applicants at the time of the disbursal of the loan. The Dena Bank, the second charge holder with considerable stakes in the sale, was present on the August and September auctions through a senior representative and did not think it necessary to raise any objection regarding the conduct of the sale or the price tendered. Nor do the proceedings disclose an unfair undervalue on account of the absence of effective bidders or inertness of the Judge. On both occasions there were about 30 or 40 bidders. The judgment-debtor, the second charge-holder, the Indian Oil Corporation, and other leading industrial concerns interested in the drum industry were represented. All the bidders on the 28th August were told of the next auction date and most of them participated passively or actively in the September sale. On both the sale dates the judges (they were different on the two days) were keen on maximising the price. A total of Rupees 11,10,000/- was the highest bid in late August and in early September the best offer for lot No. 2 sagged from Rupees 5,40,000/- to Rs. 5,00,000/-.This downward trend could have persisted if further postponements of sale had taken place and the judge did his best to boost the total price to Rs. 11.5 lakhs and finalised it, taking no chances by adjourning the auction. The trend of to-day may be the silhouette of tomorrow and the reduced offer for lot No. 2 this time may well infect lot No. 1 next time. The Court did a good job taking a conspectus of the circumstances and avoiding the ominous maybes of future auctions. Such are the broad facts to which the law must be applied. Section 32 (8) of the Act attracts the Code of Civil Procedure, as far as practicable, in the realisation of the dues of the Corporation, and so it may be right to apply the provisions of O. XXI, Ruleit by a receiver, commissioner, liquidator or Court this principle must govern. This proposition has been propounded in many rulings cited before us and summed up by the High Courts. The expressions material irregularity in the conduct of the sale must be benignantly construed to cover the climax act of the Court accepting the highest bid. Indeed, under the Civil Procedure Code, it is the Court which conducts the sale its duty to apply its mind to the material actors bearing its mind to the material factors bearing on the reasonableness of the price offered is part of the process of obtaining a proper price in the course of the sale. Therefore, failure to apply its mind to this aspect of the conduct of the sale may amount to material irregularity Mere, substantial injury without material irregularity is not enough even as material irregularity not linked directly to inadequacy of the price is insufficient. And where a Court mechanically conducts the sale or routinely signs assent to the sale papers, not bothering to see if the offer is too low and a better price could have been obtained, and in fact the price is substantially inadequate, there is the presence of both the elements of irregularity and injury. But it is not as if the Court should go on adjourning the sale till a good price is got, it being a notorious fact that Court sales and market prices are distant neighbours. Otherwise, decree-holders can never get the property of the debtor sold. Nor is it right to judge the unfairness of the price by hindsight wisdom. May be, subsequent events, not within the ken of the executing Court when holding the sale, may prove that had the sale been adjourned a better price could have been had. What is expected of the Judge is not to be a prophet but a pragmatist and merely to make a realistic appraisal of the factors, and, if satisfied that, in the given circumstances, the bid is acceptable, conclude the sale. The Court may consider the fair value of the property, the general economic trends, the large sum required to be produced by the bidder, the formation of a syndicate, the futility of postponements and the possibility of litigation, and several other factors dependent on the facts of each case. Once that is done, the matter ends there. No speaking order is called for and no meticulous post mortem is proper. If the Court has fairly, even if silently, applied its mind to the relevant considerations before it while accepting the final bid, no probe in retrospect is permissible. Otherwise, a new threat to certainty of Court sales will be introduced.10. So viewed we are satisfied that the district Court had exercised a conscientious and lively discretion in concluding the sale at Rs. 11.5 lakhs. If the market value was over 17 lakhs, it is unfortunate that a lesser price was fetched. Mere inadequacy of price cannot demolish every Court sale. Here, the Court tried its best, time after time, to raise the price. Well-known industrialists in the public and private sectors knew about it and turned up. Offers reached a stationary off indefinitely in recovering its dues on baseless expectations and distant, prospects. The judgment-debtor himself, by his litigious exercises, would have contributed to the possible buyers being afraid of hurdles ahead. After all, producing around Rs. 11.4 lakhs openly to buy an industry is not easy even for apparently affluent businessmen. The sale proceedings had been pending too long and the first respondent could not, even when given the opportunity, produce buyers by private negotiation. Not even a valuers report was produced by him. We are satisfied that the District Judge had committed no material irregularity in the conduct of the sale in accepting the highest offer of the appellant on September 3, 1969.11. Shri Parekh has levelled a number of criticisms of the Court sale which we regret are more captious than substantial, more factitious than genuine. Complaining about the rains in Bombay that day i.e. September 3, dissecting the Corona Electricals valuation for minor omission and errors, holding up the exaggerated figure of about Rs. 38 lakhs as the market value of the property and other like circumstances can hardly convince anyone that the hoped-for happy day would arrive when a handsome price would be forthcoming if the auction were adjourned ad labitum at the instance of the judgment debtor. Prima facia it may look a little odd that a financial organisation in the public sector, which a special responsibility to the people not to play with public funds or advance for shady enterprises or persons should have readily lent a huge amount of Rs. 10 lakhs on a valuation obviously bloated as is established by the sequel, and struggled for long years to recoup the money. This aspect of the matter, we hope, will receive the anxious attention of the concerned authorities so that public money may be handled by pubic servants with public responsibility and concern for public benefit. However, we do not wish to express any opinion because we have no material before us as to what were the circumstances in which Den Bank advanced the loan, what were the other securities given by the Company, and what was the then worth of the guarantors.12. Several other unsuccessful grounds were urged before the High Court by theand we need not go over those grounds again as they possess little merit. Nor need we consider the ambit of appellate power to review discretion exercised by the trial Court (vide Wardv. James), (1966) 1 QB 273 at p.293 since here we are concerned with no appeal against the approval of the sale by the executing Court but with an order refusing to set aside the sale under Order XXI, Rule 90, and an appeal therefrom. | 1 | 3,943 | 1,694 | ### 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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of the price the act of confirmation of the sale would not be a proper exercise of judicial discretion."Be it by a receiver, commissioner, liquidator or Court this principle must govern. This proposition has been propounded in many rulings cited before us and summed up by the High Courts. The expressions material irregularity in the conduct of the sale must be benignantly construed to cover the climax act of the Court accepting the highest bid. Indeed, under the Civil Procedure Code, it is the Court which conducts the sale its duty to apply its mind to the material actors bearing its mind to the material factors bearing on the reasonableness of the price offered is part of the process of obtaining a proper price in the course of the sale. Therefore, failure to apply its mind to this aspect of the conduct of the sale may amount to material irregularity Mere, substantial injury without material irregularity is not enough even as material irregularity not linked directly to inadequacy of the price is insufficient. And where a Court mechanically conducts the sale or routinely signs assent to the sale papers, not bothering to see if the offer is too low and a better price could have been obtained, and in fact the price is substantially inadequate, there is the presence of both the elements of irregularity and injury. But it is not as if the Court should go on adjourning the sale till a good price is got, it being a notorious fact that Court sales and market prices are distant neighbours. Otherwise, decree-holders can never get the property of the debtor sold. Nor is it right to judge the unfairness of the price by hindsight wisdom. May be, subsequent events, not within the ken of the executing Court when holding the sale, may prove that had the sale been adjourned a better price could have been had. What is expected of the Judge is not to be a prophet but a pragmatist and merely to make a realistic appraisal of the factors, and, if satisfied that, in the given circumstances, the bid is acceptable, conclude the sale. The Court may consider the fair value of the property, the general economic trends, the large sum required to be produced by the bidder, the formation of a syndicate, the futility of postponements and the possibility of litigation, and several other factors dependent on the facts of each case. Once that is done, the matter ends there. No speaking order is called for and no meticulous post mortem is proper. If the Court has fairly, even if silently, applied its mind to the relevant considerations before it while accepting the final bid, no probe in retrospect is permissible. Otherwise, a new threat to certainty of Court sales will be introduced.10. So viewed we are satisfied that the district Court had exercised a conscientious and lively discretion in concluding the sale at Rs. 11.5 lakhs. If the market value was over 17 lakhs, it is unfortunate that a lesser price was fetched. Mere inadequacy of price cannot demolish every Court sale. Here, the Court tried its best, time after time, to raise the price. Well-known industrialists in the public and private sectors knew about it and turned up. Offers reached a stationary off indefinitely in recovering its dues on baseless expectations and distant, prospects. The judgment-debtor himself, by his litigious exercises, would have contributed to the possible buyers being afraid of hurdles ahead. After all, producing around Rs. 11.4 lakhs openly to buy an industry is not easy even for apparently affluent businessmen. The sale proceedings had been pending too long and the first respondent could not, even when given the opportunity, produce buyers by private negotiation. Not even a valuers report was produced by him. We are satisfied that the District Judge had committed no material irregularity in the conduct of the sale in accepting the highest offer of the appellant on September 3, 1969.11. Shri Parekh has levelled a number of criticisms of the Court sale which we regret are more captious than substantial, more factitious than genuine. Complaining about the rains in Bombay that day i.e. September 3, dissecting the Corona Electricals valuation for minor omission and errors, holding up the exaggerated figure of about Rs. 38 lakhs as the market value of the property and other like circumstances can hardly convince anyone that the hoped-for happy day would arrive when a handsome price would be forthcoming if the auction were adjourned ad labitum at the instance of the judgment debtor. Prima facia it may look a little odd that a financial organisation in the public sector, which a special responsibility to the people not to play with public funds or advance for shady enterprises or persons should have readily lent a huge amount of Rs. 10 lakhs on a valuation obviously bloated as is established by the sequel, and struggled for long years to recoup the money. This aspect of the matter, we hope, will receive the anxious attention of the concerned authorities so that public money may be handled by pubic servants with public responsibility and concern for public benefit. However, we do not wish to express any opinion because we have no material before us as to what were the circumstances in which Den Bank advanced the loan, what were the other securities given by the Company, and what was the then worth of the guarantors.12. Several other unsuccessful grounds were urged before the High Court by the judgment-debtor and we need not go over those grounds again as they possess little merit. Nor need we consider the ambit of appellate power to review discretion exercised by the trial Court (vide Ward v. James), (1966) 1 QB 273 at p. 293 since here we are concerned with no appeal against the approval of the sale by the executing Court but with an order refusing to set aside the sale under Order XXI, Rule 90, and an appeal therefrom.
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practicable, in the realisation of the dues of the Corporation, and so it may be right to apply the provisions of O. XXI, Ruleit by a receiver, commissioner, liquidator or Court this principle must govern. This proposition has been propounded in many rulings cited before us and summed up by the High Courts. The expressions material irregularity in the conduct of the sale must be benignantly construed to cover the climax act of the Court accepting the highest bid. Indeed, under the Civil Procedure Code, it is the Court which conducts the sale its duty to apply its mind to the material actors bearing its mind to the material factors bearing on the reasonableness of the price offered is part of the process of obtaining a proper price in the course of the sale. Therefore, failure to apply its mind to this aspect of the conduct of the sale may amount to material irregularity Mere, substantial injury without material irregularity is not enough even as material irregularity not linked directly to inadequacy of the price is insufficient. And where a Court mechanically conducts the sale or routinely signs assent to the sale papers, not bothering to see if the offer is too low and a better price could have been obtained, and in fact the price is substantially inadequate, there is the presence of both the elements of irregularity and injury. But it is not as if the Court should go on adjourning the sale till a good price is got, it being a notorious fact that Court sales and market prices are distant neighbours. Otherwise, decree-holders can never get the property of the debtor sold. Nor is it right to judge the unfairness of the price by hindsight wisdom. May be, subsequent events, not within the ken of the executing Court when holding the sale, may prove that had the sale been adjourned a better price could have been had. What is expected of the Judge is not to be a prophet but a pragmatist and merely to make a realistic appraisal of the factors, and, if satisfied that, in the given circumstances, the bid is acceptable, conclude the sale. The Court may consider the fair value of the property, the general economic trends, the large sum required to be produced by the bidder, the formation of a syndicate, the futility of postponements and the possibility of litigation, and several other factors dependent on the facts of each case. Once that is done, the matter ends there. No speaking order is called for and no meticulous post mortem is proper. If the Court has fairly, even if silently, applied its mind to the relevant considerations before it while accepting the final bid, no probe in retrospect is permissible. Otherwise, a new threat to certainty of Court sales will be introduced.10. So viewed we are satisfied that the district Court had exercised a conscientious and lively discretion in concluding the sale at Rs. 11.5 lakhs. If the market value was over 17 lakhs, it is unfortunate that a lesser price was fetched. Mere inadequacy of price cannot demolish every Court sale. Here, the Court tried its best, time after time, to raise the price. Well-known industrialists in the public and private sectors knew about it and turned up. Offers reached a stationary off indefinitely in recovering its dues on baseless expectations and distant, prospects. The judgment-debtor himself, by his litigious exercises, would have contributed to the possible buyers being afraid of hurdles ahead. After all, producing around Rs. 11.4 lakhs openly to buy an industry is not easy even for apparently affluent businessmen. The sale proceedings had been pending too long and the first respondent could not, even when given the opportunity, produce buyers by private negotiation. Not even a valuers report was produced by him. We are satisfied that the District Judge had committed no material irregularity in the conduct of the sale in accepting the highest offer of the appellant on September 3, 1969.11. Shri Parekh has levelled a number of criticisms of the Court sale which we regret are more captious than substantial, more factitious than genuine. Complaining about the rains in Bombay that day i.e. September 3, dissecting the Corona Electricals valuation for minor omission and errors, holding up the exaggerated figure of about Rs. 38 lakhs as the market value of the property and other like circumstances can hardly convince anyone that the hoped-for happy day would arrive when a handsome price would be forthcoming if the auction were adjourned ad labitum at the instance of the judgment debtor. Prima facia it may look a little odd that a financial organisation in the public sector, which a special responsibility to the people not to play with public funds or advance for shady enterprises or persons should have readily lent a huge amount of Rs. 10 lakhs on a valuation obviously bloated as is established by the sequel, and struggled for long years to recoup the money. This aspect of the matter, we hope, will receive the anxious attention of the concerned authorities so that public money may be handled by pubic servants with public responsibility and concern for public benefit. However, we do not wish to express any opinion because we have no material before us as to what were the circumstances in which Den Bank advanced the loan, what were the other securities given by the Company, and what was the then worth of the guarantors.12. Several other unsuccessful grounds were urged before the High Court by theand we need not go over those grounds again as they possess little merit. Nor need we consider the ambit of appellate power to review discretion exercised by the trial Court (vide Wardv. James), (1966) 1 QB 273 at p.293 since here we are concerned with no appeal against the approval of the sale by the executing Court but with an order refusing to set aside the sale under Order XXI, Rule 90, and an appeal therefrom.
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Kale Khan Mohammad Hanif Vs. Commissioner of Income Tax, Madhya Pradesh and Bhopal | which arises out of the decision of the Tribunal nor one which the Tribunal has at all answered. It does not seem to us that a question in this form can be referred under section 66. The High Court, however, answered the question by saying that the inference was one of fact. If this is the correct view, then the matter ends there, for, as we have said, on questions of fact the Tribunal is the final authority. If, on the other hand, the inference is one of law, then a question may have been referred to the High Court as to whether the inference was justified in law. That was not done. We may, however, add that if the inference is treated as one of law, in our view, the Tribunal had drawn it lawfully and this view would receive support from A. Govindarajulu Mudaliars case.We have now to deal with the last question, question No.6, which, as framed in the case for the assessment year 1945-46, is set out below :"Whether having regard to the fact that the Income-tax Officer has assessed the income on a percentage basis, he was justified in treating the said sums of Rs. 41, 300 and Rs. 11, 000 as profits from an undisclosed source ?"9. In the case for the assessment year 1947-48 the corresponding question was in identical terms except that the figures mentioned in it were Rs. 19, 575 and Rs. 20, 000. The High Court answered the question in the affirmative, and in our view rightly, for we do not think that any other answer is possible.10. We are in some difficulty in appreciating the point of this question also. The question would seem to suggest that because the income from a disclosed source has been computed on the basis of an estimate and not on the basis of the return filed in respect of it, an income represented by a credit entry in the books of account of that source cannot be held to be income from another and undisclosed source. We do not see why it cannot be so held. It appears from the judgment of the High Court that the reason given in support of the suggestion was that if that income was held to be income of an undisclosed source, the result would be double taxation of the same income which the Income-tax Act does not contemplate. Apparently, it was said that there would be double taxation because it was assumed that the same income had once been earlier taxed on the basis of an estimate. This reason is obviously fallacious, for if the income is treated as one from an undisclosed source which the question postulates, it is not treated as income of the disclosed source which had previously been assessed to tax and, therefore, there is in such a case no double taxation. It is not a case where the income sought to be taxed was held to be undisclosed income of a disclosed source, the income of which source had previously been taxed on the basis of an estimate. If it were so, the question of double taxation might have been legitimately raised. That, however, is clearly not the case here as the question as framed itself shows.We concede that the question as to the source from which a particular income is derived is one which has to be decided on all the facts of the case. Hence the question whether income represented by an entry in the books of a business is income of that business or of another business would have to be decided on the facts which showed the business to which it belonged. But quite clearly the answer to that question would not depend on whether the income from the first mentioned business had been computed on the basis of a return filed or of an estimate of the income made by the taxing authorities. This, however, is what the question as framed suggests, and that suggestion is in our view wholly without foundation. Therefore, it cannot be said that the taxing authorities were precluded from treating the amounts of the credit entries as income from undisclosed sources simply because the entries appear in the books of a business whose income they had previously computed on a percentage basis. That is why we think that the answer to the question as framed must be in the affirmative.11. As we have earlier said, the question as to the source from which a particular income is derived has to be decided on all the facts of the case. In the present case, the Income-tax Officer held the income represented by the credit entries to be income from undisclosed sources, that is, neither from the manihari (general merchandise) nor from the bidi business of the assessee which he had disclosed. This view was upheld by the Appellate Commissioner and by the Tribunal excepting as to two of the amounts earlier mentioned. It was open to the assessee to raise the question that the finding that those amounts were income received from undisclosed sources was not based on any evidence or was, for other reasons, perverse. It appears that he did raise some questions of this type before the Tribunal for reference to the High Court but the Tribunal did not think that those questions legitimately arose and did not refer them to the High Court. The assessee accepted the decision of the Tribunal and did not move the High Court to direct a reference in regard to those questions under section 66(2). Those questions, therefore, cannot be raised in this court. We have dealt with the reference made on the basis that the finding that the amounts of the credit entries were income received from undisclosed sources was disputed only on the ground that the income from the business had been computed on the basis of an estimate. In the circumstances of the case we could not have done anything else. | 0[ds]7. It seems to us that the answer to this question must be in the affirmative and that is how it was answered by the High Court. It is well established that the onus of proving the source of a sum of money found to have been received by the assessee is on him. If he disputes liability for tax, it is for him to show either that the receipt was not income or that if it was, it was exempt from taxation under the provisions of the Act. In the absence of such proof, theWe confess we find it difficult to see the point of this question. Questions can be referred under section 66 of the Act when they are questions of law which arise out of the facts found by the Tribunal and which the Tribunal is said to have answered erroneously thereby unlawfully imposing a burden of tax on an assessee. On questions of fact, the Tribunal is the final authority and such questions cannot be referred to a High Court for its decision. Now the present question assumes that the Tribunal has made an inference. Either that inference is one of fact or it is one of law. If it is of fact, no question with regard to it can be referred to the High Court. If it is one of law, then a question whether the inference could in law be drawn might be referred to the High Court. But the question whether the inference drawn by the Tribunal is one of law or fact, which is the question here framed, is not a question which arises out of the decision of the Tribunal nor one which the Tribunal has at all answered. It does not seem to us that a question in this form can be referred under section 66. The High Court, however, answered the question by saying that the inference was one of fact. If this is the correct view, then the matter ends there, for, as we have said, on questions of fact the Tribunal is the final authority. If, on the other hand, the inference is one of law, then a question may have been referred to the High Court as to whether the inference was justified in law. That was not done. We may, however, add that if the inference is treated as one of law, in our view, the Tribunal had drawn it lawfully and this view would receive support from A. Govindarajulu Mudaliars case.In the case for the assessment yearthe corresponding question was in identical terms except that the figures mentioned in it were Rs. 19, 575 and Rs. 20, 000. The High Court answered the question in the affirmative, and in our view rightly, for we do not think that any other answer is possible.10. We are in some difficulty in appreciating the point of this question also. The question would seem to suggest that because the income from a disclosed source has been computed on the basis of an estimate and not on the basis of the return filed in respect of it, an income represented by a credit entry in the books of account of that source cannot be held to be income from another and undisclosed source. We do not see why it cannot be so held. It appears from the judgment of the High Court that the reason given in support of the suggestion was that if that income was held to be income of an undisclosed source, the result would be double taxation of the same income which theAct does not contemplate. Apparently, it was said that there would be double taxation because it was assumed that the same income had once been earlier taxed on the basis of an estimate. This reason is obviously fallacious, for if the income is treated as one from an undisclosed source which the question postulates, it is not treated as income of the disclosed source which had previously been assessed to tax and, therefore, there is in such a case no double taxation. It is not a case where the income sought to be taxed was held to be undisclosed income of a disclosed source, the income of which source had previously been taxed on the basis of an estimate. If it were so, the question of double taxation might have been legitimately raised. That, however, is clearly not the case here as the question as framed itself shows.We concede that the question as to the source from which a particular income is derived is one which has to be decided on all the facts of the case. Hence the question whether income represented by an entry in the books of a business is income of that business or of another business would have to be decided on the facts which showed the business to which it belonged. But quite clearly the answer to that question would not depend on whether the income from the first mentioned business had been computed on the basis of a return filed or of an estimate of the income made by the taxing authorities. This, however, is what the question as framed suggests, and that suggestion is in our view wholly without foundation. Therefore, it cannot be said that the taxing authorities were precluded from treating the amounts of the credit entries as income from undisclosed sources simply because the entries appear in the books of a business whose income they had previously computed on a percentage basis. That is why we think that the answer to the question as framed must be in the affirmative.11. As we have earlier said, the question as to the source from which a particular income is derived has to be decided on all the facts of the case. In the present case, theOfficer held the income represented by the credit entries to be income from undisclosed sources, that is, neither from the manihari (general merchandise) nor from the bidi business of the assessee which he had disclosed. This view was upheld by the Appellate Commissioner and by the Tribunal excepting as to two of the amounts earlier mentioned. It was open to the assessee to raise the question that the finding that those amounts were income received from undisclosed sources was not based on any evidence or was, for other reasons, perverse. It appears that he did raise some questions of this type before the Tribunal for reference to the High Court but the Tribunal did not think that those questions legitimately arose and did not refer them to the High Court. The assessee accepted the decision of the Tribunal and did not move the High Court to direct a reference in regard to those questions under section 66(2). Those questions, therefore, cannot be raised in this court. We have dealt with the reference made on the basis that the finding that the amounts of the credit entries were income received from undisclosed sources was disputed only on the ground that the income from the business had been computed on the basis of an estimate. In the circumstances of the case we could not have done anything else. | 0 | 2,182 | 1,303 | ### Instruction:
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which arises out of the decision of the Tribunal nor one which the Tribunal has at all answered. It does not seem to us that a question in this form can be referred under section 66. The High Court, however, answered the question by saying that the inference was one of fact. If this is the correct view, then the matter ends there, for, as we have said, on questions of fact the Tribunal is the final authority. If, on the other hand, the inference is one of law, then a question may have been referred to the High Court as to whether the inference was justified in law. That was not done. We may, however, add that if the inference is treated as one of law, in our view, the Tribunal had drawn it lawfully and this view would receive support from A. Govindarajulu Mudaliars case.We have now to deal with the last question, question No.6, which, as framed in the case for the assessment year 1945-46, is set out below :"Whether having regard to the fact that the Income-tax Officer has assessed the income on a percentage basis, he was justified in treating the said sums of Rs. 41, 300 and Rs. 11, 000 as profits from an undisclosed source ?"9. In the case for the assessment year 1947-48 the corresponding question was in identical terms except that the figures mentioned in it were Rs. 19, 575 and Rs. 20, 000. The High Court answered the question in the affirmative, and in our view rightly, for we do not think that any other answer is possible.10. We are in some difficulty in appreciating the point of this question also. The question would seem to suggest that because the income from a disclosed source has been computed on the basis of an estimate and not on the basis of the return filed in respect of it, an income represented by a credit entry in the books of account of that source cannot be held to be income from another and undisclosed source. We do not see why it cannot be so held. It appears from the judgment of the High Court that the reason given in support of the suggestion was that if that income was held to be income of an undisclosed source, the result would be double taxation of the same income which the Income-tax Act does not contemplate. Apparently, it was said that there would be double taxation because it was assumed that the same income had once been earlier taxed on the basis of an estimate. This reason is obviously fallacious, for if the income is treated as one from an undisclosed source which the question postulates, it is not treated as income of the disclosed source which had previously been assessed to tax and, therefore, there is in such a case no double taxation. It is not a case where the income sought to be taxed was held to be undisclosed income of a disclosed source, the income of which source had previously been taxed on the basis of an estimate. If it were so, the question of double taxation might have been legitimately raised. That, however, is clearly not the case here as the question as framed itself shows.We concede that the question as to the source from which a particular income is derived is one which has to be decided on all the facts of the case. Hence the question whether income represented by an entry in the books of a business is income of that business or of another business would have to be decided on the facts which showed the business to which it belonged. But quite clearly the answer to that question would not depend on whether the income from the first mentioned business had been computed on the basis of a return filed or of an estimate of the income made by the taxing authorities. This, however, is what the question as framed suggests, and that suggestion is in our view wholly without foundation. Therefore, it cannot be said that the taxing authorities were precluded from treating the amounts of the credit entries as income from undisclosed sources simply because the entries appear in the books of a business whose income they had previously computed on a percentage basis. That is why we think that the answer to the question as framed must be in the affirmative.11. As we have earlier said, the question as to the source from which a particular income is derived has to be decided on all the facts of the case. In the present case, the Income-tax Officer held the income represented by the credit entries to be income from undisclosed sources, that is, neither from the manihari (general merchandise) nor from the bidi business of the assessee which he had disclosed. This view was upheld by the Appellate Commissioner and by the Tribunal excepting as to two of the amounts earlier mentioned. It was open to the assessee to raise the question that the finding that those amounts were income received from undisclosed sources was not based on any evidence or was, for other reasons, perverse. It appears that he did raise some questions of this type before the Tribunal for reference to the High Court but the Tribunal did not think that those questions legitimately arose and did not refer them to the High Court. The assessee accepted the decision of the Tribunal and did not move the High Court to direct a reference in regard to those questions under section 66(2). Those questions, therefore, cannot be raised in this court. We have dealt with the reference made on the basis that the finding that the amounts of the credit entries were income received from undisclosed sources was disputed only on the ground that the income from the business had been computed on the basis of an estimate. In the circumstances of the case we could not have done anything else.
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it is one of law. If it is of fact, no question with regard to it can be referred to the High Court. If it is one of law, then a question whether the inference could in law be drawn might be referred to the High Court. But the question whether the inference drawn by the Tribunal is one of law or fact, which is the question here framed, is not a question which arises out of the decision of the Tribunal nor one which the Tribunal has at all answered. It does not seem to us that a question in this form can be referred under section 66. The High Court, however, answered the question by saying that the inference was one of fact. If this is the correct view, then the matter ends there, for, as we have said, on questions of fact the Tribunal is the final authority. If, on the other hand, the inference is one of law, then a question may have been referred to the High Court as to whether the inference was justified in law. That was not done. We may, however, add that if the inference is treated as one of law, in our view, the Tribunal had drawn it lawfully and this view would receive support from A. Govindarajulu Mudaliars case.In the case for the assessment yearthe corresponding question was in identical terms except that the figures mentioned in it were Rs. 19, 575 and Rs. 20, 000. The High Court answered the question in the affirmative, and in our view rightly, for we do not think that any other answer is possible.10. We are in some difficulty in appreciating the point of this question also. The question would seem to suggest that because the income from a disclosed source has been computed on the basis of an estimate and not on the basis of the return filed in respect of it, an income represented by a credit entry in the books of account of that source cannot be held to be income from another and undisclosed source. We do not see why it cannot be so held. It appears from the judgment of the High Court that the reason given in support of the suggestion was that if that income was held to be income of an undisclosed source, the result would be double taxation of the same income which theAct does not contemplate. Apparently, it was said that there would be double taxation because it was assumed that the same income had once been earlier taxed on the basis of an estimate. This reason is obviously fallacious, for if the income is treated as one from an undisclosed source which the question postulates, it is not treated as income of the disclosed source which had previously been assessed to tax and, therefore, there is in such a case no double taxation. It is not a case where the income sought to be taxed was held to be undisclosed income of a disclosed source, the income of which source had previously been taxed on the basis of an estimate. If it were so, the question of double taxation might have been legitimately raised. That, however, is clearly not the case here as the question as framed itself shows.We concede that the question as to the source from which a particular income is derived is one which has to be decided on all the facts of the case. Hence the question whether income represented by an entry in the books of a business is income of that business or of another business would have to be decided on the facts which showed the business to which it belonged. But quite clearly the answer to that question would not depend on whether the income from the first mentioned business had been computed on the basis of a return filed or of an estimate of the income made by the taxing authorities. This, however, is what the question as framed suggests, and that suggestion is in our view wholly without foundation. Therefore, it cannot be said that the taxing authorities were precluded from treating the amounts of the credit entries as income from undisclosed sources simply because the entries appear in the books of a business whose income they had previously computed on a percentage basis. That is why we think that the answer to the question as framed must be in the affirmative.11. As we have earlier said, the question as to the source from which a particular income is derived has to be decided on all the facts of the case. In the present case, theOfficer held the income represented by the credit entries to be income from undisclosed sources, that is, neither from the manihari (general merchandise) nor from the bidi business of the assessee which he had disclosed. This view was upheld by the Appellate Commissioner and by the Tribunal excepting as to two of the amounts earlier mentioned. It was open to the assessee to raise the question that the finding that those amounts were income received from undisclosed sources was not based on any evidence or was, for other reasons, perverse. It appears that he did raise some questions of this type before the Tribunal for reference to the High Court but the Tribunal did not think that those questions legitimately arose and did not refer them to the High Court. The assessee accepted the decision of the Tribunal and did not move the High Court to direct a reference in regard to those questions under section 66(2). Those questions, therefore, cannot be raised in this court. We have dealt with the reference made on the basis that the finding that the amounts of the credit entries were income received from undisclosed sources was disputed only on the ground that the income from the business had been computed on the basis of an estimate. In the circumstances of the case we could not have done anything else.
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Juggilal Kamlapat Vs. General Fibre Dealers Ltd (And Connected Appeal) | and in particular stress is laid on the collocation of words where these words follow the word "dies". We are however of opinion that these words cannot take their colour from the word "dies" and are a separate category by themselves and must be interpreted on their own. Now there is no doubt that generally speaking an arbitrator may become incapable of acting because of some physical cause, for example, he may fall ill or may go mad and so on. But we do not think that these words only refer to physical incapacity ; in our opinion, they refer to any kind of incapacity, which may supervene after the appointment of the arbitrators, even to an incapacity from before but which was not known to the parties, or in this case to the Chamber, before they are appointed. We may in this connection refer to the opinion of Russel ("Russel on Arbitration", 15th Edn., p. 187), where dealing with similar words in S. 10 (b) of the English Arbitration Act of 1950, it has been said as follows :-?It would appear that the word incapable in S. 10 (b). must refer to some incapacity arising after the date of the appointment, or not known to the parties at that date." Clearly, therefore, the words "becomes incapable of acting", do not merely refer to physical incapacity but to any kind of incapacity which arises after the appointment or which was there before the appointment but was not known to the parties, or to the Chamber in this case. Take for example, the case of persons appointed by the Chamber to decide a dispute; after the appointment, one arbitrator acquires an interest in the subject matter of the dispute. Obviously such a person must be held to have become incapable of acting even though there is no question of any physical incapacity on his part. We are, therefore, of opinion that the words "becomes incapable of acting" in R. X are of wide amplitude and do not refer to cases only of physical incapacity but to any kind of incapacity arising after the appointment or even before the appointment provided it was not known to the parties, or to the Chamber in the present case. We cannot, therefore, agree with the High Court that R. X will not apply to the present case. 15. What has happened in this case is that the previous tribunal made an award. That award has been set aside on account of misconduct. In the circumstances we are of opinion that the previous tribunal has become incapable of acting as arbitrator to decide this dispute because of its misconduct. Further as the reference has not been superseded and the arbitration agreement subsists, it was in our opinion open to the Chamber, on the request of the respondent, to appoint another arbitral tribunal under R. X. Therefore, as there is a machinery by which fresh arbitrators can be appointed according to the terms of the arbitration agreement read with the rules of the Chamber and as the reference has not been superseded, the appointment of a fresh tribunal and the carrying on of the arbitration further were within the terms of the arbitration agreement. 16. No other point has been urged on behalf of the appellant in this appeal to challenge the correctness of the decision of the High Court. Therefore, appeal No. 309 must fail. 17. Turning now to appeal No. 525, it is enough to say that it is similar to appeal No. 309 in all respects except one. The difference is that in this case the appellant objected to the appointment of a fresh tribunal and an application was made under S. 33 of the Act praying for the relief that no arbitration agreement existed after the earlier award had been set aside and, therefore, there could be no further arbitration. For reasons which we have already given this contention must fail, for it is not in dispute that in this appeal also when the earlier award was set aside there was no supersession of the reference and the arbitration agreement is in the same terms as in the other appeal. What happened in this case was that the learned Single Judge allowed the application and revoked the authority of the Chamber to arbitrate. There was then an appeal by the present respondent which was allowed on the basis of the Barangore Jute Factory case, 62 Cal W N 734 : (A I R 1958 Cal 490 ). Thereupon the present appeal has been brought to this Court by special leave. It has been contended on behalf of the appellant that the order under S. 33 was not appealable in view of the provisions of S. 39 of the Act and, therefore, the High Court had no jurisdiction in appeal to set aside the order of the learned Single Judge. This point as to jurisdiction was not taken before the appeal Court nor has it been taken in the special leave petition to this Court or in the statement of case. It seems that the appeal was entertained on the High Court on the view that an appeal lay under the Letters Patent from an order of a Single Judge. Even if we were to entertain this argument, the respondent will he entitled to ask for special leave to appeal against the order of the Single Judge and we will be justified having regard to the course of events and the view expressed in the companion appeal in granting leave after condoning the delay, and in passing the same order which has been passed by the High Court in appeal. Technical requirements of procedure may of course be fulfilled by following the course suggested but no useful purpose will be served thereby. For reasons which we have already given the order of the appeal Court is right. There is no reason to interfere with it and this appeal will also have to be dismissed. | 0[ds]8. It is clear from S. 19 that there are three matters which have to be borne in mind in arbitration proceedings. In such a case there can in our opinion be no doubt that where the reference and the arbitration agreement survive the same dispute may go before the arbitrators again provided there is machinery provided in the arbitration agreement which makes this possible. It will thus be seen that the discretion vested in the Court under S. 19 depends upon the nature of the arbitration agreement in particular cases and it is on a consideration of those terms that the Court may decide in one case to supersede the reference and order the arbitration agreement to cease to have effect after taking into account the reasons which have impelled it to set aside the award and in another not to set aside the reference with the result that the reference and the arbitration agreement subsist ; and if the arbitration agreement provides for machinery to have further arbitration on the same dispute or other disputes arising under the arbitration agreement it is permissible to have further arbitration on the same dispute or other disputes. The same discretion is given to the Court with respect to arbitration under Chap. III of the Act dealing with "arbitration with intervention of a Court where there is no suit pending," as S. 20 (5) provides that after the arbitration agreement has been ordered to be filed, the arbitration shall proceed in accordance with, and shall be governed by, the other provisions of the Act so far as they can be made applicable. Further we find that the same discretion has been given to the Court in the matter of arbitration in suits provided under Chap. IV, as S. 25 provides that "the provisions of the other chapters shall, so far as they can be made applicable, apply to arbitration under this Chapter." The proviso to S. 25 gives discretion to the court in any of the circumstances mentioned in Ss. 8, 10, 11 and 12, instead of filling up the vacancies or making the appointments, to make an order superseding the arbitration and proceed with the suit, and where the court supersedes the arbitration under S. 19 it shall proceed with the suit9. We have already said that generally speaking, the arbitrator becomes functus officio after he has given the award; but that does not in out opinion mean that in no circumstances can there be further arbitration proceedings where an award is set aside or that the same arbitrator can never have anything to do with the award with respect to the same dispute. Section 13 (d), for example, gives power to the arbitrator to correct in an award any clerical mistake or error arising from any accidental slip or omission. Further S. 16 gives power to the court to remit the award to the arbitrator for reconsideration. Therefore, when it is said that the arbitrator is generally functus officio after he has made the award, it only means that he cannot change that award in any matter of substance himself. But that does not take away the courts power to remit the award for reconsideration under S. 16 or to refuse to supersede the reference even though the award is set aside leaving it to the parties to take such further action under the arbitration agreement for further arbitration if it is possible so to do under the terms of a particular arbitration agreement. We are therefore of opinion that whatever may be the position in the absence of a provision similar to S. 19 of the Act there can be no doubt that S. 19 gives power to the court not to supersede the reference and so leave the arbitration agreement effective even when it sets aside the award and thereupon it will depend upon the terms of the arbitration agreement whether arbitration proceedings can go on with respect to the same dispute or with respect to some other disputes arising under the arbitration agreementWe think that this view is correct10. It is not in dispute that the reference was not superseded in this case when the award was set aside in May 1953. It will therefore depend upon the terms of the arbitration agreement in this case whether it was possible to have further arbitration with respect to the same dispute. We have already set out the term in the contract relating to arbitration and it is clear that that term is very wide in its amplitude and contemplates reference of disputes as and when they arise between the parties to the Chamber. Further as the Chamber is constituted the arbitrator in this term of the contract and as the Chamber consists of a large number of members and has its own rules for constituting arbitral tribunals, it is in our opinion quite possible on the terms of such an arbitration agreement to constitute another tribunal to decide the same dispute where the reference remains pending and has not been set aside under S. 19, provided there is machinery for appointing different persons as arbitrators under the rules of the ChamberThose words do not in our opinion show that a second reference was being made of the dispute. The letter begins by saying that the Chamber was aware that the previous award had been set aside. It was in those circumstances that the respondent told the Chamber that it begged to refer the matter for arbitration de novo. In the context this can only mean that the respondent was asking the Chamber to take up the reference again as the reference had not been superseded and arrange to continue the arbitration proceedings further. The only question therefore that will arise is whether under the rules of the Chamber it was possible to constitute another tribunal to consider this dispute again. If that is possible, we fail to see why the arbitration proceedings should not go on further as the reference was not superseded in this case, and the arbitration agreement subsistedIf this contention is justified it will certainly not be possible to appoint another arbitral tribunal to decide the reference after the award made on it by the earlier tribunal is set aside.It appears that no reliance was placed on R. 5 in the High Court; reliance however was placed on Rr. 7 and 10 in the High Court. The High Court held that R. 7 justified the appointment of the tribunal in the present case, though it was of the view that R. 10 would not justify it.We are of opinion that this contention is not well founded. Rule 5 (2) applies to the first appointment after the receipt of the application and that appointment was made in this case and the award of the tribunal appointed under R. 5 (2) was set aside. Rule 5 (2) does not in our opinion contemplate a second appointment after the award of the Court appointed under it on receipt of the application has been set aside. The respondent cannot sustain the appointment of a fresh tribunal under R. 5 (2)Rule 25 makes provision that the award shall be made within four months or within such extended time as may be agreed to between the parties to the reference.Rule VII obviously refers to a case where the time or the extended time allowed to the tribunal has been allowed to expire; it cannot refer to a case where the tribunal has made the award within the time fixed but later that award is set aside by Court. It would in our opinion be stretching the language of R. VII too far to make it applicable to a case like the present. We cannot, therefore, agree with the High Court that R. VII justified the appointment of a fresh tribunal in the present caseWe are of opinion that it was open to the Registrar under this rule to appoint a fresh tribunal because the earlier tribunal had become incapable of acting in view of the fact that its award had been set aside on the ground of misconductWe are however of opinion that these words cannot take their colour from the word "dies" and are a separate category by themselves and must be interpreted on their own. Now there is no doubt that generally speaking an arbitrator may become incapable of acting because of some physical cause, for example, he may fall ill or may go mad and so on. But we do not think that these words only refer to physical incapacity ; in our opinion, they refer to any kind of incapacity, which may supervene after the appointment of the arbitrators, even to an incapacity from before but which was not known to the parties, or in this case to the Chamber, before they are appointed.Clearly, therefore, the words "becomes incapable of acting", do not merely refer to physical incapacity but to any kind of incapacity which arises after the appointment or which was there before the appointment but was not known to the parties, or to the Chamber in this case. Take for example, the case of persons appointed by the Chamber to decide a dispute; after the appointment, one arbitrator acquires an interest in the subject matter of the dispute. Obviously such a person must be held to have become incapable of acting even though there is no question of any physical incapacity on his part. We are, therefore, of opinion that the words "becomes incapable of acting" in R. X are of wide amplitude and do not refer to cases only of physical incapacity but to any kind of incapacity arising after the appointment or even before the appointment provided it was not known to the parties, or to the Chamber in the present case. We cannot, therefore, agree with the High Court that R. X will not apply to the present case15. What has happened in this case is that the previous tribunal made an award. That award has been set aside on account of misconduct. In the circumstances we are of opinion that the previous tribunal has become incapable of acting as arbitrator to decide this dispute because of its misconduct. Further as the reference has not been superseded and the arbitration agreement subsists, it was in our opinion open to the Chamber, on the request of the respondent, to appoint another arbitral tribunal under R. X. Therefore, as there is a machinery by which fresh arbitrators can be appointed according to the terms of the arbitration agreement read with the rules of the Chamber and as the reference has not been superseded, the appointment of a fresh tribunal and the carrying on of the arbitration further were within the terms of the arbitration agreement16. No other point has been urged on behalf of the appellant in this appeal to challenge the correctness of the decision of the High Court. Therefore, appeal No. 309 must fail17. Turning now to appeal No. 525, it is enough to say that it is similar to appeal No. 309 in all respects except one. The difference is that in this case the appellant objected to the appointment of a fresh tribunal and an application was made under S. 33 of the Act praying for the relief that no arbitration agreement existed after the earlier award had been set aside and, therefore, there could be no further arbitration. For reasons which we have already given this contention must fail, for it is not in dispute that in this appeal also when the earlier award was set aside there was no supersession of the reference and the arbitration agreement is in the same terms as in the other appealThis point as to jurisdiction was not taken before the appeal Court nor has it been taken in the special leave petition to this Court or in the statement of case. It seems that the appeal was entertained on the High Court on the view that an appeal lay under the Letters Patent from an order of a Single Judge. Even if we were to entertain this argument, the respondent will he entitled to ask for special leave to appeal against the order of the Single Judge and we will be justified having regard to the course of events and the view expressed in the companion appeal in granting leave after condoning the delay, and in passing the same order which has been passed by the High Court in appeal. Technical requirements of procedure may of course be fulfilled by following the course suggested but no useful purpose will be served thereby. For reasons which we have already given the order of the appeal Court is right. There is no reason to interfere with it and this appeal will also have to be dismissed. | 0 | 5,862 | 2,289 | ### Instruction:
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and in particular stress is laid on the collocation of words where these words follow the word "dies". We are however of opinion that these words cannot take their colour from the word "dies" and are a separate category by themselves and must be interpreted on their own. Now there is no doubt that generally speaking an arbitrator may become incapable of acting because of some physical cause, for example, he may fall ill or may go mad and so on. But we do not think that these words only refer to physical incapacity ; in our opinion, they refer to any kind of incapacity, which may supervene after the appointment of the arbitrators, even to an incapacity from before but which was not known to the parties, or in this case to the Chamber, before they are appointed. We may in this connection refer to the opinion of Russel ("Russel on Arbitration", 15th Edn., p. 187), where dealing with similar words in S. 10 (b) of the English Arbitration Act of 1950, it has been said as follows :-?It would appear that the word incapable in S. 10 (b). must refer to some incapacity arising after the date of the appointment, or not known to the parties at that date." Clearly, therefore, the words "becomes incapable of acting", do not merely refer to physical incapacity but to any kind of incapacity which arises after the appointment or which was there before the appointment but was not known to the parties, or to the Chamber in this case. Take for example, the case of persons appointed by the Chamber to decide a dispute; after the appointment, one arbitrator acquires an interest in the subject matter of the dispute. Obviously such a person must be held to have become incapable of acting even though there is no question of any physical incapacity on his part. We are, therefore, of opinion that the words "becomes incapable of acting" in R. X are of wide amplitude and do not refer to cases only of physical incapacity but to any kind of incapacity arising after the appointment or even before the appointment provided it was not known to the parties, or to the Chamber in the present case. We cannot, therefore, agree with the High Court that R. X will not apply to the present case. 15. What has happened in this case is that the previous tribunal made an award. That award has been set aside on account of misconduct. In the circumstances we are of opinion that the previous tribunal has become incapable of acting as arbitrator to decide this dispute because of its misconduct. Further as the reference has not been superseded and the arbitration agreement subsists, it was in our opinion open to the Chamber, on the request of the respondent, to appoint another arbitral tribunal under R. X. Therefore, as there is a machinery by which fresh arbitrators can be appointed according to the terms of the arbitration agreement read with the rules of the Chamber and as the reference has not been superseded, the appointment of a fresh tribunal and the carrying on of the arbitration further were within the terms of the arbitration agreement. 16. No other point has been urged on behalf of the appellant in this appeal to challenge the correctness of the decision of the High Court. Therefore, appeal No. 309 must fail. 17. Turning now to appeal No. 525, it is enough to say that it is similar to appeal No. 309 in all respects except one. The difference is that in this case the appellant objected to the appointment of a fresh tribunal and an application was made under S. 33 of the Act praying for the relief that no arbitration agreement existed after the earlier award had been set aside and, therefore, there could be no further arbitration. For reasons which we have already given this contention must fail, for it is not in dispute that in this appeal also when the earlier award was set aside there was no supersession of the reference and the arbitration agreement is in the same terms as in the other appeal. What happened in this case was that the learned Single Judge allowed the application and revoked the authority of the Chamber to arbitrate. There was then an appeal by the present respondent which was allowed on the basis of the Barangore Jute Factory case, 62 Cal W N 734 : (A I R 1958 Cal 490 ). Thereupon the present appeal has been brought to this Court by special leave. It has been contended on behalf of the appellant that the order under S. 33 was not appealable in view of the provisions of S. 39 of the Act and, therefore, the High Court had no jurisdiction in appeal to set aside the order of the learned Single Judge. This point as to jurisdiction was not taken before the appeal Court nor has it been taken in the special leave petition to this Court or in the statement of case. It seems that the appeal was entertained on the High Court on the view that an appeal lay under the Letters Patent from an order of a Single Judge. Even if we were to entertain this argument, the respondent will he entitled to ask for special leave to appeal against the order of the Single Judge and we will be justified having regard to the course of events and the view expressed in the companion appeal in granting leave after condoning the delay, and in passing the same order which has been passed by the High Court in appeal. Technical requirements of procedure may of course be fulfilled by following the course suggested but no useful purpose will be served thereby. For reasons which we have already given the order of the appeal Court is right. There is no reason to interfere with it and this appeal will also have to be dismissed.
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5 (2) was set aside. Rule 5 (2) does not in our opinion contemplate a second appointment after the award of the Court appointed under it on receipt of the application has been set aside. The respondent cannot sustain the appointment of a fresh tribunal under R. 5 (2)Rule 25 makes provision that the award shall be made within four months or within such extended time as may be agreed to between the parties to the reference.Rule VII obviously refers to a case where the time or the extended time allowed to the tribunal has been allowed to expire; it cannot refer to a case where the tribunal has made the award within the time fixed but later that award is set aside by Court. It would in our opinion be stretching the language of R. VII too far to make it applicable to a case like the present. We cannot, therefore, agree with the High Court that R. VII justified the appointment of a fresh tribunal in the present caseWe are of opinion that it was open to the Registrar under this rule to appoint a fresh tribunal because the earlier tribunal had become incapable of acting in view of the fact that its award had been set aside on the ground of misconductWe are however of opinion that these words cannot take their colour from the word "dies" and are a separate category by themselves and must be interpreted on their own. Now there is no doubt that generally speaking an arbitrator may become incapable of acting because of some physical cause, for example, he may fall ill or may go mad and so on. But we do not think that these words only refer to physical incapacity ; in our opinion, they refer to any kind of incapacity, which may supervene after the appointment of the arbitrators, even to an incapacity from before but which was not known to the parties, or in this case to the Chamber, before they are appointed.Clearly, therefore, the words "becomes incapable of acting", do not merely refer to physical incapacity but to any kind of incapacity which arises after the appointment or which was there before the appointment but was not known to the parties, or to the Chamber in this case. Take for example, the case of persons appointed by the Chamber to decide a dispute; after the appointment, one arbitrator acquires an interest in the subject matter of the dispute. Obviously such a person must be held to have become incapable of acting even though there is no question of any physical incapacity on his part. We are, therefore, of opinion that the words "becomes incapable of acting" in R. X are of wide amplitude and do not refer to cases only of physical incapacity but to any kind of incapacity arising after the appointment or even before the appointment provided it was not known to the parties, or to the Chamber in the present case. We cannot, therefore, agree with the High Court that R. X will not apply to the present case15. What has happened in this case is that the previous tribunal made an award. That award has been set aside on account of misconduct. In the circumstances we are of opinion that the previous tribunal has become incapable of acting as arbitrator to decide this dispute because of its misconduct. Further as the reference has not been superseded and the arbitration agreement subsists, it was in our opinion open to the Chamber, on the request of the respondent, to appoint another arbitral tribunal under R. X. Therefore, as there is a machinery by which fresh arbitrators can be appointed according to the terms of the arbitration agreement read with the rules of the Chamber and as the reference has not been superseded, the appointment of a fresh tribunal and the carrying on of the arbitration further were within the terms of the arbitration agreement16. No other point has been urged on behalf of the appellant in this appeal to challenge the correctness of the decision of the High Court. Therefore, appeal No. 309 must fail17. Turning now to appeal No. 525, it is enough to say that it is similar to appeal No. 309 in all respects except one. The difference is that in this case the appellant objected to the appointment of a fresh tribunal and an application was made under S. 33 of the Act praying for the relief that no arbitration agreement existed after the earlier award had been set aside and, therefore, there could be no further arbitration. For reasons which we have already given this contention must fail, for it is not in dispute that in this appeal also when the earlier award was set aside there was no supersession of the reference and the arbitration agreement is in the same terms as in the other appealThis point as to jurisdiction was not taken before the appeal Court nor has it been taken in the special leave petition to this Court or in the statement of case. It seems that the appeal was entertained on the High Court on the view that an appeal lay under the Letters Patent from an order of a Single Judge. Even if we were to entertain this argument, the respondent will he entitled to ask for special leave to appeal against the order of the Single Judge and we will be justified having regard to the course of events and the view expressed in the companion appeal in granting leave after condoning the delay, and in passing the same order which has been passed by the High Court in appeal. Technical requirements of procedure may of course be fulfilled by following the course suggested but no useful purpose will be served thereby. For reasons which we have already given the order of the appeal Court is right. There is no reason to interfere with it and this appeal will also have to be dismissed.
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Puttarangamma & 2 Ors Vs. M. S. Ranganna & 3 Ors | plaintiff to revoke or withdraw the unambiguous intention to separate contained in the plaint, so as to restore the joint status and as such the members should be treated as divided members for the purpose of working out their respective rights. 6. We proceed to consider the next question arising in this appeal whether the plaint filed on January 13, 1951 was validly executed by Savoy Ranganna and whether he had affixed his thumb impression thereon after understanding its contents. The case of the appellants is that Sri M. S. Ranganathan prepared the plaint and had gone to the Sharda Nursing Home at about 9-30 or 10 a. m on January 13, 1951. Sri Ranganathan wrote out the plaint, which was in English and translated it to Savoy Ranganna who approved the same. P. W. 2, the clerk of Sri Ranganathan has deposed to this effect. He took the ink-pad and fixed the left thumb impression of Savoy Ranganna on the plaint and also on the Vakalatnama. There is the attestation of Sri M. S. Ranganathan on the plaint and on the Vakalatnama. The papers were handed over to P. W. 2 who after purchasing the necessary court-fee stamps filed the plaint and the Vakalatnama in the court at about 11-30 a. m. or 12 noon on the same day. The evidence of P. W. 2 is corroborated by P. W. 5 Chinnanna. Counsel on behalf of the respondents, however, criticised the evidence of P. W. 2 on the ground that the doctor, D. W. 6 had said that the mental condition of the patient was bad and he was not able to understand things when he examined him on the morning of January 13, 1951. D. W. 6 deposed that he examined Savoy Ranganna during his usual rounds on January 13, 1951 between 8 and 9 a. m. and found his pulse imperceptible and the sounds of the heart feeble On the question as to whether Savoy Ranganna was sufficiently conscious to execute the plaint and the Vakalatnama, the trial court has accepted the evidence of D. W. 2, Keshavaiah in preference to that of D. W. 6. We see no reason for differing from the estimate of the trial court with regard to the evidence of P. W. 2. The trial court has pointed out that it is difficult to accept the evidence of D. W. 6 that Savoy Ranganna was not conscious on the morning of January 13, 1951. In cross-examination D. W. 6 admitted that on the night of January 12, 1951 Savoy Ranganna was conscious. He further admitted that on January 13, 1951 he prescribed the same medicines to Savoy Ranganna as he had prescribed on January 12, 1951. There is no note of the necessary data in the case sheet, Ex. 1 to suggest the Savoy Ranganna was not conscious on January 13, 1951. It is therefore not unreasonable to asusme that the condition of Savoy Ranganna was the same on January 13, 1951 as on January 12, 1951 and there was no perceptible change noticeable in his condition between the two dates. In these circumstances it is not possible to accept the evidence of D. W. 6 that Savoy Ranganna was unconscious on the morning of January 13, 1951. It was pointed out on behalf of the respondents that D. W. 7, Miss Arnold has also given evidence that the condition of Savoy Ranganna became wrose day by day and on the last day his condition was very bad and he could not understand much nor would he respond to her calls. The trial court was not impressed with the evidence of this witness. In our opinion, her evidence suffers from the same infirmity as of D. W. 6, because the case sheet, Ex. I does not corroborate her evidence. It is also difficult to believe that D. W. 7 could remember the details of Savoy Rangannas case after a lapse of three years without the help of any written case sheet. There is also an important discrepancy in the evidence of D. W. 7. She said that on January 18, 1951 she called D. W. 6 at 12 noon since the condition of the patient was very bad but D. W. 6 has said that he did not visit Savoy Ranganna after 8 or 9 a. m. on that date. Comment was made by Counsel or behalf of the respondents that Sri Ranganathan was not examined as a witness to prove that he had prepared the plaint and Savoy Ranganna had affixed his thumb impression in his presence. In our opinion, the omission of Sri Ranganathan to give evidence in this case is unfortunate. It would have been proper conduct on his part if he had returned the brief of the appellants and given evidence in the case as to the execution of the plaint and the Vakalatnama. But in spite of this circumstance we consider that the evidence of the appellants on this aspect of the case must be accepted as true. It is necessary to notice that the plaint and the Vakalatnama are both countersigned by Sri. Ranganathan - a responsible Advocate - and it is not likely that he would subscribe his signature to these documents if they had been executed by a person who was unable to understand the contents there of. As we have already said, it is unfortunate that the Advocate Sri Ranganathan has not been examined as a witness, but in spite of this omission we are satisfied that the evidence adduced in the case has established that Savoy Ranganna validly executed the plaint and the Vakalatnama and that he was conscious and was in full possession of his mental faculties at the time of the execution of these two-documents. It follows therefore that the appellants and respondent No. 4 who are the daughters and legal representatives of Savoy Ranganna are entitled to a decree in the terms granted by the District Judge of Mysore. | 1[ds]It is admitted that Savoy Ranganna was very old, about 85 years of age and was ailing of chronic diarrhoea. He was living in the family house till January 4, 1851 when he was removed to the Sharda Nursing Home where he died on January 13, 1951 at 3 p. m. According to the case of respondent No. 1 Savoy Ranganna had a paralytic stroke in 1950 and was completely, bed-ridden there after and his eye-sight was bad for 5 to 6 years prior to his death. It was alleged in the Written Statement that Savoy Ranganna was unconscious for some days prior to his death The case of respondent No. 1 on this point is disproved by the evidence of D. W. 6, Dr. Venkata Rao who was in-charge of the Sharda Nursing Home on the material dates This witness admitted that the complaint of Savoy Ranganna was that he was suffering from chronic diarrhoea for over five months. He was anaemic but he was not suffering from any attack of paralysis. As regards the condition of Savoy Raganna on January 8, 1951, the evidence of P. W. 1, Dr. Subbaramiah is important. This witness is the owner of the Sharda Nursing Home and he has testified that the notice Ex. A was read over to Savoy Ranganna and after getting read the latter affixed his thumb mark there on. The witness asked Savoy Ranganna whether he was able to understand the contents of the notice and the latter replied in the affirmative. The witness has certified on the notice, Ex. A-1 that Savoy Ranganna was conscious when he affixed his left thumb mark to the notice in his presence No reason was suggested on behalf of the respondents why the evidence of this witness should be disbelieved4. It is now a settled doctrine of Hindu Law that a member of a joint Hindu family can bring about his separation in status by a definite, unequivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severalty. It is not necessary that there should be an agreement between all the coparceners for the disruption of the joint status. It is immaterial in such a case whether the other coparceners give their assent to the separation or not. The jural basis of this doctrine has been expounded by the early writers of Hindu LawThe process if communication may, however, vary in the circumstances of each particular case.It is not necessary that there should be a formal despatch to or receipt by other members of the family of the communication announcing the intention to divide on the part of one member of the joint family. The proof of such a despatch or receipt of the communication is not essential, nor its absence fatal to the severance of the status. It is, of course, necessary that the declaration to be effective should reach the person or persons affected by some process appropriate to the given situation and circumstances of the particular case. Applying this principle to the facts found in the present case, we are of opinion that there was a definite and unequivocal declaration of his intention to separate on the part of Savoy Ranganna and that intention was conveyed to respondent No. 1 and other members of the joint family and respondent No. 1 had full knowledge of the intention of Savoy Ranganna. It follows therefore that there was a division of status of Savoy Ranganna from the joint Hindu family with effect from January 8, 1951 which was the date of the notice6. We proceed to consider the next question arising in this appeal whether the plaint filed on January 13, 1951 was validly executed by Savoy Ranganna and whether he had affixed his thumb impression thereon after understanding its contents. The case of the appellants is that Sri M. S. Ranganathan prepared the plaint and had gone to the Sharda Nursing Home at about0 or 10 a. m on January 13, 1951.Sri Ranganathan wrote out the plaint, which was in English and translated it to Savoy Ranganna who approved the same. P. W. 2, the clerk of Sri Ranganathan has deposed to this effect. He took the ink-pad and fixed the left thumb impression of Savoy Ranganna on the plaint and also on the Vakalatnama. There is the attestation of Sri M. S. Ranganathan on the plaint and on the Vakalatnama. The papers were handed over to P. W. 2 who after purchasing the necessary court-fee stamps filed the plaint and the Vakalatnama in the court at about 11-30 a. m. or 12 noon on the same dayComment was made by Counsel or behalf of the respondents that Sri Ranganathan was not examined as a witness to prove that he had prepared the plaint and Savoy Ranganna had affixed his thumb impression in his presence. In our opinion, the omission of Sri Ranganathan to give evidence in this case is unfortunate. It would have been proper conduct on his part if he had returned the brief of the appellants and given evidence in the case as to the execution of the plaint and the Vakalatnama. But in spite of this circumstance we consider that the evidence of the appellants on this aspect of the case must be accepted as true. It is necessary to notice that the plaint and the Vakalatnama are both countersigned by Sri. Ranganathan - a responsible Advocate - and it is not likely that he would subscribe his signature to these documents if they had been executed by a person who was unable to understand the contents there of. As we have already said, it is unfortunate that the Advocate Sri Ranganathan has not been examined as a witness, but in spite of this omission we are satisfied that the evidence adduced in the case has established that Savoy Ranganna validly executed the plaint and the Vakalatnama and that he was conscious and was in full possession of his mental faculties at the time of the execution of these two-documents. It follows therefore that the appellants and respondent No. 4 who are the daughters and legal representatives of Savoy Ranganna are entitled to a decree in the terms granted by the District Judge of Mysore. | 1 | 5,041 | 1,112 | ### Instruction:
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plaintiff to revoke or withdraw the unambiguous intention to separate contained in the plaint, so as to restore the joint status and as such the members should be treated as divided members for the purpose of working out their respective rights. 6. We proceed to consider the next question arising in this appeal whether the plaint filed on January 13, 1951 was validly executed by Savoy Ranganna and whether he had affixed his thumb impression thereon after understanding its contents. The case of the appellants is that Sri M. S. Ranganathan prepared the plaint and had gone to the Sharda Nursing Home at about 9-30 or 10 a. m on January 13, 1951. Sri Ranganathan wrote out the plaint, which was in English and translated it to Savoy Ranganna who approved the same. P. W. 2, the clerk of Sri Ranganathan has deposed to this effect. He took the ink-pad and fixed the left thumb impression of Savoy Ranganna on the plaint and also on the Vakalatnama. There is the attestation of Sri M. S. Ranganathan on the plaint and on the Vakalatnama. The papers were handed over to P. W. 2 who after purchasing the necessary court-fee stamps filed the plaint and the Vakalatnama in the court at about 11-30 a. m. or 12 noon on the same day. The evidence of P. W. 2 is corroborated by P. W. 5 Chinnanna. Counsel on behalf of the respondents, however, criticised the evidence of P. W. 2 on the ground that the doctor, D. W. 6 had said that the mental condition of the patient was bad and he was not able to understand things when he examined him on the morning of January 13, 1951. D. W. 6 deposed that he examined Savoy Ranganna during his usual rounds on January 13, 1951 between 8 and 9 a. m. and found his pulse imperceptible and the sounds of the heart feeble On the question as to whether Savoy Ranganna was sufficiently conscious to execute the plaint and the Vakalatnama, the trial court has accepted the evidence of D. W. 2, Keshavaiah in preference to that of D. W. 6. We see no reason for differing from the estimate of the trial court with regard to the evidence of P. W. 2. The trial court has pointed out that it is difficult to accept the evidence of D. W. 6 that Savoy Ranganna was not conscious on the morning of January 13, 1951. In cross-examination D. W. 6 admitted that on the night of January 12, 1951 Savoy Ranganna was conscious. He further admitted that on January 13, 1951 he prescribed the same medicines to Savoy Ranganna as he had prescribed on January 12, 1951. There is no note of the necessary data in the case sheet, Ex. 1 to suggest the Savoy Ranganna was not conscious on January 13, 1951. It is therefore not unreasonable to asusme that the condition of Savoy Ranganna was the same on January 13, 1951 as on January 12, 1951 and there was no perceptible change noticeable in his condition between the two dates. In these circumstances it is not possible to accept the evidence of D. W. 6 that Savoy Ranganna was unconscious on the morning of January 13, 1951. It was pointed out on behalf of the respondents that D. W. 7, Miss Arnold has also given evidence that the condition of Savoy Ranganna became wrose day by day and on the last day his condition was very bad and he could not understand much nor would he respond to her calls. The trial court was not impressed with the evidence of this witness. In our opinion, her evidence suffers from the same infirmity as of D. W. 6, because the case sheet, Ex. I does not corroborate her evidence. It is also difficult to believe that D. W. 7 could remember the details of Savoy Rangannas case after a lapse of three years without the help of any written case sheet. There is also an important discrepancy in the evidence of D. W. 7. She said that on January 18, 1951 she called D. W. 6 at 12 noon since the condition of the patient was very bad but D. W. 6 has said that he did not visit Savoy Ranganna after 8 or 9 a. m. on that date. Comment was made by Counsel or behalf of the respondents that Sri Ranganathan was not examined as a witness to prove that he had prepared the plaint and Savoy Ranganna had affixed his thumb impression in his presence. In our opinion, the omission of Sri Ranganathan to give evidence in this case is unfortunate. It would have been proper conduct on his part if he had returned the brief of the appellants and given evidence in the case as to the execution of the plaint and the Vakalatnama. But in spite of this circumstance we consider that the evidence of the appellants on this aspect of the case must be accepted as true. It is necessary to notice that the plaint and the Vakalatnama are both countersigned by Sri. Ranganathan - a responsible Advocate - and it is not likely that he would subscribe his signature to these documents if they had been executed by a person who was unable to understand the contents there of. As we have already said, it is unfortunate that the Advocate Sri Ranganathan has not been examined as a witness, but in spite of this omission we are satisfied that the evidence adduced in the case has established that Savoy Ranganna validly executed the plaint and the Vakalatnama and that he was conscious and was in full possession of his mental faculties at the time of the execution of these two-documents. It follows therefore that the appellants and respondent No. 4 who are the daughters and legal representatives of Savoy Ranganna are entitled to a decree in the terms granted by the District Judge of Mysore.
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3 p. m. According to the case of respondent No. 1 Savoy Ranganna had a paralytic stroke in 1950 and was completely, bed-ridden there after and his eye-sight was bad for 5 to 6 years prior to his death. It was alleged in the Written Statement that Savoy Ranganna was unconscious for some days prior to his death The case of respondent No. 1 on this point is disproved by the evidence of D. W. 6, Dr. Venkata Rao who was in-charge of the Sharda Nursing Home on the material dates This witness admitted that the complaint of Savoy Ranganna was that he was suffering from chronic diarrhoea for over five months. He was anaemic but he was not suffering from any attack of paralysis. As regards the condition of Savoy Raganna on January 8, 1951, the evidence of P. W. 1, Dr. Subbaramiah is important. This witness is the owner of the Sharda Nursing Home and he has testified that the notice Ex. A was read over to Savoy Ranganna and after getting read the latter affixed his thumb mark there on. The witness asked Savoy Ranganna whether he was able to understand the contents of the notice and the latter replied in the affirmative. The witness has certified on the notice, Ex. A-1 that Savoy Ranganna was conscious when he affixed his left thumb mark to the notice in his presence No reason was suggested on behalf of the respondents why the evidence of this witness should be disbelieved4. It is now a settled doctrine of Hindu Law that a member of a joint Hindu family can bring about his separation in status by a definite, unequivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severalty. It is not necessary that there should be an agreement between all the coparceners for the disruption of the joint status. It is immaterial in such a case whether the other coparceners give their assent to the separation or not. The jural basis of this doctrine has been expounded by the early writers of Hindu LawThe process if communication may, however, vary in the circumstances of each particular case.It is not necessary that there should be a formal despatch to or receipt by other members of the family of the communication announcing the intention to divide on the part of one member of the joint family. The proof of such a despatch or receipt of the communication is not essential, nor its absence fatal to the severance of the status. It is, of course, necessary that the declaration to be effective should reach the person or persons affected by some process appropriate to the given situation and circumstances of the particular case. Applying this principle to the facts found in the present case, we are of opinion that there was a definite and unequivocal declaration of his intention to separate on the part of Savoy Ranganna and that intention was conveyed to respondent No. 1 and other members of the joint family and respondent No. 1 had full knowledge of the intention of Savoy Ranganna. It follows therefore that there was a division of status of Savoy Ranganna from the joint Hindu family with effect from January 8, 1951 which was the date of the notice6. We proceed to consider the next question arising in this appeal whether the plaint filed on January 13, 1951 was validly executed by Savoy Ranganna and whether he had affixed his thumb impression thereon after understanding its contents. The case of the appellants is that Sri M. S. Ranganathan prepared the plaint and had gone to the Sharda Nursing Home at about0 or 10 a. m on January 13, 1951.Sri Ranganathan wrote out the plaint, which was in English and translated it to Savoy Ranganna who approved the same. P. W. 2, the clerk of Sri Ranganathan has deposed to this effect. He took the ink-pad and fixed the left thumb impression of Savoy Ranganna on the plaint and also on the Vakalatnama. There is the attestation of Sri M. S. Ranganathan on the plaint and on the Vakalatnama. The papers were handed over to P. W. 2 who after purchasing the necessary court-fee stamps filed the plaint and the Vakalatnama in the court at about 11-30 a. m. or 12 noon on the same dayComment was made by Counsel or behalf of the respondents that Sri Ranganathan was not examined as a witness to prove that he had prepared the plaint and Savoy Ranganna had affixed his thumb impression in his presence. In our opinion, the omission of Sri Ranganathan to give evidence in this case is unfortunate. It would have been proper conduct on his part if he had returned the brief of the appellants and given evidence in the case as to the execution of the plaint and the Vakalatnama. But in spite of this circumstance we consider that the evidence of the appellants on this aspect of the case must be accepted as true. It is necessary to notice that the plaint and the Vakalatnama are both countersigned by Sri. Ranganathan - a responsible Advocate - and it is not likely that he would subscribe his signature to these documents if they had been executed by a person who was unable to understand the contents there of. As we have already said, it is unfortunate that the Advocate Sri Ranganathan has not been examined as a witness, but in spite of this omission we are satisfied that the evidence adduced in the case has established that Savoy Ranganna validly executed the plaint and the Vakalatnama and that he was conscious and was in full possession of his mental faculties at the time of the execution of these two-documents. It follows therefore that the appellants and respondent No. 4 who are the daughters and legal representatives of Savoy Ranganna are entitled to a decree in the terms granted by the District Judge of Mysore.
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Viral Filaments Limited, Mumbai Vs. Indusind Bank Limited, Mumbai | will be necessary for the DRT to decide questions of priority bearing in mind the principles underlying section 73 of the Code of Civil Procedure inasmuch as section 22 of the RDB Act gives sufficiently wide power to the Tribunal/ Appellate Tribunal to decide such questions of priorities, subject only to the principles of natural justice. In fact, as the Supreme Court pointed out, the powers under section 22 of the RDB Act are much wider than those of Civil Courts and the only restriction on its powers is that principles of natural justice are to be followed. 17.Upon a careful consideration of the judgment in Allahabad Bank (supra), we are unable to agree with the learned Counsel for the Appellant that this judgment in any manner supports the contention that merely because the petitioning creditor before the Company Court is a bank/financial institution or because an application has already been filed before the DRT under the provisions of the RDB Act, the petition for winding up would not be maintainable. 18.Mr. Shah raised a subsidiary contention that the role placed by the Company Court under section 433 of the Companies Act and the DRT under the RDB Act is more or less equivalent since in the Company Petition also the Company Court has to adjudicate the amount due to the petitioning creditor before it can admit petition under section 433(e) of the Companies Act, 1956. In our view, this contention is misconceived. As we have already observed the admission of petition for winding up under section 433(e) need not be preceded by an adjudicated liability of the Company. It proceeds upon the inability of the Company to pay its debts. Section 434(1)(a) prescribes a statutory presumption of such inability on the part of the Company if the conditions prescribed therein are fulfilled. We recount the oft-quoted words of Lord Asquith in East End Dwelling Co. Ltd. vs. Finsbury Borough Council, (1951) 2 ALL ER 587 (HL), "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The Statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." (Followed by the Supreme Court with approval in State of Bombay vs. Pandurang Vinayak and others, AIR 1953 SC 244 , CIT, Delhi vs. S. Teja Singh, AIR 1959 SC 352 and Chief Inspector of Mines vs. Karam Chand Thapar, AIR 1961 SC 838 ). Thus, if the statute says that the Company must be deemed to be unable to pay its debts, the logical result would be to admit the petition for winding up to investigate it. We find it difficult to accept the contention that the admission of the petition can only follow upon the adjudicated liability of the Company towards the petitioning creditor. 19.Mr. Shah then made an argument which appears to us to be one of desperation. He contends that an order of winding up is an discretionary order and where it is possible to ascertain that a large number of employees are likely to be rendered jobless as a result of the order, or where there are other circumstances indicating that the financial stringency is a temporary phase and the Company is able to get out of it, there is no need for the Company Court to make an order for winding up. He relied on the judgment of the Company Court of the Gujarat High Court in Rishi Enterprises In re, Vol. 73, 1992 Company Cases 271 and the judgment of the Punjab and Haryana High Court in State Trading Corporation of India Ltd. vs. Punjab Tanneries Ltd., Vol. 66 1989 Company Cases 634. What has been held in these two judgments is unexceptionable. If there is a silver lining, then the dark clouds need not impel the Company Court into admitting the petition for winding up the Company. But is there a silver lining at all in the Appellants case is the crucial question. We have already referred to the gist of the affidavit in reply filed to oppose admission of the winding up petition. One would have expected the argument to be based on surer foundation. If there was any material presented before the Company Court to indicate that the Companys assets far exceeded its liabilities, or that the cash crunch was only a temporary phase, and given a little breathing time, the Company would soon come out of straits, the argument could have been considered. After anxiously scanning the affidavit in reply, we find neither any pleading, nor any material particulars which could have satisfied the learned Company Judge on this issue. Thus, the learned Company Judge had nothing but the statutory presumption to fall upon, which he rightly followed up with an order of admission of the petition. Hence, we are unable to say that the learned Company Judge in any way erred in admitting the petition for winding up. 20.For all the aforesaid reasons, we agree with the order made by the learned Single Judge admitting the petition for winding up. We see no reason to interfere with it. In fact, much of the discussion with regard to adjustment of the priorities is really uncalled for in the facts of the present case, for the petition has just been admitted. As to how and in what manner the question of priorities has to be dealt with in a situation of conflict between RDB Act and the provisions of sections 529 and 529A of the Companies Act, 1956, we need express no opinion; nor do we do so. The Appeal is dismissed as without substance. However, there will be no order as to costs. | 0[ds]5.Section 18 of the RDB Act provides that, on and from the appointed day, jurisdiction of Courts and other authorities in relation to matters specified in section 17 is barred. Section 17 provides that on and from the appointed day, a Tribunal constituted under the RDB Act shall exercise the jurisdiction, powers and authority "to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions." Thus, it is obvious that the exclusion of the jurisdiction of all other Courts and authorities is only to the extent the jurisdiction is specifically vested in the DRT. That jurisdiction under section 17 is only the jurisdiction to entertain and decide applications from banks and financial institutions for recovery of debts due toargument of Mr. Shah that what could be done by the Company Court can equally be done by the DRT under the RDB Act is erroneous. There is no provision in the RDB Act empowering the Tribunal to wind up a Company which owes the debt to the applicant financial institution. The jurisdiction of the Tribunal under the RDB Act is only to adjudicate the liability of the respondent before it, ascertain the "debt" due to the bank/ financial institution and issue a certificate for recovery thereof. Once such a certificate of recovery is issued to the Recovery Officer, the Recovery Officer is empowered to execute the same in the manner prescribed under the RDB Act. We find that the jurisdiction to wind up the Company is wholly unavailable to the DRT. Hence, what could be done by the Company Court under section 433(e) could obviously not be done byto Point (1), the Supreme Court held (paragraph 23) that it is not the intendment of the RDB Act that while the basic liability of the Defendant is to be decided by the Tribunal under section 17, the banks/financial institutions should go to the Civil Court or the Company Court or some other authority outside the Act for the actual realisation of the amount. Placing reliance on the provisions of section 34(1) of the RDB Act, Supreme Court held that the RDB Act overrides other laws to the extent of "inconsistency" and that the prescription of an exclusive Tribunal both for adjudication and execution is a procedure clearly inconsistent with realisation of these debts in any other manner. It was held that the adjudication of the liability and the recovery of amount by execution of the certificate are, respectively, within the exclusive jurisdiction of the DRT and the Recovery Officer and no other Court or authority, much less the Civil Court or the Company Court, can go into the said question relating to the liability and the recovery except as provided in the Act. 11.Dealing with Point 2, the Supreme Court holds in Allahabad Banks case (supra) that as the Company Court had no jurisdiction to decide questions which were exclusively left to the jurisdiction of the DRT and would have no "jurisdiction to transfer the application pending before the DRT to itself for trial, no purpose would be served by insisting on leave being asked from the Company Court before the application could be proceeded with before the DRT. For this reason, the Supreme Court was inclined to hold that there was no need for the Appellant Bank to seek leave of the Company Court to proceed with its claim before DRT or in respect of the execution proceedings before the Recovery Officer. It was also held that such proceedings could not be transferred to the Company Court.16.Dealing with the argument based on sections 529 and529A of the Companies Act, 1956,in the light of the provisions of the RDB Act, the Supreme Court held that it will be necessary for the DRT to decide questions of priority bearing in mind the principles underlying section 73 of the Code of Civil Procedure inasmuch as section 22 of the RDB Act gives sufficiently wide power to the Tribunal/ Appellate Tribunal to decide such questions of priorities, subject only to the principles of natural justice. In fact, as the Supreme Court pointed out, the powers under section 22 of the RDB Act are much wider than those of Civil Courts and the only restriction on its powers is that principles of natural justice are to be followed.we have already observed the admission of petition for winding up under section 433(e) need not be preceded by an adjudicated liability of the Company. It proceeds upon the inability of the Company to pay its debts. Section 434(1)(a) prescribes a statutory presumption of such inability on the part of the Company if the conditions prescribed therein areanxiously scanning the affidavit in reply, we find neither any pleading, nor any material particulars which could have satisfied the learned Company Judge on this issue. Thus, the learned Company Judge had nothing but the statutory presumption to fall upon, which he rightly followed up with an order of admission of the petition. Hence, we are unable to say that the learned Company Judge in any way erred in admitting the petition for winding up. 20.For all the aforesaid reasons, we agree with the order made by the learned Single Judge admitting the petition for winding up. We see no reason to interfere with it. In fact, much of the discussion with regard to adjustment of the priorities is really uncalled for in the facts of the present case, for the petition has just been admitted. As to how and in what manner the question of priorities has to be dealt with in a situation of conflict between RDB Act and the provisions of sections 529 and529A of the Companies Act, 1956,we need express no opinion; nor do we do so. The Appeal is dismissed as without substance. However, there will be no order as to costs. | 0 | 4,062 | 1,071 | ### 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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will be necessary for the DRT to decide questions of priority bearing in mind the principles underlying section 73 of the Code of Civil Procedure inasmuch as section 22 of the RDB Act gives sufficiently wide power to the Tribunal/ Appellate Tribunal to decide such questions of priorities, subject only to the principles of natural justice. In fact, as the Supreme Court pointed out, the powers under section 22 of the RDB Act are much wider than those of Civil Courts and the only restriction on its powers is that principles of natural justice are to be followed. 17.Upon a careful consideration of the judgment in Allahabad Bank (supra), we are unable to agree with the learned Counsel for the Appellant that this judgment in any manner supports the contention that merely because the petitioning creditor before the Company Court is a bank/financial institution or because an application has already been filed before the DRT under the provisions of the RDB Act, the petition for winding up would not be maintainable. 18.Mr. Shah raised a subsidiary contention that the role placed by the Company Court under section 433 of the Companies Act and the DRT under the RDB Act is more or less equivalent since in the Company Petition also the Company Court has to adjudicate the amount due to the petitioning creditor before it can admit petition under section 433(e) of the Companies Act, 1956. In our view, this contention is misconceived. As we have already observed the admission of petition for winding up under section 433(e) need not be preceded by an adjudicated liability of the Company. It proceeds upon the inability of the Company to pay its debts. Section 434(1)(a) prescribes a statutory presumption of such inability on the part of the Company if the conditions prescribed therein are fulfilled. We recount the oft-quoted words of Lord Asquith in East End Dwelling Co. Ltd. vs. Finsbury Borough Council, (1951) 2 ALL ER 587 (HL), "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The Statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." (Followed by the Supreme Court with approval in State of Bombay vs. Pandurang Vinayak and others, AIR 1953 SC 244 , CIT, Delhi vs. S. Teja Singh, AIR 1959 SC 352 and Chief Inspector of Mines vs. Karam Chand Thapar, AIR 1961 SC 838 ). Thus, if the statute says that the Company must be deemed to be unable to pay its debts, the logical result would be to admit the petition for winding up to investigate it. We find it difficult to accept the contention that the admission of the petition can only follow upon the adjudicated liability of the Company towards the petitioning creditor. 19.Mr. Shah then made an argument which appears to us to be one of desperation. He contends that an order of winding up is an discretionary order and where it is possible to ascertain that a large number of employees are likely to be rendered jobless as a result of the order, or where there are other circumstances indicating that the financial stringency is a temporary phase and the Company is able to get out of it, there is no need for the Company Court to make an order for winding up. He relied on the judgment of the Company Court of the Gujarat High Court in Rishi Enterprises In re, Vol. 73, 1992 Company Cases 271 and the judgment of the Punjab and Haryana High Court in State Trading Corporation of India Ltd. vs. Punjab Tanneries Ltd., Vol. 66 1989 Company Cases 634. What has been held in these two judgments is unexceptionable. If there is a silver lining, then the dark clouds need not impel the Company Court into admitting the petition for winding up the Company. But is there a silver lining at all in the Appellants case is the crucial question. We have already referred to the gist of the affidavit in reply filed to oppose admission of the winding up petition. One would have expected the argument to be based on surer foundation. If there was any material presented before the Company Court to indicate that the Companys assets far exceeded its liabilities, or that the cash crunch was only a temporary phase, and given a little breathing time, the Company would soon come out of straits, the argument could have been considered. After anxiously scanning the affidavit in reply, we find neither any pleading, nor any material particulars which could have satisfied the learned Company Judge on this issue. Thus, the learned Company Judge had nothing but the statutory presumption to fall upon, which he rightly followed up with an order of admission of the petition. Hence, we are unable to say that the learned Company Judge in any way erred in admitting the petition for winding up. 20.For all the aforesaid reasons, we agree with the order made by the learned Single Judge admitting the petition for winding up. We see no reason to interfere with it. In fact, much of the discussion with regard to adjustment of the priorities is really uncalled for in the facts of the present case, for the petition has just been admitted. As to how and in what manner the question of priorities has to be dealt with in a situation of conflict between RDB Act and the provisions of sections 529 and 529A of the Companies Act, 1956, we need express no opinion; nor do we do so. The Appeal is dismissed as without substance. However, there will be no order as to costs.
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5.Section 18 of the RDB Act provides that, on and from the appointed day, jurisdiction of Courts and other authorities in relation to matters specified in section 17 is barred. Section 17 provides that on and from the appointed day, a Tribunal constituted under the RDB Act shall exercise the jurisdiction, powers and authority "to entertain and decide applications from the banks and financial institutions for recovery of debts due to such banks and financial institutions." Thus, it is obvious that the exclusion of the jurisdiction of all other Courts and authorities is only to the extent the jurisdiction is specifically vested in the DRT. That jurisdiction under section 17 is only the jurisdiction to entertain and decide applications from banks and financial institutions for recovery of debts due toargument of Mr. Shah that what could be done by the Company Court can equally be done by the DRT under the RDB Act is erroneous. There is no provision in the RDB Act empowering the Tribunal to wind up a Company which owes the debt to the applicant financial institution. The jurisdiction of the Tribunal under the RDB Act is only to adjudicate the liability of the respondent before it, ascertain the "debt" due to the bank/ financial institution and issue a certificate for recovery thereof. Once such a certificate of recovery is issued to the Recovery Officer, the Recovery Officer is empowered to execute the same in the manner prescribed under the RDB Act. We find that the jurisdiction to wind up the Company is wholly unavailable to the DRT. Hence, what could be done by the Company Court under section 433(e) could obviously not be done byto Point (1), the Supreme Court held (paragraph 23) that it is not the intendment of the RDB Act that while the basic liability of the Defendant is to be decided by the Tribunal under section 17, the banks/financial institutions should go to the Civil Court or the Company Court or some other authority outside the Act for the actual realisation of the amount. Placing reliance on the provisions of section 34(1) of the RDB Act, Supreme Court held that the RDB Act overrides other laws to the extent of "inconsistency" and that the prescription of an exclusive Tribunal both for adjudication and execution is a procedure clearly inconsistent with realisation of these debts in any other manner. It was held that the adjudication of the liability and the recovery of amount by execution of the certificate are, respectively, within the exclusive jurisdiction of the DRT and the Recovery Officer and no other Court or authority, much less the Civil Court or the Company Court, can go into the said question relating to the liability and the recovery except as provided in the Act. 11.Dealing with Point 2, the Supreme Court holds in Allahabad Banks case (supra) that as the Company Court had no jurisdiction to decide questions which were exclusively left to the jurisdiction of the DRT and would have no "jurisdiction to transfer the application pending before the DRT to itself for trial, no purpose would be served by insisting on leave being asked from the Company Court before the application could be proceeded with before the DRT. For this reason, the Supreme Court was inclined to hold that there was no need for the Appellant Bank to seek leave of the Company Court to proceed with its claim before DRT or in respect of the execution proceedings before the Recovery Officer. It was also held that such proceedings could not be transferred to the Company Court.16.Dealing with the argument based on sections 529 and529A of the Companies Act, 1956,in the light of the provisions of the RDB Act, the Supreme Court held that it will be necessary for the DRT to decide questions of priority bearing in mind the principles underlying section 73 of the Code of Civil Procedure inasmuch as section 22 of the RDB Act gives sufficiently wide power to the Tribunal/ Appellate Tribunal to decide such questions of priorities, subject only to the principles of natural justice. In fact, as the Supreme Court pointed out, the powers under section 22 of the RDB Act are much wider than those of Civil Courts and the only restriction on its powers is that principles of natural justice are to be followed.we have already observed the admission of petition for winding up under section 433(e) need not be preceded by an adjudicated liability of the Company. It proceeds upon the inability of the Company to pay its debts. Section 434(1)(a) prescribes a statutory presumption of such inability on the part of the Company if the conditions prescribed therein areanxiously scanning the affidavit in reply, we find neither any pleading, nor any material particulars which could have satisfied the learned Company Judge on this issue. Thus, the learned Company Judge had nothing but the statutory presumption to fall upon, which he rightly followed up with an order of admission of the petition. Hence, we are unable to say that the learned Company Judge in any way erred in admitting the petition for winding up. 20.For all the aforesaid reasons, we agree with the order made by the learned Single Judge admitting the petition for winding up. We see no reason to interfere with it. In fact, much of the discussion with regard to adjustment of the priorities is really uncalled for in the facts of the present case, for the petition has just been admitted. As to how and in what manner the question of priorities has to be dealt with in a situation of conflict between RDB Act and the provisions of sections 529 and529A of the Companies Act, 1956,we need express no opinion; nor do we do so. The Appeal is dismissed as without substance. However, there will be no order as to costs.
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State Of Assam Vs. Assam Tea Co. Ltd | Act, 1923 to the notified area committee including the Nazira Town Committee. But no notification under Section 328 of the Assam Municipal Act, 1923 extending the boundaries of the Nazira Town Committee area was issued. In 1957 the Assam Municipal Act, 1923 was repealed and was replaced by the Assam Municipal Act 15 of 1957. On January 6, 1964 a notification was issued under Section 4 (1) (b) of Act 15 of 1957 to revise the boundaries of the notified area at Nazira, and thereby included a part of the tea estate belonging to the Assam Tea Co. Ltd. in the Nazira Town Committee area. Objections submitted by the Assam Tea Company Ltd. were considered and overruled and the Government of Assam by notification dated September 30, 1964, incorporated within the Nazira Town Committee area a part of the area of the tea garden belonging to the Company."2. The Company then filed a petition in the High Court of Assam challenging the validity of the notification. The High Court was of the view that the any had provided all amenities and facilities which a municipality may provide, and since it did not appear that any "improved arrangements" could be provided by the Town Committee the notification issued by the Government was "colourable legislation" and was liable to be struck down in so far as it related to the area of the tea estate belonging to the Company. We have considered in Appeal No. 2052 of 1969 (Reported in AIR 1970 SC 2072 ), State of Assam v. The Amalgamted Tea Estates Co. Ltd., the correctness of this decision and we have rejected it But Mr. Chagla appearing on behalf of the Company contended that the notification dated January 6, 1964 signifying the intention of tile State Government to include the area belonging to the Company within the Nazira Town Committee and the find notification dated September 30, 1964, were unauthrised because, the provisions of Sections 4 and 5 of the Assam Municipal Act 15 of 1957 were not extended to the Nazira Town Committee by notification issued under sub-section (3) of Section 336 of the Assam Municipal Act. Counsel invited our attention to Section 2 of the Assam Municipal Act, 15 of 1957 as originally enacted. By Section 2 of that Act the Assam Municipal Act, 1923 was repealed; and by Clause (b) of the proviso to that Section it was provided:"all Municipalities constituted, limits defined, regulation and divisions made, licenses and notices issued, taxes, tolls, rates and fees imposed or assessed, budgets passed, assessments made, plans approved, permissions or sanctions granted, under the Assam Municipal Act, 1923, shall so far as they are in force at the commencement of this Act, be deemed to have been respectively constituted, defined, issued, imposed, assessed, passed, made, approved or granted under this Act, and shall x x x x x remain in force for the period, if any, for which they were so constituted, defined, issued, imposed, assessed, passed, made, approved or granted."Counsel said that under the proviso, notifications issued under the Act of 1923 were not saved and it was for the first time by the Amending Act of 1958 that the notifications issued under the Act of 1923 were sought to be saved, notwithstanding the repeal of the Assam Municipal Act of 1923. But no retrospective operation was given to the Amending Act of 1958. Counsel submitted that this attempt on the part of the Legislature to save notifications issued under the Act of 1923 was ineffective. It is true that for the existing cl. (b) of the proviso to Section 2 by the new clause substituted "all municipalities constituted, limits defined, regulations and divisions made, all rules and bye-laws, notifications, orders, appointments and assessments made, licenses and notices issued, taxes, tolls, rates and fees imposed or assessed, budgets passed, plans approved, permissions or sanctions granted, contracts entered into, suits instituted and proceedings taken under the Assam Municipal Act, 1923" are saved from the repeal. But the Amending Act of 1958 came into force on June 13, 1958, when it was published in the Assam Gazette. The attempt to save notifications issued under the Act of 1923 by the Assam Municipal (Amendment) Act 17 of 1958 is therefore ineffective.3. It is unnecessary to consider whether, as suggested by counsel for the State of Assam, by virtue of Section 336 (3) once a notification under Sec. 4 of the Act of 1923 was issued, for all purposes a Town Committee became a municipality and on that account the notification continued to remain in operation. In our judgment, under the provisions of the Assam General Clauses Act, 1915, Section 26 saves the notification in question. Section 26 provides, inter alia:"Where any enactment is repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or, by-law, made or issued under the repealed enactment, shall so far as it is not inconsistent with the provisions re-enacted, continue in force and be deemed to have been made or issued under the provisions so reenacted, x x x x x".There is no express provision in the Act 15 of 1957 which supersedes the notification issued in 1951 under the Act of 1923, nor is the continuance of the notification inconsistent with any provision in the new Act. The notification must, therefore, be deemed to have remained in force and the State Government was competent in exercise of the power conferred upon it by Section 4 of Act 15 of 1957 to include within the area of Town Committee any local area contiguous to the same.4. We are here dealing only with the validity of the notification issued by the State Government, and not with the validity of the demand for license fee or other taxes levied by the notified Town Committee. Nothing in this judgment will affect the right of the company to challenge the validity of the demand for such taxes in appropriate proceedings. | 1[ds]3. It is unnecessary to consider whether, as suggested by counsel for the State of Assam, by virtue of Section 336 (3) once a notification under Sec. 4 of the Act of 1923 was issued, for all purposes a Town Committee became a municipality and on that account the notification continued to remain in operation. In our judgment, under the provisions of the Assam General Clauses Act, 1915, Section 26 saves the notification in question. Section 26 provides, interany enactment is repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or, by-law, made or issued under the repealed enactment, shall so far as it is not inconsistent with the provisions re-enacted, continue in force and be deemed to have been made or issued under the provisions so reenacted, x x x xis no express provision in the Act 15 of 1957 which supersedes the notification issued in 1951 under the Act of 1923, nor is the continuance of the notification inconsistent with any provision in the new Act. The notification must, therefore, be deemed to have remained in force and the State Government was competent in exercise of the power conferred upon it by Section 4 of Act 15 of 1957 to include within the area of Town Committee any local area contiguous to the same.4. We are here dealing only with the validity of the notification issued by the State Government, and not with the validity of the demand for license fee or other taxes levied by the notified Town Committee. Nothing in this judgment will affect the right of the company to challenge the validity of the demand for such taxes in appropriate proceedings. | 1 | 1,626 | 326 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
Act, 1923 to the notified area committee including the Nazira Town Committee. But no notification under Section 328 of the Assam Municipal Act, 1923 extending the boundaries of the Nazira Town Committee area was issued. In 1957 the Assam Municipal Act, 1923 was repealed and was replaced by the Assam Municipal Act 15 of 1957. On January 6, 1964 a notification was issued under Section 4 (1) (b) of Act 15 of 1957 to revise the boundaries of the notified area at Nazira, and thereby included a part of the tea estate belonging to the Assam Tea Co. Ltd. in the Nazira Town Committee area. Objections submitted by the Assam Tea Company Ltd. were considered and overruled and the Government of Assam by notification dated September 30, 1964, incorporated within the Nazira Town Committee area a part of the area of the tea garden belonging to the Company."2. The Company then filed a petition in the High Court of Assam challenging the validity of the notification. The High Court was of the view that the any had provided all amenities and facilities which a municipality may provide, and since it did not appear that any "improved arrangements" could be provided by the Town Committee the notification issued by the Government was "colourable legislation" and was liable to be struck down in so far as it related to the area of the tea estate belonging to the Company. We have considered in Appeal No. 2052 of 1969 (Reported in AIR 1970 SC 2072 ), State of Assam v. The Amalgamted Tea Estates Co. Ltd., the correctness of this decision and we have rejected it But Mr. Chagla appearing on behalf of the Company contended that the notification dated January 6, 1964 signifying the intention of tile State Government to include the area belonging to the Company within the Nazira Town Committee and the find notification dated September 30, 1964, were unauthrised because, the provisions of Sections 4 and 5 of the Assam Municipal Act 15 of 1957 were not extended to the Nazira Town Committee by notification issued under sub-section (3) of Section 336 of the Assam Municipal Act. Counsel invited our attention to Section 2 of the Assam Municipal Act, 15 of 1957 as originally enacted. By Section 2 of that Act the Assam Municipal Act, 1923 was repealed; and by Clause (b) of the proviso to that Section it was provided:"all Municipalities constituted, limits defined, regulation and divisions made, licenses and notices issued, taxes, tolls, rates and fees imposed or assessed, budgets passed, assessments made, plans approved, permissions or sanctions granted, under the Assam Municipal Act, 1923, shall so far as they are in force at the commencement of this Act, be deemed to have been respectively constituted, defined, issued, imposed, assessed, passed, made, approved or granted under this Act, and shall x x x x x remain in force for the period, if any, for which they were so constituted, defined, issued, imposed, assessed, passed, made, approved or granted."Counsel said that under the proviso, notifications issued under the Act of 1923 were not saved and it was for the first time by the Amending Act of 1958 that the notifications issued under the Act of 1923 were sought to be saved, notwithstanding the repeal of the Assam Municipal Act of 1923. But no retrospective operation was given to the Amending Act of 1958. Counsel submitted that this attempt on the part of the Legislature to save notifications issued under the Act of 1923 was ineffective. It is true that for the existing cl. (b) of the proviso to Section 2 by the new clause substituted "all municipalities constituted, limits defined, regulations and divisions made, all rules and bye-laws, notifications, orders, appointments and assessments made, licenses and notices issued, taxes, tolls, rates and fees imposed or assessed, budgets passed, plans approved, permissions or sanctions granted, contracts entered into, suits instituted and proceedings taken under the Assam Municipal Act, 1923" are saved from the repeal. But the Amending Act of 1958 came into force on June 13, 1958, when it was published in the Assam Gazette. The attempt to save notifications issued under the Act of 1923 by the Assam Municipal (Amendment) Act 17 of 1958 is therefore ineffective.3. It is unnecessary to consider whether, as suggested by counsel for the State of Assam, by virtue of Section 336 (3) once a notification under Sec. 4 of the Act of 1923 was issued, for all purposes a Town Committee became a municipality and on that account the notification continued to remain in operation. In our judgment, under the provisions of the Assam General Clauses Act, 1915, Section 26 saves the notification in question. Section 26 provides, inter alia:"Where any enactment is repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or, by-law, made or issued under the repealed enactment, shall so far as it is not inconsistent with the provisions re-enacted, continue in force and be deemed to have been made or issued under the provisions so reenacted, x x x x x".There is no express provision in the Act 15 of 1957 which supersedes the notification issued in 1951 under the Act of 1923, nor is the continuance of the notification inconsistent with any provision in the new Act. The notification must, therefore, be deemed to have remained in force and the State Government was competent in exercise of the power conferred upon it by Section 4 of Act 15 of 1957 to include within the area of Town Committee any local area contiguous to the same.4. We are here dealing only with the validity of the notification issued by the State Government, and not with the validity of the demand for license fee or other taxes levied by the notified Town Committee. Nothing in this judgment will affect the right of the company to challenge the validity of the demand for such taxes in appropriate proceedings.
### Response:
1
### Explanation:
3. It is unnecessary to consider whether, as suggested by counsel for the State of Assam, by virtue of Section 336 (3) once a notification under Sec. 4 of the Act of 1923 was issued, for all purposes a Town Committee became a municipality and on that account the notification continued to remain in operation. In our judgment, under the provisions of the Assam General Clauses Act, 1915, Section 26 saves the notification in question. Section 26 provides, interany enactment is repealed and re-enacted with or without modification, then, unless it is otherwise expressly provided, any appointment, notification, order, scheme, rule, form or, by-law, made or issued under the repealed enactment, shall so far as it is not inconsistent with the provisions re-enacted, continue in force and be deemed to have been made or issued under the provisions so reenacted, x x x xis no express provision in the Act 15 of 1957 which supersedes the notification issued in 1951 under the Act of 1923, nor is the continuance of the notification inconsistent with any provision in the new Act. The notification must, therefore, be deemed to have remained in force and the State Government was competent in exercise of the power conferred upon it by Section 4 of Act 15 of 1957 to include within the area of Town Committee any local area contiguous to the same.4. We are here dealing only with the validity of the notification issued by the State Government, and not with the validity of the demand for license fee or other taxes levied by the notified Town Committee. Nothing in this judgment will affect the right of the company to challenge the validity of the demand for such taxes in appropriate proceedings.
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Harman Singh And Others Vs. Regional Transport Authority, Culcutta And Others | the prescribed minimum and contended that in that situation the occupation of the proprietors of large taxis was bound to come to a standstill and as such the notification amounted to a breach of their fundamental right guaranteed under Article 19(1)(g) of the Constitution. In our opinion, none of the contentions raised by the learned counsel has any substance. Without in any way finally deciding the question of the true construction of Rule 179 of the Bengal Motor Vehicles Rules, read with the provisions of Section 42 of the Motor Vehicles Act, because it does not directly arise here, as at present advised, we cannot affirm the view of Bose J. that it is not open to the large taxi owners to charge tariff at a rate lower than that prescribed if they so desire.The learned Attorney-General who appeared for the Regional Transport Authority shared our tentative view on this point, though he was not prepared to concede the point in the absence of specific instruction. The learned Advocate-General also took more or less the same line in his argument before the High Court. Section 42 of the Motor Vehicles act enjoins that the owner of a motor vehicle shall not use or permit the use of the vehicles save in accordance with the conditions of a permit. The form of the permit in item 8 mentions the minimum fare that can be charged in respect of a vehicle. On these provisions the learned Judge below reached the conclusion that there was no option left in the owner of a vehicle to charge tariff lower than the prescribed minimum. Rule 179, however, which prescribed the minimum tariff for the different classes of taxis does not prohibit the charge of a rate below the prescribed minimum if the taxi owner so wishes. All that it enjoins is that a tariff higher than the fixed minimum cannot be charged and that the hirer of a taxi on demand is bound to pay at that rate. In the absence of a clear provision in the rule prohibiting the charge of tariff below the prescribed minimum, we are not satisfied that the construction placed on these provisions by Bose J. is correct.Be that as it may, the rule prescribing a minimum rate of one rupee in respect of big taxi cabs by notification issued in 1944 and 1951 is not is challenge in these proceedings. If that rule is an unreasonable restriction on the occupation of large taxi cab owners and infringes the fundamental right contained in Article 19(1)(g) of the Constitution, it was open to them to challenge the vires of that rule; but that not having been done, that question does not concern us here.7. The only point for consideration in the appeal is whether the issue of licences to small taxi cabs between 10 and 19 H. P. to ply in the streets of Calcutta and the fixation of lower rates of tariff for this class of taxis than that prescribed for taxis between 22 and 30 H. P. violates the fundamental rights of the appellants who are owners of taxi cabs between 22 and 20 H. P. under Articles 14 and 19(1)(g) of the Constitution. In our judgment, this question can be answered only n the negative. It has been repeatedly pointed out by this Court that in construing Article 14 the courts should not adopt a doctrinaire approach which might well choke all beneficial legislation and that legislation which is based on a rational classification is permissible. A law applying to a class is constitution if there is sufficient basis or reason for it. In other words, statutory discrimination cannot be set aside as the denial of equal protection of the laws if any state of facts may reasonably be conceived to justify it. It is clear that it is in the interests and for the benefit of a Section of the public that small taxis have been introduced and cheaper rates have been fixed having regard to the size, horse power and expenses of running such cars. We are unable to see any unreasonableness in this classification or any discrimination which infringes the provisions of Article 14 of the Constitution. The contention of Mr. Choudhry, therefore, that the introduction of smaller taxis at lesser tariff rates contravenes Article 14 of the Constitution cannot be upheld.8. The next contention of Mr. Choudhry that the introduction of small taxis in the streets of Calcutta will bring about a total stoppage of the existing motor taxi cab business of large taxi owners in a commercial sense and would thus be an infringement of the fundamental right guaranteed under Article 19 (1)(g) of the Constitution is again without force. Article 19(1)(g) declares that all citizens have the right to practice any profession, to carry on any occupation, trade or business. Nobody has denied to the appellants the right to carry on their own occupation and to ply their taxis. This article does not guarantee a monopoly to a particular individual or association to carry on any occupation and if other persons are also allowed the right to carry on the same occupation and an element of competition is introduced in the business, that does not, in the absence of any bad faith on the part of the authorities, amount to a violation of the fundamental right guaranteed under Article 19(1)(g) of the Constitution. Under the Motor Vehicles Act it is in the discretion of the Regional Transport Authority to issue permits at different rates of tariff to different classes of vehicles plying in the streets of Calcutta and if that power is exercised in a bona fide manner by the Regional Transport Authority for the benefit of the citizens of Calcutta, then the mere circumstance that by grant of licence at different tariff rates to holders of different taxis and different classes of vehicles some of the existing licence holders are affected cannot bring the case under Article 19(1)(g) of the Constitution. | 0[ds]In our opinion, none of the contentions raised by the learned counsel has any substance. Without in any way finally deciding the question of the true construction of Rule 179 of the Bengal Motor Vehicles Rules, read with the provisions of Section 42 of the Motor Vehicles Act, because it does not directly arise here, as at present advised, we cannot affirm the view of Bose J. that it is not open to the large taxi owners to charge tariff at a rate lower than that prescribed if they so desire.In our judgment, this question can be answered only n the negative. It has been repeatedly pointed out by this Court that in construing Article 14 the courts should not adopt a doctrinaire approach which might well choke all beneficial legislation and that legislation which is based on a rational classification is permissible. A law applying to a class is constitution if there is sufficient basis or reason for it. In other words, statutory discrimination cannot be set aside as the denial of equal protection of the laws if any state of facts may reasonably be conceived to justify it. It is clear that it is in the interests and for the benefit of a Section of the public that small taxis have been introduced and cheaper rates have been fixed having regard to the size, horse power and expenses of running such cars. We are unable to see any unreasonableness in this classification or any discrimination which infringes the provisions of Article 14 of the Constitution. The contention of Mr. Choudhry, therefore, that the introduction of smaller taxis at lesser tariff rates contravenes Article 14 of the Constitution cannot be upheld.Article 19(1)(g) declares that all citizens have the right to practice any profession, to carry on any occupation, trade or business. Nobody has denied to the appellants the right to carry on their own occupation and to ply their taxis. This article does not guarantee a monopoly to a particular individual or association to carry on any occupation and if other persons are also allowed the right to carry on the same occupation and an element of competition is introduced in the business, that does not, in the absence of any bad faith on the part of the authorities, amount to a violation of the fundamental right guaranteed under Article 19(1)(g) of the Constitution. Under the Motor Vehicles Act it is in the discretion of the Regional Transport Authority to issue permits at different rates of tariff to different classes of vehicles plying in the streets of Calcutta and if that power is exercised in a bona fide manner by the Regional Transport Authority for the benefit of the citizens of Calcutta, then the mere circumstance that by grant of licence at different tariff rates to holders of different taxis and different classes of vehicles some of the existing licence holders are affected cannot bring the case under Article 19(1)(g) of the | 0 | 2,175 | 545 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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the prescribed minimum and contended that in that situation the occupation of the proprietors of large taxis was bound to come to a standstill and as such the notification amounted to a breach of their fundamental right guaranteed under Article 19(1)(g) of the Constitution. In our opinion, none of the contentions raised by the learned counsel has any substance. Without in any way finally deciding the question of the true construction of Rule 179 of the Bengal Motor Vehicles Rules, read with the provisions of Section 42 of the Motor Vehicles Act, because it does not directly arise here, as at present advised, we cannot affirm the view of Bose J. that it is not open to the large taxi owners to charge tariff at a rate lower than that prescribed if they so desire.The learned Attorney-General who appeared for the Regional Transport Authority shared our tentative view on this point, though he was not prepared to concede the point in the absence of specific instruction. The learned Advocate-General also took more or less the same line in his argument before the High Court. Section 42 of the Motor Vehicles act enjoins that the owner of a motor vehicle shall not use or permit the use of the vehicles save in accordance with the conditions of a permit. The form of the permit in item 8 mentions the minimum fare that can be charged in respect of a vehicle. On these provisions the learned Judge below reached the conclusion that there was no option left in the owner of a vehicle to charge tariff lower than the prescribed minimum. Rule 179, however, which prescribed the minimum tariff for the different classes of taxis does not prohibit the charge of a rate below the prescribed minimum if the taxi owner so wishes. All that it enjoins is that a tariff higher than the fixed minimum cannot be charged and that the hirer of a taxi on demand is bound to pay at that rate. In the absence of a clear provision in the rule prohibiting the charge of tariff below the prescribed minimum, we are not satisfied that the construction placed on these provisions by Bose J. is correct.Be that as it may, the rule prescribing a minimum rate of one rupee in respect of big taxi cabs by notification issued in 1944 and 1951 is not is challenge in these proceedings. If that rule is an unreasonable restriction on the occupation of large taxi cab owners and infringes the fundamental right contained in Article 19(1)(g) of the Constitution, it was open to them to challenge the vires of that rule; but that not having been done, that question does not concern us here.7. The only point for consideration in the appeal is whether the issue of licences to small taxi cabs between 10 and 19 H. P. to ply in the streets of Calcutta and the fixation of lower rates of tariff for this class of taxis than that prescribed for taxis between 22 and 30 H. P. violates the fundamental rights of the appellants who are owners of taxi cabs between 22 and 20 H. P. under Articles 14 and 19(1)(g) of the Constitution. In our judgment, this question can be answered only n the negative. It has been repeatedly pointed out by this Court that in construing Article 14 the courts should not adopt a doctrinaire approach which might well choke all beneficial legislation and that legislation which is based on a rational classification is permissible. A law applying to a class is constitution if there is sufficient basis or reason for it. In other words, statutory discrimination cannot be set aside as the denial of equal protection of the laws if any state of facts may reasonably be conceived to justify it. It is clear that it is in the interests and for the benefit of a Section of the public that small taxis have been introduced and cheaper rates have been fixed having regard to the size, horse power and expenses of running such cars. We are unable to see any unreasonableness in this classification or any discrimination which infringes the provisions of Article 14 of the Constitution. The contention of Mr. Choudhry, therefore, that the introduction of smaller taxis at lesser tariff rates contravenes Article 14 of the Constitution cannot be upheld.8. The next contention of Mr. Choudhry that the introduction of small taxis in the streets of Calcutta will bring about a total stoppage of the existing motor taxi cab business of large taxi owners in a commercial sense and would thus be an infringement of the fundamental right guaranteed under Article 19 (1)(g) of the Constitution is again without force. Article 19(1)(g) declares that all citizens have the right to practice any profession, to carry on any occupation, trade or business. Nobody has denied to the appellants the right to carry on their own occupation and to ply their taxis. This article does not guarantee a monopoly to a particular individual or association to carry on any occupation and if other persons are also allowed the right to carry on the same occupation and an element of competition is introduced in the business, that does not, in the absence of any bad faith on the part of the authorities, amount to a violation of the fundamental right guaranteed under Article 19(1)(g) of the Constitution. Under the Motor Vehicles Act it is in the discretion of the Regional Transport Authority to issue permits at different rates of tariff to different classes of vehicles plying in the streets of Calcutta and if that power is exercised in a bona fide manner by the Regional Transport Authority for the benefit of the citizens of Calcutta, then the mere circumstance that by grant of licence at different tariff rates to holders of different taxis and different classes of vehicles some of the existing licence holders are affected cannot bring the case under Article 19(1)(g) of the Constitution.
### Response:
0
### Explanation:
In our opinion, none of the contentions raised by the learned counsel has any substance. Without in any way finally deciding the question of the true construction of Rule 179 of the Bengal Motor Vehicles Rules, read with the provisions of Section 42 of the Motor Vehicles Act, because it does not directly arise here, as at present advised, we cannot affirm the view of Bose J. that it is not open to the large taxi owners to charge tariff at a rate lower than that prescribed if they so desire.In our judgment, this question can be answered only n the negative. It has been repeatedly pointed out by this Court that in construing Article 14 the courts should not adopt a doctrinaire approach which might well choke all beneficial legislation and that legislation which is based on a rational classification is permissible. A law applying to a class is constitution if there is sufficient basis or reason for it. In other words, statutory discrimination cannot be set aside as the denial of equal protection of the laws if any state of facts may reasonably be conceived to justify it. It is clear that it is in the interests and for the benefit of a Section of the public that small taxis have been introduced and cheaper rates have been fixed having regard to the size, horse power and expenses of running such cars. We are unable to see any unreasonableness in this classification or any discrimination which infringes the provisions of Article 14 of the Constitution. The contention of Mr. Choudhry, therefore, that the introduction of smaller taxis at lesser tariff rates contravenes Article 14 of the Constitution cannot be upheld.Article 19(1)(g) declares that all citizens have the right to practice any profession, to carry on any occupation, trade or business. Nobody has denied to the appellants the right to carry on their own occupation and to ply their taxis. This article does not guarantee a monopoly to a particular individual or association to carry on any occupation and if other persons are also allowed the right to carry on the same occupation and an element of competition is introduced in the business, that does not, in the absence of any bad faith on the part of the authorities, amount to a violation of the fundamental right guaranteed under Article 19(1)(g) of the Constitution. Under the Motor Vehicles Act it is in the discretion of the Regional Transport Authority to issue permits at different rates of tariff to different classes of vehicles plying in the streets of Calcutta and if that power is exercised in a bona fide manner by the Regional Transport Authority for the benefit of the citizens of Calcutta, then the mere circumstance that by grant of licence at different tariff rates to holders of different taxis and different classes of vehicles some of the existing licence holders are affected cannot bring the case under Article 19(1)(g) of the
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Commissioner of Income Tax, Assam, Tripura and Manipur Vs. Jwalaprasad Agarwala | had been assessed in the hands of the father, on the ground that the father had taken active interest in the business of the firms in which the minor is a partner. Apart from this, the fact remains that the minor had been admitted as a partner in Jwalaprasad Mulchand, Dhubri, only because of the introduction of the initial capital of Rs. 74, 721 in his name by his father. So far as the other two firms are concerned, it is apparent that these are allied concerns and there must be intimate financial connection subsisting between them and Messrs. Jwalaprasad Mulchand, Dhubri, because otherwise there could have been no earthly reason why the minor should be admitted to the benefits of partnership in respect of Jwalaprasad Mulchand (Galla Dept.), Dhubri, and the Calcutta firm. Thus, in spite of the fact that each of these firms are paying interest to the minor, we are obliged to hold that the share incomes which the minor had been deriving from each of these firms is directly attributable to the introduction of the original capital of Rs. 74, 721 out of the gift which the appellant had given to his minor son. In view of this, the provisions of section 16(3)(a)(iv) are clearly applicable both in respect of the interest on the original capital sum of Rs. 74, 721 and the share incomes of the minor as derived from the above-mentioned three firms."The Tribunal, however, excluded the interest on the other accretions to the capital account of the minor as appearing in the three firms accounts from the assessment of the appellant4. The High Court, on a reference, answered the questions in favour of the assessee. The Commissioner of Income-tax obtained special leave from this court and the appeal is now before us5. The High Court first dealt with the income of the minor from the Galla firm and the Calcutta firm. The High Court held that " merely because the minor was admitted to the benefits of these two firms and as there must be some sort of financial connection between the three firms, it cannot be said that the minors share of profit in these two firms is the benefit directly arising or indirectly arising to the minor from the assets transferred by the assessee to him. Section 16(3)(a)(iv) will thus not be attracted in this case." We agree with this finding. The reasons given by the Tribunal for including the income from these two firms were that the three concerns were allied concerns and there must be intimate financial connection subsisting between them and further that there could have been no earthly reason why the minor should be admitted to the benefits of partnership in respect of Galla department and the Calcutta firm. In our view, these reasons are not cogent to come to a finding that the profits from these two firms were directly attributable to the investment of Rs. 74, 721 in the Dhubri firm. The High Court rightly rejected the contention of the counsel for the department that the sum of Rs. 11, 000 which was admitted to have been transferred from the accounts of the Dhubri firm to the Calcutta firm must be presumed to have been contributed by the minor out of the assets transferred to him and invested in the Dhubri firm. The High Court rightly held that there was no finding of the Tribunal that this sum of Rs. 11, 000 was part of the original capital of Rs. 74, 721 transferred to the minor by the fatherComing to the Dhubri firm, the High Court held that the Tribunal had relied on two circumstances in support of its finding that the share of the minor in the Dhubri firm was his income arising out of the transfer of assets of the father, the assessee. The first circumstance taken by the Tribunal was that the past record of the assessee showed that this objection had never been raised before. We agree with the High Court that this circumstance is not evidence of the fact that the minors share of profits in the Dhubri firm arose out of the assets transferred by the father. It seems to us that this circumstance is wholly irrelevant for determining this point. The second circumstance relied upon by the Tribunal was that the minor had been admitted as a partner in the Dhubri firm only because of introduction of initial capital of Rs. 74, 721. We agree with the High Court that there is no evidence on record to justify a finding that the minor had been admitted as a partner in the firm. Jwalaprasad Mulchand, Dhubri, only because of the introduction of the initial capital of Rs. 74, 721 in his name by the father, the assessee. The High Court observed that " from the account books it appears that Rs. 74, 721 were taken as the minors deposit in the account books and, further, that the minor was admitted to the benefits of the partnership. There is no evidence to show that he was admitted to the benefits of the partnership because he had undertaken to deposit the sum of Rs. 74, 721 given to him by his father in the firm. " We agree with these observations6. But Mr. S. T. Desai, the learned counsel for the appellant, complains that there could be no evidence on the record because this point was not raised before the Income-tax Officer and the assessee had been accepting the past assessments. We find, however, that the point was raised before the Appellate Assistant Commissioner, and if the department was so minded, evidence could have been led before the Appellate Assistant Commissioner, and even before the Appellate Tribunal after obtaining its permissionMr. Desai further urged that the High Court had not considered the question that the share of profit arose indirectly from the gift. We see no force in this contention because the High Court has considered the question from all aspects | 0[ds]5. The High Court first dealt with the income of the minor from the Galla firm and the Calcutta firm. The High Court held that " merely because the minor was admitted to the benefits of these two firms and as there must be some sort of financial connection between the three firms, it cannot be said that the minors share of profit in these two firms is the benefit directly arising or indirectly arising to the minor from the assets transferred by the assessee to him. Section 16(3)(a)(iv) will thus not be attracted in this case." We agree with thisour view, these reasons are not cogent to come to a finding that the profits from these two firms were directly attributable to the investment of Rs. 74, 721 in the Dhubri firm. The High Court rightly rejected the contention of the counsel for the department that the sum of Rs. 11, 000 which was admitted to have been transferred from the accounts of the Dhubri firm to the Calcutta firm must be presumed to have been contributed by the minor out of the assets transferred to him and invested in the Dhubri firm. The High Court rightly held that there was no finding of the Tribunal that this sum of Rs. 11, 000 was part of the original capital of Rs. 74, 721 transferred to the minor by the fatherComing to the Dhubri firm, the High Court held that the Tribunal had relied on two circumstances in support of its finding that the share of the minor in the Dhubri firm was his income arising out of the transfer of assets of the father, thefirst circumstance taken by the Tribunal was that the past record of the assessee showed that this objection had never been raised before. We agree with the High Court that this circumstance is not evidence of the fact that the minors share of profits in the Dhubri firm arose out of the assets transferred by the father. It seems to us that this circumstance is wholly irrelevant for determining this point. The second circumstance relied upon by the Tribunal was that the minor had been admitted as a partner in the Dhubri firm only because of introduction of initial capital of Rs. 74, 721. We agree with the High Court that there is no evidence on record to justify a finding that the minor had been admitted as a partner in the firm. Jwalaprasad Mulchand, Dhubri, only because of the introduction of the initial capital of Rs. 74, 721 in his name by the father, the assessee. The High Court observed that " from the account books it appears that Rs. 74, 721 were taken as the minors deposit in the account books and, further, that the minor was admitted to the benefits of the partnership. There is no evidence to show that he was admitted to the benefits of the partnership because he had undertaken to deposit the sum of Rs. 74, 721 given to him by his father in the firm. " We agree with thesefind, however, that the point was raised before the Appellate Assistant Commissioner, and if the department was so minded, evidence could have been led before the Appellate Assistant Commissioner, and even before the Appellate Tribunal after obtaining its permissionMr. Desai further urged that the High Court had not considered the question that the share of profit arose indirectly from the gift. We see no force in this contention because the High Court has considered the question from all aspects | 0 | 1,871 | 651 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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had been assessed in the hands of the father, on the ground that the father had taken active interest in the business of the firms in which the minor is a partner. Apart from this, the fact remains that the minor had been admitted as a partner in Jwalaprasad Mulchand, Dhubri, only because of the introduction of the initial capital of Rs. 74, 721 in his name by his father. So far as the other two firms are concerned, it is apparent that these are allied concerns and there must be intimate financial connection subsisting between them and Messrs. Jwalaprasad Mulchand, Dhubri, because otherwise there could have been no earthly reason why the minor should be admitted to the benefits of partnership in respect of Jwalaprasad Mulchand (Galla Dept.), Dhubri, and the Calcutta firm. Thus, in spite of the fact that each of these firms are paying interest to the minor, we are obliged to hold that the share incomes which the minor had been deriving from each of these firms is directly attributable to the introduction of the original capital of Rs. 74, 721 out of the gift which the appellant had given to his minor son. In view of this, the provisions of section 16(3)(a)(iv) are clearly applicable both in respect of the interest on the original capital sum of Rs. 74, 721 and the share incomes of the minor as derived from the above-mentioned three firms."The Tribunal, however, excluded the interest on the other accretions to the capital account of the minor as appearing in the three firms accounts from the assessment of the appellant4. The High Court, on a reference, answered the questions in favour of the assessee. The Commissioner of Income-tax obtained special leave from this court and the appeal is now before us5. The High Court first dealt with the income of the minor from the Galla firm and the Calcutta firm. The High Court held that " merely because the minor was admitted to the benefits of these two firms and as there must be some sort of financial connection between the three firms, it cannot be said that the minors share of profit in these two firms is the benefit directly arising or indirectly arising to the minor from the assets transferred by the assessee to him. Section 16(3)(a)(iv) will thus not be attracted in this case." We agree with this finding. The reasons given by the Tribunal for including the income from these two firms were that the three concerns were allied concerns and there must be intimate financial connection subsisting between them and further that there could have been no earthly reason why the minor should be admitted to the benefits of partnership in respect of Galla department and the Calcutta firm. In our view, these reasons are not cogent to come to a finding that the profits from these two firms were directly attributable to the investment of Rs. 74, 721 in the Dhubri firm. The High Court rightly rejected the contention of the counsel for the department that the sum of Rs. 11, 000 which was admitted to have been transferred from the accounts of the Dhubri firm to the Calcutta firm must be presumed to have been contributed by the minor out of the assets transferred to him and invested in the Dhubri firm. The High Court rightly held that there was no finding of the Tribunal that this sum of Rs. 11, 000 was part of the original capital of Rs. 74, 721 transferred to the minor by the fatherComing to the Dhubri firm, the High Court held that the Tribunal had relied on two circumstances in support of its finding that the share of the minor in the Dhubri firm was his income arising out of the transfer of assets of the father, the assessee. The first circumstance taken by the Tribunal was that the past record of the assessee showed that this objection had never been raised before. We agree with the High Court that this circumstance is not evidence of the fact that the minors share of profits in the Dhubri firm arose out of the assets transferred by the father. It seems to us that this circumstance is wholly irrelevant for determining this point. The second circumstance relied upon by the Tribunal was that the minor had been admitted as a partner in the Dhubri firm only because of introduction of initial capital of Rs. 74, 721. We agree with the High Court that there is no evidence on record to justify a finding that the minor had been admitted as a partner in the firm. Jwalaprasad Mulchand, Dhubri, only because of the introduction of the initial capital of Rs. 74, 721 in his name by the father, the assessee. The High Court observed that " from the account books it appears that Rs. 74, 721 were taken as the minors deposit in the account books and, further, that the minor was admitted to the benefits of the partnership. There is no evidence to show that he was admitted to the benefits of the partnership because he had undertaken to deposit the sum of Rs. 74, 721 given to him by his father in the firm. " We agree with these observations6. But Mr. S. T. Desai, the learned counsel for the appellant, complains that there could be no evidence on the record because this point was not raised before the Income-tax Officer and the assessee had been accepting the past assessments. We find, however, that the point was raised before the Appellate Assistant Commissioner, and if the department was so minded, evidence could have been led before the Appellate Assistant Commissioner, and even before the Appellate Tribunal after obtaining its permissionMr. Desai further urged that the High Court had not considered the question that the share of profit arose indirectly from the gift. We see no force in this contention because the High Court has considered the question from all aspects
### Response:
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### Explanation:
5. The High Court first dealt with the income of the minor from the Galla firm and the Calcutta firm. The High Court held that " merely because the minor was admitted to the benefits of these two firms and as there must be some sort of financial connection between the three firms, it cannot be said that the minors share of profit in these two firms is the benefit directly arising or indirectly arising to the minor from the assets transferred by the assessee to him. Section 16(3)(a)(iv) will thus not be attracted in this case." We agree with thisour view, these reasons are not cogent to come to a finding that the profits from these two firms were directly attributable to the investment of Rs. 74, 721 in the Dhubri firm. The High Court rightly rejected the contention of the counsel for the department that the sum of Rs. 11, 000 which was admitted to have been transferred from the accounts of the Dhubri firm to the Calcutta firm must be presumed to have been contributed by the minor out of the assets transferred to him and invested in the Dhubri firm. The High Court rightly held that there was no finding of the Tribunal that this sum of Rs. 11, 000 was part of the original capital of Rs. 74, 721 transferred to the minor by the fatherComing to the Dhubri firm, the High Court held that the Tribunal had relied on two circumstances in support of its finding that the share of the minor in the Dhubri firm was his income arising out of the transfer of assets of the father, thefirst circumstance taken by the Tribunal was that the past record of the assessee showed that this objection had never been raised before. We agree with the High Court that this circumstance is not evidence of the fact that the minors share of profits in the Dhubri firm arose out of the assets transferred by the father. It seems to us that this circumstance is wholly irrelevant for determining this point. The second circumstance relied upon by the Tribunal was that the minor had been admitted as a partner in the Dhubri firm only because of introduction of initial capital of Rs. 74, 721. We agree with the High Court that there is no evidence on record to justify a finding that the minor had been admitted as a partner in the firm. Jwalaprasad Mulchand, Dhubri, only because of the introduction of the initial capital of Rs. 74, 721 in his name by the father, the assessee. The High Court observed that " from the account books it appears that Rs. 74, 721 were taken as the minors deposit in the account books and, further, that the minor was admitted to the benefits of the partnership. There is no evidence to show that he was admitted to the benefits of the partnership because he had undertaken to deposit the sum of Rs. 74, 721 given to him by his father in the firm. " We agree with thesefind, however, that the point was raised before the Appellate Assistant Commissioner, and if the department was so minded, evidence could have been led before the Appellate Assistant Commissioner, and even before the Appellate Tribunal after obtaining its permissionMr. Desai further urged that the High Court had not considered the question that the share of profit arose indirectly from the gift. We see no force in this contention because the High Court has considered the question from all aspects
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The Commissioner Of Income-Tax, Madras Vs. Kasturi And Sons Ltd | useless as everybody would resort to such practice and deprive the Revenue of the tax payableWe have already set out the relevant provisions in the policy of insurance giving an option to the insurer to replace or make good accidental loss or damage to the aircraft. The insurer exercised the option in this case. The effect of exercise of such option has been recognised to bring an end to the obligation to pay money and make the contract one to reinstate the subject-matter of insurance. It has been held that such a conversion relates back to the inception of the contract. The proposition was first laid down by Lord Campbell C. J., in Brown v. Royal Insurance Co. [1859] 1 E and E 853 in the following words: "The case stands as if the policy had been simply to reinstate the premises in case of fire ; because, where a contract provides for an election, the party making the election is in the same position as if he had originally contracted to do the act which he has elected to do." * 15. Till this date, the proposition remains undisturbed and it has been followed in several cases. Mr. K. Parasaran, learned senior counsel for the respondent, has placed before us xerox copies of the relevant pages in Halsburys Laws of England (4th edition), and several text books wherein Browns case [1859] 1 E & E 853, has been cited without reference to any contrary decision. In Halsburys Laws of England, fourth edition., volume 25, paras 634, 635 and 636, read as under: "634. Option as to reinstatement.---By the form of policy in general use, the insurers reserve to themselves the option of reinstating the property instead of making payment in money. This option is reserved for the insurers benefit and it is for them to elect whether to reinstate ; the assured is not entitled to require them to reinstate. Nor may he prevent them from reinstating if they elect to do so635. Exercise of option to reinstate.---An election for or against reinstatement is final once it is made, and cannot afterwards be withdrawn. No formal election is necessary ; an election by conduct is sufficient, provided that the conduct is clear and unequivocal. The insurers will be taken to have elected against reinstatement and in favour of a payment in money if the negotiations for a settlement have been conducted by the insurers throughout on the footing that the loss is to be made good by a payment in money, or if they have proceeded to arbitration for the purpose of ascertaining the amount to be paid under the policy. On the other hand, they are not bound, in the absence of specific provision, to exercise the option immediately ; they are entitled before exercising it to investigate the loss and to ascertain what its amount is likely to be. Therefore a merely provisional assessment of the amount, even if made in conjunction with the assured, does not debar them from electing to reinstate636. Effect of election to reinstate.---If the insurers do not elect to reinstate, their obligation to make good the loss by a payment in money continues I ; but if they do elect, the obligation ceases and the contract becomes a contract to reinstate". In the case of a building, this contract is sufficiently performed if the building is put substantially into the same state as before the fire." 16. It is not necessary for us to quote the passages in each text book. It is sufficient to give the references as follows (a) Chitty on Contracts, 27th edition, volume II, page 927 (b) Colinvauxs Law of Insurance, 6th edition, pages 191 and 192. At page 192, in para. 11.3 the relevant passage reads "The contract of insurance becomes enforceable, in fact, as a building contract---Davies J. in Marrell v. Irving Fire [1865] 33 NY 429." (c) General Principles of Insurance Law by E. R. Hardy Ivamy, 6th edition, page 485 (d) MacGillivray on Insurance Law, 9th edition, page 517 (para 21.4) (e) Modern Insurance Law by John Birds (4th edition, page 277) (f) The Law of Insurance Contracts by Malcolm A. Clarke (3rd edition) para 29.2 in page 791 17. Thus, there is no doubt that on the exercise of the option by the insurer over which the insured has no sway, the contract should be considered only as a contract for reinstatement and not as a contract for money. There is no question of any "money payable" under the contract. There is a fallacy in the contention that the money became payable on the occurrence of the accident and the exercise of the option thereafter by the insurer would not alter the nature of the contract. The contract itself gives the right to the insurer to exercise the option and the legal effect of such exercise is to make the contract one for reinstatement only from the inception. It is analogous to the "doctrine of relation back". Such exercise of option could only be after the occurrence of the accident and not at any time earlier. Consequently, the expression "moneys payable" in section 41(2) will not apply in this case 18. We are unable to accept the contention that the word "money" should be interpreted as "moneys worth". The reasons given by us earlier are sufficient and we need not add to them. The reason for introducing a fiction in section 41(2) of the Act as explained in Bipinchandra Maganlal and Co. Ltd.s case 1960 SC 318 (SC) quoted in Artex Manufacturing Co.s case 1997 SC 2846 (SC), that it is for the purpose of recoupment by the Revenue of the benefit allowed to the assessee in the previous years does not alter the situationIn the result, we do not find any error in the view expressed by the High Court in the judgment under appeal. We are in agreement with the reasoning and conclusion of the High Court in this case 19. | 0[ds]Thus, there is no doubt that on the exercise of the option by the insurer over which the insured has no sway, the contract should be considered only as a contract for reinstatement and not as a contract for money. There is no question of any "money payable" under the contract. There is a fallacy in the contention that the money became payable on the occurrence of the accident and the exercise of the option thereafter by the insurer would not alter the nature of the contract. The contract itself gives the right to the insurer to exercise the option and the legal effect of such exercise is to make the contract one for reinstatement only from the inception. It is analogous to the "doctrine of relation back". Such exercise of option could only be after the occurrence of the accident and not at any time earlier. Consequently, the expression "moneys payable" in section 41(2) will not apply in thisare unable to accept the contention that the word "money" should be interpreted as "moneys worth". The reasons given by us earlier are sufficient and we need not add to them. The reason for introducing a fiction in section 41(2) of the Act as explained in Bipinchandra Maganlal and Co. Ltd.s case 1960 SC 318 (SC) quoted in Artex Manufacturing Co.s case 1997 SC 2846 (SC), that it is for the purpose of recoupment by the Revenue of the benefit allowed to the assessee in the previous years does not alter the situationIn the result, we do not find any error in the view expressed by the High Court in the judgment under appeal. We are in agreement with the reasoning and conclusion of the High Court in this case | 0 | 4,552 | 327 | ### 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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useless as everybody would resort to such practice and deprive the Revenue of the tax payableWe have already set out the relevant provisions in the policy of insurance giving an option to the insurer to replace or make good accidental loss or damage to the aircraft. The insurer exercised the option in this case. The effect of exercise of such option has been recognised to bring an end to the obligation to pay money and make the contract one to reinstate the subject-matter of insurance. It has been held that such a conversion relates back to the inception of the contract. The proposition was first laid down by Lord Campbell C. J., in Brown v. Royal Insurance Co. [1859] 1 E and E 853 in the following words: "The case stands as if the policy had been simply to reinstate the premises in case of fire ; because, where a contract provides for an election, the party making the election is in the same position as if he had originally contracted to do the act which he has elected to do." * 15. Till this date, the proposition remains undisturbed and it has been followed in several cases. Mr. K. Parasaran, learned senior counsel for the respondent, has placed before us xerox copies of the relevant pages in Halsburys Laws of England (4th edition), and several text books wherein Browns case [1859] 1 E & E 853, has been cited without reference to any contrary decision. In Halsburys Laws of England, fourth edition., volume 25, paras 634, 635 and 636, read as under: "634. Option as to reinstatement.---By the form of policy in general use, the insurers reserve to themselves the option of reinstating the property instead of making payment in money. This option is reserved for the insurers benefit and it is for them to elect whether to reinstate ; the assured is not entitled to require them to reinstate. Nor may he prevent them from reinstating if they elect to do so635. Exercise of option to reinstate.---An election for or against reinstatement is final once it is made, and cannot afterwards be withdrawn. No formal election is necessary ; an election by conduct is sufficient, provided that the conduct is clear and unequivocal. The insurers will be taken to have elected against reinstatement and in favour of a payment in money if the negotiations for a settlement have been conducted by the insurers throughout on the footing that the loss is to be made good by a payment in money, or if they have proceeded to arbitration for the purpose of ascertaining the amount to be paid under the policy. On the other hand, they are not bound, in the absence of specific provision, to exercise the option immediately ; they are entitled before exercising it to investigate the loss and to ascertain what its amount is likely to be. Therefore a merely provisional assessment of the amount, even if made in conjunction with the assured, does not debar them from electing to reinstate636. Effect of election to reinstate.---If the insurers do not elect to reinstate, their obligation to make good the loss by a payment in money continues I ; but if they do elect, the obligation ceases and the contract becomes a contract to reinstate". In the case of a building, this contract is sufficiently performed if the building is put substantially into the same state as before the fire." 16. It is not necessary for us to quote the passages in each text book. It is sufficient to give the references as follows (a) Chitty on Contracts, 27th edition, volume II, page 927 (b) Colinvauxs Law of Insurance, 6th edition, pages 191 and 192. At page 192, in para. 11.3 the relevant passage reads "The contract of insurance becomes enforceable, in fact, as a building contract---Davies J. in Marrell v. Irving Fire [1865] 33 NY 429." (c) General Principles of Insurance Law by E. R. Hardy Ivamy, 6th edition, page 485 (d) MacGillivray on Insurance Law, 9th edition, page 517 (para 21.4) (e) Modern Insurance Law by John Birds (4th edition, page 277) (f) The Law of Insurance Contracts by Malcolm A. Clarke (3rd edition) para 29.2 in page 791 17. Thus, there is no doubt that on the exercise of the option by the insurer over which the insured has no sway, the contract should be considered only as a contract for reinstatement and not as a contract for money. There is no question of any "money payable" under the contract. There is a fallacy in the contention that the money became payable on the occurrence of the accident and the exercise of the option thereafter by the insurer would not alter the nature of the contract. The contract itself gives the right to the insurer to exercise the option and the legal effect of such exercise is to make the contract one for reinstatement only from the inception. It is analogous to the "doctrine of relation back". Such exercise of option could only be after the occurrence of the accident and not at any time earlier. Consequently, the expression "moneys payable" in section 41(2) will not apply in this case 18. We are unable to accept the contention that the word "money" should be interpreted as "moneys worth". The reasons given by us earlier are sufficient and we need not add to them. The reason for introducing a fiction in section 41(2) of the Act as explained in Bipinchandra Maganlal and Co. Ltd.s case 1960 SC 318 (SC) quoted in Artex Manufacturing Co.s case 1997 SC 2846 (SC), that it is for the purpose of recoupment by the Revenue of the benefit allowed to the assessee in the previous years does not alter the situationIn the result, we do not find any error in the view expressed by the High Court in the judgment under appeal. We are in agreement with the reasoning and conclusion of the High Court in this case 19.
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### Explanation:
Thus, there is no doubt that on the exercise of the option by the insurer over which the insured has no sway, the contract should be considered only as a contract for reinstatement and not as a contract for money. There is no question of any "money payable" under the contract. There is a fallacy in the contention that the money became payable on the occurrence of the accident and the exercise of the option thereafter by the insurer would not alter the nature of the contract. The contract itself gives the right to the insurer to exercise the option and the legal effect of such exercise is to make the contract one for reinstatement only from the inception. It is analogous to the "doctrine of relation back". Such exercise of option could only be after the occurrence of the accident and not at any time earlier. Consequently, the expression "moneys payable" in section 41(2) will not apply in thisare unable to accept the contention that the word "money" should be interpreted as "moneys worth". The reasons given by us earlier are sufficient and we need not add to them. The reason for introducing a fiction in section 41(2) of the Act as explained in Bipinchandra Maganlal and Co. Ltd.s case 1960 SC 318 (SC) quoted in Artex Manufacturing Co.s case 1997 SC 2846 (SC), that it is for the purpose of recoupment by the Revenue of the benefit allowed to the assessee in the previous years does not alter the situationIn the result, we do not find any error in the view expressed by the High Court in the judgment under appeal. We are in agreement with the reasoning and conclusion of the High Court in this case
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Vulcan Insurance Co. Ltd Vs. Maharaj Singh & Another | claim. Naturally, that question would have first to be decided by suit, as under clause 18, that question could never have been referred to arbitration."We approve the law so enunciated by the Bombay High Court.17. Mr. Andley placed reliance upon some decisions of the High Courts in India in support of his contention. We briefly refer to four of them. In Great American Insurance Co. Ltd. v. Bodh Raj some observations by Harnam Singh J. with whom Weston C.J. agreed in paragraph 16 do not seem to be quite accurate although on facts as found in paragraph 17 the case was rightly decided. The decision of Falshaw J. in Great American Insurance Co. Ltd. v. Dina Nath again relates to the dispute which was held to have, on the facts of that case, fallen in the arbitration clause. It would appear from the facts of the case decided by Mathew J. in Vanguard Fire and General Insurance Co. Ltd. v. N. R. Sreenivasa Iyer that condition 7 of the policy was couched in a wide language so as to cover the dispute and the difference including the one as to liability, which arose between the parties. In such a situation, on a consideration of various authorities including the one in the case of Viney v. Bignold, the learned judge said at page 275, column 1:" This condition may either mean that the arbitrators have to decide the question whether there is any liability at all under the contractor that they have to decide the quantum of that liability. In either case an award by the arbitrators is a condition precedent to any right of action. There is no difference between a case where the arbitrators have to decide the question of the liability itself and a case where he has to decide the question of the quantum of that liability. In both cases if the contract makes the decision of the arbitrators a condition precedent that has to be fulfilled before a suit can be instituted."18. In Charanjit Lal Sodhi v. Caledonian Insurance Co. Ltd. a learned single judge of the Delhi High Court seems to have gone wrong in treating the dispute raised by the insurer as one falling under the arbitration clause. The company had said that the insured had made a false claim. The learned judge thought that even the restricted arbitration clause covering only the difference as to the amount of any loss or damage was " wide enough to include a case of some loss or damage as well as a case of no loss or damage".The two lines of cases clearly bear out the two distinct situations in law. A clause like the one in Scott v. Avery bars any action or suit if commenced for determination of a dispute covered by the arbitration clause. But if on the other hand a dispute cropped up at the very outset which cannot be referred to arbitration as being not covered by the clause, then the Scott v. Avery clause is rendered inoperative and cannot be pleaded as a bar to the maintainability of the legal action or suit for determination of the dispute which was outside the arbitration clause.19. We do not propose, as it is not necessary, to decide whether the action commenced by respondent No. 1 under section 20 of the Act for the filing of the arbitration agreement and for appointment of arbitrators was barred under clause 19 of the policy. It has been repeatedly held that such a clause is not hit by section 28 of the Contract Act and is valid: vide Baroda Spinning and Weaving Co. Ltd. v. Satyanarayen Marine and Fire Insurance Co. Ltd., Dawood Tar Mahomed Bros. v. Queenland Insurance Co. Ltd. and Ruby General Insurance Co. Ltd v. Bharat Bank Ltd. Clause 19 has not prescribed a period of 12 months for the filing of an application under section 20 of the Act. There was no limitation prescribed for the filing of such an application under the Indian Limitation Act, 1908, or the Limitation Act, 1963. Article 181 of the former did not govern such an application. The period of three years prescribed in article 137 of the Act of 1963 may be applicable to an application under section 20. Nor are we concerned in this case to decide whether the time taken by respondent No. 1 in prosecuting his application in Muzaffarnagar court could be excluded under section 14(2) of the Limitation Act, 1963. Nor do we propose to decide whether the application under section 20 could be defeated on the ground of the extinction of the liability of the company under clause 19. We may, however, observe in passing that in view of the decision of this court in Wazir Chand Mahajan v. Union of India, if the difference which had arisen between the parties was the one to which the arbitration clause applied then the application under section 20 of the Act could not be dismissed on the ground that the claim would not ultimately succeed either on facts or in law. The matter will have to be left for the decision of the arbitrator. Without any discussion we may just state that the High Court is not right in its view that respondent No. 1s claim was not barred under clause 19 because of the provision of law contained in section 37(3) of the Act.But in this case on a careful consideration of the matter we have come to the definite conclusion that the difference which arose between the parties on the companys repudiation of the claim made by respondent No. 1 was not one to which the arbitration clause applied and hence the arbitration agreement could not be filed and no arbitrator could be appointed under section 20 of the Act. Respondent No. 1 was ill-advised to commence an action under section 20 instead of instituting a suit within three months of the date of repudiation to establish the companys liability.20. | 1[ds]The correspondence between the parties makes it clear that at one time the surveyors had assessed the damages at Rs. 4, 620 in their letter dated April 26, 1963. But the said assessment was, in express terms, without commitment of any liability on the part of the insurance company. The company, however, completely repudiated the liability under clause 13.Although the surveyors in their letter dated April 26, 1963, had raised a dispute as to the amount of any loss or damage alleged to have been suffered by respondent No. 1, the appellant at no point of time raised any such dispute. The appellant-company in its letter dated the 5th and the 29th July, 1963, repudiated the claim altogether. Under clause 13, the company was not required to mention any reason of rejection of the claim nor did it mention any. But the repudiation of the claim would not amount to the raising of a dispute as to the amount of any loss or damage alleged to have been suffered by respondent No. 1. If the rejection of the claim made by the insured be on the ground that he had suffered no loss as a result of the fire or the amount of loss was not to the extent claimed by him, then and then only, a difference could have arisen as to the amount of any loss or damage within the meaning of clause 18. In this case, however, the company repudiated its liability to pay any amount of loss or damage as claimed by respondent No. 1. In other words, the dispute raised by the company appertained to its liability to pay any amount of damage whatsoever. In our opinion, therefore, the dispute raised by the appellant-company was not covered by the arbitrationper clause 13 on rejection of the claim by the company an action or suit, meaning thereby a legal proceeding which almost invariably in India will be in the nature of a suit, has got to be commenced within three months from the date of such rejection; otherwise, all benefits under the policy stand forfeited. The rejection of the claim may be for the reasons indicated in the first part of clause 13, such as, false declaration, fraud or wilful neglect of the claimant or on any other ground disclosed or undisclosed. But as soon as there is a rejection of the claim and not the raising of a dispute as to the amount of any loss or damage, the only remedy open to the claimant is to commence a legal proceeding, namely, a suit, for establishment of the companys liability. It may well be that after the liability of the company is established in such a suit, for determination of the quantum of the loss or damage reference to arbitration will have to be resorted to in accordance with clause 18. But the arbitration clause, restricted as it is by the use of the words " if any difference arises as to the amount of any loss or damage ", cannot take within its sweep a dispute as to the liability of the company when it refuses to pay any damage atdispute raised is not within the purview of arbitration. Reading clauses 13 and 18 together, it must be held that on the rejection or repudiation of the claim by the insurer, the insured is under an obligation to start a legal proceeding within three months of such rejection, and hence obtaining of an award in such a case cannot be a condition precedent. It is not possible to go to arbitration for determination of the saiddo not propose, as it is not necessary, to decide whether the action commenced by respondent No. 1 under section 20 of the Act for the filing of the arbitration agreement and for appointment of arbitrators was barred under clause 19 of the policy. It has been repeatedly held that such a clause is not hit by section 28 of the Contract Act and isClause 19 has not prescribed a period of 12 months for the filing of an application under section 20 of the Act. There was no limitation prescribed for the filing of such an application under the Indian Limitation Act, 1908, orthe Limitation Act, 1963. Article 181 of the former did not govern such an application. The period of three years prescribed in article 137 of the Act of 1963 may be applicable to an application under section 20. Nor are we concerned in this case to decide whether the time taken by respondent No. 1 in prosecuting his application in Muzaffarnagar court could be excluded under section 14(2) ofthe Limitation Act, 1963. Nor do we propose to decide whether the application under section 20 could be defeated on the ground of the extinction of the liability of the company under clause 19. We may, however, observe in passing that in view of the decision of this court in Wazir Chand Mahajan v. Union of India, if the difference which had arisen between the parties was the one to which the arbitration clause applied then the application under section 20 of the Act could not be dismissed on the ground that the claim would not ultimately succeed either on facts or in law. The matter will have to be left for the decision of the arbitrator. Without any discussion we may just state that the High Court is not right in its view that respondent No. 1s claim was not barred under clause 19 because of the provision of law contained in section 37(3) of the Act.But in this case on a careful consideration of the matter we have come to the definite conclusion that the difference which arose between the parties on the companys repudiation of the claim made by respondent No. 1 was not one to which the arbitration clause applied and hence the arbitration agreement could not be filed and no arbitrator could be appointed under section 20 of the Act. Respondent No. 1 was ill-advised to commence an action under section 20 instead of instituting a suit within three months of the date of repudiation to establish the companys liability. | 1 | 4,874 | 1,120 | ### 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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claim. Naturally, that question would have first to be decided by suit, as under clause 18, that question could never have been referred to arbitration."We approve the law so enunciated by the Bombay High Court.17. Mr. Andley placed reliance upon some decisions of the High Courts in India in support of his contention. We briefly refer to four of them. In Great American Insurance Co. Ltd. v. Bodh Raj some observations by Harnam Singh J. with whom Weston C.J. agreed in paragraph 16 do not seem to be quite accurate although on facts as found in paragraph 17 the case was rightly decided. The decision of Falshaw J. in Great American Insurance Co. Ltd. v. Dina Nath again relates to the dispute which was held to have, on the facts of that case, fallen in the arbitration clause. It would appear from the facts of the case decided by Mathew J. in Vanguard Fire and General Insurance Co. Ltd. v. N. R. Sreenivasa Iyer that condition 7 of the policy was couched in a wide language so as to cover the dispute and the difference including the one as to liability, which arose between the parties. In such a situation, on a consideration of various authorities including the one in the case of Viney v. Bignold, the learned judge said at page 275, column 1:" This condition may either mean that the arbitrators have to decide the question whether there is any liability at all under the contractor that they have to decide the quantum of that liability. In either case an award by the arbitrators is a condition precedent to any right of action. There is no difference between a case where the arbitrators have to decide the question of the liability itself and a case where he has to decide the question of the quantum of that liability. In both cases if the contract makes the decision of the arbitrators a condition precedent that has to be fulfilled before a suit can be instituted."18. In Charanjit Lal Sodhi v. Caledonian Insurance Co. Ltd. a learned single judge of the Delhi High Court seems to have gone wrong in treating the dispute raised by the insurer as one falling under the arbitration clause. The company had said that the insured had made a false claim. The learned judge thought that even the restricted arbitration clause covering only the difference as to the amount of any loss or damage was " wide enough to include a case of some loss or damage as well as a case of no loss or damage".The two lines of cases clearly bear out the two distinct situations in law. A clause like the one in Scott v. Avery bars any action or suit if commenced for determination of a dispute covered by the arbitration clause. But if on the other hand a dispute cropped up at the very outset which cannot be referred to arbitration as being not covered by the clause, then the Scott v. Avery clause is rendered inoperative and cannot be pleaded as a bar to the maintainability of the legal action or suit for determination of the dispute which was outside the arbitration clause.19. We do not propose, as it is not necessary, to decide whether the action commenced by respondent No. 1 under section 20 of the Act for the filing of the arbitration agreement and for appointment of arbitrators was barred under clause 19 of the policy. It has been repeatedly held that such a clause is not hit by section 28 of the Contract Act and is valid: vide Baroda Spinning and Weaving Co. Ltd. v. Satyanarayen Marine and Fire Insurance Co. Ltd., Dawood Tar Mahomed Bros. v. Queenland Insurance Co. Ltd. and Ruby General Insurance Co. Ltd v. Bharat Bank Ltd. Clause 19 has not prescribed a period of 12 months for the filing of an application under section 20 of the Act. There was no limitation prescribed for the filing of such an application under the Indian Limitation Act, 1908, or the Limitation Act, 1963. Article 181 of the former did not govern such an application. The period of three years prescribed in article 137 of the Act of 1963 may be applicable to an application under section 20. Nor are we concerned in this case to decide whether the time taken by respondent No. 1 in prosecuting his application in Muzaffarnagar court could be excluded under section 14(2) of the Limitation Act, 1963. Nor do we propose to decide whether the application under section 20 could be defeated on the ground of the extinction of the liability of the company under clause 19. We may, however, observe in passing that in view of the decision of this court in Wazir Chand Mahajan v. Union of India, if the difference which had arisen between the parties was the one to which the arbitration clause applied then the application under section 20 of the Act could not be dismissed on the ground that the claim would not ultimately succeed either on facts or in law. The matter will have to be left for the decision of the arbitrator. Without any discussion we may just state that the High Court is not right in its view that respondent No. 1s claim was not barred under clause 19 because of the provision of law contained in section 37(3) of the Act.But in this case on a careful consideration of the matter we have come to the definite conclusion that the difference which arose between the parties on the companys repudiation of the claim made by respondent No. 1 was not one to which the arbitration clause applied and hence the arbitration agreement could not be filed and no arbitrator could be appointed under section 20 of the Act. Respondent No. 1 was ill-advised to commence an action under section 20 instead of instituting a suit within three months of the date of repudiation to establish the companys liability.20.
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### Explanation:
1963. But the said assessment was, in express terms, without commitment of any liability on the part of the insurance company. The company, however, completely repudiated the liability under clause 13.Although the surveyors in their letter dated April 26, 1963, had raised a dispute as to the amount of any loss or damage alleged to have been suffered by respondent No. 1, the appellant at no point of time raised any such dispute. The appellant-company in its letter dated the 5th and the 29th July, 1963, repudiated the claim altogether. Under clause 13, the company was not required to mention any reason of rejection of the claim nor did it mention any. But the repudiation of the claim would not amount to the raising of a dispute as to the amount of any loss or damage alleged to have been suffered by respondent No. 1. If the rejection of the claim made by the insured be on the ground that he had suffered no loss as a result of the fire or the amount of loss was not to the extent claimed by him, then and then only, a difference could have arisen as to the amount of any loss or damage within the meaning of clause 18. In this case, however, the company repudiated its liability to pay any amount of loss or damage as claimed by respondent No. 1. In other words, the dispute raised by the company appertained to its liability to pay any amount of damage whatsoever. In our opinion, therefore, the dispute raised by the appellant-company was not covered by the arbitrationper clause 13 on rejection of the claim by the company an action or suit, meaning thereby a legal proceeding which almost invariably in India will be in the nature of a suit, has got to be commenced within three months from the date of such rejection; otherwise, all benefits under the policy stand forfeited. The rejection of the claim may be for the reasons indicated in the first part of clause 13, such as, false declaration, fraud or wilful neglect of the claimant or on any other ground disclosed or undisclosed. But as soon as there is a rejection of the claim and not the raising of a dispute as to the amount of any loss or damage, the only remedy open to the claimant is to commence a legal proceeding, namely, a suit, for establishment of the companys liability. It may well be that after the liability of the company is established in such a suit, for determination of the quantum of the loss or damage reference to arbitration will have to be resorted to in accordance with clause 18. But the arbitration clause, restricted as it is by the use of the words " if any difference arises as to the amount of any loss or damage ", cannot take within its sweep a dispute as to the liability of the company when it refuses to pay any damage atdispute raised is not within the purview of arbitration. Reading clauses 13 and 18 together, it must be held that on the rejection or repudiation of the claim by the insurer, the insured is under an obligation to start a legal proceeding within three months of such rejection, and hence obtaining of an award in such a case cannot be a condition precedent. It is not possible to go to arbitration for determination of the saiddo not propose, as it is not necessary, to decide whether the action commenced by respondent No. 1 under section 20 of the Act for the filing of the arbitration agreement and for appointment of arbitrators was barred under clause 19 of the policy. It has been repeatedly held that such a clause is not hit by section 28 of the Contract Act and isClause 19 has not prescribed a period of 12 months for the filing of an application under section 20 of the Act. There was no limitation prescribed for the filing of such an application under the Indian Limitation Act, 1908, orthe Limitation Act, 1963. Article 181 of the former did not govern such an application. The period of three years prescribed in article 137 of the Act of 1963 may be applicable to an application under section 20. Nor are we concerned in this case to decide whether the time taken by respondent No. 1 in prosecuting his application in Muzaffarnagar court could be excluded under section 14(2) ofthe Limitation Act, 1963. Nor do we propose to decide whether the application under section 20 could be defeated on the ground of the extinction of the liability of the company under clause 19. We may, however, observe in passing that in view of the decision of this court in Wazir Chand Mahajan v. Union of India, if the difference which had arisen between the parties was the one to which the arbitration clause applied then the application under section 20 of the Act could not be dismissed on the ground that the claim would not ultimately succeed either on facts or in law. The matter will have to be left for the decision of the arbitrator. Without any discussion we may just state that the High Court is not right in its view that respondent No. 1s claim was not barred under clause 19 because of the provision of law contained in section 37(3) of the Act.But in this case on a careful consideration of the matter we have come to the definite conclusion that the difference which arose between the parties on the companys repudiation of the claim made by respondent No. 1 was not one to which the arbitration clause applied and hence the arbitration agreement could not be filed and no arbitrator could be appointed under section 20 of the Act. Respondent No. 1 was ill-advised to commence an action under section 20 instead of instituting a suit within three months of the date of repudiation to establish the companys liability.
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Dhup Singh and Others Vs. Rattan and Others | in the circumstances of this case, we feel persuaded to enlarge the time of 90 days fixed under Order XVI, Rule 21 of the rules and direct the substitution of the legal representatives of respondents 56 and 31. This would have necessitated the adjournment of the appeal for proceeding on merits if we would have felt persuaded to allow it. But since we are going to dismiss it, further delay in the disposal of this 10 years old appeal was not thought necessary on this account.6. The next matter of substitution relates to the death of appellant 16 which occurred on June 22, 1965. The application for substitution was filed in the High Court on February 28, 1968 after the despatch of the records to this Court but before a formal petition of appeal was lodged here. This application was filed in accordance with Order XVI, Rule 13 of the then existing Supreme Court Rules, 1950. It had to be filed within 90 days from the date of the death of the appellant as required by Rule 14 of Order XVI. As provided in rule 14A the provisions of Order XXII of the Code of Civil Procedure relating to abatement were applicable to appeals and proceedings under Rules 12 and 13. We do not, however, find a sub-rule like (b) of Rule 12 in relation to the application under Rule 13 providing for the condonation of the delay under Section 5 of the Limitation Act. Nonetheless the power of this Court under Order XLV, Rule 3 will be available for enlarging the time fixed by Rule 14 for the filing of an application under Rule 13. On the facts and in the circumstances of this case, we enlarge the time and direct that the legal representatives of appellant 16 be substituted as parties to this appeal. Adjournment of the hearing of the appeal was not asked for by the appellant on that account.7. Now coming to the merits of the appeal, we find that we have got to dismiss it and there is no way out although we were distressed to find that all labours, expenses incurred so far for the purpose of getting the final decree prepared for about a quarter of a century by now are lost and the whole thing is going to end in fiasco. It is unfortunate that due to an obvious mistake which, of course, seems to have been inadvertently committed by all concerned including the High Court at the time of the disposal of the earlier appeal on September 16, 1954, no preliminary decree even ex parte was passed against the defendants other than those who had entered into the compromise.8. The order of the High Court dated September 16, 1954 in Regular First Appeal 67 of 1953 reads as follows :Parties to this appeal had entered into a compromise which is shown in the affidavit of Chuni Lal. The case was sent down to the trial Court for the attestation of the compromise and both parties accepted before the trial Court the compromise which had been filed here. We therefore, pass a decree in terms of the compromise. Let a decree therefore be drawn up reciting the terms of the compromise as given in the affidavit of Chuni Lal. There will be no order as to costs.9. The trial Court had dismissed the entire suit. The dismissal was in favour of non-appearing defendants or respondents also. The High Court proceeded to pass the above order as if all the parties to the appeal had compromised and it could be disposed of only on its basis. At the threshold the mistake was on the part of the lawyers of either parties to the compromise in not pointing out to the High Court that all the defendant-respondents were not parties to the compromise and the appeal if it was fit to be allowed had to be allowed against them even though they were ex parte. The second mistake was on the part of the Registry of the Court in not bringing this matter to the notice of the Court. Notwithstanding all this it was obviously a mistake of the Court also to dispose of the appeal in terms of the compromise only. The effect of this mistake was that the appeal was neither dismissed nor allowed ex parte against the non appearing defendant-respondents. The decree drawn up on the basis of the order of the High Court aforesaid recited :".... the appeal, having been compromised it is ordered that the decree of Sub-Judge, First Class, Sonepat at Jhajjar, dated January 21, 1953 as described overleaf be and the same is hereby set aside and in lieu thereof the decree be and the same is hereby passed in favour of the plaintiff-appellants in terms of the compromise (copy enclosed) entered into by the appellants and the contesting respondents 8, 9 and 10 to 14 on the following conditions."10. It was argued for the appellants before us that the decree of the Subordinate Judge had been set aside. But the decree drawn up on the basis of the High Court order, dated September 16, 1954 has to be read in the light of the order as a whole. Thus reading it, we have no doubt in our mind that even the effect of the decree drawn up had merely been to set aside the decree of the trial Court in so far as it was in favour of the defendant-respondents who had entered into the compromise. It was substituted by a compromise decree but all the defendants being not parties to this compromise, no kind of preliminary decree was passed against them. It will bear repetition to say that the appeal was not disposed of against them even ex parte either way. That being so, the High Court is right in its view that the proceeding for preparation of a final decree against those defendants was invalid and no final decree could be made against them. | 0[ds]We do not, however, find alike (b) of Rule 12 in relation to the application under Rule 13 providing for the condonation of the delay under Section 5 of the Limitation Act. Nonetheless the power of this Court under Order XLV, Rule 3 will be available for enlarging the time fixed by Rule 14 for the filing of an application under Rule 13. On the facts and in the circumstances of this case, we enlarge the time and direct that the legal representatives of appellant 16 be substituted as parties to this appeal. Adjournment of the hearing of the appeal was not asked for by the appellant on that account.7. Now coming to the merits of the appeal, we find that we have got to dismiss it and there is no way out although we were distressed to find that all labours, expenses incurred so far for the purpose of getting the final decree prepared for about a quarter of a century by now are lost and the whole thing is going to end in fiasco. It is unfortunate that due to an obvious mistake which, of course, seems to have been inadvertently committed by all concerned including the High Court at the time of the disposal of the earlier appeal on September 16, 1954, no preliminary decree even ex parte was passed against the defendants other than those who had entered into the compromise. | 0 | 2,419 | 257 | ### Instruction:
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in the circumstances of this case, we feel persuaded to enlarge the time of 90 days fixed under Order XVI, Rule 21 of the rules and direct the substitution of the legal representatives of respondents 56 and 31. This would have necessitated the adjournment of the appeal for proceeding on merits if we would have felt persuaded to allow it. But since we are going to dismiss it, further delay in the disposal of this 10 years old appeal was not thought necessary on this account.6. The next matter of substitution relates to the death of appellant 16 which occurred on June 22, 1965. The application for substitution was filed in the High Court on February 28, 1968 after the despatch of the records to this Court but before a formal petition of appeal was lodged here. This application was filed in accordance with Order XVI, Rule 13 of the then existing Supreme Court Rules, 1950. It had to be filed within 90 days from the date of the death of the appellant as required by Rule 14 of Order XVI. As provided in rule 14A the provisions of Order XXII of the Code of Civil Procedure relating to abatement were applicable to appeals and proceedings under Rules 12 and 13. We do not, however, find a sub-rule like (b) of Rule 12 in relation to the application under Rule 13 providing for the condonation of the delay under Section 5 of the Limitation Act. Nonetheless the power of this Court under Order XLV, Rule 3 will be available for enlarging the time fixed by Rule 14 for the filing of an application under Rule 13. On the facts and in the circumstances of this case, we enlarge the time and direct that the legal representatives of appellant 16 be substituted as parties to this appeal. Adjournment of the hearing of the appeal was not asked for by the appellant on that account.7. Now coming to the merits of the appeal, we find that we have got to dismiss it and there is no way out although we were distressed to find that all labours, expenses incurred so far for the purpose of getting the final decree prepared for about a quarter of a century by now are lost and the whole thing is going to end in fiasco. It is unfortunate that due to an obvious mistake which, of course, seems to have been inadvertently committed by all concerned including the High Court at the time of the disposal of the earlier appeal on September 16, 1954, no preliminary decree even ex parte was passed against the defendants other than those who had entered into the compromise.8. The order of the High Court dated September 16, 1954 in Regular First Appeal 67 of 1953 reads as follows :Parties to this appeal had entered into a compromise which is shown in the affidavit of Chuni Lal. The case was sent down to the trial Court for the attestation of the compromise and both parties accepted before the trial Court the compromise which had been filed here. We therefore, pass a decree in terms of the compromise. Let a decree therefore be drawn up reciting the terms of the compromise as given in the affidavit of Chuni Lal. There will be no order as to costs.9. The trial Court had dismissed the entire suit. The dismissal was in favour of non-appearing defendants or respondents also. The High Court proceeded to pass the above order as if all the parties to the appeal had compromised and it could be disposed of only on its basis. At the threshold the mistake was on the part of the lawyers of either parties to the compromise in not pointing out to the High Court that all the defendant-respondents were not parties to the compromise and the appeal if it was fit to be allowed had to be allowed against them even though they were ex parte. The second mistake was on the part of the Registry of the Court in not bringing this matter to the notice of the Court. Notwithstanding all this it was obviously a mistake of the Court also to dispose of the appeal in terms of the compromise only. The effect of this mistake was that the appeal was neither dismissed nor allowed ex parte against the non appearing defendant-respondents. The decree drawn up on the basis of the order of the High Court aforesaid recited :".... the appeal, having been compromised it is ordered that the decree of Sub-Judge, First Class, Sonepat at Jhajjar, dated January 21, 1953 as described overleaf be and the same is hereby set aside and in lieu thereof the decree be and the same is hereby passed in favour of the plaintiff-appellants in terms of the compromise (copy enclosed) entered into by the appellants and the contesting respondents 8, 9 and 10 to 14 on the following conditions."10. It was argued for the appellants before us that the decree of the Subordinate Judge had been set aside. But the decree drawn up on the basis of the High Court order, dated September 16, 1954 has to be read in the light of the order as a whole. Thus reading it, we have no doubt in our mind that even the effect of the decree drawn up had merely been to set aside the decree of the trial Court in so far as it was in favour of the defendant-respondents who had entered into the compromise. It was substituted by a compromise decree but all the defendants being not parties to this compromise, no kind of preliminary decree was passed against them. It will bear repetition to say that the appeal was not disposed of against them even ex parte either way. That being so, the High Court is right in its view that the proceeding for preparation of a final decree against those defendants was invalid and no final decree could be made against them.
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We do not, however, find alike (b) of Rule 12 in relation to the application under Rule 13 providing for the condonation of the delay under Section 5 of the Limitation Act. Nonetheless the power of this Court under Order XLV, Rule 3 will be available for enlarging the time fixed by Rule 14 for the filing of an application under Rule 13. On the facts and in the circumstances of this case, we enlarge the time and direct that the legal representatives of appellant 16 be substituted as parties to this appeal. Adjournment of the hearing of the appeal was not asked for by the appellant on that account.7. Now coming to the merits of the appeal, we find that we have got to dismiss it and there is no way out although we were distressed to find that all labours, expenses incurred so far for the purpose of getting the final decree prepared for about a quarter of a century by now are lost and the whole thing is going to end in fiasco. It is unfortunate that due to an obvious mistake which, of course, seems to have been inadvertently committed by all concerned including the High Court at the time of the disposal of the earlier appeal on September 16, 1954, no preliminary decree even ex parte was passed against the defendants other than those who had entered into the compromise.
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OM PRAKASH AGARWAL SINCE DECEASED THR LRS Vs. VISHAN DAYAL RAJPOOT | in Section 21 in the year 1976. Following was stated in paragraph 34, 37 and 41:- ?34. It may be noted that Section 21 provided that no objection as to place of the suing can be allowed by even an appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and unless there has been a consequent failure of justice. In 1976, the existing section was numbered as sub-section (1) and sub-section (2) was added relating to pecuniary jurisdiction by providing that no objection as to competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or revisional court unless such objection had been taken in the first instance at the earliest possible opportunity and unless there had been a consequent failure of justice……… 37. As can be seen, Amendment Act 104 of 1976 introduced sub-section (2) relating to pecuniary jurisdiction and put it on a par with the objection to territorial jurisdiction and the competence to raise an objection in that regard even in an appeal from the very decree. This was obviously done in the light of the interpretation placed on Section 21 of the Code as it existed and Section 11 of the Suits Valuation Act by this Court in Kiran Singh v. Chaman Paswan5 followed by Hiralal Patni v. Kali Nath6 and Bahrein Petroleum Co. Ltd. v. P.J. Pappu4. Therefore, there is no justification in understanding the expression ?objection as to place of suing? occurring in Section 21-A as being confined to an objection only in the territorial sense and not in the pecuniary sense. Both could be understood, especially in the context of the amendment to Section 21 brought about by the Amendment Act, as objection to place of suing. 41. In the light of the above, it is clear that no objection to the pecuniary jurisdiction of the court which tried OS No. 61 of 1971 could be raised successfully even in an appeal against that very decree unless it had been raised at the earliest opportunity and a failure of justice or prejudice was shown. Obviously therefore, it could not be collaterally challenged. That too not by the plaintiffs therein, but by a defendant whose alienation was unsuccessfully challenged by the plaintiffs in that suit.? 56. Now, reverting back to facts of this case it is apparent from the judgment dated 22.10.2016 of Additional District Judge, that no objection to the competence of Additional District Judge to decide the case was taken by any of the parties. No objection having been taken to the pecuniary jurisdiction of the Additional District Judge, Section 21 of the Civil Procedure Code comes into play. Sub-section (2) of Section 21 provides that no objection as to the competence of the Court with reference to the pecuniary limits of the jurisdiction shall be allowed by any Appellate or Revisional Court unless conditions mentioned therein are fulfilled. No objection having been raised by respondent tenant regarding competence of the Court. Sub-section (2) precludes the revisionist to raise any objection regarding competence of the court and further revisional court ought not to have allowed such objection regarding competence of Court of Additional District Judge to decide the suit. The respondent tenant did not raise any objection regarding competence of the Court and took a chance to obtain judgments in his favour on merits, he cannot be allowed to turn-round and contend that the court of Additional District Judge had no jurisdiction to try the Small Cause Suit and the judgment is without jurisdiction and nullity. Section 21 has been enacted to thwart any such objection by unsuccessful party who did not raise any objection regarding competence of court and allowed the matter to be heard on merits. Further, in deciding the small cause suit by Additional District Judge, the tenant has not proved that there has been a consequent failure of justice. 57. The High Court in the impugned judgment has not adverted to Section 21 of the Code of Civil Procedure. In judgment of Shobhit Nigam(Supra) also, affect of Section 21 was neither considered nor raised. Section 21 contains a legislative policy which policy has an object and purpose. The object is also to avoid retrial of cases on merit on basis of technical objections. 58. There is another judgment of Single Judge of the High Court referred to by the learned counsel for the respondent i.e. SCC Revision No.305 of 2016, Tejumal vs. Mohd. Sarfraz, 2017 (121) ALR 392. In the above case, learned Single Judge had allowed the revision under Section 25 against the judgment dated 12.08.2016 passed by Additional District and Sessions Judge on the ground that the judgment of Additional District Judge was without jurisdiction. In paragraph 6 of the judgment, High Court had noticed judgment of this court in R.S.D.V. Finance Company Private Limited vs. Shree Vallabh Glass Works Ltd. where it was held that in view of Section 21(1) of the Code of Civil Procedure, objection as to the place of suing should be taken by the party concerned in the court of first instance at the earliest possible opportunity and the objection to this effect shall not be allowed by the Appellate or Revisional Court but relying on the judgment of this Court in Kiran Singh Vs. Chaman Paswan, learned Single Judge held that defect of jurisdiction whether pecuniary or territorial or to the subject matter cannot be cured and can be set up at any stage of the proceeding. 59. We are of the view that the above view of the learned Single Judge is neither in consonance with the judgment of this Court in Kiran Singh?s case nor with R.S.D.V. Finance Company Private Limited (supra) which has been noted and referred to by learned Single Judge. Section 21 is statutory recognition of the legislative policy which cannot be ignored or given a go-by by the litigants who challenges an unfavourable decision. | 1[ds]31. It is true that District Judge or Additional District Judge functioning as Small Causes Courts can take cognizance of all suits irrespective of their value. But use of the words ?irrespective of their value? was in contradiction of the pecuniary value, which was given to Judge of Small Causes Courts presided by Civil Judge. The fact that District Judge or Additional District Judge can take cognizance of all suits irrespective of their value shall not whittle down or dilute the line of separation between two courts in taking cognizance of small cause cases. The mere fact that District Judge or Additional District Judge can take cognizance of suits of unlimited value will not empower them to take cognizance of cases, which, according to statutory Scheme can be taken only by small causes courts presided by Civil Judge. It is relevant to notice that the Allahabad High Court had occasion to consider the provisions of the Provincial Small Cause Courts Act, 1887 as applicable in the State of Uttar Pradesh. A reference is made to M.P. Mishra Vs. Sangam Lal Agarwal, AIR 1975 Allahabad 425. In the above case before the Allahabad High Court, a small cause suit was decided by the Additional District Judge, which had valuation of more than five thousand rupees. Arguments were raised that valuation of small cause case is more than five thousand rupees, hence Additional District Judge could not have decided the case as small cause case rather it ought to have been decided as a normal civil suit. In the above context, provision of U.P. Act No. 37 of 1972 and U.P. Act No. 19 of 1973 by which Section 25 of Bengal, Agra and Assam Civil Courts Act, 1887 was amended by adding another sub-section, i.e. sub-section(4), and the notifications issued by the High Court in above respect were noticed.The purpose of Section 15 is obvious that even though more than one court has jurisdiction to try the suit, it should be instituted in the Court of lowest grade. For example, a small cause case can be instituted in Court of Small Cause presided by Civil Judge having valuation of upto Rs. 1 lakh as on date and small cause suit having valuation of more than Rs. 1 lakh can be instituted in the Court of District Judge or Additional District Judge. As per Section 15 of the Code of Civil Procedure, suit of less than Rs. 1 lakh valuation has to be instituted in Small Causes Court presided by Civil Judge. Although, District Judge or Additional District Judge has unlimited pecuniary jurisdiction but under the legislative Scheme, the suit is not to be taken cognizance by the District Judge or Additional District Judge, which has valuation upto Rs. 1 lakh. Even though if Section 15 of the C.P.C. is a provision, which regulate the institution of suits and does not affect the jurisdiction of Courts, reading the provision ofalongwith relevant provisions of the Provincial Small Cause Courts Act, 1887 and the Bengal, Agra, Assam Civil Courts Act, 1887, the legislative Scheme is clear that small cause cases should be taken cognizance by Small Cause Courts presided by Civil Judge upto the valuation of Rs. 1 lakh and cases having valuation of more than Rs. 1 lakh by District Judge or Additional District Judge, who have been invested with the power of Small Cause Courts. Unless the above legislative intent and Scheme is followed, there shall be confusion and inconsistency. The legislative provisions have to be interpreted in a manner, which may advance the object and purpose of the Act. When clear dichotomy regarding taking cognizance of small causes suits presided by Civil Judge and by District Judge or Additional District Judge have been provided for, the said dichotomy and separation to take cognizance of cases has to be followed to further the object and purpose of legislation.common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty.It is true that statement of objects noticed that value of subject matters brought to the courts has increased substantially, hence, pecuniary jurisdiction of the Civil Courts as well those of Small Causes Courts in State of Uttar Pradesh requires to be raised for the institution of civil suits and appeals. The amendment has raised pecuniary limits in Provincial Small Cause Courts Act, 1887. The statement of objects and reasons explains the reason for increase of pecuniary jurisdiction but use of word ‘for institution? in statement of object cannot control the express language of the statutory provisions.48. We further observe that learned Single Judge in Pankaj Hotels case having noticed an earlier view of learned Single Judge in Shobhit Nigam?s case, and he being of the opinion that judgment does not lay down the correct law, appropriate course open for Single Judge was to refer the matter for consideration by a larger bench. The judgments of the High Court are relied on and followed by all sub-ordinate courts in the State. It is always better to achieve certainty by an authoritative opinion by the High Court instead of giving conflicting views by different learned Single Judges which may confuse the litigants, lawyers and sub-ordinate courts in applying the law.Now, reverting back to facts of this case it is apparent from the judgment dated 22.10.2016 of Additional District Judge, that no objection to the competence of Additional District Judge to decide the case was taken by any of the parties. No objection having been taken to the pecuniary jurisdiction of the Additional District Judge, Section 21 of the Civil Procedure Code comes into play. Sub-section (2) of Section 21 provides that no objection as to the competence of the Court with reference to the pecuniary limits of the jurisdiction shall be allowed by any Appellate or Revisional Court unless conditions mentioned therein are fulfilled. No objection having been raised by respondent tenant regarding competence of the Court. Sub-section (2) precludes the revisionist to raise any objection regarding competence of the court and further revisional court ought not to have allowed such objection regarding competence of Court of Additional District Judge to decide the suit. The respondent tenant did not raise any objection regarding competence of the Court and took a chance to obtain judgments in his favour on merits, he cannot be allowed to turn-round and contend that the court of Additional District Judge had no jurisdiction to try the Small Cause Suit and the judgment is without jurisdiction and nullity. Section 21 has been enacted to thwart any such objection by unsuccessful party who did not raise any objection regarding competence of court and allowed the matter to be heard on merits. Further, in deciding the small cause suit by Additional District Judge, the tenant has not proved that there has been a consequent failure of justice.59. We are of the view that the above view of the learned Single Judge is neither in consonance with the judgment of this Court in Kiran Singh?s case nor with R.S.D.V. Finance Company Private Limited (supra) which has been noted and referred to by learned Single Judge. Section 21 is statutory recognition of the legislative policy which cannot be ignored or given a go-by by the litigants who challenges an unfavourable decision. | 1 | 14,904 | 1,358 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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in Section 21 in the year 1976. Following was stated in paragraph 34, 37 and 41:- ?34. It may be noted that Section 21 provided that no objection as to place of the suing can be allowed by even an appellate or revisional court unless such objection was taken in the court of first instance at the earliest possible opportunity and unless there has been a consequent failure of justice. In 1976, the existing section was numbered as sub-section (1) and sub-section (2) was added relating to pecuniary jurisdiction by providing that no objection as to competence of a court with reference to the pecuniary limits of its jurisdiction shall be allowed by any appellate or revisional court unless such objection had been taken in the first instance at the earliest possible opportunity and unless there had been a consequent failure of justice……… 37. As can be seen, Amendment Act 104 of 1976 introduced sub-section (2) relating to pecuniary jurisdiction and put it on a par with the objection to territorial jurisdiction and the competence to raise an objection in that regard even in an appeal from the very decree. This was obviously done in the light of the interpretation placed on Section 21 of the Code as it existed and Section 11 of the Suits Valuation Act by this Court in Kiran Singh v. Chaman Paswan5 followed by Hiralal Patni v. Kali Nath6 and Bahrein Petroleum Co. Ltd. v. P.J. Pappu4. Therefore, there is no justification in understanding the expression ?objection as to place of suing? occurring in Section 21-A as being confined to an objection only in the territorial sense and not in the pecuniary sense. Both could be understood, especially in the context of the amendment to Section 21 brought about by the Amendment Act, as objection to place of suing. 41. In the light of the above, it is clear that no objection to the pecuniary jurisdiction of the court which tried OS No. 61 of 1971 could be raised successfully even in an appeal against that very decree unless it had been raised at the earliest opportunity and a failure of justice or prejudice was shown. Obviously therefore, it could not be collaterally challenged. That too not by the plaintiffs therein, but by a defendant whose alienation was unsuccessfully challenged by the plaintiffs in that suit.? 56. Now, reverting back to facts of this case it is apparent from the judgment dated 22.10.2016 of Additional District Judge, that no objection to the competence of Additional District Judge to decide the case was taken by any of the parties. No objection having been taken to the pecuniary jurisdiction of the Additional District Judge, Section 21 of the Civil Procedure Code comes into play. Sub-section (2) of Section 21 provides that no objection as to the competence of the Court with reference to the pecuniary limits of the jurisdiction shall be allowed by any Appellate or Revisional Court unless conditions mentioned therein are fulfilled. No objection having been raised by respondent tenant regarding competence of the Court. Sub-section (2) precludes the revisionist to raise any objection regarding competence of the court and further revisional court ought not to have allowed such objection regarding competence of Court of Additional District Judge to decide the suit. The respondent tenant did not raise any objection regarding competence of the Court and took a chance to obtain judgments in his favour on merits, he cannot be allowed to turn-round and contend that the court of Additional District Judge had no jurisdiction to try the Small Cause Suit and the judgment is without jurisdiction and nullity. Section 21 has been enacted to thwart any such objection by unsuccessful party who did not raise any objection regarding competence of court and allowed the matter to be heard on merits. Further, in deciding the small cause suit by Additional District Judge, the tenant has not proved that there has been a consequent failure of justice. 57. The High Court in the impugned judgment has not adverted to Section 21 of the Code of Civil Procedure. In judgment of Shobhit Nigam(Supra) also, affect of Section 21 was neither considered nor raised. Section 21 contains a legislative policy which policy has an object and purpose. The object is also to avoid retrial of cases on merit on basis of technical objections. 58. There is another judgment of Single Judge of the High Court referred to by the learned counsel for the respondent i.e. SCC Revision No.305 of 2016, Tejumal vs. Mohd. Sarfraz, 2017 (121) ALR 392. In the above case, learned Single Judge had allowed the revision under Section 25 against the judgment dated 12.08.2016 passed by Additional District and Sessions Judge on the ground that the judgment of Additional District Judge was without jurisdiction. In paragraph 6 of the judgment, High Court had noticed judgment of this court in R.S.D.V. Finance Company Private Limited vs. Shree Vallabh Glass Works Ltd. where it was held that in view of Section 21(1) of the Code of Civil Procedure, objection as to the place of suing should be taken by the party concerned in the court of first instance at the earliest possible opportunity and the objection to this effect shall not be allowed by the Appellate or Revisional Court but relying on the judgment of this Court in Kiran Singh Vs. Chaman Paswan, learned Single Judge held that defect of jurisdiction whether pecuniary or territorial or to the subject matter cannot be cured and can be set up at any stage of the proceeding. 59. We are of the view that the above view of the learned Single Judge is neither in consonance with the judgment of this Court in Kiran Singh?s case nor with R.S.D.V. Finance Company Private Limited (supra) which has been noted and referred to by learned Single Judge. Section 21 is statutory recognition of the legislative policy which cannot be ignored or given a go-by by the litigants who challenges an unfavourable decision.
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rather it ought to have been decided as a normal civil suit. In the above context, provision of U.P. Act No. 37 of 1972 and U.P. Act No. 19 of 1973 by which Section 25 of Bengal, Agra and Assam Civil Courts Act, 1887 was amended by adding another sub-section, i.e. sub-section(4), and the notifications issued by the High Court in above respect were noticed.The purpose of Section 15 is obvious that even though more than one court has jurisdiction to try the suit, it should be instituted in the Court of lowest grade. For example, a small cause case can be instituted in Court of Small Cause presided by Civil Judge having valuation of upto Rs. 1 lakh as on date and small cause suit having valuation of more than Rs. 1 lakh can be instituted in the Court of District Judge or Additional District Judge. As per Section 15 of the Code of Civil Procedure, suit of less than Rs. 1 lakh valuation has to be instituted in Small Causes Court presided by Civil Judge. Although, District Judge or Additional District Judge has unlimited pecuniary jurisdiction but under the legislative Scheme, the suit is not to be taken cognizance by the District Judge or Additional District Judge, which has valuation upto Rs. 1 lakh. Even though if Section 15 of the C.P.C. is a provision, which regulate the institution of suits and does not affect the jurisdiction of Courts, reading the provision ofalongwith relevant provisions of the Provincial Small Cause Courts Act, 1887 and the Bengal, Agra, Assam Civil Courts Act, 1887, the legislative Scheme is clear that small cause cases should be taken cognizance by Small Cause Courts presided by Civil Judge upto the valuation of Rs. 1 lakh and cases having valuation of more than Rs. 1 lakh by District Judge or Additional District Judge, who have been invested with the power of Small Cause Courts. Unless the above legislative intent and Scheme is followed, there shall be confusion and inconsistency. The legislative provisions have to be interpreted in a manner, which may advance the object and purpose of the Act. When clear dichotomy regarding taking cognizance of small causes suits presided by Civil Judge and by District Judge or Additional District Judge have been provided for, the said dichotomy and separation to take cognizance of cases has to be followed to further the object and purpose of legislation.common parlance, it means taking notice of. A court, therefore, is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty.It is true that statement of objects noticed that value of subject matters brought to the courts has increased substantially, hence, pecuniary jurisdiction of the Civil Courts as well those of Small Causes Courts in State of Uttar Pradesh requires to be raised for the institution of civil suits and appeals. The amendment has raised pecuniary limits in Provincial Small Cause Courts Act, 1887. The statement of objects and reasons explains the reason for increase of pecuniary jurisdiction but use of word ‘for institution? in statement of object cannot control the express language of the statutory provisions.48. We further observe that learned Single Judge in Pankaj Hotels case having noticed an earlier view of learned Single Judge in Shobhit Nigam?s case, and he being of the opinion that judgment does not lay down the correct law, appropriate course open for Single Judge was to refer the matter for consideration by a larger bench. The judgments of the High Court are relied on and followed by all sub-ordinate courts in the State. It is always better to achieve certainty by an authoritative opinion by the High Court instead of giving conflicting views by different learned Single Judges which may confuse the litigants, lawyers and sub-ordinate courts in applying the law.Now, reverting back to facts of this case it is apparent from the judgment dated 22.10.2016 of Additional District Judge, that no objection to the competence of Additional District Judge to decide the case was taken by any of the parties. No objection having been taken to the pecuniary jurisdiction of the Additional District Judge, Section 21 of the Civil Procedure Code comes into play. Sub-section (2) of Section 21 provides that no objection as to the competence of the Court with reference to the pecuniary limits of the jurisdiction shall be allowed by any Appellate or Revisional Court unless conditions mentioned therein are fulfilled. No objection having been raised by respondent tenant regarding competence of the Court. Sub-section (2) precludes the revisionist to raise any objection regarding competence of the court and further revisional court ought not to have allowed such objection regarding competence of Court of Additional District Judge to decide the suit. The respondent tenant did not raise any objection regarding competence of the Court and took a chance to obtain judgments in his favour on merits, he cannot be allowed to turn-round and contend that the court of Additional District Judge had no jurisdiction to try the Small Cause Suit and the judgment is without jurisdiction and nullity. Section 21 has been enacted to thwart any such objection by unsuccessful party who did not raise any objection regarding competence of court and allowed the matter to be heard on merits. Further, in deciding the small cause suit by Additional District Judge, the tenant has not proved that there has been a consequent failure of justice.59. We are of the view that the above view of the learned Single Judge is neither in consonance with the judgment of this Court in Kiran Singh?s case nor with R.S.D.V. Finance Company Private Limited (supra) which has been noted and referred to by learned Single Judge. Section 21 is statutory recognition of the legislative policy which cannot be ignored or given a go-by by the litigants who challenges an unfavourable decision.
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K.Gopaul Vs. Union Of India And Others | that this transfer would involve loss of lien on a permanent post by the appellant. The subsequent orders have, however, clearly rectified this error. By the Order, dated 6th June 1964, the first step was taken of keeping the earlier existing temporary post of Accommodation Controller, Madras, in abeyance with effect from 6th February 1964, the date on which the appellant took charge of that post, and, instead, another temporary post of Accommodation Controller, Madras, was created in the scale of pay which was applicable to the post of I. G. R.Later on, while the appeals were pending in the High Court, the Government sent a letter conveying their decision to create a supernumerary post of I. G. R. in the State Service with effect from 11th November 1963 in order to protect the rights of the appellant. A supernumerary post of Additional Inspector-General of Registration was in fact created by the Order, dated 6th October 1966, with effect from 11-11-1963. That Order was later superseded by the Order dated l0th February 1967, which conveyed Governments sanction to the creation of a supernumerary post of I. G. R. in the State Service not borne on the Indian Civil Administrative Cadre in the scale of pay which the appellant was drawing when he was holding the post of I. G. R. which was placed in the cadre of the Indian Administrative Service. This supernumerary post was created with effect from 11-11-1963 and it was laid down that it would exist until such time as the appellant was confirmed in another post. The appellant was thus provided a lien on this supernumerary post of I. G. R. in the State Service. On behalf of the appellant, it was urged that the supernumerary post of I. G. R. is a temporary post, and the fact that the Government has placed his lien on this post does not protect his rights to pension. On behalf of the Government, the reply is that the supernumerary post of I. G. R. is a permanent post and not a temporary post. In R. 9 (22) of the Fundamental Rules of the Madras Government, a permanent post is defined to mean a post carrying a definite rate of pay sanctioned without limit of time, while under R. 9 (30), a temporary post is defined to mean a post carrying a definite rate of pay sanctioned for a limited time. The supernumerary post of I. G. R. created by the Order of the Government, dated 10th February 1967, is not for a limited time. The post has been created for an indefinite period and is to continue in existence as long as the appellant holds that post and is not confirmed in any other permanent post. This supernumerary post of I. G. R. is, thus, clearly covered by the definition of permanent post, so that the appellant now holds lien on a permanent post and, consequently, satisfies the second condition for qualifying for pension laid down in R. 361 of the Madras Pension Code, mentioned above. There is, therefore, no force in the submission that the Orders made by the Government have resulted in any punishment being inflicted on the appellant by prejudicing his rights to pension and gratuity.7. The last point urged by learned counsel was that the post of I. G. R. has been placed in the cadre of the Indian Administrative "Service in the State of Madras only and in no other State and, as a consequence, the appellant lost his appointment to that post due to the unequal treatment meted out by the Government of India. Under R. 4 (1) of the Indian Administrative Service (Cadre) Rules, 1954, framed under the All India Services Act 61 of 1951, the strength and composition of the Cadre of the Indian Administrative Service constituted for a State are to be determined by regulations made by the Central Government in consultation with the State Government concerned. Rule 4 (2) lays down that the Central Government shall, at the interval of every three years, re-examine the strength and composition of each such cadre in consultation with the State Government concerned. It was as a result of re-examination in the year 1963 that the Central Government declared the post of I. G. R. as well as a number of other posts as cadre posts of the Indian Administrative Service in consultation with the Madras Government. When such re-examination takes place, the circumstances and conditions existing in a particular State have to be taken into account. It is not necessary that similar posts in all States in India must all be placed in the same cadre. Depending on the conditions brought to the notice of the Central Government, the Government may consider it desirable that a particular post in one State should be placed on the Cadre of the Indian Administrative Service, whereas, in another State, it may not be considered advisable to do so. On behalf of the appellant, Vol. II of the Hand Book of Rules and Regulations for the All India Services was brought to our notice. The edition corrected up to 1st September 1962 showed the posts in the various States placed on the Cadre of the Indian Administrative Service.These Rules certainly do not show that the post of I. G. R. in any State was in the cadre of the Indian Administrative Service in that year, but a comparison of the various lists shows that there are some posts which, in some of the States, are borne on the Cadre of the Indian Administrative Service, whereas they are not included in that Cadre in other States. Clearly, there can be no uniformity between different States in the matter of determining the strength and the composition of the Cadre of the Indian Administrative Service in all the States. The submission that we should hold the order of the Union Government as void on the ground of discrimination between different States has, therefore, no force and must be rejected. | 0[ds]We cannot accept the submission that the mere fact that the post of Accommodation Controller, to which the appellant has been transferred, has not been designated as the post of a Head of the Department necessarily involves any reduction in rank. In fact, it is well known that in Government service, there may be senior posts, the holders of which are not declared as Heads of Department while persons holding comparatively Junior posts may be declared as such. The rank in Government service does not depend on the mere circumstance that the Government servant, in the discharge of his duties, is given certainsubmission made on behalf of the appellant that the post of I. G. R. is higher in rank than that of a Deputy Secretary is thus clearly wrong. In fact, the post is lower in rank than that of a Deputy Secretary and is equated with that of an Assistant Secretary. It has not even been suggested anywhere that the post of Accommodation Controller is lower in rank than that of an Assistant Secretary to Government or a Deputy Collector. On the other hand, the information given to us in the course of the arguments showed that, under the Rules, the Accommodation Controller works directly under the control of the Government, while the I. G. R. is subordinate to the Board of Revenue. We, consequently, find no force at all in the plea that the posting of the appellant as Accommodation Controller, when he was holding the post of I. G. R. amounted to reduction inpost has been created for an indefinite period and is to continue in existence as long as the appellant holds that post and is not confirmed in any other permanent post. This supernumerary post of I. G. R. is, thus, clearly covered by the definition of permanent post, so that the appellant now holds lien on a permanent post and, consequently, satisfies the second condition for qualifying for pension laid down in R. 361 of the Madras Pension Code, mentioned above. There is, therefore, no force in the submission that the Orders made by the Government have resulted in any punishment being inflicted on the appellant by prejudicing his rights to pension andR. 4 (1) of the Indian Administrative Service (Cadre) Rules, 1954, framed under the All India Services Act 61 of 1951, the strength and composition of the Cadre of the Indian Administrative Service constituted for a State are to be determined by regulations made by the Central Government in consultation with the State Government concerned. Rule 4 (2) lays down that the Central Government shall, at the interval of every three years, re-examine the strength and composition of each such cadre in consultation with the State Government concerned. It was as a result of re-examination in the year 1963 that the Central Government declared the post of I. G. R. as well as a number of other posts as cadre posts of the Indian Administrative Service in consultation with the Madras Government. When such re-examination takes place, the circumstances and conditions existing in a particular State have to be taken into account. It is not necessary that similar posts in all States in India must all be placed in the same cadre. Depending on the conditions brought to the notice of the Central Government, the Government may consider it desirable that a particular post in one State should be placed on the Cadre of the Indian Administrative Service, whereas, in another State, it may not be considered advisable to do so. On behalf of the appellant, Vol. II of the Hand Book of Rules and Regulations for the All India Services was brought to our notice. The edition corrected up to 1st September 1962 showed the posts in the various States placed on the Cadre of the Indian Administrative Service.These Rules certainly do not show that the post of I. G. R. in any State was in the cadre of the Indian Administrative Service in that year, but a comparison of the various lists shows that there are some posts which, in some of the States, are borne on the Cadre of the Indian Administrative Service, whereas they are not included in that Cadre in other States. Clearly, there can be no uniformity between different States in the matter of determining the strength and the composition of the Cadre of the Indian Administrative Service in all the States. The submission that we should hold the order of the Union Government as void on the ground of discrimination between different States has, therefore, no force and must be rejected. | 0 | 3,623 | 839 | ### 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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that this transfer would involve loss of lien on a permanent post by the appellant. The subsequent orders have, however, clearly rectified this error. By the Order, dated 6th June 1964, the first step was taken of keeping the earlier existing temporary post of Accommodation Controller, Madras, in abeyance with effect from 6th February 1964, the date on which the appellant took charge of that post, and, instead, another temporary post of Accommodation Controller, Madras, was created in the scale of pay which was applicable to the post of I. G. R.Later on, while the appeals were pending in the High Court, the Government sent a letter conveying their decision to create a supernumerary post of I. G. R. in the State Service with effect from 11th November 1963 in order to protect the rights of the appellant. A supernumerary post of Additional Inspector-General of Registration was in fact created by the Order, dated 6th October 1966, with effect from 11-11-1963. That Order was later superseded by the Order dated l0th February 1967, which conveyed Governments sanction to the creation of a supernumerary post of I. G. R. in the State Service not borne on the Indian Civil Administrative Cadre in the scale of pay which the appellant was drawing when he was holding the post of I. G. R. which was placed in the cadre of the Indian Administrative Service. This supernumerary post was created with effect from 11-11-1963 and it was laid down that it would exist until such time as the appellant was confirmed in another post. The appellant was thus provided a lien on this supernumerary post of I. G. R. in the State Service. On behalf of the appellant, it was urged that the supernumerary post of I. G. R. is a temporary post, and the fact that the Government has placed his lien on this post does not protect his rights to pension. On behalf of the Government, the reply is that the supernumerary post of I. G. R. is a permanent post and not a temporary post. In R. 9 (22) of the Fundamental Rules of the Madras Government, a permanent post is defined to mean a post carrying a definite rate of pay sanctioned without limit of time, while under R. 9 (30), a temporary post is defined to mean a post carrying a definite rate of pay sanctioned for a limited time. The supernumerary post of I. G. R. created by the Order of the Government, dated 10th February 1967, is not for a limited time. The post has been created for an indefinite period and is to continue in existence as long as the appellant holds that post and is not confirmed in any other permanent post. This supernumerary post of I. G. R. is, thus, clearly covered by the definition of permanent post, so that the appellant now holds lien on a permanent post and, consequently, satisfies the second condition for qualifying for pension laid down in R. 361 of the Madras Pension Code, mentioned above. There is, therefore, no force in the submission that the Orders made by the Government have resulted in any punishment being inflicted on the appellant by prejudicing his rights to pension and gratuity.7. The last point urged by learned counsel was that the post of I. G. R. has been placed in the cadre of the Indian Administrative "Service in the State of Madras only and in no other State and, as a consequence, the appellant lost his appointment to that post due to the unequal treatment meted out by the Government of India. Under R. 4 (1) of the Indian Administrative Service (Cadre) Rules, 1954, framed under the All India Services Act 61 of 1951, the strength and composition of the Cadre of the Indian Administrative Service constituted for a State are to be determined by regulations made by the Central Government in consultation with the State Government concerned. Rule 4 (2) lays down that the Central Government shall, at the interval of every three years, re-examine the strength and composition of each such cadre in consultation with the State Government concerned. It was as a result of re-examination in the year 1963 that the Central Government declared the post of I. G. R. as well as a number of other posts as cadre posts of the Indian Administrative Service in consultation with the Madras Government. When such re-examination takes place, the circumstances and conditions existing in a particular State have to be taken into account. It is not necessary that similar posts in all States in India must all be placed in the same cadre. Depending on the conditions brought to the notice of the Central Government, the Government may consider it desirable that a particular post in one State should be placed on the Cadre of the Indian Administrative Service, whereas, in another State, it may not be considered advisable to do so. On behalf of the appellant, Vol. II of the Hand Book of Rules and Regulations for the All India Services was brought to our notice. The edition corrected up to 1st September 1962 showed the posts in the various States placed on the Cadre of the Indian Administrative Service.These Rules certainly do not show that the post of I. G. R. in any State was in the cadre of the Indian Administrative Service in that year, but a comparison of the various lists shows that there are some posts which, in some of the States, are borne on the Cadre of the Indian Administrative Service, whereas they are not included in that Cadre in other States. Clearly, there can be no uniformity between different States in the matter of determining the strength and the composition of the Cadre of the Indian Administrative Service in all the States. The submission that we should hold the order of the Union Government as void on the ground of discrimination between different States has, therefore, no force and must be rejected.
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We cannot accept the submission that the mere fact that the post of Accommodation Controller, to which the appellant has been transferred, has not been designated as the post of a Head of the Department necessarily involves any reduction in rank. In fact, it is well known that in Government service, there may be senior posts, the holders of which are not declared as Heads of Department while persons holding comparatively Junior posts may be declared as such. The rank in Government service does not depend on the mere circumstance that the Government servant, in the discharge of his duties, is given certainsubmission made on behalf of the appellant that the post of I. G. R. is higher in rank than that of a Deputy Secretary is thus clearly wrong. In fact, the post is lower in rank than that of a Deputy Secretary and is equated with that of an Assistant Secretary. It has not even been suggested anywhere that the post of Accommodation Controller is lower in rank than that of an Assistant Secretary to Government or a Deputy Collector. On the other hand, the information given to us in the course of the arguments showed that, under the Rules, the Accommodation Controller works directly under the control of the Government, while the I. G. R. is subordinate to the Board of Revenue. We, consequently, find no force at all in the plea that the posting of the appellant as Accommodation Controller, when he was holding the post of I. G. R. amounted to reduction inpost has been created for an indefinite period and is to continue in existence as long as the appellant holds that post and is not confirmed in any other permanent post. This supernumerary post of I. G. R. is, thus, clearly covered by the definition of permanent post, so that the appellant now holds lien on a permanent post and, consequently, satisfies the second condition for qualifying for pension laid down in R. 361 of the Madras Pension Code, mentioned above. There is, therefore, no force in the submission that the Orders made by the Government have resulted in any punishment being inflicted on the appellant by prejudicing his rights to pension andR. 4 (1) of the Indian Administrative Service (Cadre) Rules, 1954, framed under the All India Services Act 61 of 1951, the strength and composition of the Cadre of the Indian Administrative Service constituted for a State are to be determined by regulations made by the Central Government in consultation with the State Government concerned. Rule 4 (2) lays down that the Central Government shall, at the interval of every three years, re-examine the strength and composition of each such cadre in consultation with the State Government concerned. It was as a result of re-examination in the year 1963 that the Central Government declared the post of I. G. R. as well as a number of other posts as cadre posts of the Indian Administrative Service in consultation with the Madras Government. When such re-examination takes place, the circumstances and conditions existing in a particular State have to be taken into account. It is not necessary that similar posts in all States in India must all be placed in the same cadre. Depending on the conditions brought to the notice of the Central Government, the Government may consider it desirable that a particular post in one State should be placed on the Cadre of the Indian Administrative Service, whereas, in another State, it may not be considered advisable to do so. On behalf of the appellant, Vol. II of the Hand Book of Rules and Regulations for the All India Services was brought to our notice. The edition corrected up to 1st September 1962 showed the posts in the various States placed on the Cadre of the Indian Administrative Service.These Rules certainly do not show that the post of I. G. R. in any State was in the cadre of the Indian Administrative Service in that year, but a comparison of the various lists shows that there are some posts which, in some of the States, are borne on the Cadre of the Indian Administrative Service, whereas they are not included in that Cadre in other States. Clearly, there can be no uniformity between different States in the matter of determining the strength and the composition of the Cadre of the Indian Administrative Service in all the States. The submission that we should hold the order of the Union Government as void on the ground of discrimination between different States has, therefore, no force and must be rejected.
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State of Orissa Vs. Babu Lal Chappolia | be taken ? Instead of a revised return it could have taken a written statement containing the new ground. Therefore, we do not consider it necessary to deal with the point whether it is competent for the appellate authority to accept a revised return or not.6. Regarding the second point it is necessary to notice the relevant statutory provisions. Section 23(2) of the Act provides :"Subject to such rules as may be made or procedure as may be prescribed, the appellate authority, in disposing of any appeal under sub-section (1), may -(a) confirm, reduce, enhance or annul the assessment or penalty, if any, or both, or(b) set aside the assessment or penalty, if any, or both and direct the assessing authority to pass a fresh order after such further enquiry as may be directed."Rule 50(2) provides :"The appellate authority may, before disposing of any appeal make such further enquiry as it thinks fit or cause further enquiry to be made by the Assistant Sales Tax Officer or the Sales Tax Officer, as the case may be."Rule 51 provides :"Notice to person likely to be adversely affected. - Before an order is passed on appeal, if such order is likely to affect any person other than the appellant adversely, such other person shall be given a reasonable opportunity of being heard."7. There is no express provision for making the Sales Tax Officer a party to the appeal or requiring the appellate authorty to issue a notice to the Sales Tax Officer. There is no such provision as exists in section 31(1) of the Indian Income-tax Act, 1922, requiring that "at the hearing of an appeal against an order of the Income-tax Officer, the Income-tax Officer shall have a right to be heard either in person or by a representative." In view of the absence of such a provision it seems to us that the appellate authority is virtually in the same position as the Sales Tax Officer and the Act and the Rules do not contemplate that a notice should be issued to the Sales Tax Officer. Before the Tribunal, which is the second appellate authority, there are two parties and rules 58 requires that a notice should be issued to the opposite party. We are, therefore, of the opinion that there is no substance in point No. 2 raised by Mr. Sastri.8. Regarding the third point we are of the opinion that it is not open to Mr. Sastri to raise this point before us. This point was not raised before the High Court and at any rate we do not see how this point is germane to the questions referred to the High Court. As we have mentioned above, the appeal was heard ex parte and it appears that the Sales Tax Tribunal allowed the appeal on the ground that the Assistant Commissioner had no authority under the law to allow a question to be raised which would conflict with the return filed by the dealer-respondent. This is how the Tribunal dealt with the question :"Coming to the question involved in the second appeals filed by the State as against the assessments for the quarters ending on 30th June, 1954, to 31st December, 1954, I have no doubt that the first appellate authority was wrong in allowing an entirely new question to be raised for the first time before him. No doubt he was as much an enquiring officer as the assessing officer. It is also permissible to him to allow a new question to be raised for the first time before him. But certainly it was not permissible for him to raise a question which would conflict with the return filed by the dealer-respondent. The return clearly shows his turnover from sales of cloth. The only claim made in these quarters was that the sales were exempted from taxation under the old rule 64 as he did not effect the sale at the first point. Before the first appellate authority the point taken up by the respondent was that he effected no sales and the sales effected were of his principal. Thus the new plea challenges the very basis of the return filed by the dealer-respondent and could not and should not have been allowed by the first appellate authority. Hence I allow the appeals filed by the State, set aside the order of the first appellate authority and restore the order passed by the assessing officer for these quarters."9. It is clear from this passage that the Sales Tax Tribunal did not go into the merits of the case at all, i.e., whether it is established that the assessee was an agent or not and if an agent, was assessable or not as a dealer.10. The next point raised is again not germane to the questions referred to the High Court. It is for the Tribunal to act in accordance with section 24(5) of the Act and to dispose of the case according to the judgment of the High Court or of this Court. Neither the High Court nor this Court can give directions to the Tribunal, while dealing with a reference, regarding the manner of disposal of a case after the receipt of the judgment on the reference.In the end Mr. Sastri contends that the answer to question No. 2 should be modified because as it stands now it may indicate to the Tribunal that the order was completely void. We think there is some reason for the apprehension of the learned counsel and we will make it clear that what the High Court and what we are saying is that the Tribunal was in error in reversing the order of the Assistant Commissioner on the ground that the Assistant Commissioner had no authority to permit an entirely new question to be raised for the first time before him, or as the Tribunal put it "that it was not permissible for him to raise a question which would conflict with the return filed by the dealer-respondent." | 1[ds]5. The first point does not seem to have been raised before the High Court. Further the questions referred do not raise the problem whether a revised return can be filed or not. The only point raised with respect to a revised return is whether it can be taken into consideration. If the appellate authority has the power to allow a new ground to be taken, does it matter in what manner it allows it to be taken ? Instead of a revised return it could have taken a written statement containing the new ground. Therefore, we do not consider it necessary to deal with the point whether it is competent for the appellate authority to accept a revised return or not.There is no express provision for making the Sales Tax Officer a party to the appeal or requiring the appellate authorty to issue a notice to the Sales Tax Officer. There is no such provision as exists in section 31(1) of the IndianAct, 1922, requiring that "at the hearing of an appeal against an order of thetax Officer shall have a right to be heard either in person or by a representative." In view of the absence of such a provision it seems to us that the appellate authority is virtually in the same position as the Sales Tax Officer and the Act and the Rules do not contemplate that a notice should be issued to the Sales Tax Officer. Before the Tribunal, which is the second appellate authority, there are two parties and rules 58 requires that a notice should be issued to the opposite party. We are, therefore, of the opinion that there is no substance in point No. 2 raised by Mr. Sastri.8. Regarding the third point we are of the opinion that it is not open to Mr. Sastri to raise this point before us. This point was not raised before the High Court and at any rate we do not see how this point is germane to the questions referred to the High Court.It is clear from this passage that the Sales Tax Tribunal did not go into the merits of the case at all, i.e., whether it is established that the assessee was an agent or not and if an agent, was assessable or not as a dealer.10. The next point raised is again not germane to the questions referred to the High Court. It is for the Tribunal to act in accordance with section 24(5) of the Act and to dispose of the case according to the judgment of the High Court or of this Court. Neither the High Court nor this Court can give directions to the Tribunal, while dealing with a reference, regarding the manner of disposal of a case after the receipt of the judgment on the reference.In the end Mr. Sastri contends that the answer to question No. 2 should be modified because as it stands now it may indicate to the Tribunal that the order was completely void. We think there is some reason for the apprehension of the learned counsel and we will make it clear that what the High Court and what we are saying is that the Tribunal was in error in reversing the order of the Assistant Commissioner on the ground that the Assistant Commissioner had no authority to permit an entirely new question to be raised for the first time before him, or as the Tribunal put it "that it was not permissible for him to raise a question which would conflict with the return filed by the | 1 | 2,451 | 640 | ### 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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be taken ? Instead of a revised return it could have taken a written statement containing the new ground. Therefore, we do not consider it necessary to deal with the point whether it is competent for the appellate authority to accept a revised return or not.6. Regarding the second point it is necessary to notice the relevant statutory provisions. Section 23(2) of the Act provides :"Subject to such rules as may be made or procedure as may be prescribed, the appellate authority, in disposing of any appeal under sub-section (1), may -(a) confirm, reduce, enhance or annul the assessment or penalty, if any, or both, or(b) set aside the assessment or penalty, if any, or both and direct the assessing authority to pass a fresh order after such further enquiry as may be directed."Rule 50(2) provides :"The appellate authority may, before disposing of any appeal make such further enquiry as it thinks fit or cause further enquiry to be made by the Assistant Sales Tax Officer or the Sales Tax Officer, as the case may be."Rule 51 provides :"Notice to person likely to be adversely affected. - Before an order is passed on appeal, if such order is likely to affect any person other than the appellant adversely, such other person shall be given a reasonable opportunity of being heard."7. There is no express provision for making the Sales Tax Officer a party to the appeal or requiring the appellate authorty to issue a notice to the Sales Tax Officer. There is no such provision as exists in section 31(1) of the Indian Income-tax Act, 1922, requiring that "at the hearing of an appeal against an order of the Income-tax Officer, the Income-tax Officer shall have a right to be heard either in person or by a representative." In view of the absence of such a provision it seems to us that the appellate authority is virtually in the same position as the Sales Tax Officer and the Act and the Rules do not contemplate that a notice should be issued to the Sales Tax Officer. Before the Tribunal, which is the second appellate authority, there are two parties and rules 58 requires that a notice should be issued to the opposite party. We are, therefore, of the opinion that there is no substance in point No. 2 raised by Mr. Sastri.8. Regarding the third point we are of the opinion that it is not open to Mr. Sastri to raise this point before us. This point was not raised before the High Court and at any rate we do not see how this point is germane to the questions referred to the High Court. As we have mentioned above, the appeal was heard ex parte and it appears that the Sales Tax Tribunal allowed the appeal on the ground that the Assistant Commissioner had no authority under the law to allow a question to be raised which would conflict with the return filed by the dealer-respondent. This is how the Tribunal dealt with the question :"Coming to the question involved in the second appeals filed by the State as against the assessments for the quarters ending on 30th June, 1954, to 31st December, 1954, I have no doubt that the first appellate authority was wrong in allowing an entirely new question to be raised for the first time before him. No doubt he was as much an enquiring officer as the assessing officer. It is also permissible to him to allow a new question to be raised for the first time before him. But certainly it was not permissible for him to raise a question which would conflict with the return filed by the dealer-respondent. The return clearly shows his turnover from sales of cloth. The only claim made in these quarters was that the sales were exempted from taxation under the old rule 64 as he did not effect the sale at the first point. Before the first appellate authority the point taken up by the respondent was that he effected no sales and the sales effected were of his principal. Thus the new plea challenges the very basis of the return filed by the dealer-respondent and could not and should not have been allowed by the first appellate authority. Hence I allow the appeals filed by the State, set aside the order of the first appellate authority and restore the order passed by the assessing officer for these quarters."9. It is clear from this passage that the Sales Tax Tribunal did not go into the merits of the case at all, i.e., whether it is established that the assessee was an agent or not and if an agent, was assessable or not as a dealer.10. The next point raised is again not germane to the questions referred to the High Court. It is for the Tribunal to act in accordance with section 24(5) of the Act and to dispose of the case according to the judgment of the High Court or of this Court. Neither the High Court nor this Court can give directions to the Tribunal, while dealing with a reference, regarding the manner of disposal of a case after the receipt of the judgment on the reference.In the end Mr. Sastri contends that the answer to question No. 2 should be modified because as it stands now it may indicate to the Tribunal that the order was completely void. We think there is some reason for the apprehension of the learned counsel and we will make it clear that what the High Court and what we are saying is that the Tribunal was in error in reversing the order of the Assistant Commissioner on the ground that the Assistant Commissioner had no authority to permit an entirely new question to be raised for the first time before him, or as the Tribunal put it "that it was not permissible for him to raise a question which would conflict with the return filed by the dealer-respondent."
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5. The first point does not seem to have been raised before the High Court. Further the questions referred do not raise the problem whether a revised return can be filed or not. The only point raised with respect to a revised return is whether it can be taken into consideration. If the appellate authority has the power to allow a new ground to be taken, does it matter in what manner it allows it to be taken ? Instead of a revised return it could have taken a written statement containing the new ground. Therefore, we do not consider it necessary to deal with the point whether it is competent for the appellate authority to accept a revised return or not.There is no express provision for making the Sales Tax Officer a party to the appeal or requiring the appellate authorty to issue a notice to the Sales Tax Officer. There is no such provision as exists in section 31(1) of the IndianAct, 1922, requiring that "at the hearing of an appeal against an order of thetax Officer shall have a right to be heard either in person or by a representative." In view of the absence of such a provision it seems to us that the appellate authority is virtually in the same position as the Sales Tax Officer and the Act and the Rules do not contemplate that a notice should be issued to the Sales Tax Officer. Before the Tribunal, which is the second appellate authority, there are two parties and rules 58 requires that a notice should be issued to the opposite party. We are, therefore, of the opinion that there is no substance in point No. 2 raised by Mr. Sastri.8. Regarding the third point we are of the opinion that it is not open to Mr. Sastri to raise this point before us. This point was not raised before the High Court and at any rate we do not see how this point is germane to the questions referred to the High Court.It is clear from this passage that the Sales Tax Tribunal did not go into the merits of the case at all, i.e., whether it is established that the assessee was an agent or not and if an agent, was assessable or not as a dealer.10. The next point raised is again not germane to the questions referred to the High Court. It is for the Tribunal to act in accordance with section 24(5) of the Act and to dispose of the case according to the judgment of the High Court or of this Court. Neither the High Court nor this Court can give directions to the Tribunal, while dealing with a reference, regarding the manner of disposal of a case after the receipt of the judgment on the reference.In the end Mr. Sastri contends that the answer to question No. 2 should be modified because as it stands now it may indicate to the Tribunal that the order was completely void. We think there is some reason for the apprehension of the learned counsel and we will make it clear that what the High Court and what we are saying is that the Tribunal was in error in reversing the order of the Assistant Commissioner on the ground that the Assistant Commissioner had no authority to permit an entirely new question to be raised for the first time before him, or as the Tribunal put it "that it was not permissible for him to raise a question which would conflict with the return filed by the
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JOGI RAM Vs. SURESH KUMAR & ORS | property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub- s. (2) and would be governed by s. 14(1) despite any restrictions placed on the powers of the transferee. (5) The use of express terms like property acquired by a female Hindu at a partition, or in lieu of maintenance or arrears of maintenance etc. in the Explanation to s. 14(1) clearly makes sub-s. (2) inapplicable to these categories which have been expressly excepted from the operation of sub-s. (2). (6) The words possessed by used by the Legislature in s. 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same: Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of s. 14(1) she would get absolute interest. in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title. (7) That the words restricted estate used in s. 4(2) are wider than limited interest as indicated in s.14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee. 30. In our view the relevant aspect of the aforesaid conclusion is para 4 which opines where sub-section (2) of Section 14 of the said Act would apply and this does inter alia applies to a Will which may create independent and new title in favour of females for the first time and is not a recognition of a pre-existing right. In such cases of a restricted estate in favour of a female is legally permissible and Section 14(1) of the said Act will not operate in that sphere. 31. We may add here that the objective of Section 14(1) is to create an absolute interest in case of a limited interest of the wife where such limited estate owes its origin to law as it stood then. The objective cannot be that a Hindu male who owned self-acquired property is unable to execute a Will giving a limited estate to a wife if all other aspects including maintenance are taken care of. If we were to hold so it would imply that if the wife is disinherited under the Will it would be sustainable but if a limited estate is given it would mature into an absolute interest irrespective of the intent of the testator. That cannot be the objective, in our view. 32. The testator in the present case, Tulsi Ram, had taken all care for the needs of maintenance of his wife by ensuring that the revenue generated from the estate would go to her alone. He, however, wished to give only a limited lift interest to her as the second wife with the son inheriting the complete estate after her lifetime. We are, thus, of the view that it would be the provisions of Section 14(2) of the said Act which would come into play in such a scenario and Ram Devi only had a life interest in her favour. The natural sequittur is that the respondents cannot inherit a better title than what the vendor had and, thus, the view taken by the trial court and the first appellate court is the correct view and the sale deeds in favour of the respondents cannot be sustained. 33. On consideration of the second aspect, we must begin by stating that the sequence of litigations can hardly be said to classify the respondents as bona fide purchasers. The first endeavour was by the daughter of Ram Devi by seeking what is undoubtedly a collusive decree when she had no interest in the property. She then sought to create lease interest in the property. Both these aspects were held against Ram Devi and her daughter right till the Supreme Court in the first round of litigation clearly opining that Ram Devi had only a limited estate in the property. Despite having lost right till the Supreme Court, the sale deeds were intervening factors even during the pendency of the litigation which went against the vendor Ram Devi. 34. We may also notice that the reliance on Shakuntla Devi (supra) case by the High Court is misplaced as the factual scenario cannot be said to be identical. In fact the most crucial aspect was that the Will in question was dated 1.10.1935, a pre-1956 Will which is the distinguishing factor. The same factual scenario prevailed in Jupudy Pardha Sarathy (supra) case. We must also notice that the High Court wrongly proceeded on the basis that the first round of litigation would not create any binding precedents because there was change in law after the first round of litigation. There is, in fact, no change in law as all the judgments were much prior in time. We have already stated that the rights of the respondents are derived only from Ram Devi and once the judgment is binding on Ram Devi it cannot be said that she can create rights contrary to the judgment in favour of third parties and that too was done during the pendency of the litigation. We believe from the facts on record that the transactions in question are not only not bona fide but dubious in character to somehow deny the appellant rights conferred under the Will respondents being third parties. The repeated endeavour of Ram Devi and her daughter did not succeed earlier and cannot be permitted to succeed qua the purchasers from Ram Devi. Conclusion: | 1[ds]17. There is no doubt that Section 14 of the said Act is the part of the said Act to give rights of a property to a Hindu female and was a progressive step. Sub-Section (1) of Section 14 of the said Act makes it clear that it applies to properties acquired before or after the commencement of the said Act. Any property so possessed was to be held by her as full owner thereof and not as a limited owner. The Explanation to sub-Section (1) of Section 14 of the said Act defines the meaning of property in this sub-section to include both movable and immovable property acquired by the female Hindu by inheritance or devise or a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, or by her skill or exertion, or by purchase or by prescription or in any other manner whatsoever, including stridhana. The Explanation is quite expansive.18. Sub-Section (2) of Section 14 of the said Act is in the nature of a proviso. It begins with a non-obstante clause. Thus, it says that nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court.... etc. where a restricted estate in such property is prescribed. In our view the objective of sub-Section (2) above is quite clear as enunciated repeatedly by this Court in various judicial pronouncements, i.e., there cannot be a fetter in a owner of a property to give a limited estate if he so chooses to do including to his wife but of course if the limited estate is to the wife for her maintenance that would mature in an absolute estate under Section 14(1) of the said Act.The Will while conferring a limited estate on Ram Devi, Tulsi Ram had clearly stated that she will earn income from the property for her livelihood. The income, thus, generated from the property is what has been given for maintenance and not the property itself. The next clarification is that after the lifetime of Ram Devi, the appellant will get the ownership of the remaining half portion also. It is specified that in case Ram Devi pre-deceases Tulsi Ram, then all the properties would go absolutely to the appellant and that the other children will have no interest in the property. We may note that Tulsi Ram had six children. One son and four daughters are from the first wife and Bimla Devi was the daughter from the second wife. At the stage when the Will was executed one of the daughters was unmarried and the Will also provided that in case for performing the marriage Ram Devi needs money she will have the right to mortgage the property and earn money from the same and will further have the right to gain income even prior to the marriage.20. We have set forth the terms and conditions of the Will to understand the intent of the testator. The testator is, at least, clear in terms that the income derived from the property is what is given to the second wife as maintenance while insofar as the properties are concerned, they are divided half and half with the appellant having an absolute share and the wife having a limited estate which after her lifetime was to convert into an absolute estate of the appellant.The distinction which was sought to be made was that Shakuntla Devi (supra) case was wrongly relied upon as the Will in that case was dated 1.10.1935 and it was, thus, a pre-1956 Will and, thus, that judgment was not precedent for factual scenario in question. The suit property was a self-acquired property of Tulsi Ram and, thus, he was competent to execute the Will.23. We may note that learned counsel for the appellant did seek to contend that since possession of the property was taken over by the appellant and Ram Devi was not in possession thereof, she cannot claim the benefit of Section 14(1) of the said Act (Sadhu Singh v. Gurudwara Sahib Narike & Ors. (2006) 8 SCC 75 and Gaddam Ramakrishna Reddy & Ors. v. Gaddam Ramireddy & Ors. (2010) 9 SCC 602) . We may, however, note that in our perspective that is not a material consideration as the possession is stated to have been taken over in pursuance of the decree of the trial court.25. We have extracted the relevant portions of the enactment, the document in question being the Will and have already opined on the interpretation of the Will. The submissions of the learned counsel for the parties have, thus, to be appreciated in the conspectus of the same.27. We are of the view that both these questions have to be answered in favour of the appellant and for that reason the impugned judgment is unsustainable.28. We would first like to turn to the seminal judgment in V. Tulasamma & Ors. (supra) case. In para 20 the propositions emerging in respect of incidents and characteristics of a Hindu womans right to maintenance have been crystallised as under:20. Thus on a careful consideration and detailed analysis of the authorities mentioned above and the Shastric Hindu Law on the subject, the following propositions emerge with respect to the incidents and characteristics of a Hindu womans right to maintenance:(1) that a Hindu womans right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her even if he has no property. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow;(2) though the widows right to maintenance is not a right to property but it is undoubtedly pre-existing right in property, i.e. it is a jus ad rem not jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a decree from the civil court;(3) that the right of maintenance is a matter of moment and is of such importance that even if the joint property is sold and the purchaser has notice of the widows right to maintenance, the purchaser is legally bound to provide for her maintenance;(4) that the right to maintenance is undoubtedly a pre- existing right which existed in the Hindu Law long before the passing of the Act of 1937 or the Act of 1946, and is, therefore, a pre-existing right;(5) that the right to maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which the wife becomes a sort (I.L.R. 27 Mad. 45 . (2) I.L.R. 18 Bom. 452) of co-owner in the property of her husband, though her co-ownership is of a subordinate nature; and(6) that where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchases the same is in a position to make due arrangements for her maintenance.29. In the light of the aforesaid passage, Sections 14(1) & 14(2) of the said Act were entered by the Court. The word possessed was held to be used in a wide sense not requiring a Hindu woman to be an actual or physical possession of the property and it would suffice if she has a right in the property. The discussion in para 33 thereafter opines that the intention of the Parliament was to confine sub-section (2) of Section 14 of the said Act only to two transactions, viz., a gift and a will, which clearly would not include property received by a Hindu female in lieu of maintenance or at a partition. The intention of the Parliament in adding the other categories to sub-section (2) was merely to ensure that any transaction under which a Hindu female gets a new or independent title under any of the modes mentioned in Section 14(2) of the said Act. The conclusions were thereafter set forth in para 62 of the judgment as under:62. We would now like to summarise the legal conclusions which we have reached after an exhaustive considerations of the authorities mentioned above; on the question of law involved in this appeal as to the interpretation of s. 14(1) and (2) of the Act of 1956. These conclusions may be stated thus:(1) The Hindu females right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights.(2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms. And must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends, sought to be achieved by this long needed legislation.(3) Sub-section (2) of s. 14 is in the nature of a proviso and has a field of its own without interfering with the operation of s. 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by s. 14(1) or in a way so as to become totally inconsistent with the main provision.(4) Sub-section (2) of s. 14 applies to instruments, decrees, awards, gifts etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-existing rights. In such cases a restricted estate in favour of a female is legally permissible and s. 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the females limited interest would automatically be enlarged into an absolute one by force of s. 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub- s. (2) and would be governed by s. 14(1) despite any restrictions placed on the powers of the transferee.(5) The use of express terms like property acquired by a female Hindu at a partition, or in lieu of maintenance or arrears of maintenance etc. in the Explanation to s. 14(1) clearly makes sub-s. (2) inapplicable to these categories which have been expressly excepted from the operation of sub-s. (2).(6) The words possessed by used by the Legislature in s. 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same: Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of s. 14(1) she would get absolute interest. in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title.(7) That the words restricted estate used in s. 4(2) are wider than limited interest as indicated in s.14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee.30. In our view the relevant aspect of the aforesaid conclusion is para 4 which opines where sub-section (2) of Section 14 of the said Act would apply and this does inter alia applies to a Will which may create independent and new title in favour of females for the first time and is not a recognition of a pre-existing right. In such cases of a restricted estate in favour of a female is legally permissible and Section 14(1) of the said Act will not operate in that sphere.31. We may add here that the objective of Section 14(1) is to create an absolute interest in case of a limited interest of the wife where such limited estate owes its origin to law as it stood then. The objective cannot be that a Hindu male who owned self-acquired property is unable to execute a Will giving a limited estate to a wife if all other aspects including maintenance are taken care of. If we were to hold so it would imply that if the wife is disinherited under the Will it would be sustainable but if a limited estate is given it would mature into an absolute interest irrespective of the intent of the testator. That cannot be the objective, in our view.32. The testator in the present case, Tulsi Ram, had taken all care for the needs of maintenance of his wife by ensuring that the revenue generated from the estate would go to her alone. He, however, wished to give only a limited lift interest to her as the second wife with the son inheriting the complete estate after her lifetime. We are, thus, of the view that it would be the provisions of Section 14(2) of the said Act which would come into play in such a scenario and Ram Devi only had a life interest in her favour. The natural sequittur is that the respondents cannot inherit a better title than what the vendor had and, thus, the view taken by the trial court and the first appellate court is the correct view and the sale deeds in favour of the respondents cannot be sustained.33. On consideration of the second aspect, we must begin by stating that the sequence of litigations can hardly be said to classify the respondents as bona fide purchasers. The first endeavour was by the daughter of Ram Devi by seeking what is undoubtedly a collusive decree when she had no interest in the property. She then sought to create lease interest in the property. Both these aspects were held against Ram Devi and her daughter right till the Supreme Court in the first round of litigation clearly opining that Ram Devi had only a limited estate in the property. Despite having lost right till the Supreme Court, the sale deeds were intervening factors even during the pendency of the litigation which went against the vendor Ram Devi.34. We may also notice that the reliance on Shakuntla Devi (supra) case by the High Court is misplaced as the factual scenario cannot be said to be identical. In fact the most crucial aspect was that the Will in question was dated 1.10.1935, a pre-1956 Will which is the distinguishing factor. The same factual scenario prevailed in Jupudy Pardha Sarathy (supra) case. We must also notice that the High Court wrongly proceeded on the basis that the first round of litigation would not create any binding precedents because there was change in law after the first round of litigation. There is, in fact, no change in law as all the judgments were much prior in time. We have already stated that the rights of the respondents are derived only from Ram Devi and once the judgment is binding on Ram Devi it cannot be said that she can create rights contrary to the judgment in favour of third parties and that too was done during the pendency of the litigation. We believe from the facts on record that the transactions in question are not only not bona fide but dubious in character to somehow deny the appellant rights conferred under the Will respondents being third parties. The repeated endeavour of Ram Devi and her daughter did not succeed earlier and cannot be permitted to succeed qua the purchasers from Ram Devi. | 1 | 6,071 | 3,192 | ### Instruction:
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property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub- s. (2) and would be governed by s. 14(1) despite any restrictions placed on the powers of the transferee. (5) The use of express terms like property acquired by a female Hindu at a partition, or in lieu of maintenance or arrears of maintenance etc. in the Explanation to s. 14(1) clearly makes sub-s. (2) inapplicable to these categories which have been expressly excepted from the operation of sub-s. (2). (6) The words possessed by used by the Legislature in s. 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same: Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of s. 14(1) she would get absolute interest. in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title. (7) That the words restricted estate used in s. 4(2) are wider than limited interest as indicated in s.14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee. 30. In our view the relevant aspect of the aforesaid conclusion is para 4 which opines where sub-section (2) of Section 14 of the said Act would apply and this does inter alia applies to a Will which may create independent and new title in favour of females for the first time and is not a recognition of a pre-existing right. In such cases of a restricted estate in favour of a female is legally permissible and Section 14(1) of the said Act will not operate in that sphere. 31. We may add here that the objective of Section 14(1) is to create an absolute interest in case of a limited interest of the wife where such limited estate owes its origin to law as it stood then. The objective cannot be that a Hindu male who owned self-acquired property is unable to execute a Will giving a limited estate to a wife if all other aspects including maintenance are taken care of. If we were to hold so it would imply that if the wife is disinherited under the Will it would be sustainable but if a limited estate is given it would mature into an absolute interest irrespective of the intent of the testator. That cannot be the objective, in our view. 32. The testator in the present case, Tulsi Ram, had taken all care for the needs of maintenance of his wife by ensuring that the revenue generated from the estate would go to her alone. He, however, wished to give only a limited lift interest to her as the second wife with the son inheriting the complete estate after her lifetime. We are, thus, of the view that it would be the provisions of Section 14(2) of the said Act which would come into play in such a scenario and Ram Devi only had a life interest in her favour. The natural sequittur is that the respondents cannot inherit a better title than what the vendor had and, thus, the view taken by the trial court and the first appellate court is the correct view and the sale deeds in favour of the respondents cannot be sustained. 33. On consideration of the second aspect, we must begin by stating that the sequence of litigations can hardly be said to classify the respondents as bona fide purchasers. The first endeavour was by the daughter of Ram Devi by seeking what is undoubtedly a collusive decree when she had no interest in the property. She then sought to create lease interest in the property. Both these aspects were held against Ram Devi and her daughter right till the Supreme Court in the first round of litigation clearly opining that Ram Devi had only a limited estate in the property. Despite having lost right till the Supreme Court, the sale deeds were intervening factors even during the pendency of the litigation which went against the vendor Ram Devi. 34. We may also notice that the reliance on Shakuntla Devi (supra) case by the High Court is misplaced as the factual scenario cannot be said to be identical. In fact the most crucial aspect was that the Will in question was dated 1.10.1935, a pre-1956 Will which is the distinguishing factor. The same factual scenario prevailed in Jupudy Pardha Sarathy (supra) case. We must also notice that the High Court wrongly proceeded on the basis that the first round of litigation would not create any binding precedents because there was change in law after the first round of litigation. There is, in fact, no change in law as all the judgments were much prior in time. We have already stated that the rights of the respondents are derived only from Ram Devi and once the judgment is binding on Ram Devi it cannot be said that she can create rights contrary to the judgment in favour of third parties and that too was done during the pendency of the litigation. We believe from the facts on record that the transactions in question are not only not bona fide but dubious in character to somehow deny the appellant rights conferred under the Will respondents being third parties. The repeated endeavour of Ram Devi and her daughter did not succeed earlier and cannot be permitted to succeed qua the purchasers from Ram Devi. Conclusion:
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document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub- s. (2) and would be governed by s. 14(1) despite any restrictions placed on the powers of the transferee.(5) The use of express terms like property acquired by a female Hindu at a partition, or in lieu of maintenance or arrears of maintenance etc. in the Explanation to s. 14(1) clearly makes sub-s. (2) inapplicable to these categories which have been expressly excepted from the operation of sub-s. (2).(6) The words possessed by used by the Legislature in s. 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same: Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of s. 14(1) she would get absolute interest. in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title.(7) That the words restricted estate used in s. 4(2) are wider than limited interest as indicated in s.14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee.30. In our view the relevant aspect of the aforesaid conclusion is para 4 which opines where sub-section (2) of Section 14 of the said Act would apply and this does inter alia applies to a Will which may create independent and new title in favour of females for the first time and is not a recognition of a pre-existing right. In such cases of a restricted estate in favour of a female is legally permissible and Section 14(1) of the said Act will not operate in that sphere.31. We may add here that the objective of Section 14(1) is to create an absolute interest in case of a limited interest of the wife where such limited estate owes its origin to law as it stood then. The objective cannot be that a Hindu male who owned self-acquired property is unable to execute a Will giving a limited estate to a wife if all other aspects including maintenance are taken care of. If we were to hold so it would imply that if the wife is disinherited under the Will it would be sustainable but if a limited estate is given it would mature into an absolute interest irrespective of the intent of the testator. That cannot be the objective, in our view.32. The testator in the present case, Tulsi Ram, had taken all care for the needs of maintenance of his wife by ensuring that the revenue generated from the estate would go to her alone. He, however, wished to give only a limited lift interest to her as the second wife with the son inheriting the complete estate after her lifetime. We are, thus, of the view that it would be the provisions of Section 14(2) of the said Act which would come into play in such a scenario and Ram Devi only had a life interest in her favour. The natural sequittur is that the respondents cannot inherit a better title than what the vendor had and, thus, the view taken by the trial court and the first appellate court is the correct view and the sale deeds in favour of the respondents cannot be sustained.33. On consideration of the second aspect, we must begin by stating that the sequence of litigations can hardly be said to classify the respondents as bona fide purchasers. The first endeavour was by the daughter of Ram Devi by seeking what is undoubtedly a collusive decree when she had no interest in the property. She then sought to create lease interest in the property. Both these aspects were held against Ram Devi and her daughter right till the Supreme Court in the first round of litigation clearly opining that Ram Devi had only a limited estate in the property. Despite having lost right till the Supreme Court, the sale deeds were intervening factors even during the pendency of the litigation which went against the vendor Ram Devi.34. We may also notice that the reliance on Shakuntla Devi (supra) case by the High Court is misplaced as the factual scenario cannot be said to be identical. In fact the most crucial aspect was that the Will in question was dated 1.10.1935, a pre-1956 Will which is the distinguishing factor. The same factual scenario prevailed in Jupudy Pardha Sarathy (supra) case. We must also notice that the High Court wrongly proceeded on the basis that the first round of litigation would not create any binding precedents because there was change in law after the first round of litigation. There is, in fact, no change in law as all the judgments were much prior in time. We have already stated that the rights of the respondents are derived only from Ram Devi and once the judgment is binding on Ram Devi it cannot be said that she can create rights contrary to the judgment in favour of third parties and that too was done during the pendency of the litigation. We believe from the facts on record that the transactions in question are not only not bona fide but dubious in character to somehow deny the appellant rights conferred under the Will respondents being third parties. The repeated endeavour of Ram Devi and her daughter did not succeed earlier and cannot be permitted to succeed qua the purchasers from Ram Devi.
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Himachal Pradesh State Forest Corpn Vs. Regional Provident Fund Commissioner | Harjit Singh Bedi, J. 1. These appeals are directed against the judgment and order of the High Court of Himachal Pradesh at Shimla whereby the order of the Presiding Officer of the Employees Provident Fund Appellate Tribunal dated 15th December 1999 has been upheld and the direction issued thereunder to remand the case for the re-determination of the contribution with respect to the liability of the appellant Corporation has been maintained. The facts are as under:2. The Appellant Corporation (hereinafter called the "Corporation") which is a company registered under the Companies Act, came into existence on 1st April, 1974. Proceedings for the deposit of the provident fund under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter called the "Act") were initiated by the issuance of a notice dated 12th December 1988 under section 7-A of the Act for determination of the amounts due from the Corporation. This notice pertained to the period 1982-88. The Corporation, through its Regional Manager, contended, inter-alia, that the provisions of the Act were not applicable to it inasmuch as it was not an industrial establishment in terms of section 2(e) of the Industrial Employment (Standing Order) Act, 1964 nor under section 25(k) of the Industrial Disputes Act, 1947. The Regional Provident Fund Commissioner however in his order dated 14th July 1999 took the view that the Corporation was covered under Section 1(4) of the Act as it had voluntarily submitted to its coverage and had been allotted a provident fund code number as well. The Commissioner then went into the question as to whether the persons employed by the contractor could be said to be the employees of the Corporation and hence entitled to the benefits of the Act and after examining the matter threadbare concluded that the said employees were in fact employees of the Corporation and therefore subject to the provisions of the Act and also drew up an assessment of the amounts due from the Corporation. An appeal was thereafter preferred before the Presiding Officer, Employees Provident Fund Appellate Tribunal wherein similar contentions were raised by the Corporation. The Tribunal in its order of 15th December 1999 held that the Corporation was indeed covered by the provisions of the Act but on the facts of the case opined that as the matter was stale and pertained to the year 1982, it would be appropriate that the matter be remitted to the Commissioner for re-determination of the amount due and for this purpose issued the following guidelines:"In view of the above discussions, the appeal is fit to be partly allowed and the case to be remanded back for re-determination of the dues with reference to the identifiable employees only. The appellant cannot be pressed to produce such records which under any Statute they are not made liable to maintain or which they are authorized to destroy because of expiry date. The appellants are directed to produce all the records in their possession for the disputed period and explain satisfactorily for those which they cannot produce. Contractors may be summoned if the appellant make a prayer for that and give full details. However, it is the appellants liability to maintain the records and produce them as held by the Honble Supreme Court. Both the appeals are partly allowed. Coverage of the appellant in respect of contractors employees is held valid. The determination portion of the impugned order is set aside. The case is remanded back for re-determination after giving reasonable opportunity to the appellants to prove their case." 3. The Corporation then filed a Writ Petition in the High Court impugning the order of the Commissioner the Appellate Tribunal but vide order dated 29th November 2000, the High Court upheld the order of the Tribunal and dismissed the Writ Petition. It is in these circumstances that the matter is before us. 4. Mr. M.N. Rao, the learned senior counsel for the appellant has at the outset very fairly pointed out that as of today and in the light of the fact that the Corporation itself had voluntarily submitted that it was covered by the provisions of the Act the question of a dispute with regard to the liability of the Corporation was now largely academic, but has pleaded that as the employees in question were seasonal employees and the matter pertained to a long gone period i.e. 1982-98, the record pertaining to the employees was not available either with the Corporation or with the Contractors and that in many a case those who stood to benefit were not even traceable, it would be appropriate that the impugned orders be quashed as they would not serve any useful purpose. It has also been pleaded that although there was no limit prescribed under the Act within which proceedings under section 7-A could be initiated, but under the broad principle that a reasonable period ought to be read into the Statute, the present delay of 16 years from 1982 could not be justified. The learned counsel for the respondents has, however, argued that the Tribunal and the High Court had granted a limited relief to the employees inasmuch that the examination of the claim was to be limited only to those employees who could be identified and that as the authorities below had exercised their authority with respect to a beneficent legislation for the weaker sections, it would be inappropriate to interfere with the impugned orders. 5. We have heard the learned counsel for the parties and gone through the record. We do appreciate that the inaction on the part of the Commissioner to initiate proceedings within a reasonable time, has to be deplored. However, as the Corporation has itself submitted that it was covered under the Act and in view of the limited relief granted by the authorities below and by the High Court, we are disinclined to interfere with the matter at this stage. | 0[ds]5. We have heard the learned counsel for the parties and gone through the record. We do appreciate that the inaction on the part of the Commissioner to initiate proceedings within a reasonable time, has to be deplored. However, as the Corporation has itself submitted that it was covered under the Act and in view of the limited relief granted by the authorities below and by the High Court, we are disinclined to interfere with the matter at this stage. | 0 | 1,069 | 91 | ### 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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Harjit Singh Bedi, J. 1. These appeals are directed against the judgment and order of the High Court of Himachal Pradesh at Shimla whereby the order of the Presiding Officer of the Employees Provident Fund Appellate Tribunal dated 15th December 1999 has been upheld and the direction issued thereunder to remand the case for the re-determination of the contribution with respect to the liability of the appellant Corporation has been maintained. The facts are as under:2. The Appellant Corporation (hereinafter called the "Corporation") which is a company registered under the Companies Act, came into existence on 1st April, 1974. Proceedings for the deposit of the provident fund under the provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (hereinafter called the "Act") were initiated by the issuance of a notice dated 12th December 1988 under section 7-A of the Act for determination of the amounts due from the Corporation. This notice pertained to the period 1982-88. The Corporation, through its Regional Manager, contended, inter-alia, that the provisions of the Act were not applicable to it inasmuch as it was not an industrial establishment in terms of section 2(e) of the Industrial Employment (Standing Order) Act, 1964 nor under section 25(k) of the Industrial Disputes Act, 1947. The Regional Provident Fund Commissioner however in his order dated 14th July 1999 took the view that the Corporation was covered under Section 1(4) of the Act as it had voluntarily submitted to its coverage and had been allotted a provident fund code number as well. The Commissioner then went into the question as to whether the persons employed by the contractor could be said to be the employees of the Corporation and hence entitled to the benefits of the Act and after examining the matter threadbare concluded that the said employees were in fact employees of the Corporation and therefore subject to the provisions of the Act and also drew up an assessment of the amounts due from the Corporation. An appeal was thereafter preferred before the Presiding Officer, Employees Provident Fund Appellate Tribunal wherein similar contentions were raised by the Corporation. The Tribunal in its order of 15th December 1999 held that the Corporation was indeed covered by the provisions of the Act but on the facts of the case opined that as the matter was stale and pertained to the year 1982, it would be appropriate that the matter be remitted to the Commissioner for re-determination of the amount due and for this purpose issued the following guidelines:"In view of the above discussions, the appeal is fit to be partly allowed and the case to be remanded back for re-determination of the dues with reference to the identifiable employees only. The appellant cannot be pressed to produce such records which under any Statute they are not made liable to maintain or which they are authorized to destroy because of expiry date. The appellants are directed to produce all the records in their possession for the disputed period and explain satisfactorily for those which they cannot produce. Contractors may be summoned if the appellant make a prayer for that and give full details. However, it is the appellants liability to maintain the records and produce them as held by the Honble Supreme Court. Both the appeals are partly allowed. Coverage of the appellant in respect of contractors employees is held valid. The determination portion of the impugned order is set aside. The case is remanded back for re-determination after giving reasonable opportunity to the appellants to prove their case." 3. The Corporation then filed a Writ Petition in the High Court impugning the order of the Commissioner the Appellate Tribunal but vide order dated 29th November 2000, the High Court upheld the order of the Tribunal and dismissed the Writ Petition. It is in these circumstances that the matter is before us. 4. Mr. M.N. Rao, the learned senior counsel for the appellant has at the outset very fairly pointed out that as of today and in the light of the fact that the Corporation itself had voluntarily submitted that it was covered by the provisions of the Act the question of a dispute with regard to the liability of the Corporation was now largely academic, but has pleaded that as the employees in question were seasonal employees and the matter pertained to a long gone period i.e. 1982-98, the record pertaining to the employees was not available either with the Corporation or with the Contractors and that in many a case those who stood to benefit were not even traceable, it would be appropriate that the impugned orders be quashed as they would not serve any useful purpose. It has also been pleaded that although there was no limit prescribed under the Act within which proceedings under section 7-A could be initiated, but under the broad principle that a reasonable period ought to be read into the Statute, the present delay of 16 years from 1982 could not be justified. The learned counsel for the respondents has, however, argued that the Tribunal and the High Court had granted a limited relief to the employees inasmuch that the examination of the claim was to be limited only to those employees who could be identified and that as the authorities below had exercised their authority with respect to a beneficent legislation for the weaker sections, it would be inappropriate to interfere with the impugned orders. 5. We have heard the learned counsel for the parties and gone through the record. We do appreciate that the inaction on the part of the Commissioner to initiate proceedings within a reasonable time, has to be deplored. However, as the Corporation has itself submitted that it was covered under the Act and in view of the limited relief granted by the authorities below and by the High Court, we are disinclined to interfere with the matter at this stage.
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5. We have heard the learned counsel for the parties and gone through the record. We do appreciate that the inaction on the part of the Commissioner to initiate proceedings within a reasonable time, has to be deplored. However, as the Corporation has itself submitted that it was covered under the Act and in view of the limited relief granted by the authorities below and by the High Court, we are disinclined to interfere with the matter at this stage.
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Hem Chand Vs. The Delhi Cloth & General Mills Co. Ltd.& Ors | given its due meaning. The contention of the learned counsel on behalf of the tenant that the section confers a discretion on the Rent Controller to strike out th e defence or not has to be accepted. If the defence is not struck that the hearing of the application of the landlord will have to be proceeded with giving opportunity to the tenant to raise his defence but if the defence is struck out the Rent Controller will proceed with the hearing of the application of the landlord and if the landlord makes out a case, order his application for recovery of possession.The result is that if the tenant deposits the rent in accordance wi th the notice under section 14(1) (a) or complies with an order under section 15(1) within one month from the date of the order, the landlord cannot recover possession of the premises on the ground specified in section 14(1) (a). But i f there is non-compliance of both sections 14(1)(a) and section 15(1), the cause of action of the landlord praying for possession of the premises on the ground of failure to pay arrears of rent survives and the landlord can proceed with the applica tion and make out his case. The provisions of the Act do, not warrant the view that in the event of the failure of the tenant to deposit the rent under section 15(1) the Rent Controller is bound to pass an order for recovery of the possession fo r it yet remainsfor the landlord to prove his case that there was non-complianceof section 14(1) (a). It is clear from section 15 (7) that an inquiry will have to be proceeded with even when the defence of the tenant has been struck out. More so this procedure is applicable when the defence is not struck out but only there is a failure to comply with an order under section 15(1). The Full Bench of the Delhi High Court has held that if the landlord fulfills the conditions mentioned in the clauses to the proviso to sub- section (1) of section 14, including clause (a). the Controller was bound to pass an order for recovery of possession against the tenant and cannot refuse the landlord the prayer for eviction. I n the concluding part of its judgment the Full Bench expressed its view that when the tenant failed to make a deposit of the future rents in compliance with the order passed under section 15(1) against him a right to obtain an order for recov ery of possession accrued to the landlord and the Controller had no power to condone the default of the tenant and to refuse to grand this order.While we agree with the few of the Full Bench that the Controller has no power to condone the fail ure of the tenant to pay arrears of rent as required under section 15(1), we are satisfied that the Full Bench fell into an error in holding that the right to obtain an order for recovery of possession accrued to the landlord. As we have set out earlier in the event of the tenant failing to comply with the order under section 15(1) the application will have to be heard giving an opportunity to the tenant if his defence is not struck out under section 15(7) and without hearing the ten ant if his defence is struck out. The Full Bench is therefore in error in allowing the application of the landlord on the basis of the failure of the tenant to comply with an order under section 15(1). The landlord had appealed to the High Court against the order of the Tribunal setting aside the Rent Controllers order striking out the defence. The High Court ought to have considered and decided in the appeal whether the striking out of the defence by the Rent Controller was right or not. If the striking out was right then as the Rent Controller had proceeded with the hearing of the application and passed an order directing possession to the landlord it ought to be upheld, but in the event of the High Court holding that the order striking out the defence by the Rent Controller was erroneous then the order directing recovery of possession should be set aside and the petition of the landlord heard by the Rent Controller after providing an opportunity t o the tenant to raise his defence.Now the question that remains is whether the Rent Controller has any direction to extend the time prescribed in section 15(1)This section requires the Controller, after hearing the parties, to make an order directing t he tenant to pay the Controller within one month of rent, with a direction that he should continue to pay or deposit month by month, a sum equivalent opportunity given to the, tenant pay arrears of rent. Without the protection given under the Act the an or cad on 15 days notice ending with the month get the tenant evicted. The Rent Control Act protects the tenant from such eviction and gives him an opportunity to pay the arrears of rent within two months from the date of notice of demand as provided in section 14(1) (a). Even if he fails to pay, a further opportunity is given to the tenant to pay or deposit the arrears within one month under section 15(1). Such payment or deposit in compliance with the order under section 15(1) takes away the right of the landlord to claim recovery of possession on the ground of default in payment of rent. The legislature has given statuary protection to the tenant by affording him an opportunity to pay the areas of rent within one month from the date of the order. This statutory provision cannot be modified as rights of parties depend on the compliance with an order under section 15(1).In the circumstances, we agree with the Full Bench that the Rent Controller has no discretion to extend the time prescribed under section 15(1).5. | 1[ds]It is clear from section 15 (7) that an inquiry will have to be proceeded with even when the defence of the tenant has been struck out. More so this procedure is applicable when the defence is not struck out but only there is a failure to comply with an order under section 15(1). The Full Bench of the Delhi High Court has held that if the landlord fulfills the conditions mentioned in the clauses to the proviso to sub- section (1) of section 14, including clause (a). the Controller was bound to pass an order for recovery of possession against the tenant and cannot refuse the landlord the prayer for eviction. I n the concluding part of its judgment the Full Bench expressed its view that whent failed tomake a deposit of the future rents in compliance with the order passed under section 15(1) against him a right to obtain an order for recov ery of possession accrued to the landlord and the Controller had no power to condone the default of the tenant and to refuse to grand this order.While we agree with the few of the Full Bench that the Controller has no power to condone the fail ure of the tenant to pay arrears of rent as required under section 15(1), we are satisfied that the Full Bench fell into an error in holding that the right to obtain an order for recovery of possession accrued to the landlord. As we have set out earlier in the event of the tenant failing to comply with the order under section 15(1) the application will have to be heard giving an opportunity to the tenant if his defence is not struck out under section 15(7) and without hearing the ten ant if his defence is struck out. The Full Bench is therefore in error in allowing the application of the landlord on the basis of the failure of the tenant to comply with an order under section 15(1). The landlord had appealed to the High Court against the order of the Tribunal setting aside the Rent Controllers order striking out the defence. The High Court ought to have considered and decided in the appeal whether the striking out of the defence by the Rent Controller was right or not. If the striking out was right then as the Rent Controller had proceeded with the hearing of the application and passed an order directing possession to the landlord it ought to be upheld, but in the event of the High Court holding that the order striking out the defence by the Rent Controller was erroneous then the order directing recovery of possession should be set aside and the petition of the landlord heard by the Rent Controller after providing an opportunity t o the tenant to raise his defence.Now the question that remains is whether the Rent Controller has any direction to extend the time prescribed in section 15(1)This section requires the Controller, after hearing the parties, to make an order directing t he tenant to pay the Controller within one month of rent, with a direction that he should continue to pay or deposit month by month, a sum equivalent opportunity given to the, tenant pay arrears of rent. Without the protection given under the Act the an or cad on 15 days notice ending with the month get the tenant evicted. The Rent Control Act protects the tenant from such eviction and gives him an opportunity to pay the arrears of rent within two months from the date of notice of demand as provided in section 14(1) (a). Even if he fails to pay, a further opportunity is given to the tenant to pay or deposit the arrears within one month under section 15(1). Such payment or deposit in compliance with the order under section 15(1) takes away the right of the landlord to claim recovery of possession on the ground of default in payment of rent. The legislature has given statuary protection to the tenant by affording him an opportunity to pay the areas of rent within one month from the date of the order. This statutory provision cannot be modified as rights of parties depend on the compliance with an order under section 15(1).In the circumstances, we agree with the Full Bench that the Rent Controller has no discretion to extend the time prescribed under sectionL NOS. 713-714 OFhave held earlier that if it is found that the striking out of the defence was erroneous the tenant is entitled to an opportunity to defend the application, but if it is found that the defence was properly struck out, then the tenants appeals will have to beorder to appreciate the contentions of the parties it is desirable to set out the relevant provisions of theAct. The main object for enacting the Delhi Rent Control Act is for providing control of rents and evictions. In order to achieve that object certain restrictions are placed on the landlord before getting a tenant evicted. Section 14(1) provides that no tenant could be evicted except on an application made to the Controller for an order for recovery of possession on one or more grounds specified in the section. We are concerned with the ground of default in payment of rent which is provided for in section 14(1) (a). If the tenant has neither paid nor tendered the whole of the arrears of the rent legally recover able from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner prescribed, the landlord can apply for recovery of possession., Under thea notice of demand for arrears of rent should be served by the landlord on the tenant requiring him to pay the arrears of rent within two months. If the tenant pays the arrears of rent within two months of the service of notice, the landlord cannot get a n order for recovery of possession on the ground of default in payment of rent. If the tenant fails to pay as required under section 14(1) (a) the proceedings are taken under section 15 (1) of the Act. The Controller shall after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the tenant with a direction that he should continue to pay or deposit the rent month by month by the fifteenth of each succeeding month. This is a second opportunity pro vided to the, Meant to pay the arrears, of rent even though he might not have complied with the notice under section 14(1) (a). If the tenant pays the arrears of rent within one month from the date of the order of the Controller as required under section 15(1) the landlord cannot have any further complaint about the default in payment of rent for section 14(2) provides that no order for the recovery of possession of any premises shall be made on the ground specified in clause (a) of the proviso to(1) of section 14, if the tenant makes payment or deposit as required by section 15.Therefore if an order under section 15(1) is duly complied with, the landlord cannot avail himself of the ground specified in section 14(1 ) (a), that(a), that is failure of the tenant to pay arrears of rent within two months of the date of service of notice on the tenant. This position is made clear by section 15(6) which lays down that if a tenant payment or deposit as required by subsection (1) or(3), no order shall be made for the recovery of possession on the ground of default in the payment of rent by the tenant. Thus far there is no15(7) provides that if a tenant fails to make payment or deposit as required by section 15(1), the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application. It is@ seen that on the failure by the tenant to make a payment, the Controller may order the defence to be struck out. This confers a discretion on the Rent Controller either to strike out the defence or not depending upon the circumstances of, thecontention cannot be accepted for in the context of section 15(7) it is not necessary to construe the word "may" as "shall". It is also in keeping with the legislative intention that a discretion is conferred on the controller either to strike out the defence o r not. Further it is significant to note that the subsection was amended and the word "may" was introduced in place of the word "shall" in the Delhi and Ajmer Rent Control Art, 1952. Section 13(5) as it stood in that Act provided that on the failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or to deposit the rent at such rate for any month by the 15th of the next following month, the Court shall order the defence against ejectment to be struck out. The introduction of the word "may" in the place of "shall" should be given its duecontention of the learned counsel on behalf of the tenant that the section confers a discretion on the Rent Controller to strike out th e defence or not has to be accepted. If the defence is not struck that the hearing of the application of the landlord will have to be proceeded with giving opportunity to the tenant to raise his defence but if the defence is struck out the Rent Controller will proceed with the hearing of the application of the landlord and if the landlord makes out a case, order his application for recovery of possession. | 1 | 3,115 | 1,867 | ### 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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given its due meaning. The contention of the learned counsel on behalf of the tenant that the section confers a discretion on the Rent Controller to strike out th e defence or not has to be accepted. If the defence is not struck that the hearing of the application of the landlord will have to be proceeded with giving opportunity to the tenant to raise his defence but if the defence is struck out the Rent Controller will proceed with the hearing of the application of the landlord and if the landlord makes out a case, order his application for recovery of possession.The result is that if the tenant deposits the rent in accordance wi th the notice under section 14(1) (a) or complies with an order under section 15(1) within one month from the date of the order, the landlord cannot recover possession of the premises on the ground specified in section 14(1) (a). But i f there is non-compliance of both sections 14(1)(a) and section 15(1), the cause of action of the landlord praying for possession of the premises on the ground of failure to pay arrears of rent survives and the landlord can proceed with the applica tion and make out his case. The provisions of the Act do, not warrant the view that in the event of the failure of the tenant to deposit the rent under section 15(1) the Rent Controller is bound to pass an order for recovery of the possession fo r it yet remainsfor the landlord to prove his case that there was non-complianceof section 14(1) (a). It is clear from section 15 (7) that an inquiry will have to be proceeded with even when the defence of the tenant has been struck out. More so this procedure is applicable when the defence is not struck out but only there is a failure to comply with an order under section 15(1). The Full Bench of the Delhi High Court has held that if the landlord fulfills the conditions mentioned in the clauses to the proviso to sub- section (1) of section 14, including clause (a). the Controller was bound to pass an order for recovery of possession against the tenant and cannot refuse the landlord the prayer for eviction. I n the concluding part of its judgment the Full Bench expressed its view that when the tenant failed to make a deposit of the future rents in compliance with the order passed under section 15(1) against him a right to obtain an order for recov ery of possession accrued to the landlord and the Controller had no power to condone the default of the tenant and to refuse to grand this order.While we agree with the few of the Full Bench that the Controller has no power to condone the fail ure of the tenant to pay arrears of rent as required under section 15(1), we are satisfied that the Full Bench fell into an error in holding that the right to obtain an order for recovery of possession accrued to the landlord. As we have set out earlier in the event of the tenant failing to comply with the order under section 15(1) the application will have to be heard giving an opportunity to the tenant if his defence is not struck out under section 15(7) and without hearing the ten ant if his defence is struck out. The Full Bench is therefore in error in allowing the application of the landlord on the basis of the failure of the tenant to comply with an order under section 15(1). The landlord had appealed to the High Court against the order of the Tribunal setting aside the Rent Controllers order striking out the defence. The High Court ought to have considered and decided in the appeal whether the striking out of the defence by the Rent Controller was right or not. If the striking out was right then as the Rent Controller had proceeded with the hearing of the application and passed an order directing possession to the landlord it ought to be upheld, but in the event of the High Court holding that the order striking out the defence by the Rent Controller was erroneous then the order directing recovery of possession should be set aside and the petition of the landlord heard by the Rent Controller after providing an opportunity t o the tenant to raise his defence.Now the question that remains is whether the Rent Controller has any direction to extend the time prescribed in section 15(1)This section requires the Controller, after hearing the parties, to make an order directing t he tenant to pay the Controller within one month of rent, with a direction that he should continue to pay or deposit month by month, a sum equivalent opportunity given to the, tenant pay arrears of rent. Without the protection given under the Act the an or cad on 15 days notice ending with the month get the tenant evicted. The Rent Control Act protects the tenant from such eviction and gives him an opportunity to pay the arrears of rent within two months from the date of notice of demand as provided in section 14(1) (a). Even if he fails to pay, a further opportunity is given to the tenant to pay or deposit the arrears within one month under section 15(1). Such payment or deposit in compliance with the order under section 15(1) takes away the right of the landlord to claim recovery of possession on the ground of default in payment of rent. The legislature has given statuary protection to the tenant by affording him an opportunity to pay the areas of rent within one month from the date of the order. This statutory provision cannot be modified as rights of parties depend on the compliance with an order under section 15(1).In the circumstances, we agree with the Full Bench that the Rent Controller has no discretion to extend the time prescribed under section 15(1).5.
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to pay the areas of rent within one month from the date of the order. This statutory provision cannot be modified as rights of parties depend on the compliance with an order under section 15(1).In the circumstances, we agree with the Full Bench that the Rent Controller has no discretion to extend the time prescribed under sectionL NOS. 713-714 OFhave held earlier that if it is found that the striking out of the defence was erroneous the tenant is entitled to an opportunity to defend the application, but if it is found that the defence was properly struck out, then the tenants appeals will have to beorder to appreciate the contentions of the parties it is desirable to set out the relevant provisions of theAct. The main object for enacting the Delhi Rent Control Act is for providing control of rents and evictions. In order to achieve that object certain restrictions are placed on the landlord before getting a tenant evicted. Section 14(1) provides that no tenant could be evicted except on an application made to the Controller for an order for recovery of possession on one or more grounds specified in the section. We are concerned with the ground of default in payment of rent which is provided for in section 14(1) (a). If the tenant has neither paid nor tendered the whole of the arrears of the rent legally recover able from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner prescribed, the landlord can apply for recovery of possession., Under thea notice of demand for arrears of rent should be served by the landlord on the tenant requiring him to pay the arrears of rent within two months. If the tenant pays the arrears of rent within two months of the service of notice, the landlord cannot get a n order for recovery of possession on the ground of default in payment of rent. If the tenant fails to pay as required under section 14(1) (a) the proceedings are taken under section 15 (1) of the Act. The Controller shall after giving the parties an opportunity of being heard, make an order directing the tenant to pay to the landlord or deposit with the Controller within one month of the date of the order, an amount calculated at the rate of rent at which it was last paid for the period for which the arrears of the rent were legally recoverable from the tenant with a direction that he should continue to pay or deposit the rent month by month by the fifteenth of each succeeding month. This is a second opportunity pro vided to the, Meant to pay the arrears, of rent even though he might not have complied with the notice under section 14(1) (a). If the tenant pays the arrears of rent within one month from the date of the order of the Controller as required under section 15(1) the landlord cannot have any further complaint about the default in payment of rent for section 14(2) provides that no order for the recovery of possession of any premises shall be made on the ground specified in clause (a) of the proviso to(1) of section 14, if the tenant makes payment or deposit as required by section 15.Therefore if an order under section 15(1) is duly complied with, the landlord cannot avail himself of the ground specified in section 14(1 ) (a), that(a), that is failure of the tenant to pay arrears of rent within two months of the date of service of notice on the tenant. This position is made clear by section 15(6) which lays down that if a tenant payment or deposit as required by subsection (1) or(3), no order shall be made for the recovery of possession on the ground of default in the payment of rent by the tenant. Thus far there is no15(7) provides that if a tenant fails to make payment or deposit as required by section 15(1), the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application. It is@ seen that on the failure by the tenant to make a payment, the Controller may order the defence to be struck out. This confers a discretion on the Rent Controller either to strike out the defence or not depending upon the circumstances of, thecontention cannot be accepted for in the context of section 15(7) it is not necessary to construe the word "may" as "shall". It is also in keeping with the legislative intention that a discretion is conferred on the controller either to strike out the defence o r not. Further it is significant to note that the subsection was amended and the word "may" was introduced in place of the word "shall" in the Delhi and Ajmer Rent Control Art, 1952. Section 13(5) as it stood in that Act provided that on the failure of the tenant to deposit the arrears of rent within fifteen days of the date of the order or to deposit the rent at such rate for any month by the 15th of the next following month, the Court shall order the defence against ejectment to be struck out. The introduction of the word "may" in the place of "shall" should be given its duecontention of the learned counsel on behalf of the tenant that the section confers a discretion on the Rent Controller to strike out th e defence or not has to be accepted. If the defence is not struck that the hearing of the application of the landlord will have to be proceeded with giving opportunity to the tenant to raise his defence but if the defence is struck out the Rent Controller will proceed with the hearing of the application of the landlord and if the landlord makes out a case, order his application for recovery of possession.
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Commissioner Of Trade Tax, U.P Vs. Varun Beverages Ltd | court in the decision in State of Bihar and Others (supra). 18. This Court in the case of State of Bihar v. Steel City Beverages Ltd., reported as (1999) 1 SCC 10 , observed that as under: - "8. It is also relevant to refer to the two notifications of the Government of India in the Ministry of Industry (Department of Industrial Development) dated 2-4-1991 and 1-1-1993 issued under Section 11-B of the Industries (Development & Regulation) Act, 1951. Notification No. 232 dated 2-4-1991 while stating what has to be included under fixed assets while ascertaining whether a small-scale industrial units investment has exceeded the limit of Rs 60 lakhs has clarified that the cost of storage tanks which store raw material or finished products is to be excluded. The 1993 notification has amended the notification of 2-4-1991 and clarified by adding Note 2 that in calculating the value of plant and machinery, the cost of storage tanks which store raw materials/finished products only and which are not linked with the manufacturing process shall be excluded. On 8-5-1995, the Government of India again issued a circular, after having received representations from the industry seeking clarification whether bottles and crates are to be taken into account for determining the SSI status of the units engaged in manufacture of soft drinks/concentrates, clarifying that investment in bottles and crates in such units is in the nature of storage of finished products and, therefore, such investment has to be excluded while computing the value of plant and machinery.9. As pointed out in the affidavit-in-rejoinder, the Company had applied for an Eligibility Certificate claiming the status of a small-scale industry. It is, in fact, registered as a small-scale industrial unit. While declaring its investment at the time of seeking registration as a small-scale industrial unit, it did not include investment in bottles and crates under the head "Plant and Machinery". The investment in bottles and crates was shown under a separate head. It is further pointed out in the said affidavit that if the investment of the Company in bottles and crates is included under the head "Plant" then its total fixed capital investment will reach the level of 137.36 lakhs and it can no longer be regarded as a small-scale industrial unit. As the Company had applied as a SSI unit, the District Level Committee had to verify the status of the Company as SSI unit and, therefore, it was bound to take into account the above-referred two notifications of the years 1991 and 1993. If under these circumstances, the District Level Committee came to the conclusion that the Company is not entitled to the benefit of deferment in respect of its investment in bottles and crates, it cannot be said that it has acted contrary to law." 19.A careful reading of the ratio of the aforesaid decision would reveal that expression plant and machinery in the said case was intended to take such articles which are required for the purpose of manufacture and not for storage. Besides, the said decision was rendered in the context of the two notifications which specifically excluded value of bottles and crates to be included in the expression "plant and machinery" as the same are used for the purpose of storage of finished products and not used for the purpose of manufacture of finished products. 20. However, in this case, not only the wordings of the Act are wider but there is also no such notification issued by the State Government giving a restricted meaning to the expression "fixed capital investment" which as per provision enacted also includes all such investment made for equipment, apparatus, components and machinery which are necessary for running of the factory or workshop. 21. In that view of the matter and considering the wording of the provision itself, it is quite necessary to give full and complete effect to the provision in a purposive manner so as to advance the objective of the provision. So in the instant case all those apparatus, equipments and components which are necessary for running of the factory would also be considered as investment and would therefore be part of the definition of fixed capital investment. Besides, as laid down in the decision of this Court in CIT v. Straw Board Mfg. Co. Ltd. reported as 1989 Suppl. (2) SCC 523, in taxing statutes, provisions for concessional rate of tax should be liberally construed. 22. The respondents are engaged in the manufacture of soft drink and beverages which are required to be bottled and thereafter sealed, which are essential part of running of the factory and therefore the same will have to be included within the aforesaid extended meaning of the word `investment as appearing from the words `fixed capital investment. To that extent, facts of the present case are distinguishable from the facts of State of Bihar and Others (supra) on which reliance was placed by the counsel appearing for the appellant. 23. Considering the facts and circumstances, we hold that so far bottles are concerned, they are essential part of components and equipments necessary for the running of the factory and therefore such value of the investment would form part of the fixed capital investment and would be entitled to exemption as provided for. But so far crates are concerned they are used by the respondent only for the purpose of marketing. Use of crates is necessary for taking out the bottled beverages out of the factory and while doing the marketing of the sealed bottled beverages. The aforesaid view taken by us also receives support from the contents of the eligibility certificate given by the appellant and therefore crates have no user so far as running of the factory of the respondent. Therefore, the value of crates in our considered opinion cannot be deemed to be investment for the purpose of including it within the meaning of expression "Fixed Capital Investment" as per sub-section (4) of Section 4-A of the Act. 24. Having held thus, | 1[ds]is quite necessary to give full and complete effect to the provision in a purposive manner so as to advance the objective of the provision. So in the instant case all those apparatus, equipments and components which are necessary for running of the factory would also be considered as investment and would therefore be part of the definition of fixed capitalrespondents are engaged in the manufacture of soft drink and beverages which are required to be bottled and thereafter sealed, which are essential part of running of the factory and therefore the same will have to be included within the aforesaid extended meaning of the word `investment as appearing from the words `fixed capitalare concerned, they are essential part of components and equipments necessary for the running of the factory and therefore such value of the investment would form part of the fixed capital investment and would be entitled to exemption as provided for. But so far crates are concerned they are used by the respondent only for the purpose of marketing. Use of crates is necessary for taking out the bottled beverages out of the factory and while doing the marketing of the sealed bottled beverages. The aforesaid view taken by us also receives support from the contents of the eligibility certificate given by the appellant and therefore crates have no user so far as running of the factory of the respondent. Therefore, the value of crates in our considered opinion cannot be deemed to be investment for the purpose of including it within the meaning of expression "Fixed Capital Investment" as per sub-section (4) of Section 4-A of the Act. | 1 | 3,299 | 293 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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court in the decision in State of Bihar and Others (supra). 18. This Court in the case of State of Bihar v. Steel City Beverages Ltd., reported as (1999) 1 SCC 10 , observed that as under: - "8. It is also relevant to refer to the two notifications of the Government of India in the Ministry of Industry (Department of Industrial Development) dated 2-4-1991 and 1-1-1993 issued under Section 11-B of the Industries (Development & Regulation) Act, 1951. Notification No. 232 dated 2-4-1991 while stating what has to be included under fixed assets while ascertaining whether a small-scale industrial units investment has exceeded the limit of Rs 60 lakhs has clarified that the cost of storage tanks which store raw material or finished products is to be excluded. The 1993 notification has amended the notification of 2-4-1991 and clarified by adding Note 2 that in calculating the value of plant and machinery, the cost of storage tanks which store raw materials/finished products only and which are not linked with the manufacturing process shall be excluded. On 8-5-1995, the Government of India again issued a circular, after having received representations from the industry seeking clarification whether bottles and crates are to be taken into account for determining the SSI status of the units engaged in manufacture of soft drinks/concentrates, clarifying that investment in bottles and crates in such units is in the nature of storage of finished products and, therefore, such investment has to be excluded while computing the value of plant and machinery.9. As pointed out in the affidavit-in-rejoinder, the Company had applied for an Eligibility Certificate claiming the status of a small-scale industry. It is, in fact, registered as a small-scale industrial unit. While declaring its investment at the time of seeking registration as a small-scale industrial unit, it did not include investment in bottles and crates under the head "Plant and Machinery". The investment in bottles and crates was shown under a separate head. It is further pointed out in the said affidavit that if the investment of the Company in bottles and crates is included under the head "Plant" then its total fixed capital investment will reach the level of 137.36 lakhs and it can no longer be regarded as a small-scale industrial unit. As the Company had applied as a SSI unit, the District Level Committee had to verify the status of the Company as SSI unit and, therefore, it was bound to take into account the above-referred two notifications of the years 1991 and 1993. If under these circumstances, the District Level Committee came to the conclusion that the Company is not entitled to the benefit of deferment in respect of its investment in bottles and crates, it cannot be said that it has acted contrary to law." 19.A careful reading of the ratio of the aforesaid decision would reveal that expression plant and machinery in the said case was intended to take such articles which are required for the purpose of manufacture and not for storage. Besides, the said decision was rendered in the context of the two notifications which specifically excluded value of bottles and crates to be included in the expression "plant and machinery" as the same are used for the purpose of storage of finished products and not used for the purpose of manufacture of finished products. 20. However, in this case, not only the wordings of the Act are wider but there is also no such notification issued by the State Government giving a restricted meaning to the expression "fixed capital investment" which as per provision enacted also includes all such investment made for equipment, apparatus, components and machinery which are necessary for running of the factory or workshop. 21. In that view of the matter and considering the wording of the provision itself, it is quite necessary to give full and complete effect to the provision in a purposive manner so as to advance the objective of the provision. So in the instant case all those apparatus, equipments and components which are necessary for running of the factory would also be considered as investment and would therefore be part of the definition of fixed capital investment. Besides, as laid down in the decision of this Court in CIT v. Straw Board Mfg. Co. Ltd. reported as 1989 Suppl. (2) SCC 523, in taxing statutes, provisions for concessional rate of tax should be liberally construed. 22. The respondents are engaged in the manufacture of soft drink and beverages which are required to be bottled and thereafter sealed, which are essential part of running of the factory and therefore the same will have to be included within the aforesaid extended meaning of the word `investment as appearing from the words `fixed capital investment. To that extent, facts of the present case are distinguishable from the facts of State of Bihar and Others (supra) on which reliance was placed by the counsel appearing for the appellant. 23. Considering the facts and circumstances, we hold that so far bottles are concerned, they are essential part of components and equipments necessary for the running of the factory and therefore such value of the investment would form part of the fixed capital investment and would be entitled to exemption as provided for. But so far crates are concerned they are used by the respondent only for the purpose of marketing. Use of crates is necessary for taking out the bottled beverages out of the factory and while doing the marketing of the sealed bottled beverages. The aforesaid view taken by us also receives support from the contents of the eligibility certificate given by the appellant and therefore crates have no user so far as running of the factory of the respondent. Therefore, the value of crates in our considered opinion cannot be deemed to be investment for the purpose of including it within the meaning of expression "Fixed Capital Investment" as per sub-section (4) of Section 4-A of the Act. 24. Having held thus,
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### Explanation:
is quite necessary to give full and complete effect to the provision in a purposive manner so as to advance the objective of the provision. So in the instant case all those apparatus, equipments and components which are necessary for running of the factory would also be considered as investment and would therefore be part of the definition of fixed capitalrespondents are engaged in the manufacture of soft drink and beverages which are required to be bottled and thereafter sealed, which are essential part of running of the factory and therefore the same will have to be included within the aforesaid extended meaning of the word `investment as appearing from the words `fixed capitalare concerned, they are essential part of components and equipments necessary for the running of the factory and therefore such value of the investment would form part of the fixed capital investment and would be entitled to exemption as provided for. But so far crates are concerned they are used by the respondent only for the purpose of marketing. Use of crates is necessary for taking out the bottled beverages out of the factory and while doing the marketing of the sealed bottled beverages. The aforesaid view taken by us also receives support from the contents of the eligibility certificate given by the appellant and therefore crates have no user so far as running of the factory of the respondent. Therefore, the value of crates in our considered opinion cannot be deemed to be investment for the purpose of including it within the meaning of expression "Fixed Capital Investment" as per sub-section (4) of Section 4-A of the Act.
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Rangnath Sharma Vs. Satendra Sharma & Others | identically similar. The acts may be different in character, but must have been actuated by one and the same common intention pervading amongst all accused in order to attract the provision. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some specific overt act on the part of the accused, when it is shown that there was common intention and meeting of mind. 13. In Ram Tahal v. State of U.P., [(1972) 1 SCC 136] , it has been laid down as under:- "5...................There is no doubt that a common intention should be anterior in time to the commission of the crime showing a pre-arranged plan and prior concert, and though, it is difficult in most cases to prove the intention of an individual it has to be inferred from the act or conduct or other relevant circumstances of the case. This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination and concert with which the beating was given or the injuries, caused by one or some of them, the acts done by others to assist those causing the injuries the concerted conduct subsequent to the commission of the offence for instance that all of them had left the scene of the incident together and other acts which all or some may have done as would help in determining the common intention. In other words, the totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted. This Court had in Krishna Govind Patils case already referred to earlier, held that the pre-arranged plan may develop on the spot during the course of the commission of the offence but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so before a court convict a person under Section 302 or 304, read with 34 of IPC, it should come to a definite conclusion that the said person had a prior concert with one or more persons named or un-named for committing the offence." We may also make a reference to a decision of this Court in Ramesh Singh v. State of A.P., [(2004) 11 SCC 305] , wherein it has been observed thus: "12...............As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34 IPC embodies the principle of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered from the manner in which the accused arrived at the scene and mounted the attack, the determination and concert with which the attack was made, and from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted. (See Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra (1970) 1 SCC 696 )." So far as Pankaj Sharma and Ramakant Sharma are concerned they were also instrumental in bringing the deceased from his house in the company of Satendra Sharma to the place of occurrence with the common intention. As per the F.I.R and in their depositions during trial PWs 4, 6 and 7 specifically mentioned that they saw the said two accused holding the deceased which made it possible for Satendra Sharma to fire gun shot injury on the deceased. In Israr v. State of U.P., [(2005) 9 SCC 616] , wherein one of us (Dr. Arijit Pasayat) was the member, it was held that a person who was holding the deceased and restraining his movements, enabling the co-accused to inflict the knife-blows causing the death of the deceased was rightly convicted under Section 302 with the aid of S. 34 IPC. Having thus independently considered the facts and circumstances in their totality and taking holistic view of the facts of this case, we are of the opinion that the prosecution has been able to establish that Pankaj Sharma and Ramakant Sharma shared a common intention with accused Satendra Sharma and therefore, by virtue of section 34 IPC they are liable for the same offence.14. In the background of what has been stated above, we set aside the judgment of the Division Bench of the High Court and restore the judgment of the Trial Court. The accused-respondents shall surrender to custody to serve out the remaining sentence, failing which appropriate steps be taken for their arrest. There bail bonds stand cancelled. 15. | 1[ds]evidence on record, we proceed to appreciate the evidence and also examine the reasons given by the High Court in acquitting the accused persons. While passing the order of acquittal, the High Court has held that the place of occurrence was at a considerable distance from the cabin of the informant and also from the playground, and therefore, neither it was possible for PWs 4, 5, 6 and 7 to hear the quarrel nor it was possible for them to see the occurrence from the place where they were stationed. The High Court also justified the order of acquittal on the ground that there was considerable delay in recording the first information report, and therefore, the case of the prosecution becomes tainted. It was also held by the High Court that the presence of alcohol in the stomach of the deceased coupled with ante mortem injuries on his penis create a doubt in the prosecution case and that the occurrence had taken place in some other manner and not in the manner disclosed by the prosecution.6. The prosecution has led evidence through the aforesaid eye-witnesses, namely, PWs 4 to 7, which is sought to be supported by the evidence of PWs 1 to 3. Rangnath Sharma (PW-7) has stated in his deposition that the three accused, came to his house and asked the deceased to accompany them. It is also stated by him that he prevented the deceased for going with them but Satendra Sharma told that the deceased would return soon. The aforesaid version of the informant was not at all challenged by the defense by putting any direct question or otherwise in the cross examination. The only stand taken by defense was that the occurrence did not take place in the manner it is alleged. There is no other evidence available on record from which even a doubt with respect to correctness of the said statement could be created.7. Soon thereafter when Rangnath Sharma along with Sidhnath Sharma went to inspect his fields, he saw that two of the accused persons, namely, Pankaj Sharma and Ramakant Sharma, were holding the deceased and were grappling with him. Having seen the said situation, Rangnath Sharma immediately learnt that some overt act is going to happen and he raised hulla. Immediately thereafter, he saw that Satendra Sharma took pistol from his waist and fired at the deceased and on receiving the bullet injury, the deceased fell down on the ground. The said version of Rangnath Sharma has been corroborated by Sidhanth Sharma in totality. The defense has challenged the aforesaid part of the statement of Rangnath Sharma on the ground that the said incident as alleged could not have been seen by the informant as he was standing at a distance and there was obstruction by bushes, plants and crops standing in the field. The aforesaid defense found favour with the High Court. On going through the record, we find that the place of occurrence was a terrace meaning thereby that it was a little bit high land. As per the statement of Anil Prasad Singh (PW 9), the officer in-charge, the height of the terrace was about two feet. From the evidence it is clearly proved and established that the place where the appellant had reached at the time of occurrence was not very far from the place of occurrence. Therefore, it could not have been said that the said place was not visible and accordingly the High Court was not justified in arriving at the conclusion that the said place where the occurrence took place could not have been visible from the place where the informant was stationed at the time of occurrence. PW-7 as also the other witnesses have vividly described the manner in which the occurrence had taken place. All the said witnesses were examined at length during the trial by defense but on perusal of the same no contradiction was found.8. Even otherwise if a person is well known to the other, then the probability of identification of said person even from a far away place is much higher. In the case of State of A.P. v. Dr M.V. Ramana Reddy, [(1991) 4 SCC 536] it was held by this Court that where the identity of the accused is well known to the eye-witness the same could be recognised even in the faint light.9. The action of the eye witnesses is corroborated by the medical evidence. The doctor, PW-8 (Dr. Kapildeo Prasad), conducted the post mortem examination and the injuries of the following nature were found on the body of thePerforating wound of the size < inch in diameter was found over right nipple. The margins of the wound were irregular and inverted. The wound was directed posteriorly towards left side and was communicating with an opening situated at the middle of the left scapular region. The margins of the opening were irregular and averted. On dissection right and left lungs were found perforated. The left scapula bone was found broken with the hole at its middle portion. Blood and clots were found in the thoracic cavity and over the wound.(II) Abrasion of size =" x <" was found over the lower portion of the anterior surface of thefar as the first injury is concerned it is clear that the same was because of gun shot, which was established from the medical evidence on record. So far as the second injury is concerned, the defense tried to establish that the said injury could not have been received by the deceased during the incident and in the manner as stated by the prosecution and also that the doctor who conducted the post mortem examination has stated in his report that alcohol was found in the stomach of the deceased meaning thereby that the deceased was intoxicated at the time of his death. That, however, in no manner shakes the prosecution case nor any doubt could be created, for a person could otherwise consume alcohol during the course of the day. So far as the second injury is concerned, it is true that the doctor has found abrasion over lower portion of the interior surface of the penis. Such an injury could have been received by the deceased during the scuffle and grappling, which had taken place before the firing of the pistol. But the fact remains that main injury received by the deceased which was the cause of death, was received by the gun shot injury received from the pistol, fired by Satendra Sharma.10. One of the contentions which was raised by the defense was that the prosecution story cannot and should not be believed as there was considerable delay in filling the F.I.R., which creates doubt about the credibility of the Report. As per prosecution the incident took place between 5:30 - 6.00 P.M. and the informant along with two others left for the Police Station, on foot, at about 6:30 P.M., which is near about 4 miles away from the place of occurrence and reached there at about 8:30 P.M. As the report was not accepted immediately he had to wait. Thus the time period between the incident and filling of F.I.R was satisfactorily explained.11. The aforesaid evidence clearly proves and establishes that PWs 4 to 7 were near the place of occurrence at the time of alleged occurrence and that they had seen the accused Pankaj Sharma and Ramakant Sharma holding the deceased and Satendra Sharma firing at the deceased. PWs 1 to 3 have also categorically stated that they heard the sound of firearm and they immediately rushed to the place of occurrence and saw the aforesaid three accused persons fleeing towards the western side. Although there is evidence to show that the place of occurrence was at a distance from the cabin of the informant and crops had intervened in between the playground and the place of occurrence but it has not come on evidence that because of the high crops of jinora and maize, eye witnesses could not have seen the occurrence which had taken place at a terrace, which was comparatively raised land. None of them could be said to be a chance witness and on reading the evidence we find that they were natural witnesses who had seen the occurrence, heard the sound of firearm and saw the accused- respondents fleeing away from the place of occurrence. All the aforesaid evidence confirm the fact that the deceased was taken away from his house before the alleged occurrence by the accused persons and has been shot dead by Satendra Sharma.12. The next question which arises for our consideration is whether Pankaj Sharma and Ramakant Sharma can be held to be jointly liable for the above-mentioned offences. Section 34 IPC has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. The existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention pervading amongst all accused in order to attract the provision. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some specific overt act on the part of the accused, when it is shown that there was common intention and meeting offar as Pankaj Sharma and Ramakant Sharma are concerned they were also instrumental in bringing the deceased from his house in the company of Satendra Sharma to the place of occurrence with the common intention. As per the F.I.R and in their depositions during trial PWs 4, 6 and 7 specifically mentioned that they saw the said two accused holding the deceased which made it possible for Satendra Sharma to fire gun shot injury on the deceased. In Israr v. State of U.P., [(2005) 9 SCC 616] , wherein one of us (Dr. Arijit Pasayat) was the member, it was held that a person who was holding the deceased and restraining his movements, enabling the co-accused to inflict the knife-blows causing the death of the deceased was rightly convicted under Section 302 with the aid of S. 34 IPC. Having thus independently considered the facts and circumstances in their totality and taking holistic view of the facts of this case, we are of the opinion that the prosecution has been able to establish that Pankaj Sharma and Ramakant Sharma shared a common intention with accused Satendra Sharma and therefore, by virtue of section 34 IPC they are liable for the same offence.14. In the background of what has been stated above, we set aside the judgment of the Division Bench of the High Court and restore the judgment of the Trial Court. The accused-respondents shall surrender to custody to serve out the remaining sentence, failing which appropriate steps be taken for their arrest. There bail bonds stand | 1 | 4,186 | 2,220 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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identically similar. The acts may be different in character, but must have been actuated by one and the same common intention pervading amongst all accused in order to attract the provision. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some specific overt act on the part of the accused, when it is shown that there was common intention and meeting of mind. 13. In Ram Tahal v. State of U.P., [(1972) 1 SCC 136] , it has been laid down as under:- "5...................There is no doubt that a common intention should be anterior in time to the commission of the crime showing a pre-arranged plan and prior concert, and though, it is difficult in most cases to prove the intention of an individual it has to be inferred from the act or conduct or other relevant circumstances of the case. This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination and concert with which the beating was given or the injuries, caused by one or some of them, the acts done by others to assist those causing the injuries the concerted conduct subsequent to the commission of the offence for instance that all of them had left the scene of the incident together and other acts which all or some may have done as would help in determining the common intention. In other words, the totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted. This Court had in Krishna Govind Patils case already referred to earlier, held that the pre-arranged plan may develop on the spot during the course of the commission of the offence but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so before a court convict a person under Section 302 or 304, read with 34 of IPC, it should come to a definite conclusion that the said person had a prior concert with one or more persons named or un-named for committing the offence." We may also make a reference to a decision of this Court in Ramesh Singh v. State of A.P., [(2004) 11 SCC 305] , wherein it has been observed thus: "12...............As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34 IPC embodies the principle of joint liability in doing the criminal act based on a common intention. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove such intention. Therefore, in most cases it has to be inferred from the act like, the conduct of the accused or other relevant circumstances of the case. The inference can be gathered from the manner in which the accused arrived at the scene and mounted the attack, the determination and concert with which the attack was made, and from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. In this regard even an illegal omission on the part of such accused can indicate the sharing of common intention. In other words, the totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the common intention to commit an offence of which they could be convicted. (See Noor Mohammad Mohd. Yusuf Momin v. State of Maharashtra (1970) 1 SCC 696 )." So far as Pankaj Sharma and Ramakant Sharma are concerned they were also instrumental in bringing the deceased from his house in the company of Satendra Sharma to the place of occurrence with the common intention. As per the F.I.R and in their depositions during trial PWs 4, 6 and 7 specifically mentioned that they saw the said two accused holding the deceased which made it possible for Satendra Sharma to fire gun shot injury on the deceased. In Israr v. State of U.P., [(2005) 9 SCC 616] , wherein one of us (Dr. Arijit Pasayat) was the member, it was held that a person who was holding the deceased and restraining his movements, enabling the co-accused to inflict the knife-blows causing the death of the deceased was rightly convicted under Section 302 with the aid of S. 34 IPC. Having thus independently considered the facts and circumstances in their totality and taking holistic view of the facts of this case, we are of the opinion that the prosecution has been able to establish that Pankaj Sharma and Ramakant Sharma shared a common intention with accused Satendra Sharma and therefore, by virtue of section 34 IPC they are liable for the same offence.14. In the background of what has been stated above, we set aside the judgment of the Division Bench of the High Court and restore the judgment of the Trial Court. The accused-respondents shall surrender to custody to serve out the remaining sentence, failing which appropriate steps be taken for their arrest. There bail bonds stand cancelled. 15.
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1
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which was the cause of death, was received by the gun shot injury received from the pistol, fired by Satendra Sharma.10. One of the contentions which was raised by the defense was that the prosecution story cannot and should not be believed as there was considerable delay in filling the F.I.R., which creates doubt about the credibility of the Report. As per prosecution the incident took place between 5:30 - 6.00 P.M. and the informant along with two others left for the Police Station, on foot, at about 6:30 P.M., which is near about 4 miles away from the place of occurrence and reached there at about 8:30 P.M. As the report was not accepted immediately he had to wait. Thus the time period between the incident and filling of F.I.R was satisfactorily explained.11. The aforesaid evidence clearly proves and establishes that PWs 4 to 7 were near the place of occurrence at the time of alleged occurrence and that they had seen the accused Pankaj Sharma and Ramakant Sharma holding the deceased and Satendra Sharma firing at the deceased. PWs 1 to 3 have also categorically stated that they heard the sound of firearm and they immediately rushed to the place of occurrence and saw the aforesaid three accused persons fleeing towards the western side. Although there is evidence to show that the place of occurrence was at a distance from the cabin of the informant and crops had intervened in between the playground and the place of occurrence but it has not come on evidence that because of the high crops of jinora and maize, eye witnesses could not have seen the occurrence which had taken place at a terrace, which was comparatively raised land. None of them could be said to be a chance witness and on reading the evidence we find that they were natural witnesses who had seen the occurrence, heard the sound of firearm and saw the accused- respondents fleeing away from the place of occurrence. All the aforesaid evidence confirm the fact that the deceased was taken away from his house before the alleged occurrence by the accused persons and has been shot dead by Satendra Sharma.12. The next question which arises for our consideration is whether Pankaj Sharma and Ramakant Sharma can be held to be jointly liable for the above-mentioned offences. Section 34 IPC has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. The existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention pervading amongst all accused in order to attract the provision. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some specific overt act on the part of the accused, when it is shown that there was common intention and meeting offar as Pankaj Sharma and Ramakant Sharma are concerned they were also instrumental in bringing the deceased from his house in the company of Satendra Sharma to the place of occurrence with the common intention. As per the F.I.R and in their depositions during trial PWs 4, 6 and 7 specifically mentioned that they saw the said two accused holding the deceased which made it possible for Satendra Sharma to fire gun shot injury on the deceased. In Israr v. State of U.P., [(2005) 9 SCC 616] , wherein one of us (Dr. Arijit Pasayat) was the member, it was held that a person who was holding the deceased and restraining his movements, enabling the co-accused to inflict the knife-blows causing the death of the deceased was rightly convicted under Section 302 with the aid of S. 34 IPC. Having thus independently considered the facts and circumstances in their totality and taking holistic view of the facts of this case, we are of the opinion that the prosecution has been able to establish that Pankaj Sharma and Ramakant Sharma shared a common intention with accused Satendra Sharma and therefore, by virtue of section 34 IPC they are liable for the same offence.14. In the background of what has been stated above, we set aside the judgment of the Division Bench of the High Court and restore the judgment of the Trial Court. The accused-respondents shall surrender to custody to serve out the remaining sentence, failing which appropriate steps be taken for their arrest. There bail bonds stand
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GOVERNMENT OF INDIA Vs. SITAKANT S. DUBHASHI | object of SSSP Scheme, 1980 was to grant central pension to all those, who are in receipt of the State pension cannot be accepted. By relaxing, the SSSP Scheme, 1980 for a limited category, the object of the main Scheme shall not be lost nor those who are not covered by relaxed conditions can claim right to grant of SSSP Scheme, 1980. We, thus, are of the view that the Scheme dated 17.02.2003 has intelligible differentia and also nexus with the object. When relaxation is granted to a limited category, the others, who are not covered by the Scheme cannot claim any violation of right of equality. Right of equality can be claimed only by those who fulfil the eligibilities under the SSSP Scheme, 1980. 27. The submission which has further been pressed by the counsel for respondent No.1 is that when ultimately the state has accepted the respondent No.1 was entitled for State Pension, although, in the year 2008, there is no justification for denying him the benefit. It is submitted that respondent No.1 had applied for grant of State Pension much before 01.08.2002 and if the State had wrongly rejected it earlier, the claim of the respondent No.1 cannot be prejudiced. 28. We have carefully examined and looked into the materials before us as well as the original records. In the subsequent grant of pension to the respondent No.1 in the year 2008, there is no reference or claim that earlier rejection of claim of respondent No.1 was unjustified or was wrong. The scheme was reopened in the year 2003 by the State of Goa and in response to the reopening of the scheme, applications were received and after scrutinizing the claim of respondent No.1 sanctioned w.e.f. 01.12.2007. The Sanction of the Scheme granted to the respondent from 01.12.2007 cannot be read to mean that he was sanctioned from the date when his earlier application was rejected or from the date, he made the application. 29. The High Court has referred to and relied on the judgment of this Court in Mukund Lal Bhandari and Others Vs. Union of India and Others, (1993) supp. 3 SCC 2. In the above case, one of the grounds for rejecting the application for grant of SSS Pension was that the petitioner had made an application after the date for making the application as specified in the scheme expired. This Court held that the date prescribed inviting the claim was more of the matter of administrative convenience than as a rigid time limit. In paragraph 7 of the judgment, following has been laid down by this Court: - 7. As regards the contention that the petitioners had filed their applications after the date prescribed in that behalf, we are afraid that the Government stand is not justifiable. It is common knowledge that those who participated in the freedom struggle either at the national level or in the erstwhile Nizam State, are scattered all over the country and most of them may even be inhabiting the remotest parts of the rural areas. What is more, almost all of them must have now grown pretty old, if they are alive. Where the freedom fighters are not alive and their widows and the unmarried daughters have to prefer claims, the position may still be worse with regard to their knowledge of the prescribed date. What is more, if the Scheme has been introduced with the genuine desire to assist and honour those who had given the best part of their life for the country, it ill behoves the Government to raise pleas of limitation against such claims. In fact, the Government, if it is possible for them to do so, should find out the freedom fighters or their dependants and approach them with the pension instead of requiring them to make applications for the same. That would be the true spirit of working out such Schemes. The Scheme has rightly been renamed in 1985 as the Swatantra Sainik Samman Pension Scheme to accord with its object. We, therefore, cannot countenance the plea of the Government that the claimants would only be entitled to the benefit of the Scheme if they made applications before a particular date notwithstanding that in fact, they had suffered the imprisonment and made the sacrifices and were thus otherwise qualified to receive the benefit. We are, therefore, of the view that whatever the date on which the claimants make the applications, the benefit should be made available to them. The date prescribed in any past or future notice inviting the claims, should be regarded more as a matter of administrative convenience than as a rigid time-limit. 30. The date for making an application in the Scheme, as in the above case the last date for application for considering the freedom fighters pension may not be a rigid rule as rightly held by this Court in Mukund Lal Bhandaris case but present is a case where SSSP Scheme has been extended by relaxing the scheme to Goa Liberation Movement, Phase-II, by fixing a cut-off date for consideration under the scheme which is a condition for grant of SSS Pension. The judgment in Mukund Lal Bhandari is thus distinguishable and cannot be pressed in service in facts of the present case. 31. As noted above, before the High Court appellant could not file reply and bring the relevant facts and materials. The appellant ought to have been careful and produced relevant materials before the High Court for its consideration, but given opportunity by this Court, relevant materials have been brought on the record by way of additional Affidavit which materials we have perused. The appeal is being decided after taking into consideration the relevant materials brought on record. 32. We thus are of the view that there was no error in rejecting the claim of respondent No.1 for grant of SSSP scheme as communicated by communication letters dated 16.11.2009 and 13.11.2014. The Government Scheme dated 17.02.2003 also did not suffer from any infirmity. | 1[ds]18. The Scheme dated 17.02.2003 clearly provided that the Central Pension is to be granted to the participants of the second phase of Goa Liberation Movement who have been granted freedom fighter pension by the State Government by 01.08.2002Note contains the details of list of freedom fighters received from different states with regard to freedom fighters who took part in second phase of Goa Liberation Movement. The Government of Maharashtra had enclosed a list of 1716 freedom fighters, the Government of Rajasthan had sanctioned pension to 24 persons. It has been noticed that total number of freedom fighters who may be eligible from State of Maharashtra, Rajasthan, Madhya Pradesh, Uttar Pradesh, Goa and Haryana could be approximately 3,500. It was noticed that the scheme cannot be kept open ended and the date fixed to consider only those freedom fighters eligible for relaxation under SSSP Scheme who had taken part in second phase of Goa Liberation Movement(1954-55) and who had already been sanctioned the freedom fighters pension by the concerned State Government before a fixed date such as 01.08.200223. From the material which has been brought on record, it does appear that Government of India deliberated on the issue of cut-off date and the cut-off date was consciously fixed for extending the benefit of SSSP scheme to participants of Goa Liberation Movement, Phase-II. The eligibility under the SSSP Scheme, 1980, is entirely different from the eligibility of the State pension under the Goa Rules. Goa was liberated in 1961. State has framed the rules initially in 1973 and thereafter in 1988. Freedom Fighters were sanctioned pensions in aforesaid Goa Rules at least after 1973. The question of extension of SSSP scheme to the participants of Goa Liberation, Phase-II was being considered by the Central Government from the year 2000 and ultimately, it was extended by Scheme dated 17.02.2003. Already, more than forty years have been passed for Goa Liberation and more than 30 years have been passed for start of sanction of pension by the State of Goa. SSSP Scheme, 1980, had been extended to Goa Liberation Movement, Phase-II by relaxing the conditions which were there for grant of SSS Pension Scheme, 1980. When a benefit is granted in relaxation of Scheme, it is open for the Government to put conditions for eligibility24. In view of the above, we are of the considered opinion that there is a rationale for extending the Scheme with a cut-off date. The submission of learned counsel for respondent No.1 is that there was no nexus with the object sought to be achieved in fixation of cut-off date i.e. 01.08.2002. Learned counsel for the respondent No.1 submits that when the object of SSS Pension Scheme is to grant the benefit of pension to all Freedom Fighters, who participated in the Goa Liberation Movement, there is no intelligible differentia between Freedom Fighters, who were granted State pension by 01.08.2002 and those, who were granted pension subsequent to 01.08.2002. Elaborating the argument, it is further submitted that in any view of the matter in the Cut-off date, there is no nexus with the object sought to be achieved. It is submitted that due to there being no intelligible differentia and there being no nexus with the object sought to be achieved, the cut-off date 01.08.2002 was clearly arbitrary and liable to be struck down25. We have already noticed that the SSSP Scheme, 1980 provided for eligibilities for Freedom Fighters to make an application under the SSSP Scheme, 1980. Freedom Fighters of the Goa were also included and those who fulfil the conditions therein were entitled to grant of the pension. In the present case, we are concerned with the SSSP Scheme, 1980. The object of the Scheme was to sanction pension under the Scheme, 1980, who fulfil the eligibilities as per the Scheme. The State pension for which Scheme and Rules have been formulated by different States including the State of Goa were on different eligibilities and the mere fact that a person is eligible or entitled to a State pension does not ipso facto makes him eligible for the SSSP Scheme, 1980. The object of the SSSP Scheme, 1980 was to grant the Freedom Fighters Central Pension to those, who fulfil the eligibility which object was clearly fulfilled in including the Goa Liberation Movement also under the Scheme. As noted above, representations were received from various quarters to extend the SSSP Scheme, 1980 to participants of Goa Liberation Movement particularly, those, who participated in the Second phase of the Movement (1954-55). The Central Government decided to relax the conditions of eligibility under SSSP Scheme, 1980 by Scheme dated 17.02.2003 and while relaxing the Scheme cut- off date 01.08.2002 was fixed for making eligible the participants of Goa Liberation Movement. We have already noticed the rationale for fixing the cut-off date, which was fixed after due deliberation and consideration of relevant factsAs noticed above, the object of SSSP Scheme, 1980 was to grant Central Pension to those who were eligible under the said Scheme. The Freedom Fighters of the Goa Liberation Movement were already included in the Scheme, 1980, who were eligible as per the said Scheme. Thus, with regard to Freedom Fighters of Goa Liberation Movement, the Scheme, 1980 covered them and the object was to grant only those Freedom Fighters of Goa Liberation Movement, who fulfilled the eligibility of SSSP Scheme, 1980. When Scheme was relaxed and extended to participants of the Goa Liberation Movement Second Phase, relaxation was granted in the eligibility as provided in the SSSP Scheme, 1980 with the condition that those who are in receipt of State pension by 01.08.2002 should be extended the benefit of relaxation. The Scheme was not an open-ended Scheme and relaxation was granted to a particular category of persons, who were in receipt of the State pension by 01.08.2002. The relaxation granted by order dated 17.02.2003 cannot be said to be the object of the Central Government. The object under SSSP Scheme, 1980 was always and still is to grant Freedom Fighters pension to those who fulfil the eligibility of SSSP Scheme, 1980. The submission of the learned counsel for the respondent No.1 that object of SSSP Scheme, 1980 was to grant central pension to all those, who are in receipt of the State pension cannot be accepted. By relaxing, the SSSP Scheme, 1980 for a limited category, the object of the main Scheme shall not be lost nor those who are not covered by relaxed conditions can claim right to grant of SSSP Scheme, 1980. We, thus, are of the view that the Scheme dated 17.02.2003 has intelligible differentia and also nexus with the object. When relaxation is granted to a limited category, the others, who are not covered by the Scheme cannot claim any violation of right of equality. Right of equality can be claimed only by those who fulfil the eligibilities under the SSSP Scheme, 198028. We have carefully examined and looked into the materials before us as well as the original records. In the subsequent grant of pension to the respondent No.1 in the year 2008, there is no reference or claim that earlier rejection of claim of respondent No.1 was unjustified or was wrong. The scheme was reopened in the year 2003 by the State of Goa and in response to the reopening of the scheme, applications were received and after scrutinizing the claim of respondent No.1 sanctioned w.e.f. 01.12.2007. The Sanction of the Scheme granted to the respondent from 01.12.2007 cannot be read to mean that he was sanctioned from the date when his earlier application was rejected or from the date, he made the application30. The date for making an application in the Scheme, as in the above case the last date for application for considering the freedom fighters pension may not be a rigid rule as rightly held by this Court in Mukund Lal Bhandaris case but present is a case where SSSP Scheme has been extended by relaxing the scheme to Goa Liberation Movement, Phase-II, by fixing a cut-off date for consideration under the scheme which is a condition for grant of SSS Pension. The judgment in Mukund Lal Bhandari is thus distinguishable and cannot be pressed in service in facts of the present case31. As noted above, before the High Court appellant could not file reply and bring the relevant facts and materials. The appellant ought to have been careful and produced relevant materials before the High Court for its consideration, but given opportunity by this Court, relevant materials have been brought on the record by way of additional Affidavit which materials we have perused. The appeal is being decided after taking into consideration the relevant materials brought on record32. We thus are of the view that there was no error in rejecting the claim of respondent No.1 for grant of SSSP scheme as communicated by communication letters dated 16.11.2009 and 13.11.2014. The Government Scheme dated 17.02.2003 also did not suffer from any infirmity | 1 | 6,459 | 1,637 | ### 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:
object of SSSP Scheme, 1980 was to grant central pension to all those, who are in receipt of the State pension cannot be accepted. By relaxing, the SSSP Scheme, 1980 for a limited category, the object of the main Scheme shall not be lost nor those who are not covered by relaxed conditions can claim right to grant of SSSP Scheme, 1980. We, thus, are of the view that the Scheme dated 17.02.2003 has intelligible differentia and also nexus with the object. When relaxation is granted to a limited category, the others, who are not covered by the Scheme cannot claim any violation of right of equality. Right of equality can be claimed only by those who fulfil the eligibilities under the SSSP Scheme, 1980. 27. The submission which has further been pressed by the counsel for respondent No.1 is that when ultimately the state has accepted the respondent No.1 was entitled for State Pension, although, in the year 2008, there is no justification for denying him the benefit. It is submitted that respondent No.1 had applied for grant of State Pension much before 01.08.2002 and if the State had wrongly rejected it earlier, the claim of the respondent No.1 cannot be prejudiced. 28. We have carefully examined and looked into the materials before us as well as the original records. In the subsequent grant of pension to the respondent No.1 in the year 2008, there is no reference or claim that earlier rejection of claim of respondent No.1 was unjustified or was wrong. The scheme was reopened in the year 2003 by the State of Goa and in response to the reopening of the scheme, applications were received and after scrutinizing the claim of respondent No.1 sanctioned w.e.f. 01.12.2007. The Sanction of the Scheme granted to the respondent from 01.12.2007 cannot be read to mean that he was sanctioned from the date when his earlier application was rejected or from the date, he made the application. 29. The High Court has referred to and relied on the judgment of this Court in Mukund Lal Bhandari and Others Vs. Union of India and Others, (1993) supp. 3 SCC 2. In the above case, one of the grounds for rejecting the application for grant of SSS Pension was that the petitioner had made an application after the date for making the application as specified in the scheme expired. This Court held that the date prescribed inviting the claim was more of the matter of administrative convenience than as a rigid time limit. In paragraph 7 of the judgment, following has been laid down by this Court: - 7. As regards the contention that the petitioners had filed their applications after the date prescribed in that behalf, we are afraid that the Government stand is not justifiable. It is common knowledge that those who participated in the freedom struggle either at the national level or in the erstwhile Nizam State, are scattered all over the country and most of them may even be inhabiting the remotest parts of the rural areas. What is more, almost all of them must have now grown pretty old, if they are alive. Where the freedom fighters are not alive and their widows and the unmarried daughters have to prefer claims, the position may still be worse with regard to their knowledge of the prescribed date. What is more, if the Scheme has been introduced with the genuine desire to assist and honour those who had given the best part of their life for the country, it ill behoves the Government to raise pleas of limitation against such claims. In fact, the Government, if it is possible for them to do so, should find out the freedom fighters or their dependants and approach them with the pension instead of requiring them to make applications for the same. That would be the true spirit of working out such Schemes. The Scheme has rightly been renamed in 1985 as the Swatantra Sainik Samman Pension Scheme to accord with its object. We, therefore, cannot countenance the plea of the Government that the claimants would only be entitled to the benefit of the Scheme if they made applications before a particular date notwithstanding that in fact, they had suffered the imprisonment and made the sacrifices and were thus otherwise qualified to receive the benefit. We are, therefore, of the view that whatever the date on which the claimants make the applications, the benefit should be made available to them. The date prescribed in any past or future notice inviting the claims, should be regarded more as a matter of administrative convenience than as a rigid time-limit. 30. The date for making an application in the Scheme, as in the above case the last date for application for considering the freedom fighters pension may not be a rigid rule as rightly held by this Court in Mukund Lal Bhandaris case but present is a case where SSSP Scheme has been extended by relaxing the scheme to Goa Liberation Movement, Phase-II, by fixing a cut-off date for consideration under the scheme which is a condition for grant of SSS Pension. The judgment in Mukund Lal Bhandari is thus distinguishable and cannot be pressed in service in facts of the present case. 31. As noted above, before the High Court appellant could not file reply and bring the relevant facts and materials. The appellant ought to have been careful and produced relevant materials before the High Court for its consideration, but given opportunity by this Court, relevant materials have been brought on the record by way of additional Affidavit which materials we have perused. The appeal is being decided after taking into consideration the relevant materials brought on record. 32. We thus are of the view that there was no error in rejecting the claim of respondent No.1 for grant of SSSP scheme as communicated by communication letters dated 16.11.2009 and 13.11.2014. The Government Scheme dated 17.02.2003 also did not suffer from any infirmity.
### Response:
1
### Explanation:
submitted that in any view of the matter in the Cut-off date, there is no nexus with the object sought to be achieved. It is submitted that due to there being no intelligible differentia and there being no nexus with the object sought to be achieved, the cut-off date 01.08.2002 was clearly arbitrary and liable to be struck down25. We have already noticed that the SSSP Scheme, 1980 provided for eligibilities for Freedom Fighters to make an application under the SSSP Scheme, 1980. Freedom Fighters of the Goa were also included and those who fulfil the conditions therein were entitled to grant of the pension. In the present case, we are concerned with the SSSP Scheme, 1980. The object of the Scheme was to sanction pension under the Scheme, 1980, who fulfil the eligibilities as per the Scheme. The State pension for which Scheme and Rules have been formulated by different States including the State of Goa were on different eligibilities and the mere fact that a person is eligible or entitled to a State pension does not ipso facto makes him eligible for the SSSP Scheme, 1980. The object of the SSSP Scheme, 1980 was to grant the Freedom Fighters Central Pension to those, who fulfil the eligibility which object was clearly fulfilled in including the Goa Liberation Movement also under the Scheme. As noted above, representations were received from various quarters to extend the SSSP Scheme, 1980 to participants of Goa Liberation Movement particularly, those, who participated in the Second phase of the Movement (1954-55). The Central Government decided to relax the conditions of eligibility under SSSP Scheme, 1980 by Scheme dated 17.02.2003 and while relaxing the Scheme cut- off date 01.08.2002 was fixed for making eligible the participants of Goa Liberation Movement. We have already noticed the rationale for fixing the cut-off date, which was fixed after due deliberation and consideration of relevant factsAs noticed above, the object of SSSP Scheme, 1980 was to grant Central Pension to those who were eligible under the said Scheme. The Freedom Fighters of the Goa Liberation Movement were already included in the Scheme, 1980, who were eligible as per the said Scheme. Thus, with regard to Freedom Fighters of Goa Liberation Movement, the Scheme, 1980 covered them and the object was to grant only those Freedom Fighters of Goa Liberation Movement, who fulfilled the eligibility of SSSP Scheme, 1980. When Scheme was relaxed and extended to participants of the Goa Liberation Movement Second Phase, relaxation was granted in the eligibility as provided in the SSSP Scheme, 1980 with the condition that those who are in receipt of State pension by 01.08.2002 should be extended the benefit of relaxation. The Scheme was not an open-ended Scheme and relaxation was granted to a particular category of persons, who were in receipt of the State pension by 01.08.2002. The relaxation granted by order dated 17.02.2003 cannot be said to be the object of the Central Government. The object under SSSP Scheme, 1980 was always and still is to grant Freedom Fighters pension to those who fulfil the eligibility of SSSP Scheme, 1980. The submission of the learned counsel for the respondent No.1 that object of SSSP Scheme, 1980 was to grant central pension to all those, who are in receipt of the State pension cannot be accepted. By relaxing, the SSSP Scheme, 1980 for a limited category, the object of the main Scheme shall not be lost nor those who are not covered by relaxed conditions can claim right to grant of SSSP Scheme, 1980. We, thus, are of the view that the Scheme dated 17.02.2003 has intelligible differentia and also nexus with the object. When relaxation is granted to a limited category, the others, who are not covered by the Scheme cannot claim any violation of right of equality. Right of equality can be claimed only by those who fulfil the eligibilities under the SSSP Scheme, 198028. We have carefully examined and looked into the materials before us as well as the original records. In the subsequent grant of pension to the respondent No.1 in the year 2008, there is no reference or claim that earlier rejection of claim of respondent No.1 was unjustified or was wrong. The scheme was reopened in the year 2003 by the State of Goa and in response to the reopening of the scheme, applications were received and after scrutinizing the claim of respondent No.1 sanctioned w.e.f. 01.12.2007. The Sanction of the Scheme granted to the respondent from 01.12.2007 cannot be read to mean that he was sanctioned from the date when his earlier application was rejected or from the date, he made the application30. The date for making an application in the Scheme, as in the above case the last date for application for considering the freedom fighters pension may not be a rigid rule as rightly held by this Court in Mukund Lal Bhandaris case but present is a case where SSSP Scheme has been extended by relaxing the scheme to Goa Liberation Movement, Phase-II, by fixing a cut-off date for consideration under the scheme which is a condition for grant of SSS Pension. The judgment in Mukund Lal Bhandari is thus distinguishable and cannot be pressed in service in facts of the present case31. As noted above, before the High Court appellant could not file reply and bring the relevant facts and materials. The appellant ought to have been careful and produced relevant materials before the High Court for its consideration, but given opportunity by this Court, relevant materials have been brought on the record by way of additional Affidavit which materials we have perused. The appeal is being decided after taking into consideration the relevant materials brought on record32. We thus are of the view that there was no error in rejecting the claim of respondent No.1 for grant of SSSP scheme as communicated by communication letters dated 16.11.2009 and 13.11.2014. The Government Scheme dated 17.02.2003 also did not suffer from any infirmity
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Maharashtra General Kamgar Union Vs. Raptakos Brett and Company Limited and Another | ORAL JUDGMENTH.L. GOKHALE, J. (1) HEARD Mr. Ganguli in support of this appeal. Mr. Rele appears for the respondents. This appeal seeks to challenge the order of the single Judge dated March 16, 1992 in Writ petition No. 676 of 1987 whereby the learned single Judge had confirmed the order passed by the Sixth Labour Court at Mumbai in Reference (IDA) No. 428 of 1983 between the Appellant trade Union and the First respondent-Management. (2) THE dispute raised by the appellant trade Union was on behalf of the 9 workmen, to begin with which was with respect to their discontinuation from employment. A reference was taken to the Labour Court under the industrial Disputes Act seeking reinstatement with full back wages and continuity of service. The case of the workmen was that they had joined the Appellant Trade Union and therefore, they came to be terminated by orders of discharge simplicitor. This amounted to victimisation. It was their further case that they were in fact permanent workmen but were treated as casual workmen and that there is a breach of Sections 25-F and 25-H of the industrial Disputes Act. On as much as they have not been paid retrenchment compensation and that they have right to go back in the employment. (3) THE claim of the workmen was contested by filing a written statement and by pointing out that all the workmen concerned were specifically classified as casual workmen. Separate Muster Rolls were maintained for the casual workmen on which these workmen used to sign. Their pay sheets were separate. They had not completed 240 days in any of the 3 years in which they worked prior to their discontinuation. Their services were not required and therefore, they were discontinued. The Company further contended that although it was not bound to pay retrenchment compensations, the Company still offered it to the workmen.(4) EVIDENCE was led in the Labour Court. The management examined 3 witnesses. One was the Production Incharge from Worli factory, wherein some of the workmen worked. The second was incharge of Thane factory and the third person examined was commercial Manager. By the time the matter reached the single Judge 3 out of these 9 workmen settled the dispute. Out of the remaining 6, 5 were from the Worli Factory and one was from the Thane Factory. The management led evidence as to how the workmen had not completed 240 days in any of the 3 years to claim a permanent status. (5) THE learned Labour Court Judge went through the evidence and came to the conclusion that as per the definition of the term casual Workmen under the Clause 2 (d) of the certified Standing Orders which applied to the worli Factory and also Model Standing Orders which apply to the Thane Factory, it cannot be said that the workmen had to be treated as permanent workmen. The Judge however found that it appeared that they were made to work in place of other permanent workmen and it cannot be said that it was a work of essentially casual nature as per the Certified Standing orders. He found that they were employed in view of absence of regular workmen as substitute workmen in the factory. He however came to the conclusion that merely because they were engaged to work in place of the regular workmen one cannot jump to the conclusion that they have become permanent workmen. This is what he has observed in paragraph 8 of his judgment and therefore, he, finally rejected the reference. (6) WHEN the petition was filed challenging this order, the learned single Judge also noted that although the employees were called casual workmen it was a kind of hybrid definition as observed by him in paragraph 4 of his judgment, but having noted that the work offered was only for certain days and throughout less than 240 days, the learned judge held that the workmen cannot be said to have obtained the status of permanency. As far as the plea of victimisation is concerned, he noted that whereas the Union had entered in this Company in July 1982, the workmen were terminated in January 1982 and therefore, it cannot be said to be a victimisation. He also rejected the submission that it was a victimisation. The petition was therefore dismissed.(7) MR. Ganguli learned counsel for the appellant reiterated some of these submissions. He submitted that if the workmen were doing the work of permanent nature and if they were on break they cannot be blamed for those breaks. He however, did not dispute that the workmen had in fact not completed 240 days as shown in their Muster Rolls. His submission was that the period in between the breaks ought to be added in the service of the workmen and when it is counted this way the workmen would be seen as completing 240 days. It is not possible to accept this submission because it will mean that if work is taken from such substitutes, badlis or temporary or casual workmen in place of the regular workmen and if they are discontinued on the regular workmen reporting all such breaks will have to be read against the Management when in fact the regular workman would be working. That would run against provisions of Standing orders which permit such classification into permanent, temporary, badlis and casual workmen. It may be some kind of hybrid situation as observed by the single Judge but still it cannot lead to permanent status for the workmen merely on that ground. No documents granting any permanency to any of the workmen were produced before Labour court or single Judge which is necessary as per the law. | 0[ds]It is not possible to accept this submission because it will mean that if work is taken from such substitutes, badlis or temporary or casual workmen in place of the regular workmen and if they are discontinued on the regular workmen reporting all such breaks will have to be read against the Management when in fact the regular workman would be working. That would run against provisions of Standing orders which permit such classification into permanent, temporary, badlis and casual workmen. It may be some kind of hybrid situation as observed by the single Judge but still it cannot lead to permanent status for the workmen merely on that ground. No documents granting any permanency to any of the workmen were produced before Labour court or single Judge which is necessary as per the law. | 0 | 1,040 | 147 | ### 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:
ORAL JUDGMENTH.L. GOKHALE, J. (1) HEARD Mr. Ganguli in support of this appeal. Mr. Rele appears for the respondents. This appeal seeks to challenge the order of the single Judge dated March 16, 1992 in Writ petition No. 676 of 1987 whereby the learned single Judge had confirmed the order passed by the Sixth Labour Court at Mumbai in Reference (IDA) No. 428 of 1983 between the Appellant trade Union and the First respondent-Management. (2) THE dispute raised by the appellant trade Union was on behalf of the 9 workmen, to begin with which was with respect to their discontinuation from employment. A reference was taken to the Labour Court under the industrial Disputes Act seeking reinstatement with full back wages and continuity of service. The case of the workmen was that they had joined the Appellant Trade Union and therefore, they came to be terminated by orders of discharge simplicitor. This amounted to victimisation. It was their further case that they were in fact permanent workmen but were treated as casual workmen and that there is a breach of Sections 25-F and 25-H of the industrial Disputes Act. On as much as they have not been paid retrenchment compensation and that they have right to go back in the employment. (3) THE claim of the workmen was contested by filing a written statement and by pointing out that all the workmen concerned were specifically classified as casual workmen. Separate Muster Rolls were maintained for the casual workmen on which these workmen used to sign. Their pay sheets were separate. They had not completed 240 days in any of the 3 years in which they worked prior to their discontinuation. Their services were not required and therefore, they were discontinued. The Company further contended that although it was not bound to pay retrenchment compensations, the Company still offered it to the workmen.(4) EVIDENCE was led in the Labour Court. The management examined 3 witnesses. One was the Production Incharge from Worli factory, wherein some of the workmen worked. The second was incharge of Thane factory and the third person examined was commercial Manager. By the time the matter reached the single Judge 3 out of these 9 workmen settled the dispute. Out of the remaining 6, 5 were from the Worli Factory and one was from the Thane Factory. The management led evidence as to how the workmen had not completed 240 days in any of the 3 years to claim a permanent status. (5) THE learned Labour Court Judge went through the evidence and came to the conclusion that as per the definition of the term casual Workmen under the Clause 2 (d) of the certified Standing Orders which applied to the worli Factory and also Model Standing Orders which apply to the Thane Factory, it cannot be said that the workmen had to be treated as permanent workmen. The Judge however found that it appeared that they were made to work in place of other permanent workmen and it cannot be said that it was a work of essentially casual nature as per the Certified Standing orders. He found that they were employed in view of absence of regular workmen as substitute workmen in the factory. He however came to the conclusion that merely because they were engaged to work in place of the regular workmen one cannot jump to the conclusion that they have become permanent workmen. This is what he has observed in paragraph 8 of his judgment and therefore, he, finally rejected the reference. (6) WHEN the petition was filed challenging this order, the learned single Judge also noted that although the employees were called casual workmen it was a kind of hybrid definition as observed by him in paragraph 4 of his judgment, but having noted that the work offered was only for certain days and throughout less than 240 days, the learned judge held that the workmen cannot be said to have obtained the status of permanency. As far as the plea of victimisation is concerned, he noted that whereas the Union had entered in this Company in July 1982, the workmen were terminated in January 1982 and therefore, it cannot be said to be a victimisation. He also rejected the submission that it was a victimisation. The petition was therefore dismissed.(7) MR. Ganguli learned counsel for the appellant reiterated some of these submissions. He submitted that if the workmen were doing the work of permanent nature and if they were on break they cannot be blamed for those breaks. He however, did not dispute that the workmen had in fact not completed 240 days as shown in their Muster Rolls. His submission was that the period in between the breaks ought to be added in the service of the workmen and when it is counted this way the workmen would be seen as completing 240 days. It is not possible to accept this submission because it will mean that if work is taken from such substitutes, badlis or temporary or casual workmen in place of the regular workmen and if they are discontinued on the regular workmen reporting all such breaks will have to be read against the Management when in fact the regular workman would be working. That would run against provisions of Standing orders which permit such classification into permanent, temporary, badlis and casual workmen. It may be some kind of hybrid situation as observed by the single Judge but still it cannot lead to permanent status for the workmen merely on that ground. No documents granting any permanency to any of the workmen were produced before Labour court or single Judge which is necessary as per the law.
### Response:
0
### Explanation:
It is not possible to accept this submission because it will mean that if work is taken from such substitutes, badlis or temporary or casual workmen in place of the regular workmen and if they are discontinued on the regular workmen reporting all such breaks will have to be read against the Management when in fact the regular workman would be working. That would run against provisions of Standing orders which permit such classification into permanent, temporary, badlis and casual workmen. It may be some kind of hybrid situation as observed by the single Judge but still it cannot lead to permanent status for the workmen merely on that ground. No documents granting any permanency to any of the workmen were produced before Labour court or single Judge which is necessary as per the law.
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Commissioner of Income Tax (Central), Calcutta Vs. Mcleod and Company Limited | "arose in connection with the fictitious transactions indulged in by the company which were detected by its auditors after investigation. The expenses incurred as a result of such illegal activities were not the legitimate expenses of the appellant company incurred in the course of its business." On further appeal, the Appellate Tribunal by its order dated January 18, 1958, allowed the respondents claim for deduction accepting the assessees plea that the expenses were incurred to protect the assessees business as managing agents of various public companies and unless the fair name of the assessee was maintained its business would have suffered and certain managing agencies would have been lostThe Commissioner of Income-tax thereupon applied to the Tribunal under section 66(1) of the Income-tax Act of 1922 for a case to be stated to the High Court for reference of the following two questions of law:"(1) Whether, on the facts and in the circumstances of the case, the conclusion of the Tribunal that the expenditure of Rs. 95, 868 was wholly and exclusively incurred for the purpose of maintaining the goodwill and reputation of the assessee-company was based on no evidence or was perverse in the accepted sense of the term ?(2) Whether, in any event, on the facts and in the circumstances of the case, the Tribunal was right in holding that the said expenditure was allowable as a proper revenue deduction ?"By order dated February 11, 1966, the Tribunal stated a case to the Calcutta High Court and referred only the following question of law"Whether, on the facts and in the circumstances of the case, the expenditure of Rs. 95, 868 incurred for the purpose of maintaining the goodwill and reputation of the assessee-company was a permissible deduction in computing the assessees profits under section 10(2)(xv) of the Income-tax Act, 1922 ?"2. With regard to the first question the Tribunal said:"The Commissioner of Income-tax requested that question No. 1 as proposed by him in some form should also be referred. Since that question related to the finding of fact by the Tribunal that the expenditure of Rs. 95, 868 was incurred for the purpose of maintaining the goodwill and reputation of the assessee-company no question of law could arise as to whether the finding was supported by any evidence."3. The Commissioner of Income-tax thereupon applied to the High Court under section 66(2) of the Act wherein after referring to the finding of the Income-tax Officer and the Appellate Assistant Commissioner he complained that the conclusion to the contrary of the Tribunal was not supported by any material on the record and its finding was perverse in the sense that no reasonable man could have come to that conclusion. The Commissioners grievance was that on the form of the question drawn up by the Tribunal for the opinion of the High Court, the answer could only be in the affirmative, and against him. He further stated that the question framed did not set out the real point in controversy between the parties, viz., that there was no evidence before the Tribunal to come to the conclusion it did and alternatively on the material on record the conclusion was perverse in the sense that no reasonable man could come to the same findingIt appears to us that the question framed by the Tribunal was suggestive of the answer and the grievance of the Commissioner was not ill-founded. The statement of case by the Tribunal to the High Court was far from complete. In that statement the Tribunal after referring to the facts found by the Income-tax Officer and the Appellate Assistant Commissioner stated that"Since the major item of Rs. 58, 638 pertained to the bills of M/s. Orr Dignam & Co. the Tribunal perused the detailed statements of work done by M/s. Orr Dignam & Co. in connection with straightening out the affairs of the assessee-company. The Tribunal held that the expenditure had been incurred for the purpose of maintaining the goodwill and reputation of the assessee-company and that the expenditure had been wholly and exclusively incurred for this purpose."The above throws no light on the nature of the work done by the named firm of solicitors. An elucidation was necessary to permit the court to take the view that there was evidence to justify the conclusion arrived at by the Tribunal4. The real complaint of the appellant before us is that the statement of facts in the case stated by the Tribunal was not complete and that certain further facts should have been incorporated therein so that the questions of law which the appellant wanted the High Court to adjudicate upon could be properly gone into. Nevertheless, it appears to us that the appellant should have proceeded in the way indicated in N. V. Khandvala v. Commissioner of Income-tax, where Kania J. said"When a statement of case, with the question of law framed by the Tribunal, is filed in court for disposal, it a party is aggrieved and wants to contend that certain further facts ought to be stated, or certain questions of law should be raised, he can make an application by way of notice of motion. That should be heard along with the case stated by the Tribunal for the courts opinion. At that time the court will consider whether the statement of case is complete for the question of law raised by the Tribunal. The court can also consider whether on the case stated by the Tribunal the proper question is raised or not. That is the proper time for an aggrieved party to bring to the notice of the court that certain further and other facts are necessary to be stated or certain further or other questions of law arise and should be brought for decision by the court."The above was approved of by this court in the recent decision of Lakshmirattan Cotton Mills v. Commissioner of Income-tax, where the scope of section 66 of the Income-tax Act of 1922 was considered at some length5. We, | 1[ds]Nevertheless, it appears to us that the appellant should have proceeded in the way indicated in N. V. Khandvala v. Commissioner of Income-tax, where Kania J.a statement of case, with the question of law framed by the Tribunal, is filed in court for disposal, it a party is aggrieved and wants to contend that certain further facts ought to be stated, or certain questions of law should be raised, he can make an application by way of notice of motion. That should be heard along with the case stated by the Tribunal for the courts opinion. At that time the court will consider whether the statement of case is complete for the question of law raised by the Tribunal. The court can also consider whether on the case stated by the Tribunal the proper question is raised or not. That is the proper time for an aggrieved party to bring to the notice of the court that certain further and other facts are necessary to be stated or certain further or other questions of law arise and should be brought for decision by theabove was approved of by this court in the recent decision of Lakshmirattan Cotton Mills v. Commissioner of Income-tax, where the scope of section 66 of the Income-tax Act of 1922 was considered at some length | 1 | 1,426 | 235 | ### 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:
"arose in connection with the fictitious transactions indulged in by the company which were detected by its auditors after investigation. The expenses incurred as a result of such illegal activities were not the legitimate expenses of the appellant company incurred in the course of its business." On further appeal, the Appellate Tribunal by its order dated January 18, 1958, allowed the respondents claim for deduction accepting the assessees plea that the expenses were incurred to protect the assessees business as managing agents of various public companies and unless the fair name of the assessee was maintained its business would have suffered and certain managing agencies would have been lostThe Commissioner of Income-tax thereupon applied to the Tribunal under section 66(1) of the Income-tax Act of 1922 for a case to be stated to the High Court for reference of the following two questions of law:"(1) Whether, on the facts and in the circumstances of the case, the conclusion of the Tribunal that the expenditure of Rs. 95, 868 was wholly and exclusively incurred for the purpose of maintaining the goodwill and reputation of the assessee-company was based on no evidence or was perverse in the accepted sense of the term ?(2) Whether, in any event, on the facts and in the circumstances of the case, the Tribunal was right in holding that the said expenditure was allowable as a proper revenue deduction ?"By order dated February 11, 1966, the Tribunal stated a case to the Calcutta High Court and referred only the following question of law"Whether, on the facts and in the circumstances of the case, the expenditure of Rs. 95, 868 incurred for the purpose of maintaining the goodwill and reputation of the assessee-company was a permissible deduction in computing the assessees profits under section 10(2)(xv) of the Income-tax Act, 1922 ?"2. With regard to the first question the Tribunal said:"The Commissioner of Income-tax requested that question No. 1 as proposed by him in some form should also be referred. Since that question related to the finding of fact by the Tribunal that the expenditure of Rs. 95, 868 was incurred for the purpose of maintaining the goodwill and reputation of the assessee-company no question of law could arise as to whether the finding was supported by any evidence."3. The Commissioner of Income-tax thereupon applied to the High Court under section 66(2) of the Act wherein after referring to the finding of the Income-tax Officer and the Appellate Assistant Commissioner he complained that the conclusion to the contrary of the Tribunal was not supported by any material on the record and its finding was perverse in the sense that no reasonable man could have come to that conclusion. The Commissioners grievance was that on the form of the question drawn up by the Tribunal for the opinion of the High Court, the answer could only be in the affirmative, and against him. He further stated that the question framed did not set out the real point in controversy between the parties, viz., that there was no evidence before the Tribunal to come to the conclusion it did and alternatively on the material on record the conclusion was perverse in the sense that no reasonable man could come to the same findingIt appears to us that the question framed by the Tribunal was suggestive of the answer and the grievance of the Commissioner was not ill-founded. The statement of case by the Tribunal to the High Court was far from complete. In that statement the Tribunal after referring to the facts found by the Income-tax Officer and the Appellate Assistant Commissioner stated that"Since the major item of Rs. 58, 638 pertained to the bills of M/s. Orr Dignam & Co. the Tribunal perused the detailed statements of work done by M/s. Orr Dignam & Co. in connection with straightening out the affairs of the assessee-company. The Tribunal held that the expenditure had been incurred for the purpose of maintaining the goodwill and reputation of the assessee-company and that the expenditure had been wholly and exclusively incurred for this purpose."The above throws no light on the nature of the work done by the named firm of solicitors. An elucidation was necessary to permit the court to take the view that there was evidence to justify the conclusion arrived at by the Tribunal4. The real complaint of the appellant before us is that the statement of facts in the case stated by the Tribunal was not complete and that certain further facts should have been incorporated therein so that the questions of law which the appellant wanted the High Court to adjudicate upon could be properly gone into. Nevertheless, it appears to us that the appellant should have proceeded in the way indicated in N. V. Khandvala v. Commissioner of Income-tax, where Kania J. said"When a statement of case, with the question of law framed by the Tribunal, is filed in court for disposal, it a party is aggrieved and wants to contend that certain further facts ought to be stated, or certain questions of law should be raised, he can make an application by way of notice of motion. That should be heard along with the case stated by the Tribunal for the courts opinion. At that time the court will consider whether the statement of case is complete for the question of law raised by the Tribunal. The court can also consider whether on the case stated by the Tribunal the proper question is raised or not. That is the proper time for an aggrieved party to bring to the notice of the court that certain further and other facts are necessary to be stated or certain further or other questions of law arise and should be brought for decision by the court."The above was approved of by this court in the recent decision of Lakshmirattan Cotton Mills v. Commissioner of Income-tax, where the scope of section 66 of the Income-tax Act of 1922 was considered at some length5. We,
### Response:
1
### Explanation:
Nevertheless, it appears to us that the appellant should have proceeded in the way indicated in N. V. Khandvala v. Commissioner of Income-tax, where Kania J.a statement of case, with the question of law framed by the Tribunal, is filed in court for disposal, it a party is aggrieved and wants to contend that certain further facts ought to be stated, or certain questions of law should be raised, he can make an application by way of notice of motion. That should be heard along with the case stated by the Tribunal for the courts opinion. At that time the court will consider whether the statement of case is complete for the question of law raised by the Tribunal. The court can also consider whether on the case stated by the Tribunal the proper question is raised or not. That is the proper time for an aggrieved party to bring to the notice of the court that certain further and other facts are necessary to be stated or certain further or other questions of law arise and should be brought for decision by theabove was approved of by this court in the recent decision of Lakshmirattan Cotton Mills v. Commissioner of Income-tax, where the scope of section 66 of the Income-tax Act of 1922 was considered at some length
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ABHIMANYU PARTAP SINGH Vs. NAMITA SEKHON & ANOTHER | frustration, mental agony in life etc. 17. On perusal of the record out of the pecuniary heads MACT has not awarded any amount in future loss of earning even having 100% permanent disability while the High Court granted Rs.6,00,000/- only for 10 years because the appellant is now practicing as an advocate in the Court accepting his earning Rs.60,000/- per annum. From the pleadings and evidence brought, it is clear that the father of the appellant was a Professor and the mother was an IAS officer. The claimant has been nurtured and brought up in a status enjoyed by his parents. He was planning to become an Executive or IAS officer. On account of the injuries in temporal region and the permanent disability suffered, he was unable to do his studies as expected or planned. After sincere efforts he could have passed the LL. B and started the advocate profession. A judicial notice can be taken of the fact that for a proficient advocate the person must be physically fit as he is required to move frequently to attend the professional work reaching from one Court to other, and for movements to complete other professional commitments. Looking to the nature of injuries and the permanent disablement which the claimant has suffered, i.e., lower limb is completely paralyzed while his upper limb is partially paralyzed having 100% permanent disability resulting in bodily movements being hampered. The capacity of the claimant being an advocate cannot be equated with other practicing advocate having no deformity in the same profession. The claimant is required to make extraordinary efforts to attend the proceedings in the Court and to come up to the expectations of the client. The disablement suffered to the claimant is for whole life and in the said fact, in our considered view, the future loss of earning calculated by the High Court only for 10 years is not justified. If we accept the future loss of earning Rs.5,000/- per month as decided by the High Court which annually comes to Rs.60,000/- and apply the multiplier of 18 as applicable looking to the age, then the sum comes to Rs.10,80,000/-, in the said head. 18. In the head of medical expenses, the MACT or the High Court has not awarded any compensation presumably because the mother of the claimant who was minor at the time of accident may have claimed the amount of medical expenses being an IAS officer. But now the claimant has become major, and looking to the nature of injuries, future medical expenses that includes the attendant charges, use of diapers due to loss of urination senses is required to be calculated including future medical expenses. The Tribunal awarded Rs.1,92,000/- in the head of attendant charges @ 1,000/- per month. While the High Court proceeded on the premises that the rate of the attendant charges is variable after every five years, however, the Courtcalculated the amount @ Rs.2,000/- thereafter @ Rs.4,000/- per month for a period of 20 years and accordingly determined Rs.9,00,000/- making enhancement of Rs.7,08,000/- in the said head. As discussed, if we apply the multiplier method and in view of the judgment of Kajal (supra), we accept the rate of attendant charges Rs.5000/- per month for 12 hours, looking to the nature of injuries and disability the claimant is required two attendants at least within 24 hours then the expenses in the head of attendant charges comes to Rs.10,000/- per month. If we apply the multiplier of 18, the amount comes to Rs.21,60,000/-. 19. Similarly for medical expenses in the head of physiotherapy required to the claimant, the Tribunal awarded Rs.2,88,000/- @ Rs.50 per day. The High Court granted lumpsum amount of Rs.8,00,000/- including the expenses for diapers. In our considered opinion, the said amount is not adequate. In these days the physiotherapist would charge at least Rs.150/- per day to treat the patient for one hour which monthly comes to Rs.4,500/- and annually 54,000/-, applying the multiplier of 18, the amount in the head of physiotherapy charges comes to Rs.9,72,000/-. For the purpose of use of diapers, regular medical check-up and medical expenses if we further add Rs.2,00,000/- then in the head of future medical expenses the amount comes to Rs.11,72,000/-. 20. Under the head of transportation, the MACT awarded only Rs.15,000/- for the visit Delhi to Chandigarh which is enhanced by the High Court to the tune of Rs.50,000/-. The High Court further awarded Rs.1,00,000/- in the head of motorized wheel chair. In our opinion, during the life span grant of amount for motorized vehicle only for once is not just. Similarly, in the head of transportation in future, therefore, we enhance the said amount in lumpsum to Rs.2,50,000/- in place of Rs.1,00,000/- + Rs.50,000/- as awarded by the High Court. 21. Under the head non-pecuniary damages, the claimant has faced the pain, suffering and trauma as a consequence of injuries. It is to observe that to award compensation under the head pain, shock and suffering, multiple factors are required to be considered from the date of accident, which include the prolonged hospitalization and regular medical assistance, nature of the injuries sustained, the operations underwent and the consequent pain, discomfort and suffering. Simultaneously, he has to suffer post-accident agony for whole life, including the amenities of life, which he can enjoy as a normal man but unable to do so on account of permanent disability. In the era of competition, he can perform better as a normal man but is unable to compete with others. Therefore, under the head pain, shock and suffering, amount of compensation deserves to be granted. 22. The MACT awarded Rs.4,00,000/- in the head of loss of expectation of life, loss of marital bliss, total loss of enjoyment of life and amenities of life, permanent disability, pain and sufferings while the High Court granted the same amount bifurcating it in the head of loss of amenities in life and marital bliss to Rs.3,00,000/- while special diet Rs.1,00,000/- making the total Rs.4,00,000/-. | 1[ds]9. After hearing learned counsel for the parties and looking to the findings recorded by the MACT and High Court, it cannot be doubted that the claimant has suffered 100% permanent disability in a road accident and the liability is joint and several. For the purpose of understanding the nature of injuries and its extent, the statement of PW1-Dr. Sunil Katoch, Consultant, Indian Spinal Injuries Centre, New Delhi is relevant. As per his testimony, the claimant suffered the spinal injury at level C-7, C-8 with complete bowel and bladder paralysis and is unable to use his upper limbs (hands) with full strength. MRI suggests extensive myelomalacia of spinal cord from C-7 to D-4 level, to which optimize domiciliary care is required. Further, regular and every year check-up is also required to him. Due to spinal injury, he has suffered complete paralysis of both lower limbs and partial involvement of hands along with bowel and bladder. In consequence, he may suffer urinary complications throughout his life to which adequate medical attention is required. He cannot pursue a regular carrier having embarrassing situation. The percentage of permanent disability is 100%. With the said medical opinion and the findings, the issue of adequacy and to grant the just and reasonable amount of compensation requires consideration.10. It is not out of place to state, by making the payment of compensation for damages would not revive the claimant into his original position. The compensation towards wrongful act in terms of money though cannot be decided by the Court but it may be determined as per the recognized principles. In the said context, some of the English judgments are relevant, which may specify why the compensation be paid, what should be the basis for determination and what may be the reason for awarding such compensation, applying the uniform methodology for determination of compensation, comparable to the injuries, thereby a person can lead his life, though his physical frame cannot be reversed.11. In the case of Philipps vs. London & South Western Railway Co. - (1879) LR 5 QBD 78, it was held that by making a payment of compensation for the damages, the Court cannot put back again the claimant into his original position. On the date of determination of the compensation, he is being compensated but he cannot sue again, therefore, the compensation must be full and final while determining the same. In Mediana, In re - 1900 AC 113 (HL), it is said that the determination for an amount of compensation to the damages is an extreme task. What may be adequate amount for a wrongful act and can it be compensated by money, particularly towards pain and suffering. By an arithmetical calculation, it cannot be decided what may be the exact amount of money which would represent the pain and suffering to a person, but as per recognized principles, damages must be paid. In H. West & Son Ltd. vs. Shephard - 1964 AC 326, it was held that payment of compensation in terms of money may be awarded so that something tangible may be procured to replace something else of the like nature which has been destroyed or lost. But money cannot renew a physical frame that has been battered and shattered, however the courts must consider to award sums, which may be a reasonable. Simultaneously, uniformity in the general method of approach is also required. Thereby, possible comparable injuries can be compensated by comparable awards. Lord Denning, while speaking for the Court of Appeal in Ward vs. James - (1966) 1 QB 273 has specified three basic principles i.e. accessibility, uniformity and predictability to be followed in the like cases.12. In the perspective of Indian law, in the case of R.D. Hattangadi vs. Pest Control (India) (P) Ltd. - (1995) 1 SCC 551, this Court has specified that while determining the compensation for physical injuries, the heads on which the amount of compensation is to be determined, may be of two types, one is of pecuniary damages and another is of non- pecuniary damages. Pecuniary damages include the loss of earning, medical attendance, transport charges and other material loss. The non-pecuniary damages include the expenses for mental and physical shock, pain and suffering already suffered or likely to be suffered in the future, loss of amenities of life, loss of expectation of life, inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life which has been followed in the case of Raj Kumar vs. Ajay Kumar and another - (2011) 1 SCC 343 .13. In the case of Kajal (supra), this Court in case of permanent disability, to decide the just compensation, the principles have been summarized, whereby the compensation may be awarded in the heads of loss of earning, medical expenses, transportation, special diet, attendant charges, loss or diminution to the pleasures of life by loss of a particular part of the body and loss of future earning capacity, damages, pecuniary as well as non-pecuniary have to be assessed while it is impossible to equate human sufferings and personal deprivation with money. This Court said attendant charges @ Rs.2,500/- p.m. awarded by the High Court is inadequate, however enhanced to Rs. 5,000/- with two attendants, total Rs.10,000/- p.m. for whole life and calculated the compensation applying the multiplier of 18. The Court further said compensation may also be awarded for non-pecuniary damages including pain, suffering, loss of amenities, loss of marriage prospects. Therefore, the compensation on account of injuries, causing 100% disability, looking to the facts of the case at hand, is required to be determined, applying the ratio of the said judgment.14. The High Court in the impugned order observed that the claimant has now started practice as an advocate, therefore, future loss of earning has been calculated only for 10 years, applying the multiplier of 16, without looking to the facts that claimant cannot perform the work of advocacy similar to the other advocates by attending the cases in different Courts. The attendant charges have been allowed only for 20 years with one attendant. In fact, not only for determination of future loss of earning but for attendant charges also the multiplier method should be followed. The multiplier method has been recognized as most realistic and reasonable because it has been decided looking to the age, inflation rate, uncertainty of life and other realistic needs. Thus, for determination of just compensation to ensure justice with the family of deceased or the injured as the case may be the compensation can be determined applying said method. Therefore, in our view the Tribunal while granting the compensation of future loss as well as earning only for 10 years and attendant charges only for 20 years was not justified. In fact, the said amount should be determined applying the multiplier method.15. It is also relevant to observe that in the judgment of Sarla Verma (Smt.) & Others vs. Delhi Transport Corporation and Another - (2009) 6 SCC 121 and National Insurance Company Limited vs. Pranay Sethi & Others - (2017) 16 SCC 680, while replacing the schedule of Motor Vehicle Act, it is not made clear what multiplier would be applicable below the age of 15. In the case of Kajal (supra), the injured was 12 years of the age, however, the multiplier of 18 has been applied. Therefore, taking guidance from the judgment of Kajal (supra), for determination of the compensation in the present case, the multiplier of 18 shall be applicable.16. In view of the said legal position, the compensation can be assessed in pecuniary heads i.e. the loss of future earning, medical expenses including future medical expenses, attendant charges and also in the head of transportation including future transportation. In the non-pecuniary heads, the compensation can be computed for the mental and physical pain and sufferings present and in future, loss of amenities of life including loss of marital bliss, loss of expectancy in life, inconvenience, hardship, discomfort, disappointment, frustration, mental agony in life etc.17. On perusal of the record out of the pecuniary heads MACT has not awarded any amount in future loss of earning even having 100% permanent disability while the High Court granted Rs.6,00,000/- only for 10 years because the appellant is now practicing as an advocate in the Court accepting his earning Rs.60,000/- per annum. From the pleadings and evidence brought, it is clear that the father of the appellant was a Professor and the mother was an IAS officer. The claimant has been nurtured and brought up in a status enjoyed by his parents. He was planning to become an Executive or IAS officer. On account of the injuries in temporal region and the permanent disability suffered, he was unable to do his studies as expected or planned. After sincere efforts he could have passed the LL. B and started the advocate profession. A judicial notice can be taken of the fact that for a proficient advocate the person must be physically fit as he is required to move frequently to attend the professional work reaching from one Court to other, and for movements to complete other professional commitments. Looking to the nature of injuries and the permanent disablement which the claimant has suffered, i.e., lower limb is completely paralyzed while his upper limb is partially paralyzed having 100% permanent disability resulting in bodily movements being hampered. The capacity of the claimant being an advocate cannot be equated with other practicing advocate having no deformity in the same profession. The claimant is required to make extraordinary efforts to attend the proceedings in the Court and to come up to the expectations of the client. The disablement suffered to the claimant is for whole life and in the said fact, in our considered view, the future loss of earning calculated by the High Court only for 10 years is not justified. If we accept the future loss of earning Rs.5,000/- per month as decided by the High Court which annually comes to Rs.60,000/- and apply the multiplier of 18 as applicable looking to the age, then the sum comes to Rs.10,80,000/-, in the said head.18. In the head of medical expenses, the MACT or the High Court has not awarded any compensation presumably because the mother of the claimant who was minor at the time of accident may have claimed the amount of medical expenses being an IAS officer. But now the claimant has become major, and looking to the nature of injuries, future medical expenses that includes the attendant charges, use of diapers due to loss of urination senses is required to be calculated including future medical expenses. The Tribunal awarded Rs.1,92,000/- in the head of attendant charges @ 1,000/- per month. While the High Court proceeded on the premises that the rate of the attendant charges is variable after every five years, however, the Courtcalculated the amount @ Rs.2,000/- thereafter @ Rs.4,000/- per month for a period of 20 years and accordingly determined Rs.9,00,000/- making enhancement of Rs.7,08,000/- in the said head. As discussed, if we apply the multiplier method and in view of the judgment of Kajal (supra), we accept the rate of attendant charges Rs.5000/- per month for 12 hours, looking to the nature of injuries and disability the claimant is required two attendants at least within 24 hours then the expenses in the head of attendant charges comes to Rs.10,000/- per month. If we apply the multiplier of 18, the amount comes to Rs.21,60,000/-.19. Similarly for medical expenses in the head of physiotherapy required to the claimant, the Tribunal awarded Rs.2,88,000/- @ Rs.50 per day. The High Court granted lumpsum amount of Rs.8,00,000/- including the expenses for diapers. In our considered opinion, the said amount is not adequate. In these days the physiotherapist would charge at least Rs.150/- per day to treat the patient for one hour which monthly comes to Rs.4,500/- and annually 54,000/-, applying the multiplier of 18, the amount in the head of physiotherapy charges comes to Rs.9,72,000/-. For the purpose of use of diapers, regular medical check-up and medical expenses if we further add Rs.2,00,000/- then in the head of future medical expenses the amount comes to Rs.11,72,000/-.20. Under the head of transportation, the MACT awarded only Rs.15,000/- for the visit Delhi to Chandigarh which is enhanced by the High Court to the tune of Rs.50,000/-. The High Court further awarded Rs.1,00,000/- in the head of motorized wheel chair. In our opinion, during the life span grant of amount for motorized vehicle only for once is not just. Similarly, in the head of transportation in future, therefore, we enhance the said amount in lumpsum to Rs.2,50,000/- in place of Rs.1,00,000/- + Rs.50,000/- as awarded by the High Court.21. Under the head non-pecuniary damages, the claimant has faced the pain, suffering and trauma as a consequence of injuries. It is to observe that to award compensation under the head pain, shock and suffering, multiple factors are required to be considered from the date of accident, which include the prolonged hospitalization and regular medical assistance, nature of the injuries sustained, the operations underwent and the consequent pain, discomfort and suffering. Simultaneously, he has to suffer post-accident agony for whole life, including the amenities of life, which he can enjoy as a normal man but unable to do so on account of permanent disability. In the era of competition, he can perform better as a normal man but is unable to compete with others. Therefore, under the head pain, shock and suffering, amount of compensation deserves to be granted.22. The MACT awarded Rs.4,00,000/- in the head of loss of expectation of life, loss of marital bliss, total loss of enjoyment of life and amenities of life, permanent disability, pain and sufferings while the High Court granted the same amount bifurcating it in the head of loss of amenities in life and marital bliss to Rs.3,00,000/- while special diet Rs.1,00,000/- making the total Rs.4,00,000/-. | 1 | 3,818 | 2,598 | ### 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:
frustration, mental agony in life etc. 17. On perusal of the record out of the pecuniary heads MACT has not awarded any amount in future loss of earning even having 100% permanent disability while the High Court granted Rs.6,00,000/- only for 10 years because the appellant is now practicing as an advocate in the Court accepting his earning Rs.60,000/- per annum. From the pleadings and evidence brought, it is clear that the father of the appellant was a Professor and the mother was an IAS officer. The claimant has been nurtured and brought up in a status enjoyed by his parents. He was planning to become an Executive or IAS officer. On account of the injuries in temporal region and the permanent disability suffered, he was unable to do his studies as expected or planned. After sincere efforts he could have passed the LL. B and started the advocate profession. A judicial notice can be taken of the fact that for a proficient advocate the person must be physically fit as he is required to move frequently to attend the professional work reaching from one Court to other, and for movements to complete other professional commitments. Looking to the nature of injuries and the permanent disablement which the claimant has suffered, i.e., lower limb is completely paralyzed while his upper limb is partially paralyzed having 100% permanent disability resulting in bodily movements being hampered. The capacity of the claimant being an advocate cannot be equated with other practicing advocate having no deformity in the same profession. The claimant is required to make extraordinary efforts to attend the proceedings in the Court and to come up to the expectations of the client. The disablement suffered to the claimant is for whole life and in the said fact, in our considered view, the future loss of earning calculated by the High Court only for 10 years is not justified. If we accept the future loss of earning Rs.5,000/- per month as decided by the High Court which annually comes to Rs.60,000/- and apply the multiplier of 18 as applicable looking to the age, then the sum comes to Rs.10,80,000/-, in the said head. 18. In the head of medical expenses, the MACT or the High Court has not awarded any compensation presumably because the mother of the claimant who was minor at the time of accident may have claimed the amount of medical expenses being an IAS officer. But now the claimant has become major, and looking to the nature of injuries, future medical expenses that includes the attendant charges, use of diapers due to loss of urination senses is required to be calculated including future medical expenses. The Tribunal awarded Rs.1,92,000/- in the head of attendant charges @ 1,000/- per month. While the High Court proceeded on the premises that the rate of the attendant charges is variable after every five years, however, the Courtcalculated the amount @ Rs.2,000/- thereafter @ Rs.4,000/- per month for a period of 20 years and accordingly determined Rs.9,00,000/- making enhancement of Rs.7,08,000/- in the said head. As discussed, if we apply the multiplier method and in view of the judgment of Kajal (supra), we accept the rate of attendant charges Rs.5000/- per month for 12 hours, looking to the nature of injuries and disability the claimant is required two attendants at least within 24 hours then the expenses in the head of attendant charges comes to Rs.10,000/- per month. If we apply the multiplier of 18, the amount comes to Rs.21,60,000/-. 19. Similarly for medical expenses in the head of physiotherapy required to the claimant, the Tribunal awarded Rs.2,88,000/- @ Rs.50 per day. The High Court granted lumpsum amount of Rs.8,00,000/- including the expenses for diapers. In our considered opinion, the said amount is not adequate. In these days the physiotherapist would charge at least Rs.150/- per day to treat the patient for one hour which monthly comes to Rs.4,500/- and annually 54,000/-, applying the multiplier of 18, the amount in the head of physiotherapy charges comes to Rs.9,72,000/-. For the purpose of use of diapers, regular medical check-up and medical expenses if we further add Rs.2,00,000/- then in the head of future medical expenses the amount comes to Rs.11,72,000/-. 20. Under the head of transportation, the MACT awarded only Rs.15,000/- for the visit Delhi to Chandigarh which is enhanced by the High Court to the tune of Rs.50,000/-. The High Court further awarded Rs.1,00,000/- in the head of motorized wheel chair. In our opinion, during the life span grant of amount for motorized vehicle only for once is not just. Similarly, in the head of transportation in future, therefore, we enhance the said amount in lumpsum to Rs.2,50,000/- in place of Rs.1,00,000/- + Rs.50,000/- as awarded by the High Court. 21. Under the head non-pecuniary damages, the claimant has faced the pain, suffering and trauma as a consequence of injuries. It is to observe that to award compensation under the head pain, shock and suffering, multiple factors are required to be considered from the date of accident, which include the prolonged hospitalization and regular medical assistance, nature of the injuries sustained, the operations underwent and the consequent pain, discomfort and suffering. Simultaneously, he has to suffer post-accident agony for whole life, including the amenities of life, which he can enjoy as a normal man but unable to do so on account of permanent disability. In the era of competition, he can perform better as a normal man but is unable to compete with others. Therefore, under the head pain, shock and suffering, amount of compensation deserves to be granted. 22. The MACT awarded Rs.4,00,000/- in the head of loss of expectation of life, loss of marital bliss, total loss of enjoyment of life and amenities of life, permanent disability, pain and sufferings while the High Court granted the same amount bifurcating it in the head of loss of amenities in life and marital bliss to Rs.3,00,000/- while special diet Rs.1,00,000/- making the total Rs.4,00,000/-.
### Response:
1
### Explanation:
in life, inconvenience, hardship, discomfort, disappointment, frustration, mental agony in life etc.17. On perusal of the record out of the pecuniary heads MACT has not awarded any amount in future loss of earning even having 100% permanent disability while the High Court granted Rs.6,00,000/- only for 10 years because the appellant is now practicing as an advocate in the Court accepting his earning Rs.60,000/- per annum. From the pleadings and evidence brought, it is clear that the father of the appellant was a Professor and the mother was an IAS officer. The claimant has been nurtured and brought up in a status enjoyed by his parents. He was planning to become an Executive or IAS officer. On account of the injuries in temporal region and the permanent disability suffered, he was unable to do his studies as expected or planned. After sincere efforts he could have passed the LL. B and started the advocate profession. A judicial notice can be taken of the fact that for a proficient advocate the person must be physically fit as he is required to move frequently to attend the professional work reaching from one Court to other, and for movements to complete other professional commitments. Looking to the nature of injuries and the permanent disablement which the claimant has suffered, i.e., lower limb is completely paralyzed while his upper limb is partially paralyzed having 100% permanent disability resulting in bodily movements being hampered. The capacity of the claimant being an advocate cannot be equated with other practicing advocate having no deformity in the same profession. The claimant is required to make extraordinary efforts to attend the proceedings in the Court and to come up to the expectations of the client. The disablement suffered to the claimant is for whole life and in the said fact, in our considered view, the future loss of earning calculated by the High Court only for 10 years is not justified. If we accept the future loss of earning Rs.5,000/- per month as decided by the High Court which annually comes to Rs.60,000/- and apply the multiplier of 18 as applicable looking to the age, then the sum comes to Rs.10,80,000/-, in the said head.18. In the head of medical expenses, the MACT or the High Court has not awarded any compensation presumably because the mother of the claimant who was minor at the time of accident may have claimed the amount of medical expenses being an IAS officer. But now the claimant has become major, and looking to the nature of injuries, future medical expenses that includes the attendant charges, use of diapers due to loss of urination senses is required to be calculated including future medical expenses. The Tribunal awarded Rs.1,92,000/- in the head of attendant charges @ 1,000/- per month. While the High Court proceeded on the premises that the rate of the attendant charges is variable after every five years, however, the Courtcalculated the amount @ Rs.2,000/- thereafter @ Rs.4,000/- per month for a period of 20 years and accordingly determined Rs.9,00,000/- making enhancement of Rs.7,08,000/- in the said head. As discussed, if we apply the multiplier method and in view of the judgment of Kajal (supra), we accept the rate of attendant charges Rs.5000/- per month for 12 hours, looking to the nature of injuries and disability the claimant is required two attendants at least within 24 hours then the expenses in the head of attendant charges comes to Rs.10,000/- per month. If we apply the multiplier of 18, the amount comes to Rs.21,60,000/-.19. Similarly for medical expenses in the head of physiotherapy required to the claimant, the Tribunal awarded Rs.2,88,000/- @ Rs.50 per day. The High Court granted lumpsum amount of Rs.8,00,000/- including the expenses for diapers. In our considered opinion, the said amount is not adequate. In these days the physiotherapist would charge at least Rs.150/- per day to treat the patient for one hour which monthly comes to Rs.4,500/- and annually 54,000/-, applying the multiplier of 18, the amount in the head of physiotherapy charges comes to Rs.9,72,000/-. For the purpose of use of diapers, regular medical check-up and medical expenses if we further add Rs.2,00,000/- then in the head of future medical expenses the amount comes to Rs.11,72,000/-.20. Under the head of transportation, the MACT awarded only Rs.15,000/- for the visit Delhi to Chandigarh which is enhanced by the High Court to the tune of Rs.50,000/-. The High Court further awarded Rs.1,00,000/- in the head of motorized wheel chair. In our opinion, during the life span grant of amount for motorized vehicle only for once is not just. Similarly, in the head of transportation in future, therefore, we enhance the said amount in lumpsum to Rs.2,50,000/- in place of Rs.1,00,000/- + Rs.50,000/- as awarded by the High Court.21. Under the head non-pecuniary damages, the claimant has faced the pain, suffering and trauma as a consequence of injuries. It is to observe that to award compensation under the head pain, shock and suffering, multiple factors are required to be considered from the date of accident, which include the prolonged hospitalization and regular medical assistance, nature of the injuries sustained, the operations underwent and the consequent pain, discomfort and suffering. Simultaneously, he has to suffer post-accident agony for whole life, including the amenities of life, which he can enjoy as a normal man but unable to do so on account of permanent disability. In the era of competition, he can perform better as a normal man but is unable to compete with others. Therefore, under the head pain, shock and suffering, amount of compensation deserves to be granted.22. The MACT awarded Rs.4,00,000/- in the head of loss of expectation of life, loss of marital bliss, total loss of enjoyment of life and amenities of life, permanent disability, pain and sufferings while the High Court granted the same amount bifurcating it in the head of loss of amenities in life and marital bliss to Rs.3,00,000/- while special diet Rs.1,00,000/- making the total Rs.4,00,000/-.
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COMMISSIONER OF INCOME-TAX Vs. KTC TYRES (INDIA) LTD | 1. These appeals by special leave are directed against the judgment and order of the High Court of Kerala at Ernakulam dated October 11, 2002, whereby the High Court in exercise of its original jurisdiction passed orders on Report No. 58 in C.P. No. 19 of 1992, Report No. 40 in C.P. No. 2 of 1995 and Report No. 51 in C.P. No. 29 of 19951. It passed directions on the report of the official liquidator to the effect that no income-tax was payable on the sale proceeds of the charged assets of the company until the dues of the secured creditors and workmen were paid in full as envisaged by Section 529A of the Companies Act, 1956. We may refer to the representative facts from the case of M/s. KTC Tyres (India) Ltd. (in liquidation). 2. The company was ordered to be wound up on January 22, 1993. The movable and immovable assets of the company were sold by public auction in May, 1996, for a sum of Rs. 1,78,37,000. The Canara Bank and the IDBI Bank had a charge on the assets. After sale of such assets, the official liquidator settled the dues payable to the secured creditors and workmen which amounted to Rs. 12,57,12,181. The official liquidator filed income-tax returns on behalf of the company till the assessment year 1999-2000. The income-tax return disclosed that till the assessment year 1996-97, the company earned no income and it was only in the year 1996 that on sale of the charged assets, the amount of Rs. 12,57,12,181 was received. The official liquidator submitted his report to the court and prayed for a direction that the tax liability should be discharged only after fully satisfying the claims of the secured creditors and workmen as provided Under Section 529A of the Companies Act. The said contention has been upheld by the High Court. Section 529A provides as follows: 529A. Overriding preferential payment.-- (1) Notwithstanding anything contained in any other provision of this Act or any other law for the time being in force, in the winding up of a company-- (a) workmens dues; and (b) debts due to secured creditors to the extent such debts rank Under Clause (c) of the proviso to Sub-section (1) of Section 529 pari passu with such dues, shall be paid in priority to all other debts. (2) The debts payable Under Clause (a) and Clause (b) of Sub-section (1) shall be paid in full, unless the assets are insufficient to meet them, in which case they shall abate in equal proportions. 3. The language of the section is clear and unambiguous and having regard to the clear language employed by the Legislature, there can be no doubt that notwithstanding any other provision in the Companies Act or any other law for the time being in force, in the winding up of a company, the workmens dues and debts due to the secured creditors to the extent such debts rank Under Clause (c) of the proviso to Sub-section (1) of Section 529 pari passu with such debts, shall be paid in priority to all other debts. There is no dispute that the debts due to the secured creditors are those described Under Section 529A (1)(b). 4. Having regard to the clear language of the section, Mr. Rajeev Dutta, learned senior Counsel appearing on behalf of the Union of India, submitted that the capital gains tax which was payable by the company to the Union of India must be treated as liquidation expenses and, therefore, must be paid first, even before the dues of the workmen and secured creditors are discharged. The submission must be rejected in view of the provisions of Section 530 of the Companies Act which puts the matter beyond controversy. Section 530 of the Companies Act in clear terms provides that in a winding up, in priority to all other debts all revenues, taxes, cesses, etc., shall be paid but this is made expressly subject to the provisions of Section 529A. The Act, therefore, does not treat the revenue taxes as liquidation expenses. Reading Sections 529A and 530 together, there is no escape from the conclusion that the liability towards workmens dues and debts due to secured creditors as provided Under Clause (b) of Section 529A (1), has to be paid in priority to all other debts, including tax dues to the Revenue. In view of the clear language of Sections 529A and 530, there is no escape from this conclusion, and we must, therefore, hold that the High Court was right in its decision. | 0[ds]3. The language of the section is clear and unambiguous and having regard to the clear language employed by the Legislature, there can be no doubt that notwithstanding any other provision in the Companies Act or any other law for the time being in force, in the winding up of a company, the workmens dues and debts due to the secured creditors to the extent such debts rank Under Clause (c) of the proviso to Sub-section (1) of Section 529 pari passu with such debts, shall be paid in priority to all other debts. There is no dispute that the debts due to the secured creditors are those described Under Section 529A (1)(b).The submission must be rejected in view of the provisions of Section 530 of the Companies Act which puts the matter beyond controversy. Section 530 of the Companies Act in clear terms provides that in a winding up, in priority to all other debts all revenues, taxes, cesses, etc., shall be paid but this is made expressly subject to the provisions of Section 529A. The Act, therefore, does not treat the revenue taxes as liquidation expenses. Reading Sections 529A and 530 together, there is no escape from the conclusion that the liability towards workmens dues and debts due to secured creditors as provided Under Clause (b) of Section 529A (1), has to be paid in priority to all other debts, including tax dues to the Revenue. In view of the clear language of Sections 529A and 530, there is no escape from this conclusion, and we must, therefore, hold that the High Court was right in its decision. | 0 | 878 | 313 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
1. These appeals by special leave are directed against the judgment and order of the High Court of Kerala at Ernakulam dated October 11, 2002, whereby the High Court in exercise of its original jurisdiction passed orders on Report No. 58 in C.P. No. 19 of 1992, Report No. 40 in C.P. No. 2 of 1995 and Report No. 51 in C.P. No. 29 of 19951. It passed directions on the report of the official liquidator to the effect that no income-tax was payable on the sale proceeds of the charged assets of the company until the dues of the secured creditors and workmen were paid in full as envisaged by Section 529A of the Companies Act, 1956. We may refer to the representative facts from the case of M/s. KTC Tyres (India) Ltd. (in liquidation). 2. The company was ordered to be wound up on January 22, 1993. The movable and immovable assets of the company were sold by public auction in May, 1996, for a sum of Rs. 1,78,37,000. The Canara Bank and the IDBI Bank had a charge on the assets. After sale of such assets, the official liquidator settled the dues payable to the secured creditors and workmen which amounted to Rs. 12,57,12,181. The official liquidator filed income-tax returns on behalf of the company till the assessment year 1999-2000. The income-tax return disclosed that till the assessment year 1996-97, the company earned no income and it was only in the year 1996 that on sale of the charged assets, the amount of Rs. 12,57,12,181 was received. The official liquidator submitted his report to the court and prayed for a direction that the tax liability should be discharged only after fully satisfying the claims of the secured creditors and workmen as provided Under Section 529A of the Companies Act. The said contention has been upheld by the High Court. Section 529A provides as follows: 529A. Overriding preferential payment.-- (1) Notwithstanding anything contained in any other provision of this Act or any other law for the time being in force, in the winding up of a company-- (a) workmens dues; and (b) debts due to secured creditors to the extent such debts rank Under Clause (c) of the proviso to Sub-section (1) of Section 529 pari passu with such dues, shall be paid in priority to all other debts. (2) The debts payable Under Clause (a) and Clause (b) of Sub-section (1) shall be paid in full, unless the assets are insufficient to meet them, in which case they shall abate in equal proportions. 3. The language of the section is clear and unambiguous and having regard to the clear language employed by the Legislature, there can be no doubt that notwithstanding any other provision in the Companies Act or any other law for the time being in force, in the winding up of a company, the workmens dues and debts due to the secured creditors to the extent such debts rank Under Clause (c) of the proviso to Sub-section (1) of Section 529 pari passu with such debts, shall be paid in priority to all other debts. There is no dispute that the debts due to the secured creditors are those described Under Section 529A (1)(b). 4. Having regard to the clear language of the section, Mr. Rajeev Dutta, learned senior Counsel appearing on behalf of the Union of India, submitted that the capital gains tax which was payable by the company to the Union of India must be treated as liquidation expenses and, therefore, must be paid first, even before the dues of the workmen and secured creditors are discharged. The submission must be rejected in view of the provisions of Section 530 of the Companies Act which puts the matter beyond controversy. Section 530 of the Companies Act in clear terms provides that in a winding up, in priority to all other debts all revenues, taxes, cesses, etc., shall be paid but this is made expressly subject to the provisions of Section 529A. The Act, therefore, does not treat the revenue taxes as liquidation expenses. Reading Sections 529A and 530 together, there is no escape from the conclusion that the liability towards workmens dues and debts due to secured creditors as provided Under Clause (b) of Section 529A (1), has to be paid in priority to all other debts, including tax dues to the Revenue. In view of the clear language of Sections 529A and 530, there is no escape from this conclusion, and we must, therefore, hold that the High Court was right in its decision.
### Response:
0
### Explanation:
3. The language of the section is clear and unambiguous and having regard to the clear language employed by the Legislature, there can be no doubt that notwithstanding any other provision in the Companies Act or any other law for the time being in force, in the winding up of a company, the workmens dues and debts due to the secured creditors to the extent such debts rank Under Clause (c) of the proviso to Sub-section (1) of Section 529 pari passu with such debts, shall be paid in priority to all other debts. There is no dispute that the debts due to the secured creditors are those described Under Section 529A (1)(b).The submission must be rejected in view of the provisions of Section 530 of the Companies Act which puts the matter beyond controversy. Section 530 of the Companies Act in clear terms provides that in a winding up, in priority to all other debts all revenues, taxes, cesses, etc., shall be paid but this is made expressly subject to the provisions of Section 529A. The Act, therefore, does not treat the revenue taxes as liquidation expenses. Reading Sections 529A and 530 together, there is no escape from the conclusion that the liability towards workmens dues and debts due to secured creditors as provided Under Clause (b) of Section 529A (1), has to be paid in priority to all other debts, including tax dues to the Revenue. In view of the clear language of Sections 529A and 530, there is no escape from this conclusion, and we must, therefore, hold that the High Court was right in its decision.
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Commissioner Of Income-Tax,West Bengal Vs. Calcutta Agency Ltd | final statement of facts. Surprisingly, we find that the High Court, in its judgment, has taken the argument of Mr. Mitra as if they were facts and have based their conclusion solely on that argument. Nowhere in the statement of the case prepared by the Tribunal and filed in the High Court, the Tribunal had come to the conclusion that the payment was made by the assessee company to avoid any danger of public exposure or to save itself from scandal or in order to maintain the managing agency of the appellant company. The whole conclusion of the High Court is based on the unwarranted assumption of facts which are taken only from the argument of counsel for the present respondents before the High Court. The danger of failing to recognise that the justification of the High Court in these matters is only advisory and the conclusions of the Tribunal on facts are the conclusions on which the High Court is to exercise such advisory jurisdiction is illustrated by this case. It seems that unfortunately counsel for the respondents caught hold of Mitchells case, and basing his argument on the Circumstances under which a payment could be described as a business expenditure failing within the terms of S. 10 (2) (xv), argued that the facts in the present case were the same. Instead of first ascertaining what were the facts found by the Tribunal in the present case, the process was reversed and the procedure adopted was to take Mitchells case, as the law and argue that the facts in the present case covered the situation. In our opinion this is an entirely wrong approach and should not have been permitted by the High Court. The High Court fell into a grave error in omitting first to ascertain what were the facts found in the case stated by the Tribunal. The High Court overlooked that in Mitchells case, the whole discussion started with a quotation from the case stated by the Commissioners as the facts of the case.6. A scrutiny of the record in the present case shows that before the Income-tax Officer the assessees claimed only a deduction of the interest of Rs. 5,582.00 us a permissible deduction under S.10 (2) (iii), Income-tax Act. That claim was rejected by the Income-tax Act. Officer. When the matter went to the Assistant Income-tax Commissioner it was argued that the Income-tax Officer was in error in not allowing the deduction of interest and was also wrong in not allowing the entire sum of Rs. 22,500.00 as a deduction on the ground that that portion of the income (viz. Rs. 22,500.00) should be treated as not earned or deemed to be earned by the assessees at all, having regard to the decision of the Privy Council in Bijoy Singh Dudhurias case. Paragraph 1 of the order of the Appellate Assistant Commissioner contains the following statement : In disallowing this (interest) claim the Income-tax Officer was following the decision of my predecessor in his order dated 16/3/1942 in App. No. 1.C.11 of 1941-42. My predecessor observed : " Nothing is in evidence to show that the managing agency company had surplus money and such money was invested or that there was any need to borrow. Thus the need to borrow is not established. There is no doubt that money was borrowed but unless it can be proved that the borrowing is for the purpose of the business and the loan was used in the business, the interest cannot be allowed under S. 10 (2) (iii)." The second objection raised before the Appellate Assistant Commissioner was in these terms :"That the Income-tax Officer should have allowed the said sum of Rs . 22,500 as allowable expenditure being allocation of a sum out of the revenue receipt before it became income in the hands of the assessee."The wording of the objection and the argument noticed in the order of the Appellate Assistant Commissioner show that the contention was that this sum should be treated as not having become the income of the assessee at all because it was deducted at the source by the Mill company. Reliance was placed for this contention on Bijoy Singh Dudhurias case. The Contention was rejected. At the third stage, when the assessee urged his contentious before the Income-tax Appeal Tribunal, he thought of urging as an argument that this was a permissible deduction under S. 10 (2) (xv) because of the principles laid down in Mitchells case. No evidence, it appears, was led before the Income-tax Tribunal, nor has the Tribunal recorded any findings of fact on which the principles laid down in Mitchells case, could be applied. The Tribunals conclusions of facts were only as summarized in the earlier part of the judgment. It is, therefore, clear that the necessary facts required to be established before the principles laid down in Mitchells case, could be applied have not been found as facts in the present case at any stage of the proceedings and the High Court was in error in applying the principles of Mitchells case, on the assumption of facts which were not proved. The High Court was carried away, it seems, by the argument of the counsel and through error accepted the argument as facts. Indeed, if it had noticed the contention urged before the Income-lax Officer it would have seen at once that the argument urged in the High Court was to a certain extent in conflict with the contention that Rs. 1,80,000.00 being a loan on which the assessees had to pay interest, that interest item should be allowed to be deducted under S. 10 (2) (iii), Income-tax Act. In our opinion, therefore, this appeal should be allowed on the simple ground that the facts necessary to he established by the respondents to support their claim for exemption under S. 10 (2) (xv), Income-tax Act, have not been established at any stage of the proceedings and therefore they are not entitled to the deduction claimed. | 1[ds]6. A scrutiny of the record in the present case shows that before the Income-tax Officer the assessees claimed only a deduction of the interest of Rs. 5,582.00 us a permissible deduction under S.10 (2) (iii), Income-tax Act. That claim was rejected by the Income-tax Act. Officer. When the matter went to the Assistant Income-tax Commissioner it was argued that the Income-tax Officer was in error in not allowing the deduction of interest and was also wrong in not allowing the entire sum of Rs. 22,500.00 as a deduction on the ground that that portion of the income (viz. Rs. 22,500.00) should be treated as not earned or deemed to be earned by the assessees at all, having regard to the decision of the Privy Council in Bijoy Singh DudhuriasContention was rejected. At the third stage, when the assessee urged his contentious before the Income-tax Appeal Tribunal, he thought of urging as an argument that this was a permissible deduction under S. 10 (2) (xv) because of the principles laid down in Mitchells case. No evidence, it appears, was led before the Income-tax Tribunal, nor has the Tribunal recorded any findings of fact on which the principles laid down in Mitchells case, could be applied. The Tribunals conclusions of facts were only as summarized in the earlier part of the judgment. It is, therefore, clear that the necessary facts required to be established before the principles laid down in Mitchells case, could be applied have not been found as facts in the present case at any stage of the proceedings and the High Court was in error in applying the principles of Mitchells case, on the assumption of facts which were not proved. The High Court was carried away, it seems, by the argument of the counsel and through error accepted the argument as facts. Indeed, if it had noticed the contention urged before the Income-lax Officer it would have seen at once that the argument urged in the High Court was to a certain extent in conflict with the contention that Rs. 1,80,000.00 being a loan on which the assessees had to pay interest, that interest item should be allowed to be deducted under S. 10 (2) (iii), Income-tax Act. In our opinion, therefore, this appeal should be allowed on the simple ground that the facts necessary to he established by the respondents to support their claim for exemption under S. 10 (2) (xv), Income-tax Act, have not been established at any stage of the proceedings and therefore they are not entitled to the deduction claimed. | 1 | 3,186 | 487 | ### 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:
final statement of facts. Surprisingly, we find that the High Court, in its judgment, has taken the argument of Mr. Mitra as if they were facts and have based their conclusion solely on that argument. Nowhere in the statement of the case prepared by the Tribunal and filed in the High Court, the Tribunal had come to the conclusion that the payment was made by the assessee company to avoid any danger of public exposure or to save itself from scandal or in order to maintain the managing agency of the appellant company. The whole conclusion of the High Court is based on the unwarranted assumption of facts which are taken only from the argument of counsel for the present respondents before the High Court. The danger of failing to recognise that the justification of the High Court in these matters is only advisory and the conclusions of the Tribunal on facts are the conclusions on which the High Court is to exercise such advisory jurisdiction is illustrated by this case. It seems that unfortunately counsel for the respondents caught hold of Mitchells case, and basing his argument on the Circumstances under which a payment could be described as a business expenditure failing within the terms of S. 10 (2) (xv), argued that the facts in the present case were the same. Instead of first ascertaining what were the facts found by the Tribunal in the present case, the process was reversed and the procedure adopted was to take Mitchells case, as the law and argue that the facts in the present case covered the situation. In our opinion this is an entirely wrong approach and should not have been permitted by the High Court. The High Court fell into a grave error in omitting first to ascertain what were the facts found in the case stated by the Tribunal. The High Court overlooked that in Mitchells case, the whole discussion started with a quotation from the case stated by the Commissioners as the facts of the case.6. A scrutiny of the record in the present case shows that before the Income-tax Officer the assessees claimed only a deduction of the interest of Rs. 5,582.00 us a permissible deduction under S.10 (2) (iii), Income-tax Act. That claim was rejected by the Income-tax Act. Officer. When the matter went to the Assistant Income-tax Commissioner it was argued that the Income-tax Officer was in error in not allowing the deduction of interest and was also wrong in not allowing the entire sum of Rs. 22,500.00 as a deduction on the ground that that portion of the income (viz. Rs. 22,500.00) should be treated as not earned or deemed to be earned by the assessees at all, having regard to the decision of the Privy Council in Bijoy Singh Dudhurias case. Paragraph 1 of the order of the Appellate Assistant Commissioner contains the following statement : In disallowing this (interest) claim the Income-tax Officer was following the decision of my predecessor in his order dated 16/3/1942 in App. No. 1.C.11 of 1941-42. My predecessor observed : " Nothing is in evidence to show that the managing agency company had surplus money and such money was invested or that there was any need to borrow. Thus the need to borrow is not established. There is no doubt that money was borrowed but unless it can be proved that the borrowing is for the purpose of the business and the loan was used in the business, the interest cannot be allowed under S. 10 (2) (iii)." The second objection raised before the Appellate Assistant Commissioner was in these terms :"That the Income-tax Officer should have allowed the said sum of Rs . 22,500 as allowable expenditure being allocation of a sum out of the revenue receipt before it became income in the hands of the assessee."The wording of the objection and the argument noticed in the order of the Appellate Assistant Commissioner show that the contention was that this sum should be treated as not having become the income of the assessee at all because it was deducted at the source by the Mill company. Reliance was placed for this contention on Bijoy Singh Dudhurias case. The Contention was rejected. At the third stage, when the assessee urged his contentious before the Income-tax Appeal Tribunal, he thought of urging as an argument that this was a permissible deduction under S. 10 (2) (xv) because of the principles laid down in Mitchells case. No evidence, it appears, was led before the Income-tax Tribunal, nor has the Tribunal recorded any findings of fact on which the principles laid down in Mitchells case, could be applied. The Tribunals conclusions of facts were only as summarized in the earlier part of the judgment. It is, therefore, clear that the necessary facts required to be established before the principles laid down in Mitchells case, could be applied have not been found as facts in the present case at any stage of the proceedings and the High Court was in error in applying the principles of Mitchells case, on the assumption of facts which were not proved. The High Court was carried away, it seems, by the argument of the counsel and through error accepted the argument as facts. Indeed, if it had noticed the contention urged before the Income-lax Officer it would have seen at once that the argument urged in the High Court was to a certain extent in conflict with the contention that Rs. 1,80,000.00 being a loan on which the assessees had to pay interest, that interest item should be allowed to be deducted under S. 10 (2) (iii), Income-tax Act. In our opinion, therefore, this appeal should be allowed on the simple ground that the facts necessary to he established by the respondents to support their claim for exemption under S. 10 (2) (xv), Income-tax Act, have not been established at any stage of the proceedings and therefore they are not entitled to the deduction claimed.
### Response:
1
### Explanation:
6. A scrutiny of the record in the present case shows that before the Income-tax Officer the assessees claimed only a deduction of the interest of Rs. 5,582.00 us a permissible deduction under S.10 (2) (iii), Income-tax Act. That claim was rejected by the Income-tax Act. Officer. When the matter went to the Assistant Income-tax Commissioner it was argued that the Income-tax Officer was in error in not allowing the deduction of interest and was also wrong in not allowing the entire sum of Rs. 22,500.00 as a deduction on the ground that that portion of the income (viz. Rs. 22,500.00) should be treated as not earned or deemed to be earned by the assessees at all, having regard to the decision of the Privy Council in Bijoy Singh DudhuriasContention was rejected. At the third stage, when the assessee urged his contentious before the Income-tax Appeal Tribunal, he thought of urging as an argument that this was a permissible deduction under S. 10 (2) (xv) because of the principles laid down in Mitchells case. No evidence, it appears, was led before the Income-tax Tribunal, nor has the Tribunal recorded any findings of fact on which the principles laid down in Mitchells case, could be applied. The Tribunals conclusions of facts were only as summarized in the earlier part of the judgment. It is, therefore, clear that the necessary facts required to be established before the principles laid down in Mitchells case, could be applied have not been found as facts in the present case at any stage of the proceedings and the High Court was in error in applying the principles of Mitchells case, on the assumption of facts which were not proved. The High Court was carried away, it seems, by the argument of the counsel and through error accepted the argument as facts. Indeed, if it had noticed the contention urged before the Income-lax Officer it would have seen at once that the argument urged in the High Court was to a certain extent in conflict with the contention that Rs. 1,80,000.00 being a loan on which the assessees had to pay interest, that interest item should be allowed to be deducted under S. 10 (2) (iii), Income-tax Act. In our opinion, therefore, this appeal should be allowed on the simple ground that the facts necessary to he established by the respondents to support their claim for exemption under S. 10 (2) (xv), Income-tax Act, have not been established at any stage of the proceedings and therefore they are not entitled to the deduction claimed.
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The Ahmedabad Miscellaneousindustrial Workers' Union Vs. The Ahmedabad Electricity Co. Ltd | approved. In the circumstances it seems to us that it is not open to the appellant to raise the question that the provisions of the Seventh Schedule to the Electricity (Supply) Act should be applied for purposes of calculating depreciation in preference to the income-tax rates in working out the Full Bench formula.5. But, assuming that the question is still open because it was never directly raised in this Court and specifically decided, we are of opinion that the income-tax rules should be applied in working but depreciation under the Full Bench formula in preference to the provisions of the Seventh Schedule to the Electricity (Supply)Act. It was pointed out in Tinnevelly-Tuticorin Electric Supply Co.s case 1960-3 SCR 68 : (AIR 1960 SC 782 ) that the provisions in the Electricity (Supply) Act contained in S. 57 and the Sixth and Seventh Schedules to the Act were for a special purpose, namely to work out the charges to be recovered from consumers for the supply the electricity. It was also observed at the provisions of the Electricity (Supply) Act and its Schedules were meant for operation in the field covered by the Act and that the principles of industrial adjudication were wholly different and had to be worked out in their own way in the industrial field. It seems to us therefore that in working out available surplus according to the Full Bench formula, the same principle with respect to depreciation should be applied in the case of electricity companies as in the case of all other industrial concerns. As the Appellate Tribunal pointed out, the result in the long run would be the same though there might be differences in some years. Besides, in the formula when it was evolved in 1950 (see Mill-Owners Association v. Rashtriya Mill Mazdoor Sangh Bombay 1950-2 Lab LJ 1247 (LATI-Bom) the depreciation intended to be allowed was as provided in the rules under the Income-tax Act. The Appellate Tribunal pointed this out in U. P. Electric Supply Companys case 1955-2 Lab LJ 431 (LATI-Bom) and said that the Full Bench formula allowed depreciation according to the income-tax rates. It seem to us therefore that in the field of industrial relations in connection with which the Full Bench formula was evolved it is proper that the formula should be worked out as it was evolved without injecting into it the provisions contained in the Seventh Schedule to the Electricity (Supply) Act. This will work for uniformity in all industrial concerns; and as pointed out in Associated Cement Companies case 1959 SCR 925 : (AIR 1959 SC 967 ), "the formula had on the whole worked fairly satisfactorily in a large number of industries all over the country, and the claim for bonus should be decided by tribunals on the basis of this formula without attempting to revise it". If the provisions of the Seventh Schedule to the Electricity (Supply) Act which, as we have pointed out, were evolved for a special purpose, were to be injected into this formula, the result would be that electricity companies would stand in a group by themselves when compared with other industrial concerns, and the uniformity that the formula had achieved in the matter of bonus would be destroyed. The consequence then will be that in identical situations electricity companies may have to pay bonus while other industrial concerns to which income-tax rates of depreciation would be applied may not have to do so. It seems to us that this is not desirable, particularly when we remember that electricity companies are public utility companies.6. Another reason why we think that the income-tax rates of depreciation should be applied for the purposes of the Full Bench formula in the case of electricity companies, also is that income-tax rates provide for a quicker building up of the depreciation fund. This to our mind is all to the good in the case of public utility companies like those providing electricity so that they may be in a position to have funds at their disposal in case of unforeseen difficulties resulting in the necessity of replacing plant and machinery earlier than what is provided under the Seventh Schedule to the Electricity (Supply) Act.7. There is yet another reason which inclines us to approve the view taken by the Appellate Tribunal in U. P. Electric Supply Companys case 1955-2 Lab LJ 431 (LATIBom. That case settled the law in 1955 and has since been followed throughout the country. We feel that we should not disturb that decision, unless there are good reasons for doing so - and none as been shown. If anything, it appears to us that this is not the time to disturb that decision which has now been followed throughout the country for the last six years, for the whole question of bonus is under reference to a high-powered commission which will go into the matter afresh and will necessarily consider the question of the revision of the Full Bench formula. As this Court pointed out in Associated Cement Companies case 1959 SCR 925 : (AIR 1959 SC 967 ), the problem raised by the question of the revision of the Full Bench formula is of such a character that it could only be considered by a high-powered commission. That is now being done and it seems to us in the circumstances that we should not disturb the decision arrived at by the Appellate Tribunal in U. P. Electric Supply Companys case, 1955-2 Lab LJ 431 (LATI-Bom) on this question.8. It follows therefore that the Industrial Court was right in allowing depreciation in accordance with the rates prescribed under the Rules framed under the Income-tax Act. As we have already pointed out, if that is done, there will de no available surplus in this case, from which bonus could be awarded. In the circumstances we do not think it necessary to decide the other two points relating to the contingencies reserve and income-tax, which were raised before the Industrial Court. | 0[ds]In the circumstances it seems to us that it is not open to the appellant to raise the question that the provisions of the Seventh Schedule to the Electricity (Supply) Act should be applied for purposes of calculating depreciation in preference to the income-tax rates in working out the Full Bench formula.5. But, assuming that the question is still open because it was never directly raised in this Court and specifically decided, we are of opinion that the income-tax rules should be applied in working but depreciation under the Full Bench formula in preference to the provisions of the Seventh Schedule to the Electricity (Supply)Act. It was pointed out in Tinnevelly-Tuticorin Electric Supply Co.s case 1960-3 SCR 68 : (AIR 1960 SC 782 ) that the provisions in the Electricity (Supply) Act contained in S. 57 and the Sixth and Seventh Schedules to the Act were for a special purpose, namely to work out the charges to be recovered from consumers for the supply the electricity. It was also observed at the provisions of the Electricity (Supply) Act and its Schedules were meant for operation in the field covered by the Act and that the principles of industrial adjudication were wholly different and had to be worked out in their own way in the industrial field. It seems to us therefore that in working out available surplus according to the Full Bench formula, the same principle with respect to depreciation should be applied in the case of electricity companies as in the case of all other industrial concerns. As the Appellate Tribunal pointed out, the result in the long run would be the same though there might be differences in some years. Besides, in the formula when it was evolved in 1950 (see Mill-Owners Association v. Rashtriya Mill Mazdoor Sangh Bombay 1950-2 Lab LJ 1247 (LATI-Bom) the depreciation intended to be allowed was as provided in the rules under the Income-tax Act.Another reason why we think that the income-tax rates of depreciation should be applied for the purposes of the Full Bench formula in the case of electricity companies, also is that income-tax rates provide for a quicker building up of the depreciation fund. This to our mind is all to the good in the case of public utility companies like those providing electricity so that they may be in a position to have funds at their disposal in case of unforeseen difficulties resulting in the necessity of replacing plant and machinery earlier than what is provided under the Seventh Schedule to the Electricity (Supply) Act.7. There is yet another reason which inclines us to approve the view taken by the Appellate Tribunal in U. P. Electric Supply Companys case 1955-2 Lab LJ 431 (LATIBom. That case settled the law in 1955 and has since been followed throughout the country. We feel that we should not disturb that decision, unless there are good reasons for doing so - and none as been shown. If anything, it appears to us that this is not the time to disturb that decision which has now been followed throughout the country for the last six years, for the whole question of bonus is under reference to a high-powered commission which will go into the matter afresh and will necessarily consider the question of the revision of the Full Bench formula. As this Court pointed out in Associated Cement Companies case 1959 SCR 925 : (AIR 1959 SC 967 ), the problem raised by the question of the revision of the Full Bench formula is of such a character that it could only be considered by a high-powered commission. That is now being done and it seems to us in the circumstances that we should not disturb the decision arrived at by the Appellate Tribunal in U. P. Electric Supply Companys case, 1955-2 Lab LJ 431 (LATI-Bom) on this question.8. It follows therefore that the Industrial Court was right in allowing depreciation in accordance with the rates prescribed under the Rules framed under the Income-tax Act. As we have already pointed out, if that is done, there will de no available surplus in this case, from which bonus could be awarded. In the circumstances we do not think it necessary to decide the other two points relating to the contingencies reserve and income-tax, which were raised before the Industrial Court. | 0 | 2,102 | 781 | ### 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:
approved. In the circumstances it seems to us that it is not open to the appellant to raise the question that the provisions of the Seventh Schedule to the Electricity (Supply) Act should be applied for purposes of calculating depreciation in preference to the income-tax rates in working out the Full Bench formula.5. But, assuming that the question is still open because it was never directly raised in this Court and specifically decided, we are of opinion that the income-tax rules should be applied in working but depreciation under the Full Bench formula in preference to the provisions of the Seventh Schedule to the Electricity (Supply)Act. It was pointed out in Tinnevelly-Tuticorin Electric Supply Co.s case 1960-3 SCR 68 : (AIR 1960 SC 782 ) that the provisions in the Electricity (Supply) Act contained in S. 57 and the Sixth and Seventh Schedules to the Act were for a special purpose, namely to work out the charges to be recovered from consumers for the supply the electricity. It was also observed at the provisions of the Electricity (Supply) Act and its Schedules were meant for operation in the field covered by the Act and that the principles of industrial adjudication were wholly different and had to be worked out in their own way in the industrial field. It seems to us therefore that in working out available surplus according to the Full Bench formula, the same principle with respect to depreciation should be applied in the case of electricity companies as in the case of all other industrial concerns. As the Appellate Tribunal pointed out, the result in the long run would be the same though there might be differences in some years. Besides, in the formula when it was evolved in 1950 (see Mill-Owners Association v. Rashtriya Mill Mazdoor Sangh Bombay 1950-2 Lab LJ 1247 (LATI-Bom) the depreciation intended to be allowed was as provided in the rules under the Income-tax Act. The Appellate Tribunal pointed this out in U. P. Electric Supply Companys case 1955-2 Lab LJ 431 (LATI-Bom) and said that the Full Bench formula allowed depreciation according to the income-tax rates. It seem to us therefore that in the field of industrial relations in connection with which the Full Bench formula was evolved it is proper that the formula should be worked out as it was evolved without injecting into it the provisions contained in the Seventh Schedule to the Electricity (Supply) Act. This will work for uniformity in all industrial concerns; and as pointed out in Associated Cement Companies case 1959 SCR 925 : (AIR 1959 SC 967 ), "the formula had on the whole worked fairly satisfactorily in a large number of industries all over the country, and the claim for bonus should be decided by tribunals on the basis of this formula without attempting to revise it". If the provisions of the Seventh Schedule to the Electricity (Supply) Act which, as we have pointed out, were evolved for a special purpose, were to be injected into this formula, the result would be that electricity companies would stand in a group by themselves when compared with other industrial concerns, and the uniformity that the formula had achieved in the matter of bonus would be destroyed. The consequence then will be that in identical situations electricity companies may have to pay bonus while other industrial concerns to which income-tax rates of depreciation would be applied may not have to do so. It seems to us that this is not desirable, particularly when we remember that electricity companies are public utility companies.6. Another reason why we think that the income-tax rates of depreciation should be applied for the purposes of the Full Bench formula in the case of electricity companies, also is that income-tax rates provide for a quicker building up of the depreciation fund. This to our mind is all to the good in the case of public utility companies like those providing electricity so that they may be in a position to have funds at their disposal in case of unforeseen difficulties resulting in the necessity of replacing plant and machinery earlier than what is provided under the Seventh Schedule to the Electricity (Supply) Act.7. There is yet another reason which inclines us to approve the view taken by the Appellate Tribunal in U. P. Electric Supply Companys case 1955-2 Lab LJ 431 (LATIBom. That case settled the law in 1955 and has since been followed throughout the country. We feel that we should not disturb that decision, unless there are good reasons for doing so - and none as been shown. If anything, it appears to us that this is not the time to disturb that decision which has now been followed throughout the country for the last six years, for the whole question of bonus is under reference to a high-powered commission which will go into the matter afresh and will necessarily consider the question of the revision of the Full Bench formula. As this Court pointed out in Associated Cement Companies case 1959 SCR 925 : (AIR 1959 SC 967 ), the problem raised by the question of the revision of the Full Bench formula is of such a character that it could only be considered by a high-powered commission. That is now being done and it seems to us in the circumstances that we should not disturb the decision arrived at by the Appellate Tribunal in U. P. Electric Supply Companys case, 1955-2 Lab LJ 431 (LATI-Bom) on this question.8. It follows therefore that the Industrial Court was right in allowing depreciation in accordance with the rates prescribed under the Rules framed under the Income-tax Act. As we have already pointed out, if that is done, there will de no available surplus in this case, from which bonus could be awarded. In the circumstances we do not think it necessary to decide the other two points relating to the contingencies reserve and income-tax, which were raised before the Industrial Court.
### Response:
0
### Explanation:
In the circumstances it seems to us that it is not open to the appellant to raise the question that the provisions of the Seventh Schedule to the Electricity (Supply) Act should be applied for purposes of calculating depreciation in preference to the income-tax rates in working out the Full Bench formula.5. But, assuming that the question is still open because it was never directly raised in this Court and specifically decided, we are of opinion that the income-tax rules should be applied in working but depreciation under the Full Bench formula in preference to the provisions of the Seventh Schedule to the Electricity (Supply)Act. It was pointed out in Tinnevelly-Tuticorin Electric Supply Co.s case 1960-3 SCR 68 : (AIR 1960 SC 782 ) that the provisions in the Electricity (Supply) Act contained in S. 57 and the Sixth and Seventh Schedules to the Act were for a special purpose, namely to work out the charges to be recovered from consumers for the supply the electricity. It was also observed at the provisions of the Electricity (Supply) Act and its Schedules were meant for operation in the field covered by the Act and that the principles of industrial adjudication were wholly different and had to be worked out in their own way in the industrial field. It seems to us therefore that in working out available surplus according to the Full Bench formula, the same principle with respect to depreciation should be applied in the case of electricity companies as in the case of all other industrial concerns. As the Appellate Tribunal pointed out, the result in the long run would be the same though there might be differences in some years. Besides, in the formula when it was evolved in 1950 (see Mill-Owners Association v. Rashtriya Mill Mazdoor Sangh Bombay 1950-2 Lab LJ 1247 (LATI-Bom) the depreciation intended to be allowed was as provided in the rules under the Income-tax Act.Another reason why we think that the income-tax rates of depreciation should be applied for the purposes of the Full Bench formula in the case of electricity companies, also is that income-tax rates provide for a quicker building up of the depreciation fund. This to our mind is all to the good in the case of public utility companies like those providing electricity so that they may be in a position to have funds at their disposal in case of unforeseen difficulties resulting in the necessity of replacing plant and machinery earlier than what is provided under the Seventh Schedule to the Electricity (Supply) Act.7. There is yet another reason which inclines us to approve the view taken by the Appellate Tribunal in U. P. Electric Supply Companys case 1955-2 Lab LJ 431 (LATIBom. That case settled the law in 1955 and has since been followed throughout the country. We feel that we should not disturb that decision, unless there are good reasons for doing so - and none as been shown. If anything, it appears to us that this is not the time to disturb that decision which has now been followed throughout the country for the last six years, for the whole question of bonus is under reference to a high-powered commission which will go into the matter afresh and will necessarily consider the question of the revision of the Full Bench formula. As this Court pointed out in Associated Cement Companies case 1959 SCR 925 : (AIR 1959 SC 967 ), the problem raised by the question of the revision of the Full Bench formula is of such a character that it could only be considered by a high-powered commission. That is now being done and it seems to us in the circumstances that we should not disturb the decision arrived at by the Appellate Tribunal in U. P. Electric Supply Companys case, 1955-2 Lab LJ 431 (LATI-Bom) on this question.8. It follows therefore that the Industrial Court was right in allowing depreciation in accordance with the rates prescribed under the Rules framed under the Income-tax Act. As we have already pointed out, if that is done, there will de no available surplus in this case, from which bonus could be awarded. In the circumstances we do not think it necessary to decide the other two points relating to the contingencies reserve and income-tax, which were raised before the Industrial Court.
|
The Commissioner Of Income-Tax,Bombay City, Bombay Vs. Nandlal Gandalal | be decided on that narrow issue for reasons, which will presently appear. Section 4A deals with residence of an individual at one end and of a corporation like the company at the other. It also deals with the residence of three entities, viz., Hindu undivided family, firm and association of persons in the remaining part. The tests for these three categories are different. Special tests have been provided for individuals, based on residence for a certain number of days. Two alternative tests have been provided for companies, the first being that the control and management of their affairs must be situated wholly within the taxable territories. Where the control is without, a company can still be taxed if its income within the taxable territories in the year of account (omitting, capital gains) is greater than its income without the taxable territories, with the same omission. The first provision is necessary, because a company can have more than one residence, its residence being where it keeps house and does business.25. The test is reversed for a Hindu undivided family, which is non-resident only if the whole of its control and management is situate without the taxable territories. The residence of the members of the coparcenary is not a relevant factor, but it control and management is exercised by them within the taxable territory, the family as a whole is treated as resident. In Subba Chettiars case, 1950-1 SCR 961 : (AIR 1951 SC 101 ) this Court observed that situated; implies functioning somewhat permanently, though the management and control may be exercised in more than one place. To prove that management and control is within the taxable territories, something more than a casual activity is needed. The same tests also apply to a firm and an association of persons.26. The words control and management have been figuratively described as the head and brain. In the case of an individual, the test is not necessary, because his residence for a certain period is enough, it being clear that within the taxable territories he would necessarily bring his head and brain with him. The head and brain of a company is the Board of Directors, and if the Board of Directors exercises complete local control, then the company is also deemed to be resident. In the case of firms, association of persons and Hindu undivided family, the control and management can be exercised by one or more of the group. So long as this control and management (even partly) is found, and it must be so when some coparceners reside in British India and manage the affair, the family must be treated as resident.27. The necessity for the test is thus obvious. The Income-tax law anticipated that control and management of the affairs of Hindu undivided families, (firms and association of person) might easily be in two or more places, one or more coparceners being within the taxable territories and the other or others, without. To prevent the escape of tax and to get at the income of such families having multiple places of control and management, it was provided that the whole of the control and management must be without the taxable territories to avoid the implication of residence. Otherwise, different coparceners can manage different business in the taxable territories and the family cannot be regarded as resident if the karta lived outside, an anomaly which does not really arise. In the present case, can one say that the control and management was wholly without the taxable territories (then, British India)? If one goes by the cases set up by the assessee, one finds that the claim was that there was a partition in the family and that Nandlal came to Bombay as a separated member. This claim involves the admission that the affairs, such as they were, were not controlled from Wadhwan. Since, however, the case of partition pleaded by the assessee was not accepted, it might be held that the family at Wadhwan was, perhaps, also in control. But it is equally clear that a part of the control of the affairs of the family was done in British India by those coparceners, who became partners in the business and through whom and not directly from Wadhwan the partnership business at Bombay was run to the benefit of the family. Those partners who were also coparceners of the family arranged to start this business at Bombay and stayed on and managed it; they started a fresh business at Banaras, admitted a stranger as partner at the new place and presumably supplied capital from the Bombay firm or from the family coffers. There is no claim at all that they supplied their own separate funds. All those actions were acts of control and management. They were not casual but permanent in character. Thus, the control and management of family affairs vis a vis the partnership was being done by them. The coparceners who Januslike face two ways, cannot shelter behind the law of Partnership, and claim that t heir action had no reference to the affairs of the family, which was at their back. I am not equating the affairs of the partnership with the affairs of the family. But the entire business involved a family undertaking, and those affairs were being managed in British India. This control and management of the business was, in fact, and for purposes of the law of Income-tax, control and management of the affairs of the Hindu undivided family within British India, and the family must, therefore, be regarded as resident in the accounting year within British India.28. In my judgment, the decision of the Bombay High Court, with respect, was erroneous. The answer to the question ought to have been in the affirmative. I would ,therefore, dissolve the answer given by the Bombay High Court, and instead, would answer the question in the affirmative. I would also order that the respondent bear his own costs and pay those of the appellant here and throughout. | 0[ds]7. We must make it clear at the very outset that the first question raised before the Tribunal and decided by it against the assessee does not now fall for consideration. Whatever income Nandlal and Girdharlal received from the two businesses at Bombay and Banaras was income in their hands of the Hindu undivided family. With that income we are not now concerned. We are concerned with the second question, viz., whether the Hindu undivided family of Gandalal was resident in the taxable territories in the relevant year so as to make the sum of Rs. 1,50,000 taxable under S. 4 (!) (b) (iii) of the Act on the basis of such residence. Clearly enough, if the Hindu undivided family of Gandalal was not resident in the taxable territories in the relevant year, the sum of Rs. 1,50,000 would not be taxable under S. 4 (1) (b) (iii) of the Act. We must, therefore, keep in mind the narrow scope of the acquisition before us, which is whether the Hindu undivided family of Gandalal could be said to be resident in the taxable territories (i.e., British India) in the relevant year under the provisions of S. 4A (b) of the Act, even though the family carried on its own cloth business wholly outside the taxableagree with the High Court that the position would be different if the Hindu undivided family itself carried on the business as its own business. In that case the business would be an affair of the family, because the family would be in control and management of the business. At first sight it may appear paradoxical that the income from the two business at Bombay and Banaras in the hands of Nandlal and Girdharlal should be treated as income of the Hindu undivided family and at the same time it should be held that the two businesses were not the affairs of the Hindu undivided family within the meaning of S. 4A (b) of the Act. There is really no paradox because the place of accrual of income of such family and the place of its residence need not necessarily be the same under the Act. Residence under S. 4A (b) of a Hindu undivided family is determined by the seat of control and management of its affairs, and in the matter of partnership business in British India the Hindu undivided family as such had no connection whatsoever with its control and management. If the seat of control is divided, the family may have more than one place of residence; and unless it is wholly outside the taxable territories, the family will be taken to be resident in such territories for the purposes of the Act. But where as in this case in respect of the partnership business, the family as such has nothing to do with its control and management, we fail to see how the existence of such a partnership will determine residence of the family within the meaning of S. 4A (b).12. Therefore, we are of the opinion that the High Court correctly answered the question. The appeal fails and is dismissed with costs. | 0 | 7,328 | 582 | ### 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:
be decided on that narrow issue for reasons, which will presently appear. Section 4A deals with residence of an individual at one end and of a corporation like the company at the other. It also deals with the residence of three entities, viz., Hindu undivided family, firm and association of persons in the remaining part. The tests for these three categories are different. Special tests have been provided for individuals, based on residence for a certain number of days. Two alternative tests have been provided for companies, the first being that the control and management of their affairs must be situated wholly within the taxable territories. Where the control is without, a company can still be taxed if its income within the taxable territories in the year of account (omitting, capital gains) is greater than its income without the taxable territories, with the same omission. The first provision is necessary, because a company can have more than one residence, its residence being where it keeps house and does business.25. The test is reversed for a Hindu undivided family, which is non-resident only if the whole of its control and management is situate without the taxable territories. The residence of the members of the coparcenary is not a relevant factor, but it control and management is exercised by them within the taxable territory, the family as a whole is treated as resident. In Subba Chettiars case, 1950-1 SCR 961 : (AIR 1951 SC 101 ) this Court observed that situated; implies functioning somewhat permanently, though the management and control may be exercised in more than one place. To prove that management and control is within the taxable territories, something more than a casual activity is needed. The same tests also apply to a firm and an association of persons.26. The words control and management have been figuratively described as the head and brain. In the case of an individual, the test is not necessary, because his residence for a certain period is enough, it being clear that within the taxable territories he would necessarily bring his head and brain with him. The head and brain of a company is the Board of Directors, and if the Board of Directors exercises complete local control, then the company is also deemed to be resident. In the case of firms, association of persons and Hindu undivided family, the control and management can be exercised by one or more of the group. So long as this control and management (even partly) is found, and it must be so when some coparceners reside in British India and manage the affair, the family must be treated as resident.27. The necessity for the test is thus obvious. The Income-tax law anticipated that control and management of the affairs of Hindu undivided families, (firms and association of person) might easily be in two or more places, one or more coparceners being within the taxable territories and the other or others, without. To prevent the escape of tax and to get at the income of such families having multiple places of control and management, it was provided that the whole of the control and management must be without the taxable territories to avoid the implication of residence. Otherwise, different coparceners can manage different business in the taxable territories and the family cannot be regarded as resident if the karta lived outside, an anomaly which does not really arise. In the present case, can one say that the control and management was wholly without the taxable territories (then, British India)? If one goes by the cases set up by the assessee, one finds that the claim was that there was a partition in the family and that Nandlal came to Bombay as a separated member. This claim involves the admission that the affairs, such as they were, were not controlled from Wadhwan. Since, however, the case of partition pleaded by the assessee was not accepted, it might be held that the family at Wadhwan was, perhaps, also in control. But it is equally clear that a part of the control of the affairs of the family was done in British India by those coparceners, who became partners in the business and through whom and not directly from Wadhwan the partnership business at Bombay was run to the benefit of the family. Those partners who were also coparceners of the family arranged to start this business at Bombay and stayed on and managed it; they started a fresh business at Banaras, admitted a stranger as partner at the new place and presumably supplied capital from the Bombay firm or from the family coffers. There is no claim at all that they supplied their own separate funds. All those actions were acts of control and management. They were not casual but permanent in character. Thus, the control and management of family affairs vis a vis the partnership was being done by them. The coparceners who Januslike face two ways, cannot shelter behind the law of Partnership, and claim that t heir action had no reference to the affairs of the family, which was at their back. I am not equating the affairs of the partnership with the affairs of the family. But the entire business involved a family undertaking, and those affairs were being managed in British India. This control and management of the business was, in fact, and for purposes of the law of Income-tax, control and management of the affairs of the Hindu undivided family within British India, and the family must, therefore, be regarded as resident in the accounting year within British India.28. In my judgment, the decision of the Bombay High Court, with respect, was erroneous. The answer to the question ought to have been in the affirmative. I would ,therefore, dissolve the answer given by the Bombay High Court, and instead, would answer the question in the affirmative. I would also order that the respondent bear his own costs and pay those of the appellant here and throughout.
### Response:
0
### Explanation:
7. We must make it clear at the very outset that the first question raised before the Tribunal and decided by it against the assessee does not now fall for consideration. Whatever income Nandlal and Girdharlal received from the two businesses at Bombay and Banaras was income in their hands of the Hindu undivided family. With that income we are not now concerned. We are concerned with the second question, viz., whether the Hindu undivided family of Gandalal was resident in the taxable territories in the relevant year so as to make the sum of Rs. 1,50,000 taxable under S. 4 (!) (b) (iii) of the Act on the basis of such residence. Clearly enough, if the Hindu undivided family of Gandalal was not resident in the taxable territories in the relevant year, the sum of Rs. 1,50,000 would not be taxable under S. 4 (1) (b) (iii) of the Act. We must, therefore, keep in mind the narrow scope of the acquisition before us, which is whether the Hindu undivided family of Gandalal could be said to be resident in the taxable territories (i.e., British India) in the relevant year under the provisions of S. 4A (b) of the Act, even though the family carried on its own cloth business wholly outside the taxableagree with the High Court that the position would be different if the Hindu undivided family itself carried on the business as its own business. In that case the business would be an affair of the family, because the family would be in control and management of the business. At first sight it may appear paradoxical that the income from the two business at Bombay and Banaras in the hands of Nandlal and Girdharlal should be treated as income of the Hindu undivided family and at the same time it should be held that the two businesses were not the affairs of the Hindu undivided family within the meaning of S. 4A (b) of the Act. There is really no paradox because the place of accrual of income of such family and the place of its residence need not necessarily be the same under the Act. Residence under S. 4A (b) of a Hindu undivided family is determined by the seat of control and management of its affairs, and in the matter of partnership business in British India the Hindu undivided family as such had no connection whatsoever with its control and management. If the seat of control is divided, the family may have more than one place of residence; and unless it is wholly outside the taxable territories, the family will be taken to be resident in such territories for the purposes of the Act. But where as in this case in respect of the partnership business, the family as such has nothing to do with its control and management, we fail to see how the existence of such a partnership will determine residence of the family within the meaning of S. 4A (b).12. Therefore, we are of the opinion that the High Court correctly answered the question. The appeal fails and is dismissed with costs.
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STATE OF KARNATAKA Vs. Y. MOIDEEN KUNHI (D) BY LRS. & ORS. | income of such person or family from such source. As we have already referred to, Section 79-B deals with prohibition of holding agricultural land by certain persons beyond a specified limit. Sub- clause (1) (a) provides that no person other than a person cultivating land personally shall be entitled to hold land. The said section further provides:- (b) it shall not be lawful for,- (i) an educational, religious or charitable institution or society or trust, other than an institution or society or trust referred to in sub-section (7) of section 63, capable of holding property; (ii) a company; (iii) an association or other body of individuals not being a joint family, whether incorporated or not; or (iv) a co-operative society other than a co- operative farm, to hold any land. (2) Every such institution, society, trust, company, association, body or co-operative society,— (a) which holds lands on the date of commencement of the Amendment Act and which is disentitled to hold lands under sub-section (1), shall, within ninety days from the said date, furnish to the Tahsildar within whose jurisdiction the greater part of such land is situated a declaration containing the particulars of such land and such other particulars as may prescribed; and (b) which acquires such land after the said date shall also furnish a similar declaration within the prescribed period. (3) The Tahsildar shall, on receipt of the declaration under sub-section (2) and after such enquiry as may be prescribed, send a statement containing the prescribed particulars relating to such land to the Deputy Commissioner who shall, by notification, declare that such land shall vest in the State Government free from all encumbrances and take possession thereof in the prescribed manner. (4) In respect of the land vesting in the State Government under this section an amount as specified in section 72 shall be paid. Explanation.—For purposes of this section it shall be presumed that a land is held by an institution, trust, company, association or body where it is held by an individual on its behalf. x x x x x 104. Plantations.— The provisions of section 38, section 63 other than sub-section (9) thereof, sections 64, 79-A, 79-B and 80, shall not apply to plantations. Explanation.—In this section Plantation means land used by a person principally for the cultivation of plantation crop and includes,— (i) any land used by such person for any purpose ancillary to the cultivation of such crop or for preparation of the same for the market; and (ii) agricultural land interspersed within the boundaries of the area cultivated with such crop by such person, not exceeding such extent as may be determined by the prescribed authority as necessary for the protection and efficient management of such cultivation. 12. On construction of different provisions of the 1961 Act, we find that in the event the Tribunals finding is correct that the major part of the land which the declarants have claimed to be plantation fits that description, then the prohibition imposed on holding of land by entities referred to in Sub-section 1 of Section 79-B would not apply, having regard to the provisions of Section 104 of the Act. But there is a factor which has not been clarified before us in course of hearing, which in our opinion would have had material impact on the rival claims. As per the deed of sale, the partnership firm had obtained forest area of 3485.83 acres. In the event this area is not held to be under plantation, then the land which has been found by the Tribunal to be beyond ceiling limit would be much beyond than what has been computed. Another issue which also appears to have not had been considered by the Tribunal and also the High Court is that the estate was originally purchased by registered firm. It has not been explained by the declarants as to how the estate of the firm devolved upon its partners. No legal instrument has been brought to our notice through which property of the firm became the partners individual property. This issue is of significance because under Section 79(1)(b)(iii), there is prohibition on an association or other body of individuals not being a joint family, whether incorporated or not in holding land. The latter factor, however, would assume importance in the event the land claimed to be under plantation is found to be incorrect as originally major part of the estate was forest land. But to determine this question, we do not think proper examination of factual situation had been undertaken. On this aspect of the dispute, States plea is that the spot inspection took place in a single day and having regard to the area involved, such an exercise was impossible. If this contention is examined in isolation, we would have had accepted the view of the High Court that at this stage there ought not to be any factual enquiry. But considering the fact that land purchased included large tract of forest land, we are of the view that the scrutiny on the part of the authorities in the case of the declarants land was inadequate. This is one of the main grounds on which the present appeal is founded. There is reference to a Writ Petition in the paper book filed by the original declarants with prayer for felling of trees on the subject-land. The petition was registered as Writ Petition No.42774 of 1982. In that proceeding an interim order was passed permitting felling of trees by the petitioners as per a list subject to the provisions of the Karnataka Preservation of Trees Act, 1976. After obtaining the interim order permitting such felling of trees, however, the writ petition was dismissed as not pressed at the instance of the declarants by an order passed on 7 th November, 1990. The said writ petition was dismissed as withdrawn after obtaining interim order, we do not think that the result of that writ petition would have any bearing on the present appeal. | 1[ds]From the judgment of the Review Court, we find that point was taken by the State that the estate was purchased by a firm but declaration of holding under Section 66 was given by three individuals. But the Review Court did not find any flaw in such exercise being undertaken by the individual declarants. On the other hand, the declaration filed under Section 66 of the 1961 Act was found to be valid for the reason that it was not the firm who had filed the declaration but three persons in their individual capacity12. On construction of different provisions of the 1961 Act, we find that in the event the Tribunals finding is correct that the major part of the land which the declarants have claimed to be plantation fits that description, then the prohibition imposed on holding of land by entities referred to in Sub-section 1 of Section 79-B would not apply, having regard to the provisions of Section 104 of the Act. But there is a factor which has not been clarified before us in course of hearing, which in our opinion would have had material impact on the rival claims. As per the deed of sale, the partnership firm had obtained forest area of 3485.83 acres. In the event this area is not held to be under plantation, then the land which has been found by the Tribunal to be beyond ceiling limit would be much beyond than what has been computed. Another issue which also appears to have not had been considered by the Tribunal and also the High Court is that the estate was originally purchased by registered firm. It has not been explained by the declarants as to how the estate of the firm devolved upon its partners. No legal instrument has been brought to our notice through which property of the firm became the partners individual property. This issue is of significance because under Section 79(1)(b)(iii), there is prohibition on an association or other body of individuals not being a joint family, whether incorporated or not in holding land. The latter factor, however, would assume importance in the event the land claimed to be under plantation is found to be incorrect as originally major part of the estate was forest land. But to determine this question, we do not think proper examination of factual situation had been undertaken. On this aspect of the dispute, States plea is that the spot inspection took place in a single day and having regard to the area involved, such an exercise was impossible. If this contention is examined in isolation, we would have had accepted the view of the High Court that at this stage there ought not to be any factual enquiry. But considering the fact that land purchased included large tract of forest land, we are of the view that the scrutiny on the part of the authorities in the case of the declarants land was inadequate. This is one of the main grounds on which the present appeal is founded. There is reference to a Writ Petition in the paper book filed by the original declarants with prayer for felling of trees on the subject-land. The petition was registered as Writ Petition No.42774 of 1982. In that proceeding an interim order was passed permitting felling of trees by the petitioners as per a list subject to the provisions of the Karnataka Preservation of Trees Act, 1976. After obtaining the interim order permitting such felling of trees, however, the writ petition was dismissed as not pressed at the instance of the declarants by an order passed on 7 th November, 1990. The said writ petition was dismissed as withdrawn after obtaining interim order, we do not think that the result of that writ petition would have any bearing on the present appeal. | 1 | 4,695 | 694 | ### 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:
income of such person or family from such source. As we have already referred to, Section 79-B deals with prohibition of holding agricultural land by certain persons beyond a specified limit. Sub- clause (1) (a) provides that no person other than a person cultivating land personally shall be entitled to hold land. The said section further provides:- (b) it shall not be lawful for,- (i) an educational, religious or charitable institution or society or trust, other than an institution or society or trust referred to in sub-section (7) of section 63, capable of holding property; (ii) a company; (iii) an association or other body of individuals not being a joint family, whether incorporated or not; or (iv) a co-operative society other than a co- operative farm, to hold any land. (2) Every such institution, society, trust, company, association, body or co-operative society,— (a) which holds lands on the date of commencement of the Amendment Act and which is disentitled to hold lands under sub-section (1), shall, within ninety days from the said date, furnish to the Tahsildar within whose jurisdiction the greater part of such land is situated a declaration containing the particulars of such land and such other particulars as may prescribed; and (b) which acquires such land after the said date shall also furnish a similar declaration within the prescribed period. (3) The Tahsildar shall, on receipt of the declaration under sub-section (2) and after such enquiry as may be prescribed, send a statement containing the prescribed particulars relating to such land to the Deputy Commissioner who shall, by notification, declare that such land shall vest in the State Government free from all encumbrances and take possession thereof in the prescribed manner. (4) In respect of the land vesting in the State Government under this section an amount as specified in section 72 shall be paid. Explanation.—For purposes of this section it shall be presumed that a land is held by an institution, trust, company, association or body where it is held by an individual on its behalf. x x x x x 104. Plantations.— The provisions of section 38, section 63 other than sub-section (9) thereof, sections 64, 79-A, 79-B and 80, shall not apply to plantations. Explanation.—In this section Plantation means land used by a person principally for the cultivation of plantation crop and includes,— (i) any land used by such person for any purpose ancillary to the cultivation of such crop or for preparation of the same for the market; and (ii) agricultural land interspersed within the boundaries of the area cultivated with such crop by such person, not exceeding such extent as may be determined by the prescribed authority as necessary for the protection and efficient management of such cultivation. 12. On construction of different provisions of the 1961 Act, we find that in the event the Tribunals finding is correct that the major part of the land which the declarants have claimed to be plantation fits that description, then the prohibition imposed on holding of land by entities referred to in Sub-section 1 of Section 79-B would not apply, having regard to the provisions of Section 104 of the Act. But there is a factor which has not been clarified before us in course of hearing, which in our opinion would have had material impact on the rival claims. As per the deed of sale, the partnership firm had obtained forest area of 3485.83 acres. In the event this area is not held to be under plantation, then the land which has been found by the Tribunal to be beyond ceiling limit would be much beyond than what has been computed. Another issue which also appears to have not had been considered by the Tribunal and also the High Court is that the estate was originally purchased by registered firm. It has not been explained by the declarants as to how the estate of the firm devolved upon its partners. No legal instrument has been brought to our notice through which property of the firm became the partners individual property. This issue is of significance because under Section 79(1)(b)(iii), there is prohibition on an association or other body of individuals not being a joint family, whether incorporated or not in holding land. The latter factor, however, would assume importance in the event the land claimed to be under plantation is found to be incorrect as originally major part of the estate was forest land. But to determine this question, we do not think proper examination of factual situation had been undertaken. On this aspect of the dispute, States plea is that the spot inspection took place in a single day and having regard to the area involved, such an exercise was impossible. If this contention is examined in isolation, we would have had accepted the view of the High Court that at this stage there ought not to be any factual enquiry. But considering the fact that land purchased included large tract of forest land, we are of the view that the scrutiny on the part of the authorities in the case of the declarants land was inadequate. This is one of the main grounds on which the present appeal is founded. There is reference to a Writ Petition in the paper book filed by the original declarants with prayer for felling of trees on the subject-land. The petition was registered as Writ Petition No.42774 of 1982. In that proceeding an interim order was passed permitting felling of trees by the petitioners as per a list subject to the provisions of the Karnataka Preservation of Trees Act, 1976. After obtaining the interim order permitting such felling of trees, however, the writ petition was dismissed as not pressed at the instance of the declarants by an order passed on 7 th November, 1990. The said writ petition was dismissed as withdrawn after obtaining interim order, we do not think that the result of that writ petition would have any bearing on the present appeal.
### Response:
1
### Explanation:
From the judgment of the Review Court, we find that point was taken by the State that the estate was purchased by a firm but declaration of holding under Section 66 was given by three individuals. But the Review Court did not find any flaw in such exercise being undertaken by the individual declarants. On the other hand, the declaration filed under Section 66 of the 1961 Act was found to be valid for the reason that it was not the firm who had filed the declaration but three persons in their individual capacity12. On construction of different provisions of the 1961 Act, we find that in the event the Tribunals finding is correct that the major part of the land which the declarants have claimed to be plantation fits that description, then the prohibition imposed on holding of land by entities referred to in Sub-section 1 of Section 79-B would not apply, having regard to the provisions of Section 104 of the Act. But there is a factor which has not been clarified before us in course of hearing, which in our opinion would have had material impact on the rival claims. As per the deed of sale, the partnership firm had obtained forest area of 3485.83 acres. In the event this area is not held to be under plantation, then the land which has been found by the Tribunal to be beyond ceiling limit would be much beyond than what has been computed. Another issue which also appears to have not had been considered by the Tribunal and also the High Court is that the estate was originally purchased by registered firm. It has not been explained by the declarants as to how the estate of the firm devolved upon its partners. No legal instrument has been brought to our notice through which property of the firm became the partners individual property. This issue is of significance because under Section 79(1)(b)(iii), there is prohibition on an association or other body of individuals not being a joint family, whether incorporated or not in holding land. The latter factor, however, would assume importance in the event the land claimed to be under plantation is found to be incorrect as originally major part of the estate was forest land. But to determine this question, we do not think proper examination of factual situation had been undertaken. On this aspect of the dispute, States plea is that the spot inspection took place in a single day and having regard to the area involved, such an exercise was impossible. If this contention is examined in isolation, we would have had accepted the view of the High Court that at this stage there ought not to be any factual enquiry. But considering the fact that land purchased included large tract of forest land, we are of the view that the scrutiny on the part of the authorities in the case of the declarants land was inadequate. This is one of the main grounds on which the present appeal is founded. There is reference to a Writ Petition in the paper book filed by the original declarants with prayer for felling of trees on the subject-land. The petition was registered as Writ Petition No.42774 of 1982. In that proceeding an interim order was passed permitting felling of trees by the petitioners as per a list subject to the provisions of the Karnataka Preservation of Trees Act, 1976. After obtaining the interim order permitting such felling of trees, however, the writ petition was dismissed as not pressed at the instance of the declarants by an order passed on 7 th November, 1990. The said writ petition was dismissed as withdrawn after obtaining interim order, we do not think that the result of that writ petition would have any bearing on the present appeal.
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The Commonwealth Trust Ltd., Calicut, Kerala Vs. The Commissioner Of Income Tax, Kerala Ii, Ernakulam | Where the capital asset is sold for less than the written down value, the difference or deficiency between the sale price and the written down value is allowed as a deduction in the computation of the business profits (section 32(1)(iii), which is termed as balancing (or terminal) allowance and where the asset is sold for more than the written down value, the sale price being less than the cost, the excess realised over the written down value is charged as business profits (section 41(2)) and is termed as balancing charge . Part D of Chapter IV of the Act does not provide for the circumstance when the depreciated asset has been sold for a price which is more than the cost. This is considered under the provisions of Part E of Chapter IV dealing with capital gains and more particularly section 50 falling under Part E. While sub-section (1) of section 55 which uses the expressions adjusted and cost of improvement applies for the purposes of sections 48, 49 and 50, sub-section (2) of section 55 which uses the expression cost of acquisition is for the purpose of sections 48 and 49In commercial parlance computation of capital gain would mean the actual gain measured by the difference between the sale price and the cost of acquisition. It is the cost of acquisition that is required to be determined under the provisions of sections 48, 49, 50 and 55. Both under sections 48 and 49 cost of acquisition will have to be determined and adjusted as provided in sections 50 and 55. Section 55(2) gives an option to both kinds of assessees, that is, those who have purchased the capital asset as well as those who have acquired it by any of the modes mentioned in section 49 to substitute for the actual cost of acquisition the fair market value of the asset as on January 1, 1954. Section 55(2) will have application only if one of the two classes of assessees exercises his option. Section 55(2), however, makes it clear that the option is available only for the purposes of sections 48 and 49 and it is not available for a case falling under section 50. Though the provisions of section 55(2) would be available to every kind of capital asset, whether the same has enjoyed the depreciation allowance or not, whether in the hands of the assessee or the previous owner, for the assessee in whose case depreciation allowance has been availed of before the transfer of the capital asset, the meaning of cost of acquisition as stated in sections 48 and 49 would appear to have been modified in the manner stated in section 50. Thus, where the assessee has not availed of depreciation allowance in respect of the capital asset, section 50 has no application. In this view of the matter, there does not appear to be any conflict between the provisions of sections 50 and 55(2). Section 55(2) would be applicable to all assets depreciable or non-depreciable for the purposes of arriving at the cost of acquisition under sections 48 and 49, but section 50 carves out a category of those capital assets which had been subjected to grant of depreciation allowance and this section 50, therefore, provides a special method for determining the cost of acquisition in such cases. The provision of section 55(2) is not subject to the provisions of section 50. These are the provisions of section 50(2), which only are subject to the provisions of sections 55(2), 48 and 49. Now, to sections 48 and 49, the provision of section 55(2) would apply as modified by those of section 50. Section 50 is applicable where the assessee has obtained deduction on account of depreciation in respect of the capital asset in question and in that case section 55(1) also comes into operation in view of the expression adjusted which is defined therein in clause (a) of section 55(1). The expression adjusted is for the purposes of sections 48, 49 and 50. For the purposes of applying section 55(2), sections 48 and 49 will have to be applied as modified by section 50. It follows, therefore, that whether the capital asset purchased by the assessee is a depreciable or non-depreciable asset, the assessee will have the option for substituting for its actual cost of acquisition its fair market value as on January 1, 1954, but where it is a depreciable asset and the assessee has enjoyed depreciable allowance, his cost of acquisition shall have to be determined as provided in section 50Viewed from this angle, section 50(1) has no dependence on the provisions of section 55(2). There is no mention of fair market value in section 50(1) and besides that the adjustments stated there are with reference to the written down value only, which has nothing to do with the fair market value. We conclude, therefore, that in the present case where the capital asset is depreciable and the assessee has availed of deduction on account of depreciation, the cost of acquisition shall have to be determined in terms of the provisions of section 50 read with section 48. All the High Courts including the Bombay High Court are of the view that section 50(2) does not apply to any capital asset other than that which has been acquired by any of the modes mentioned in section 49. It does not apply to the case of a person who has himself purchased the asset which has enjoyed the depreciation allowance. To us it appears section 50 is in absolute terms specially providing for fixing the cost of acquisition in the case of depreciable assets only. It is difficult to accept the view of the Bombay High Court when it brings into operation article 14 of the Constitution and the judgment proceeds more on the basis of equitable considerations than the clear provision of law. The Bombay High Court has even read down and modified the provisions, which would appear to be rather unnecessary. | 0[ds]The High Courts of Gujarat, Allahabad, Calcutta and Kerala have, however, held that this could not be so as section 50(1) being a special provision for computing the cost of acquisition in the case of depreciable assets, it would override the general provisions of section 55(2) which according to these High Courts would be applicable to cases of non-depreciable assets or depreciable assets where depreciation had not been claimed. The Bombay High Court, on the other hand, has not followed this line of reasoningIn the present case it is not disputed that it is section 48 which is applicable and not section 49. Under section 48, to compute the income chargeable under the headCapital gains , the value of consideration received on transfer of the capital asset is to be reduced by the expenditure incurred on the transfer and the cost of acquisition of the capital asset and the cost of any improvement thereto. The expenditure that might have been incurred on the transfer of the capital asset and the cost of any improvement thereto are not the subject of any controversy in the case before us. Section 49 is not applicable as the capital asset was not acquired by any of the modes mentioned in that section. Coming to section 50 it states, in so far as it is relevant, that when depreciation has been obtained on the capital asset, the provision of section 48 is subject to the modification thatthe written down value, as defined in clause (6) of section 43 of the asset, as adjusted, shall be taken as the cost of acquisition of the asset . It is the expressionof which the meaning has been given in section 55(1)(a) and it is to be applied while considering the applicability of section 50(1). Under section 55(1)(a) the expressionadjusted , in relation to written down value or fair market value, means diminished by any loss deducted or increased by any profit assessed under the provisions of clause (iii) of sub-section (1) of section 32 or sub-section (2) of section 41, as the case may be, and in cases to which clause (2) of section 50 applies the computation for this purpose being made with reference to the period commencing from the January 1, 1954. Significantly, the wordshave been used in order to avoid the possibility of there being a double tax, where the question of any terminal (balancing) allowance under section 32 or balancing charge under section 41 is involved. Therefore, in its application of the expressionsas adjusted , the written down value as ascertained according to clause (6) of section 43 shall be adjusted with either subtraction of the terminal (balancing) allowance or with addition of the amount of balancing charge, if any, allowed out of or taken into the business income. Where the capital asset is sold for less than the written down value, the difference or deficiency between the sale price and the written down value is allowed as a deduction in the computation of the business profits (section 32(1)(iii), which is termed asbalancing (or terminal) allowanceand where the asset is sold for more than the written down value, the sale price being less than the cost, the excess realised over the written down value is charged as business profits (section 41(2)) and is termed asbalancing charge . Part D of Chapter IV of the Act does not provide for the circumstance when the depreciated asset has been sold for a price which is more than the cost. This is considered under the provisions of Part E of Chapter IV dealing with capital gains and more particularly section 50 falling under Part E. While sub-section (1) of section 55 which uses the expressionsapplies for the purposes of sections 48, 49 and 50, sub-section (2) of section 55 which uses the expressionis for the purpose of sections 48 and 49In commercial parlance computation of capital gain would mean the actual gain measured by the difference between the sale price and the cost of acquisition. It is thethat is required to be determined under the provisions of sections 48, 49, 50 and 55. Both under sections 48 and 49 cost of acquisition will have to be determined and adjusted as provided in sections 50 and 55. Section 55(2) gives an option to both kinds of assessees, that is, those who have purchased the capital asset as well as those who have acquired it by any of the modes mentioned in section 49 to substitute for the actual cost of acquisition the fair market value of the asset as on January 1, 1954. Section 55(2) will have application only if one of the two classes of assessees exercises his option. Section 55(2), however, makes it clear that the option is available only for the purposes of sections 48 and 49 and it is not available for a case falling under section 50. Though the provisions of section 55(2) would be available to every kind of capital asset, whether the same has enjoyed the depreciation allowance or not, whether in the hands of the assessee or the previous owner, for the assessee in whose case depreciation allowance has been availed of before the transfer of the capital asset, the meaning ofas stated in sections 48 and 49 would appear to have been modified in the manner stated in section 50. Thus, where the assessee has not availed of depreciation allowance in respect of the capital asset, section 50 has no application. In this view of the matter, there does not appear to be any conflict between the provisions of sections 50 and 55(2). Section 55(2) would be applicable to all assets depreciable or non-depreciable for the purposes of arriving at the cost of acquisition under sections 48 and 49, but section 50 carves out a category of those capital assets which had been subjected to grant of depreciation allowance and this section 50, therefore, provides a special method for determining the cost of acquisition in such cases. The provision of section 55(2) is not subject to the provisions of section 50. These are the provisions of section 50(2), which only are subject to the provisions of sections 55(2), 48 and 49. Now, to sections 48 and 49, the provision of section 55(2) would apply as modified by those of section 50. Section 50 is applicable where the assessee has obtained deduction on account of depreciation in respect of the capital asset in question and in that case section 55(1) also comes into operation in view of the expressionwhich is defined therein in clause (a) of section 55(1). The expressionis for the purposes of sections 48, 49 and 50. For the purposes of applying section 55(2), sections 48 and 49 will have to be applied as modified by section 50. It follows, therefore, that whether the capital asset purchased by the assessee is a depreciable or non-depreciable asset, the assessee will have the option for substituting for its actual cost of acquisition its fair market value as on January 1, 1954, but where it is a depreciable asset and the assessee has enjoyed depreciable allowance, his cost of acquisition shall have to be determined as provided in section 50Viewed from this angle, section 50(1) has no dependence on the provisions of section 55(2). There is no mention ofin section 50(1) and besides that the adjustments stated there are with reference to the written down value only, which has nothing to do with the fair market value. We conclude, therefore, that in the present case where the capital asset is depreciable and the assessee has availed of deduction on account of depreciation, the cost of acquisition shall have to be determined in terms of the provisions of section 50 read with section 48. All the High Courts including the Bombay High Court are of the view that section 50(2) does not apply to any capital asset other than that which has been acquired by any of the modes mentioned in section 49. It does not apply to the case of a person who has himself purchased the asset which has enjoyed the depreciation allowance. To us it appears section 50 is in absolute terms specially providing for fixing the cost of acquisition in the case of depreciable assets only. It is difficult to accept the view of the Bombay High Court when it brings into operation article 14 of the Constitution and the judgment proceeds more on the basis of equitable considerations than the clear provision of law. The Bombay High Court has even read down and modified the provisions, which would appear to be rather unnecessary. We uphold the views of the Gujarat, Allahabad and Calcutta High Courts and of the Kerala High Court in the impugned judgment. The impugned judgment of the High Court whereby question No. 2 has been answered in favour of the Revenue is, therefore, upheld and the appeal in so far as it relates to question No. 2 is accordingly dismissed | 0 | 7,475 | 1,712 | ### 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:
Where the capital asset is sold for less than the written down value, the difference or deficiency between the sale price and the written down value is allowed as a deduction in the computation of the business profits (section 32(1)(iii), which is termed as balancing (or terminal) allowance and where the asset is sold for more than the written down value, the sale price being less than the cost, the excess realised over the written down value is charged as business profits (section 41(2)) and is termed as balancing charge . Part D of Chapter IV of the Act does not provide for the circumstance when the depreciated asset has been sold for a price which is more than the cost. This is considered under the provisions of Part E of Chapter IV dealing with capital gains and more particularly section 50 falling under Part E. While sub-section (1) of section 55 which uses the expressions adjusted and cost of improvement applies for the purposes of sections 48, 49 and 50, sub-section (2) of section 55 which uses the expression cost of acquisition is for the purpose of sections 48 and 49In commercial parlance computation of capital gain would mean the actual gain measured by the difference between the sale price and the cost of acquisition. It is the cost of acquisition that is required to be determined under the provisions of sections 48, 49, 50 and 55. Both under sections 48 and 49 cost of acquisition will have to be determined and adjusted as provided in sections 50 and 55. Section 55(2) gives an option to both kinds of assessees, that is, those who have purchased the capital asset as well as those who have acquired it by any of the modes mentioned in section 49 to substitute for the actual cost of acquisition the fair market value of the asset as on January 1, 1954. Section 55(2) will have application only if one of the two classes of assessees exercises his option. Section 55(2), however, makes it clear that the option is available only for the purposes of sections 48 and 49 and it is not available for a case falling under section 50. Though the provisions of section 55(2) would be available to every kind of capital asset, whether the same has enjoyed the depreciation allowance or not, whether in the hands of the assessee or the previous owner, for the assessee in whose case depreciation allowance has been availed of before the transfer of the capital asset, the meaning of cost of acquisition as stated in sections 48 and 49 would appear to have been modified in the manner stated in section 50. Thus, where the assessee has not availed of depreciation allowance in respect of the capital asset, section 50 has no application. In this view of the matter, there does not appear to be any conflict between the provisions of sections 50 and 55(2). Section 55(2) would be applicable to all assets depreciable or non-depreciable for the purposes of arriving at the cost of acquisition under sections 48 and 49, but section 50 carves out a category of those capital assets which had been subjected to grant of depreciation allowance and this section 50, therefore, provides a special method for determining the cost of acquisition in such cases. The provision of section 55(2) is not subject to the provisions of section 50. These are the provisions of section 50(2), which only are subject to the provisions of sections 55(2), 48 and 49. Now, to sections 48 and 49, the provision of section 55(2) would apply as modified by those of section 50. Section 50 is applicable where the assessee has obtained deduction on account of depreciation in respect of the capital asset in question and in that case section 55(1) also comes into operation in view of the expression adjusted which is defined therein in clause (a) of section 55(1). The expression adjusted is for the purposes of sections 48, 49 and 50. For the purposes of applying section 55(2), sections 48 and 49 will have to be applied as modified by section 50. It follows, therefore, that whether the capital asset purchased by the assessee is a depreciable or non-depreciable asset, the assessee will have the option for substituting for its actual cost of acquisition its fair market value as on January 1, 1954, but where it is a depreciable asset and the assessee has enjoyed depreciable allowance, his cost of acquisition shall have to be determined as provided in section 50Viewed from this angle, section 50(1) has no dependence on the provisions of section 55(2). There is no mention of fair market value in section 50(1) and besides that the adjustments stated there are with reference to the written down value only, which has nothing to do with the fair market value. We conclude, therefore, that in the present case where the capital asset is depreciable and the assessee has availed of deduction on account of depreciation, the cost of acquisition shall have to be determined in terms of the provisions of section 50 read with section 48. All the High Courts including the Bombay High Court are of the view that section 50(2) does not apply to any capital asset other than that which has been acquired by any of the modes mentioned in section 49. It does not apply to the case of a person who has himself purchased the asset which has enjoyed the depreciation allowance. To us it appears section 50 is in absolute terms specially providing for fixing the cost of acquisition in the case of depreciable assets only. It is difficult to accept the view of the Bombay High Court when it brings into operation article 14 of the Constitution and the judgment proceeds more on the basis of equitable considerations than the clear provision of law. The Bombay High Court has even read down and modified the provisions, which would appear to be rather unnecessary.
### Response:
0
### Explanation:
in the computation of the business profits (section 32(1)(iii), which is termed asbalancing (or terminal) allowanceand where the asset is sold for more than the written down value, the sale price being less than the cost, the excess realised over the written down value is charged as business profits (section 41(2)) and is termed asbalancing charge . Part D of Chapter IV of the Act does not provide for the circumstance when the depreciated asset has been sold for a price which is more than the cost. This is considered under the provisions of Part E of Chapter IV dealing with capital gains and more particularly section 50 falling under Part E. While sub-section (1) of section 55 which uses the expressionsapplies for the purposes of sections 48, 49 and 50, sub-section (2) of section 55 which uses the expressionis for the purpose of sections 48 and 49In commercial parlance computation of capital gain would mean the actual gain measured by the difference between the sale price and the cost of acquisition. It is thethat is required to be determined under the provisions of sections 48, 49, 50 and 55. Both under sections 48 and 49 cost of acquisition will have to be determined and adjusted as provided in sections 50 and 55. Section 55(2) gives an option to both kinds of assessees, that is, those who have purchased the capital asset as well as those who have acquired it by any of the modes mentioned in section 49 to substitute for the actual cost of acquisition the fair market value of the asset as on January 1, 1954. Section 55(2) will have application only if one of the two classes of assessees exercises his option. Section 55(2), however, makes it clear that the option is available only for the purposes of sections 48 and 49 and it is not available for a case falling under section 50. Though the provisions of section 55(2) would be available to every kind of capital asset, whether the same has enjoyed the depreciation allowance or not, whether in the hands of the assessee or the previous owner, for the assessee in whose case depreciation allowance has been availed of before the transfer of the capital asset, the meaning ofas stated in sections 48 and 49 would appear to have been modified in the manner stated in section 50. Thus, where the assessee has not availed of depreciation allowance in respect of the capital asset, section 50 has no application. In this view of the matter, there does not appear to be any conflict between the provisions of sections 50 and 55(2). Section 55(2) would be applicable to all assets depreciable or non-depreciable for the purposes of arriving at the cost of acquisition under sections 48 and 49, but section 50 carves out a category of those capital assets which had been subjected to grant of depreciation allowance and this section 50, therefore, provides a special method for determining the cost of acquisition in such cases. The provision of section 55(2) is not subject to the provisions of section 50. These are the provisions of section 50(2), which only are subject to the provisions of sections 55(2), 48 and 49. Now, to sections 48 and 49, the provision of section 55(2) would apply as modified by those of section 50. Section 50 is applicable where the assessee has obtained deduction on account of depreciation in respect of the capital asset in question and in that case section 55(1) also comes into operation in view of the expressionwhich is defined therein in clause (a) of section 55(1). The expressionis for the purposes of sections 48, 49 and 50. For the purposes of applying section 55(2), sections 48 and 49 will have to be applied as modified by section 50. It follows, therefore, that whether the capital asset purchased by the assessee is a depreciable or non-depreciable asset, the assessee will have the option for substituting for its actual cost of acquisition its fair market value as on January 1, 1954, but where it is a depreciable asset and the assessee has enjoyed depreciable allowance, his cost of acquisition shall have to be determined as provided in section 50Viewed from this angle, section 50(1) has no dependence on the provisions of section 55(2). There is no mention ofin section 50(1) and besides that the adjustments stated there are with reference to the written down value only, which has nothing to do with the fair market value. We conclude, therefore, that in the present case where the capital asset is depreciable and the assessee has availed of deduction on account of depreciation, the cost of acquisition shall have to be determined in terms of the provisions of section 50 read with section 48. All the High Courts including the Bombay High Court are of the view that section 50(2) does not apply to any capital asset other than that which has been acquired by any of the modes mentioned in section 49. It does not apply to the case of a person who has himself purchased the asset which has enjoyed the depreciation allowance. To us it appears section 50 is in absolute terms specially providing for fixing the cost of acquisition in the case of depreciable assets only. It is difficult to accept the view of the Bombay High Court when it brings into operation article 14 of the Constitution and the judgment proceeds more on the basis of equitable considerations than the clear provision of law. The Bombay High Court has even read down and modified the provisions, which would appear to be rather unnecessary. We uphold the views of the Gujarat, Allahabad and Calcutta High Courts and of the Kerala High Court in the impugned judgment. The impugned judgment of the High Court whereby question No. 2 has been answered in favour of the Revenue is, therefore, upheld and the appeal in so far as it relates to question No. 2 is accordingly dismissed
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State of Madras Vs. V. P. S. A. Narayana Nadar and Company | year." Items 31, 32 and 33 of the First Schedule state : "Item 31. Chicory At the point of first sale in the State. 5% Item 32. Coffee, that is to say, any one of the forms of coffee such as coffee beans, coffee seeds (raw or roastde), coffee powder, but not including coffee drink. ditto 5% Item 33. French coffee (if the coffee portion of the French coffee has not already suffered tax in this State under item 32) ditto 5%" Section 10 provides : "The burden of proving that any dealer or any of his transactions is not liable to tax under this Act shall lie on such dealer." Section 40 reads as follows : "Every person registered under this Act, every dealer liable to get himself registered under this Act, and every other dealer who is required so to do by the prescribed authority by notice served in the prescribed manner, shall keep and maintain a true and correct account and such other record as may be prescribed in any of the languages specified in the Eighth Schedule to the Constitution, or in English, showing such particulars as may be prescribed; and different particulars may be prescribed for different classes of dealers." 2. Rule 26 of the Madras General Sales Tax Rules, 1959, made by the Government of Madras in exercise of the powers conferred by section 53 of the Act provides as follows : "26. (1) Every person registered under the Act, every dealer liable to get himself registered under the Act and every other dealer who is so required by an assessing authority by notice served in the prescribed manner shall keep and maintain a true and correct account in any of the languages specified in the Eighth Schedule to the Constitution or in English showing the goods produced, manufactured, bought or sold or supplied or distributed by him, and the value thereof separately together with the voucher.(2) Every such dealer shall keep separate sales accounts for different goods liable to tax at different rates and stages. (9) Every wholesale dealer, importer and manufacturer shall maintain stock accounts of goods dealer in by him." In S. Rathinaswamy Chettiar v. The State of Madras ([1962] 13 S.T.C. 419), the assessee, a dealer in bullion and jewellery, sold bullion purchased both from dealers and persons other than dealers. The total sales turnover of bullion came to Rs. 5, 63, 000 out of which the assessee claimed that a turnover of Rs. 3, 80, 918 representing sales of bullion purchased from dealers, was exempt from tax as second sales inasmuch as a presumption should be raised in his favour that the entire quantity covered by second sales was included in the sales turnover of Rs. 5, 63, 000. The assessee did not maintain a separate account of the gold sold from out of the stocks obtained from dealers or licensees. The claim of the assessee was rejected by the Tribunal but it was held by the High Court that although the assessee had not maintained a separate account, such an account would be only a make-believe one. What the law required was that there should be no escape of tax. As the quantity bullion sold by the assessee exceeded the quantity purchased from other dealers, the natural presumption arose that a person engaged in a transaction would presumably follow that course which took him out of the taxable category rather than otherwise. Therefore the turnover of Rs. 3, 80, 918 should, under the law, be deemed to relate to the quantity of gold which the assessee had purchased from other dealers and it was exempt from tax as turnover representing second sales of bullion. 3. On behalf of the appellant it was contended by the Advocate-General that the judgment of the Madras High Court in S. Rathinaswamy Chettiar v. That State of Madras ([1962] 13 S.T.C. 419) requires reconsideration in view of the express statutory provisions in section 10 of the Act that the "burden of proving that any dealer or any of his transactions is not liable to tax under this Act shall lie on such dealer". It was also submitted that the provisions of section 40 of the Act and rule 26(1), (2) and (9) are mandatory in character and the decision of the Madras High Court which was given under the Madras General Sales Tax Act, 1939 (Madras Act 9 of 1939) requires to be reconsidered, and there was no scope for taking into account any question of hardship. In our opinion, the argument on behalf of the appellant is well-founded and must be accepted as correct. The earlier decision of the Madras High Court in S. Rathinaswamy Chettiar v. The State of Madras ([1962] 13 S.T.C. 419) requires to be reconsidered in view of the statutory provisions of the new Act, i.e., The Madras General Sales Tax Act, 1959 (Madras Act 1 of 1959). We consider therefore that the judgment of the Madras High Court should be set aside and the case should be remanded. But it is also necessary, in this case, to set aside the order of the Appellate Tribunal dated May 15, 1963, so far as it concerns the turnover of the assessee relating to French coffee. There is no clear finding by the Appellate Tribunal how much coffee portion of the French coffee has already suffered tax in the State under item 32 and the language of the order of the Appellate Tribunal with regard to the non-taxability of French coffee under item 33 is obscure.For these reasons we hold that this appeal should be allowed. The order of the Madras High Court dated April 16, 1964, in Tax Case No. 84 of 1964 is set aside as also the order of the Sales Tax Appellate Tribunal dated May 15, 1963, in Appeal No. 425 of 1962, and the case is remanded to the Sales Tax Appellate Tribunal for hearing the appeal afresh and determining it in accordance with law. | 1[ds]In our opinion, the argument on behalf of the appellant isd and must be accepted as correct. The earlier decision of the Madras High Court in S. Rathinaswamy Chettiar v. The State of Madras ([1962] 13 S.T.C. 419) requires to be reconsidered in view of the statutory provisions of the new Act, i.e., The Madras General Sales Tax Act, 1959 (Madras Act 1 of 1959). We consider therefore that the judgment of the Madras High Court should be set aside and the case should be remanded. But it is also necessary, in this case, to set aside the order of the Appellate Tribunal dated May 15, 1963, so far as it concerns the turnover of the assessee relating to French coffee. There is no clear finding by the Appellate Tribunal how much coffee portion of the French coffee has already suffered tax in the State under item 32 and the language of the order of the Appellate Tribunal with regard to they of French coffee under item 33 is obscure.For these reasons we hold that this appeal should be allowed. The order of the Madras High Court dated April 16, 1964, in Tax Case No. 84 of 1964 is set aside as also the order of the Sales Tax Appellate Tribunal dated May 15, 1963, in Appeal No. 425 of 1962, and the case is remanded to the Sales Tax Appellate Tribunal for hearing the appeal afresh and determining it in accordance with law. | 1 | 1,646 | 276 | ### 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:
year." Items 31, 32 and 33 of the First Schedule state : "Item 31. Chicory At the point of first sale in the State. 5% Item 32. Coffee, that is to say, any one of the forms of coffee such as coffee beans, coffee seeds (raw or roastde), coffee powder, but not including coffee drink. ditto 5% Item 33. French coffee (if the coffee portion of the French coffee has not already suffered tax in this State under item 32) ditto 5%" Section 10 provides : "The burden of proving that any dealer or any of his transactions is not liable to tax under this Act shall lie on such dealer." Section 40 reads as follows : "Every person registered under this Act, every dealer liable to get himself registered under this Act, and every other dealer who is required so to do by the prescribed authority by notice served in the prescribed manner, shall keep and maintain a true and correct account and such other record as may be prescribed in any of the languages specified in the Eighth Schedule to the Constitution, or in English, showing such particulars as may be prescribed; and different particulars may be prescribed for different classes of dealers." 2. Rule 26 of the Madras General Sales Tax Rules, 1959, made by the Government of Madras in exercise of the powers conferred by section 53 of the Act provides as follows : "26. (1) Every person registered under the Act, every dealer liable to get himself registered under the Act and every other dealer who is so required by an assessing authority by notice served in the prescribed manner shall keep and maintain a true and correct account in any of the languages specified in the Eighth Schedule to the Constitution or in English showing the goods produced, manufactured, bought or sold or supplied or distributed by him, and the value thereof separately together with the voucher.(2) Every such dealer shall keep separate sales accounts for different goods liable to tax at different rates and stages. (9) Every wholesale dealer, importer and manufacturer shall maintain stock accounts of goods dealer in by him." In S. Rathinaswamy Chettiar v. The State of Madras ([1962] 13 S.T.C. 419), the assessee, a dealer in bullion and jewellery, sold bullion purchased both from dealers and persons other than dealers. The total sales turnover of bullion came to Rs. 5, 63, 000 out of which the assessee claimed that a turnover of Rs. 3, 80, 918 representing sales of bullion purchased from dealers, was exempt from tax as second sales inasmuch as a presumption should be raised in his favour that the entire quantity covered by second sales was included in the sales turnover of Rs. 5, 63, 000. The assessee did not maintain a separate account of the gold sold from out of the stocks obtained from dealers or licensees. The claim of the assessee was rejected by the Tribunal but it was held by the High Court that although the assessee had not maintained a separate account, such an account would be only a make-believe one. What the law required was that there should be no escape of tax. As the quantity bullion sold by the assessee exceeded the quantity purchased from other dealers, the natural presumption arose that a person engaged in a transaction would presumably follow that course which took him out of the taxable category rather than otherwise. Therefore the turnover of Rs. 3, 80, 918 should, under the law, be deemed to relate to the quantity of gold which the assessee had purchased from other dealers and it was exempt from tax as turnover representing second sales of bullion. 3. On behalf of the appellant it was contended by the Advocate-General that the judgment of the Madras High Court in S. Rathinaswamy Chettiar v. That State of Madras ([1962] 13 S.T.C. 419) requires reconsideration in view of the express statutory provisions in section 10 of the Act that the "burden of proving that any dealer or any of his transactions is not liable to tax under this Act shall lie on such dealer". It was also submitted that the provisions of section 40 of the Act and rule 26(1), (2) and (9) are mandatory in character and the decision of the Madras High Court which was given under the Madras General Sales Tax Act, 1939 (Madras Act 9 of 1939) requires to be reconsidered, and there was no scope for taking into account any question of hardship. In our opinion, the argument on behalf of the appellant is well-founded and must be accepted as correct. The earlier decision of the Madras High Court in S. Rathinaswamy Chettiar v. The State of Madras ([1962] 13 S.T.C. 419) requires to be reconsidered in view of the statutory provisions of the new Act, i.e., The Madras General Sales Tax Act, 1959 (Madras Act 1 of 1959). We consider therefore that the judgment of the Madras High Court should be set aside and the case should be remanded. But it is also necessary, in this case, to set aside the order of the Appellate Tribunal dated May 15, 1963, so far as it concerns the turnover of the assessee relating to French coffee. There is no clear finding by the Appellate Tribunal how much coffee portion of the French coffee has already suffered tax in the State under item 32 and the language of the order of the Appellate Tribunal with regard to the non-taxability of French coffee under item 33 is obscure.For these reasons we hold that this appeal should be allowed. The order of the Madras High Court dated April 16, 1964, in Tax Case No. 84 of 1964 is set aside as also the order of the Sales Tax Appellate Tribunal dated May 15, 1963, in Appeal No. 425 of 1962, and the case is remanded to the Sales Tax Appellate Tribunal for hearing the appeal afresh and determining it in accordance with law.
### Response:
1
### Explanation:
In our opinion, the argument on behalf of the appellant isd and must be accepted as correct. The earlier decision of the Madras High Court in S. Rathinaswamy Chettiar v. The State of Madras ([1962] 13 S.T.C. 419) requires to be reconsidered in view of the statutory provisions of the new Act, i.e., The Madras General Sales Tax Act, 1959 (Madras Act 1 of 1959). We consider therefore that the judgment of the Madras High Court should be set aside and the case should be remanded. But it is also necessary, in this case, to set aside the order of the Appellate Tribunal dated May 15, 1963, so far as it concerns the turnover of the assessee relating to French coffee. There is no clear finding by the Appellate Tribunal how much coffee portion of the French coffee has already suffered tax in the State under item 32 and the language of the order of the Appellate Tribunal with regard to they of French coffee under item 33 is obscure.For these reasons we hold that this appeal should be allowed. The order of the Madras High Court dated April 16, 1964, in Tax Case No. 84 of 1964 is set aside as also the order of the Sales Tax Appellate Tribunal dated May 15, 1963, in Appeal No. 425 of 1962, and the case is remanded to the Sales Tax Appellate Tribunal for hearing the appeal afresh and determining it in accordance with law.
|
University Of Delhi & Anr Vs. Ram Nath | thus passed by the State Industrial Court was challenged by the Corporation before the High Court by a writ petition under Art. 226 of the Constitution. The High Court rejected the Corporations plea that its activities did not constitute an industry, but remanded the case to the Industrial Court for determining which of the departments of the Corporation fell within the definition. After remand, the Industrial Court found all the departments of the Corporation to constitute an industry except five. Against the said award, the Corporation came to this Court by special leave. No appeal was, however, preferred by the employees in respect of the five departments which were included form S. 2(14) by the award. The appeal preferred by the Corporation failed and this Court added that the finding of the Industrial Court excluding five departments form the definition under S. 2 (14) need not be examined, since it had not been challenged by the employees. That, in substance is the decision of this Court.16. It would be noticed that the main argument which was urged on behalf of the Corporation was that its activites were regal or governmental in character, and so, it was entirely outside the purview of the Berar Act. This argument was carefully examined. It was conceded that the regal functions described as primary and inalienable functions of the State are outside the purview of the Berar Act and if they are delegated to a Corporation, they would be excluded form S.2(14); but the Court held that these regal functions must be confined to legislative power, administration of law and judicial power. That is how the broad and main argument urged by the Corporation was rejected. Dealing with the work carried on by the several departments of the Corporation this Court observed that if a service rendered by individual or a private person would be an industry, it would equally be an industry in the hands of a corporation, and it held that if a department of municipality discharges many functions, some pertaining to industry as defined in the Act and other non-industrial activities, the predominant functions of the department shall be criterion for the purposes of the Act. Amongst the departments which were then examined was the education department under which the Corporation looked after the primary education of the citizen within its limits. In connection with this department, it was observed that the service rendered by the department could be done by private persons, and so, the subordinate menial employees of the department came under the definition of employees and would be entitled to the benefits of the Act.17. Reading the judgment as a whole, there can be no doubt that the question as to whether education work carried on by educational institutions like the University of Delhi which have been formed primarily and solely for the purpose of imparting education amount to an industry within the meaning S.2(14), was not argued before the Court and was not really raised in that form. The main attack against the award proceeded on the basis that what the Corporation was doing through its several departments was work which could be regarded as regal or governmental, and as such, was outside the purview of the Act, and that argument was rejected. The other point which is also relevant is that one of the tests laid down by this Court was that if a department was carrying on predominantly industrial activities, the fact that some of its activities may not be industrial did not matter. Applying the same test to the Corporation as a whole, the question was examined and the inclusion of the education department in the award was upheld. It would: thus be dear that if the test of the character of the predominant activity of the institution which was applied to the Corporation is applied to the University of Delhi, the answer would be plainly against the respondents. The predominant activity of the University of Delhi is outside the Act, because teaching and teachers connected with it do not come within its purview, and so, the minor and incidental activity carried on by the subordinate staff which may fall within the purview of the Act cannot alter the predominant character of the institution.18. It would be recalled that in the case of the Hospital Mazdoor Sabha, (1960) 2 SCR 866 : (AIR 1960 SC 610 ) the question about educational institutions was deliberately and expressly left open and if the said question was intended to be decided in the case of the Corporation of the City of Nagpur, (1960) 2 SCR 942: (AIR 1960 SC 675 ) naturally more specific arguments would have been urged and the problem would have been examined in all its aspects. Incidentally, we may add that the Bench that left the question open in the case of Hospital Mazdoor Sabha (1960) 2 SCR 866 : (AIR 1960 SC 610 ) was the same Bench which heard the case of the Corporation of the City of Nagpur? (1960) 2 SCR 942: (AIR 1960 SC 675 ) and the two matters were argued soon after each other though the judgment in the first case was delivered on the 29th January1960 and that in the latter case on the l0th February 1960. We are making these observations with a view to emphasise the fact that the question which has been raised for our decision in the present appeals was not raised nor argued in case of the Corporation of the City of Nagpur (1960) 2 SCR 942: (AIR 1960 SC 675 ) and cannot, therefore, be said to have been decided even incidentally only by reason of the fact that amongst the departments which were held to have been properly included in the award was the education department of the Corporation. If we had been satisfied that the said Judgment had decided this point we would either have followed the said decision, or would have referred the question to a larger Bench. | 1[ds]17. Reading the judgment as a whole, there can be no doubt that the question as to whether education work carried on by educational institutions like the University of Delhi which have been formed primarily and solely for the purpose of imparting education amount to an industry within the meaning S.2(14), was not argued before the Court and was not really raised in that form. The main attack against the award proceeded on the basis that what the Corporation was doing through its several departments was work which could be regarded as regal or governmental, and as such, was outside the purview of the Act, and that argument was rejected. The other point which is also relevant is that one of the tests laid down by this Court was that if a department was carrying on predominantly industrial activities, the fact that some of its activities may not be industrial did not matter. Applying the same test to the Corporation as a whole, the question was examined and the inclusion of the education department in the award was upheld. It would: thus be dear that if the test of the character of the predominant activity of the institution which was applied to the Corporation is applied to the University of Delhi, the answer would be plainly against the respondents. The predominant activity of the University of Delhi is outside the Act, because teaching and teachers connected with it do not come within its purview, and so, the minor and incidental activity carried on by the subordinate staff which may fall within the purview of the Act cannot alter the predominant character of the institution.18. It would be recalled that in the case of the Hospital Mazdoor Sabha, (1960) 2 SCR 866 : (AIR 1960 SC 610 ) the question about educational institutions was deliberately and expressly left open and if the said question was intended to be decided in the case of the Corporation of the City of Nagpur, (1960) 2 SCR 942: (AIR 1960 SC 675 ) naturally more specific arguments would have been urged and the problem would have been examined in all its aspects. Incidentally, we may add that the Bench that left the question open in the case of Hospital Mazdoor Sabha (1960) 2 SCR 866 : (AIR 1960 SC 610 ) was the same Bench which heard the case of the Corporation of the City of Nagpur? (1960) 2 SCR 942: (AIR 1960 SC 675 ) and the two matters were argued soon after each other though the judgment in the first case was delivered on the 29th January1960 and that in the latter case on the l0th February 1960. We are making these observations with a view to emphasise the fact that the question which has been raised for our decision in the present appeals was not raised nor argued in case of the Corporation of the City of Nagpur (1960) 2 SCR 942: (AIR 1960 SC 675 ) and cannot, therefore, be said to have been decided even incidentally only by reason of the fact that amongst the departments which were held to have been properly included in the award was the education department of the Corporation. If we had been satisfied that the said Judgment had decided this point we would either have followed the said decision, or would have referred the question to a larger Bench. | 1 | 5,835 | 622 | ### 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:
thus passed by the State Industrial Court was challenged by the Corporation before the High Court by a writ petition under Art. 226 of the Constitution. The High Court rejected the Corporations plea that its activities did not constitute an industry, but remanded the case to the Industrial Court for determining which of the departments of the Corporation fell within the definition. After remand, the Industrial Court found all the departments of the Corporation to constitute an industry except five. Against the said award, the Corporation came to this Court by special leave. No appeal was, however, preferred by the employees in respect of the five departments which were included form S. 2(14) by the award. The appeal preferred by the Corporation failed and this Court added that the finding of the Industrial Court excluding five departments form the definition under S. 2 (14) need not be examined, since it had not been challenged by the employees. That, in substance is the decision of this Court.16. It would be noticed that the main argument which was urged on behalf of the Corporation was that its activites were regal or governmental in character, and so, it was entirely outside the purview of the Berar Act. This argument was carefully examined. It was conceded that the regal functions described as primary and inalienable functions of the State are outside the purview of the Berar Act and if they are delegated to a Corporation, they would be excluded form S.2(14); but the Court held that these regal functions must be confined to legislative power, administration of law and judicial power. That is how the broad and main argument urged by the Corporation was rejected. Dealing with the work carried on by the several departments of the Corporation this Court observed that if a service rendered by individual or a private person would be an industry, it would equally be an industry in the hands of a corporation, and it held that if a department of municipality discharges many functions, some pertaining to industry as defined in the Act and other non-industrial activities, the predominant functions of the department shall be criterion for the purposes of the Act. Amongst the departments which were then examined was the education department under which the Corporation looked after the primary education of the citizen within its limits. In connection with this department, it was observed that the service rendered by the department could be done by private persons, and so, the subordinate menial employees of the department came under the definition of employees and would be entitled to the benefits of the Act.17. Reading the judgment as a whole, there can be no doubt that the question as to whether education work carried on by educational institutions like the University of Delhi which have been formed primarily and solely for the purpose of imparting education amount to an industry within the meaning S.2(14), was not argued before the Court and was not really raised in that form. The main attack against the award proceeded on the basis that what the Corporation was doing through its several departments was work which could be regarded as regal or governmental, and as such, was outside the purview of the Act, and that argument was rejected. The other point which is also relevant is that one of the tests laid down by this Court was that if a department was carrying on predominantly industrial activities, the fact that some of its activities may not be industrial did not matter. Applying the same test to the Corporation as a whole, the question was examined and the inclusion of the education department in the award was upheld. It would: thus be dear that if the test of the character of the predominant activity of the institution which was applied to the Corporation is applied to the University of Delhi, the answer would be plainly against the respondents. The predominant activity of the University of Delhi is outside the Act, because teaching and teachers connected with it do not come within its purview, and so, the minor and incidental activity carried on by the subordinate staff which may fall within the purview of the Act cannot alter the predominant character of the institution.18. It would be recalled that in the case of the Hospital Mazdoor Sabha, (1960) 2 SCR 866 : (AIR 1960 SC 610 ) the question about educational institutions was deliberately and expressly left open and if the said question was intended to be decided in the case of the Corporation of the City of Nagpur, (1960) 2 SCR 942: (AIR 1960 SC 675 ) naturally more specific arguments would have been urged and the problem would have been examined in all its aspects. Incidentally, we may add that the Bench that left the question open in the case of Hospital Mazdoor Sabha (1960) 2 SCR 866 : (AIR 1960 SC 610 ) was the same Bench which heard the case of the Corporation of the City of Nagpur? (1960) 2 SCR 942: (AIR 1960 SC 675 ) and the two matters were argued soon after each other though the judgment in the first case was delivered on the 29th January1960 and that in the latter case on the l0th February 1960. We are making these observations with a view to emphasise the fact that the question which has been raised for our decision in the present appeals was not raised nor argued in case of the Corporation of the City of Nagpur (1960) 2 SCR 942: (AIR 1960 SC 675 ) and cannot, therefore, be said to have been decided even incidentally only by reason of the fact that amongst the departments which were held to have been properly included in the award was the education department of the Corporation. If we had been satisfied that the said Judgment had decided this point we would either have followed the said decision, or would have referred the question to a larger Bench.
### Response:
1
### Explanation:
17. Reading the judgment as a whole, there can be no doubt that the question as to whether education work carried on by educational institutions like the University of Delhi which have been formed primarily and solely for the purpose of imparting education amount to an industry within the meaning S.2(14), was not argued before the Court and was not really raised in that form. The main attack against the award proceeded on the basis that what the Corporation was doing through its several departments was work which could be regarded as regal or governmental, and as such, was outside the purview of the Act, and that argument was rejected. The other point which is also relevant is that one of the tests laid down by this Court was that if a department was carrying on predominantly industrial activities, the fact that some of its activities may not be industrial did not matter. Applying the same test to the Corporation as a whole, the question was examined and the inclusion of the education department in the award was upheld. It would: thus be dear that if the test of the character of the predominant activity of the institution which was applied to the Corporation is applied to the University of Delhi, the answer would be plainly against the respondents. The predominant activity of the University of Delhi is outside the Act, because teaching and teachers connected with it do not come within its purview, and so, the minor and incidental activity carried on by the subordinate staff which may fall within the purview of the Act cannot alter the predominant character of the institution.18. It would be recalled that in the case of the Hospital Mazdoor Sabha, (1960) 2 SCR 866 : (AIR 1960 SC 610 ) the question about educational institutions was deliberately and expressly left open and if the said question was intended to be decided in the case of the Corporation of the City of Nagpur, (1960) 2 SCR 942: (AIR 1960 SC 675 ) naturally more specific arguments would have been urged and the problem would have been examined in all its aspects. Incidentally, we may add that the Bench that left the question open in the case of Hospital Mazdoor Sabha (1960) 2 SCR 866 : (AIR 1960 SC 610 ) was the same Bench which heard the case of the Corporation of the City of Nagpur? (1960) 2 SCR 942: (AIR 1960 SC 675 ) and the two matters were argued soon after each other though the judgment in the first case was delivered on the 29th January1960 and that in the latter case on the l0th February 1960. We are making these observations with a view to emphasise the fact that the question which has been raised for our decision in the present appeals was not raised nor argued in case of the Corporation of the City of Nagpur (1960) 2 SCR 942: (AIR 1960 SC 675 ) and cannot, therefore, be said to have been decided even incidentally only by reason of the fact that amongst the departments which were held to have been properly included in the award was the education department of the Corporation. If we had been satisfied that the said Judgment had decided this point we would either have followed the said decision, or would have referred the question to a larger Bench.
|
Union Of India & Others Vs. Coromandel Fertilizers Limited & Anr | the previous year relevant to the next following assessment year and, if there are no such profits and gains for that assessment year, or where the deficiency exceeds such profits and gains, the whole or balance of the deficiency as the case may be, shall be set off against such profits and gains for the next following assessment year and if and so far as such deficiency cannot be wholly so set off, it shall be set off against such profits and gains assessable for the next following assessment year and so on:Provided that-(i) in no case shall the deficiency or any part thereof be carried forward beyond the seventh assessment year as reckoned from the end of the initial assessment year;(ii) where there is more than one deficiency and each such deficiency r elates to a different assessment year, the deficiency which relates to an earlier assessment year shall be set off under this sub-section before setting off the deficiency in relation to a later assessment year:Provided further that in the case of an assessee being a co-operative society, the provisions of this sub-section shall have effect as if for the words "fourth assessment year", the words sixth assessment year had been substituted"."80K. Where the gross total income of an assessee, being the owner of any share or shares in a company, includes any income by way of dividends paid or deemed to have been paid by the company in respect of such share or shares, there shall subject to any rules that may be made by the Board in this behalf. be allowed, in computing his total income, a deduction from such income by way of dividends of an amount equal to such part thereof as is attributable to the profits and gains derived by the company from an industrial undertaking or ship or the business of a hotel on which no tax is payable by the company under this Act for any assessment year commencing prior to the 1st day of April, 1968, or in respect of which the company is entitled to a deduction under section 80J".11. A perusal of sections 80J(3) and 15C would clearly show the difference in the scheme of the two provisions. Broadly speaking, there was no question of "carry forward" from one accounting year to the succeeding year or years the sums allowable under section 15C. That feature is now prominent in section 80J in clearly providing that "where there are no such profits and gains, an amount equal to the relevant amount or capital employed during the previous year (viz., the six per cent of the capital employed).. shall be carried for war d and set off against profits and gains referred to in sub-section, (1) ........".There is another vital distinction. While section 15C(4) refers to relief in case of only taxable profits, section 80K provides that in computing the total income of an assessee whose gross total income includes any income by way of dividends, there shall be allowed in computing his total income a deduction from such income by way of dividends an amount equal to such part thereof as is attributable to profits and gains derived by the company from an industrial under taking on which no tax is payable by the company under the Act or in respect of which the company is entitled to deduction under section 80J (emphasis supplied). T he expression "or in respect of which the company is entitled to a deduction under section 80J" introduces a new concept. There is no legal requirement of a de facto deduction of the amount in question in the particular assessment y ear. As against actual deduction the companys entitlement to deduction in the relevant year is enough to answer the requirement of section 80J. Necessarily, therefore, the dividend-earner will also be entitled to invoke section 80K and obtain pari passu the benefit of the provision.12. It is submitted on behalf of the appellants that unless there is actual deduction under section 80J, the shareholder is not entitled to claim benefit under section 80K. The appellants further con tend that section 80A(2) of the Act is a complete answer to the claim of the respondents. By sub- section (2) of section 80A the entire amount of deduction under Chapter VI-A shall not in any case exceed the gross total income of the assessee. It was, therefore, submitted that as there were not assessable incomes of the company in the particular years, the question of deduction of the monetary benefit by the shareholder would not arise. We are unable to accept this submission. Under old section 15C, the shareholder was entitled to relief only when the company was able to get actual deduction. Both were at par. The parity has been sought to be maintained under the amended provisions of sections 80J and 80K between the company and the shareholder. The company, when becomes entitled to deductions under section 80J(1), gets it either in that year or by a set off in subsequent years. If the interpretations which we have put to the new sections were not to hold good, the result will be that the shareholder will be debarred from getting any relief when dividend is declared in a year in which the company, because of section 80A(2), is not able to get actual deduction. The company will reap the advantage of set off under section 80J(3) in subsequent years, while the shareholder for the dividend declared in the past, will get no relief, under section 80K. This anomaly is avoided, and the legislature intended to avoid it, by use of the expression "the company is entitled to a deduction" in section 80K and on the interpretation we have put above.We are, therefore, clearly of opinion that the company was not required under the law to deduct at source tax from the dividends which they were declaring to the shareholder. The company was entitled to an appropriate certificate from the Income-tax Officer under section 197(3). | 0[ds]A perusal of sections 80J(3) and 15C would clearly show the difference in the scheme of the two provisions. Broadly speaking, there was no question of "carry forward" from one accounting year to the succeeding year or years the sums allowable under sectionis another vital distinction. While section 15C(4) refers to relief in case of only taxable profits, section 80K provides that in computing the total income of an assessee whose gross total income includes any income by way of dividends, there shall be allowed in computing his total income a deduction from such income by way of dividends an amount equal to such part thereof as is attributable to profits and gains derived by the company from an industrial under taking on which no tax is payable by the company under the Act or in respect of which the company is entitled to deduction under section 80J (emphasis supplied). T he expression "or in respect of which the company is entitled to a deduction under section 80J" introduces a new concept. There is no legal requirement of a de facto deduction of the amount in question in the particular assessment y ear. As against actual deduction the companys entitlement to deduction in the relevant year is enough to answer the requirement of section 80J. Necessarily, therefore, the dividend-earner will also be entitled to invoke section 80K and obtain pari passu the benefit of theare unable to accept this submission. Under old section 15C, the shareholder was entitled to relief only when the company was able to get actual deduction. Both were at par. The parity has been sought to be maintained under the amended provisions of sections 80J and 80K between the company and the shareholder. The company, when becomes entitled to deductions under section 80J(1), gets it either in that year or by a set off in subsequent years. If the interpretations which we have put to the new sections were not to hold good, the result will be that the shareholder will be debarred from getting any relief when dividend is declared in a year in which the company, because of section 80A(2), is not able to get actual deduction. The company will reap the advantage of set off under section 80J(3) in subsequent years, while the shareholder for the dividend declared in the past, will get no relief, under section 80K. This anomaly is avoided, and the legislature intended to avoid it, by use of the expression "the company is entitled to a deduction" in section 80K and on the interpretation we have put above.We are, therefore, clearly of opinion that the company was not required under the law to deduct at source tax from the dividends which they were declaring to the shareholder. The company was entitled to an appropriate certificate from the Income-tax Officer under section | 0 | 3,164 | 531 | ### 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:
the previous year relevant to the next following assessment year and, if there are no such profits and gains for that assessment year, or where the deficiency exceeds such profits and gains, the whole or balance of the deficiency as the case may be, shall be set off against such profits and gains for the next following assessment year and if and so far as such deficiency cannot be wholly so set off, it shall be set off against such profits and gains assessable for the next following assessment year and so on:Provided that-(i) in no case shall the deficiency or any part thereof be carried forward beyond the seventh assessment year as reckoned from the end of the initial assessment year;(ii) where there is more than one deficiency and each such deficiency r elates to a different assessment year, the deficiency which relates to an earlier assessment year shall be set off under this sub-section before setting off the deficiency in relation to a later assessment year:Provided further that in the case of an assessee being a co-operative society, the provisions of this sub-section shall have effect as if for the words "fourth assessment year", the words sixth assessment year had been substituted"."80K. Where the gross total income of an assessee, being the owner of any share or shares in a company, includes any income by way of dividends paid or deemed to have been paid by the company in respect of such share or shares, there shall subject to any rules that may be made by the Board in this behalf. be allowed, in computing his total income, a deduction from such income by way of dividends of an amount equal to such part thereof as is attributable to the profits and gains derived by the company from an industrial undertaking or ship or the business of a hotel on which no tax is payable by the company under this Act for any assessment year commencing prior to the 1st day of April, 1968, or in respect of which the company is entitled to a deduction under section 80J".11. A perusal of sections 80J(3) and 15C would clearly show the difference in the scheme of the two provisions. Broadly speaking, there was no question of "carry forward" from one accounting year to the succeeding year or years the sums allowable under section 15C. That feature is now prominent in section 80J in clearly providing that "where there are no such profits and gains, an amount equal to the relevant amount or capital employed during the previous year (viz., the six per cent of the capital employed).. shall be carried for war d and set off against profits and gains referred to in sub-section, (1) ........".There is another vital distinction. While section 15C(4) refers to relief in case of only taxable profits, section 80K provides that in computing the total income of an assessee whose gross total income includes any income by way of dividends, there shall be allowed in computing his total income a deduction from such income by way of dividends an amount equal to such part thereof as is attributable to profits and gains derived by the company from an industrial under taking on which no tax is payable by the company under the Act or in respect of which the company is entitled to deduction under section 80J (emphasis supplied). T he expression "or in respect of which the company is entitled to a deduction under section 80J" introduces a new concept. There is no legal requirement of a de facto deduction of the amount in question in the particular assessment y ear. As against actual deduction the companys entitlement to deduction in the relevant year is enough to answer the requirement of section 80J. Necessarily, therefore, the dividend-earner will also be entitled to invoke section 80K and obtain pari passu the benefit of the provision.12. It is submitted on behalf of the appellants that unless there is actual deduction under section 80J, the shareholder is not entitled to claim benefit under section 80K. The appellants further con tend that section 80A(2) of the Act is a complete answer to the claim of the respondents. By sub- section (2) of section 80A the entire amount of deduction under Chapter VI-A shall not in any case exceed the gross total income of the assessee. It was, therefore, submitted that as there were not assessable incomes of the company in the particular years, the question of deduction of the monetary benefit by the shareholder would not arise. We are unable to accept this submission. Under old section 15C, the shareholder was entitled to relief only when the company was able to get actual deduction. Both were at par. The parity has been sought to be maintained under the amended provisions of sections 80J and 80K between the company and the shareholder. The company, when becomes entitled to deductions under section 80J(1), gets it either in that year or by a set off in subsequent years. If the interpretations which we have put to the new sections were not to hold good, the result will be that the shareholder will be debarred from getting any relief when dividend is declared in a year in which the company, because of section 80A(2), is not able to get actual deduction. The company will reap the advantage of set off under section 80J(3) in subsequent years, while the shareholder for the dividend declared in the past, will get no relief, under section 80K. This anomaly is avoided, and the legislature intended to avoid it, by use of the expression "the company is entitled to a deduction" in section 80K and on the interpretation we have put above.We are, therefore, clearly of opinion that the company was not required under the law to deduct at source tax from the dividends which they were declaring to the shareholder. The company was entitled to an appropriate certificate from the Income-tax Officer under section 197(3).
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### Explanation:
A perusal of sections 80J(3) and 15C would clearly show the difference in the scheme of the two provisions. Broadly speaking, there was no question of "carry forward" from one accounting year to the succeeding year or years the sums allowable under sectionis another vital distinction. While section 15C(4) refers to relief in case of only taxable profits, section 80K provides that in computing the total income of an assessee whose gross total income includes any income by way of dividends, there shall be allowed in computing his total income a deduction from such income by way of dividends an amount equal to such part thereof as is attributable to profits and gains derived by the company from an industrial under taking on which no tax is payable by the company under the Act or in respect of which the company is entitled to deduction under section 80J (emphasis supplied). T he expression "or in respect of which the company is entitled to a deduction under section 80J" introduces a new concept. There is no legal requirement of a de facto deduction of the amount in question in the particular assessment y ear. As against actual deduction the companys entitlement to deduction in the relevant year is enough to answer the requirement of section 80J. Necessarily, therefore, the dividend-earner will also be entitled to invoke section 80K and obtain pari passu the benefit of theare unable to accept this submission. Under old section 15C, the shareholder was entitled to relief only when the company was able to get actual deduction. Both were at par. The parity has been sought to be maintained under the amended provisions of sections 80J and 80K between the company and the shareholder. The company, when becomes entitled to deductions under section 80J(1), gets it either in that year or by a set off in subsequent years. If the interpretations which we have put to the new sections were not to hold good, the result will be that the shareholder will be debarred from getting any relief when dividend is declared in a year in which the company, because of section 80A(2), is not able to get actual deduction. The company will reap the advantage of set off under section 80J(3) in subsequent years, while the shareholder for the dividend declared in the past, will get no relief, under section 80K. This anomaly is avoided, and the legislature intended to avoid it, by use of the expression "the company is entitled to a deduction" in section 80K and on the interpretation we have put above.We are, therefore, clearly of opinion that the company was not required under the law to deduct at source tax from the dividends which they were declaring to the shareholder. The company was entitled to an appropriate certificate from the Income-tax Officer under section
|
Kalipada Chakraborti And Another Vs. Palani Bala Devi And Others | but to the heirs of the last male owner. It is admitted that the second element is present in the case of succession to the rights of a female shebait. As regards the first, it is quite true that regarding the powers of alienation, a female shebait is restricted in the same manner as the male shebait, but that is because there are certain limitations and restrictions attached to and inherent in the shebaiti right itself which exist irrespective of the fact whether the shebaitship vests in a male or a female heir: Vide Angurbala v. Debabrata, (1951) S.C.R. l125 at p. l136.16. But although we may not approve of this line of reasoning adopted by the High Court, we are in agreement with the learned Judges that the proper Article to be applied in this case is Art, 124 and not Art. 141. There could be no doubt that there is an element in the shebaiti right which has the legal characteristics of property: but shebaitship is property of a peculiar and anomalous character, and it is difficult to say that it comes under the category of immovable property as it is known in law. Article 141 refers expressly to immovable property and not to property in the general sense of the word, on the other hand, it is quite settled that a shebaiti right is a hereditary office and as such comes within the express language of Art. 124, Limitation Act. We think that when there is a specific Article in the Limitation Act which covers a particular case, it is not proper to apply another Article, the application of which is not free from doubt. We hold, therefore, that Art. 124 is the proper Article to be applied, and the question now arises as to whether the plaintiffs suit is barred by limitation under this Article as has been held by the learned Judges of the High Court?17. Article 124 relates to a suit for possession of a hereditary office and the period of limitation prescribed for such suit is 12 years from the date when the defendant takes possession of the office adversely to the plaintiff. The intention of the Legislature is obviously to treat hereditary office like land for the purpose of barring suits for possession of such office and extinguishing the right in the possession thereof after a certain period. The question is, when did the defendant or her predecessor take possession of the office of shebait adversely to the plaintiffs? It is conceded that the possession was adverse to Rajlakshmi, the holder of shebaiti at that time: but the contention of Mr. Chatterjee is that as the plaintiffs did not claim through or from Rajlakshmi, the defendant could not be regarded as taking possession of the office adversely to the plaintiffs. He refers in this connection to the definition of "plaintiff " in S. 2(8) of the Limitation Act, where it is stated that plaintiff includes any person from or through whom a plaintiff derives his right to sue. In answer to this it is argued by Mr. Ghose that a shebait like a trustee represents the entire trust estate and the next trustee, even though he may not strictly claim through or from the previous holder of the office, must be deemed to be bound by acts or omissions of the latter; and in support of this contention he relies upon the judgment of the Judicial Committee in Gnanasambanda v. Velu Pandaram, 27 Ind. App. 69 (P. C).We do not think that this contention is right, Article 124 relates to a hereditary office and this means that the office goes from one person to another solely by reason of the latter being a heir to the former. Under the Hindu Law of Inheritance, when a female heir intervenes, she holds during her lifetime a limited interest in the estate and after her death succession opens out not to her heirs but to the heirs of the last male holder. It has not been and cannot he disputed that the same rule applies in the case of succession to shebaitship. Reading Art. 124, Limitation Act, along with S. 2(8), the conclusion is irresistible that to defeat the title of the plaintiff under Art. 124 it is necessary to establish that the defendant had taken possession of the office adversely to the plaintiff or somebody from or through whom the plaintiff derives his title, more than 12 years prior to the institution of the suit. This is exactly what is laid down in Gnauasambanda v. Velu, 27 Ind. App. 69 (P. C.). In this case two persons, who were hereditary trustees of a religious endowment, sold their right of management and transferred the entire endowed property to the defendant appellant. The sales were null and void and the possession taken by the purchaser was adverse to the vendors from the very beginning. The plaintiff Velu was the son and heir of one of the hereditary trustees and he instituted the suit more than 12 years after the date of the transaction claiming possession of the office along with the heir of the other trustee who was joined as a defendant in the suit. It was held by the judicial committee that the plaintiffs suit was barred and the reason given is that the respondent Velu could only be entitled as heir to his father Nataraja, and from him and through him, and consequently his suit was barred by Art. 124." This portion of the judgment, it seems was overlooked by the learned Judges of the Calcutta High Court and also by the Madras High Court in the cases referred to above. The fact that under the ordinary law of inheritance the plaintiffs would come as the heirs of the husband of Rajlakshmi is immaterial. That would not be deriving their right to sue through and from the widow, and in this view of the case the plaintiffs suit cannot be held to be barred. | 1[ds]11. The proposition is well established that the alienation of the shebaiti right by a shebait in favour of a stranger is absolutely void in Hindu Law and cannot be validated even on the footing of a custom. The alienee of the right is, therefore, a trespasser out and out and his possession as against the transfered is adverse from the very beginning. Mr. Chatterjea appearing for the plaintiffs appellant; has not assailed the correctness of this proposition of law; - his contention is that the possession of shebaiti right by defendant 1 and her predecessors might have been adverse against Rajlakshmi ever since the date of transfer and on the strength of such possession they might have acquired a statutory title against her in respect of the shebaiti interest, but such adverse possession for more than the statutory period though it might bar the widow would not bar the reversioners who do not derive their title from or through her. This, it is said, is the principle underlying the Law of Limitation in India ever since 1871 and Art.141, Limitation Act, expressly recognises and gives effect tolearned Judges of the High Court have held and quite properly that the benefit of Art. 141 could be claimed only if there was a qualified estate in the female heir after whose death the plaintiff was entitled to the property as the heir of the last male holder. According to the learned Judges, however, this condition was not fulfilled in the present case, inasmuch as the subject-matter of dispute was the right of shebaitship and the rights of a female shebait, it is said, are not in any way more restricted or qualified than those of a male shebait, although she cannot transmit this office to her own heirs.Article 124 relates to a suit for possession of a hereditary office and the period of limitation prescribed for such suit is 12 years from the date when the defendant takes possession of the office adversely to the plaintiff. The intention of the Legislature is obviously to treat hereditary office like land for the purpose of barring suits for possession of such office and extinguishing the right in the possession thereof after a certain period. The question is, when did the defendant or her predecessor take possession of the office of shebait adversely to the plaintiffs? It is conceded that the possession was adverse to Rajlakshmi, the holder of shebaiti at that time: but the contention of Mr. Chatterjee is that as the plaintiffs did not claim through or from Rajlakshmi, the defendant could not be regarded as taking possession of the office adversely to the plaintiffs. He refers in this connection to the definition of "plaintiff " in S. 2(8) of the Limitation Act, where it is stated that plaintiff includes any person from or through whom a plaintiff derives his right toportion of the judgment, it seems was overlooked by the learned Judges of the Calcutta High Court and also by the Madras High Court in the cases referred to above. The fact that under the ordinary law of inheritance the plaintiffs would come as the heirs of the husband of Rajlakshmi is immaterial. That would not be deriving their right to sue through and from the widow, and in this view of the case the plaintiffs suit cannot be held to be barred. | 1 | 5,599 | 608 | ### Instruction:
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but to the heirs of the last male owner. It is admitted that the second element is present in the case of succession to the rights of a female shebait. As regards the first, it is quite true that regarding the powers of alienation, a female shebait is restricted in the same manner as the male shebait, but that is because there are certain limitations and restrictions attached to and inherent in the shebaiti right itself which exist irrespective of the fact whether the shebaitship vests in a male or a female heir: Vide Angurbala v. Debabrata, (1951) S.C.R. l125 at p. l136.16. But although we may not approve of this line of reasoning adopted by the High Court, we are in agreement with the learned Judges that the proper Article to be applied in this case is Art, 124 and not Art. 141. There could be no doubt that there is an element in the shebaiti right which has the legal characteristics of property: but shebaitship is property of a peculiar and anomalous character, and it is difficult to say that it comes under the category of immovable property as it is known in law. Article 141 refers expressly to immovable property and not to property in the general sense of the word, on the other hand, it is quite settled that a shebaiti right is a hereditary office and as such comes within the express language of Art. 124, Limitation Act. We think that when there is a specific Article in the Limitation Act which covers a particular case, it is not proper to apply another Article, the application of which is not free from doubt. We hold, therefore, that Art. 124 is the proper Article to be applied, and the question now arises as to whether the plaintiffs suit is barred by limitation under this Article as has been held by the learned Judges of the High Court?17. Article 124 relates to a suit for possession of a hereditary office and the period of limitation prescribed for such suit is 12 years from the date when the defendant takes possession of the office adversely to the plaintiff. The intention of the Legislature is obviously to treat hereditary office like land for the purpose of barring suits for possession of such office and extinguishing the right in the possession thereof after a certain period. The question is, when did the defendant or her predecessor take possession of the office of shebait adversely to the plaintiffs? It is conceded that the possession was adverse to Rajlakshmi, the holder of shebaiti at that time: but the contention of Mr. Chatterjee is that as the plaintiffs did not claim through or from Rajlakshmi, the defendant could not be regarded as taking possession of the office adversely to the plaintiffs. He refers in this connection to the definition of "plaintiff " in S. 2(8) of the Limitation Act, where it is stated that plaintiff includes any person from or through whom a plaintiff derives his right to sue. In answer to this it is argued by Mr. Ghose that a shebait like a trustee represents the entire trust estate and the next trustee, even though he may not strictly claim through or from the previous holder of the office, must be deemed to be bound by acts or omissions of the latter; and in support of this contention he relies upon the judgment of the Judicial Committee in Gnanasambanda v. Velu Pandaram, 27 Ind. App. 69 (P. C).We do not think that this contention is right, Article 124 relates to a hereditary office and this means that the office goes from one person to another solely by reason of the latter being a heir to the former. Under the Hindu Law of Inheritance, when a female heir intervenes, she holds during her lifetime a limited interest in the estate and after her death succession opens out not to her heirs but to the heirs of the last male holder. It has not been and cannot he disputed that the same rule applies in the case of succession to shebaitship. Reading Art. 124, Limitation Act, along with S. 2(8), the conclusion is irresistible that to defeat the title of the plaintiff under Art. 124 it is necessary to establish that the defendant had taken possession of the office adversely to the plaintiff or somebody from or through whom the plaintiff derives his title, more than 12 years prior to the institution of the suit. This is exactly what is laid down in Gnauasambanda v. Velu, 27 Ind. App. 69 (P. C.). In this case two persons, who were hereditary trustees of a religious endowment, sold their right of management and transferred the entire endowed property to the defendant appellant. The sales were null and void and the possession taken by the purchaser was adverse to the vendors from the very beginning. The plaintiff Velu was the son and heir of one of the hereditary trustees and he instituted the suit more than 12 years after the date of the transaction claiming possession of the office along with the heir of the other trustee who was joined as a defendant in the suit. It was held by the judicial committee that the plaintiffs suit was barred and the reason given is that the respondent Velu could only be entitled as heir to his father Nataraja, and from him and through him, and consequently his suit was barred by Art. 124." This portion of the judgment, it seems was overlooked by the learned Judges of the Calcutta High Court and also by the Madras High Court in the cases referred to above. The fact that under the ordinary law of inheritance the plaintiffs would come as the heirs of the husband of Rajlakshmi is immaterial. That would not be deriving their right to sue through and from the widow, and in this view of the case the plaintiffs suit cannot be held to be barred.
### Response:
1
### Explanation:
11. The proposition is well established that the alienation of the shebaiti right by a shebait in favour of a stranger is absolutely void in Hindu Law and cannot be validated even on the footing of a custom. The alienee of the right is, therefore, a trespasser out and out and his possession as against the transfered is adverse from the very beginning. Mr. Chatterjea appearing for the plaintiffs appellant; has not assailed the correctness of this proposition of law; - his contention is that the possession of shebaiti right by defendant 1 and her predecessors might have been adverse against Rajlakshmi ever since the date of transfer and on the strength of such possession they might have acquired a statutory title against her in respect of the shebaiti interest, but such adverse possession for more than the statutory period though it might bar the widow would not bar the reversioners who do not derive their title from or through her. This, it is said, is the principle underlying the Law of Limitation in India ever since 1871 and Art.141, Limitation Act, expressly recognises and gives effect tolearned Judges of the High Court have held and quite properly that the benefit of Art. 141 could be claimed only if there was a qualified estate in the female heir after whose death the plaintiff was entitled to the property as the heir of the last male holder. According to the learned Judges, however, this condition was not fulfilled in the present case, inasmuch as the subject-matter of dispute was the right of shebaitship and the rights of a female shebait, it is said, are not in any way more restricted or qualified than those of a male shebait, although she cannot transmit this office to her own heirs.Article 124 relates to a suit for possession of a hereditary office and the period of limitation prescribed for such suit is 12 years from the date when the defendant takes possession of the office adversely to the plaintiff. The intention of the Legislature is obviously to treat hereditary office like land for the purpose of barring suits for possession of such office and extinguishing the right in the possession thereof after a certain period. The question is, when did the defendant or her predecessor take possession of the office of shebait adversely to the plaintiffs? It is conceded that the possession was adverse to Rajlakshmi, the holder of shebaiti at that time: but the contention of Mr. Chatterjee is that as the plaintiffs did not claim through or from Rajlakshmi, the defendant could not be regarded as taking possession of the office adversely to the plaintiffs. He refers in this connection to the definition of "plaintiff " in S. 2(8) of the Limitation Act, where it is stated that plaintiff includes any person from or through whom a plaintiff derives his right toportion of the judgment, it seems was overlooked by the learned Judges of the Calcutta High Court and also by the Madras High Court in the cases referred to above. The fact that under the ordinary law of inheritance the plaintiffs would come as the heirs of the husband of Rajlakshmi is immaterial. That would not be deriving their right to sue through and from the widow, and in this view of the case the plaintiffs suit cannot be held to be barred.
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Shaleen Kabra Vs. Shiwani Kabra | that the custody of the younger son should be given to the respondent-mother, as she would be in a better position to understand the needs of such a young child. On this basis, the custody of the younger son was directed to remain with the respondent.8. The learned Single Judge also recorded a finding to the effect that both the children appeared to be very happy in the company of each other as there was a strong bonding between them.9. Being aggrieved by the said judgment, both the parties have come before this Court vide the present appeals. 10. We heard the learned counsel for the parties, and also spoke to the children at length. 11. The counsel appearing for the appellant-father, at the outset, submitted that the High Court ought not to have directed separation of two children, in view of the close relationship between them and he further submitted that there could be disastrous effect of such a separation on them. Thereafter, the learned counsel made further submissions about the poor academic performance of the younger son while in the custody of the respondent-mother, and also regarding the alleged adulterous conduct of the respondent-mother, which was said to have a severe adverse effect on the children. The learned counsel further added that the father of the appellant, i.e. grand father of the children, is staying with the appellant and he, being a very educated person, would be in a position to take good care of the children. On these grounds inter alia, the learned counsel argued that both the children ought not to have been separated, and that custody ought to have been granted to the appellant-father. 12. On the other hand, the learned counsel appearing for the respondent- mother submitted that looking to the service condition and status of the appellant-father, occupying a stressful position in the state of Jammu & Kashmir, he would not have sufficient time to give adequate attention to the children and if custody of the children is given to him, the children would be taken care of only by servants and that would not be in the interest of the children. Further, the learned counsel argued that as the children were already in a very good school in Delhi, it would not be just and proper to move them to another school in Jammu & Kashmir which might be of an inferior standard. For the aforestated reasons, the learned counsel argued that custody of even the elder son ought to have been granted to the respondent-mother. 13. On hearing the learned counsel and also upon talking at length with the children, we find force in the arguments of the counsel for the appellant- father. 14. Upon speaking to the children personally, we also found that they are indeed very much attached to each other. This fact was also noted by the learned Single Judge of the High Court in the impugned judgment, and is also admitted by both the parties in their respective written submissions. Looking to the overall peculiar circumstances of the case, it is our view that the welfare of both the children would be best served if they remain together. In our view it would not be just and proper to separate both brothers, who are admittedly very close to each other. 15. If we are of the view that both the brothers should not be separated and should be kept together, the question would be as to who should be given custody of the children. 16. We are of the view that the children should be with the appellant- father. The respondent-mother is not in a position to look after the educational need of the elder son and as we do not desire to separate both the brothers, in our opinion, looking to the peculiar facts of the case, it would be in the interest of the children that they stay with the appellant-father. 17. We are sure that the appellant- father, who is a member of Indian Administrative Service and is a well groomed person, with the help of his father, who was also a professor, will be able to take very good care of the children. Their education would not be adversely affected even in Jammu and Kashmir as it would be possible for the appellant-father to get them educated in a good school in Jammu. We do not believe that the children would remain in company of servants as alleged by the learned counsel appearing for the respondent-mother. Father of the appellant i.e. the grandfather of the children would also be in a position to look after the children and infuse good cultural values into them. Normally, grandparents can spare more time with their grand children and especially company of well educated grandparents would not only help the children in their studies but would also help them to imbibe cultural and moral values and good manners.18. So as to see that the respondent-mother is also not kept away from the children, she shall have a right to visit the children atleast once in a month. The appellant –father shall make arrangements for A.C. First Class railway ticket for the respondent-mother or shall pay the railway fare to her so as to visit the children once in a month at a weekend and the appellant-father shall also make arrangements for stay of the respondent-mother either at his own residence, if the respondent-mother agrees to that, otherwise the appellant-father shall make arrangements for suitable accommodation for the respondent-mother when she comes to Jammu to visit the children.19. During the period of vacation exceeding two weeks, the appellant-father shall send the children to Delhi so that the children can stay with the respondent-mother atleast for three days. We are sure that the appellant and the respondent shall determine the modalities as to during which portion of the vacation, the children should visit the respondent-mother as almost both the parents are interested in having the company of the children. | 1[ds]14. Upon speaking to the children personally, we also found that they are indeed very much attached to each other. This fact was also noted by the learned Single Judge of the High Court in the impugned judgment, and is also admitted by both the parties in their respective written submissions. Looking to the overall peculiar circumstances of the case, it is our view that the welfare of both the children would be best served if they remain together. In our view it would not be just and proper to separate both brothers, who are admittedly very close to each other.We are of the view that the children should be with the appellantWe are sure that the appellantfather, who is a member of Indian Administrative Service and is a well groomed person, with the help of his father, who was also a professor, will be able to take very good care of the children. Their education would not be adversely affected even in Jammu and Kashmir as it would be possible for theto get them educated in a good school in Jammu. We do not believe that the children would remain in company of servants as alleged by the learned counsel appearing for theFather of the appellant i.e. the grandfather of the children would also be in a position to look after the children and infuse good cultural values into them. Normally, grandparents can spare more time with their grand children and especially company of well educated grandparents would not only help the children in their studies but would also help them to imbibe cultural and moral values and good manners.18. So as to see that theis also not kept away from the children, she shall have a right to visit the children atleast once in a month. The appellant –father shall make arrangements for A.C. First Class railway ticket for theor shall pay the railway fare to her so as to visit the children once in a month at a weekend and theshall also make arrangements for stay of theeither at his own residence, if theagrees to that, otherwise theshall make arrangements for suitable accommodation for thewhen she comes to Jammu to visit the children.19. During the period of vacation exceeding two weeks, theshall send the children to Delhi so that the children can stay with theatleast for three days.We are sure that the appellantand the respondent shall determine the modalities as to during which portion of the vacation, the children should visit theas almost both the parents are interested in having the company of the children. | 1 | 1,656 | 458 | ### Instruction:
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that the custody of the younger son should be given to the respondent-mother, as she would be in a better position to understand the needs of such a young child. On this basis, the custody of the younger son was directed to remain with the respondent.8. The learned Single Judge also recorded a finding to the effect that both the children appeared to be very happy in the company of each other as there was a strong bonding between them.9. Being aggrieved by the said judgment, both the parties have come before this Court vide the present appeals. 10. We heard the learned counsel for the parties, and also spoke to the children at length. 11. The counsel appearing for the appellant-father, at the outset, submitted that the High Court ought not to have directed separation of two children, in view of the close relationship between them and he further submitted that there could be disastrous effect of such a separation on them. Thereafter, the learned counsel made further submissions about the poor academic performance of the younger son while in the custody of the respondent-mother, and also regarding the alleged adulterous conduct of the respondent-mother, which was said to have a severe adverse effect on the children. The learned counsel further added that the father of the appellant, i.e. grand father of the children, is staying with the appellant and he, being a very educated person, would be in a position to take good care of the children. On these grounds inter alia, the learned counsel argued that both the children ought not to have been separated, and that custody ought to have been granted to the appellant-father. 12. On the other hand, the learned counsel appearing for the respondent- mother submitted that looking to the service condition and status of the appellant-father, occupying a stressful position in the state of Jammu & Kashmir, he would not have sufficient time to give adequate attention to the children and if custody of the children is given to him, the children would be taken care of only by servants and that would not be in the interest of the children. Further, the learned counsel argued that as the children were already in a very good school in Delhi, it would not be just and proper to move them to another school in Jammu & Kashmir which might be of an inferior standard. For the aforestated reasons, the learned counsel argued that custody of even the elder son ought to have been granted to the respondent-mother. 13. On hearing the learned counsel and also upon talking at length with the children, we find force in the arguments of the counsel for the appellant- father. 14. Upon speaking to the children personally, we also found that they are indeed very much attached to each other. This fact was also noted by the learned Single Judge of the High Court in the impugned judgment, and is also admitted by both the parties in their respective written submissions. Looking to the overall peculiar circumstances of the case, it is our view that the welfare of both the children would be best served if they remain together. In our view it would not be just and proper to separate both brothers, who are admittedly very close to each other. 15. If we are of the view that both the brothers should not be separated and should be kept together, the question would be as to who should be given custody of the children. 16. We are of the view that the children should be with the appellant- father. The respondent-mother is not in a position to look after the educational need of the elder son and as we do not desire to separate both the brothers, in our opinion, looking to the peculiar facts of the case, it would be in the interest of the children that they stay with the appellant-father. 17. We are sure that the appellant- father, who is a member of Indian Administrative Service and is a well groomed person, with the help of his father, who was also a professor, will be able to take very good care of the children. Their education would not be adversely affected even in Jammu and Kashmir as it would be possible for the appellant-father to get them educated in a good school in Jammu. We do not believe that the children would remain in company of servants as alleged by the learned counsel appearing for the respondent-mother. Father of the appellant i.e. the grandfather of the children would also be in a position to look after the children and infuse good cultural values into them. Normally, grandparents can spare more time with their grand children and especially company of well educated grandparents would not only help the children in their studies but would also help them to imbibe cultural and moral values and good manners.18. So as to see that the respondent-mother is also not kept away from the children, she shall have a right to visit the children atleast once in a month. The appellant –father shall make arrangements for A.C. First Class railway ticket for the respondent-mother or shall pay the railway fare to her so as to visit the children once in a month at a weekend and the appellant-father shall also make arrangements for stay of the respondent-mother either at his own residence, if the respondent-mother agrees to that, otherwise the appellant-father shall make arrangements for suitable accommodation for the respondent-mother when she comes to Jammu to visit the children.19. During the period of vacation exceeding two weeks, the appellant-father shall send the children to Delhi so that the children can stay with the respondent-mother atleast for three days. We are sure that the appellant and the respondent shall determine the modalities as to during which portion of the vacation, the children should visit the respondent-mother as almost both the parents are interested in having the company of the children.
### Response:
1
### Explanation:
14. Upon speaking to the children personally, we also found that they are indeed very much attached to each other. This fact was also noted by the learned Single Judge of the High Court in the impugned judgment, and is also admitted by both the parties in their respective written submissions. Looking to the overall peculiar circumstances of the case, it is our view that the welfare of both the children would be best served if they remain together. In our view it would not be just and proper to separate both brothers, who are admittedly very close to each other.We are of the view that the children should be with the appellantWe are sure that the appellantfather, who is a member of Indian Administrative Service and is a well groomed person, with the help of his father, who was also a professor, will be able to take very good care of the children. Their education would not be adversely affected even in Jammu and Kashmir as it would be possible for theto get them educated in a good school in Jammu. We do not believe that the children would remain in company of servants as alleged by the learned counsel appearing for theFather of the appellant i.e. the grandfather of the children would also be in a position to look after the children and infuse good cultural values into them. Normally, grandparents can spare more time with their grand children and especially company of well educated grandparents would not only help the children in their studies but would also help them to imbibe cultural and moral values and good manners.18. So as to see that theis also not kept away from the children, she shall have a right to visit the children atleast once in a month. The appellant –father shall make arrangements for A.C. First Class railway ticket for theor shall pay the railway fare to her so as to visit the children once in a month at a weekend and theshall also make arrangements for stay of theeither at his own residence, if theagrees to that, otherwise theshall make arrangements for suitable accommodation for thewhen she comes to Jammu to visit the children.19. During the period of vacation exceeding two weeks, theshall send the children to Delhi so that the children can stay with theatleast for three days.We are sure that the appellantand the respondent shall determine the modalities as to during which portion of the vacation, the children should visit theas almost both the parents are interested in having the company of the children.
|
NGAITLANG DHAR Vs. PANNA PRAGATI INFRASTRUCTURE PRIVATE LIMITED & ORS | already discussed hereinabove, we find that the procedure adopted by the RP as well as the CoC was fair, transparent and equitable. The CoC was facing the timeline, which was to end on 24th February, 2020, before which it had to finalise its decision. In these circumstances, it cannot be said that the decision of the CoC, to not grant any further time to PPIPL for submission of its revised bid and to finalise the Resolution Plan on 12th February, 2020 itself, can be said to be falling in the category of the term material irregularity. 30. We have extracted the minutes of the proceedings of the 5th meeting of the CoC in extenso. It could be seen that the CoC, after due deliberations, evaluated all the proposed Resolution Plans submitted by all the prospective Resolution Applicants and after giving sufficient opportunity to all the prospective Resolution Applicants, arrived at a considerate decision of accepting the Resolution Plan of the appellant-Ngaitlang Dhar in its meeting held on 11-12th February, 2020. 31. It is trite law that commercial wisdom of the CoC has been given paramount status without any judicial intervention, for ensuring completion of the processes within the timelines prescribed by the IBC. It has been consistently held that it is not open to the Adjudicating Authority (the NCLT) or the Appellate Authority (the NCLAT) to take into consideration any other factor other than the one specified in Section 30(2) or Section 61(3) of the IBC. It has been held that the opinion expressed by the CoC after due deliberations in the meetings through voting, as per voting shares, is the collective business decision and that the decision of the CoCs commercial wisdom is non- justiciable, except on limited grounds as are available for challenge under Section 30(2) or Section 61(3) of the IBC. This position of law has been consistently reiterated in a catena of judgments of this Court, including: (i) K. Sashidhar v. Indian Overseas Bank and Others (2019) 12 SCC 150 (ii) Committee of Creditors of Essar Steel India Limited Through Authorized Signatory v. Satish Kumar Gupta and Others (2020) 8 SCC 531 , (iii) Maharashtra Seamless Limited v. Padmanabhan Venkatesh and others (2020) 11 SCC 467 , (iv) Kalpraj Dharamshi and Another v. Kotak Investment Advisors Limited and Another (2021) SCC OnLine SC 204. (v) Ghanashyam Mishra and Sons Private Limited Through the Authorized Signatory v. Edelweiss Asset Reconstruction Company Limited Through the Director & Ors. (2021) 9 SCC 657 32. No doubt that, under Section 61(3)(ii) of the IBC, an appeal would be tenable if there has been material irregularity in exercise of the powers by the RP during the corporate insolvency resolution period. However, as discussed hereinabove, we do not find any material irregularity. 33. We may gainfully refer to the following observations of this Court in the case of Keshardeo Chamria v. Radha Kissen Chamria and others (1953) 4 SCR 136 while considering the scope of the words material irregularity, as are found in Section 115 of the Code of Civil Procedure,1908: Reference may also be made to the ob- servations of Bose, J. in his order of ref- erence in Narayan Sonaji v. Sheshrao Vithoba [AIR 1948 Nag 258] wherein it was said that the words illegally and material irregularity do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors con- templated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with. 34. In the present case, leave apart, there being any material irregularity, there has been no irregularity at all in the process adopted by the RP as well as the CoC. On the contrary, if the CoC would have permitted the PPIPL to participate in the process, despite it assuring the other three prospective Resolution Applicants in its meeting held on 11-12th February, 2020, that the absentee prospective Resolution Applicant (PPIPL) would be excluded from participation, it could have been said to be an irregularity in the procedure followed. 35. Insofar as the contention of the learned counsel, Shri Abhijeet Sinha, that the NCLT had already extended the CIRP period by 90 days vide order dated 26th February, 2020 and therefore, there was no necessity to hastily approve the Resolution Plan of Ngaitlang Dhar on 12th February, 2020, is concerned, we find the same to be without substance. It will be relevant to mention that the period of 180 days was to expire on 24th February, 2020, and therefore, in the meeting dated 12th February, 2020 itself, the CoC after resolving to declare Ngaitlang Dhar as H-1 bidder had resolved to authorise the RP to seek an extension of CIRP period before the NCLT. 36. It will be relevant to refer to paragraph 2 of the order dated 26th February, 2020 passed by the NCLT, which reads thus: 2. It is the submission of the RP that the CoC in its 5th meeting held on 11.02.2020 concluded on 12.02.2020 declared one Mr. N. Dhar as highest bidder and the said decision of the CoC is under consideration for approval with the higher authority of the CoC and, therefore, prayed for further extension of CIRP period to 90 days with effect from 25.02.2020 37. It could thus be seen that the contention in that regard is also without substance. It is further to be noted that, as has been consistently held by this Court in catena of judgments, referred to hereinabove, the dominant purpose of the IBC is revival of the Corporate Debtor and making it an on-going concern. In the present case, the said purpose is already achieved, inasmuch as all the dues of the financial creditors, i.e., the Allahabad Bank and the Corporation bank, have already been paid, and the Corporate Debtor, in respect of which CIRP was initiated, is now an on-going concern. | 1[ds]26. It is thus clear that the respondent No.1-PPIPL was very much aware that the CoC has decided to finalise the proceedings by 12th February, 2020. It is also clear that though PPIPL was first called upon by the CoC to enhance the bid amount, it had specifically rejected the same. It insisted on disclosing the basis of score. In the proceedings of the 5th meeting of the CoC dated 11th February, 2020, post lunch, though Ngaitlang Dhar had enhanced his bid from Rs.63 crore to Rs.64 crore, the representative of PPIPL subsequently came and requested for adjourning the meeting for few days. The said request was specifically rejected by the CoC by informing the representative of PPIPL that it had to adhere to the IBC timeline and would have to conclude the matter by next day. On the next day, i.e., 12th February, 2020, when the adjourned proceedings of the CoC were held, the respondent No.1-PPIPL had sent an email, stating therein that the Directors of its Company will not be available for the said meeting and requested for deferring the meeting by a day or two. On the insistence of all the prospective Resolution Applicants present, the CoC clarified that since the timeline was coming to an end, it had decided to exclude the prospective Resolution Applicants who were not present in the said meeting. In the said meeting, Ngaitlang Dhar came to be declared as the highest bidder after he improved his bid in the open bidding held between him and Mr. Abhishek Agarwal.27. It could thus be seen that the RP as well as the CoC had acted in a totally transparent manner. An equal opportunity was accorded to all the prospective Resolution Applicants. However, the respondent No.1-PPIPL, without improving his bid amount, went on insisting for more time, which request was specifically rejected by the CoC.29. As already discussed hereinabove, we find that the procedure adopted by the RP as well as the CoC was fair, transparent and equitable. The CoC was facing the timeline, which was to end on 24th February, 2020, before which it had to finalise its decision. In these circumstances, it cannot be said that the decision of the CoC, to not grant any further time to PPIPL for submission of its revised bid and to finalise the Resolution Plan on 12th February, 2020 itself, can be said to be falling in the category of the term material irregularity.30. We have extracted the minutes of the proceedings of the 5th meeting of the CoC in extenso. It could be seen that the CoC, after due deliberations, evaluated all the proposed Resolution Plans submitted by all the prospective Resolution Applicants and after giving sufficient opportunity to all the prospective Resolution Applicants, arrived at a considerate decision of accepting the Resolution Plan of the appellant-Ngaitlang Dhar in its meeting held on 11-12th February, 2020.31. It is trite law that commercial wisdom of the CoC has been given paramount status without any judicial intervention, for ensuring completion of the processes within the timelines prescribed by the IBC. It has been consistently held that it is not open to the Adjudicating Authority (the NCLT) or the Appellate Authority (the NCLAT) to take into consideration any other factor other than the one specified in Section 30(2) or Section 61(3) of the IBC. It has been held that the opinion expressed by the CoC after due deliberations in the meetings through voting, as per voting shares, is the collective business decision and that the decision of the CoCs commercial wisdom is non- justiciable, except on limited grounds as are available for challenge under Section 30(2) or Section 61(3) of the IBC. This position of law has been consistently reiterated in a catena of judgments of this Court, including:(i) K. Sashidhar v. Indian Overseas Bank and Others (2019) 12 SCC 150 (ii) Committee of Creditors of Essar Steel India Limited Through Authorized Signatory v. Satish Kumar Gupta and Others (2020) 8 SCC 531 ,(iii) Maharashtra Seamless Limited v. Padmanabhan Venkatesh and others (2020) 11 SCC 467 ,(iv) Kalpraj Dharamshi and Another v. Kotak Investment Advisors Limited and Another (2021) SCC OnLine SC 204.(v) Ghanashyam Mishra and Sons Private Limited Through the Authorized Signatory v. Edelweiss Asset Reconstruction Company Limited Through the Director & Ors. (2021) 9 SCC 657 32. No doubt that, under Section 61(3)(ii) of the IBC, an appeal would be tenable if there has been material irregularity in exercise of the powers by the RP during the corporate insolvency resolution period. However, as discussed hereinabove, we do not find any material irregularity.33. We may gainfully refer to the following observations of this Court in the case of Keshardeo Chamria v. Radha Kissen Chamria and others (1953) 4 SCR 136 while considering the scope of the words material irregularity, as are found in Section 115 of the Code of Civil Procedure,1908:Reference may also be made to the ob- servations of Bose, J. in his order of ref- erence in Narayan Sonaji v. Sheshrao Vithoba [AIR 1948 Nag 258] wherein it was said that the words illegally and material irregularity do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors con- templated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with.34. In the present case, leave apart, there being any material irregularity, there has been no irregularity at all in the process adopted by the RP as well as the CoC. On the contrary, if the CoC would have permitted the PPIPL to participate in the process, despite it assuring the other three prospective Resolution Applicants in its meeting held on 11-12th February, 2020, that the absentee prospective Resolution Applicant (PPIPL) would be excluded from participation, it could have been said to be an irregularity in the procedure followed.35. Insofar as the contention of the learned counsel, Shri Abhijeet Sinha, that the NCLT had already extended the CIRP period by 90 days vide order dated 26th February, 2020 and therefore, there was no necessity to hastily approve the Resolution Plan of Ngaitlang Dhar on 12th February, 2020, is concerned, we find the same to be without substance. It will be relevant to mention that the period of 180 days was to expire on 24th February, 2020, and therefore, in the meeting dated 12th February, 2020 itself, the CoC after resolving to declare Ngaitlang Dhar as H-1 bidder had resolved to authorise the RP to seek an extension of CIRP period before the NCLT.37. It could thus be seen that the contention in that regard is also without substance. It is further to be noted that, as has been consistently held by this Court in catena of judgments, referred to hereinabove, the dominant purpose of the IBC is revival of the Corporate Debtor and making it an on-going concern. In the present case, the said purpose is already achieved, inasmuch as all the dues of the financial creditors, i.e., the Allahabad Bank and the Corporation bank, have already been paid, and the Corporate Debtor, in respect of which CIRP was initiated, is now an on-going concern. | 1 | 4,421 | 1,382 | ### 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:
already discussed hereinabove, we find that the procedure adopted by the RP as well as the CoC was fair, transparent and equitable. The CoC was facing the timeline, which was to end on 24th February, 2020, before which it had to finalise its decision. In these circumstances, it cannot be said that the decision of the CoC, to not grant any further time to PPIPL for submission of its revised bid and to finalise the Resolution Plan on 12th February, 2020 itself, can be said to be falling in the category of the term material irregularity. 30. We have extracted the minutes of the proceedings of the 5th meeting of the CoC in extenso. It could be seen that the CoC, after due deliberations, evaluated all the proposed Resolution Plans submitted by all the prospective Resolution Applicants and after giving sufficient opportunity to all the prospective Resolution Applicants, arrived at a considerate decision of accepting the Resolution Plan of the appellant-Ngaitlang Dhar in its meeting held on 11-12th February, 2020. 31. It is trite law that commercial wisdom of the CoC has been given paramount status without any judicial intervention, for ensuring completion of the processes within the timelines prescribed by the IBC. It has been consistently held that it is not open to the Adjudicating Authority (the NCLT) or the Appellate Authority (the NCLAT) to take into consideration any other factor other than the one specified in Section 30(2) or Section 61(3) of the IBC. It has been held that the opinion expressed by the CoC after due deliberations in the meetings through voting, as per voting shares, is the collective business decision and that the decision of the CoCs commercial wisdom is non- justiciable, except on limited grounds as are available for challenge under Section 30(2) or Section 61(3) of the IBC. This position of law has been consistently reiterated in a catena of judgments of this Court, including: (i) K. Sashidhar v. Indian Overseas Bank and Others (2019) 12 SCC 150 (ii) Committee of Creditors of Essar Steel India Limited Through Authorized Signatory v. Satish Kumar Gupta and Others (2020) 8 SCC 531 , (iii) Maharashtra Seamless Limited v. Padmanabhan Venkatesh and others (2020) 11 SCC 467 , (iv) Kalpraj Dharamshi and Another v. Kotak Investment Advisors Limited and Another (2021) SCC OnLine SC 204. (v) Ghanashyam Mishra and Sons Private Limited Through the Authorized Signatory v. Edelweiss Asset Reconstruction Company Limited Through the Director & Ors. (2021) 9 SCC 657 32. No doubt that, under Section 61(3)(ii) of the IBC, an appeal would be tenable if there has been material irregularity in exercise of the powers by the RP during the corporate insolvency resolution period. However, as discussed hereinabove, we do not find any material irregularity. 33. We may gainfully refer to the following observations of this Court in the case of Keshardeo Chamria v. Radha Kissen Chamria and others (1953) 4 SCR 136 while considering the scope of the words material irregularity, as are found in Section 115 of the Code of Civil Procedure,1908: Reference may also be made to the ob- servations of Bose, J. in his order of ref- erence in Narayan Sonaji v. Sheshrao Vithoba [AIR 1948 Nag 258] wherein it was said that the words illegally and material irregularity do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors con- templated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with. 34. In the present case, leave apart, there being any material irregularity, there has been no irregularity at all in the process adopted by the RP as well as the CoC. On the contrary, if the CoC would have permitted the PPIPL to participate in the process, despite it assuring the other three prospective Resolution Applicants in its meeting held on 11-12th February, 2020, that the absentee prospective Resolution Applicant (PPIPL) would be excluded from participation, it could have been said to be an irregularity in the procedure followed. 35. Insofar as the contention of the learned counsel, Shri Abhijeet Sinha, that the NCLT had already extended the CIRP period by 90 days vide order dated 26th February, 2020 and therefore, there was no necessity to hastily approve the Resolution Plan of Ngaitlang Dhar on 12th February, 2020, is concerned, we find the same to be without substance. It will be relevant to mention that the period of 180 days was to expire on 24th February, 2020, and therefore, in the meeting dated 12th February, 2020 itself, the CoC after resolving to declare Ngaitlang Dhar as H-1 bidder had resolved to authorise the RP to seek an extension of CIRP period before the NCLT. 36. It will be relevant to refer to paragraph 2 of the order dated 26th February, 2020 passed by the NCLT, which reads thus: 2. It is the submission of the RP that the CoC in its 5th meeting held on 11.02.2020 concluded on 12.02.2020 declared one Mr. N. Dhar as highest bidder and the said decision of the CoC is under consideration for approval with the higher authority of the CoC and, therefore, prayed for further extension of CIRP period to 90 days with effect from 25.02.2020 37. It could thus be seen that the contention in that regard is also without substance. It is further to be noted that, as has been consistently held by this Court in catena of judgments, referred to hereinabove, the dominant purpose of the IBC is revival of the Corporate Debtor and making it an on-going concern. In the present case, the said purpose is already achieved, inasmuch as all the dues of the financial creditors, i.e., the Allahabad Bank and the Corporation bank, have already been paid, and the Corporate Debtor, in respect of which CIRP was initiated, is now an on-going concern.
### Response:
1
### Explanation:
the prospective Resolution Applicants who were not present in the said meeting. In the said meeting, Ngaitlang Dhar came to be declared as the highest bidder after he improved his bid in the open bidding held between him and Mr. Abhishek Agarwal.27. It could thus be seen that the RP as well as the CoC had acted in a totally transparent manner. An equal opportunity was accorded to all the prospective Resolution Applicants. However, the respondent No.1-PPIPL, without improving his bid amount, went on insisting for more time, which request was specifically rejected by the CoC.29. As already discussed hereinabove, we find that the procedure adopted by the RP as well as the CoC was fair, transparent and equitable. The CoC was facing the timeline, which was to end on 24th February, 2020, before which it had to finalise its decision. In these circumstances, it cannot be said that the decision of the CoC, to not grant any further time to PPIPL for submission of its revised bid and to finalise the Resolution Plan on 12th February, 2020 itself, can be said to be falling in the category of the term material irregularity.30. We have extracted the minutes of the proceedings of the 5th meeting of the CoC in extenso. It could be seen that the CoC, after due deliberations, evaluated all the proposed Resolution Plans submitted by all the prospective Resolution Applicants and after giving sufficient opportunity to all the prospective Resolution Applicants, arrived at a considerate decision of accepting the Resolution Plan of the appellant-Ngaitlang Dhar in its meeting held on 11-12th February, 2020.31. It is trite law that commercial wisdom of the CoC has been given paramount status without any judicial intervention, for ensuring completion of the processes within the timelines prescribed by the IBC. It has been consistently held that it is not open to the Adjudicating Authority (the NCLT) or the Appellate Authority (the NCLAT) to take into consideration any other factor other than the one specified in Section 30(2) or Section 61(3) of the IBC. It has been held that the opinion expressed by the CoC after due deliberations in the meetings through voting, as per voting shares, is the collective business decision and that the decision of the CoCs commercial wisdom is non- justiciable, except on limited grounds as are available for challenge under Section 30(2) or Section 61(3) of the IBC. This position of law has been consistently reiterated in a catena of judgments of this Court, including:(i) K. Sashidhar v. Indian Overseas Bank and Others (2019) 12 SCC 150 (ii) Committee of Creditors of Essar Steel India Limited Through Authorized Signatory v. Satish Kumar Gupta and Others (2020) 8 SCC 531 ,(iii) Maharashtra Seamless Limited v. Padmanabhan Venkatesh and others (2020) 11 SCC 467 ,(iv) Kalpraj Dharamshi and Another v. Kotak Investment Advisors Limited and Another (2021) SCC OnLine SC 204.(v) Ghanashyam Mishra and Sons Private Limited Through the Authorized Signatory v. Edelweiss Asset Reconstruction Company Limited Through the Director & Ors. (2021) 9 SCC 657 32. No doubt that, under Section 61(3)(ii) of the IBC, an appeal would be tenable if there has been material irregularity in exercise of the powers by the RP during the corporate insolvency resolution period. However, as discussed hereinabove, we do not find any material irregularity.33. We may gainfully refer to the following observations of this Court in the case of Keshardeo Chamria v. Radha Kissen Chamria and others (1953) 4 SCR 136 while considering the scope of the words material irregularity, as are found in Section 115 of the Code of Civil Procedure,1908:Reference may also be made to the ob- servations of Bose, J. in his order of ref- erence in Narayan Sonaji v. Sheshrao Vithoba [AIR 1948 Nag 258] wherein it was said that the words illegally and material irregularity do not cover either errors of fact or law. They do not refer to the decision arrived at but to the manner in which it is reached. The errors con- templated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with.34. In the present case, leave apart, there being any material irregularity, there has been no irregularity at all in the process adopted by the RP as well as the CoC. On the contrary, if the CoC would have permitted the PPIPL to participate in the process, despite it assuring the other three prospective Resolution Applicants in its meeting held on 11-12th February, 2020, that the absentee prospective Resolution Applicant (PPIPL) would be excluded from participation, it could have been said to be an irregularity in the procedure followed.35. Insofar as the contention of the learned counsel, Shri Abhijeet Sinha, that the NCLT had already extended the CIRP period by 90 days vide order dated 26th February, 2020 and therefore, there was no necessity to hastily approve the Resolution Plan of Ngaitlang Dhar on 12th February, 2020, is concerned, we find the same to be without substance. It will be relevant to mention that the period of 180 days was to expire on 24th February, 2020, and therefore, in the meeting dated 12th February, 2020 itself, the CoC after resolving to declare Ngaitlang Dhar as H-1 bidder had resolved to authorise the RP to seek an extension of CIRP period before the NCLT.37. It could thus be seen that the contention in that regard is also without substance. It is further to be noted that, as has been consistently held by this Court in catena of judgments, referred to hereinabove, the dominant purpose of the IBC is revival of the Corporate Debtor and making it an on-going concern. In the present case, the said purpose is already achieved, inasmuch as all the dues of the financial creditors, i.e., the Allahabad Bank and the Corporation bank, have already been paid, and the Corporate Debtor, in respect of which CIRP was initiated, is now an on-going concern.
|
Associated Cement Companies Limited, Kymore Vs. Commissioner Of Sales-Tax, Indore, Etc. Etc | the sales in question are interstate in nature or should be regarded as intrastate. It is seen that the Cement Marketing Company is an independent organisation and is carrying on business as an independent entity. It is also seen that what has actually been taxed are the sales effected by the appellant to the Cement Marketing Company of India and not the sales made to the parties which obtained an authorisation from the Cement Controller. This seems to be the crux of the matter." *On this basis reliance was placed on the decision of this Court in the case of Rohtas Industries Limited v. State of Bihar [ 1961 (12) STC 615, 620 : 1963 AIR(SC) 347] where, after analysing the terms of the contract between the manufacturer (appellant before the Supreme Court) and the Marketing Company, this Court held : (STC p. 620)"On a review of these terms of the agreement, it is manifest that the manufacturing companies had no control over the terms of the contract of sale by the Marketing Company and that the price at which cement was sold by the Marketing Company could not be controlled by the manufacturing companies; that the manufacturing companies were entitled, for ordinary cement, to be paid at the rate of Rs. 24 per ton at works, or at such other rate as might be decided upon by the directors of the Marketing Company, and in respect of special cements, at such additional rates as the directors of the Marketing Company might determine; that sale by the Marketing Company was not for and on behalf of the manufacturing companies but for itself and the manufacturing companies had no control over the sales nor had they any concern with the persons to whom cement was sold. In fine, the goods were supplied to the order of the Marketing Company which had the right, under the terms of the agreement, to sell on such terms as it thought fit, and that the manufacturing companies had the right to receive only the price fixed by the Marketing Company. The relationship in such cases can be regarded only as that of a seller and buyer and not of principal and agent." *4. This Court Rohtas Industries case [ 1961 (12) STC 615, 620 : 1963 AIR(SC) 347] on a detailed analysis of the terms of the contract came to hold that there was a sale between the manufacturer and the Marketing Company. It is not in dispute that the agreement between the appellant and the Marketing Company in this case has the same terms as this Court considered in Rohtas Industries case [ 1961 (12) STC 615, 620 : 1963 AIR(SC) 347]. It follows, therefore, that it must be held that there was a sale between the appellant and the Marketing Company5. The Marketing Company had its establishment at Nagpur within the State of Madhya Pradesh at that time. There was, therefore, a preceding local sale prior to the sales between the Marketing Company and the allottee of cement by the regulating authority. This Court in Rohtas Industries [ 1961 (12) STC 615, 620 : 1963 AIR(SC) 347] further found that the transaction between the manufacturer and the Marketing Company had nothing to do with the Marketing Companys sales to third parties. There was no privity between the manufacturer and the ultimate consumer who was said to have been located outside the State of Madhya Pradesh 6. The question for consideration is whether the sale that took place between the manufacturer and the Marketing Company can be taken to be covered by the Explanation. The Explanation which was repealed by the Sixth Amendment of the Constitution in 1956 read thus "For the purposes of sub-clause (a), a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State." * 7. Rohtas Industries case [ 1961 (12) STC 615, 620 : 1963 AIR(SC) 347] was dealing with a period prior to the Constitution; therefore, without the Explanation. The question for consideration thus is : Does the presence of the Explanation make any difference ? 8. What has been found as a fact in the statement of the case is that there was preceding local sales complete in every respect within Madhya Pradesh by which title to the cement had passed from the appellant to the Marketing Company. The concept of interstate sale as brought in by the Sixth Amendment or in the subsequent statute known as the Central Sales Tax Act was not in existence for the relevant period now under consideration. The finding recorded by the authorities is that the delivery of the cement was not the direct result of such sale or purchase of the cement outside the State. In the absence of such privity the Explanation is not attracted to the transactions9. An attempt was made by counsel to rely upon some of the later decisions of this Court where with reference to the provisions contained in the Central Sales Tax Act the law had been laid down. It is unnecessary to refer to them in view of the finding recorded by the authorities that the cement in this case actually had not been delivered as a direct result of such sale or purchase for the purpose of consumption outside the State. That is a finding clinching enough and once that is taken as binding on this Court, the only conclusion that can follow is that the Explanation does not apply and the assessments are justified. The ratio of Mohd. Serajuddin v. State of Orissa [ 1975 (2) SCC 47 : 1975 SCC(Tax) 269 : 1975 Supp SCR 169] is also against the appellants stand | 0[ds]8. What has been found as a fact in the statement of the case is that there was preceding local sales complete in every respect within Madhya Pradesh by which title to the cement had passed from the appellant to the Marketing Company. The concept of interstate sale as brought in by the Sixth Amendment or in the subsequent statute known as the Central Sales Tax Act was not in existence for the relevant period now under consideration. The finding recorded by the authorities is that the delivery of the cement was not the direct result of such sale or purchase of the cement outside the State. In the absence of such privity the Explanation is not attracted to the transactions9. An attempt was made by counsel to rely upon some of the later decisions of this Court where with reference to the provisions contained in the Central Sales Tax Act the law had been laid down. It is unnecessary to refer to them in view of the finding recorded by the authorities that the cement in this case actually had not been delivered as a direct result of such sale or purchase for the purpose of consumption outside the State. That is a finding clinching enough and once that is taken as binding on this Court, the only conclusion that can follow is that the Explanation does not apply and the assessments are justified. | 0 | 1,517 | 248 | ### 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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the sales in question are interstate in nature or should be regarded as intrastate. It is seen that the Cement Marketing Company is an independent organisation and is carrying on business as an independent entity. It is also seen that what has actually been taxed are the sales effected by the appellant to the Cement Marketing Company of India and not the sales made to the parties which obtained an authorisation from the Cement Controller. This seems to be the crux of the matter." *On this basis reliance was placed on the decision of this Court in the case of Rohtas Industries Limited v. State of Bihar [ 1961 (12) STC 615, 620 : 1963 AIR(SC) 347] where, after analysing the terms of the contract between the manufacturer (appellant before the Supreme Court) and the Marketing Company, this Court held : (STC p. 620)"On a review of these terms of the agreement, it is manifest that the manufacturing companies had no control over the terms of the contract of sale by the Marketing Company and that the price at which cement was sold by the Marketing Company could not be controlled by the manufacturing companies; that the manufacturing companies were entitled, for ordinary cement, to be paid at the rate of Rs. 24 per ton at works, or at such other rate as might be decided upon by the directors of the Marketing Company, and in respect of special cements, at such additional rates as the directors of the Marketing Company might determine; that sale by the Marketing Company was not for and on behalf of the manufacturing companies but for itself and the manufacturing companies had no control over the sales nor had they any concern with the persons to whom cement was sold. In fine, the goods were supplied to the order of the Marketing Company which had the right, under the terms of the agreement, to sell on such terms as it thought fit, and that the manufacturing companies had the right to receive only the price fixed by the Marketing Company. The relationship in such cases can be regarded only as that of a seller and buyer and not of principal and agent." *4. This Court Rohtas Industries case [ 1961 (12) STC 615, 620 : 1963 AIR(SC) 347] on a detailed analysis of the terms of the contract came to hold that there was a sale between the manufacturer and the Marketing Company. It is not in dispute that the agreement between the appellant and the Marketing Company in this case has the same terms as this Court considered in Rohtas Industries case [ 1961 (12) STC 615, 620 : 1963 AIR(SC) 347]. It follows, therefore, that it must be held that there was a sale between the appellant and the Marketing Company5. The Marketing Company had its establishment at Nagpur within the State of Madhya Pradesh at that time. There was, therefore, a preceding local sale prior to the sales between the Marketing Company and the allottee of cement by the regulating authority. This Court in Rohtas Industries [ 1961 (12) STC 615, 620 : 1963 AIR(SC) 347] further found that the transaction between the manufacturer and the Marketing Company had nothing to do with the Marketing Companys sales to third parties. There was no privity between the manufacturer and the ultimate consumer who was said to have been located outside the State of Madhya Pradesh 6. The question for consideration is whether the sale that took place between the manufacturer and the Marketing Company can be taken to be covered by the Explanation. The Explanation which was repealed by the Sixth Amendment of the Constitution in 1956 read thus "For the purposes of sub-clause (a), a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State." * 7. Rohtas Industries case [ 1961 (12) STC 615, 620 : 1963 AIR(SC) 347] was dealing with a period prior to the Constitution; therefore, without the Explanation. The question for consideration thus is : Does the presence of the Explanation make any difference ? 8. What has been found as a fact in the statement of the case is that there was preceding local sales complete in every respect within Madhya Pradesh by which title to the cement had passed from the appellant to the Marketing Company. The concept of interstate sale as brought in by the Sixth Amendment or in the subsequent statute known as the Central Sales Tax Act was not in existence for the relevant period now under consideration. The finding recorded by the authorities is that the delivery of the cement was not the direct result of such sale or purchase of the cement outside the State. In the absence of such privity the Explanation is not attracted to the transactions9. An attempt was made by counsel to rely upon some of the later decisions of this Court where with reference to the provisions contained in the Central Sales Tax Act the law had been laid down. It is unnecessary to refer to them in view of the finding recorded by the authorities that the cement in this case actually had not been delivered as a direct result of such sale or purchase for the purpose of consumption outside the State. That is a finding clinching enough and once that is taken as binding on this Court, the only conclusion that can follow is that the Explanation does not apply and the assessments are justified. The ratio of Mohd. Serajuddin v. State of Orissa [ 1975 (2) SCC 47 : 1975 SCC(Tax) 269 : 1975 Supp SCR 169] is also against the appellants stand
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8. What has been found as a fact in the statement of the case is that there was preceding local sales complete in every respect within Madhya Pradesh by which title to the cement had passed from the appellant to the Marketing Company. The concept of interstate sale as brought in by the Sixth Amendment or in the subsequent statute known as the Central Sales Tax Act was not in existence for the relevant period now under consideration. The finding recorded by the authorities is that the delivery of the cement was not the direct result of such sale or purchase of the cement outside the State. In the absence of such privity the Explanation is not attracted to the transactions9. An attempt was made by counsel to rely upon some of the later decisions of this Court where with reference to the provisions contained in the Central Sales Tax Act the law had been laid down. It is unnecessary to refer to them in view of the finding recorded by the authorities that the cement in this case actually had not been delivered as a direct result of such sale or purchase for the purpose of consumption outside the State. That is a finding clinching enough and once that is taken as binding on this Court, the only conclusion that can follow is that the Explanation does not apply and the assessments are justified.
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Virendra Vs. State of Punjab & Another | exercised if it is satisfied as to the necessity for its exercise for the purposes mentioned in the section. In other words, the exercise of the power is made dependent on the subjective satisfaction of the State Government or its delegate. If the State Government or its delegate is satisfied that for the purposes of achieving the specified objects it is necessary to prohibit the publication of any matter relating to the "save Hindi agitation", then for the Court to say that so much restriction is not necessary to achieve those objects is only to substitute its own satisfaction for that of the State Government or its delegate. The authority before making the order had applied its mind and had made its estimate of the general trend of the policy of these papers and their possible reactions and had formed its satisfaction as to the necessity for making the orders founded on the several articles published in these papers between May 30, 1957, and July 8, 1957, wherein the petitioner had systematically published matters in support of the agitation and its disapproval if everything which might run counter to that agitation. 17. It is admitted that the policy of the papers is to support the "save Hindi agitation" Therefore, a grievance that the papers are not allowed even to publish anything in support of the agitation sounds hollow, wholly unconvincing and of no substance at all. It may not be unreasonable for the Government to hold the opinion, in view of the antecedents and policy of these papers that they will not publish any news or views running counter to their policy without adverse comments. Further, if there happens to be a change in their policy there will be nothing to prevent the petitioner from making a representation to the State Government asking it to modify its Notifications. In our view, having regard to the body of S. 2 (1) (a) and the two provisos thereto, namely, the conditions as to the satisfaction of the authority in respect of certain matters specified in the section, the time limit as to the efficacy of the Notifications and the right to make a representation given to the aggrieved party makes this grievance wholly illusory. 18. It is said that the Notifications should have been qualified so as to prohibit the publication of any matter relating to the "save Hindi agitation" which was likely to prejudicially affect the public order. Suppose such a qualification had been super-added, then there should be some-body who would have to judge whether any given publication did or did not affect the public order. If the editor claimed that it did not but the State held that it did who would decide and when? It would obviously be the Court then which would have to decide whether the publication was likely to prejudicially affect the public order. If the Government exercised the power of seizure to stop the circulation of the offending issue then it would do so at the risk of having to satisfy the Court that for preventing the public order being prejudicially affected it was necessary to stop such circulation. That would be the issue before the Court. Likewise if the Government launched a prosecution under S. 4 then also the issue would be the same. That would obviously defeat the very purpose of the section itself which, for this argument, is accepted as valid. The question of the necessity for the exercise of the power for the purpose of achieving the specified objects is, having regard to the very nature of the thing and the surrounding circumstances, left by the section entirely to the subjective satisfaction of the Government and if the Government exercises that power after being satisfied that it is necessary so to do for the purposes mentioned in the section and if the Notification is within the section, in the sense that it directs or prohibits the doing of something which the section itself authorises the Government to direct or prohibit, then nothing further remains to be considered. The only issue that can then arise will be whether the Notification has been complied with and the Court will only have to decide whether there has been a contravention of the Notification. To introduce the suggested qualification in the Notification will be to make the exercise of the power which is by the section left to the subjective satisfaction of the Government dependent on an objective test subject to judicial scrutiny. That as we have explained, will defeat the very purpose of the section itself. 19. It is lastly contended that the impugned Notifications have been made mala fide in order only to suppress legitimate criticisms and fair comments on public affairs. We have perused the articles annexed to the affidavit in opposition and referred to in the Notifications themselves and we are not satisfied that no reasonable person reading those articles could entertain the opinion and feel satisfied that it was necessary to make the order for the purposes mentioned in the section. We are unable to hold, on the materials before us, that the Notifications issued under S. 2 were mala fide. 20. The observations hereinbefore made as to the safeguards set forth in the provisions of S. 2 (1)(a) and (b) cannot, however, apply to the provisions of S. 3.Although the exercise of the powers under S. 3 (1) is subject to the same condition as to the satisfaction of the State Government or its delegates as is mentioned in S. 2 (1) (a), there is, however, no time limit for the operation of an order made under this section nor is there any provision made for any representation being made to the State Government. The absence of these safeguards in S. 3 clearly makes its provisions unreasonable and the learned Solicitor-General obviously felt some difficulty in supporting the validity of this section.It is surprising how in the same statute the two sections came to be worded differently. 21. | 0[ds]There is and can be no dispute that the right to freedom of speech and expression carries with it the right to propagate and circulate ones views and opinions subject to reasonable restrictions. The point to be kept in view is that the several rights of freedom guaranteed to the citizens by Art. 19 (1) are exercisable by them throughout and in all parts of the territory of IndiaThe Notifications under S. 2 (1) (a) prohibiting the printing and publishing of any article, report, news item, letter or any other material of any character whatsoever relating to or connected with "save Hindi agitation" or those under S. 3 (1) imposing a ban against the entry and the circulation of the said papers published from New Delhi in the State of Punjab do not obviously take away the entire right, for the petitioners are yet at liberty to print and publish all other matters and are free to circulate the papers in all other parts of the territory of IndiaThe restrictions, so far as they extend, are certainly complete but whether they amount to a total prohibition of the exercise of the fundamental rights must be judged by reference to the ambit of the rights and, so judged, there can be no question that the entire rights under Arts. 19 (1) (a) and 19 (1) (g) have not been completely taken away, but restrictions have been imposed upon the exercise of those rights with reference to the publication of only articles etc., relating to a particular topic and with reference to the circulation of the papers only in a particular territory and, therefore, it is not right to say that these Sections have imposed a total prohibition upon the exercise of those fundamental rightsThe expression "in the interest of" makes the ambit of the protection very wide, for a law may not have been designed to directly maintain the public order or to directly protect the general public against any particular evil and yet it may have been enacted "in the interest of" the public order or the general public as the case may bewho will be the appropriate authority to determine at any given point of time as to whether the prevailing circumstances require some restriction to be placed on the right to freedom of speech and expression and the right to carry on any occupation, trade or business and to what extent?The answer was obvious, namely, that as the State Government was charged with the preservation of law and order in the State, as it alone was in possession of all material facts it would be the best authority to investigate the circumstances and assess the urgency of the situation that might arise, and to make up its mind whether any and if so what, anticipatory action must be taken for the prevention of the threatened or anticipated breach of the peaceThe Court is wholly unsuited to gauge the seriousness of the situation, for it cannot be in possession of materials which are available only to the executive Government. Therefore, the determination of the time when and the extent to which restrictions should be, imposed on the Press must of necessity be left to the judgment and discretion of the State Government and that is exactly what the Legislature did by passing the statuteIt gave wide powers to the State Government, or the authority to whom it might delegate the same, to be exercised only if it were satisfied as to the things mentioned in the two sections.The conferment of such wide powers to be exercised on the subjective satisfaction of the Government or its delegate as to the necessity for its exercise for the purpose of preventing or combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect public order cannot in view of the surrounding circumstances and tension brought about or aided by the agitation in the Press, be regarded as any thing but the imposition of permissible reasonable restrictions on the two fundamental rightsQuick decision and swift and effective action must be of the essence of those powers and the exercise of it must, therefore, be left to the subjective satisfaction of the Government charged with the duty of maintaining law and order. To make the exercise of these powers justiciable and subject to the judicial scrutiny will defeat the very purpose of the enactmentIn the first place, the discretion is given in the first instance to the State Government itself and not to a very subordinate officer like the licensing officer as was done in Dwarka Prasads case (D) (supra). It is true that the State Government may delegate the power to any officer or person but the fact that the power of delegation is to be exercised by the State Government itself is some safeguard against the abuse of this power of delegationThat apart, it will be remembered that the Uttar Pradesh Coal Control Order, 1953, with reference to which the observations were made, prescribed no principles and gave no guidance in the matter of the exercise of the power. There was nothing in that order to indicate the purpose for which and the circumstances under which the licensing authority could grant or refuse to grant, renew or refuse to renew or, suspend, revoke, cancel or modify any license under that order and, therefore, the power could be exercised by any person to whom the State Coal Controller might have chosen to delegate the sameNo rules had been framed and no directions had been given on the relevant matters to regulate or to guide the exercise of the discretion of the licensing officer. That cannot, in our judgment, be said about S. 2 or S. 3 of the impugned Act, for the exercise of the power under either of these two sections is conditioned by the State Government or the authority authorised by the said Government being satisfied that such action was necessary for the purpose of preventing or combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect the public orderThe two sections before us lay down the principle that the State Government or the delegated authority can exercise the power only if it is satisfied that its exercise is necessary for the purposes mentioned in the sections. It cannot be exercised for any other purpose. In this view of the matter neither of these sections can be questioned on the ground that they give unfettered and uncontrolled discretion to the State Government or one executive officer in the exercise of discretionary powers given by the sectionNo assumption ought to be made that the State Government or the authority will abuse its power. To make the exercise of the power justiciable will defeat the very purpose for which the power is given. Further, even if the officer may conceivably abuse the power, what will be struck down is not the statute but the abuse of powerThis consideration cannot apply to the case now under consideration. Article 19 (2) has been amended so as to extend its protection to a law imposing reasonable restrictions in the interests of public order and the language used in the two sections of the impugned Act quite clearly and explicitly limits the exercise of the powers conferred by them to the purposes specifically mentioned in the sections and to no other purposeApart from the limitations and conditions for the exercise of the powers contained in the body of the two sections as hereinbefore mentioned, there are two provisios to S. 2 (1) (a) which are important. Under the first proviso the orders made under S. 2 (1) (a) can only remain in force for two months from the making thereof. Further, there is another proviso permitting the aggrieved person to make a representation to the state Government which may, on consideration thereof, modify, confirm or rescind the orderUnder cl.(b) of sub-s.(2) also there are several conditions, namely, that the matter required to be published must not be more than two columns, that adequate remuneration must be paid for such publication and that such requirement cannot prevail for more than one week. A consideration of these safeguards must, in our opinion, have an important bearing in determinating the reasonableness of the restrictions imposed by S. 2The authority before making the order had applied its mind and had made its estimate of the general trend of the policy of these papers and their possible reactions and had formed its satisfaction as to the necessity for making the orders founded on the several articles published in these papers between May 30, 1957, and July 8, 1957, wherein the petitioner had systematically published matters in support of the agitation and its disapproval if everything which might run counter to that agitationIt is admitted that the policy of the papers is to support the "save Hindi agitation" Therefore, a grievance that the papers are not allowed even to publish anything in support of the agitation sounds hollow, wholly unconvincing and of no substance at all. It may not be unreasonable for the Government to hold the opinion, in view of the antecedents and policy of these papers that they will not publish any news or views running counter to their policy without adverse commentsIt would obviously be the Court then which would have to decide whether the publication was likely to prejudicially affect the public order. If the Government exercised the power of seizure to stop the circulation of the offending issue then it would do so at the risk of having to satisfy the Court that for preventing the public order being prejudicially affected it was necessary to stop such circulation. That would be the issue before the Court. Likewise if the Government launched a prosecution under S. 4 then also the issue would be the same. That would obviously defeat the very purpose of the section itself which, for this argument, is accepted as validThe question of the necessity for the exercise of the power for the purpose of achieving the specified objects is, having regard to the very nature of the thing and the surrounding circumstances, left by the section entirely to the subjective satisfaction of the Government and if the Government exercises that power after being satisfied that it is necessary so to do for the purposes mentioned in the section and if the Notification is within the section, in the sense that it directs or prohibits the doing of something which the section itself authorises the Government to direct or prohibit, then nothing further remains to be consideredThe only issue that can then arise will be whether the Notification has been complied with and the Court will only have to decide whether there has been a contravention of the Notification. To introduce the suggested qualification in the Notification will be to make the exercise of the power which is by the section left to the subjective satisfaction of the Government dependent on an objective test subject to judicial scrutiny. That as we have explained, will defeat the very purpose of the section itselfThe observations hereinbefore made as to the safeguards set forth in the provisions of S. 2 (1)(a) and (b) cannot, however, apply to the provisions of S. 3.Although the exercise of the powers under S. 3 (1) is subject to the same condition as to the satisfaction of the State Government or its delegates as is mentioned in S. 2 (1) (a), there is, however, no time limit for the operation of an order made under this section nor is there any provision made for any representation being made to the State GovernmentThe absence of these safeguards in S. 3 clearly makes its provisions unreasonable and the learned Solicitor-General obviously felt some difficulty in supporting the validity of this section.It is surprising how in the same statute the two sections came to be worded differently. | 0 | 6,885 | 2,156 | ### Instruction:
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exercised if it is satisfied as to the necessity for its exercise for the purposes mentioned in the section. In other words, the exercise of the power is made dependent on the subjective satisfaction of the State Government or its delegate. If the State Government or its delegate is satisfied that for the purposes of achieving the specified objects it is necessary to prohibit the publication of any matter relating to the "save Hindi agitation", then for the Court to say that so much restriction is not necessary to achieve those objects is only to substitute its own satisfaction for that of the State Government or its delegate. The authority before making the order had applied its mind and had made its estimate of the general trend of the policy of these papers and their possible reactions and had formed its satisfaction as to the necessity for making the orders founded on the several articles published in these papers between May 30, 1957, and July 8, 1957, wherein the petitioner had systematically published matters in support of the agitation and its disapproval if everything which might run counter to that agitation. 17. It is admitted that the policy of the papers is to support the "save Hindi agitation" Therefore, a grievance that the papers are not allowed even to publish anything in support of the agitation sounds hollow, wholly unconvincing and of no substance at all. It may not be unreasonable for the Government to hold the opinion, in view of the antecedents and policy of these papers that they will not publish any news or views running counter to their policy without adverse comments. Further, if there happens to be a change in their policy there will be nothing to prevent the petitioner from making a representation to the State Government asking it to modify its Notifications. In our view, having regard to the body of S. 2 (1) (a) and the two provisos thereto, namely, the conditions as to the satisfaction of the authority in respect of certain matters specified in the section, the time limit as to the efficacy of the Notifications and the right to make a representation given to the aggrieved party makes this grievance wholly illusory. 18. It is said that the Notifications should have been qualified so as to prohibit the publication of any matter relating to the "save Hindi agitation" which was likely to prejudicially affect the public order. Suppose such a qualification had been super-added, then there should be some-body who would have to judge whether any given publication did or did not affect the public order. If the editor claimed that it did not but the State held that it did who would decide and when? It would obviously be the Court then which would have to decide whether the publication was likely to prejudicially affect the public order. If the Government exercised the power of seizure to stop the circulation of the offending issue then it would do so at the risk of having to satisfy the Court that for preventing the public order being prejudicially affected it was necessary to stop such circulation. That would be the issue before the Court. Likewise if the Government launched a prosecution under S. 4 then also the issue would be the same. That would obviously defeat the very purpose of the section itself which, for this argument, is accepted as valid. The question of the necessity for the exercise of the power for the purpose of achieving the specified objects is, having regard to the very nature of the thing and the surrounding circumstances, left by the section entirely to the subjective satisfaction of the Government and if the Government exercises that power after being satisfied that it is necessary so to do for the purposes mentioned in the section and if the Notification is within the section, in the sense that it directs or prohibits the doing of something which the section itself authorises the Government to direct or prohibit, then nothing further remains to be considered. The only issue that can then arise will be whether the Notification has been complied with and the Court will only have to decide whether there has been a contravention of the Notification. To introduce the suggested qualification in the Notification will be to make the exercise of the power which is by the section left to the subjective satisfaction of the Government dependent on an objective test subject to judicial scrutiny. That as we have explained, will defeat the very purpose of the section itself. 19. It is lastly contended that the impugned Notifications have been made mala fide in order only to suppress legitimate criticisms and fair comments on public affairs. We have perused the articles annexed to the affidavit in opposition and referred to in the Notifications themselves and we are not satisfied that no reasonable person reading those articles could entertain the opinion and feel satisfied that it was necessary to make the order for the purposes mentioned in the section. We are unable to hold, on the materials before us, that the Notifications issued under S. 2 were mala fide. 20. The observations hereinbefore made as to the safeguards set forth in the provisions of S. 2 (1)(a) and (b) cannot, however, apply to the provisions of S. 3.Although the exercise of the powers under S. 3 (1) is subject to the same condition as to the satisfaction of the State Government or its delegates as is mentioned in S. 2 (1) (a), there is, however, no time limit for the operation of an order made under this section nor is there any provision made for any representation being made to the State Government. The absence of these safeguards in S. 3 clearly makes its provisions unreasonable and the learned Solicitor-General obviously felt some difficulty in supporting the validity of this section.It is surprising how in the same statute the two sections came to be worded differently. 21.
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that such action was necessary for the purpose of preventing or combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect the public orderThe two sections before us lay down the principle that the State Government or the delegated authority can exercise the power only if it is satisfied that its exercise is necessary for the purposes mentioned in the sections. It cannot be exercised for any other purpose. In this view of the matter neither of these sections can be questioned on the ground that they give unfettered and uncontrolled discretion to the State Government or one executive officer in the exercise of discretionary powers given by the sectionNo assumption ought to be made that the State Government or the authority will abuse its power. To make the exercise of the power justiciable will defeat the very purpose for which the power is given. Further, even if the officer may conceivably abuse the power, what will be struck down is not the statute but the abuse of powerThis consideration cannot apply to the case now under consideration. Article 19 (2) has been amended so as to extend its protection to a law imposing reasonable restrictions in the interests of public order and the language used in the two sections of the impugned Act quite clearly and explicitly limits the exercise of the powers conferred by them to the purposes specifically mentioned in the sections and to no other purposeApart from the limitations and conditions for the exercise of the powers contained in the body of the two sections as hereinbefore mentioned, there are two provisios to S. 2 (1) (a) which are important. Under the first proviso the orders made under S. 2 (1) (a) can only remain in force for two months from the making thereof. Further, there is another proviso permitting the aggrieved person to make a representation to the state Government which may, on consideration thereof, modify, confirm or rescind the orderUnder cl.(b) of sub-s.(2) also there are several conditions, namely, that the matter required to be published must not be more than two columns, that adequate remuneration must be paid for such publication and that such requirement cannot prevail for more than one week. A consideration of these safeguards must, in our opinion, have an important bearing in determinating the reasonableness of the restrictions imposed by S. 2The authority before making the order had applied its mind and had made its estimate of the general trend of the policy of these papers and their possible reactions and had formed its satisfaction as to the necessity for making the orders founded on the several articles published in these papers between May 30, 1957, and July 8, 1957, wherein the petitioner had systematically published matters in support of the agitation and its disapproval if everything which might run counter to that agitationIt is admitted that the policy of the papers is to support the "save Hindi agitation" Therefore, a grievance that the papers are not allowed even to publish anything in support of the agitation sounds hollow, wholly unconvincing and of no substance at all. It may not be unreasonable for the Government to hold the opinion, in view of the antecedents and policy of these papers that they will not publish any news or views running counter to their policy without adverse commentsIt would obviously be the Court then which would have to decide whether the publication was likely to prejudicially affect the public order. If the Government exercised the power of seizure to stop the circulation of the offending issue then it would do so at the risk of having to satisfy the Court that for preventing the public order being prejudicially affected it was necessary to stop such circulation. That would be the issue before the Court. Likewise if the Government launched a prosecution under S. 4 then also the issue would be the same. That would obviously defeat the very purpose of the section itself which, for this argument, is accepted as validThe question of the necessity for the exercise of the power for the purpose of achieving the specified objects is, having regard to the very nature of the thing and the surrounding circumstances, left by the section entirely to the subjective satisfaction of the Government and if the Government exercises that power after being satisfied that it is necessary so to do for the purposes mentioned in the section and if the Notification is within the section, in the sense that it directs or prohibits the doing of something which the section itself authorises the Government to direct or prohibit, then nothing further remains to be consideredThe only issue that can then arise will be whether the Notification has been complied with and the Court will only have to decide whether there has been a contravention of the Notification. To introduce the suggested qualification in the Notification will be to make the exercise of the power which is by the section left to the subjective satisfaction of the Government dependent on an objective test subject to judicial scrutiny. That as we have explained, will defeat the very purpose of the section itselfThe observations hereinbefore made as to the safeguards set forth in the provisions of S. 2 (1)(a) and (b) cannot, however, apply to the provisions of S. 3.Although the exercise of the powers under S. 3 (1) is subject to the same condition as to the satisfaction of the State Government or its delegates as is mentioned in S. 2 (1) (a), there is, however, no time limit for the operation of an order made under this section nor is there any provision made for any representation being made to the State GovernmentThe absence of these safeguards in S. 3 clearly makes its provisions unreasonable and the learned Solicitor-General obviously felt some difficulty in supporting the validity of this section.It is surprising how in the same statute the two sections came to be worded differently.
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NARAYAN DEORAO JAVLE (DECEASED) THROUGH LRS Vs. KRISHNA & ORS | to redeem the mortgaged property. Such a right is based on the principle that he steps in the shoes of his predecessor-in- title and has therefore the same rights which his predecessor-in-title had before the purchase. Under Section 59-A of the Act also all persons who derive title from the mortgagor are included in the term mortgagor and therefore entitled to redeem………………………… It follows that the respondent having purchased from the said Hazra while the appeal by the said Hazra against the said preliminary decree was pending in the High Court, the doctrine of lis pendens must apply to his purchase and as aforesaid he was bound by the result of that suit. In the view we have taken that the final foreclosure decree was competently passed by the trial court, his right to equity of redemption was extinguished by that decree and he had therefore no longer any right to redeem the said mortgage. His appeal against the said final decree was misconceived and the High Court was in error in allowing it and in passing the said order of remand directing the trial court to reopen the question of redemption and to allow the respondent to participate in proceedings to amend the said preliminary decree. 25. Thus, we find that the High Court has misread the judgment of this Court in Samarendra Nath Sinha. It is not a case of transfer from mortgage prior to the decree of foreclosure but a case of purchaser pending lis. 26. Another judgment referred to by the High Court is Mrutunjay Pani & Anr. v. Narmada Bala Sasmal & Anr. AIR 1961 SC 1353 It was an appeal filed by the mortgagee who claimed to have purchased the equity of redemption. The argument of the appellant was that the mortgagee has failed to pay rent which was the responsibility of the mortgagor in terms of the mortgage deed. For the default of payment of arrears of rent, the property was put to sale and was purchased by the mortgagee. Therefore, the remedy of the mortgagor is to seek setting aside of sale. It was held as under: 7. The legal position may be stated thus: (1) The governing principle is once a mortgage always a mortgage till the mortgage is terminated by the act of the parties themselves, by merger or by order of the court. (2) Where a mortgagee purchases the equity of redemption in execution of his mortgage decree with the leave of court or in execution of a mortgage or money decree obtained by a third party, the equity of redemption may be extinguished; and, in that event, the mortgagor cannot sue for redemption without getting the sale set aside. (3) Where a mortgagor purchases the mortgaged property by reason of a default committed by him the mortgage is not extinguished and the relationship of mortgagor and mortgagee continues to subsist even thereafter, for his purchase of the equity of redemption is only in trust for the mortgagor. The said judgment does not advance the case of the mortgagee. 27. Thus, the decree passed in the suit for foreclosure is a decree which is void and non-est. The decree is a result of collusion between defendants 1 & 2 and Defendant No. 3 so as to frustrate rights of a purchaser from the mortgagor. (iii) Whether the plaintiff is entitled to redeem the share of the property purchased by him on the payment of the entire mortgage amount? 28. This Court in Shivdev Singh; Achaldas Durgaji Oswal and Jamila Begum has held that right to redemption is not an equitable relief, it is a statutory right. Therefore, the appellant has a right to redeem land provided the right is not extinguished by decree of the Court. As discussed above, the decree passed at the back of the transferee mortgagor prior to the filing of the suit for foreclosure cannot be said to be a valid decree. 29. The appellant has purchased the land measuring 1 acre 32 gunthas comprising in Survey No. 67/3 for a sum of Rs.1,000/-. No part of the sale consideration was paid to the owners or was kept by the appellant for payment to the mortgagee. Thus, it was unequivocal sale of complete rights in the land comprising in Survey No. 67/3. Section 60 of the Act provides that a person interested in a share of the mortgaged property will not entitle him to redeem his own share on payment of a proportionate part of the amount remaining due on mortgage. Therefore, conversely, a purchaser from the mortgagor is entitled to redeem the share of the land purchased by him but on payment of the entire mortgage amount. The First Appellate Court has returned such finding in favour of the appellant in Point No. 3 wherein it was held as under: POINT NO. 3:- The answer to this point is a decision in Bank of Bank of Poona v. Navrajasthan Cooperative Housing Society Ltd., reported in 1967 Mh.L.J. 774 (AIR 1968 Bom 106), in which the Plaintiff had purchased a portion of the mortgaged property and it was held that he had a right to redeem only a portion which he had purchased by making payment of the proportionate mortgage amount. Second part of Section 60 cannot be made applicable to the present case, as only in respect of the property purchased by the Plaintiff a right to redeem is inexistence, while in respect of the other part, of which Defendant Nos.1 & 2 are the owners, right to redeem is extinguished, therefore even if the Plaintiff redeems the suit land it will not be a redemption in part. 30. Therefore, the decree of foreclosure passed in the suit filed by the mortgagee will not extinguish the right of the mortgagor to redeem land in view of the fact that he was not impleaded as a party in the suit though he has purchased part of the mortgaged property by virtue of registered sale deed. | 1[ds]11. The plaintiff has purchased property vide registered sale deed on 18.5.1964, much before the filing of the suit for foreclosure in the year 1965. The possession of the plaintiff was recorded in the revenue record after the purchase of the property, but still, the mortgagee chose not to implead the subsequent purchaser. The original mortgagor who has mortgaged the property had no subsisting title, interest or right in the property conveyed, therefore, the factum of compromise between the mortgagor and the mortgagee is ineffective and not enforceable against the purchaser i.e., the plaintiff. Once the plaintiff has purchased property, the equity of redemption is part of the title and as an owner, he could seek redemption of the suit land.12. The learned counsel for the mortgagee could not point out any provision of law that can prove that the subsequent purchaser has to give notice to the mortgagee signifying purchase of the property, by a mortgagor. The factum of purchase coupled with the delivery of possession completes the title of the plaintiff over the land in question. Therefore, the decree obtained in such a suit is void.14. In Allokam Peddabbayya, the purchaser filed a suit for injunction. The suit was dismissed. The appeal against the judgment and decree of the trial court was also dismissed. It is thereafter, a suit for redemption of mortgage was filed impleading the bank as the defendant. The sale certificate was issued to the purchaser on 2.7.1997 after filing of the suit for injunction and after the objections of the plaintiff in execution were dismissed, so is the appeal against an order of dismissal of objections was dismissed. It was in these circumstances, this Court held as under:12. The sale certificate was issued to Defendant 2 on 2-7- 1997 followed by delivery of possession in Execution Petition No. 203 of 1997. The objection of the plaintiffs in Execution Appeal No. 996 of 1997 was also rejected. Only thereafter the plaintiffs instituted OS No. 96 of 1999 for redemption of the mortgage under Order 34 Rule 1 CPC contending that they were willing to deposit the mortgage dues and that the decree in OS No. 68 of 1987 was not binding on them because they had not been impleaded as party in the same. In cross-examination, the plaintiffs acknowledged having been informed by their lawyer at the time of purchase, of the mortgage created by deposit of title deeds, by Defendants 3 and 4.14. No challenge was laid out in OS No. 96 of 1999, either to the auction-sale or to set aside the sale certificate issued to Defendant 2. The reliance upon Order 34 Rule 1 CPC is completely misconceived as under Rule 8 the right to redemption survived only till confirmation of the sale and not thereafter. The suit was instituted only after issuance of the sale certificate and the question for redemption had become irrelevant.In view of the said fact, the judgment referred to by the learned counsel for the respondent is not applicable to the facts of the present case.15. Still further, in terms of Section 91 of the Act, the plaintiff having stepped into the shoes of the mortgagor in respect of land purchased by him has a right to redeem the land mortgaged. In addition, the Order XXXIV Rule 1 of the Code provides that all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage including suit for foreclosure. The original mortgagors i.e., defendant Nos. 1 and 2 denied the plaintiffs right to redeem the property though admitting they have borrowed Rs.1,000/- from the plaintiff. It was pleaded that the plaintiff was put in possession of the suit property for ten years and, therefore, plaintiff was required to resell the property to defendant Nos. 1 and 2. But the said defendant has not supported such plea in evidence. The defendant Nos. 1 and 2 entered into compromise with the mortgagee to pay the mortgage amount. The said mortgage amount was not paid which led to passing of the final decree. Thus, it is a case of collusion between the original mortgagors and the mortgagee so as to defeat the right of the plaintiff.16. The Equity of redemption means a right to redeem the property based upon equitable principles. This Court in a judgment reported as Shivdev Singh & Anr. v. Sucha Singh & Anr. (2000) 4 SCC 326, held that the right of redemption recognised under the Act is a statutory and legal right which cannot be extinguished. This Court held as under:8. …The right of redemption recognised under the Transfer of Property Act is thus a statutory and legal right which cannot be extinguished by any agreement made at the time of mortgage as part of the mortgage transaction.18. In a recent judgment of this Court reported as Jamila Begum (Dead) though Legal Representatives v. Shami Mohd. (Dead) through Legal Representatives & Anr.10, it was held that by virtue of purchase of the property, the purchaser has purchased the entire equity of redemption. This Court held as under:Whether decree for redemption of mortgage is correct?32. Section 60 of the Transfer of Property Act, 1882 provides that at any time after the money becomes due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money to require the mortgagee to deliver the mortgage deed and all documents relating to the mortgaged property, and where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor. In Shivdev Singh v. Sucha Singh [Shivdev Singh v. Sucha Singh, (2000) 4 SCC 326] , it was held as under: (SCC p. 330, para 8)8. … The right of redemption recognised under the Transfer of Property Act is thus a statutory and legal right which cannot be extinguished by any agreement made at the time of mortgage as part of the mortgage transaction.19. The equity of redemption is a right which is subsidiary to the right of ownership. Such right is not over and above the right of ownership purchased by the plaintiff. The expression equity of redemption is a convenient maxim but an owner, who has stepped into the shoes of the mortgagor, after the purchase from the mortgagor but before filing a suit for foreclosure is entitled to redeem the property in terms of Section 60 of the Act.20. The High Court has held that the decree for foreclosure will operate as res judicata on account of the fact that the appellant filed an application for stay of the execution proceedings. The Executing Court has dismissed such an application. Such dismissal of the application in execution proceedings would operate as res judicata. It was also held that the appellant has lost right of redemption which is coextensive with the right of foreclosure.22. The only effect of filing of an application for stay of the execution would be that the appellant can be said to be aware of the fact that there is a decree for foreclosure passed against him which has not been stayed by virtue of the order of the Court. There is no determination of the claim as is contemplated in terms of Order XXI Rule 97 or Rule 99 of the Code having force of decree. The declining of stay of execution will not operate as res judicata only because Section 11 Explanation VII of the Code is applicable to the execution as well.23. Therefore, the findings recorded by the High Court that the appellant is bound by the decree passed in the suit for foreclosure is not tenable inter alia because the appellant was not impleaded as a party, though mandated under Section 91 of the Act and Order XXXIV Rule 1 of the Code. The mortgagee was aware of the transaction of purchase in view of the judgment of this Court in Dr. Govinddas as well as for the reason that the possession of the appellant was recorded in the revenue record. The subsequent conduct of mortgagee who has taken possession from the appellant also corroborates the fact that the mortgagee was aware of the factum of sale and possession of the appellant but still have chosen not to implead him as a necessary party. Still further, it is apparent from the pleadings itself that the original mortgagor had colluded with the mortgagee. Therefore, the right conferred by Section 60 of the Act does not stand extinguished by decree of the Court which is to be binding and had to be passed in the presence of the necessary parties and should not be collusive.24. The High Court has referred to the judgment reported as Samarendra Nath Sinha & Anr. v. Krishna Kumar Nag AIR 1967 SC 1440 , to non-suit the appellant. However, in the aforesaid judgment, the mortgagor was non-suited on the ground that he was a purchaser pending lis. In the said case, one Hazra was a purchaser from the original mortgagor but he failed to make payment of the mortgage amount. The mortgagee-initiated proceedings for foreclosure on 17.7.1945 in which a preliminary decree was passed on 23.12.1946. The respondent purchased part of the equity of redemption from his judgment-debtor, Hazra, after the preliminary decree was passed. The Court found that the decree was not in the form of a foreclosure decree but of a mortgage decree for sale. The final decree was passed after notice to the mortgagors and the said Hazra. It was held as under:16. … Section 91 of the Transfer of Property Act provides that besides the mortgagor any person other than the mortgagee who has any interest in or charge upon the property mortgaged or in or upon the right to redeem the same may redeem or institute a suit for redemption of such mortgaged property. An execution purchaser therefore of the whole or part of the equity of redemption has the right to redeem the mortgaged property. Such a right is based on the principle that he steps in the shoes of his predecessor-in- title and has therefore the same rights which his predecessor-in-title had before the purchase. Under Section 59-A of the Act also all persons who derive title from the mortgagor are included in the term mortgagor and therefore entitled to redeem………………………… It follows that the respondent having purchased from the said Hazra while the appeal by the said Hazra against the said preliminary decree was pending in the High Court, the doctrine of lis pendens must apply to his purchase and as aforesaid he was bound by the result of that suit. In the view we have taken that the final foreclosure decree was competently passed by the trial court, his right to equity of redemption was extinguished by that decree and he had therefore no longer any right to redeem the said mortgage. His appeal against the said final decree was misconceived and the High Court was in error in allowing it and in passing the said order of remand directing the trial court to reopen the question of redemption and to allow the respondent to participate in proceedings to amend the said preliminary decree.25. Thus, we find that the High Court has misread the judgment of this Court in Samarendra Nath Sinha. It is not a case of transfer from mortgage prior to the decree of foreclosure but a case of purchaser pending lis.26. Another judgment referred to by the High Court is Mrutunjay Pani & Anr. v. Narmada Bala Sasmal & Anr. AIR 1961 SC 1353 It was an appeal filed by the mortgagee who claimed to have purchased the equity of redemption. The argument of the appellant was that the mortgagee has failed to pay rent which was the responsibility of the mortgagor in terms of the mortgage deed. For the default of payment of arrears of rent, the property was put to sale and was purchased by the mortgagee. Therefore, the remedy of the mortgagor is to seek setting aside of sale. It was held as under:7. The legal position may be stated thus: (1) The governing principle is once a mortgage always a mortgage till the mortgage is terminated by the act of the parties themselves, by merger or by order of the court. (2) Where a mortgagee purchases the equity of redemption in execution of his mortgage decree with the leave of court or in execution of a mortgage or money decree obtained by a third party, the equity of redemption may be extinguished; and, in that event, the mortgagor cannot sue for redemption without getting the sale set aside. (3) Where a mortgagor purchases the mortgaged property by reason of a default committed by him the mortgage is not extinguished and the relationship of mortgagor and mortgagee continues to subsist even thereafter, for his purchase of the equity of redemption is only in trust for the mortgagor.The said judgment does not advance the case of the mortgagee.27. Thus, the decree passed in the suit for foreclosure is a decree which is void and non-est. The decree is a result of collusion between defendants 1 & 2 and Defendant No. 3 so as to frustrate rights of a purchaser from the mortgagor.28. This Court in Shivdev Singh; Achaldas Durgaji Oswal and Jamila Begum has held that right to redemption is not an equitable relief, it is a statutory right. Therefore, the appellant has a right to redeem land provided the right is not extinguished by decree of the Court. As discussed above, the decree passed at the back of the transferee mortgagor prior to the filing of the suit for foreclosure cannot be said to be a valid decree.29. The appellant has purchased the land measuring 1 acre 32 gunthas comprising in Survey No. 67/3 for a sum of Rs.1,000/-. No part of the sale consideration was paid to the owners or was kept by the appellant for payment to the mortgagee. Thus, it was unequivocal sale of complete rights in the land comprising in Survey No. 67/3. Section 60 of the Act provides that a person interested in a share of the mortgaged property will not entitle him to redeem his own share on payment of a proportionate part of the amount remaining due on mortgage. Therefore, conversely, a purchaser from the mortgagor is entitled to redeem the share of the land purchased by him but on payment of the entire mortgage amount. The First Appellate Court has returned such finding in favour of the appellant in Point No. 3 wherein it was held as under:POINT NO. 3:- The answer to this point is a decision in Bank of Bank of Poona v. Navrajasthan Cooperative Housing Society Ltd., reported in 1967 Mh.L.J. 774 (AIR 1968 Bom 106), in which the Plaintiff had purchased a portion of the mortgaged property and it was held that he had a right to redeem only a portion which he had purchased by making payment of the proportionate mortgage amount. Second part of Section 60 cannot be made applicable to the present case, as only in respect of the property purchased by the Plaintiff a right to redeem is inexistence, while in respect of the other part, of which Defendant Nos.1 & 2 are the owners, right to redeem is extinguished, therefore even if the Plaintiff redeems the suit land it will not be a redemption in part.30. Therefore, the decree of foreclosure passed in the suit filed by the mortgagee will not extinguish the right of the mortgagor to redeem land in view of the fact that he was not impleaded as a party in the suit though he has purchased part of the mortgaged property by virtue of registered sale deed. | 1 | 5,793 | 2,859 | ### Instruction:
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to redeem the mortgaged property. Such a right is based on the principle that he steps in the shoes of his predecessor-in- title and has therefore the same rights which his predecessor-in-title had before the purchase. Under Section 59-A of the Act also all persons who derive title from the mortgagor are included in the term mortgagor and therefore entitled to redeem………………………… It follows that the respondent having purchased from the said Hazra while the appeal by the said Hazra against the said preliminary decree was pending in the High Court, the doctrine of lis pendens must apply to his purchase and as aforesaid he was bound by the result of that suit. In the view we have taken that the final foreclosure decree was competently passed by the trial court, his right to equity of redemption was extinguished by that decree and he had therefore no longer any right to redeem the said mortgage. His appeal against the said final decree was misconceived and the High Court was in error in allowing it and in passing the said order of remand directing the trial court to reopen the question of redemption and to allow the respondent to participate in proceedings to amend the said preliminary decree. 25. Thus, we find that the High Court has misread the judgment of this Court in Samarendra Nath Sinha. It is not a case of transfer from mortgage prior to the decree of foreclosure but a case of purchaser pending lis. 26. Another judgment referred to by the High Court is Mrutunjay Pani & Anr. v. Narmada Bala Sasmal & Anr. AIR 1961 SC 1353 It was an appeal filed by the mortgagee who claimed to have purchased the equity of redemption. The argument of the appellant was that the mortgagee has failed to pay rent which was the responsibility of the mortgagor in terms of the mortgage deed. For the default of payment of arrears of rent, the property was put to sale and was purchased by the mortgagee. Therefore, the remedy of the mortgagor is to seek setting aside of sale. It was held as under: 7. The legal position may be stated thus: (1) The governing principle is once a mortgage always a mortgage till the mortgage is terminated by the act of the parties themselves, by merger or by order of the court. (2) Where a mortgagee purchases the equity of redemption in execution of his mortgage decree with the leave of court or in execution of a mortgage or money decree obtained by a third party, the equity of redemption may be extinguished; and, in that event, the mortgagor cannot sue for redemption without getting the sale set aside. (3) Where a mortgagor purchases the mortgaged property by reason of a default committed by him the mortgage is not extinguished and the relationship of mortgagor and mortgagee continues to subsist even thereafter, for his purchase of the equity of redemption is only in trust for the mortgagor. The said judgment does not advance the case of the mortgagee. 27. Thus, the decree passed in the suit for foreclosure is a decree which is void and non-est. The decree is a result of collusion between defendants 1 & 2 and Defendant No. 3 so as to frustrate rights of a purchaser from the mortgagor. (iii) Whether the plaintiff is entitled to redeem the share of the property purchased by him on the payment of the entire mortgage amount? 28. This Court in Shivdev Singh; Achaldas Durgaji Oswal and Jamila Begum has held that right to redemption is not an equitable relief, it is a statutory right. Therefore, the appellant has a right to redeem land provided the right is not extinguished by decree of the Court. As discussed above, the decree passed at the back of the transferee mortgagor prior to the filing of the suit for foreclosure cannot be said to be a valid decree. 29. The appellant has purchased the land measuring 1 acre 32 gunthas comprising in Survey No. 67/3 for a sum of Rs.1,000/-. No part of the sale consideration was paid to the owners or was kept by the appellant for payment to the mortgagee. Thus, it was unequivocal sale of complete rights in the land comprising in Survey No. 67/3. Section 60 of the Act provides that a person interested in a share of the mortgaged property will not entitle him to redeem his own share on payment of a proportionate part of the amount remaining due on mortgage. Therefore, conversely, a purchaser from the mortgagor is entitled to redeem the share of the land purchased by him but on payment of the entire mortgage amount. The First Appellate Court has returned such finding in favour of the appellant in Point No. 3 wherein it was held as under: POINT NO. 3:- The answer to this point is a decision in Bank of Bank of Poona v. Navrajasthan Cooperative Housing Society Ltd., reported in 1967 Mh.L.J. 774 (AIR 1968 Bom 106), in which the Plaintiff had purchased a portion of the mortgaged property and it was held that he had a right to redeem only a portion which he had purchased by making payment of the proportionate mortgage amount. Second part of Section 60 cannot be made applicable to the present case, as only in respect of the property purchased by the Plaintiff a right to redeem is inexistence, while in respect of the other part, of which Defendant Nos.1 & 2 are the owners, right to redeem is extinguished, therefore even if the Plaintiff redeems the suit land it will not be a redemption in part. 30. Therefore, the decree of foreclosure passed in the suit filed by the mortgagee will not extinguish the right of the mortgagor to redeem land in view of the fact that he was not impleaded as a party in the suit though he has purchased part of the mortgaged property by virtue of registered sale deed.
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redeem the same may redeem or institute a suit for redemption of such mortgaged property. An execution purchaser therefore of the whole or part of the equity of redemption has the right to redeem the mortgaged property. Such a right is based on the principle that he steps in the shoes of his predecessor-in- title and has therefore the same rights which his predecessor-in-title had before the purchase. Under Section 59-A of the Act also all persons who derive title from the mortgagor are included in the term mortgagor and therefore entitled to redeem………………………… It follows that the respondent having purchased from the said Hazra while the appeal by the said Hazra against the said preliminary decree was pending in the High Court, the doctrine of lis pendens must apply to his purchase and as aforesaid he was bound by the result of that suit. In the view we have taken that the final foreclosure decree was competently passed by the trial court, his right to equity of redemption was extinguished by that decree and he had therefore no longer any right to redeem the said mortgage. His appeal against the said final decree was misconceived and the High Court was in error in allowing it and in passing the said order of remand directing the trial court to reopen the question of redemption and to allow the respondent to participate in proceedings to amend the said preliminary decree.25. Thus, we find that the High Court has misread the judgment of this Court in Samarendra Nath Sinha. It is not a case of transfer from mortgage prior to the decree of foreclosure but a case of purchaser pending lis.26. Another judgment referred to by the High Court is Mrutunjay Pani & Anr. v. Narmada Bala Sasmal & Anr. AIR 1961 SC 1353 It was an appeal filed by the mortgagee who claimed to have purchased the equity of redemption. The argument of the appellant was that the mortgagee has failed to pay rent which was the responsibility of the mortgagor in terms of the mortgage deed. For the default of payment of arrears of rent, the property was put to sale and was purchased by the mortgagee. Therefore, the remedy of the mortgagor is to seek setting aside of sale. It was held as under:7. The legal position may be stated thus: (1) The governing principle is once a mortgage always a mortgage till the mortgage is terminated by the act of the parties themselves, by merger or by order of the court. (2) Where a mortgagee purchases the equity of redemption in execution of his mortgage decree with the leave of court or in execution of a mortgage or money decree obtained by a third party, the equity of redemption may be extinguished; and, in that event, the mortgagor cannot sue for redemption without getting the sale set aside. (3) Where a mortgagor purchases the mortgaged property by reason of a default committed by him the mortgage is not extinguished and the relationship of mortgagor and mortgagee continues to subsist even thereafter, for his purchase of the equity of redemption is only in trust for the mortgagor.The said judgment does not advance the case of the mortgagee.27. Thus, the decree passed in the suit for foreclosure is a decree which is void and non-est. The decree is a result of collusion between defendants 1 & 2 and Defendant No. 3 so as to frustrate rights of a purchaser from the mortgagor.28. This Court in Shivdev Singh; Achaldas Durgaji Oswal and Jamila Begum has held that right to redemption is not an equitable relief, it is a statutory right. Therefore, the appellant has a right to redeem land provided the right is not extinguished by decree of the Court. As discussed above, the decree passed at the back of the transferee mortgagor prior to the filing of the suit for foreclosure cannot be said to be a valid decree.29. The appellant has purchased the land measuring 1 acre 32 gunthas comprising in Survey No. 67/3 for a sum of Rs.1,000/-. No part of the sale consideration was paid to the owners or was kept by the appellant for payment to the mortgagee. Thus, it was unequivocal sale of complete rights in the land comprising in Survey No. 67/3. Section 60 of the Act provides that a person interested in a share of the mortgaged property will not entitle him to redeem his own share on payment of a proportionate part of the amount remaining due on mortgage. Therefore, conversely, a purchaser from the mortgagor is entitled to redeem the share of the land purchased by him but on payment of the entire mortgage amount. The First Appellate Court has returned such finding in favour of the appellant in Point No. 3 wherein it was held as under:POINT NO. 3:- The answer to this point is a decision in Bank of Bank of Poona v. Navrajasthan Cooperative Housing Society Ltd., reported in 1967 Mh.L.J. 774 (AIR 1968 Bom 106), in which the Plaintiff had purchased a portion of the mortgaged property and it was held that he had a right to redeem only a portion which he had purchased by making payment of the proportionate mortgage amount. Second part of Section 60 cannot be made applicable to the present case, as only in respect of the property purchased by the Plaintiff a right to redeem is inexistence, while in respect of the other part, of which Defendant Nos.1 & 2 are the owners, right to redeem is extinguished, therefore even if the Plaintiff redeems the suit land it will not be a redemption in part.30. Therefore, the decree of foreclosure passed in the suit filed by the mortgagee will not extinguish the right of the mortgagor to redeem land in view of the fact that he was not impleaded as a party in the suit though he has purchased part of the mortgaged property by virtue of registered sale deed.
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JIGNESH SHAH Vs. UNION OF INDIA | Assurance Society, Re [LR (1869) 9 Eq 122] ; V.V. Krishna Iyer & Sons v. New Era Mfg. Co. Ltd. [(1965) 35 Comp Cas 410 : (1965) 1 Comp LJ 179 (Ker)])? This passage is in the context of an order under 433(e) of the Companies Act, 1956 being discretionary, which is referred to in the preceding paragraph 25. As stated hereinabove, the facts as to commercial insolvency are to be pleaded and proved at the admission stage of the winding up petition; the trigger for the winding up proceeding for limitation purposes, as has been stated hereinabove, being the date of default.27. Shri Kaul then relied upon Mediquip Systems (P) Ltd. v. Proxima Medical System GMBH (2005) 7 SCC 42 and in particular, paragraphs 18 and 23 thereof, which state as follows: "18. This Court in a catena of decisions has held that an order under Section 433(e) of the Companies Act is discretionary. There must be a debt due and the company must be unable to pay the same. A debt under this section must be a determined or a definite sum of money payable immediately or at a future date and that the inability referred to in the expression ?unable to pay its debts? in Section 433(e) of the Companies Act should be taken in the commercial sense and that the machinery for winding up will not be allowed to be utilised merely as a means for realising debts due from a company.xxx xxx xxx23. The Bombay High Court has laid down the following principles in Softsule (P) Ltd., Re [(1977) 47 Comp Cas 438 (Bom)] : (Comp Cas pp. 443-44)Firstly, it is well settled that a winding-up petition is not legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the company. If the debt is not disputed on some substantial ground, the court/Tribunal may decide it on the petition and make the order.Secondly, if the debt is bona fide disputed, there cannot be ?neglect to pay? within the meaning of Section 433(1)(a) of the Companies Act, 1956. If there is no neglect, the deeming provision does not come into play and the winding up on the ground that the company is unable to pay its debts is not substantiated.Thirdly, a debt about the liability to pay which at the time of the service of the insolvency notice, there is a bona fide dispute, is not ?due? within the meaning of Section 434(1)(a) and non-payment of the amount of such a bona fide disputed debt cannot be termed as ?neglect to pay? the same so as to incur the liability under Section 433(e) read with Section 434(1)(a) of the Companies Act, 1956.Fourthly, one of the considerations in order to determine whether the company is able to pay its debts or not is whether the company is able to meet its liabilities as and when they accrue due. Whether it is commercially solvent means that the company should be in a position to meet its liabilities as and when they arise.? 28. The Bombay High Court judgment referred to in paragraph 23 of the judgment above states the law on winding up petitions filed under Section 433(a) of the Companies Act, 1956 correctly. The primary test is set out in paragraph 1, which is that a winding up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the Company. Absent such dispute, the petition may be admitted. Equally, where the debt is bona fide disputed, there cannot be ‘neglect to pay? within the meaning of Section 434(1)(a) of the Companies Act, 1956 so that the deeming provision then does not come into play. Also, the moment there is a bona fide dispute, the debt is then not ‘due?. The High Court also correctly appreciates that whether the company is commercially solvent is one of the considerations in order to determine whether the company is able to pay its debts or not.29. Even on the facts of this case, the Winding up Petition alleges that the ultimatum to the Respondent company asserting that the Respondent company was legally obliged to purchase the requisite shares in accordance with the terms of the Letter of Undertaking was on 7 th January, 2013. By this date at the very latest, the cause of action for filing a petition under Section 433(e) certainly arose. Also, as has been correctly pointed out by Dr. Singhvi, the statutory notice given on 3 rd November, 2015 does not refer to any facts as to the commercial insolvency of La-Fin. The statutory notice only refers to the suit proceedings and attachment by the EOW which had taken place long before in December 2013. Factually, therefore, no basis is laid for the legal contentions argued before us by Shri Kaul.30. In the Winding up Petition itself, what is referred to is the fall in the assets of La-Fin to being worth approximately INR 200 crores as of October, 2016, which again does not correlate with 3 rd November, 2015, being the date on which the statutory notice was itself issued. This again is only for the purpose of appointing an Officer of the Court as Official Liquidator in order to manage the day-to-day affairs and otherwise secure and safeguard the assets of the Respondent company. There is no averment in the petition that thanks to these or other facts the Company?s substratum has disappeared, or that the Company is otherwise commercially insolvent. It is clear therefore that even on facts, the company?s substratum disappearing or the commercial insolvency of the company has not been pleaded. Whereas, in Form-1, upon transfer of the winding up proceedings to the NCLT, what is correctly stated is that the date of default is 19 th August, 2012; making it clear that three-years from that date had long since elapsed when the Winding up Petition under Section 433(e) was filed on 21 st October, 2016. | 1[ds]10. This judgment clinches the issue in favour of the Petitioner/Appellant. With the introduction of Section 238A into the Code, the provisions of the Limitation Act apply to applications made under the Code. Winding up petitions filed before the Code came into force are now converted into petitions filed under the Code. What has, therefore, to be decided is whether the Winding up Petition, on the date that it was filed, is barred by lapse of time. If such petition is found to be time-barred, then Section 238A of the Code will not give a new lease of life to such a time-barred petition. On the facts of this case, it is clear that as the Winding up Petition was filed beyond three years from August, 2012 which is when, even according to IL&FS, default in repayment had occurred, it is barred by time.The aforesaid judgments correctly hold that a suit for recovery based upon a cause of action that is within limitation cannot in any manner impact the separate and independent remedy of a winding up proceeding. In law, when time begins to run, it can only be extended in the manner provided in the Limitation Act. For example, an acknowledgement of liability under Section 18 of the Limitation Act would certainly extend the limitation period, but a suit for recovery, which is a separate and independent proceeding distinct from the remedy of winding up would, in no manner, impact the limitation within which the winding up proceeding is to be filed, by somehow keeping the debt alive for the purpose of the winding upcontext in which the learned Single Judge made an observation that the filing of a suit within limitation would keep the debt alive, is in the context of Section 13 of the Presidency-towns Insolvency Act, 1909 - which requires that the debt of the petitioning creditor should be alive even at the hearing of the insolvency petition. Obviously, if at the hearing of the petition, the debt was time-barred, the stringent result of insolvency of the individual concerned would not follow. It is in this context that the learned Single Judge held that a debt would be subsisting at the date of hearing of the insolvency petition if a suit was filed to recover it within the period of limitation. The context of Section 13 of the Presidency-towns Insolvency Act, 1909 is far removed from the present context, in which what has to be seen is whether a winding up proceeding has been filed within the limitation period provided. In the facts of the present case, no question as to subsistence of a live debt at the hearing of a winding up petition is at all involved. This case is, therefore, wholly distinguishable.21. Shri Kaul then relied strongly on the rationale for laws of limitation generally, which was set out in Rajender Singh and Ors. v. Santa Singh and Ors. (1973) 2 SCC 705 asThe policy underlying statutes of limitation, spoken of as statutes of ?repose?, or of ?peace? has been thus stated in Halsburys Laws of England Vol. 24, p. 181 (paraPolicy of Limitation Acts.—The Courts have expressed at least three differing reasons supporting the existence of statutes of limitation, namely: (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence.?18. The object of the law of limitation is to prevent disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a partys own inaction, negligence, orobservations are apposite in the context of the facts of the present case. It is clear that IL&FS pursued with reasonable diligence the cause of action which arose in August, 2012 by filing a suit against La-Fin for specific performance of the Letter of Undertaking in June, 2013. What has been lost by the aforesaid party?s own inaction or laches, is the filing of the Winding up Petition long after the trigger for filing of the aforesaid petition had taken place; the trigger being the debt that became due to IL&FS, in repayment of which default has takenreading of the aforesaid provisions would show that the starting point of the period of limitation is when the company is unable to pay its debts, and that Section 434 is a deeming provision which refers to three situations in which a Company shall be deemed to be ?unable to pay its debts? under Section 433(e). In the first situation, if a demand is made by the creditor to whom the company is indebted in a sum exceeding one lakh then due, requiring the company to pay the sum so due, and the company has for three weeks thereafter ?neglected to pay the sum?, or to secure or compound for it to the reasonable satisfaction of the creditor. ?Neglected to pay? would arise only on default to pay the sum due, which would clearly be a fixed date depending on the facts of each case. Equally in the second situation, if execution or other process is issued on a decree or order of any Court or Tribunal in favour of a creditor of the company, and is returned unsatisfied in whole or in part, default on the part of the debtor company occurs. This again is clearly a fixed date depending on the facts of each case. And in the third situation, it is necessary to prove to the ?satisfaction of the Tribunal? that the company is unable to pay its debts. Here again, the trigger point is the date on which default is committed, on account of which the Company is unable to pay its debts. This again is a fixed date that can be proved on the facts of each case. Thus, Section 433(e) read with Section 434 of the Companies Act, 1956 would show that the trigger point for the purpose of limitation for filing of a winding up petition under Section 433(e) would be the date of default in payment of the debt in any of the three situations mentioned in Section 434.According to Shri Kaul, it was not possible for his client to approach the High Court with a winding up petition as on the date on which he filed the suit for specific performance, because La-Fin (i.e. the Company sought to be wound up), could not be said to have lost its substratum as on such date. It was for this reason that he approached the winding up Court in 2016, when the assets of La- Fin, which, as of 2013 were worth over INR 1000 crores, had in 2016 become only worth INR 200 crores.25. This judgment does not take Shri Kaul?s argument any further. Nowhere in the Winding up Petition is it alleged that the company sought to be wound-up has lost its substratum, in the sense that there is no reasonable prospect of it ever making a profit in the future, nor can it be said that the company had abandoned its business and is, therefore, unable to meet the outstandings owed by it. On the other hand, what emerges from this judgment (and paragraph 21 therein in particular), is that it is not open for a company to say that a debt is undisputed, that it has ability to pay the debt, but will not pay the debt. Equally, where a debt is clearly owed, but the exact amount of debt is disputed, the company will be held to be unable to pay its debts. What has to be seen in each case is whether the debt is bona fide disputed. If so, without more, a winding up petition would then be dismissed. One other thing must be noticed at this stage. The trigger for limitation is the inability of a company to pay its debts. Undoubtedly, this trigger occurs when a default takes place, after which the debt remains outstanding and is not paid. It is this date alone that is relevant for the purpose of triggering limitation for the filing of a winding up petition. Though it is clear that a winding up proceeding is a proceeding ‘in rem? and not a recovery proceeding, the trigger of limitation, so far as the winding up petition is concerned, would be the date of default. Questions as to commercial solvency arise in cases covered by Sections 434(1) (c) of the Companies Act, 1956, where the debt has first to be proved, after which the Court will then look to the wishes of the other creditors and commercial solvency of the company as a whole. The stage at which the Court, therefore, examines whether the company is commercially insolvent is once it begins to hear the winding up petition for admission on merits. Limitation attaches insofar as petitions filed under Section 433(e) are concerned at the stage that default occurs for, it is at this stage that the debt becomes payable. For this reason, it is difficult to accept Shri Kaul?s submission that the cause of action for the purposes of limitation would include the commercial insolvency or the loss of substratum of the company.The Bombay High Court judgment referred to in paragraph 23 of the judgment above states the law on winding up petitions filed under Section 433(a) of the Companies Act, 1956 correctly. The primary test is set out in paragraph 1, which is that a winding up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the Company. Absent such dispute, the petition may be admitted. Equally, where the debt is bona fide disputed, there cannot be ‘neglect to pay? within the meaning of Section 434(1)(a) of the Companies Act, 1956 so that the deeming provision then does not come into play. Also, the moment there is a bona fide dispute, the debt is then not ‘due?. The High Court also correctly appreciates that whether the company is commercially solvent is one of the considerations in order to determine whether the company is able to pay its debts or not.29. Even on the facts of this case, the Winding up Petition alleges that the ultimatum to the Respondent company asserting that the Respondent company was legally obliged to purchase the requisite shares in accordance with the terms of the Letter of Undertaking was on 7 th January, 2013. By this date at the very latest, the cause of action for filing a petition under Section 433(e) certainly arose. Also, as has been correctly pointed out by Dr. Singhvi, the statutory notice given on 3 rd November, 2015 does not refer to any facts as to the commercial insolvency of La-Fin. The statutory notice only refers to the suit proceedings and attachment by the EOW which had taken place long before in December 2013. Factually, therefore, no basis is laid for the legal contentions argued before us by Shri Kaul.30. In the Winding up Petition itself, what is referred to is the fall in the assets of La-Fin to being worth approximately INR 200 crores as of October, 2016, which again does not correlate with 3 rd November, 2015, being the date on which the statutory notice was itself issued. This again is only for the purpose of appointing an Officer of the Court as Official Liquidator in order to manage the day-to-day affairs and otherwise secure and safeguard the assets of the Respondent company. There is no averment in the petition that thanks to these or other facts the Company?s substratum has disappeared, or that the Company is otherwise commercially insolvent. It is clear therefore that even on facts, the company?s substratum disappearing or the commercial insolvency of the company has not been pleaded. Whereas, in Form-1, upon transfer of the winding up proceedings to the NCLT, what is correctly stated is that the date of default is 19 th August, 2012; making it clear that three-years from that date had long since elapsed when the Winding up Petition under Section 433(e) was filed on 21 st October, 2016.Having heard the learned Senior Counsel for the parties, it is important to first advert to this Court?s decision in B.K. Educational Services Pvt. Ltd. (supra) in which Section 238A of the Code was referred to, which states asLimitation.—The provisions of the Limitation Act, 1963 (36 of 1963) shall, as far as may be, apply to the proceedings or appeals before the Adjudicating Authority, the National Company Law Appellate Tribunal, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal, as the case may38. This case is most apposite. As in the present case, and as is reflected in the Insolvency Law Committee Report of March, 2018, the legislature did not contemplate enabling a creditor who has allowed the period of limitation to set in to allow such delayed claims through the mechanism of the Code. The Code cannot be triggered in the year 2017 for a debt which was time- barred, say, in 1990, as that would lead to the absurd and extreme consequence of the Code being triggered by a stale or dead claim, leading to the drastic consequence of instant removal of the present Board of Directors of the corporate debtor permanently, and which may ultimately lead to liquidation and, therefore, corporate death. This being the case, the expression ?debt due? in the definition sections of the Code would obviously only refer to debts that are ?due and payable? in law, i.e., the debts that are not48. It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. ?The right to sue?, therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application.? | 1 | 12,051 | 2,698 | ### 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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Assurance Society, Re [LR (1869) 9 Eq 122] ; V.V. Krishna Iyer & Sons v. New Era Mfg. Co. Ltd. [(1965) 35 Comp Cas 410 : (1965) 1 Comp LJ 179 (Ker)])? This passage is in the context of an order under 433(e) of the Companies Act, 1956 being discretionary, which is referred to in the preceding paragraph 25. As stated hereinabove, the facts as to commercial insolvency are to be pleaded and proved at the admission stage of the winding up petition; the trigger for the winding up proceeding for limitation purposes, as has been stated hereinabove, being the date of default.27. Shri Kaul then relied upon Mediquip Systems (P) Ltd. v. Proxima Medical System GMBH (2005) 7 SCC 42 and in particular, paragraphs 18 and 23 thereof, which state as follows: "18. This Court in a catena of decisions has held that an order under Section 433(e) of the Companies Act is discretionary. There must be a debt due and the company must be unable to pay the same. A debt under this section must be a determined or a definite sum of money payable immediately or at a future date and that the inability referred to in the expression ?unable to pay its debts? in Section 433(e) of the Companies Act should be taken in the commercial sense and that the machinery for winding up will not be allowed to be utilised merely as a means for realising debts due from a company.xxx xxx xxx23. The Bombay High Court has laid down the following principles in Softsule (P) Ltd., Re [(1977) 47 Comp Cas 438 (Bom)] : (Comp Cas pp. 443-44)Firstly, it is well settled that a winding-up petition is not legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the company. If the debt is not disputed on some substantial ground, the court/Tribunal may decide it on the petition and make the order.Secondly, if the debt is bona fide disputed, there cannot be ?neglect to pay? within the meaning of Section 433(1)(a) of the Companies Act, 1956. If there is no neglect, the deeming provision does not come into play and the winding up on the ground that the company is unable to pay its debts is not substantiated.Thirdly, a debt about the liability to pay which at the time of the service of the insolvency notice, there is a bona fide dispute, is not ?due? within the meaning of Section 434(1)(a) and non-payment of the amount of such a bona fide disputed debt cannot be termed as ?neglect to pay? the same so as to incur the liability under Section 433(e) read with Section 434(1)(a) of the Companies Act, 1956.Fourthly, one of the considerations in order to determine whether the company is able to pay its debts or not is whether the company is able to meet its liabilities as and when they accrue due. Whether it is commercially solvent means that the company should be in a position to meet its liabilities as and when they arise.? 28. The Bombay High Court judgment referred to in paragraph 23 of the judgment above states the law on winding up petitions filed under Section 433(a) of the Companies Act, 1956 correctly. The primary test is set out in paragraph 1, which is that a winding up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the Company. Absent such dispute, the petition may be admitted. Equally, where the debt is bona fide disputed, there cannot be ‘neglect to pay? within the meaning of Section 434(1)(a) of the Companies Act, 1956 so that the deeming provision then does not come into play. Also, the moment there is a bona fide dispute, the debt is then not ‘due?. The High Court also correctly appreciates that whether the company is commercially solvent is one of the considerations in order to determine whether the company is able to pay its debts or not.29. Even on the facts of this case, the Winding up Petition alleges that the ultimatum to the Respondent company asserting that the Respondent company was legally obliged to purchase the requisite shares in accordance with the terms of the Letter of Undertaking was on 7 th January, 2013. By this date at the very latest, the cause of action for filing a petition under Section 433(e) certainly arose. Also, as has been correctly pointed out by Dr. Singhvi, the statutory notice given on 3 rd November, 2015 does not refer to any facts as to the commercial insolvency of La-Fin. The statutory notice only refers to the suit proceedings and attachment by the EOW which had taken place long before in December 2013. Factually, therefore, no basis is laid for the legal contentions argued before us by Shri Kaul.30. In the Winding up Petition itself, what is referred to is the fall in the assets of La-Fin to being worth approximately INR 200 crores as of October, 2016, which again does not correlate with 3 rd November, 2015, being the date on which the statutory notice was itself issued. This again is only for the purpose of appointing an Officer of the Court as Official Liquidator in order to manage the day-to-day affairs and otherwise secure and safeguard the assets of the Respondent company. There is no averment in the petition that thanks to these or other facts the Company?s substratum has disappeared, or that the Company is otherwise commercially insolvent. It is clear therefore that even on facts, the company?s substratum disappearing or the commercial insolvency of the company has not been pleaded. Whereas, in Form-1, upon transfer of the winding up proceedings to the NCLT, what is correctly stated is that the date of default is 19 th August, 2012; making it clear that three-years from that date had long since elapsed when the Winding up Petition under Section 433(e) was filed on 21 st October, 2016.
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1
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is a proceeding ‘in rem? and not a recovery proceeding, the trigger of limitation, so far as the winding up petition is concerned, would be the date of default. Questions as to commercial solvency arise in cases covered by Sections 434(1) (c) of the Companies Act, 1956, where the debt has first to be proved, after which the Court will then look to the wishes of the other creditors and commercial solvency of the company as a whole. The stage at which the Court, therefore, examines whether the company is commercially insolvent is once it begins to hear the winding up petition for admission on merits. Limitation attaches insofar as petitions filed under Section 433(e) are concerned at the stage that default occurs for, it is at this stage that the debt becomes payable. For this reason, it is difficult to accept Shri Kaul?s submission that the cause of action for the purposes of limitation would include the commercial insolvency or the loss of substratum of the company.The Bombay High Court judgment referred to in paragraph 23 of the judgment above states the law on winding up petitions filed under Section 433(a) of the Companies Act, 1956 correctly. The primary test is set out in paragraph 1, which is that a winding up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the Company. Absent such dispute, the petition may be admitted. Equally, where the debt is bona fide disputed, there cannot be ‘neglect to pay? within the meaning of Section 434(1)(a) of the Companies Act, 1956 so that the deeming provision then does not come into play. Also, the moment there is a bona fide dispute, the debt is then not ‘due?. The High Court also correctly appreciates that whether the company is commercially solvent is one of the considerations in order to determine whether the company is able to pay its debts or not.29. Even on the facts of this case, the Winding up Petition alleges that the ultimatum to the Respondent company asserting that the Respondent company was legally obliged to purchase the requisite shares in accordance with the terms of the Letter of Undertaking was on 7 th January, 2013. By this date at the very latest, the cause of action for filing a petition under Section 433(e) certainly arose. Also, as has been correctly pointed out by Dr. Singhvi, the statutory notice given on 3 rd November, 2015 does not refer to any facts as to the commercial insolvency of La-Fin. The statutory notice only refers to the suit proceedings and attachment by the EOW which had taken place long before in December 2013. Factually, therefore, no basis is laid for the legal contentions argued before us by Shri Kaul.30. In the Winding up Petition itself, what is referred to is the fall in the assets of La-Fin to being worth approximately INR 200 crores as of October, 2016, which again does not correlate with 3 rd November, 2015, being the date on which the statutory notice was itself issued. This again is only for the purpose of appointing an Officer of the Court as Official Liquidator in order to manage the day-to-day affairs and otherwise secure and safeguard the assets of the Respondent company. There is no averment in the petition that thanks to these or other facts the Company?s substratum has disappeared, or that the Company is otherwise commercially insolvent. It is clear therefore that even on facts, the company?s substratum disappearing or the commercial insolvency of the company has not been pleaded. Whereas, in Form-1, upon transfer of the winding up proceedings to the NCLT, what is correctly stated is that the date of default is 19 th August, 2012; making it clear that three-years from that date had long since elapsed when the Winding up Petition under Section 433(e) was filed on 21 st October, 2016.Having heard the learned Senior Counsel for the parties, it is important to first advert to this Court?s decision in B.K. Educational Services Pvt. Ltd. (supra) in which Section 238A of the Code was referred to, which states asLimitation.—The provisions of the Limitation Act, 1963 (36 of 1963) shall, as far as may be, apply to the proceedings or appeals before the Adjudicating Authority, the National Company Law Appellate Tribunal, the Debt Recovery Tribunal or the Debt Recovery Appellate Tribunal, as the case may38. This case is most apposite. As in the present case, and as is reflected in the Insolvency Law Committee Report of March, 2018, the legislature did not contemplate enabling a creditor who has allowed the period of limitation to set in to allow such delayed claims through the mechanism of the Code. The Code cannot be triggered in the year 2017 for a debt which was time- barred, say, in 1990, as that would lead to the absurd and extreme consequence of the Code being triggered by a stale or dead claim, leading to the drastic consequence of instant removal of the present Board of Directors of the corporate debtor permanently, and which may ultimately lead to liquidation and, therefore, corporate death. This being the case, the expression ?debt due? in the definition sections of the Code would obviously only refer to debts that are ?due and payable? in law, i.e., the debts that are not48. It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. ?The right to sue?, therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application.?
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M/S. Bhaskar Industries Ltd Vs. M/S. Bhiwani Denim & Apparels Ltd. | reference to Section 273 of the Code is useful. It says that except as otherwise expressly provided, all evidence taken in the course of the trial or other proceedings shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader. If a court feels that insisting on the personal attendance of an accused in a particular case would be too harsh on account of a variety of reasons, cannot the court afford relief to such an accused in the matter of facing the prosecution proceedings ? 14. The normal rule is that the evidence shall be taken in the presence of the accused. However, even in the absence of the accused such evidence can be taken but then his counsel must be present in the court, provided he has been granted exemption from attending the Court. The concern of the criminal court should primiarly be the administration of criminal justice. For that purpose the proceedings of the Court in the case should register progress. Presence of the accused in the Court is not for marking his attendance just for the sake of seeing him in the Court. It is to enable the Court to proceed with the trial. If the progress of the trial can be achieved even in the absence of the accused the court can certainly take into account the magnitude of the sufferings which a particular accused person may have to bear with in order to make himself present in the Court in that particular case. 15. These are days when prosecutions for the offence under Section 138 are galloping up in criminal courts. Due to the increase of inter-State transactions through the facilities of the banks it is not uncommon that when prosecutions are instituted in one State the accused might belong to a different State, sometimes a far distant State. Not very rarely such accused would be ladies also. For prosecution under Section 138 of the NI Act the trial should be that of summons case. When a magistrate feels that insistence of personal attendance of the accused in a summon case, in a particular situation, would inflict enormous hardship and cost to a particular accused, it is open to the magistrate to consider how he can relieve such an accused of the great hardships, without causing prejudice to the prosecution proceedings. 16. Section 251 is the commencing provisions in Chapter XX of the Code which deals with trail of summons cases by magistrates. It enjoins on the court to ask the accused whether he pleads guilty when the accused appears or is brought before the Magistrate. The appearance envisaged therein can either be by personal attendance of the accused or through his advocate. This can be understood from Section 205(1) of the Code which says that whenever a magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. 17. Thus, in appropriate cases the magistrate can allow an accused to make even the first appearance through a counsel. The magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the Court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the Court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in Court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses. 18. A question could legitimately be asked - what might happen if the counsel engaged by the accused (whose personal appearance is dispensed with) does not appear or that the counsel does not co-operate in proceeding with the case ? We may point out that the legislature has taken care for such eventualities. Section 205(2) says that the magistrate can in his discretion direct the personal attendance of the accused at any stage of the proceedings. The last limb of Section 317(1) confers a discretion on the magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings. He can even resort to other steps for enforcing such attendance. 19. The position, therefore, bogs down to this : It is within the powers of a magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations to him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with the magistrate can consider all aspects and pass appropriate orders thereon before proceeding further. | 1[ds]The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objections raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable11. At any rate the objection regarding maintainability of the revision petition should have been raised before the Court which invoked such a revisional jurisdiction. Inasmuch as the same was not done we leave that question undecided nowThe position, therefore, bogs down to this : It is within the powers of a magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations to him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with the magistrate can consider all aspects and pass appropriate orders thereon before proceeding further. | 1 | 2,964 | 328 | ### 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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reference to Section 273 of the Code is useful. It says that except as otherwise expressly provided, all evidence taken in the course of the trial or other proceedings shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader. If a court feels that insisting on the personal attendance of an accused in a particular case would be too harsh on account of a variety of reasons, cannot the court afford relief to such an accused in the matter of facing the prosecution proceedings ? 14. The normal rule is that the evidence shall be taken in the presence of the accused. However, even in the absence of the accused such evidence can be taken but then his counsel must be present in the court, provided he has been granted exemption from attending the Court. The concern of the criminal court should primiarly be the administration of criminal justice. For that purpose the proceedings of the Court in the case should register progress. Presence of the accused in the Court is not for marking his attendance just for the sake of seeing him in the Court. It is to enable the Court to proceed with the trial. If the progress of the trial can be achieved even in the absence of the accused the court can certainly take into account the magnitude of the sufferings which a particular accused person may have to bear with in order to make himself present in the Court in that particular case. 15. These are days when prosecutions for the offence under Section 138 are galloping up in criminal courts. Due to the increase of inter-State transactions through the facilities of the banks it is not uncommon that when prosecutions are instituted in one State the accused might belong to a different State, sometimes a far distant State. Not very rarely such accused would be ladies also. For prosecution under Section 138 of the NI Act the trial should be that of summons case. When a magistrate feels that insistence of personal attendance of the accused in a summon case, in a particular situation, would inflict enormous hardship and cost to a particular accused, it is open to the magistrate to consider how he can relieve such an accused of the great hardships, without causing prejudice to the prosecution proceedings. 16. Section 251 is the commencing provisions in Chapter XX of the Code which deals with trail of summons cases by magistrates. It enjoins on the court to ask the accused whether he pleads guilty when the accused appears or is brought before the Magistrate. The appearance envisaged therein can either be by personal attendance of the accused or through his advocate. This can be understood from Section 205(1) of the Code which says that whenever a magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. 17. Thus, in appropriate cases the magistrate can allow an accused to make even the first appearance through a counsel. The magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the Court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the Court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in Court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses. 18. A question could legitimately be asked - what might happen if the counsel engaged by the accused (whose personal appearance is dispensed with) does not appear or that the counsel does not co-operate in proceeding with the case ? We may point out that the legislature has taken care for such eventualities. Section 205(2) says that the magistrate can in his discretion direct the personal attendance of the accused at any stage of the proceedings. The last limb of Section 317(1) confers a discretion on the magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings. He can even resort to other steps for enforcing such attendance. 19. The position, therefore, bogs down to this : It is within the powers of a magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations to him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with the magistrate can consider all aspects and pass appropriate orders thereon before proceeding further.
### Response:
1
### Explanation:
The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Code. In the present case, if the objections raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable11. At any rate the objection regarding maintainability of the revision petition should have been raised before the Court which invoked such a revisional jurisdiction. Inasmuch as the same was not done we leave that question undecided nowThe position, therefore, bogs down to this : It is within the powers of a magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations to him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with the magistrate can consider all aspects and pass appropriate orders thereon before proceeding further.
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Sadhu Singh Vs. Delhi Administration | action unless he has reasonable ground for believing something he can only arrive at that belief by a course of conduct analogous to the judicial process. And yet unless that proposition is valid, there is really no ground for holding that the controller is acting judicially or quasi judicially when he acts under this regulation. If he is not under a duty so to act then it would not be according to law that his decision should be amenable to review and, if necessary, to avoidance by the procedure of certiorari." and held that certiorari did not lie in the case. The Judicial Committee then quoted the passage already set out from the judgments of Atkin, L. J., in 1924-1 KB 171, and of Lord Hewart, C. J., in 1928-1 KB 411, and observed that, "It is that characteristic that the controller lacks in acting under regulation 62". 15. In Nakkuda Alis case, 1951 AC 66, the Controller was prima facie dealing with a case in which the rights of a person were to be determined, but the Judicial Committee was of the view that the statute in the particular case did not require the Controller to act judicially. There is undoubtedly a clear distinction between cases in which an authority is invested with power to determine the rights of a person, and cases in which the authority is invested with power to act in a certain matter, and the exercise of that power affects the rights of a person. In the former, the duty to act judicially may readily be inferred. But whether a public authority invested with powers to pass a specified order is required to act judicially must depend upon the scheme of the statute which invests him with that power. The nature of the authority conferred, the procedure prescribed and the nature of the powers exercised will determine the question whether the public authority is required to act judicially; it is not, however, predicated that before a writ of certiorari or prohibition may issue the duty to act judicially must be expressly or independently imposed upon the authority called upon to determine the rights of a citizen. In the view of the Judicial Committee."if the mere requirement that the Controller must have reasonable grounds of belief is insufficient to oblige him to act judicially, there is nothing else in the context or conditions of his jurisdiction that suggests that he must regulate his action by analogy of judicial rules." The scheme of the Regulation, therefore, negatived according to Judicial Committee, a judicial approach. 16. I am not concerned in this case with the validity of the criticism by Lord Reid of the two decisions. It is sufficient to state for the purpose of this case that there is no principle or binding authority in support of the view that wherever a public authority is invested with power to make a order which prejudicially affects the rights of an individual, whatever may be the nature of the power exercised, whatever may be the procedure prescribed, and whatever may be the nature of the authority conferred, the proceeding of the public authority must be regulated by the analogy of rules governing judicial determination of disputed questions. 17. The alternative contention that the use of the word "decide" in R. 30-A (8) compels a judicial approach cannot also be sustained. As pointed out by Fazl Ali, J., in Advanis case, at p. 642 (of SCR): (at p. 229 of AIR):"The word decision in common parlance is more or less a neutral expression and it can be used with reference to purely executive acts as well as judicial orders. The mere fact that an executive authority has to decide something does not make the decision judicial. It is the manner in which the decision has to be arrived at which makes the difference, and the real test is: is there any duty to decide judicially?" Rule 30-A (8) requires the Administrator to review at intervals of not more than six months the detention order and then to decide upon such review whether the order be continued or cancelled. That only imports that the Administrator after reviewing the material circumstances has to decide whether the detention of the detenu should be continued or cancelled. Undoubtedly, in reviewing the order of detention the Administrator would be taking into account all the relevant circumstances existing at the time when the order was made, the subsequent developments which have a bearing on the detention of the detenu and the representation, if any, made by the detenu. But the rule contemplates review of the detention order and in the exercise of a power to review a condition of a judicial approach is not implied. 18. Counsel for the petitioner said that the order of the Administrator, dated February 24, 1965 was invalid, because the Administrator had reviewed the order confirming the order of detention and not the order of detention. In the preamble clause there is a reference to a "report for review of the order, dated the 5th September, 1964 confirming the detention order" of the petitioner. But it is difficult to divorce the order of detention from the order of confirmation, for without confirmation the order of detention would have no legal sustenance. The Rule provides that the order of detention shall forthwith be reported, if made by an officer empowered by the Administrator, to the Administrator and that the Administrator shall, after taking into account all the circumstances of the case, either confirm the detention order or cancel it. It is pursuant to the detention order so confirmed that a person remains detained, and the review which is intended to be made under R. 30-A (8) is of that order which is confirmed. The second paragraph of the order of the Administrator makes it clear that the detention order of the petitioner shall continue and that detention order is clearly the order made by the District Magistrate and confirmed by the Administrator. | 0[ds]16. I am not concerned in this case with the validity of the criticism by Lord Reid of the two decisions. It is sufficient to state for the purpose of this case that there is no principle or binding authority in support of the view that wherever a public authority is invested with power to make a order which prejudicially affects the rights of an individual, whatever may be the nature of the power exercised, whatever may be the procedure prescribed, and whatever may be the nature of the authority conferred, the proceeding of the public authority must be regulated by the analogy of rules governing judicial determination of disputed questions17. The alternative contention that the use of the word "decide" in R. 30-A (8) compels a judicial approach cannot also be sustained. As pointed out by Fazl Ali, J., in Advanis case, at p. 642 (of SCR): (at p. 229 of AIR):"The word decision in common parlance is more or less a neutral expression and it can be used with reference to purely executive acts as well as judicial orders. The mere fact that an executive authority has to decide something does not make the decision judicial. It is the manner in which the decision has to be arrived at which makes the difference, and the real test is: is there any duty to decide judicially?"Rule 30-A (8) requires the Administrator to review at intervals of not more than six months the detention order and then to decide upon such review whether the order be continued or cancelled. That only imports that the Administrator after reviewing the material circumstances has to decide whether the detention of the detenu should be continued or cancelled. Undoubtedly, in reviewing the order of detention the Administrator would be taking into account all the relevant circumstances existing at the time when the order was made, the subsequent developments which have a bearing on the detention of the detenu and the representation, if any, made by the detenu. But the rule contemplates review of the detention order and in the exercise of a power to review a condition of a judicial approach is not implied. But itis difficult to divorce the order of detention from the order of confirmation, for without confirmation the order of detention would have no legal sustenance. The Rule provides that the order of detention shall forthwith be reported, if made by an officer empowered by the Administrator, to the Administrator and that the Administrator shall, after taking into account all the circumstances of the case, either confirm the detention order or cancel it. It is pursuant to the detention order so confirmed that a person remains detained, and the review which is intended to be made under R. 30-A (8) is of that order which is confirmed. The second paragraph of the order of the Administrator makes it clear that the detention order of the petitioner shall continue and that detention order is clearly the order made by the District Magistrate and confirmed by the Administrator. | 0 | 4,754 | 563 | ### 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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action unless he has reasonable ground for believing something he can only arrive at that belief by a course of conduct analogous to the judicial process. And yet unless that proposition is valid, there is really no ground for holding that the controller is acting judicially or quasi judicially when he acts under this regulation. If he is not under a duty so to act then it would not be according to law that his decision should be amenable to review and, if necessary, to avoidance by the procedure of certiorari." and held that certiorari did not lie in the case. The Judicial Committee then quoted the passage already set out from the judgments of Atkin, L. J., in 1924-1 KB 171, and of Lord Hewart, C. J., in 1928-1 KB 411, and observed that, "It is that characteristic that the controller lacks in acting under regulation 62". 15. In Nakkuda Alis case, 1951 AC 66, the Controller was prima facie dealing with a case in which the rights of a person were to be determined, but the Judicial Committee was of the view that the statute in the particular case did not require the Controller to act judicially. There is undoubtedly a clear distinction between cases in which an authority is invested with power to determine the rights of a person, and cases in which the authority is invested with power to act in a certain matter, and the exercise of that power affects the rights of a person. In the former, the duty to act judicially may readily be inferred. But whether a public authority invested with powers to pass a specified order is required to act judicially must depend upon the scheme of the statute which invests him with that power. The nature of the authority conferred, the procedure prescribed and the nature of the powers exercised will determine the question whether the public authority is required to act judicially; it is not, however, predicated that before a writ of certiorari or prohibition may issue the duty to act judicially must be expressly or independently imposed upon the authority called upon to determine the rights of a citizen. In the view of the Judicial Committee."if the mere requirement that the Controller must have reasonable grounds of belief is insufficient to oblige him to act judicially, there is nothing else in the context or conditions of his jurisdiction that suggests that he must regulate his action by analogy of judicial rules." The scheme of the Regulation, therefore, negatived according to Judicial Committee, a judicial approach. 16. I am not concerned in this case with the validity of the criticism by Lord Reid of the two decisions. It is sufficient to state for the purpose of this case that there is no principle or binding authority in support of the view that wherever a public authority is invested with power to make a order which prejudicially affects the rights of an individual, whatever may be the nature of the power exercised, whatever may be the procedure prescribed, and whatever may be the nature of the authority conferred, the proceeding of the public authority must be regulated by the analogy of rules governing judicial determination of disputed questions. 17. The alternative contention that the use of the word "decide" in R. 30-A (8) compels a judicial approach cannot also be sustained. As pointed out by Fazl Ali, J., in Advanis case, at p. 642 (of SCR): (at p. 229 of AIR):"The word decision in common parlance is more or less a neutral expression and it can be used with reference to purely executive acts as well as judicial orders. The mere fact that an executive authority has to decide something does not make the decision judicial. It is the manner in which the decision has to be arrived at which makes the difference, and the real test is: is there any duty to decide judicially?" Rule 30-A (8) requires the Administrator to review at intervals of not more than six months the detention order and then to decide upon such review whether the order be continued or cancelled. That only imports that the Administrator after reviewing the material circumstances has to decide whether the detention of the detenu should be continued or cancelled. Undoubtedly, in reviewing the order of detention the Administrator would be taking into account all the relevant circumstances existing at the time when the order was made, the subsequent developments which have a bearing on the detention of the detenu and the representation, if any, made by the detenu. But the rule contemplates review of the detention order and in the exercise of a power to review a condition of a judicial approach is not implied. 18. Counsel for the petitioner said that the order of the Administrator, dated February 24, 1965 was invalid, because the Administrator had reviewed the order confirming the order of detention and not the order of detention. In the preamble clause there is a reference to a "report for review of the order, dated the 5th September, 1964 confirming the detention order" of the petitioner. But it is difficult to divorce the order of detention from the order of confirmation, for without confirmation the order of detention would have no legal sustenance. The Rule provides that the order of detention shall forthwith be reported, if made by an officer empowered by the Administrator, to the Administrator and that the Administrator shall, after taking into account all the circumstances of the case, either confirm the detention order or cancel it. It is pursuant to the detention order so confirmed that a person remains detained, and the review which is intended to be made under R. 30-A (8) is of that order which is confirmed. The second paragraph of the order of the Administrator makes it clear that the detention order of the petitioner shall continue and that detention order is clearly the order made by the District Magistrate and confirmed by the Administrator.
### Response:
0
### Explanation:
16. I am not concerned in this case with the validity of the criticism by Lord Reid of the two decisions. It is sufficient to state for the purpose of this case that there is no principle or binding authority in support of the view that wherever a public authority is invested with power to make a order which prejudicially affects the rights of an individual, whatever may be the nature of the power exercised, whatever may be the procedure prescribed, and whatever may be the nature of the authority conferred, the proceeding of the public authority must be regulated by the analogy of rules governing judicial determination of disputed questions17. The alternative contention that the use of the word "decide" in R. 30-A (8) compels a judicial approach cannot also be sustained. As pointed out by Fazl Ali, J., in Advanis case, at p. 642 (of SCR): (at p. 229 of AIR):"The word decision in common parlance is more or less a neutral expression and it can be used with reference to purely executive acts as well as judicial orders. The mere fact that an executive authority has to decide something does not make the decision judicial. It is the manner in which the decision has to be arrived at which makes the difference, and the real test is: is there any duty to decide judicially?"Rule 30-A (8) requires the Administrator to review at intervals of not more than six months the detention order and then to decide upon such review whether the order be continued or cancelled. That only imports that the Administrator after reviewing the material circumstances has to decide whether the detention of the detenu should be continued or cancelled. Undoubtedly, in reviewing the order of detention the Administrator would be taking into account all the relevant circumstances existing at the time when the order was made, the subsequent developments which have a bearing on the detention of the detenu and the representation, if any, made by the detenu. But the rule contemplates review of the detention order and in the exercise of a power to review a condition of a judicial approach is not implied. But itis difficult to divorce the order of detention from the order of confirmation, for without confirmation the order of detention would have no legal sustenance. The Rule provides that the order of detention shall forthwith be reported, if made by an officer empowered by the Administrator, to the Administrator and that the Administrator shall, after taking into account all the circumstances of the case, either confirm the detention order or cancel it. It is pursuant to the detention order so confirmed that a person remains detained, and the review which is intended to be made under R. 30-A (8) is of that order which is confirmed. The second paragraph of the order of the Administrator makes it clear that the detention order of the petitioner shall continue and that detention order is clearly the order made by the District Magistrate and confirmed by the Administrator.
|
N. V. Narendranath Vs. Commissioner Of Wealth Tax, Andhra Pradesh,Hyderabad | or before a son is adopted, for the share which is taken at a partition by one of the coparceners is taken by him as representing his branch. Again the ownership of the dividing coparcener is such that female members of the family may have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. [See Arunachalams case, 1957 AC 540 (Supra)]. It is evident that these are the incidents which arise because the properties have been and have not been ceased to be joint family properties. It is no doubt true that there was a partition between the assessee, his wife and minor daughters on the one hand and his father and brothers on the other hand. But the effect of partition did not affect the character of these properties which did not cease to be joint family properties in the hands of the appellant.Our conclusion is that when a coparcener having a wife and two minor daughters and no son receives his share of the joint family properties on partition, such property in the hands of the coparcener belongs to the Hindu Undivided Family of himself, his wife and minor daughters and cannot be assessed at his individual property.It is clear that the present case falls within the ratio of the decision of this Court in Gowali Buddannas case, 1966-60 ITR 293 = (AIR 1966 SC 1523 ) (supra) and the Appellate Tribunal was right in holding that the status of the respondent was that of a Hindu Undivided Family and not that of an individual. 10. On behalf of the respondent reference was made to the decision of this Court in T. S. Srinivasan v. Commissioner of Income Tax, 1966-60 ITR 36 = (AIR 1966 SC 984 ), and it was contended that the decision proceeded on the basis that property received by the coparcener on partition cannot be regarded as property of a Hindu Undivided Family if he has merely a wife or daughter and no son. It is therefore necessary to examine the material facts and find out what is the ratio decidendi of that case. The appellant was a member of the Hindu Undivided Family with his father and brothers. As a result of partial partition of properties belonging to the Hindu Undivided Family the appellant received certain shares and with these shares as nucleus he acquired house properties, shares and deposits. His first son was born on 11th December, 1952 and it was common ground that the conception of the child must have taken place sometime in March, 1952. For the assessment year 1953-54 the relevant accounting year being the financial year 1st April, 1952 to 31st March, 1953 the appellant claimed that the income from the assets should be assessed in the hands of the Hindu Undivided Family consisting of himself and his son which, according to him, had come into existence in or about March, 1952 when the son was conceived. The Income Tax Officer recognised the Hindu Undivided Family only from the date of the birth of the son, viz., 11th December, 1952 and assessed the income till 11th December, 1952 in the hands of the appellant as an individual. The Appellate Assistant Commissioner and the Tribunal upheld this view on appeal. Before the High Court the question debated was whether the Hindu Undivided Family came into existence in or about March, 1952 when the son was conceived and whether the assessee could be assessed in the status of an individual for any part of the relevant accounting year. The question was answered against the assessee by the High Court. The assessee appealed to this Court and the contention of the appellant was that according to the doctrine of Hindu law a son conceived is in the same position as a son actually in existence. The argument was rejected by this Court which held that the Hindu Undivided Family did not come into existence on the conception of the son as claimed by the appellant, but came into being when the son was actually born. It was suggested on behalf of the respondent that the decision of this case must be taken to be implicitly, if not explicitly that there was no Hindu Undivided Family prior to the date of the birth of the son. But we do not think that any such implication can be raised. The case of the appellant throughout the course of the proceedings was that the Hindu Undivided Family came into existence for the first time in or about March, 1952 when the son was conceived and it was not his case at any time that a Hindu Undivided Family was in existence prior to the conception of the son. Indeed, it was common ground between the parties that there was no Hindu Undivided Family in existence prior to the conception of the son. The only dispute was whether the Hindu Undivided Family came into existence for the first time when the son was conceived as claimed by the assessee or whether it came into existence when the son was born as claimed by the Income Tax Department. The appellant relied on the doctrine of Hindu law that the son conceived is in the same position as the son born and the respondent contended that this doctrine was inapplicable. That was the only question raised before this Court which it was called upon to decide and which in fact it decided. The question whether there was in any event even without a son conceived or born, a Hindu Undivided Family consisting of the appellant and his wife and whether the properties received on partition belonged to that Hindu Undivided Family was neither raised nor argued before this Court which had no occasion to consider it. The decision of T. S. Srinivasans case, 1966-60 ITR 36 = (AIR 1966 SC 984 ) (supra) has therefore no bearing on the question now presented for determination in the present case. | 1[ds]4. Under Section 3 of the Wealth Tax Act not a Hindu coparcenery but a Hindu Undivided Family is one of the assessable legal entities. A Hindu joint family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu coparcenery is a much narrower body than the Hindu joint family;it includes only those persons who acquire by birth an interest in the joint or coparcenery property, these being the sons, grandsons and great-grandsons of the holder of the joint property for the time beingThe first question involved in this case is whether the status of the appellant was that of a Hindu Undivided family consisting of himself, his wife and his daughtersIn this connection, a distinction must be drawn between two classes of cases where an assessee is sought to be assessed in respect of ancestral property held by him; (1) where property not originally joint is received by the assessee and the question has to be asked whether it has acquired the character of a joint family property in the hands of the assessee, and (2) where the property already impressed with the character of joint family property comes into the hands of the assessee as a single coparcener and the question required to be considered is whether it has retained the character of joint family property in the hands of the assessee or is converted into absolute property of the assessee6. Different considerations would be applicable, where property already impressed with the character of joint family property comes into the hands of a single coparcener. The question to be asked in such a case in whether the property retains the character of joint family property or whether it sheds the character of joint family property and becomes the absolute property of the single coparcener. In Commissioner of Income Tax v. Gomdalli Lakshminarayan, 1935-3 ITR 367 = (AIR 1935 Bom 412 ), the property was ancestral in the hands of the father and the son had acquired an interest in it by birth. There was a subsisting Hindu Undivided Family during the life-time of the father and that family did not come to an end on his death. On these facts, the Bombay High Court held that the income received from the property was liable to super-tax as the income of the Hindu Undivided Family in the hands of the son who was the sole surviving male member of the Hindu Undivided Family in the year of assessment. The reasoning was that the property from which income accrued originally belonged to a Hindu Undivided Family and on the death of the father it did not cease to be property of that Hindu Undivided Family but continued to belong to that Hindu Undivided Family and its income in the hands of the son was, therefore, assessable as income of the Hindu Undivided Family. There was a vital distinction between the facts of this case and the facts in Kalyanjis case, 1937-5 ITR 90 = (AIR 1937 PC 36 ) (supra). This distinction was not noticed by the Judicial Committee in Kalyanjis case, 1937-5 ITR 90 = (AIR 1937 PC 36 ) (supra) when it observed that the Bombay High Court arrived too readily at the conclusion that the income was the income of the family. When Gomadallis case, 1935-3 ITR 367 = (AIR 1935 Bom 412 ) (supra) was carried on appeal the Judicial Committee once again failed to notice the distinction and wrongly reversed the decision of the Bombay High Court holding that the facts of the case were not materially different from the facts in Kalyanjis case, 1937-5 ITR 90 = (AIR 1937 PC 36 ) (supra) [See the decision of the Judicial Committee in Commissioner of Income Tax, Bombay v. A. P. Swamy Gomedalli, 1937-5 ITR 416 = (AIR 1937 PC 239)]6. Different considerations would be applicable, where property already impressed with the character of joint family property comes into the hands of a single coparcener. The question to be asked in such a case in whether the property retains the character of joint family property or whether it sheds the character of joint family property and becomes the absolute property of the single coparcener. In Commissioner of Income Tax v. Gomdalli Lakshminarayan, 1935-3 ITR 367 = (AIR 1935 Bom 412 ), the property was ancestral in the hands of the father and the son had acquired an interest in it by birth. There was a subsisting Hindu Undivided Family during the life-time of the father and that family did not come to an end on his death. On these facts, the Bombay High Court held that the income received from the property was liable to super-tax as the income of the Hindu Undivided Family in the hands of the son who was the sole surviving male member of the Hindu Undivided Family in the year of assessment. The reasoning was that the property from which income accrued originally belonged to a Hindu Undivided Family and on the death of the father it did not cease to be property of that Hindu Undivided Family but continued to belong to that Hindu Undivided Family and its income in the hands of the son was, therefore, assessable as income of the Hindu Undivided Family. There was a vital distinction between the facts of this case and the facts in Kalyanjis case, 1937-5 ITR 90 = (AIR 1937 PC 36 ) (supra). This distinction was not noticed by the Judicial Committee in Kalyanjis case, 1937-5 ITR 90 = (AIR 1937 PC 36 ) (supra) when it observed that the Bombay High Court arrived too readily at the conclusion that the income was the income of the family. When Gomadallis case, 1935-3 ITR 367 = (AIR 1935 Bom 412 ) (supra) was carried on appeal the Judicial Committee once again failed to notice the distinction and wrongly reversed the decision of the Bombay High Court holding that the facts of the case were not materially different from the facts in Kalyanjis case, 1937-5 ITR 90 = (AIR 1937 PC 36 ) (supra) [See the decision of the Judicial Committee in Commissioner of Income Tax, Bombay v. A. P. Swamy Gomedalli, 1937-5 ITR 416 = (AIR 1937 PC | 1 | 4,786 | 1,140 | ### Instruction:
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or before a son is adopted, for the share which is taken at a partition by one of the coparceners is taken by him as representing his branch. Again the ownership of the dividing coparcener is such that female members of the family may have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. [See Arunachalams case, 1957 AC 540 (Supra)]. It is evident that these are the incidents which arise because the properties have been and have not been ceased to be joint family properties. It is no doubt true that there was a partition between the assessee, his wife and minor daughters on the one hand and his father and brothers on the other hand. But the effect of partition did not affect the character of these properties which did not cease to be joint family properties in the hands of the appellant.Our conclusion is that when a coparcener having a wife and two minor daughters and no son receives his share of the joint family properties on partition, such property in the hands of the coparcener belongs to the Hindu Undivided Family of himself, his wife and minor daughters and cannot be assessed at his individual property.It is clear that the present case falls within the ratio of the decision of this Court in Gowali Buddannas case, 1966-60 ITR 293 = (AIR 1966 SC 1523 ) (supra) and the Appellate Tribunal was right in holding that the status of the respondent was that of a Hindu Undivided Family and not that of an individual. 10. On behalf of the respondent reference was made to the decision of this Court in T. S. Srinivasan v. Commissioner of Income Tax, 1966-60 ITR 36 = (AIR 1966 SC 984 ), and it was contended that the decision proceeded on the basis that property received by the coparcener on partition cannot be regarded as property of a Hindu Undivided Family if he has merely a wife or daughter and no son. It is therefore necessary to examine the material facts and find out what is the ratio decidendi of that case. The appellant was a member of the Hindu Undivided Family with his father and brothers. As a result of partial partition of properties belonging to the Hindu Undivided Family the appellant received certain shares and with these shares as nucleus he acquired house properties, shares and deposits. His first son was born on 11th December, 1952 and it was common ground that the conception of the child must have taken place sometime in March, 1952. For the assessment year 1953-54 the relevant accounting year being the financial year 1st April, 1952 to 31st March, 1953 the appellant claimed that the income from the assets should be assessed in the hands of the Hindu Undivided Family consisting of himself and his son which, according to him, had come into existence in or about March, 1952 when the son was conceived. The Income Tax Officer recognised the Hindu Undivided Family only from the date of the birth of the son, viz., 11th December, 1952 and assessed the income till 11th December, 1952 in the hands of the appellant as an individual. The Appellate Assistant Commissioner and the Tribunal upheld this view on appeal. Before the High Court the question debated was whether the Hindu Undivided Family came into existence in or about March, 1952 when the son was conceived and whether the assessee could be assessed in the status of an individual for any part of the relevant accounting year. The question was answered against the assessee by the High Court. The assessee appealed to this Court and the contention of the appellant was that according to the doctrine of Hindu law a son conceived is in the same position as a son actually in existence. The argument was rejected by this Court which held that the Hindu Undivided Family did not come into existence on the conception of the son as claimed by the appellant, but came into being when the son was actually born. It was suggested on behalf of the respondent that the decision of this case must be taken to be implicitly, if not explicitly that there was no Hindu Undivided Family prior to the date of the birth of the son. But we do not think that any such implication can be raised. The case of the appellant throughout the course of the proceedings was that the Hindu Undivided Family came into existence for the first time in or about March, 1952 when the son was conceived and it was not his case at any time that a Hindu Undivided Family was in existence prior to the conception of the son. Indeed, it was common ground between the parties that there was no Hindu Undivided Family in existence prior to the conception of the son. The only dispute was whether the Hindu Undivided Family came into existence for the first time when the son was conceived as claimed by the assessee or whether it came into existence when the son was born as claimed by the Income Tax Department. The appellant relied on the doctrine of Hindu law that the son conceived is in the same position as the son born and the respondent contended that this doctrine was inapplicable. That was the only question raised before this Court which it was called upon to decide and which in fact it decided. The question whether there was in any event even without a son conceived or born, a Hindu Undivided Family consisting of the appellant and his wife and whether the properties received on partition belonged to that Hindu Undivided Family was neither raised nor argued before this Court which had no occasion to consider it. The decision of T. S. Srinivasans case, 1966-60 ITR 36 = (AIR 1966 SC 984 ) (supra) has therefore no bearing on the question now presented for determination in the present case.
### Response:
1
### Explanation:
who acquire by birth an interest in the joint or coparcenery property, these being the sons, grandsons and great-grandsons of the holder of the joint property for the time beingThe first question involved in this case is whether the status of the appellant was that of a Hindu Undivided family consisting of himself, his wife and his daughtersIn this connection, a distinction must be drawn between two classes of cases where an assessee is sought to be assessed in respect of ancestral property held by him; (1) where property not originally joint is received by the assessee and the question has to be asked whether it has acquired the character of a joint family property in the hands of the assessee, and (2) where the property already impressed with the character of joint family property comes into the hands of the assessee as a single coparcener and the question required to be considered is whether it has retained the character of joint family property in the hands of the assessee or is converted into absolute property of the assessee6. Different considerations would be applicable, where property already impressed with the character of joint family property comes into the hands of a single coparcener. The question to be asked in such a case in whether the property retains the character of joint family property or whether it sheds the character of joint family property and becomes the absolute property of the single coparcener. In Commissioner of Income Tax v. Gomdalli Lakshminarayan, 1935-3 ITR 367 = (AIR 1935 Bom 412 ), the property was ancestral in the hands of the father and the son had acquired an interest in it by birth. There was a subsisting Hindu Undivided Family during the life-time of the father and that family did not come to an end on his death. On these facts, the Bombay High Court held that the income received from the property was liable to super-tax as the income of the Hindu Undivided Family in the hands of the son who was the sole surviving male member of the Hindu Undivided Family in the year of assessment. The reasoning was that the property from which income accrued originally belonged to a Hindu Undivided Family and on the death of the father it did not cease to be property of that Hindu Undivided Family but continued to belong to that Hindu Undivided Family and its income in the hands of the son was, therefore, assessable as income of the Hindu Undivided Family. There was a vital distinction between the facts of this case and the facts in Kalyanjis case, 1937-5 ITR 90 = (AIR 1937 PC 36 ) (supra). This distinction was not noticed by the Judicial Committee in Kalyanjis case, 1937-5 ITR 90 = (AIR 1937 PC 36 ) (supra) when it observed that the Bombay High Court arrived too readily at the conclusion that the income was the income of the family. When Gomadallis case, 1935-3 ITR 367 = (AIR 1935 Bom 412 ) (supra) was carried on appeal the Judicial Committee once again failed to notice the distinction and wrongly reversed the decision of the Bombay High Court holding that the facts of the case were not materially different from the facts in Kalyanjis case, 1937-5 ITR 90 = (AIR 1937 PC 36 ) (supra) [See the decision of the Judicial Committee in Commissioner of Income Tax, Bombay v. A. P. Swamy Gomedalli, 1937-5 ITR 416 = (AIR 1937 PC 239)]6. Different considerations would be applicable, where property already impressed with the character of joint family property comes into the hands of a single coparcener. The question to be asked in such a case in whether the property retains the character of joint family property or whether it sheds the character of joint family property and becomes the absolute property of the single coparcener. In Commissioner of Income Tax v. Gomdalli Lakshminarayan, 1935-3 ITR 367 = (AIR 1935 Bom 412 ), the property was ancestral in the hands of the father and the son had acquired an interest in it by birth. There was a subsisting Hindu Undivided Family during the life-time of the father and that family did not come to an end on his death. On these facts, the Bombay High Court held that the income received from the property was liable to super-tax as the income of the Hindu Undivided Family in the hands of the son who was the sole surviving male member of the Hindu Undivided Family in the year of assessment. The reasoning was that the property from which income accrued originally belonged to a Hindu Undivided Family and on the death of the father it did not cease to be property of that Hindu Undivided Family but continued to belong to that Hindu Undivided Family and its income in the hands of the son was, therefore, assessable as income of the Hindu Undivided Family. There was a vital distinction between the facts of this case and the facts in Kalyanjis case, 1937-5 ITR 90 = (AIR 1937 PC 36 ) (supra). This distinction was not noticed by the Judicial Committee in Kalyanjis case, 1937-5 ITR 90 = (AIR 1937 PC 36 ) (supra) when it observed that the Bombay High Court arrived too readily at the conclusion that the income was the income of the family. When Gomadallis case, 1935-3 ITR 367 = (AIR 1935 Bom 412 ) (supra) was carried on appeal the Judicial Committee once again failed to notice the distinction and wrongly reversed the decision of the Bombay High Court holding that the facts of the case were not materially different from the facts in Kalyanjis case, 1937-5 ITR 90 = (AIR 1937 PC 36 ) (supra) [See the decision of the Judicial Committee in Commissioner of Income Tax, Bombay v. A. P. Swamy Gomedalli, 1937-5 ITR 416 = (AIR 1937 PC
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Pioneer Paper Box Factory Vs. Smt. Thakurdevi Shriniwas | High Court of Bombay dismissing the appellant defendant tenants application for revision in a decree for eviction of the defendant. 2. The appellant was tenant of the respondent. On 28 April, 1954 the appellant filed an application under section 11 of the Bombay Rent Act for fixation of standard rent. During the pendency of the application the respondent landlady served a notice on the appellant in the month of March, 1955 terminating the tenancy on the ground that the appellant had failed to pay rent from 1 March, 1954. On 25 April, 1955 a suit was filed for eviction of the appellant. 3. During the pendency of the Suit On 29 June, 1956, the standard rent was fixed at Rs. 55/7/- p.m. The contractual rent was Rs. 85/- p.m. 4. When the suit came up for hearing on 5 October, 1956, it appeared that the appellant paid all the arrears of rent in accordance with the standard rent but did not pay the costs at the suit. The trial court passed an ejectment decree against the appellant. 5. The appellant preferred an appeal. The appellate court took the view that the order of the trial court was justified under section 12 (3) (b) of the Bombay Rent Act. Section 12 (3) (b) of the Bombay Rent Act provides that no decree in eviction shall be passed if on the first day of the hearing of the suit or on or before such other date as the court may fix, the tenant pays or tenders in the court the standard rent and permitted increase in rent due, and thereafter continues to pay or tender in court regularly the said rent and permitted increase till the suit is finally decided and also pays costs of the suit as directed by the Court. 6. The appellant then filed an application for revision in the High Court. The contention which was advanced in the High Court and repeated here was that the courts were in error in decreeing the suit for non-payment of costs because the trial court had not passed any order fixing the amount of costs. It was said that only when an order determining the amount of costs had been made by the court that the tenant could be said to be within the mischief of the provisions of the statute for non-payment of costs so determined by the courts.7. The High Court rightly rejected the contention for two reasons. First, though a formal order as to costs was not made, yet the trial court had made an order directing the appellant to pay the amount of costs and the appellant did not pay the costs. Secondly, the appellant stated before the trial court that the appellant was not in a position to tender what is described as professional costs and court costs of the suit. 8. It is indisputable that in the trial court the appellant not only admitted failure to pay costs but also inability to tender the costs. The appellant could be entitled to protection against eviction only if the appellant complied with the provisions of the statute. The appellant was required to tender not only the arrears of rent but also the costs of the suit. In the trial court the appellant admitted noncompliance with the provisions of the statute. Therefore, the trial court rightly held that the appellant was not entitled to any benefit or protection against eviction. 9. The appellate court held that because the appellant filed an application for fixation of standard rent and therefore there being a dispute between the parties regarding the standard rent no order in eviction could be passed under section 12 (3) (a) of the Bombay Rent Act. The appellate court, however, held that the case fell within the provisions of section 12 (3) (b) of the Bombay Rent Act by reason of the failure of the appellant to pay costs of the suit. 10. Counsel for the appellant contended that the costs were deposited on 22 November, 1956 and therefore the High Court should have exercised discretion in favour of the appellant. The High Court stated that the decree was passed on 5 October, 1956 and the appeal was filed on 18 October, 1956 and the amount of costs was not deposited with the filing of the memorandum of appeal. The High Court concluded by stating that the decree of the trial Court was made on 5 October, 1956. We are in the year 1963. The attitude adopted by the petitioner is not such in which a discretion can be exercised in favour of the petitioner. The High Court heard the application on 19 November, 1963. Counsel for of the appellant invited our attention to Paragraph 13 of the application for review made in the High Court where the appellant alleged that on 7 December, 1956 the costs were paid. No portion of the judgment of the High Court is open to any criticism for the obvious reason that when the memorandum of appeal was filed in the High Court on 18 October, 1956 the costs were not paid. The application for review also indicates that when the matter was heard before the High Court it was not brought to the notice of the High Court that the costs were said on 7 December, 1956 as alleged. 11. The appeal is from the judgment of the High Court. It would be improper to interfere with exercise, of discretion passed by the High Court when the matter was not brought to the notice of the High Court. Discretion is exercised by the Court in the facts and circumstances of the case. Any interference with the exercise of discretion in the present case would be substituting the discretion of this Court on a set of facts which were never presented to the High Court. 12. The appellant was not entitled to any relief under the provisions of the Bombay Rent Act. The High Court rightly rejected the application for revision. | 0[ds]7. The High Court rightly rejected the contention for two reasons. First, though a formal order as to costs was not made, yet the trial court had made an order directing the appellant to pay the amount of costs and the appellant did not pay the costs. Secondly, the appellant stated before the trial court that the appellant was not in a position to tender what is described as professional costs and court costs of the suit8. It is indisputable that in the trial court the appellant not only admitted failure to pay costs but also inability to tender the costs. The appellant could be entitled to protection against eviction only if the appellant complied with the provisions of the statute. The appellant was required to tender not only the arrears of rent but also the costs of the suit. In the trial court the appellant admitted noncompliance with the provisions of the statute. Therefore, the trial court rightly held that the appellant was not entitled to any benefit or protection against eviction9. The appellate court held that because the appellant filed an application for fixation of standard rent and therefore there being a dispute between the parties regarding the standard rent no order in eviction could be passed under section 12 (3) (a) of the Bombay Rent Act. The appellate court, however, held that the case fell within the provisions of section 12 (3) (b) of the Bombay Rent Act by reason of the failure of the appellant to pay costs of the suit11. The appeal is from the judgment of the High Court. It would be improper to interfere with exercise, of discretion passed by the High Court when the matter was not brought to the notice of the High Court. Discretion is exercised by the Court in the facts and circumstances of the case. Any interference with the exercise of discretion in the present case would be substituting the discretion of this Court on a set of facts which were never presented to the High Court12. The appellant was not entitled to any relief under the provisions of the Bombay Rent Act. The High Court rightly rejected the application for revision. | 0 | 1,112 | 400 | ### 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:
High Court of Bombay dismissing the appellant defendant tenants application for revision in a decree for eviction of the defendant. 2. The appellant was tenant of the respondent. On 28 April, 1954 the appellant filed an application under section 11 of the Bombay Rent Act for fixation of standard rent. During the pendency of the application the respondent landlady served a notice on the appellant in the month of March, 1955 terminating the tenancy on the ground that the appellant had failed to pay rent from 1 March, 1954. On 25 April, 1955 a suit was filed for eviction of the appellant. 3. During the pendency of the Suit On 29 June, 1956, the standard rent was fixed at Rs. 55/7/- p.m. The contractual rent was Rs. 85/- p.m. 4. When the suit came up for hearing on 5 October, 1956, it appeared that the appellant paid all the arrears of rent in accordance with the standard rent but did not pay the costs at the suit. The trial court passed an ejectment decree against the appellant. 5. The appellant preferred an appeal. The appellate court took the view that the order of the trial court was justified under section 12 (3) (b) of the Bombay Rent Act. Section 12 (3) (b) of the Bombay Rent Act provides that no decree in eviction shall be passed if on the first day of the hearing of the suit or on or before such other date as the court may fix, the tenant pays or tenders in the court the standard rent and permitted increase in rent due, and thereafter continues to pay or tender in court regularly the said rent and permitted increase till the suit is finally decided and also pays costs of the suit as directed by the Court. 6. The appellant then filed an application for revision in the High Court. The contention which was advanced in the High Court and repeated here was that the courts were in error in decreeing the suit for non-payment of costs because the trial court had not passed any order fixing the amount of costs. It was said that only when an order determining the amount of costs had been made by the court that the tenant could be said to be within the mischief of the provisions of the statute for non-payment of costs so determined by the courts.7. The High Court rightly rejected the contention for two reasons. First, though a formal order as to costs was not made, yet the trial court had made an order directing the appellant to pay the amount of costs and the appellant did not pay the costs. Secondly, the appellant stated before the trial court that the appellant was not in a position to tender what is described as professional costs and court costs of the suit. 8. It is indisputable that in the trial court the appellant not only admitted failure to pay costs but also inability to tender the costs. The appellant could be entitled to protection against eviction only if the appellant complied with the provisions of the statute. The appellant was required to tender not only the arrears of rent but also the costs of the suit. In the trial court the appellant admitted noncompliance with the provisions of the statute. Therefore, the trial court rightly held that the appellant was not entitled to any benefit or protection against eviction. 9. The appellate court held that because the appellant filed an application for fixation of standard rent and therefore there being a dispute between the parties regarding the standard rent no order in eviction could be passed under section 12 (3) (a) of the Bombay Rent Act. The appellate court, however, held that the case fell within the provisions of section 12 (3) (b) of the Bombay Rent Act by reason of the failure of the appellant to pay costs of the suit. 10. Counsel for the appellant contended that the costs were deposited on 22 November, 1956 and therefore the High Court should have exercised discretion in favour of the appellant. The High Court stated that the decree was passed on 5 October, 1956 and the appeal was filed on 18 October, 1956 and the amount of costs was not deposited with the filing of the memorandum of appeal. The High Court concluded by stating that the decree of the trial Court was made on 5 October, 1956. We are in the year 1963. The attitude adopted by the petitioner is not such in which a discretion can be exercised in favour of the petitioner. The High Court heard the application on 19 November, 1963. Counsel for of the appellant invited our attention to Paragraph 13 of the application for review made in the High Court where the appellant alleged that on 7 December, 1956 the costs were paid. No portion of the judgment of the High Court is open to any criticism for the obvious reason that when the memorandum of appeal was filed in the High Court on 18 October, 1956 the costs were not paid. The application for review also indicates that when the matter was heard before the High Court it was not brought to the notice of the High Court that the costs were said on 7 December, 1956 as alleged. 11. The appeal is from the judgment of the High Court. It would be improper to interfere with exercise, of discretion passed by the High Court when the matter was not brought to the notice of the High Court. Discretion is exercised by the Court in the facts and circumstances of the case. Any interference with the exercise of discretion in the present case would be substituting the discretion of this Court on a set of facts which were never presented to the High Court. 12. The appellant was not entitled to any relief under the provisions of the Bombay Rent Act. The High Court rightly rejected the application for revision.
### Response:
0
### Explanation:
7. The High Court rightly rejected the contention for two reasons. First, though a formal order as to costs was not made, yet the trial court had made an order directing the appellant to pay the amount of costs and the appellant did not pay the costs. Secondly, the appellant stated before the trial court that the appellant was not in a position to tender what is described as professional costs and court costs of the suit8. It is indisputable that in the trial court the appellant not only admitted failure to pay costs but also inability to tender the costs. The appellant could be entitled to protection against eviction only if the appellant complied with the provisions of the statute. The appellant was required to tender not only the arrears of rent but also the costs of the suit. In the trial court the appellant admitted noncompliance with the provisions of the statute. Therefore, the trial court rightly held that the appellant was not entitled to any benefit or protection against eviction9. The appellate court held that because the appellant filed an application for fixation of standard rent and therefore there being a dispute between the parties regarding the standard rent no order in eviction could be passed under section 12 (3) (a) of the Bombay Rent Act. The appellate court, however, held that the case fell within the provisions of section 12 (3) (b) of the Bombay Rent Act by reason of the failure of the appellant to pay costs of the suit11. The appeal is from the judgment of the High Court. It would be improper to interfere with exercise, of discretion passed by the High Court when the matter was not brought to the notice of the High Court. Discretion is exercised by the Court in the facts and circumstances of the case. Any interference with the exercise of discretion in the present case would be substituting the discretion of this Court on a set of facts which were never presented to the High Court12. The appellant was not entitled to any relief under the provisions of the Bombay Rent Act. The High Court rightly rejected the application for revision.
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Indian Airlines Ltd Vs. Samaresh Bhowmick | G.T. Nanavati, J. Leave granted. 2. The appellant, a statutory corporation, after advertisement and selection, prepared a list of selected persons for appointment to the post of Helpers. The select list was valid upto 15th July, 1994. The names of 74 writ petitioners, respondents herein, were included in the select list but they could not be appointed during the period of validity of the select list. 3. Respondents approached the High Court of Calcutta by filing a writ petition and the learned Single Judge inter alia held that the respondents herein had no indefeasible right of being appointed and they had only the right of being considered for appointment in the vacancies for which selection was made contingent upon the appellant filling up those vacancies. However, the learned Single Judge directed that the cases of the respondents should be considered for appointment if any vacancies arose till 30.7.91. 4. An appeal was laid before the Division Bench and by the impugned judgment and order dated 12.8.98, the Division Bench inter alia directed that in the present vacancies as well as future vacancies, the candidates who were selected and empanelled shall be regularised first. 5. It may be stated that the appellant proposed a Scheme for regularisation of casual employees working in Calcutta and the present respondents were also given casual employment by the appellant. 6. The said Scheme for regularisation of all causal employees is extracted below :- "1. All the casuals irrespective of the fact that names were borne on any panel or not will be treated at par provided they have worked for 90 days as casual during the last three years. 2. Notification will be issued inviting applications from casual employees for the post of Helpers in Commercial, Engineering, Stores, Ground Support, Catering Canteens and Peons. 3. Age relaxation to the extent of casual employment will be given subject to a maximum age requirement of 40 years for general category, 43 years for OBC and 45 years for SC & ST as on date of the order of the Court. 4. The candidate must fulfil the educational qualification of having passed 8th class from a recognised institution for the post of Helpers in Commercial, Engineering, Stores, Ground Support and Peon. 5. Selections will be made by duly constituted Selection Board as per the Recruitment and Promotion Rules of the Company. 6. Merit Lists, category/cadre-wise will be prepared and the selected candidates would be offered employment against the vacancies in order of merit. 7. While making appointments, the directives of the Government with regard to reservations will be adhered to. 8. Those who cannot be appointed due to non-availability of regular vacancies would be given ex-gratia payment calculated on the basis of compensation payable under Section 25-F of the Industrial Disputes Act, 1947. However, they will have no claim for re-employment as casual or otherwise in future. 9. The appointment of the above mentioned empanelled casual employees, will be subject to their completing all the pre-employment formalities and on being declared medically fit by Medical Officer of the Company. 10. This will be a one time exercise only." 7. The contention on behalf of the appellant is that as the life of the select list has expired long back, the direction of the Division Bench is not relevant now. It has also been urged that merely because the candidates were empanelled, it would not give any right to them for appointment and at best they may have the right for consideration for appointment. It has been further contended on behalf of the appellant that as the Scheme has been prepared for absorption of casual employees which would also include the present respondents, the judgment of the Division Bench of the High Court is not at all sustainable in view of the above scheme. 8. While trying to support the judgment of the Division Bench, the learned counsel for the respondents urged that the cases of the respondents need sympathetic consideration inasmuch as they were properly selected. 9. We are of the considered opinion that the impugned judgment of the Division Bench of the High Court is not sustainable inasmuch as High Court could not have overlooked the scheme. However, we are of the opinion that respondents having been selected in the test earlier should be given preference in the matter of their consideration under the Scheme. | 1[ds]9. We are of the considered opinion that the impugned judgment of the Division Bench of the High Court is not sustainable inasmuch as High Court could not have overlooked the scheme. However, we are of the opinion that respondents having been selected in the test earlier should be given preference in the matter of their consideration under the Scheme. | 1 | 805 | 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.
### Input:
G.T. Nanavati, J. Leave granted. 2. The appellant, a statutory corporation, after advertisement and selection, prepared a list of selected persons for appointment to the post of Helpers. The select list was valid upto 15th July, 1994. The names of 74 writ petitioners, respondents herein, were included in the select list but they could not be appointed during the period of validity of the select list. 3. Respondents approached the High Court of Calcutta by filing a writ petition and the learned Single Judge inter alia held that the respondents herein had no indefeasible right of being appointed and they had only the right of being considered for appointment in the vacancies for which selection was made contingent upon the appellant filling up those vacancies. However, the learned Single Judge directed that the cases of the respondents should be considered for appointment if any vacancies arose till 30.7.91. 4. An appeal was laid before the Division Bench and by the impugned judgment and order dated 12.8.98, the Division Bench inter alia directed that in the present vacancies as well as future vacancies, the candidates who were selected and empanelled shall be regularised first. 5. It may be stated that the appellant proposed a Scheme for regularisation of casual employees working in Calcutta and the present respondents were also given casual employment by the appellant. 6. The said Scheme for regularisation of all causal employees is extracted below :- "1. All the casuals irrespective of the fact that names were borne on any panel or not will be treated at par provided they have worked for 90 days as casual during the last three years. 2. Notification will be issued inviting applications from casual employees for the post of Helpers in Commercial, Engineering, Stores, Ground Support, Catering Canteens and Peons. 3. Age relaxation to the extent of casual employment will be given subject to a maximum age requirement of 40 years for general category, 43 years for OBC and 45 years for SC & ST as on date of the order of the Court. 4. The candidate must fulfil the educational qualification of having passed 8th class from a recognised institution for the post of Helpers in Commercial, Engineering, Stores, Ground Support and Peon. 5. Selections will be made by duly constituted Selection Board as per the Recruitment and Promotion Rules of the Company. 6. Merit Lists, category/cadre-wise will be prepared and the selected candidates would be offered employment against the vacancies in order of merit. 7. While making appointments, the directives of the Government with regard to reservations will be adhered to. 8. Those who cannot be appointed due to non-availability of regular vacancies would be given ex-gratia payment calculated on the basis of compensation payable under Section 25-F of the Industrial Disputes Act, 1947. However, they will have no claim for re-employment as casual or otherwise in future. 9. The appointment of the above mentioned empanelled casual employees, will be subject to their completing all the pre-employment formalities and on being declared medically fit by Medical Officer of the Company. 10. This will be a one time exercise only." 7. The contention on behalf of the appellant is that as the life of the select list has expired long back, the direction of the Division Bench is not relevant now. It has also been urged that merely because the candidates were empanelled, it would not give any right to them for appointment and at best they may have the right for consideration for appointment. It has been further contended on behalf of the appellant that as the Scheme has been prepared for absorption of casual employees which would also include the present respondents, the judgment of the Division Bench of the High Court is not at all sustainable in view of the above scheme. 8. While trying to support the judgment of the Division Bench, the learned counsel for the respondents urged that the cases of the respondents need sympathetic consideration inasmuch as they were properly selected. 9. We are of the considered opinion that the impugned judgment of the Division Bench of the High Court is not sustainable inasmuch as High Court could not have overlooked the scheme. However, we are of the opinion that respondents having been selected in the test earlier should be given preference in the matter of their consideration under the Scheme.
### Response:
1
### Explanation:
9. We are of the considered opinion that the impugned judgment of the Division Bench of the High Court is not sustainable inasmuch as High Court could not have overlooked the scheme. However, we are of the opinion that respondents having been selected in the test earlier should be given preference in the matter of their consideration under the Scheme.
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G. R. Luthra, Additional District Judge, Delhi Vs. Lt. Governor, Delhi & Ors | the Delhi Higher Judicial Service it appears that the respondents and the appellant were all rendering service as Additional District and Sessions Judge. The fallacy of the appellant is that the appellant wants to equate cadre with substantive appointment to a permanent post. This construction totally overlooks the fact that the Delhi higher Judicial Service was constituted with persons who rendered service as Additional District and Sessions Judges in temporary posts or in temporary capacity against permanent posts. There were altogether five permanent and six temporary posts of District and Sessions Judges and Additional District and Sessions Judges. The respondents and the appellants were all recruited as temporary Additional District and Sessions Judges. The important yardstick in the determination of seniority is the length of service rendered by them in the cadre. "Cadre post in the Fundamental Rules means a post as specified in the Schedule and includes a temporary post. The Delhi Higher Judicial Service Rules does not define "cadre but defines cadre post to include a temporary post. The words in the cadre to which they belong in Rule 6 (3) cover the cases of permanent as well as temporary Additional District and Sessions Judges at the time of initial recruitment.27. In Fundamental Rule 9 (22) "permanent post means a post carrying a definite rate of pay sanctioned without limit of time. Fundamental Rule 9 (30) defines "temporary post as a post carrying a definite rate of pay sanctioned for a limited time. Temporary posts may be posts created to perform the ordinary work for which permanent posts already exist. Temporary posts may also be temporary addition to the cadre of a service. "Cadre in Fundamental Rule 9 (4) means the strength of a service or part of a service sanctioned as a separate unit. In the case of temporary addition to the cadre of a service the power of the authorities to create such a post will depend on the provisions of the Rules. Isolated posts may be created for the performance of special tasks unconnected with the ordinary work which a service is called upon to perform. Such temporary posts are treated as unclassified and isolated ex-cadre posts. Here again the power to create the post depends on the provisions contained in the Rules. Where however temporary posts are considered as temporary additions to the cadre of a service the incumbents of those posts will draw their time scale pay.28. The Punjab Superior Judicial Service rules 1983 define "cadre post to mean a permanent post in the service and "ex-cadre post means a post of the same rank as a cadre post. The aforesaid Punjab Rules show that cadre mean incumbents of both permanent and temporary posts. Rule 12 of those Punjab rules states that the seniority of the substantive members of the service, whether permanent or temporary, shall be determined with reference to the respective dates of their confirmation. These Punjab Rules are referred to only for the purpose of showing that where confirmation is the decisive factor to determine the seniority the Rule states so.29. The appellant was appointed a temporary Additional District and Sessions Judge on 25 November, 1967 against one of the temporary posts created by the Government of India. The respondents Sidhu, Vohra and Jain had all been appointed temporary Additional Judges on 15 January, 1966; 24 April, 1967; and 11 August, 1967 respectively earlier than the appointment of the appellant.30. It is apparent that the respondents Sidhu, Vohra and Jain were rendering longer service as Additional District and Sessions Judge than the appellant in the cadre of District and Additional District and Sessions Judge to which they belonged.31. The appellant was confirmed on 2 October, 1970 as District Judge in the Haryana Judicial Service and the respondent Sudhu was confirmed as District Judge on 22 February, 1971 in the Punjab Judicial Service. The confirmation of the appellant and the respondent Sidhu was against permanent posts in Haryana and Punjab Judicial Service because of the accident of permanent posts falling vacant at that time in their home States from which they came on deputation. To determine seniority according to confirmation in permanent posts is to wipe out the length of service rendered by the candidates appointed at the initial constitution of the Delhi Higher Judicial Service. The respondents are in fact senior to the appellant in regard to appointment as Additional District and Sessions Judges.32. The criterion for the determination of seniority under the Delhi Rules is the length of service rendered by the candidates during the period when they were rendering service either as District Judge or as Additional District and Sessions Judge in permanent or temporary capacities.33. Rule 6 (4) of the Delhi Rules shows that the respondents and the appellant were absorbed in the Delhi Higher Judicial Service from the States of Punjab and Haryana. The length of service rendered by them as Additional District and Sessions Judges is the criterion to fix the seniority. The word "cadre includes both permanent and temporary posts. To confine cadre to permanent posts under the Delhi Rules would be to render the Rules totally unworkable and impracticable because at the time of initial recruitment the persons came on deputation from States mostly in their temporary capacity as Additional District and Sessions Judges.34. For these reasons we are of opinion that the respondents Sidhu, Vohra and Jain had been rightly treated as senior to the appellant on the ground that the length of service rendered by the respondents in the cadre of District and Additional District and Sessions Judges to which they belonged at the time of initial recruitment is longer than that of appellant. The respondents and the appellant were all functioning as Additional District Judges on deputation at Delhi at the time of the initial constitution of the Delhi Higher Judicial Service. The respondents were appointed prior to the appellant as Additional district and Sessions Judge. The respondents rendered longer service as Additional district and Sessions Judge vis-a-vis the appellant. | 0[ds]27. In Fundamental Rule 9 (22) "permanent post means a post carrying a definite rate of pay sanctioned without limit of time. Fundamental Rule 9 (30) defines "temporary post as a post carrying a definite rate of pay sanctioned for a limited time. Temporary posts may be posts created to perform the ordinary work for which permanent posts already exist. Temporary posts may also be temporary addition to the cadre of a service. "Cadre in Fundamental Rule 9 (4) means the strength of a service or part of a service sanctioned as a separate unit. In the case of temporary addition to the cadre of a service the power of the authorities to create such a post will depend on the provisions of the Rules. Isolated posts may be created for the performance of special tasks unconnected with the ordinary work which a service is called upon to perform. Such temporary posts are treated as unclassified and isolated ex-cadre posts. Here again the power to create the post depends on the provisions contained in the Rules. Where however temporary posts are considered as temporary additions to the cadre of a service the incumbents of those posts will draw their time scale pay.28. The Punjab Superior Judicial Service rules 1983 define "cadre post to mean a permanent post in the service and "ex-cadre post means a post of the same rank as a cadre post. The aforesaid Punjab Rules show that cadre mean incumbents of both permanent and temporary posts. Rule 12 of those Punjab rules states that the seniority of the substantive members of the service, whether permanent or temporary, shall be determined with reference to the respective dates of their confirmation. These Punjab Rules are referred to only for the purpose of showing that where confirmation is the decisive factor to determine the seniority the Rule states so.29. The appellant was appointed a temporary Additional District and Sessions Judge on 25 November, 1967 against one of the temporary posts created by the Government of India. The respondents Sidhu, Vohra and Jain had all been appointed temporary Additional Judges on 15 January, 1966; 24 April, 1967; and 11 August, 1967 respectively earlier than the appointment of the appellant.30. It is apparent that the respondents Sidhu, Vohra and Jain were rendering longer service as Additional District and Sessions Judge than the appellant in the cadre of District and Additional District and Sessions Judge to which they belonged.Rule 6 (4) of the Delhi Rules shows that the respondents and the appellant were absorbed in the Delhi Higher Judicial Service from the States of Punjab and Haryana. The length of service rendered by them as Additional District and Sessions Judges is the criterion to fix the seniority. The word "cadre includes both permanent and temporary posts. To confine cadre to permanent posts under the Delhi Rules would be to render the Rules totally unworkable and impracticable because at the time of initial recruitment the persons came on deputation from States mostly in their temporary capacity as Additional District and Sessions Judges.34. For these reasons we are of opinion that the respondents Sidhu, Vohra and Jain had been rightly treated as senior to the appellant on the ground that the length of service rendered by the respondents in the cadre of District and Additional District and Sessions Judges to which they belonged at the time of initial recruitment is longer than that of appellant. The respondents and the appellant were all functioning as Additional District Judges on deputation at Delhi at the time of the initial constitution of the Delhi Higher Judicial Service. The respondents were appointed prior to the appellant as Additional district and Sessions Judge. The respondents rendered longer service as Additional district and Sessions Judge vis-a-vis the appellant. | 0 | 2,432 | 681 | ### Instruction:
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the Delhi Higher Judicial Service it appears that the respondents and the appellant were all rendering service as Additional District and Sessions Judge. The fallacy of the appellant is that the appellant wants to equate cadre with substantive appointment to a permanent post. This construction totally overlooks the fact that the Delhi higher Judicial Service was constituted with persons who rendered service as Additional District and Sessions Judges in temporary posts or in temporary capacity against permanent posts. There were altogether five permanent and six temporary posts of District and Sessions Judges and Additional District and Sessions Judges. The respondents and the appellants were all recruited as temporary Additional District and Sessions Judges. The important yardstick in the determination of seniority is the length of service rendered by them in the cadre. "Cadre post in the Fundamental Rules means a post as specified in the Schedule and includes a temporary post. The Delhi Higher Judicial Service Rules does not define "cadre but defines cadre post to include a temporary post. The words in the cadre to which they belong in Rule 6 (3) cover the cases of permanent as well as temporary Additional District and Sessions Judges at the time of initial recruitment.27. In Fundamental Rule 9 (22) "permanent post means a post carrying a definite rate of pay sanctioned without limit of time. Fundamental Rule 9 (30) defines "temporary post as a post carrying a definite rate of pay sanctioned for a limited time. Temporary posts may be posts created to perform the ordinary work for which permanent posts already exist. Temporary posts may also be temporary addition to the cadre of a service. "Cadre in Fundamental Rule 9 (4) means the strength of a service or part of a service sanctioned as a separate unit. In the case of temporary addition to the cadre of a service the power of the authorities to create such a post will depend on the provisions of the Rules. Isolated posts may be created for the performance of special tasks unconnected with the ordinary work which a service is called upon to perform. Such temporary posts are treated as unclassified and isolated ex-cadre posts. Here again the power to create the post depends on the provisions contained in the Rules. Where however temporary posts are considered as temporary additions to the cadre of a service the incumbents of those posts will draw their time scale pay.28. The Punjab Superior Judicial Service rules 1983 define "cadre post to mean a permanent post in the service and "ex-cadre post means a post of the same rank as a cadre post. The aforesaid Punjab Rules show that cadre mean incumbents of both permanent and temporary posts. Rule 12 of those Punjab rules states that the seniority of the substantive members of the service, whether permanent or temporary, shall be determined with reference to the respective dates of their confirmation. These Punjab Rules are referred to only for the purpose of showing that where confirmation is the decisive factor to determine the seniority the Rule states so.29. The appellant was appointed a temporary Additional District and Sessions Judge on 25 November, 1967 against one of the temporary posts created by the Government of India. The respondents Sidhu, Vohra and Jain had all been appointed temporary Additional Judges on 15 January, 1966; 24 April, 1967; and 11 August, 1967 respectively earlier than the appointment of the appellant.30. It is apparent that the respondents Sidhu, Vohra and Jain were rendering longer service as Additional District and Sessions Judge than the appellant in the cadre of District and Additional District and Sessions Judge to which they belonged.31. The appellant was confirmed on 2 October, 1970 as District Judge in the Haryana Judicial Service and the respondent Sudhu was confirmed as District Judge on 22 February, 1971 in the Punjab Judicial Service. The confirmation of the appellant and the respondent Sidhu was against permanent posts in Haryana and Punjab Judicial Service because of the accident of permanent posts falling vacant at that time in their home States from which they came on deputation. To determine seniority according to confirmation in permanent posts is to wipe out the length of service rendered by the candidates appointed at the initial constitution of the Delhi Higher Judicial Service. The respondents are in fact senior to the appellant in regard to appointment as Additional District and Sessions Judges.32. The criterion for the determination of seniority under the Delhi Rules is the length of service rendered by the candidates during the period when they were rendering service either as District Judge or as Additional District and Sessions Judge in permanent or temporary capacities.33. Rule 6 (4) of the Delhi Rules shows that the respondents and the appellant were absorbed in the Delhi Higher Judicial Service from the States of Punjab and Haryana. The length of service rendered by them as Additional District and Sessions Judges is the criterion to fix the seniority. The word "cadre includes both permanent and temporary posts. To confine cadre to permanent posts under the Delhi Rules would be to render the Rules totally unworkable and impracticable because at the time of initial recruitment the persons came on deputation from States mostly in their temporary capacity as Additional District and Sessions Judges.34. For these reasons we are of opinion that the respondents Sidhu, Vohra and Jain had been rightly treated as senior to the appellant on the ground that the length of service rendered by the respondents in the cadre of District and Additional District and Sessions Judges to which they belonged at the time of initial recruitment is longer than that of appellant. The respondents and the appellant were all functioning as Additional District Judges on deputation at Delhi at the time of the initial constitution of the Delhi Higher Judicial Service. The respondents were appointed prior to the appellant as Additional district and Sessions Judge. The respondents rendered longer service as Additional district and Sessions Judge vis-a-vis the appellant.
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27. In Fundamental Rule 9 (22) "permanent post means a post carrying a definite rate of pay sanctioned without limit of time. Fundamental Rule 9 (30) defines "temporary post as a post carrying a definite rate of pay sanctioned for a limited time. Temporary posts may be posts created to perform the ordinary work for which permanent posts already exist. Temporary posts may also be temporary addition to the cadre of a service. "Cadre in Fundamental Rule 9 (4) means the strength of a service or part of a service sanctioned as a separate unit. In the case of temporary addition to the cadre of a service the power of the authorities to create such a post will depend on the provisions of the Rules. Isolated posts may be created for the performance of special tasks unconnected with the ordinary work which a service is called upon to perform. Such temporary posts are treated as unclassified and isolated ex-cadre posts. Here again the power to create the post depends on the provisions contained in the Rules. Where however temporary posts are considered as temporary additions to the cadre of a service the incumbents of those posts will draw their time scale pay.28. The Punjab Superior Judicial Service rules 1983 define "cadre post to mean a permanent post in the service and "ex-cadre post means a post of the same rank as a cadre post. The aforesaid Punjab Rules show that cadre mean incumbents of both permanent and temporary posts. Rule 12 of those Punjab rules states that the seniority of the substantive members of the service, whether permanent or temporary, shall be determined with reference to the respective dates of their confirmation. These Punjab Rules are referred to only for the purpose of showing that where confirmation is the decisive factor to determine the seniority the Rule states so.29. The appellant was appointed a temporary Additional District and Sessions Judge on 25 November, 1967 against one of the temporary posts created by the Government of India. The respondents Sidhu, Vohra and Jain had all been appointed temporary Additional Judges on 15 January, 1966; 24 April, 1967; and 11 August, 1967 respectively earlier than the appointment of the appellant.30. It is apparent that the respondents Sidhu, Vohra and Jain were rendering longer service as Additional District and Sessions Judge than the appellant in the cadre of District and Additional District and Sessions Judge to which they belonged.Rule 6 (4) of the Delhi Rules shows that the respondents and the appellant were absorbed in the Delhi Higher Judicial Service from the States of Punjab and Haryana. The length of service rendered by them as Additional District and Sessions Judges is the criterion to fix the seniority. The word "cadre includes both permanent and temporary posts. To confine cadre to permanent posts under the Delhi Rules would be to render the Rules totally unworkable and impracticable because at the time of initial recruitment the persons came on deputation from States mostly in their temporary capacity as Additional District and Sessions Judges.34. For these reasons we are of opinion that the respondents Sidhu, Vohra and Jain had been rightly treated as senior to the appellant on the ground that the length of service rendered by the respondents in the cadre of District and Additional District and Sessions Judges to which they belonged at the time of initial recruitment is longer than that of appellant. The respondents and the appellant were all functioning as Additional District Judges on deputation at Delhi at the time of the initial constitution of the Delhi Higher Judicial Service. The respondents were appointed prior to the appellant as Additional district and Sessions Judge. The respondents rendered longer service as Additional district and Sessions Judge vis-a-vis the appellant.
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Pradeep Narayan Madgaonkar and Others Vs. State of Maharashtra | given my fake address to the police at the instance of PW 2". After the raid, he had left Bombay and settled at Raipur. He admitted that neither his mother nor any other relative knew his whereabouts and that except Ramaji PW 2, he had not left his Raipur address with anyone else and that it was Ramaji PW 2 who had given his address to the police, which enabled the police constables to trace him in Raipur and bring him to Bombay after covering a journey of 29 hours by train to give evidence in the case. He admitted that he was a member of a gambling gang and had come into contact with PW 2 during his gambling activities and that his association with PW 2 had started 7/8 years prior to the date of the occurrence and the friendship had developed. Even when he was brought by the police from Raipur to Bombay to give evidence in this case, he had contracted PW 2 Ramaji on 21-6-1991 and had remained with him for about half an hour. His statement was recorded in the court on 22-6-1991. He further admitted that; "I was brought to the court by the police from Raipur, two police constables named Patil and Shaikh, who were the members of the raiding party, had come to Raipur to bring me to Bombay. I am working as a Manager in one Hotel in Raipur. The name of the Hotel is Megha. I left Bombay sometime during the month of April 1991." He admitted that the travel from Raipur to Bombay took about 29 hours and during this period and even after reaching Bombay from Raipur, he throughout remained in the company of the two police constables who had brought him from Raipur to Bombay till he met PW 2 in Bombay10. Of course, the mere fact that PW 5 had been a gambler at some point of time or may have been thrown out by his parents from the parental house, may not cast a doubt about his respectability, if he had later on settled down to work in Raipur but a careful perusal of his statement and particularly the glaring contradictions regarding the purpose of his visit to the place of occurrence on the date of the raid and the manner in which he was associated with the conduct of raid coupled with his conduct of giving false address to the police on occasions more than one and his deep association with PW 2, has created an impression on our minds that not only the evidence of PW 5 bristles with inconsistencies and contradictions but also that he cannot be termed as a trustworthy or a truthful witness. His evidence does not bear judicial scrutiny and he appears to us to be a got-up witness. It would not be safe, therefore to rely upon his testimony11. Learned counsel for the State, however, vehemently argued that there was no reason for the court to disbelieve the official witnesses PW 1, PW 4 and PW 6 who had no reason to falsely implicate any of the appellants. They are independent respectable persons. Indeed, the evidence of the officials (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony. We cannot lose sight of the fact that these police officials did not join any independent witnesses to the locality and made an attempt to create an impression on the courts that both PW 2 and PW 5 were witnesses of locality and were independent, knowing fully well that PW 2 was a witness who was under their influence and available to them, as he has been joining the raids earlier also and PW 5 was a close associate of PW 2, their friendship having developed during the days of gambling when admittedly the police never conducted any raid at their gambling den.12. The very fact that the police officers jointed PW 2 and PW 5 in the raid creates a doubt about the fairness of the investigation. Coupled with this is the manner in which the confessional statement of A-1 and A-2 was recorded by Hemant Karkare PW 3, which has been rightly discarded by the Designated Court itself. Even if we were to ignore the tell-tale discrepancy in the number of the room i.e. 3323 or 3334, from where the appellants were arrested, accepting the explanation of the prosecution that it was as a result of typographical error, it looks to us rather strange that the discrepancy should have come to the notice of the investigating officer any when he filed his affidavit in the Supreme Court in the special leave petition filed by the absconding accused, yet in the totality of the circumstances of the case and after a careful analysis, of the evidence on the record we find it rather unsafe a rely upon PW 1, PW 4 PW 6 only without there being any independent corroboration of their testimony, to uphold the conviction and sentence of the appellants. We cannot lose sight of the fact that since the mere possession of an arm, as specified in the schedule, without a licence, in a notified area, attracts the provisions of Section 5 of TADA with stringent punishment, the quality of evidence on which the conviction can be based has to be of a much higher order than the one we find available in the present case. Our independent appraisal of the evidence on the record has created an impression on our minds that the prosecution has failed to bring home the charge to the appellants beyond a reasonable doubt. | 1[ds]7. Admittedly, both PW 2 and PW 5 are not the witnesses from the locality where the search was being conducted. Explaining the reason for their presence near the place of search, PW 2 stated that he along with his friend Tushar Niar PW 5, had gone to Building No. 92 at Tilak Nagar to meet one of the friends of Tushar Niar around 8.30 p.m. and while they were returning they were requested by some policemen present there to act as panches. PW 2 admitted that this residential area falls within the jurisdiction of Matunga Police Station and that he does not live in the locality or even near about the area where the search was conducted. PW 5, on the other hand, deposedthat day I along with one of my friends, Ramaji, had been to Tilak Nagar for some work. We both had been to Building No. 92 to see whether there was any room vacant. As we found that no room was vacant we both started returning back. On the way twopolicemen met on way nearby (sic) one circle which was about 50 m. away from Building No. 91/92. The policemen asked me to act as a panch witness to which I flatly refused. However, as my friend Ramaji had acceded to the request of the police, I accompanied him to get an experience of the work. The policemen took myself and my friend Ramaji to Building No. 93, where PI Gadre and other police officers and policemen were present."Thus, it is seen that the explanation given by PW 2 and PW 5 for their presence, in front of Building No. 93 at the relevant time, is poles apart. Both PW 2 and PW 5 are at variance about the purpose of their visits and have not been able to satisfactorily justify their presence at the site of search, when admittedly they both belonged to and lived in differentareas. PW 2 admitted that he had been joining police raids earlier also and had acted as a panch witness on various occasions. PW 5 is, on his own admission, a friend and associate of PW 2, for whom he had worked for 7 or 8 years, for payment, after meeting him at a gambling den. It appears to us rather strange that in a busy locality, where the search was to be conducted, the only two independent panches associated by the police party were PW 2 and his friend PW 5, both not belonging to the locality. It appears to be too much of a coincidence that the raiding party, who had left for "combing operations" in the area of Tilak Nagar on receipt of information regarding the two incidents of firing in that area should meet PW 2 and PW 5 as the only respectable of the locality and request them to join as "independent panches". For very cogent reasons, PW 2 has been disbelieved by the Designated Court itself as was found to be a person available and amenable to police. It appears to us that the services of PW 5 were made available to the police by his friend PW 2, who on the finding of the Designated Court was always available to the police and had been joining the police party during various raids. Obviously no serious attempt was made by the raiding party to associate with them two or more independent and respectable inhabitants of the locality in which the room was located, for reasons best known to them before conducting the search. It is not the case of the prosecution that either no independent respectable witness of locality was available or was otherwise willing to join the raid when contacted. The effort of the police party to paint and portray PW 2 and PW 5 as independent witnesses stands exposed by the Designated Court itself which found PW 2 to be not a trustworthy witness and a person who was available at the beck and call of the police. In view of the inconsistent versions given by PW 2 and PW 5 regarding the purpose of their visit to justify their presence in the area at the time of search, we are doubtful whether the witnesses were at all jointed with the raid in the manner alleged by the prosecution. While learned counsel appearing for the State frankly conceded that he could not press into aid the statement of PW 2 to support the prosecution, he submitted that the evidence of PW 5 was worthy of credence. After going through the statement of PW 5, we have not been able to persuade ourselves to agree with the learned State counsel.9. PW 5, whose evidence found favour with the trial court, during hisconceded that he had not revealed his correct address to the police officers and had given them a fake address at the time when panchnama Ex. 7 was prepared during the search and seizure of the weapons from the appellants from the room. He stated the during his stay in Bombay, he used to reside near one bridge on Flank Road, Gandhi Market and that Gandhi Market is near Kings Circle. He conceded that the room where he was putting up had noI had given a false address to the police because I was afraid of my life. I had apprehended danger from the police because they were armed. Hence in order to see that my genuine address is not revealed to the police and that they should not contact me on that address, I gave the fake address. I had given such fake address before the drawal of the panchnama Ex. 7"on his own admission, PW 5 had given a fake address to the police and had concealed his real address when he joined the raid. Thus, from the very start of his association in the raid, PW 5 on his own showing indulged in falsehood and gave false address on the panchnama, Ex. 7 and in his statement recorded by the police. It appears that PW 5 has hardly any respect for truth. Can he be considered trustworthy ? He is a person who admittedly was amenable to the influence of PW 2 and it was PW 2 who appears to have procured his service for joining as a panch witness. Recalling, his association with PW 2 and his influence upon him, Tushar Nair PW 5 statedI started assisting PW 2 in his business, I stopped staying in the house of my parents. As I was indulging in gambling my parents were not on good terms with me. The parents might have considered me as a bad element. My parents wanted me to give up gambling and they had warned me on that score. My gambling activity was behind the back of my parents and I never informed it to them. My gambling activity came to the notice of my parents through some of my friends. During my gambling activity Ramaji PW 2 was my friend. As a gambling den was nearby Gandhi Market I came in contact with PW 2 Ramaji. PW 2 also used to come to the den for gambling. The gambling den belonged to somebody else and was not my own. I do not know the name of the conductor of the gambling den. I was indulging in the gambling for over 2 to 3 years. I became a friend of PW 2 and started assisting him in his business after my parents threw me out from their house. The gambling den where I was gambling falls within the local jurisdiction of Matunga Police Station."further admitted that "onI had given my fake address to the police at the instance of PW 2". After the raid, he had left Bombay and settled at Raipur. He admitted that neither his mother nor any other relative knew his whereabouts and that except Ramaji PW 2, he had not left his Raipur address with anyone else and that it was Ramaji PW 2 who had given his address to the police, which enabled the police constables to trace him in Raipur and bring him to Bombay after covering a journey of 29 hours by train to give evidence in the case. He admitted that he was a member of a gambling gang and had come into contact with PW 2 during his gambling activities and that his association with PW 2 had started 7/8 years prior to the date of the occurrence and the friendship had developed. Even when he was brought by the police from Raipur to Bombay to give evidence in this case, he had contracted PW 2 Ramaji onand had remained with him for about half an hour. His statement was recorded in the court onHe further admittedwas brought to the court by the police from Raipur, two police constables named Patil and Shaikh, who were the members of the raiding party, had come to Raipur to bring me to Bombay. I am working as a Manager in one Hotel in Raipur. The name of the Hotel is Megha. I left Bombay sometime during the month of April 1991."admitted that the travel from Raipur to Bombay took about 29 hours and during this period and even after reaching Bombay from Raipur, he throughout remained in the company of the two police constables who had brought him from Raipur to Bombay till he met PW 2 in Bombay10. Of course, the mere fact that PW 5 had been a gambler at some point of time or may have been thrown out by his parents from the parental house, may not cast a doubt about his respectability, if he had later on settled down to work in Raipur but a careful perusal of his statement and particularly the glaring contradictions regarding the purpose of his visit to the place of occurrence on the date of the raid and the manner in which he was associated with the conduct of raid coupled with his conduct of giving false address to the police on occasions more than one and his deep association with PW 2, has created an impression on our minds that not only the evidence of PW 5 bristles with inconsistencies and contradictions but also that he cannot be termed as a trustworthy or a truthful witness. His evidence does not bear judicial scrutiny and he appears to us to be awitness. It would not be safe, therefore to rely upon hisLearned counsel for the State, however, vehemently argued that there was no reason for the court to disbelieve the official witnesses PW 1, PW 4 and PW 6 who had no reason to falsely implicate any of the appellants.They are independent respectable persons. Indeed, the evidence of the officials (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony. We cannot lose sight of the fact that these police officials did not join any independent witnesses to the locality and made an attempt to create an impression on the courts that both PW 2 and PW 5 were witnesses of locality and were independent, knowing fully well that PW 2 was a witness who was under their influence and available to them, as he has been joining the raids earlier also and PW 5 was a close associate of PW 2, their friendship having developed during the days of gambling when admittedly the police never conducted any raid at their gambling den.12. The very fact that the police officers jointed PW 2 and PW 5 in the raid creates a doubt about the fairness of the investigation. Coupled with this is the manner in which the confessional statement ofwas recorded by Hemant Karkare PW 3, which has been rightly discarded by the Designated Court itself. Even if we were to ignore thediscrepancy in the number of the room i.e. 3323 or 3334, from where the appellants were arrested, accepting the explanation of the prosecution that it was as a result of typographical error, it looks to us rather strange that the discrepancy should have come to the notice of the investigating officer any when he filed his affidavit in the Supreme Court in the special leave petition filed by the absconding accused, yet in the totality of the circumstances of the case and after a careful analysis, of the evidence on the record we find it rather unsafe a rely upon PW 1, PW 4 PW 6 only without there being any independent corroboration of their testimony, to uphold the conviction and sentence of the appellants. We cannot lose sight of the fact that since the mere possession of an arm, as specified in the schedule, without a licence, in a notified area, attracts the provisions of Section 5 of TADA with stringent punishment, the quality of evidence on which the conviction can be based has to be of a much higher order than the one we find available in the present case. Our independent appraisal of the evidence on the record has created an impression on our minds that the prosecution has failed to bring home the charge to the appellants beyond a reasonable doubt. | 1 | 3,585 | 2,434 | ### Instruction:
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given my fake address to the police at the instance of PW 2". After the raid, he had left Bombay and settled at Raipur. He admitted that neither his mother nor any other relative knew his whereabouts and that except Ramaji PW 2, he had not left his Raipur address with anyone else and that it was Ramaji PW 2 who had given his address to the police, which enabled the police constables to trace him in Raipur and bring him to Bombay after covering a journey of 29 hours by train to give evidence in the case. He admitted that he was a member of a gambling gang and had come into contact with PW 2 during his gambling activities and that his association with PW 2 had started 7/8 years prior to the date of the occurrence and the friendship had developed. Even when he was brought by the police from Raipur to Bombay to give evidence in this case, he had contracted PW 2 Ramaji on 21-6-1991 and had remained with him for about half an hour. His statement was recorded in the court on 22-6-1991. He further admitted that; "I was brought to the court by the police from Raipur, two police constables named Patil and Shaikh, who were the members of the raiding party, had come to Raipur to bring me to Bombay. I am working as a Manager in one Hotel in Raipur. The name of the Hotel is Megha. I left Bombay sometime during the month of April 1991." He admitted that the travel from Raipur to Bombay took about 29 hours and during this period and even after reaching Bombay from Raipur, he throughout remained in the company of the two police constables who had brought him from Raipur to Bombay till he met PW 2 in Bombay10. Of course, the mere fact that PW 5 had been a gambler at some point of time or may have been thrown out by his parents from the parental house, may not cast a doubt about his respectability, if he had later on settled down to work in Raipur but a careful perusal of his statement and particularly the glaring contradictions regarding the purpose of his visit to the place of occurrence on the date of the raid and the manner in which he was associated with the conduct of raid coupled with his conduct of giving false address to the police on occasions more than one and his deep association with PW 2, has created an impression on our minds that not only the evidence of PW 5 bristles with inconsistencies and contradictions but also that he cannot be termed as a trustworthy or a truthful witness. His evidence does not bear judicial scrutiny and he appears to us to be a got-up witness. It would not be safe, therefore to rely upon his testimony11. Learned counsel for the State, however, vehemently argued that there was no reason for the court to disbelieve the official witnesses PW 1, PW 4 and PW 6 who had no reason to falsely implicate any of the appellants. They are independent respectable persons. Indeed, the evidence of the officials (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony. We cannot lose sight of the fact that these police officials did not join any independent witnesses to the locality and made an attempt to create an impression on the courts that both PW 2 and PW 5 were witnesses of locality and were independent, knowing fully well that PW 2 was a witness who was under their influence and available to them, as he has been joining the raids earlier also and PW 5 was a close associate of PW 2, their friendship having developed during the days of gambling when admittedly the police never conducted any raid at their gambling den.12. The very fact that the police officers jointed PW 2 and PW 5 in the raid creates a doubt about the fairness of the investigation. Coupled with this is the manner in which the confessional statement of A-1 and A-2 was recorded by Hemant Karkare PW 3, which has been rightly discarded by the Designated Court itself. Even if we were to ignore the tell-tale discrepancy in the number of the room i.e. 3323 or 3334, from where the appellants were arrested, accepting the explanation of the prosecution that it was as a result of typographical error, it looks to us rather strange that the discrepancy should have come to the notice of the investigating officer any when he filed his affidavit in the Supreme Court in the special leave petition filed by the absconding accused, yet in the totality of the circumstances of the case and after a careful analysis, of the evidence on the record we find it rather unsafe a rely upon PW 1, PW 4 PW 6 only without there being any independent corroboration of their testimony, to uphold the conviction and sentence of the appellants. We cannot lose sight of the fact that since the mere possession of an arm, as specified in the schedule, without a licence, in a notified area, attracts the provisions of Section 5 of TADA with stringent punishment, the quality of evidence on which the conviction can be based has to be of a much higher order than the one we find available in the present case. Our independent appraisal of the evidence on the record has created an impression on our minds that the prosecution has failed to bring home the charge to the appellants beyond a reasonable doubt.
### Response:
1
### Explanation:
The gambling den where I was gambling falls within the local jurisdiction of Matunga Police Station."further admitted that "onI had given my fake address to the police at the instance of PW 2". After the raid, he had left Bombay and settled at Raipur. He admitted that neither his mother nor any other relative knew his whereabouts and that except Ramaji PW 2, he had not left his Raipur address with anyone else and that it was Ramaji PW 2 who had given his address to the police, which enabled the police constables to trace him in Raipur and bring him to Bombay after covering a journey of 29 hours by train to give evidence in the case. He admitted that he was a member of a gambling gang and had come into contact with PW 2 during his gambling activities and that his association with PW 2 had started 7/8 years prior to the date of the occurrence and the friendship had developed. Even when he was brought by the police from Raipur to Bombay to give evidence in this case, he had contracted PW 2 Ramaji onand had remained with him for about half an hour. His statement was recorded in the court onHe further admittedwas brought to the court by the police from Raipur, two police constables named Patil and Shaikh, who were the members of the raiding party, had come to Raipur to bring me to Bombay. I am working as a Manager in one Hotel in Raipur. The name of the Hotel is Megha. I left Bombay sometime during the month of April 1991."admitted that the travel from Raipur to Bombay took about 29 hours and during this period and even after reaching Bombay from Raipur, he throughout remained in the company of the two police constables who had brought him from Raipur to Bombay till he met PW 2 in Bombay10. Of course, the mere fact that PW 5 had been a gambler at some point of time or may have been thrown out by his parents from the parental house, may not cast a doubt about his respectability, if he had later on settled down to work in Raipur but a careful perusal of his statement and particularly the glaring contradictions regarding the purpose of his visit to the place of occurrence on the date of the raid and the manner in which he was associated with the conduct of raid coupled with his conduct of giving false address to the police on occasions more than one and his deep association with PW 2, has created an impression on our minds that not only the evidence of PW 5 bristles with inconsistencies and contradictions but also that he cannot be termed as a trustworthy or a truthful witness. His evidence does not bear judicial scrutiny and he appears to us to be awitness. It would not be safe, therefore to rely upon hisLearned counsel for the State, however, vehemently argued that there was no reason for the court to disbelieve the official witnesses PW 1, PW 4 and PW 6 who had no reason to falsely implicate any of the appellants.They are independent respectable persons. Indeed, the evidence of the officials (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are, either interested in the investigating or the prosecuting agency but prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation, requires greater care to appreciate their testimony. We cannot lose sight of the fact that these police officials did not join any independent witnesses to the locality and made an attempt to create an impression on the courts that both PW 2 and PW 5 were witnesses of locality and were independent, knowing fully well that PW 2 was a witness who was under their influence and available to them, as he has been joining the raids earlier also and PW 5 was a close associate of PW 2, their friendship having developed during the days of gambling when admittedly the police never conducted any raid at their gambling den.12. The very fact that the police officers jointed PW 2 and PW 5 in the raid creates a doubt about the fairness of the investigation. Coupled with this is the manner in which the confessional statement ofwas recorded by Hemant Karkare PW 3, which has been rightly discarded by the Designated Court itself. Even if we were to ignore thediscrepancy in the number of the room i.e. 3323 or 3334, from where the appellants were arrested, accepting the explanation of the prosecution that it was as a result of typographical error, it looks to us rather strange that the discrepancy should have come to the notice of the investigating officer any when he filed his affidavit in the Supreme Court in the special leave petition filed by the absconding accused, yet in the totality of the circumstances of the case and after a careful analysis, of the evidence on the record we find it rather unsafe a rely upon PW 1, PW 4 PW 6 only without there being any independent corroboration of their testimony, to uphold the conviction and sentence of the appellants. We cannot lose sight of the fact that since the mere possession of an arm, as specified in the schedule, without a licence, in a notified area, attracts the provisions of Section 5 of TADA with stringent punishment, the quality of evidence on which the conviction can be based has to be of a much higher order than the one we find available in the present case. Our independent appraisal of the evidence on the record has created an impression on our minds that the prosecution has failed to bring home the charge to the appellants beyond a reasonable doubt.
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Hindustan Aeronautics Limited Vs. State Of Karnataka | in supplying these spare parts and material, the contractor would be free to procure or obtain these spares and materials either by manufacturing or by purchase from the market local or foreign, these goods to be identified and would be treated by the operation of the contract to be the goods of the owner of the planes. It is true as was emphasised that in order to be given out on loan by the ‘owner’ to the contractor, the ‘owner’ must have property in the spares an materials in question. But the ‘owner’, i.e. the Government, in our opinion, in the context of 1951 agreement, and it is indisputable that the transactions in this case were done on the basis of the agreement of 1951, became the owner of the property the moment the goods were identified and there was delay or inability on the part of the Government in supplying spares and materials. It was emphasised that not a consolidated price was contemplated but what was contemplated was separate price for the materials. Indeed the invoices relied upon by the parties in the specific works orders indicated those were charged for separately. The basis for this has been explained in the affidavit of Shri Krishna Murthy mentioned hereinbefore, The affidavit was before the authorities below as also before the High Court of Karnataka and there is no dispute as to the correctness of the statements made in the affidavit.24. In the case of Commissioner of Commercial Taxes v. Hindustan Aeronautics Ltd. ((1972) 2 SCR 927 : (1972) 1 SCC 395 : 29 STC 438) , this Court construed the correspondence between Railway Board and the respondent assessee, which correspondence to our opinion has a ring of similarity to the terms and conditions of the present transaction, for the manufacture and supply of railway coaches, and the indemnity bond in respect of the contract. It was held by this Court that the answer to the question whether a contract is a works contract or a contract of sale depends upon the construction of the terms of the contract in the light of surrounding circumstances. It was held that when all the materials used in the construction of a coach belonged to the Railways there could not be any sale of the coach itself. It was a pure works contract, and the difference between the price of a coach and the cost of materials being only the cost of service rendered by the assessee. This Court emphasised that whether the wheelsets and underframes were supplied free of cost or not made no essential difference. The material and wage escalator and adjustments regarding final price mentioned in the contract were neutral factors. The facts which should be emphasised in transaction in question with which we are concerned, are that the transactions related to the entrustment of the maintenance of the airplanes of the I.A.F. These had to be kept ready for all times to meet all situations. All avoidable and conceivable delays were planned to be eliminated and in the background of this second factor, it is further to be emphasised that for the bulk of the materials, the Government undertook to supply the spares and materials and it is only in those cases where these materials could not be supplied or provided for by the Government or there was delay, that it was stipulated that these could be procured or manufactured by the contractor within the prices sanctioned by the Government, and after being procured or manufactured by the contractor, these could not be used for any purpose except in the execution of the jobs entrusted to the contractor. The contractor had no disposing power or property in these spares and materials. The fact that these materials were separately placed (sic priced) at cost plus 10 per cent profit was to ensure quick and proper execution of the works and were like the Railway Coaches’ case ((1972) 2 SCR 927 : (1972) 1 SCC 395 : 29 STC 438) neutral factors. This conclusion is strengthened by the expression we have extracted from the 1951 contract itself.25. It is manifest in the instant case from the terms of the contracts and transactions, as in the Railway Coaches case ((1972) 2 SCR 927 : (1972) 1 SCC 395 : 29 STC 438) and as was emphasised by Sikri, C.J. that the property in the materials which are used in the execution of the jobs entrusted to the contractor in this case became the property of the Government before it was used. It is also manifest that there was no possibility of any other materials to be used for the construction as would be manifest from the affidavit and the correspondence and the invoices, and works orders in these transactions. Emphasis was placed before the Tribunal as well as before the High Court of Karnataka on the case of State of Gujarat V. Variety Body Builders (38 STC 176 : (1976) 3 SCC 500 : 1976 SCC (Tax) 338) where the court was concerned with the ‘bus bodies’. In the ‘bus bodies’ case, the assessee contractor had continued to have the ownership rights and it was held that the ‘bus body’ had to be transferred from the contractor to the other party as a result of contract for sale but in the instant case it is manifest that the specified spares and, materials were not the properties of the Contractor, in the sense that the contractor never had any ownership over these. The conclusion arrived at by us is in consonance with the principles laid down by this Court in the case of Ram Singh & Sons Engineering Works v. V.S.T. (43 STC 195 : (1979) 1 SCC 487 : 1979 SCC (Tax) 71)26. For the reasons aforesaid, we are of the opinion that the High Court of Karnataka was not right in its conclusion on the taxability of the turnover of the spare parts and materials supplied in execution of appellant’s job works. | 1[ds]13. It is well settled that the different between contract of service and contract for sale of goods, is, that in the former, there is in the persons performing work or rendering service no property in the things produced as a whole notwithstanding that a part or even the whole of materials used by him had been his property. In the case of a contract for sale, the thing produced as a whole has individual existence as the sole property of the party who produce it some time before delivery and the property therein passed only under the contract relating thereto to the other party for price. It is necessary, therefore, in every case for the courts to find out whether in essence there was any agreement to work for a stipulated consideration. If that was so, it would not be a sale because even if some sale may be extracted that would not affect the true position. Merely showing in the bills or invoices, it was contended on behalf of the appellant, the value of materials used in the job would not render the contract as one of sale. The nature and type of the transactions are important and determinative factors. What is necessary to find out, in our opinion, is that dominant object.It cannot be said as general proposition that in every case of works contract, there is necessarily implied the sale of the component parts which go to make up the repair. That question would naturally depend upon the facts and circumstances of each case. Mere passing of property in an article or commodity during the course of performance of the transaction in question does not under the transaction to transaction of sale. Even in a contract purely of works or service, it is possible that articles may have to be used by the person executing the work, and property in such articles or materials may pass to the other party. that would not necessarily convert the contract into one of sale of those materials. In every case, the court would have to find out what was the primary object of the transaction and the intention of the parties while entering into it. It may in some cases be that even while entering into the contract of work or even service, parties might enter into separate agreements, one of work and service and the other of sale and purchase of materials to be used in the course of executing the work or performing the service. But, then in such cases the transaction would not be one and indivisible, but would fall into two separate agreements, one of work or service and the other of sale.In the instant case it is indisputable as we have referred to the "1951 contract" and the substance of the invoices and, it is not disputed that the other works orders were on the basis of the principles agreed by the 1951 agreement set out hereinbefore, that the transactions were as a result of composite contracts involving the execution of works viz. overhauling, repairing, servicing and in one year assembling, air force planes, entrusted to the appellant. The question is, whether this composite contract was divisible into one exclusively for work and labour and another for sale of materials. The fact that there is supply of materials for the purpose of execution of the work contracts undertaken by the appellant cannot be disputed. But the question then arises whether that can be taken as pursuant to a distinct contract with a view to execute the workis true, as was emphasised on behalf of the respondent and has been emphasised by the Tribunal as well as the Karnataka High Court, that it cannot be said that parties did not contemplate and apply their minds to the question of spare parts and other materials necessary for the execution of the works. It was emphasised on behalf of the respondent and on this aspect the question of the High Court of Karnataka as well as the decision of the Tribunal were relied upon to stress the point that the price separately provided as (sic was) cost plus 10 per cent. The bills and the invoices were also made separately indicating the prices involved in these transactions. But it is important to emphasised that Clause 1 of the contract was to accomplish for the owner the servicing and maintenance of the Headquarters Training Command, I.A.F. Communication Flight, and works required on visitingaccording to the standard as specified hereunder as thesewere necessary to be kept in readiness and that as there should be no delay in getting the materials, the contract in detail provided that the works would be carried out by the contractor and payment to be made by the owner at cost plus 10 per cent profit or at the contractor’s standard fixed rates. The additional work that would be required as specified in Clause 1 in the differentwas also to be charged as in Clause 2(a). Regarding spares and materials, the idea was that the owner would provide to the contractor all the necessary spares and materials except expandable materials, such as paints, dopes, cleaning rage etc. and it may be mentioned that these were necessary tools in carrying out the works entrusted to theexpressions following thereafter in Clause 3 are, in our opinion, significant and indicative of the real intention of the parties. These expressions are "All items provisioned by the contractor will be the property of the owner, and will be issued on Contract Loan. The expression "Contract Loan" is not an expression of art. It has no generally accepted meaning in dictionary, legal or otherwise, as such. There is no definition or meaning of this expression provided in the contract between the parties or in the correspondence between the parties in connection with the execution of the works. But in our opinion, these expressions indicate that the ‘provisions’ which would be required for carrying out the contracts, which could not be anticipated before the beginning or in execution of the contracts will be the property of the owner i.e. that though gathered and procured or manufactured by the contractor, the contractor will have no property in the said goods or spares or materials and would not be able to either dispose of or deal with those but these will be treated for the purpose of this contract to be the property of the owner and, then the contract stipulates that on fictional basis these will be lend out to the contractor for being used in the execution of the jobs entrusted to theis true as was emphasised that in order to be given out on loan by the ‘owner’ to the contractor, the ‘owner’ must have property in the spares an materials in question. But the ‘owner’, i.e. the Government, in our opinion, in the context of 1951 agreement, and it is indisputable that the transactions in this case were done on the basis of the agreement of 1951, became the owner of the property the moment the goods were identified and there was delay or inability on the part of the Government in supplying spares and materials. It was emphasised that not a consolidated price was contemplated but what was contemplated was separate price for the materials. Indeed the invoices relied upon by the parties in the specific works orders indicated those were charged for separately. The basis for this has been explained in the affidavit of Shri Krishna Murthy mentioned hereinbefore, The affidavit was before the authorities below as also before the High Court of Karnataka and there is no dispute as to the correctness of the statements made in the affidavit.It is manifest in the instant case from the terms of the contracts and transactions, as in the Railway Coaches case ((1972) 2 SCR 927 : (1972) 1 SCC 395 : 29 STC 438) and as was emphasised by Sikri, C.J. that the property in the materials which are used in the execution of the jobs entrusted to the contractor in this case became the property of the Government before it was used. It is also manifest that there was no possibility of any other materials to be used for the construction as would be manifest from the affidavit and the correspondence and the invoices, and works orders in these transactions. Emphasis was placed before the Tribunal as well as before the High Court of Karnataka on the case of State of Gujarat V. Variety Body Builders (38 STC 176 : (1976) 3 SCC 500 : 1976 SCC (Tax) 338) where the court was concerned with the ‘bus bodies’. In the ‘bus bodies’ case, the assessee contractor had continued to have the ownership rights and it was held that the ‘bus body’ had to be transferred from the contractor to the other party as a result of contract for sale but in the instant case it is manifest that the specified spares and, materials were not the properties of the Contractor, in the sense that the contractor never had any ownership over these. The conclusion arrived at by us is in consonance with the principles laid down by this Court in the case of Ram Singh & Sons Engineering Works v. V.S.T. (43 STC 195 : (1979) 1 SCC 487 : 1979 SCC (Tax)For the reasons aforesaid, we are of the opinion that the High Court of Karnataka was not right in its conclusion on the taxability of the turnover of the spare parts and materials supplied in execution of appellant’s job works. | 1 | 7,139 | 1,731 | ### 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:
in supplying these spare parts and material, the contractor would be free to procure or obtain these spares and materials either by manufacturing or by purchase from the market local or foreign, these goods to be identified and would be treated by the operation of the contract to be the goods of the owner of the planes. It is true as was emphasised that in order to be given out on loan by the ‘owner’ to the contractor, the ‘owner’ must have property in the spares an materials in question. But the ‘owner’, i.e. the Government, in our opinion, in the context of 1951 agreement, and it is indisputable that the transactions in this case were done on the basis of the agreement of 1951, became the owner of the property the moment the goods were identified and there was delay or inability on the part of the Government in supplying spares and materials. It was emphasised that not a consolidated price was contemplated but what was contemplated was separate price for the materials. Indeed the invoices relied upon by the parties in the specific works orders indicated those were charged for separately. The basis for this has been explained in the affidavit of Shri Krishna Murthy mentioned hereinbefore, The affidavit was before the authorities below as also before the High Court of Karnataka and there is no dispute as to the correctness of the statements made in the affidavit.24. In the case of Commissioner of Commercial Taxes v. Hindustan Aeronautics Ltd. ((1972) 2 SCR 927 : (1972) 1 SCC 395 : 29 STC 438) , this Court construed the correspondence between Railway Board and the respondent assessee, which correspondence to our opinion has a ring of similarity to the terms and conditions of the present transaction, for the manufacture and supply of railway coaches, and the indemnity bond in respect of the contract. It was held by this Court that the answer to the question whether a contract is a works contract or a contract of sale depends upon the construction of the terms of the contract in the light of surrounding circumstances. It was held that when all the materials used in the construction of a coach belonged to the Railways there could not be any sale of the coach itself. It was a pure works contract, and the difference between the price of a coach and the cost of materials being only the cost of service rendered by the assessee. This Court emphasised that whether the wheelsets and underframes were supplied free of cost or not made no essential difference. The material and wage escalator and adjustments regarding final price mentioned in the contract were neutral factors. The facts which should be emphasised in transaction in question with which we are concerned, are that the transactions related to the entrustment of the maintenance of the airplanes of the I.A.F. These had to be kept ready for all times to meet all situations. All avoidable and conceivable delays were planned to be eliminated and in the background of this second factor, it is further to be emphasised that for the bulk of the materials, the Government undertook to supply the spares and materials and it is only in those cases where these materials could not be supplied or provided for by the Government or there was delay, that it was stipulated that these could be procured or manufactured by the contractor within the prices sanctioned by the Government, and after being procured or manufactured by the contractor, these could not be used for any purpose except in the execution of the jobs entrusted to the contractor. The contractor had no disposing power or property in these spares and materials. The fact that these materials were separately placed (sic priced) at cost plus 10 per cent profit was to ensure quick and proper execution of the works and were like the Railway Coaches’ case ((1972) 2 SCR 927 : (1972) 1 SCC 395 : 29 STC 438) neutral factors. This conclusion is strengthened by the expression we have extracted from the 1951 contract itself.25. It is manifest in the instant case from the terms of the contracts and transactions, as in the Railway Coaches case ((1972) 2 SCR 927 : (1972) 1 SCC 395 : 29 STC 438) and as was emphasised by Sikri, C.J. that the property in the materials which are used in the execution of the jobs entrusted to the contractor in this case became the property of the Government before it was used. It is also manifest that there was no possibility of any other materials to be used for the construction as would be manifest from the affidavit and the correspondence and the invoices, and works orders in these transactions. Emphasis was placed before the Tribunal as well as before the High Court of Karnataka on the case of State of Gujarat V. Variety Body Builders (38 STC 176 : (1976) 3 SCC 500 : 1976 SCC (Tax) 338) where the court was concerned with the ‘bus bodies’. In the ‘bus bodies’ case, the assessee contractor had continued to have the ownership rights and it was held that the ‘bus body’ had to be transferred from the contractor to the other party as a result of contract for sale but in the instant case it is manifest that the specified spares and, materials were not the properties of the Contractor, in the sense that the contractor never had any ownership over these. The conclusion arrived at by us is in consonance with the principles laid down by this Court in the case of Ram Singh & Sons Engineering Works v. V.S.T. (43 STC 195 : (1979) 1 SCC 487 : 1979 SCC (Tax) 71)26. For the reasons aforesaid, we are of the opinion that the High Court of Karnataka was not right in its conclusion on the taxability of the turnover of the spare parts and materials supplied in execution of appellant’s job works.
### Response:
1
### Explanation:
Tribunal as well as the Karnataka High Court, that it cannot be said that parties did not contemplate and apply their minds to the question of spare parts and other materials necessary for the execution of the works. It was emphasised on behalf of the respondent and on this aspect the question of the High Court of Karnataka as well as the decision of the Tribunal were relied upon to stress the point that the price separately provided as (sic was) cost plus 10 per cent. The bills and the invoices were also made separately indicating the prices involved in these transactions. But it is important to emphasised that Clause 1 of the contract was to accomplish for the owner the servicing and maintenance of the Headquarters Training Command, I.A.F. Communication Flight, and works required on visitingaccording to the standard as specified hereunder as thesewere necessary to be kept in readiness and that as there should be no delay in getting the materials, the contract in detail provided that the works would be carried out by the contractor and payment to be made by the owner at cost plus 10 per cent profit or at the contractor’s standard fixed rates. The additional work that would be required as specified in Clause 1 in the differentwas also to be charged as in Clause 2(a). Regarding spares and materials, the idea was that the owner would provide to the contractor all the necessary spares and materials except expandable materials, such as paints, dopes, cleaning rage etc. and it may be mentioned that these were necessary tools in carrying out the works entrusted to theexpressions following thereafter in Clause 3 are, in our opinion, significant and indicative of the real intention of the parties. These expressions are "All items provisioned by the contractor will be the property of the owner, and will be issued on Contract Loan. The expression "Contract Loan" is not an expression of art. It has no generally accepted meaning in dictionary, legal or otherwise, as such. There is no definition or meaning of this expression provided in the contract between the parties or in the correspondence between the parties in connection with the execution of the works. But in our opinion, these expressions indicate that the ‘provisions’ which would be required for carrying out the contracts, which could not be anticipated before the beginning or in execution of the contracts will be the property of the owner i.e. that though gathered and procured or manufactured by the contractor, the contractor will have no property in the said goods or spares or materials and would not be able to either dispose of or deal with those but these will be treated for the purpose of this contract to be the property of the owner and, then the contract stipulates that on fictional basis these will be lend out to the contractor for being used in the execution of the jobs entrusted to theis true as was emphasised that in order to be given out on loan by the ‘owner’ to the contractor, the ‘owner’ must have property in the spares an materials in question. But the ‘owner’, i.e. the Government, in our opinion, in the context of 1951 agreement, and it is indisputable that the transactions in this case were done on the basis of the agreement of 1951, became the owner of the property the moment the goods were identified and there was delay or inability on the part of the Government in supplying spares and materials. It was emphasised that not a consolidated price was contemplated but what was contemplated was separate price for the materials. Indeed the invoices relied upon by the parties in the specific works orders indicated those were charged for separately. The basis for this has been explained in the affidavit of Shri Krishna Murthy mentioned hereinbefore, The affidavit was before the authorities below as also before the High Court of Karnataka and there is no dispute as to the correctness of the statements made in the affidavit.It is manifest in the instant case from the terms of the contracts and transactions, as in the Railway Coaches case ((1972) 2 SCR 927 : (1972) 1 SCC 395 : 29 STC 438) and as was emphasised by Sikri, C.J. that the property in the materials which are used in the execution of the jobs entrusted to the contractor in this case became the property of the Government before it was used. It is also manifest that there was no possibility of any other materials to be used for the construction as would be manifest from the affidavit and the correspondence and the invoices, and works orders in these transactions. Emphasis was placed before the Tribunal as well as before the High Court of Karnataka on the case of State of Gujarat V. Variety Body Builders (38 STC 176 : (1976) 3 SCC 500 : 1976 SCC (Tax) 338) where the court was concerned with the ‘bus bodies’. In the ‘bus bodies’ case, the assessee contractor had continued to have the ownership rights and it was held that the ‘bus body’ had to be transferred from the contractor to the other party as a result of contract for sale but in the instant case it is manifest that the specified spares and, materials were not the properties of the Contractor, in the sense that the contractor never had any ownership over these. The conclusion arrived at by us is in consonance with the principles laid down by this Court in the case of Ram Singh & Sons Engineering Works v. V.S.T. (43 STC 195 : (1979) 1 SCC 487 : 1979 SCC (Tax)For the reasons aforesaid, we are of the opinion that the High Court of Karnataka was not right in its conclusion on the taxability of the turnover of the spare parts and materials supplied in execution of appellant’s job works.
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Jit Ram Shiv Kumar and Others Etc Vs. State of Haryana and Another Etc | acting in discharge of its duty under the law. The Government would not be bound by the act of its officers and agents who act beyond the scope of their authority and a person dealing with the agent of the Government must be held to have notice of the limitations of his authority. The Court can enforce compliance by a public authority of the obligation laid on him if he arbitrarily or on his mere whim ignores the promises made by him on behalf of the Government. It would be open to the authority to plead and prove that there were special considerations which necessitated his not being able to comply with his obligations in public interest. 62. In a fervent plea for the doctrine to speak in all its activist magnitude the learned Judge observes "that is no reason why this new principle, which is a child of equity brought into the world with a view to promoting honesty and good faith and bringing law closer to justice should be held in fetters and not allowed to operate in all the activist magnitude, so that it may fulfill the purpose for which it was conceived and born". It is no doubt desirable that in a civilised society mans word should be as good as his bond and his fellow men should be able to rely on his promise. It may be an improvement if a cause of action would be based on a m ere promise without consideration. The law should as far as possible accord with the moral values of the society, and efforts should be made to bring the law in conformity with the moral values. What are the moral values of the Society ? This is a very complex question because the concept of moral values amongst different persons and classes of persons is not always the same. The concept of moral values is not static one. It differs from time to time and from society to society. It is hazardous for a Court to attempt to-enforce what according to it is the moral value. As pointed out by Roscoe Pound: "It leads to an attempt to enforce overhigh ethical standards and to make legal duties out of moral duties which are not sufficiently, tangible to be made effective by the machinery of the legal order. A more serious difficulty is that the attempt to identify law and morals gives too wide a scope to judicial discretion". The question is how should it be brought about. The learned Judge says that it should be the constant endeavour of the Courts and the legislature to close the gap between the law and morality and bring about as near an approximation between the two as possible. Lord Denning might have exhorted the Judges not to be timorous sours but to be bold spirits, ready to allow a new cause of action if justice so requires. These are lofty ideals which one should steadfastly pursue. But before embarking on this mission, it is necessary for the Court to understand clearly its limitations. The powers of the Court to legislate is strictly limited. "Judges ought to remember that their office is jusdicere and not jus dare to interpret law, and not to make law or give law." Chandrachud, C. J. Speaking for a Constitution Bench in Shri Gurbaksh Singh Sibbia etc. v. State of Punjab, has clearly pointed out the limited powers of the Courts to make laws in construing the provisions of the statutes. The Learned Chief Justice has observed:-"The true question is whether by a process of construction, the amplitude of judicial discretion which is given to the High Court and the Court of Session, to impose such conditions as they may think fit while granting anticipatory bail, should be cut down by reading into the statute conditions which are not to be found therein *** Our answer, clearly and emphatically is in the negative." 63. Again the Learned Chief Justice warned "Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait jacket."-"Therefore, even if we were to frame a code for the grant of anticipatory bail, which really is the business of the legislature, it can at best furnish broad guide-lines and cannot compel blind adherence". 64. The Courts by its very nature are most ill-suited to undertake the task of legislating. There is no machinery for the Court to ascertain the conditions of the people and their requirements and to make laws that would be most appropriate. Further two Judges may think that a particular law would be desirable to meet the requirements whereas another two Judge s may most profoundly differ from the conclusions arrived at by two Judges. Conscious of these handicaps, the law requires that even an amendment of the Supreme Court Rules which govern the procedure to be adopted by it for regulating its work, can only be effected by the whole Court sitting and deciding. 65. The result is that so far as the recommendation of the Municipal Committee to the Government to levy octroi duty, is concerned though it is contrary to the representation it ma de to the buyers of the sites in the Mundi, the Municipality is not estopped as the representation made by it was beyond the scope of its authority. The levy of tax being for a public purpose i.e. for augmenting the revenues of the Municipality as laid down in Ram Kumars case, the plea of estoppel is not available. The order of the Government directing the levy of octroi in pursuance of the resolution of the Municipality cannot also be challenged as it is in the exercise of its statutory duty. 66. | 0[ds]It is admitted that the State Government is empowered under S.62Ato require the Municipal Committee to impose octroi Duty and under. (3) if the Committee fails to carry out the order of the Government, the State Government may impose octroi Duty. Under S. 70(2) (c), a Municipal Committee by a resolution passed at a special meeting and confirmed by the State Government may exempt in whole or in part from the payment of any such tax any person or class of persons or any property or description of property. In exercise of these powers, the State Government had by its order dated4 confirmed resolution No. 1 passed by the Municipal Committee i n its special meeting held on231954 regarding the exemption of goods imported into Fateh Mandi from levy of Octroi Duty. Subsequently, in reply to the objection raised by the Examiner of Local Funds, the Government pointed out by its letter d ated6 (Ann. F) that the Governments action confirming the resolution No. 1 dated4 of the Municipal Committee exempting Goods imported into Fateh Mandi, under S. 70(2) (c) of the Punjab Municipal Act, 1911, is quite in order. By the impugned order dated7 the Government approved the resolution No. 6 of the Municipal Committee dated5 and permitted the Municipality to levy the Octroi Duty. The action taken by the State Government is strictly in conformity with the powers conferred on it under S. 70(2) (c) of the Act. It exempted the petitioners from payment of Octroi Duty for a particular period and ultimately withdrew the exemption. The action of the Government cannot be questioned as it is in exercise of its statutory functions. The plea of estoppel is not available against the State in the exercise of its legislative or statutory functions. The Government have powers to direct the Municipality to collect the Octroi Tax if the Municipality fails to take action by itself under S. 60(A) (3). Further, even on facts, this plea is not available as against the Government as it is not the case of the petitioners that they acted on the representation of the Government. We, there fore, agree with the view of the Full Bench that the plea of estoppel is not available against the Government for questioning the validity of the impugned Government orderWe feel this plea should also fail, because the Municipal Committee had no authority to exempt the Fateh Market from the levy of Octroi Duty. If the Municipal Committee had passed a resolution or issued a notification that no Octroi Duty will b e levied, it will be ultra vires of the powers of the Municipal Committee. When a public authority acts beyond the scope of its authority the plea of estoppel is not available to prevent the authority from acting according to law. It is in public interest that no such plea should be allowedThe High Court rejected the plea on the following grounds:1. The Petitioners are not the original purchasers of the plots in Fateh Mandi. They are either descendants of or transferees from the original purchasers of the plots2. Nod was executed by the Municipal Committee in favour of the original purchasers undertaking that no octroi duty will be levied3. No allegation has been made that the original purchasers would not have purchased the plots, if condition no. 14 about immunity from payment of Octroi had not been thereThe learned counsel is, therefore, ri ght in his submission that the third objection raised before the High Court is without substance. But the High Court was right in pointing out that none of the sale deeds executed by the Municipal Committee in favour of the purchasers was produced before the Court. These circumstances would show that the contract between the parties have not been proved to have been reduced in writing and executed in the manner prescribed under S. 47 of the Act. Strictly, therefore, under the terms of the Municipal Act, the appellants are not entitled to any enforceable legal right. But it was submitted that even though the contract had not been executed in due form, the appellants would be entitled to relief under, the doctrine of promissory estoppelIt is only in public interest that it is recognised that an authority acting on behalf of the Government or by virtue of statutory powers cannot exceed his authority. Rule of ultra vires will become applicable when he exceeds his authority and the Government would not be bound by such action. Any person who enters into an arrangement with the Government has to ascertain and satisfy himself that the authority who purports to act for the Government, acts within the scope of his authority and cannot urge that the Government is in the position of any other litigant liable to be charged with liabilityThis subject though interesting may not be relevant in administering Indian Law. S. 63 of the Contract Act provides that when a creditor accepts a lesser sum in satisfaction of the whole debt, the whole debt become discharged. This provision is a wide departure from the English Law and the discussion about Jordan v. Money wherein it was held that a promise to accept a smaller sum is devoid of consideration, becomes pointless. So also the doctrine of estoppel referred to in the High Trees case is, to some extent taken care of by Ss. 65 and 70 of the Indian contract Act. S.65 provides that when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it or to make compensation for it, to the person from whom he received it. Under S. 70 of the Contract Act, an obligation is cast on the person enjoying benefit of a non gratuitous act to compensate the person who lawfully performed the act. As to whether the provisions of S. 65 and 70 of the Indian Contract Act, are applicable to contract which is not according to S. 175 of the Government of India Act and Art. 299 of the Constitution of India, there is a difference of opinion. Sir Maurice Gwyer expressed his view that when a contract is void, recourse to S.70 cannot be had. Later, the Supreme Court held in State of West Bengal v. B. K. Mondal &Sons, that S.70 was applicable to such a case. This decision was followed in New Marine Coal Co. Ltd. v. Union, and in later cases by the Supreme CourtIt was submitted that the cases cited above cannot be relied on as an authority for the proposition that the doctrine of promissory estoppel is not applicable against the Government in the exercise of its legislative and statutory functions as they were in the nature of obiter dicta and that on the facts the present case could be distinguished. Then Agencies, Century Spinning and Manufacturing Co. and Turner Morisson Co. Ltd. v. Hungerford Investment Trust Ltd., were strongly relied on. We have point ed out that all that then Agencies case laid down was, that a public authority acting on behalf of the Government cannot on its own whim and in an arbitrary manner seek to alter the conditions accepted by him to the prejudice of the other side. The decision in terms accepts the view expressed in earlier cases that after taking into consideration the exigencies and change of circumstances, the authority can modify the conditions in exercise of his powers as a public authorityIn dealing with the question as to how far the public bodies are bound by representation made by them on which other persons have altered their position to their prejudice, the Court held that the obligation arising against an individual out of his representation amounting to a promise may be enforced ex contractu by a person who acts upon the promise; when the law requires that a contract enforceable at law against a public body shall be in certain form or be executed in the manner prescribed by statute, the obligation may be if the contract be not in that form be enforced against it in appropriate case in equity. The Court read the decision in Union of India and Ors. v.n Agencies (supra) as holding that the Government is not exempt from the equity arising out of the acts done by citizens to their prejudices, relying upon the representations as to its future conduct made by the Government. This observation will have to be read alongwith the conditions that were laid down in then case and cannot be read as holding that the rule of estoppel will be applicable against the Government in the exercise of its legislative and statutory powersThe third decision on which reliance was placed, for the proposition that doctrine of promissory estoppel is applicable against the State acting in exercise of its legislative or executive function is Turner Morrison and Co. Ltd. v. Hungerford Investment Trust Ltd. (supra). The case related to the payment of tax due from Hungerford by Turner Morrison. The Court observed that if for any reason Turner Morrison had not undertaken any responsibility to discharge the liability of Hungerford, the latter could have taken recourse to voluntary liquidation. Hence there could be no doubt that acting on the basis of the representation made by Turner Morrison, Hungerford placed itself in a disadvantageous position. Hungerford raised the plea that the resolution was of the company, afforded a good basis for raising a plea of promissory estoppel. This plea was accepted by the Court relying on the observations of Denning J. in High Trees case (supra). The later decision of the House of Lords in Howells case which disapproved Lord Dennings judgment was not brought to its notice.The scope of the plea of doctrine of promissory estoppel against the Government may be summed up as follows:(1) The plea of promissory estoppel is not available against the exercise of the legislative functions of the State(2) The doctrine cannot be invoked for preventing the Government from discharging its functions under the law(3) When the officer of the Government acts outside the scope of his authority, the plea of promissory estoppel is not available. The doctrine of ultra vires will come into operation and the Government cannot be held bound by the unauthorised acts of its officers(4) When the officer acts within the scope of his authority under a scheme and enters into an agreement and makes a representation and a person acting on that representation puts himself in a disadvantageous position, the Court is entitled to require the officer to act according to the scheme and the agreement or representation. The Officer cannot arbitrarily act on his mere whim and ignore his promise on some undefined and undisclosed grounds of necessity or change the conditions to the prejudice of the person who had acted upon such representation and put himself in a disadvantageous position(5) The officer would be justified in changing the terms of the agreement to the prejudice of the other party on special considerations such as difficult foreign exchange position or other matters which have a bearing on general interest of the StateBefore we conclude, we would reBefore we conclude, we wouldrefer toa recent decision of this Court in M/s. Moti Lal Padampat Sugar Mills Co. (P.) Ltd. v . State of Uttar Pradesh and Ors. It has been held that there can be no promissory estoppel against the exercise of legislative power and the legislature cannot be precluded from exercising its legislative functions by resort to the doc trine of promissory estoppel. It has also held that when the Government owes a duty to the public to act differently, promissory estoppel could not be invoked to prevent the Government from doing so. The doctrine cannot be invoked for preventing the Government from acting in discharge of its duty under the law. The Government would not be bound by the acts of its officers and agents, who act beyond the scope of their authority. A person dealing with an agent of the Government must be held to have noticed all the limitations of his authorityWith respect, we are in complete agreement with the law as stated above but we find the judgment is not in accordance with the view consistently taken by this Court in some respects. We have read the Judgment of Bhagwati, J. with considerable care and attention which it deserves. Firstly, with great respect we are unable to construe the decision in Union of India &Ors. v. M/s.n Agencies Ltd. case in the manner in which it has been done. As pointed out by us, all that the case purports to lay down is that the court can enforce an obligation incurred by an authority on which another has acted upon and put himself in a disadvantageous position, when the authority resiles arbitrarily or on mere whim or on some undefined and undisclosed grounds of necessityWe find ourselves unable to ignore the three decisions of this Court, two by Constitution Benches M. Ramanatha Pillai v. The State of Kerala and Anr. (supra) and State of Kerala and Anr. v. The Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. etc. (supra) and the third by a Bench of four Judges of this Court in Excise Commissioner, U. P. Allahabad v. Ram Kumar (Supra) on the ground that the observations are in the nature of obiter dicta and that it cannot be insisted as intendng to have laid down any proposition of law different from that enunciated in the Indo Afghan Agencies case. It was not necessary for this Court in the cases referred to above torefer toUnion of India and Ors. v. M/s. Indo Afghan Agencies Lt d., or if properly understood it only held that the authority cannot go back on the agreement arbitrarily or on its mere whim. We feel we are bound to follow the decisions of the three Benches of this Court which in our respectful opinion have correctly stated the law. We are also unable to read the case of the House of Lords in Howell v. Falmouth Boat Construction Co. Ltd. (supra) as not having overruled the view of Denning, J and as not having expressed its disapproval of the doctrine of promissory estoppel against the Crown nor overruled the view taken by Denning, J in Robertson v. Minister of Pensions that "the Crown cannot escape the obligation under the doctrine of promissory estoppel."We find ourselves unable to s hare the view of the learned Judge that the Constitution Bench of this Court in Ramanathan Pillais case (supra) heavily relied upon the quotation from the American jurisprudence parap. 873 Vol. 28. Again we feel to remark that "unfortunately this quotation was incomplete and had overlooked perhaps inadvertently" is unjustified (emphasis supplied)We feel we are in duty bound to express our reservations regarding the "activist" jurisprudence and the wide implications thereof which the learned Judge has propounded in his judgment. The first part of the judgment relates to the development of law relating to promissory estoppel in England following the High Trees case. As pointed out by us earlier the doctrine of promissory estoppel is not very helpful as we are governed by the various provisions of the Indian Contract Act Sections 65 and 70 provide for certain reliefs in void contracts and in unenforceable contracts where a person relying on a representation has acted upon it and put himself in a disadvantageous position. Apart from the case in Robertson v. Minister of Pensions, the House of Lords in Howells case and the Privy Council in Antonio Buttigieg s case and the other English Authorities do not agree with the view that the plea of promissory estoppel is available against the Government. Further we have to bear in mind that the Indian Constitution as a matter of high policy in public interest, has enacted Article 299 so as to save the Government liability arising out of unathorised acts of its officers and contracts not duly executedOn a consideration of the decisions of this Court it is clear that there can b e no promissory estoppel against the exercise of legislative power of the State. So also the doctrine cannot be invoked for preventing the Government from acting in discharge of its duty under the law. The Government would not be bound by the act of its officers and agents who act beyond the scope of their authority and a person dealing with the agent of the Government must be held to have notice of the limitations of his authority. The Court can enforce compliance by a public authority of the obligation laid on him if he arbitrarily or on his mere whim ignores the promises made by him on behalf of the Government. It would be open to the authority to plead and prove that there were special considerations which necessitated his not being able to comply with his obligations in public interestIn a fervent plea for the doctrine to speak in all its activist magnitude the learned Judge observes "that is no reason why this new principle, which is a child of equity brought into the world with a view to promoting honesty and good faith and bringing law closer to justice should be held in fetters and not allowed to operate in all the activist magnitude, so that it may fulfill the purpose for which it was conceived and born". It is no doubt desirable that in a civilised society mans word should be as good as his bond and his fellow men should be able to rely on his promise. It may be an improvement if a cause of action would be based on a m ere promise without consideration. The law should as far as possible accord with the moral values of the society, and efforts should be made to bring the law in conformity with the moral values. What are the moral values of the Society ? This is a very complex question because the concept of moral values amongst different persons and classes of persons is not always the same. The concept of moral values is not static one. It differs from time to time and from society to society. It is hazardous for a Court to attempte what according to it is the moral value. As pointed out by Roscoe Pound: "It leads to an attempt to enforce overhigh ethical standards and to make legal duties out of moral duties which are not sufficiently, tangible to be made effective by the machinery of the legal order. A more serious difficulty is that the attempt to identify law and morals gives too wide a scope to judicial discretion". The question is how should it be brought about. The learned Judge says that it should be the constant endeavour of the Courts and the legislature to close the gap between the law and morality and bring about as near an approximation between the two as possible. Lord Denning might have exhorted the Judges not to be timorous sours but to be bold spirits, ready to allow a new cause of action if justice so requires. These are lofty ideals which one should steadfastly pursue. But before embarking on this mission, it is necessary for the Court to understand clearly its limitations. The powers of the Court to legislate is strictly limited. "Judges ought to remember that their office is jusdicere and not jus dare to interpret law, and not to make law or give law." Chandrachud, C. J. Speaking for a Constitution Bench in Shri Gurbaksh Singh Sibbia etc. v. State of Punjab, has clearly pointed out the limited powers of the Courts to make laws in construing the provisions of the statutesThe result is that so far as the recommendation of the Municipal Committee to the Government to levy octroi duty, is concerned though it is contrary to the representation it ma de to the buyers of the sites in the Mundi, the Municipality is not estopped as the representation made by it was beyond the scope of its authority. The levy of tax being for a public purpose i.e. for augmenting the revenues of the Municipality as laid down in Ram Kumars case, the plea of estoppel is not available. The order of the Government directing the levy of octroi in pursuance of the resolution of the Municipality cannot also be challenged as it is in the exercise of its statutory duty. | 0 | 16,587 | 3,687 | ### Instruction:
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acting in discharge of its duty under the law. The Government would not be bound by the act of its officers and agents who act beyond the scope of their authority and a person dealing with the agent of the Government must be held to have notice of the limitations of his authority. The Court can enforce compliance by a public authority of the obligation laid on him if he arbitrarily or on his mere whim ignores the promises made by him on behalf of the Government. It would be open to the authority to plead and prove that there were special considerations which necessitated his not being able to comply with his obligations in public interest. 62. In a fervent plea for the doctrine to speak in all its activist magnitude the learned Judge observes "that is no reason why this new principle, which is a child of equity brought into the world with a view to promoting honesty and good faith and bringing law closer to justice should be held in fetters and not allowed to operate in all the activist magnitude, so that it may fulfill the purpose for which it was conceived and born". It is no doubt desirable that in a civilised society mans word should be as good as his bond and his fellow men should be able to rely on his promise. It may be an improvement if a cause of action would be based on a m ere promise without consideration. The law should as far as possible accord with the moral values of the society, and efforts should be made to bring the law in conformity with the moral values. What are the moral values of the Society ? This is a very complex question because the concept of moral values amongst different persons and classes of persons is not always the same. The concept of moral values is not static one. It differs from time to time and from society to society. It is hazardous for a Court to attempt to-enforce what according to it is the moral value. As pointed out by Roscoe Pound: "It leads to an attempt to enforce overhigh ethical standards and to make legal duties out of moral duties which are not sufficiently, tangible to be made effective by the machinery of the legal order. A more serious difficulty is that the attempt to identify law and morals gives too wide a scope to judicial discretion". The question is how should it be brought about. The learned Judge says that it should be the constant endeavour of the Courts and the legislature to close the gap between the law and morality and bring about as near an approximation between the two as possible. Lord Denning might have exhorted the Judges not to be timorous sours but to be bold spirits, ready to allow a new cause of action if justice so requires. These are lofty ideals which one should steadfastly pursue. But before embarking on this mission, it is necessary for the Court to understand clearly its limitations. The powers of the Court to legislate is strictly limited. "Judges ought to remember that their office is jusdicere and not jus dare to interpret law, and not to make law or give law." Chandrachud, C. J. Speaking for a Constitution Bench in Shri Gurbaksh Singh Sibbia etc. v. State of Punjab, has clearly pointed out the limited powers of the Courts to make laws in construing the provisions of the statutes. The Learned Chief Justice has observed:-"The true question is whether by a process of construction, the amplitude of judicial discretion which is given to the High Court and the Court of Session, to impose such conditions as they may think fit while granting anticipatory bail, should be cut down by reading into the statute conditions which are not to be found therein *** Our answer, clearly and emphatically is in the negative." 63. Again the Learned Chief Justice warned "Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait jacket."-"Therefore, even if we were to frame a code for the grant of anticipatory bail, which really is the business of the legislature, it can at best furnish broad guide-lines and cannot compel blind adherence". 64. The Courts by its very nature are most ill-suited to undertake the task of legislating. There is no machinery for the Court to ascertain the conditions of the people and their requirements and to make laws that would be most appropriate. Further two Judges may think that a particular law would be desirable to meet the requirements whereas another two Judge s may most profoundly differ from the conclusions arrived at by two Judges. Conscious of these handicaps, the law requires that even an amendment of the Supreme Court Rules which govern the procedure to be adopted by it for regulating its work, can only be effected by the whole Court sitting and deciding. 65. The result is that so far as the recommendation of the Municipal Committee to the Government to levy octroi duty, is concerned though it is contrary to the representation it ma de to the buyers of the sites in the Mundi, the Municipality is not estopped as the representation made by it was beyond the scope of its authority. The levy of tax being for a public purpose i.e. for augmenting the revenues of the Municipality as laid down in Ram Kumars case, the plea of estoppel is not available. The order of the Government directing the levy of octroi in pursuance of the resolution of the Municipality cannot also be challenged as it is in the exercise of its statutory duty. 66.
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s hare the view of the learned Judge that the Constitution Bench of this Court in Ramanathan Pillais case (supra) heavily relied upon the quotation from the American jurisprudence parap. 873 Vol. 28. Again we feel to remark that "unfortunately this quotation was incomplete and had overlooked perhaps inadvertently" is unjustified (emphasis supplied)We feel we are in duty bound to express our reservations regarding the "activist" jurisprudence and the wide implications thereof which the learned Judge has propounded in his judgment. The first part of the judgment relates to the development of law relating to promissory estoppel in England following the High Trees case. As pointed out by us earlier the doctrine of promissory estoppel is not very helpful as we are governed by the various provisions of the Indian Contract Act Sections 65 and 70 provide for certain reliefs in void contracts and in unenforceable contracts where a person relying on a representation has acted upon it and put himself in a disadvantageous position. Apart from the case in Robertson v. Minister of Pensions, the House of Lords in Howells case and the Privy Council in Antonio Buttigieg s case and the other English Authorities do not agree with the view that the plea of promissory estoppel is available against the Government. Further we have to bear in mind that the Indian Constitution as a matter of high policy in public interest, has enacted Article 299 so as to save the Government liability arising out of unathorised acts of its officers and contracts not duly executedOn a consideration of the decisions of this Court it is clear that there can b e no promissory estoppel against the exercise of legislative power of the State. So also the doctrine cannot be invoked for preventing the Government from acting in discharge of its duty under the law. The Government would not be bound by the act of its officers and agents who act beyond the scope of their authority and a person dealing with the agent of the Government must be held to have notice of the limitations of his authority. The Court can enforce compliance by a public authority of the obligation laid on him if he arbitrarily or on his mere whim ignores the promises made by him on behalf of the Government. It would be open to the authority to plead and prove that there were special considerations which necessitated his not being able to comply with his obligations in public interestIn a fervent plea for the doctrine to speak in all its activist magnitude the learned Judge observes "that is no reason why this new principle, which is a child of equity brought into the world with a view to promoting honesty and good faith and bringing law closer to justice should be held in fetters and not allowed to operate in all the activist magnitude, so that it may fulfill the purpose for which it was conceived and born". It is no doubt desirable that in a civilised society mans word should be as good as his bond and his fellow men should be able to rely on his promise. It may be an improvement if a cause of action would be based on a m ere promise without consideration. The law should as far as possible accord with the moral values of the society, and efforts should be made to bring the law in conformity with the moral values. What are the moral values of the Society ? This is a very complex question because the concept of moral values amongst different persons and classes of persons is not always the same. The concept of moral values is not static one. It differs from time to time and from society to society. It is hazardous for a Court to attempte what according to it is the moral value. As pointed out by Roscoe Pound: "It leads to an attempt to enforce overhigh ethical standards and to make legal duties out of moral duties which are not sufficiently, tangible to be made effective by the machinery of the legal order. A more serious difficulty is that the attempt to identify law and morals gives too wide a scope to judicial discretion". The question is how should it be brought about. The learned Judge says that it should be the constant endeavour of the Courts and the legislature to close the gap between the law and morality and bring about as near an approximation between the two as possible. Lord Denning might have exhorted the Judges not to be timorous sours but to be bold spirits, ready to allow a new cause of action if justice so requires. These are lofty ideals which one should steadfastly pursue. But before embarking on this mission, it is necessary for the Court to understand clearly its limitations. The powers of the Court to legislate is strictly limited. "Judges ought to remember that their office is jusdicere and not jus dare to interpret law, and not to make law or give law." Chandrachud, C. J. Speaking for a Constitution Bench in Shri Gurbaksh Singh Sibbia etc. v. State of Punjab, has clearly pointed out the limited powers of the Courts to make laws in construing the provisions of the statutesThe result is that so far as the recommendation of the Municipal Committee to the Government to levy octroi duty, is concerned though it is contrary to the representation it ma de to the buyers of the sites in the Mundi, the Municipality is not estopped as the representation made by it was beyond the scope of its authority. The levy of tax being for a public purpose i.e. for augmenting the revenues of the Municipality as laid down in Ram Kumars case, the plea of estoppel is not available. The order of the Government directing the levy of octroi in pursuance of the resolution of the Municipality cannot also be challenged as it is in the exercise of its statutory duty.
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SUZUKI PARASRAMPURIA SUITINGS PVT. LTD Vs. THE OFFICIAL LIQUIDATOR OF MAHENDRA PETROCHEMICALS LTD (IN LIQUIDATION) AND ORS | from the provisions of Section 130 of the Transfer of Property Act. Therefore, the Company Judge opined that Section 130 of the Transfer of the Property Act was not applicable in the facts of the case leaving it open for the parties to take all available contentions before the appropriate court/forum in appropriate proceedings. In the nature of the controversy sought to be raised by the appellant in the present appeal we consider it proper to set out the following extracts from the order of the Company Judge:?23. The only question which is required to be considered in this application is as to whether the applicant can be permitted to be substituted for and in place of IFCI Limited as the secured creditor of the company in liquidation? For deciding this question, certain provisions of the SARFAESI Act are required to be considered.25. Thus, in view of the aforesaid provisions contained in the SARFAESI Act, I am of the view that when the applicant company is not a bank or banking or financial institution or securitization company or reconstruction company, the applicant cannot be permitted to be substituted in place of IFCI as secured creditor for the purpose of SARFAESI Act.27. The aforesaid provisions of Section 130 of the Transfer of Property Act are not applicable to the facts of the present case as the IFCI has transferred the debts of the company in liquidation in favour of the applicant by deed of assignment and therefore the case of the applicant is that it may be permitted to proceed against the company in liquidation under the SARFAESI Act as secured creditor. The applicant is not entitled to get any benefit under the SARFAESI Act and cannot be termed as secured creditor. Hence the reliance placed by the learned advocate for the applicant on the provisions of Section 130 of the Transfer of Property Act, is misconceived.?9. The relevant extract of the pleadings by the appellant in Company Application No.248 of 2014 noticed by the Company Judge in his order dated 07.09.2015 are also noticeable:?8. I say and submit that earlier, IFCI also filed a purshis dated 21.11.2011 before the Debts Recovery Tribunal, Ahmedabad in Original Application No.452 of 2000 reaffirming that the IFCI Ltd. Has assigned its dues in favour of the applicant. I beg to annex a copy of purshis dated 21.11.2011 filed before the Debts Recovery Tribunal, Ahmedabad in Original Application No.452 of 2000 at Annexure-III.10. I say and submit that apropos to the Deed of Assignment, the Applicant has become the secured creditor of the Company in Liquidation and all the rights of IFCI Ltd. in relation to the financial facilities extended to the Company in Liquidation and the underlying security interests therein vests in the Applicant vis-à-vis the Company in liquidation.?10. The appellant initially took a conscious and considered stand before the Company Judge, staking a claim for being substituted as a secured creditor under the SARFAESI Act consequent to the assignment of debt to it by the IFCI.That the claim was not simply with regard to assignment of an actionable claim under Section 130 of the T.P. Act is evident from its own pleadings and the pursis filed by the IFCI before the Debt Recovery Tribunal.No material has been placed before us with regard to the orders that may have been passed by the Tribunal on such application. After the claim of the appellant of being a secured creditor was rejected by the Company Judge, and the appellant realised the unsustainability of its claim in the law, it made a complete volte face from its earlier stand and surprisingly, contrary to its own pleadings, now contended that it had never sought the status of a secured creditor under the SARFAESI Act.11. The contention of the appellant that it had never sought substitution as a secured creditor under the SARFAESI Act is additionally belied from the recitals contained in the order dated 07.09.2015. Time and again this court has held that the recitals in the order sheet with regard to what transpired before the High Court are sacrosanct. The learned Single Judge, in the review jurisdiction, has reiterated that the arguments addressed before him in Company Application No. 248 of 2014 were made specifically under the SARFAESI Act observing as follows:?It is also required to be noted that learned advocate for the applicant in the said application, at the time of arguments, submitted that the applicant be substituted as secured creditor and given the benefit under the SARFAESI Act and therefore, learned advocate Mr. Rao appearing for the Bank of Baroda submitted in detail, after relying upon the provisions contained in SARFAESI Act, that the applicant cannot be substituted as secured creditor and permitted to proceed under the provisions of SARFAESI Act.?12. A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands The untenability of an inconsistent stand in the same case was considered in Amar Singh vs. Union of India, (2011) 7 SCC 69 , observing as follows:?50. This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to Court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions.?13. A similar view was taken in Joint Action Committee of Air Line Pilots? Assnof India vs. DG of Civil Aviation, (2011) 5 SCC 435 , observing:?12. The doctrine of election is based on the rule of estoppel—the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity….. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily.? | 0[ds]8. We have considered the submissions on behalf of the parties.That the unregistered MOU was without permission of the BIFR, it was not disclosed to the Company Court till the winding-up order was passed on 19.04.2010, the assignment of debt of Rs.160 crores by IFCI for Rs.85 lacs are admitted facts.The order dated 31.07.2015 passed by the Company Judge makes it very explicit that the appellant in Company Application No.248 of 2014 had specifically sought substitution in place of IFCI as a secured creditor holding first charge consequent to the deed of assignment in its favour dated 28.07.2010 from IFCI.In support of the relief sought, reliance was also placed on the pursis dated 21.11.2011 filed by IFCI in OA No.452 of 2000 before the Debt Recovery Tribunal, Ahmedabad reaffirming the assignment in favour of the appellant. The submissions made before the Company Judge leaves no doubtsthat as an assignee of debts from the IFCI, the appellant essentially sought substitution as a secured creditor under the SARFAESI Act and for that purpose sought to draw sustenance from the provisions of Section 130 of the Transfer of Property Act. Therefore, the Company Judge opined that Section 130 of the Transfer of the Property Act was not applicable in the facts of the case leaving it open for the partiesto take all available contentions before the appropriate court/forum in appropriate proceedings.lly took a conscious and considered stand before the Company Judge, staking a claim for being substituted as a secured creditor under the SARFAESI Act consequent to the assignment of debt to it by the IFCI.That the claim was not simply with regard to assignment of an actionable claim under Section 130 of the T.P. Act is evident from its own pleadings and the pursis filed by the IFCI before the Debt Recovery Tribunal.No material has been placed before us with regard to the orders that may have been passed by the Tribunal on such application. After the claim of the appellant of being a secured creditor was rejected by the Company Judge, and the appellant realised the unsustainability of its claim in the law, it made a complete volte face from its earlier stand and surprisingly, contrary to its own pleadings, now contended that it had never sought the status of a secured creditor under the SARFAESI Act.The contention of the appellant that it had never sought substitution as a secured creditor under the SARFAESI Act is additionally beliedfrom the recitals contained in the order dated 07.09.2015. Time and again this court has held that the recitals in the order sheet with regard to what transpired before the High Court are sacrosanct.A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting | 0 | 2,170 | 498 | ### Instruction:
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from the provisions of Section 130 of the Transfer of Property Act. Therefore, the Company Judge opined that Section 130 of the Transfer of the Property Act was not applicable in the facts of the case leaving it open for the parties to take all available contentions before the appropriate court/forum in appropriate proceedings. In the nature of the controversy sought to be raised by the appellant in the present appeal we consider it proper to set out the following extracts from the order of the Company Judge:?23. The only question which is required to be considered in this application is as to whether the applicant can be permitted to be substituted for and in place of IFCI Limited as the secured creditor of the company in liquidation? For deciding this question, certain provisions of the SARFAESI Act are required to be considered.25. Thus, in view of the aforesaid provisions contained in the SARFAESI Act, I am of the view that when the applicant company is not a bank or banking or financial institution or securitization company or reconstruction company, the applicant cannot be permitted to be substituted in place of IFCI as secured creditor for the purpose of SARFAESI Act.27. The aforesaid provisions of Section 130 of the Transfer of Property Act are not applicable to the facts of the present case as the IFCI has transferred the debts of the company in liquidation in favour of the applicant by deed of assignment and therefore the case of the applicant is that it may be permitted to proceed against the company in liquidation under the SARFAESI Act as secured creditor. The applicant is not entitled to get any benefit under the SARFAESI Act and cannot be termed as secured creditor. Hence the reliance placed by the learned advocate for the applicant on the provisions of Section 130 of the Transfer of Property Act, is misconceived.?9. The relevant extract of the pleadings by the appellant in Company Application No.248 of 2014 noticed by the Company Judge in his order dated 07.09.2015 are also noticeable:?8. I say and submit that earlier, IFCI also filed a purshis dated 21.11.2011 before the Debts Recovery Tribunal, Ahmedabad in Original Application No.452 of 2000 reaffirming that the IFCI Ltd. Has assigned its dues in favour of the applicant. I beg to annex a copy of purshis dated 21.11.2011 filed before the Debts Recovery Tribunal, Ahmedabad in Original Application No.452 of 2000 at Annexure-III.10. I say and submit that apropos to the Deed of Assignment, the Applicant has become the secured creditor of the Company in Liquidation and all the rights of IFCI Ltd. in relation to the financial facilities extended to the Company in Liquidation and the underlying security interests therein vests in the Applicant vis-à-vis the Company in liquidation.?10. The appellant initially took a conscious and considered stand before the Company Judge, staking a claim for being substituted as a secured creditor under the SARFAESI Act consequent to the assignment of debt to it by the IFCI.That the claim was not simply with regard to assignment of an actionable claim under Section 130 of the T.P. Act is evident from its own pleadings and the pursis filed by the IFCI before the Debt Recovery Tribunal.No material has been placed before us with regard to the orders that may have been passed by the Tribunal on such application. After the claim of the appellant of being a secured creditor was rejected by the Company Judge, and the appellant realised the unsustainability of its claim in the law, it made a complete volte face from its earlier stand and surprisingly, contrary to its own pleadings, now contended that it had never sought the status of a secured creditor under the SARFAESI Act.11. The contention of the appellant that it had never sought substitution as a secured creditor under the SARFAESI Act is additionally belied from the recitals contained in the order dated 07.09.2015. Time and again this court has held that the recitals in the order sheet with regard to what transpired before the High Court are sacrosanct. The learned Single Judge, in the review jurisdiction, has reiterated that the arguments addressed before him in Company Application No. 248 of 2014 were made specifically under the SARFAESI Act observing as follows:?It is also required to be noted that learned advocate for the applicant in the said application, at the time of arguments, submitted that the applicant be substituted as secured creditor and given the benefit under the SARFAESI Act and therefore, learned advocate Mr. Rao appearing for the Bank of Baroda submitted in detail, after relying upon the provisions contained in SARFAESI Act, that the applicant cannot be substituted as secured creditor and permitted to proceed under the provisions of SARFAESI Act.?12. A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands The untenability of an inconsistent stand in the same case was considered in Amar Singh vs. Union of India, (2011) 7 SCC 69 , observing as follows:?50. This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to Court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions.?13. A similar view was taken in Joint Action Committee of Air Line Pilots? Assnof India vs. DG of Civil Aviation, (2011) 5 SCC 435 , observing:?12. The doctrine of election is based on the rule of estoppel—the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity….. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily.?
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8. We have considered the submissions on behalf of the parties.That the unregistered MOU was without permission of the BIFR, it was not disclosed to the Company Court till the winding-up order was passed on 19.04.2010, the assignment of debt of Rs.160 crores by IFCI for Rs.85 lacs are admitted facts.The order dated 31.07.2015 passed by the Company Judge makes it very explicit that the appellant in Company Application No.248 of 2014 had specifically sought substitution in place of IFCI as a secured creditor holding first charge consequent to the deed of assignment in its favour dated 28.07.2010 from IFCI.In support of the relief sought, reliance was also placed on the pursis dated 21.11.2011 filed by IFCI in OA No.452 of 2000 before the Debt Recovery Tribunal, Ahmedabad reaffirming the assignment in favour of the appellant. The submissions made before the Company Judge leaves no doubtsthat as an assignee of debts from the IFCI, the appellant essentially sought substitution as a secured creditor under the SARFAESI Act and for that purpose sought to draw sustenance from the provisions of Section 130 of the Transfer of Property Act. Therefore, the Company Judge opined that Section 130 of the Transfer of the Property Act was not applicable in the facts of the case leaving it open for the partiesto take all available contentions before the appropriate court/forum in appropriate proceedings.lly took a conscious and considered stand before the Company Judge, staking a claim for being substituted as a secured creditor under the SARFAESI Act consequent to the assignment of debt to it by the IFCI.That the claim was not simply with regard to assignment of an actionable claim under Section 130 of the T.P. Act is evident from its own pleadings and the pursis filed by the IFCI before the Debt Recovery Tribunal.No material has been placed before us with regard to the orders that may have been passed by the Tribunal on such application. After the claim of the appellant of being a secured creditor was rejected by the Company Judge, and the appellant realised the unsustainability of its claim in the law, it made a complete volte face from its earlier stand and surprisingly, contrary to its own pleadings, now contended that it had never sought the status of a secured creditor under the SARFAESI Act.The contention of the appellant that it had never sought substitution as a secured creditor under the SARFAESI Act is additionally beliedfrom the recitals contained in the order dated 07.09.2015. Time and again this court has held that the recitals in the order sheet with regard to what transpired before the High Court are sacrosanct.A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting
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J. V. Gokal & Co. (Private) Ltd Vs. The Assistant Collector, Of Sales-Tax(Inspection) And Othe | observe or perform any provisions of the contract, to terminate the contract forthwith. Clause 11 under the heading "Force Majeure" confers on the Government, in case delivery in whole or in part is prevented or delayed directly or indirectly by any cause of Force Majeure, was strikes, rebellion, insurrection, political disturbances, civil commotion, fire or flood, on account of plague or other epidemics, the right to cancel the contract for the quantities so prevented or delayed. After the sellers entered into the contracts, they obtained the requisite licences from the Government, opened letters of credit, placed orders with foreign companies, engaged a steamer on charter terms, took delivery of the goods from the foreign firms and, when the goods were on the high seas delivered the documents of title to the Central Government against payment and the said Government, taking the licence from the sellers, cleared the goods at the Bombay harbour.14. Let us now scrutinize the terms of the contract to ascertain whether they disclose any intention of the parties that notwithstanding the delivery of the bill of lading against payment the property in the goods should not pass to the Government. The circumstances under which the contracts were entered into between the parties indicate that both the parties were interested to see that property in the goods passed in the ordinary way when the shipping documents were handed over to the Government against payment. The sellers had to meet their liability to the foreign companies with whom they opened letters of credit and the Government must have been anxious to get the title to the goods so that the sellers might not divert the goods towards their other commitments or to other buyers for more tempting prices. Under the contract every safeguard for securing the goods of agreed specifications was provided for in the earlier clauses and therefore there was no reason for postponing the passing of the property in the goods to the buyer till the goods were actually delivered in the port. The sellers on their side would have been anxious that the property should pass when the goods were on the high seas, for otherwise they would be compelled to pay sales tax. Nor are the clauses of the contracts relied upon by the respondents inconsistent with the property in the goods passing in accordance with the mercantile usage. The liability undertaken by the sellers to meet the expenses relating to stevedorage, lighterage where necessary, hiring of cranes, dock dues and pilotage, at the time of delivery of the goods on which reliance is placed to indicate a contrary intention, in our view, has nothing to do with the question raised, for that liability can rest with the sellers even after the property in the goods has passed to the buyers; nor clause 9 to 11 on which strong reliance is placed by the learned counsel are inconsistent with the property in the goods passing to the buyer; they could legitimately be made applicable to a point of time when the property in the goods has not passed to the buyer. If the sellers fail to observe the performance of any provisions of the contracts before the property in the goods passed to the buyer, under clause 9 of the contracts the buyer can cancel the contract. So too, under cl. 11, if any contemplated mishap takes place on the high seas by force majeure, the seller shall send a cablegram to that effect and the buyer is empowered to cancel the whole of the contract or a part of it. This also applies to a point of time before the property in the goods has passed to the buyer. If on the other hand, the seller delivers the shipping documents against payment and thereafter if he does not deliver the goods at the port, the buyer may have other remedies for the recovery of damages etc. But that right is not covered by either cl. (9) or cl. (11) of the contract.A scrutiny of all the terms of the contract does not indicate the intention that the property in the goods shall not pass to the buyer notwithstanding delivery of shipping documents against payment.15. Apart from the terms of the contract, reliance is also placed by the learned counsel for the respondents on the following circumstances :(i) the seller himself chartered the ship; and (ii) the licence issued by the Government was made non-transferable. We do not see how these two facts indicate the contrary intention.If the seller himself chartered a steamer, when the goods he purchased were loaded in the ship, the property in the goods passed to him and therefore he was in a position to sell the same to the Government. The fact that the licence was non-transferable has no relation to the property in the goods passing to the Government. The licence issued by the Government is an exercise of the statutory power under the relevant Act. Whether the petitioner sold the goods to the Government or to a third party, he had to obtain a licence. Indeed in the present case, the licence was given to the seller with the express object of fulfilling the contracts with the Government and was issued several days after the contracts were executed, and indeed the Government took the licence from the seller and cleared the goods through their officer.16. For all the foregoing reasons we hold that the property in the goods passed to the Government of India when the shipping documents were delivered to them against payment. It follows that the sale of the goods by the petitioner to the Government of India took place when the goods were on the high seas.17. That being so, the sales in question must be held to have taken place in the course of the import into India and therefore they would be exempted from sales tax under Art. 286(1) (b) of the Constitution.18. In this view, no other question would arise for consideration. | 1[ds]9. What does the phrase "in the course of the import of the goods into the territory of India" convey? The crucial words of the phrase are "import" and "in the course of". The term "import", signifies etymologically "to bring in". To import goods into the territory of India therefore means to bring into the territory of India goods from abroad. The word "course" means "progress from point to point". The course of import, therefore, starts from one point and ends at another. It starts when the goods cross the customs barrier in a foreign country and ends when they cross the customs barrier in the importing country. The words were subject of judicial scrutiny by this Court in State ofv. Shanmugha Vilas Cashew Net Factory, 1954 SCR 53 ; (AIR 1953 SC 333 ). Construing these words, Patanjali Sastri, C. J., observed at p. 62 (of SCB) : (at p. 336 of AIR)word "course" etymologically denotes movement from one point to another, and the expression "in the course of" not only implies a period of time during which the movement is in progress but postulates also a connectedrespectfully agree with the aforesaid observations of the learned Judges. The course of the import of the goods may be said to begin when the goods enter their import journey, i.e., when they cross the customs barrier of the foreign country and end when they cross the customs barrier of the importingCourt is State ofv. Bombay Co. Ltd., 1952 SCR 1112 : (AIR 1952 SC 366 ), held that a sale which occasioned the export was a sale that took place in the course of export of the goods. If A, a merchant in India, sells his goods to a merchant in London and puts through the transaction by transporting the goods by a ship to London, the said sale which occasioned the export is exempted under Art. 286 (1) (b) of the Constitution from the levy of sales tax. The same principle applies to a coverse case of goods which occasioned the import of the goods into India. This Court again in 1954 SCR 53 : (AIR 1953 SC 333 ), extended the doctrine to a case of sale or a purchase of goods effected within the State by transfer of shipping documents while the goods were in the course of transit. The decision dealt with three types of purchases, viz., (i) purchases made in the local market; (ii) purchases made in the neighbouring districts of an adjacent State; and (iii) imports from Africa. The imports from Africa consisted of twogroup consisted of goods that were purchased when they were on the high seas and shipped from the African ports to Cochin or Quilon : we are not concerned with the other group. In the said case some commission agents at Bombay arranged for the purchase on behalf of the assessee, got delivery of the shipping documents at Bombay through a bank which advanced money against the shipping documents and collected the same from the assessees at destination. This Court, by a majority, held that, in respect of the purchases falling under the first group of imports, the commission, agents acted merely as agents of the respondents therein and that the said purchases occasioned the import and therefore came within the exemption. That was not a case where the goods were sold by an importer in India to a third party when the goods were on the high seas. It was a case where a party in Cochin purchased goods which were on the high seas through his agent at Bombay and the agent paid the price through a bank against the shipping documents. But the learned Judge, Patanjali Sastri, C. J., expressing the majority view, considered the scope of the exemption in all its aspects and summarized the conclusions thus at p. 69 (of SCR) : (at p. 338 of AIR)conclusions may be summed up as follows :(1) Sales by export and purchases by import fall within the exemption under article 286 (1) (b) . . . . . . (2) Purchases in the State by the exporter for the purpose of export as well as sales in the State by the importer after the goods have crossed the customs barrier are not within the exemption. (3) Sales in the State by the exporter or importer by transfer of shipping documents while the goods are beyond the customs barrier are within the exemption, assuming that the State power of taxation extends to suchJ., as he then was, in his dissenting judgment, agreed with Patanjali Sastri, C. J., on the third conclusion with which we are now concerned. The learned Judge put forward his view at p. 94 (of SCR) : (at p. 347 of AIR), thussales or purchases, by delivery of shipping documents while the goods are on the high seas on their import journey were and are well recognized species of transactions done every day on a large scale in big commercial towns like Bombay and Calcutta and are indeed the necessary and concomitant incidents of foreign trade. To hold that these sales or purchases do not take place "in the course of" import or export but are to be regarded as purely ordinary local or home transaction distinct from foreign trade, is to ignore the realities of the situation. Such a construction will permit the imposition of tax by a State over and above the customs duty or export duty levied by Parliament. Such double taxation on the same lot of goods will increase the price of the goods and in the case of export, may prevent the exporters from competing in the world market and, in the case of import, will put a greater burden on the consumers. This will eventually hamper and prejudicially affect our foreign trade and will bring about precisely that calamity which it is the intention and purpose of our Constitution to prevent.The legal positionle can be summarized thus : (1) The course of import of goods starts at a point when the goods cross the customs barrier of the foreign country and ends at a point in the importing country after the goods cross the customs barrier; (2) the sale which occasions the import is a sale in the course of import; (3) a purchase by an importer of goods when they are on the high seas by payment against shipping documents is also a purchase in the course of import and (4) a sale by an importer of goods after the property in the goods passed to him either after the receipt of the documents of title against payment or otherwise, to a third party by a similar process is also a sale in the course ofview of the foregoing discussion, it should be held that the sales fall under the fourth principle and therefore they were sales that took place in the course of import of the goods into India. A bill of lading is "a writing, signed on behalf of the owner of the ship in which goods are embarked, acknowledging the receipt of the goods, and undertaking to deliver them at the end of the voyage subject to such conditions as may be mentioned in the bill of lading". It isin commercial world that a bill of lading represents the goods and the transfer of it operates as a transfer of the goods.The legal effect of the transfer of a bill of lading has been enunciated by Bowen, L. J., in Sandershave quoted the passage in extenso as it clearly and fully states the law on the subject. It is not disputed that the law in India is also similar to that in England. The delivery of the bill of lading while the goods are afloat is equivalent to the delivery of the goods themselves.The first clause defines the term "sellers" to mean the party selling the sugar and the term "the Government" to mean the President of India. Clause 2 prescribes that suitable gunny bags approved by the Government should be used for importing sugar. Clause 3 provides for inspection of quality, weight and packing of sugar by the Government at the time of shipment. Clause 4 says that sugar shall be shipped to particular ports. Clause 5 compels the sellers to engage steamers on charter terms, empowers the Government to take delivery of the goods at the port of discharge from the ships rail and imposes the burden on the sellers to meet the expenses of stavedoring, lighterage where necessary, hiring of cranes, dock dues and pilotage. Clause 6 deals with the mode of payment for supplies made; under that clause the sellers are to submit a bill for full payment of cost and freight value to the Government in the Ministry of Food and Agriculture, New Delhi, duly supported by a complete set of clean on board bills of lading consisting of three negotiable and threecopies a certificate of origin of sugar a certificate of quality, weight and packing, a certificate from the shipowners that the freight has been paid in full and that theretain no lien whatsoever on the cargo on that account. Under clause 6 (c) letter of credit shall be opened by the sellers at their cost, and the Government of India agree to arrange for the foreign exchange as necessary to the extent of theof the quantity of sugar purchased on the production of an import licence which will be issued on application to the proper authority on their prescribed form. Clause 8 confers on the Government a right, in the event of the sellers failure to supply the sugar in accordance with the terms of the contract, to recover any sum as liquidated damages, and or by way of penalty upto a prescribed amount. Clause 9 authorizes the Government in the event of the sellers failing to observe or perform any provisions of the contract, to terminate the contract forthwith. Clause 11 under the heading "Force Majeure" confers on the Government, in case delivery in whole or in part is prevented or delayed directly or indirectly by any cause of Force Majeure, was strikes, rebellion, insurrection, political disturbances, civil commotion, fire or flood, on account of plague or other epidemics, the right to cancel the contract for the quantities so prevented or delayed. After the sellers entered into the contracts, they obtained the requisite licences from the Government, opened letters of credit, placed orders with foreign companies, engaged a steamer on charter terms, took delivery of the goods from the foreign firms and, when the goods were on the high seas delivered the documents of title to the Central Government against payment and the said Government, taking the licence from the sellers, cleared the goods at the Bombay harbour.14. Let us now scrutinize the terms of the contract to ascertain whether they disclose any intention of the parties that notwithstanding the delivery of the bill of lading against payment the property in the goods should not pass to the Government. The circumstances under which the contracts were entered into between the parties indicate that both the parties were interested to see that property in the goods passed in the ordinary way when the shipping documents were handed over to the Government against payment. The sellers had to meet their liability to the foreign companies with whom they opened letters of credit and the Government must have been anxious to get the title to the goods so that the sellers might not divert the goods towards their other commitments or to other buyers for more tempting prices. Under the contract every safeguard for securing the goods of agreed specifications was provided for in the earlier clauses and therefore there was no reason for postponing the passing of the property in the goods to the buyer till the goods were actually delivered in the port. The sellers on their side would have been anxious that the property should pass when the goods were on the high seas, for otherwise they would be compelled to pay sales tax. Nor are the clauses of the contracts relied upon by the respondents inconsistent with the property in the goods passing in accordance with the mercantile usage. The liability undertaken by the sellers to meet the expenses relating to stevedorage, lighterage where necessary, hiring of cranes, dock dues and pilotage, at the time of delivery of the goods on which reliance is placed to indicate a contrary intention, in our view, has nothing to do with the question raised, for that liability can rest with the sellers even after the property in the goods has passed to the buyers; nor clause 9 to 11 on which strong reliance is placed by the learned counsel are inconsistent with the property in the goods passing to the buyer; they could legitimately be made applicable to a point of time when the property in the goods has not passed to the buyer. If the sellers fail to observe the performance of any provisions of the contracts before the property in the goods passed to the buyer, under clause 9 of the contracts the buyer can cancel the contract. So too, under cl. 11, if any contemplated mishap takes place on the high seas by force majeure, the seller shall send a cablegram to that effect and the buyer is empowered to cancel the whole of the contract or a part of it. This also applies to a point of time before the property in the goods has passed to the buyer. If on the other hand, the seller delivers the shipping documents against payment and thereafter if he does not deliver the goods at the port, the buyer may have other remedies for the recovery of damages etc. But that right is not covered by either cl. (9) or cl. (11) of the contract.A scrutiny of all the terms of the contract does not indicate the intention that the property in the goods shall not pass to the buyer notwithstanding delivery of shipping documents against payment.15. Apart from the terms of the contract, reliance is also placed by the learned counsel for the respondents on the following circumstances :(i) the seller himself chartered the ship; and (ii) the licence issued by the Government was madeWe do not see how these two facts indicate the contrary intention.If the seller himself chartered a steamer, when the goods he purchased were loaded in the ship, the property in the goods passed to him and therefore he was in a position to sell the same to the Government. The fact that the licence washas no relation to the property in the goods passing to the Government. The licence issued by the Government is an exercise of the statutory power under the relevant Act. Whether the petitioner sold the goods to the Government or to a third party, he had to obtain a licence. Indeed in the present case, the licence was given to the seller with the express object of fulfilling the contracts with the Government and was issued several days after the contracts were executed, and indeed the Government took the licence from the seller and cleared the goods through their officer.16. For all the foregoing reasons we hold that the property in the goods passed to the Government of India when the shipping documents were delivered to them against payment. It follows that the sale of the goods by the petitioner to the Government of India took place when the goods were on the high seas.17. That being so, the sales in question must be held to have taken place in the course of the import into India and therefore they would be exempted from sales tax under Art. 286(1) (b) of the Constitution.18. In this view, no other question would arise for consideration. | 1 | 5,289 | 2,914 | ### Instruction:
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observe or perform any provisions of the contract, to terminate the contract forthwith. Clause 11 under the heading "Force Majeure" confers on the Government, in case delivery in whole or in part is prevented or delayed directly or indirectly by any cause of Force Majeure, was strikes, rebellion, insurrection, political disturbances, civil commotion, fire or flood, on account of plague or other epidemics, the right to cancel the contract for the quantities so prevented or delayed. After the sellers entered into the contracts, they obtained the requisite licences from the Government, opened letters of credit, placed orders with foreign companies, engaged a steamer on charter terms, took delivery of the goods from the foreign firms and, when the goods were on the high seas delivered the documents of title to the Central Government against payment and the said Government, taking the licence from the sellers, cleared the goods at the Bombay harbour.14. Let us now scrutinize the terms of the contract to ascertain whether they disclose any intention of the parties that notwithstanding the delivery of the bill of lading against payment the property in the goods should not pass to the Government. The circumstances under which the contracts were entered into between the parties indicate that both the parties were interested to see that property in the goods passed in the ordinary way when the shipping documents were handed over to the Government against payment. The sellers had to meet their liability to the foreign companies with whom they opened letters of credit and the Government must have been anxious to get the title to the goods so that the sellers might not divert the goods towards their other commitments or to other buyers for more tempting prices. Under the contract every safeguard for securing the goods of agreed specifications was provided for in the earlier clauses and therefore there was no reason for postponing the passing of the property in the goods to the buyer till the goods were actually delivered in the port. The sellers on their side would have been anxious that the property should pass when the goods were on the high seas, for otherwise they would be compelled to pay sales tax. Nor are the clauses of the contracts relied upon by the respondents inconsistent with the property in the goods passing in accordance with the mercantile usage. The liability undertaken by the sellers to meet the expenses relating to stevedorage, lighterage where necessary, hiring of cranes, dock dues and pilotage, at the time of delivery of the goods on which reliance is placed to indicate a contrary intention, in our view, has nothing to do with the question raised, for that liability can rest with the sellers even after the property in the goods has passed to the buyers; nor clause 9 to 11 on which strong reliance is placed by the learned counsel are inconsistent with the property in the goods passing to the buyer; they could legitimately be made applicable to a point of time when the property in the goods has not passed to the buyer. If the sellers fail to observe the performance of any provisions of the contracts before the property in the goods passed to the buyer, under clause 9 of the contracts the buyer can cancel the contract. So too, under cl. 11, if any contemplated mishap takes place on the high seas by force majeure, the seller shall send a cablegram to that effect and the buyer is empowered to cancel the whole of the contract or a part of it. This also applies to a point of time before the property in the goods has passed to the buyer. If on the other hand, the seller delivers the shipping documents against payment and thereafter if he does not deliver the goods at the port, the buyer may have other remedies for the recovery of damages etc. But that right is not covered by either cl. (9) or cl. (11) of the contract.A scrutiny of all the terms of the contract does not indicate the intention that the property in the goods shall not pass to the buyer notwithstanding delivery of shipping documents against payment.15. Apart from the terms of the contract, reliance is also placed by the learned counsel for the respondents on the following circumstances :(i) the seller himself chartered the ship; and (ii) the licence issued by the Government was made non-transferable. We do not see how these two facts indicate the contrary intention.If the seller himself chartered a steamer, when the goods he purchased were loaded in the ship, the property in the goods passed to him and therefore he was in a position to sell the same to the Government. The fact that the licence was non-transferable has no relation to the property in the goods passing to the Government. The licence issued by the Government is an exercise of the statutory power under the relevant Act. Whether the petitioner sold the goods to the Government or to a third party, he had to obtain a licence. Indeed in the present case, the licence was given to the seller with the express object of fulfilling the contracts with the Government and was issued several days after the contracts were executed, and indeed the Government took the licence from the seller and cleared the goods through their officer.16. For all the foregoing reasons we hold that the property in the goods passed to the Government of India when the shipping documents were delivered to them against payment. It follows that the sale of the goods by the petitioner to the Government of India took place when the goods were on the high seas.17. That being so, the sales in question must be held to have taken place in the course of the import into India and therefore they would be exempted from sales tax under Art. 286(1) (b) of the Constitution.18. In this view, no other question would arise for consideration.
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the sellers failing to observe or perform any provisions of the contract, to terminate the contract forthwith. Clause 11 under the heading "Force Majeure" confers on the Government, in case delivery in whole or in part is prevented or delayed directly or indirectly by any cause of Force Majeure, was strikes, rebellion, insurrection, political disturbances, civil commotion, fire or flood, on account of plague or other epidemics, the right to cancel the contract for the quantities so prevented or delayed. After the sellers entered into the contracts, they obtained the requisite licences from the Government, opened letters of credit, placed orders with foreign companies, engaged a steamer on charter terms, took delivery of the goods from the foreign firms and, when the goods were on the high seas delivered the documents of title to the Central Government against payment and the said Government, taking the licence from the sellers, cleared the goods at the Bombay harbour.14. Let us now scrutinize the terms of the contract to ascertain whether they disclose any intention of the parties that notwithstanding the delivery of the bill of lading against payment the property in the goods should not pass to the Government. The circumstances under which the contracts were entered into between the parties indicate that both the parties were interested to see that property in the goods passed in the ordinary way when the shipping documents were handed over to the Government against payment. The sellers had to meet their liability to the foreign companies with whom they opened letters of credit and the Government must have been anxious to get the title to the goods so that the sellers might not divert the goods towards their other commitments or to other buyers for more tempting prices. Under the contract every safeguard for securing the goods of agreed specifications was provided for in the earlier clauses and therefore there was no reason for postponing the passing of the property in the goods to the buyer till the goods were actually delivered in the port. The sellers on their side would have been anxious that the property should pass when the goods were on the high seas, for otherwise they would be compelled to pay sales tax. Nor are the clauses of the contracts relied upon by the respondents inconsistent with the property in the goods passing in accordance with the mercantile usage. The liability undertaken by the sellers to meet the expenses relating to stevedorage, lighterage where necessary, hiring of cranes, dock dues and pilotage, at the time of delivery of the goods on which reliance is placed to indicate a contrary intention, in our view, has nothing to do with the question raised, for that liability can rest with the sellers even after the property in the goods has passed to the buyers; nor clause 9 to 11 on which strong reliance is placed by the learned counsel are inconsistent with the property in the goods passing to the buyer; they could legitimately be made applicable to a point of time when the property in the goods has not passed to the buyer. If the sellers fail to observe the performance of any provisions of the contracts before the property in the goods passed to the buyer, under clause 9 of the contracts the buyer can cancel the contract. So too, under cl. 11, if any contemplated mishap takes place on the high seas by force majeure, the seller shall send a cablegram to that effect and the buyer is empowered to cancel the whole of the contract or a part of it. This also applies to a point of time before the property in the goods has passed to the buyer. If on the other hand, the seller delivers the shipping documents against payment and thereafter if he does not deliver the goods at the port, the buyer may have other remedies for the recovery of damages etc. But that right is not covered by either cl. (9) or cl. (11) of the contract.A scrutiny of all the terms of the contract does not indicate the intention that the property in the goods shall not pass to the buyer notwithstanding delivery of shipping documents against payment.15. Apart from the terms of the contract, reliance is also placed by the learned counsel for the respondents on the following circumstances :(i) the seller himself chartered the ship; and (ii) the licence issued by the Government was madeWe do not see how these two facts indicate the contrary intention.If the seller himself chartered a steamer, when the goods he purchased were loaded in the ship, the property in the goods passed to him and therefore he was in a position to sell the same to the Government. The fact that the licence washas no relation to the property in the goods passing to the Government. The licence issued by the Government is an exercise of the statutory power under the relevant Act. Whether the petitioner sold the goods to the Government or to a third party, he had to obtain a licence. Indeed in the present case, the licence was given to the seller with the express object of fulfilling the contracts with the Government and was issued several days after the contracts were executed, and indeed the Government took the licence from the seller and cleared the goods through their officer.16. For all the foregoing reasons we hold that the property in the goods passed to the Government of India when the shipping documents were delivered to them against payment. It follows that the sale of the goods by the petitioner to the Government of India took place when the goods were on the high seas.17. That being so, the sales in question must be held to have taken place in the course of the import into India and therefore they would be exempted from sales tax under Art. 286(1) (b) of the Constitution.18. In this view, no other question would arise for consideration.
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Joint District Registrar (Class-I) and Collector of Stamps, Nagpur and Another Vs. M/S Jaika Automobiles Private Limited, Nagpur | interpretation of Section 4. The Appellants contended that all three documents i.e. the two hypothecation agreements and the Security-cum-Mortgage deed were executed on the same date i.e. 23.08.2002 and therefore, the presence of the word collateral in Article 40(c) ought to have been understood in the context of any document presupposing prior existence of a principal or main document. The thrust of submissions on the part of the Appellants before us was that the two instruments of hypothecation would hardly be called as adequate security for sanctioning a loan of Rs. 7 crores and thus, in that background the document of Security-cum-Mortgage deed had to be construed as the principal Instrument on which stamp- duty was leviable/payable by the Respondent. 7. We have heard Ms.N.P. Mehta, leraned Additional Government Pleader for Appellants and Mr.S.V. Manohar, learned Senior Counsel for the Respondent-Company and carefully considered the submissions and gone through the pleadings before us. At the outset, the relevant provisions of Section 4 of the Stamp Act and Article 40(c) of the Stamp Act which are applicable in the present case are required to be considered and they read thus: 4. Several Instruments used in single transaction of [development agreement] sale, [lease], mortgage or settlement (1) several instruments are employed for completing the transaction, the principal instrument only shall be chargeable with the duty prescribed in Schedule-I for the coneyance [development agreement] [lease] mortgage or settlement, and each of the other instruments shall be chargeable with a duty of [one hundred rupees] instead of the duty (if any) prescribed for it in that Schedule. 2) The parties may determine for themselves which of the instruments so employed shall, for the purpose of subSection (1), be deemed to be the principal instrument. (3) If the parties fail to determine the principal instrument between themselves, then the officer before whom the instrument is produced may, for the purposes of this section, determine the principal instrument. Provided that the duty chargeable on the instrument so determined shall be the highest duty which would be chargeable in respect of any of the said instrument employed. Provided that the duty chargeable on the instrument so determined shall be the highest duty which would be chargeable in respect of any of the said instrument employed. table 8. From a reading of the above provisions, it is evident that the provisions of Section 4 clearly enumerate that when the same transaction is completed by more than one instrument, it is for the parties to determine for themselves which of the said instrument so employed shall for the purposes of Section 4 (1) be deemed to be the principal Instrument. Sub-Section (3) further contemplates and lays down that if the parties fail to determine the principal instrument between themselves, then the Officer before whom the instrument is produced may for the purposes of this Section, determine the principal instrument. The Proviso further states that the duty chargeable on the instrument so determined shall be the highest duty which would be chargeable in respect of any of the said instruments employed. Thus, in the present case, it is required to be seen as to whether the Respondent Company had determined for themselves i.e. between the Respondent and United Commercial Bank as to which document/instrument was deemed to be the principal instrument. Mr. Manohar drew our attention to the clauses of the Securitycum-Mortgage deed dated 23.08.2002 and more specifically to Clause 21 therein which reads thus : 21. …........Cash credit limit of Rs. 7,00,00,000/- (Rs. 7 crores) has been sanction in the name of M/s. Jaika Motors Limited, on the condition that the borrower company shall furnish the principal and primary security by executing the hypothecation agreement/deed, giving the exclusive first charge of the entire stock, plant and machineries and book debts of the borrower company present and future. The Borrower Company shall furnish the Collateral security (in addition to the Hypothecation deed) of the sureties/guarantors who shall execute mortgage in favour of the Mortgage Bank in respect of their properties at Nagpur, Amravati and Chandrapur 9. From the above Clause appearing in the Security-cumMortgage deed between the Respondent-Company and United Commercial Bank it is clear that the Respondent -Company had specifically deemed that the two hypothecation agreements would be the principal instruments in consonance with the provisions of Section 4 (2) of the Stamp Act, thereby negating the employment of Section 4 (3) to the facts of the Respondents case. The parties had specifically elected the Hypothecation agreements as the principal Instruments as required by the provisions of Section 4(2). 10. Our attention was also drawn to the sanction letter dated 27.07.2002 issued by United Commercial Bank to the Respondent-Company in respect of sanction of the credit proposal for Rs.7 crores. In the said letter, apart from the cash credit limit of Rs.7 crores the value of the primary security, viz. hypothecation of plant and machineries, Telco vehicles, stores and spares lying at Nagpur, Chandrapur, Amravati, Raipur, Jagadalpur or elsewhere in the Companys go-downs, book debts and all current assets of the company were taken at the invoice Price or Market Price. Further, the immovable properties of the Respondent-Company situated at Amravati, Chandrapur and Nagpur was itself valued at Rs.720.18 lakhs. Apart from this, the Respondent was required to produce the personal guarantees of its five Directors and Corporate guarantees of six associate companies as mentioned therein. 11. Therefore, we are in agreement with the submissions made on behalf of the Respondent that the Security-cum-Mortgage Instrument which was entered into by the Respondent with United Commercial Bank was not the principal instrument and it will have to be construed as a collateral document in view of the provisions of Section 4(2) of the Stamp Act in the facts of the present case. 12. In view of the above, we find no merits in the submissions advanced on behalf of the Appellants and do not find it necessary to interfere with the order and judgment passed by the learned Single Judge. | 0[ds]9. From the above Clause appearing in the Security-cumMortgage deed between the Respondent-Company and United Commercial Bank it is clear that the Respondent -Company had specifically deemed that the two hypothecation agreements would be the principal instruments in consonance with the provisions of Section 4 (2) of the Stamp Act, thereby negating the employment of Section 4 (3) to the facts of the Respondents case. The parties had specifically elected the Hypothecation agreements as the principal Instruments as required by the provisions of Section 4(2)In the said letter, apart from the cash credit limit of Rs.7 crores the value of the primary security, viz. hypothecation of plant and machineries, Telco vehicles, stores and spares lying at Nagpur, Chandrapur, Amravati, Raipur, Jagadalpur or elsewhere in the Companys go-downs, book debts and all current assets of the company were taken at the invoice Price or Market Price. Further, the immovable properties of the Respondent-Company situated at Amravati, Chandrapur and Nagpur was itself valued at Rs.720.18 lakhs. Apart from this, the Respondent was required to produce the personal guarantees of its five Directors and Corporate guarantees of six associate companies as mentioned therein11. Therefore, we are in agreement with the submissions made on behalf of the Respondent that the Security-cum-Mortgage Instrument which was entered into by the Respondent with United Commercial Bank was not the principal instrument and it will have to be construed as a collateral document in view of the provisions of Section 4(2) of the Stamp Act in the facts of the present case12. In view of the above, we find no merits in the submissions advanced on behalf of the Appellants and do not find it necessary to interfere with the order and judgment passed by the learned Single Judge. | 0 | 2,292 | 329 | ### Instruction:
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interpretation of Section 4. The Appellants contended that all three documents i.e. the two hypothecation agreements and the Security-cum-Mortgage deed were executed on the same date i.e. 23.08.2002 and therefore, the presence of the word collateral in Article 40(c) ought to have been understood in the context of any document presupposing prior existence of a principal or main document. The thrust of submissions on the part of the Appellants before us was that the two instruments of hypothecation would hardly be called as adequate security for sanctioning a loan of Rs. 7 crores and thus, in that background the document of Security-cum-Mortgage deed had to be construed as the principal Instrument on which stamp- duty was leviable/payable by the Respondent. 7. We have heard Ms.N.P. Mehta, leraned Additional Government Pleader for Appellants and Mr.S.V. Manohar, learned Senior Counsel for the Respondent-Company and carefully considered the submissions and gone through the pleadings before us. At the outset, the relevant provisions of Section 4 of the Stamp Act and Article 40(c) of the Stamp Act which are applicable in the present case are required to be considered and they read thus: 4. Several Instruments used in single transaction of [development agreement] sale, [lease], mortgage or settlement (1) several instruments are employed for completing the transaction, the principal instrument only shall be chargeable with the duty prescribed in Schedule-I for the coneyance [development agreement] [lease] mortgage or settlement, and each of the other instruments shall be chargeable with a duty of [one hundred rupees] instead of the duty (if any) prescribed for it in that Schedule. 2) The parties may determine for themselves which of the instruments so employed shall, for the purpose of subSection (1), be deemed to be the principal instrument. (3) If the parties fail to determine the principal instrument between themselves, then the officer before whom the instrument is produced may, for the purposes of this section, determine the principal instrument. Provided that the duty chargeable on the instrument so determined shall be the highest duty which would be chargeable in respect of any of the said instrument employed. Provided that the duty chargeable on the instrument so determined shall be the highest duty which would be chargeable in respect of any of the said instrument employed. table 8. From a reading of the above provisions, it is evident that the provisions of Section 4 clearly enumerate that when the same transaction is completed by more than one instrument, it is for the parties to determine for themselves which of the said instrument so employed shall for the purposes of Section 4 (1) be deemed to be the principal Instrument. Sub-Section (3) further contemplates and lays down that if the parties fail to determine the principal instrument between themselves, then the Officer before whom the instrument is produced may for the purposes of this Section, determine the principal instrument. The Proviso further states that the duty chargeable on the instrument so determined shall be the highest duty which would be chargeable in respect of any of the said instruments employed. Thus, in the present case, it is required to be seen as to whether the Respondent Company had determined for themselves i.e. between the Respondent and United Commercial Bank as to which document/instrument was deemed to be the principal instrument. Mr. Manohar drew our attention to the clauses of the Securitycum-Mortgage deed dated 23.08.2002 and more specifically to Clause 21 therein which reads thus : 21. …........Cash credit limit of Rs. 7,00,00,000/- (Rs. 7 crores) has been sanction in the name of M/s. Jaika Motors Limited, on the condition that the borrower company shall furnish the principal and primary security by executing the hypothecation agreement/deed, giving the exclusive first charge of the entire stock, plant and machineries and book debts of the borrower company present and future. The Borrower Company shall furnish the Collateral security (in addition to the Hypothecation deed) of the sureties/guarantors who shall execute mortgage in favour of the Mortgage Bank in respect of their properties at Nagpur, Amravati and Chandrapur 9. From the above Clause appearing in the Security-cumMortgage deed between the Respondent-Company and United Commercial Bank it is clear that the Respondent -Company had specifically deemed that the two hypothecation agreements would be the principal instruments in consonance with the provisions of Section 4 (2) of the Stamp Act, thereby negating the employment of Section 4 (3) to the facts of the Respondents case. The parties had specifically elected the Hypothecation agreements as the principal Instruments as required by the provisions of Section 4(2). 10. Our attention was also drawn to the sanction letter dated 27.07.2002 issued by United Commercial Bank to the Respondent-Company in respect of sanction of the credit proposal for Rs.7 crores. In the said letter, apart from the cash credit limit of Rs.7 crores the value of the primary security, viz. hypothecation of plant and machineries, Telco vehicles, stores and spares lying at Nagpur, Chandrapur, Amravati, Raipur, Jagadalpur or elsewhere in the Companys go-downs, book debts and all current assets of the company were taken at the invoice Price or Market Price. Further, the immovable properties of the Respondent-Company situated at Amravati, Chandrapur and Nagpur was itself valued at Rs.720.18 lakhs. Apart from this, the Respondent was required to produce the personal guarantees of its five Directors and Corporate guarantees of six associate companies as mentioned therein. 11. Therefore, we are in agreement with the submissions made on behalf of the Respondent that the Security-cum-Mortgage Instrument which was entered into by the Respondent with United Commercial Bank was not the principal instrument and it will have to be construed as a collateral document in view of the provisions of Section 4(2) of the Stamp Act in the facts of the present case. 12. In view of the above, we find no merits in the submissions advanced on behalf of the Appellants and do not find it necessary to interfere with the order and judgment passed by the learned Single Judge.
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9. From the above Clause appearing in the Security-cumMortgage deed between the Respondent-Company and United Commercial Bank it is clear that the Respondent -Company had specifically deemed that the two hypothecation agreements would be the principal instruments in consonance with the provisions of Section 4 (2) of the Stamp Act, thereby negating the employment of Section 4 (3) to the facts of the Respondents case. The parties had specifically elected the Hypothecation agreements as the principal Instruments as required by the provisions of Section 4(2)In the said letter, apart from the cash credit limit of Rs.7 crores the value of the primary security, viz. hypothecation of plant and machineries, Telco vehicles, stores and spares lying at Nagpur, Chandrapur, Amravati, Raipur, Jagadalpur or elsewhere in the Companys go-downs, book debts and all current assets of the company were taken at the invoice Price or Market Price. Further, the immovable properties of the Respondent-Company situated at Amravati, Chandrapur and Nagpur was itself valued at Rs.720.18 lakhs. Apart from this, the Respondent was required to produce the personal guarantees of its five Directors and Corporate guarantees of six associate companies as mentioned therein11. Therefore, we are in agreement with the submissions made on behalf of the Respondent that the Security-cum-Mortgage Instrument which was entered into by the Respondent with United Commercial Bank was not the principal instrument and it will have to be construed as a collateral document in view of the provisions of Section 4(2) of the Stamp Act in the facts of the present case12. In view of the above, we find no merits in the submissions advanced on behalf of the Appellants and do not find it necessary to interfere with the order and judgment passed by the learned Single Judge.
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World College Of Medical Sciences And Research And Hospital Vs. Union Of India | follow the course adopted in the case of Shri Venkateshwara University through its Registrar and Another v. Union of India and Another, Writ Petition (C) No. 445 of 2017, decided on 1st September, 2017. and Krishna Mohan Medical College and Hospital & Anr. v. Union of India and Another, Writ Petition (C) No. 448 of 2017, decided on 1st September, 2017.. In the latter case, the Court observed thus:-"21. No endeavour whatsoever, in our comprehension, has been made by the respondents and that too in the face of an unequivocal direction by this Court, to fairly and consummately examine the materials on record in details before recording a final decision on the issue of confirmation or otherwise of the LOP granted to the petitioner college/institution as on 12.09.2016. True it is that the Regulations do provide for certain norms of infrastructure to be complied with by the applicant college/institution for being qualified for the LOP depending on the stages involved. This however does not obviate the inalienable necessity of affording a reasonable opportunity of hearing to the person or the college/institution concerned vis-a-vis the scheme for establishment of a college before disapproving the same. The manner in which the respondents, in the individual facts of the instant case, have approached the issue, leads to the inevitable conclusion that the materials on records do not support determinatively the allegation of deficiency in course of the process undertaken, as alleged. We are thus of the considered opinion that in view of the persistent defaults and shortcomings in the decision making process of the respondents, the petitioner college/institution ought not to be penalised. Having regard to the progression of events, the assertions made by the petitioners in the representations countering the deficiencies alleged, the observations/views expressed by the Oversight Committee in its communication dated 14.05.2017 and the DGHS in the hearing held on 17.01.2017 negate the findings with regard to the deficiencies as recorded by the assessors of the MCI in the inspections held. Consequently, on an overall view of the materials available on record and balancing all relevant aspects, we are of the considered opinion that the conditional LOP granted to the petitioner college/institution on 12.09.2016 for the academic year 2016-17 deserves to be confirmed. We order accordingly. However, as the Act and Regulations framed thereunder have been envisioned to attain the highest standards of medical education, we direct the Central Government/MCI to cause a fresh inspection of the petitioner college/institution to be made in accordance therewith for the academic year 2018-19 and lay the report in respect thereof before this Court within a period of eight weeks herefrom. A copy of the report, needless to state, would be furnished to the petitioner college/institution at the earliest so as to enable it to avail its remedies, if so advised, under the act and the Regulations. The Central Government/MCI would not encash the bank guaranteed furnished by the petitioner college/institution. For the present, the impugned order dated 10.8.2017 stands modified to this extent only. The direction for a writ, order or direction to the respondents to permit the petitioner college/institution to admit students for the academic year 2017-18, in the facts of the case, is declined. The Registry would list the writ petition and I.A. No. 73716 of 2017 immediately after the expiry of period of eight weeks, as above mentioned."In the case of Shri Venkateshwara University (supra), this Court observed thus:-"17. Though we have so held, yet we think it appropriate that the students who have been admitted in the Institution for the academic session 2016-2017, shall continue their studies. The MCI shall send the inspecting team to the Institution within a period of two months. After the report is filed, the MCI shall apprise the Institution with regard to the deficiencies and give a date for removal of the same so that the Institution would be in a position to do the needful. We may hasten to add that the inspection that will be carried out and the further follow up action shall be done for the academic session 2018-2019. 16 18. As we intend to appreciate the inspection report and the deficiencies and the action taken up thereon by the Institution, list the matter on 15th November, 2017. The renewal application that was submitted for the academic session 2017-2018 may be treated as the application for the academic session 2018-2019. The bank guarantee which has been deposited shall not be encashed and be kept alive."13. Be that as it may, we shall revert to the grievance of the petitioners that inspection could not have been conducted on 26th-27th October, 2016, as the said dates were too close to a major national festival. This argument deserves to be rejected, bearing in mind the interpretation of Clause 8(3)(1)(d) of the Establishment of Medical College Regulations, 1999 in the case of Shri Venkateshwara University (supra), which postulates that the office of the Council shall ensure that such inspections are not carried out at least 2 days before and 2 days after important religious and festival holidays declared by the Central/State Govt. In the present case, the head count was carried out on the first day of inspection, on 26th October, 2016, as noted in the assessment report. Diwali was on 29th October, 2016, and thus, the inspection on 26th October, 2016 in no way offended Clause 8. Further, if the argument of the petitioners was to be accepted, it would result in a situation where the inspection report dated 26th-27th October, 2016 will have to be discarded as a whole. As the feasibility of grant of LOP for medical college is essentially founded on such assessment report, if that report is to be discarded then the petitioners cannot get any relief whatsoever, without fresh inspection. It is not necessary for us to dilate either on this aspect or any other contention raised by the petitioners as we are inclined to adopt the course predicated in the aforementioned two recent decisions of this Court. | 1[ds]10. Having considered the rival submissions, we are in agreement with the petitioners that the Competent Authority has once again failed to consider the relevant matters in the spirit of the direction given by this Court on 1st August, 2017. It has mechanically adverted to the recommendation of the Hearing Committee, which, in turn, has reproduced the factual position narrated in the assessment report in respect of the inspection conducted onOctober, 2016. The Competent Authority has not examined the matter with respect to the specific plea taken by the petitioners which had found favour with the OC. The OC in its recommendation dated 14th May, 2017 had noted that the faculty deficiency was only 06.18% which was within the acceptable norms. The OC had noted that the assessing team completely glossed over the fact that some staff was on leave due to the ensuing Diwali festival and that 4 staff members had come late after the scheduled time. The explanation offered by the petitioners in that behalf found favour with the OC. However, neither the Hearing Committee nor the Competent Authority has dealt with the factual matrix and in particular, the explanation offered by the petitioners, including the fresh representation.11. Having said thus, we would have proceeded to issue directions to the respondents to allow the petitioner medical college to admit students in the MBBS course for the academic sessionHowever, in the present case, we find that the MCI, which is an expert body, on the day of assessment has noticed deficiency of 29.23% of Faculty, 28.26% of Residents and 34% of Bed Occupancy, each of which was beyond the permissible limits. It has also taken into account the factum of `Nil Normal Delivery and `NIL Caesarean Section on the day of the assessment. Further, there was only 1 patient in NICU/PICU and 2 in SICU on the day of assessment and none in ICCU and MICU. It has also noticed that the Central Library was partiallyand there was no separation of Students Reading Room (Outside) and Students Reading Room (Inside). Further, there were only 65 mounted specimens in the Anatomy Department. Indeed, the OC in its letter dated 14th May, 2017 has noted that the explanation submitted by the college regarding deficiencies of Faculty, Residents and Bed Occupancy was acceptable and, therefore, within the permissible norms. As has been noticed earlier, the Competent Authority in the impugned decision did not accept the explanation offered by the petitioner college but, as aforesaid, no analysis is found in the impugned decision as to why the same was rejected and, moreso, no tangible reason is forthcoming as to why it chose to deviate from the opinion expressed by the OC. At the same time, we also find that the OC has not dealt with the factum noticed by the Competent Authority in the impugned decision that the salary slips in respect of 27 staff members of the college did not bear details of bank account, PAN, PRAN etc. That presupposes that there was no clear identity about the staff employed by the college to the extent of 27 persons which is quite significant and raises grave suspicion. The communication sent by the OC also does not explain as to why the Bed Occupancy figure of 62%, as claimed by the college, should be accepted as against the physical verification done by the assessor on the given day which found only 34% Bed Occupancy. The OC has also not recorded any reason as to why the abysmal level of occupancy and indoor patients in ICCU/ MICU/PICU and SICU was irrelevant. Absence of indoor patients was a reflection on the performance of the hospital as a whole, which inevitably would deprive the students of the said college of proper experience and exposure. The deficiencies noticed by the MCI were significant and beyond the permissible limits and the Competent Authority has not dealt with the relevant material including the fresh representation submitted by the petitioners.Be that as it may, we shall revert to the grievance of the petitioners that inspection could not have been conducted onOctober, 2016, as the said dates were too close to a major national festival. This argument deserves to be rejected, bearing in mind the interpretation of Clause 8(3)(1)(d) of the Establishment of Medical College Regulations, 1999 in the case of Shri Venkateshwara University (supra), which postulates that the office of the Council shall ensure that such inspections are not carried out at least 2 days before and 2 days after important religious and festival holidays declared by the Central/State Govt. In the present case, the head count was carried out on the first day of inspection, on 26th October, 2016, as noted in the assessment report. Diwali was on 29th October, 2016, and thus, the inspection on 26th October, 2016 in no way offended Clause 8. Further, if the argument of the petitioners was to be accepted, it would result in a situation where the inspection report datedOctober, 2016 will have to be discarded as a whole. As the feasibility of grant of LOP for medical college is essentially founded on such assessment report, if that report is to be discarded then the petitioners cannot get any relief whatsoever, without fresh inspection. It is not necessary for us to dilate either on this aspect or any other contention raised by the petitioners as we are inclined to adopt the course predicated in the aforementioned two recent decisions of this Court. | 1 | 4,608 | 1,019 | ### 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:
follow the course adopted in the case of Shri Venkateshwara University through its Registrar and Another v. Union of India and Another, Writ Petition (C) No. 445 of 2017, decided on 1st September, 2017. and Krishna Mohan Medical College and Hospital & Anr. v. Union of India and Another, Writ Petition (C) No. 448 of 2017, decided on 1st September, 2017.. In the latter case, the Court observed thus:-"21. No endeavour whatsoever, in our comprehension, has been made by the respondents and that too in the face of an unequivocal direction by this Court, to fairly and consummately examine the materials on record in details before recording a final decision on the issue of confirmation or otherwise of the LOP granted to the petitioner college/institution as on 12.09.2016. True it is that the Regulations do provide for certain norms of infrastructure to be complied with by the applicant college/institution for being qualified for the LOP depending on the stages involved. This however does not obviate the inalienable necessity of affording a reasonable opportunity of hearing to the person or the college/institution concerned vis-a-vis the scheme for establishment of a college before disapproving the same. The manner in which the respondents, in the individual facts of the instant case, have approached the issue, leads to the inevitable conclusion that the materials on records do not support determinatively the allegation of deficiency in course of the process undertaken, as alleged. We are thus of the considered opinion that in view of the persistent defaults and shortcomings in the decision making process of the respondents, the petitioner college/institution ought not to be penalised. Having regard to the progression of events, the assertions made by the petitioners in the representations countering the deficiencies alleged, the observations/views expressed by the Oversight Committee in its communication dated 14.05.2017 and the DGHS in the hearing held on 17.01.2017 negate the findings with regard to the deficiencies as recorded by the assessors of the MCI in the inspections held. Consequently, on an overall view of the materials available on record and balancing all relevant aspects, we are of the considered opinion that the conditional LOP granted to the petitioner college/institution on 12.09.2016 for the academic year 2016-17 deserves to be confirmed. We order accordingly. However, as the Act and Regulations framed thereunder have been envisioned to attain the highest standards of medical education, we direct the Central Government/MCI to cause a fresh inspection of the petitioner college/institution to be made in accordance therewith for the academic year 2018-19 and lay the report in respect thereof before this Court within a period of eight weeks herefrom. A copy of the report, needless to state, would be furnished to the petitioner college/institution at the earliest so as to enable it to avail its remedies, if so advised, under the act and the Regulations. The Central Government/MCI would not encash the bank guaranteed furnished by the petitioner college/institution. For the present, the impugned order dated 10.8.2017 stands modified to this extent only. The direction for a writ, order or direction to the respondents to permit the petitioner college/institution to admit students for the academic year 2017-18, in the facts of the case, is declined. The Registry would list the writ petition and I.A. No. 73716 of 2017 immediately after the expiry of period of eight weeks, as above mentioned."In the case of Shri Venkateshwara University (supra), this Court observed thus:-"17. Though we have so held, yet we think it appropriate that the students who have been admitted in the Institution for the academic session 2016-2017, shall continue their studies. The MCI shall send the inspecting team to the Institution within a period of two months. After the report is filed, the MCI shall apprise the Institution with regard to the deficiencies and give a date for removal of the same so that the Institution would be in a position to do the needful. We may hasten to add that the inspection that will be carried out and the further follow up action shall be done for the academic session 2018-2019. 16 18. As we intend to appreciate the inspection report and the deficiencies and the action taken up thereon by the Institution, list the matter on 15th November, 2017. The renewal application that was submitted for the academic session 2017-2018 may be treated as the application for the academic session 2018-2019. The bank guarantee which has been deposited shall not be encashed and be kept alive."13. Be that as it may, we shall revert to the grievance of the petitioners that inspection could not have been conducted on 26th-27th October, 2016, as the said dates were too close to a major national festival. This argument deserves to be rejected, bearing in mind the interpretation of Clause 8(3)(1)(d) of the Establishment of Medical College Regulations, 1999 in the case of Shri Venkateshwara University (supra), which postulates that the office of the Council shall ensure that such inspections are not carried out at least 2 days before and 2 days after important religious and festival holidays declared by the Central/State Govt. In the present case, the head count was carried out on the first day of inspection, on 26th October, 2016, as noted in the assessment report. Diwali was on 29th October, 2016, and thus, the inspection on 26th October, 2016 in no way offended Clause 8. Further, if the argument of the petitioners was to be accepted, it would result in a situation where the inspection report dated 26th-27th October, 2016 will have to be discarded as a whole. As the feasibility of grant of LOP for medical college is essentially founded on such assessment report, if that report is to be discarded then the petitioners cannot get any relief whatsoever, without fresh inspection. It is not necessary for us to dilate either on this aspect or any other contention raised by the petitioners as we are inclined to adopt the course predicated in the aforementioned two recent decisions of this Court.
### Response:
1
### Explanation:
10. Having considered the rival submissions, we are in agreement with the petitioners that the Competent Authority has once again failed to consider the relevant matters in the spirit of the direction given by this Court on 1st August, 2017. It has mechanically adverted to the recommendation of the Hearing Committee, which, in turn, has reproduced the factual position narrated in the assessment report in respect of the inspection conducted onOctober, 2016. The Competent Authority has not examined the matter with respect to the specific plea taken by the petitioners which had found favour with the OC. The OC in its recommendation dated 14th May, 2017 had noted that the faculty deficiency was only 06.18% which was within the acceptable norms. The OC had noted that the assessing team completely glossed over the fact that some staff was on leave due to the ensuing Diwali festival and that 4 staff members had come late after the scheduled time. The explanation offered by the petitioners in that behalf found favour with the OC. However, neither the Hearing Committee nor the Competent Authority has dealt with the factual matrix and in particular, the explanation offered by the petitioners, including the fresh representation.11. Having said thus, we would have proceeded to issue directions to the respondents to allow the petitioner medical college to admit students in the MBBS course for the academic sessionHowever, in the present case, we find that the MCI, which is an expert body, on the day of assessment has noticed deficiency of 29.23% of Faculty, 28.26% of Residents and 34% of Bed Occupancy, each of which was beyond the permissible limits. It has also taken into account the factum of `Nil Normal Delivery and `NIL Caesarean Section on the day of the assessment. Further, there was only 1 patient in NICU/PICU and 2 in SICU on the day of assessment and none in ICCU and MICU. It has also noticed that the Central Library was partiallyand there was no separation of Students Reading Room (Outside) and Students Reading Room (Inside). Further, there were only 65 mounted specimens in the Anatomy Department. Indeed, the OC in its letter dated 14th May, 2017 has noted that the explanation submitted by the college regarding deficiencies of Faculty, Residents and Bed Occupancy was acceptable and, therefore, within the permissible norms. As has been noticed earlier, the Competent Authority in the impugned decision did not accept the explanation offered by the petitioner college but, as aforesaid, no analysis is found in the impugned decision as to why the same was rejected and, moreso, no tangible reason is forthcoming as to why it chose to deviate from the opinion expressed by the OC. At the same time, we also find that the OC has not dealt with the factum noticed by the Competent Authority in the impugned decision that the salary slips in respect of 27 staff members of the college did not bear details of bank account, PAN, PRAN etc. That presupposes that there was no clear identity about the staff employed by the college to the extent of 27 persons which is quite significant and raises grave suspicion. The communication sent by the OC also does not explain as to why the Bed Occupancy figure of 62%, as claimed by the college, should be accepted as against the physical verification done by the assessor on the given day which found only 34% Bed Occupancy. The OC has also not recorded any reason as to why the abysmal level of occupancy and indoor patients in ICCU/ MICU/PICU and SICU was irrelevant. Absence of indoor patients was a reflection on the performance of the hospital as a whole, which inevitably would deprive the students of the said college of proper experience and exposure. The deficiencies noticed by the MCI were significant and beyond the permissible limits and the Competent Authority has not dealt with the relevant material including the fresh representation submitted by the petitioners.Be that as it may, we shall revert to the grievance of the petitioners that inspection could not have been conducted onOctober, 2016, as the said dates were too close to a major national festival. This argument deserves to be rejected, bearing in mind the interpretation of Clause 8(3)(1)(d) of the Establishment of Medical College Regulations, 1999 in the case of Shri Venkateshwara University (supra), which postulates that the office of the Council shall ensure that such inspections are not carried out at least 2 days before and 2 days after important religious and festival holidays declared by the Central/State Govt. In the present case, the head count was carried out on the first day of inspection, on 26th October, 2016, as noted in the assessment report. Diwali was on 29th October, 2016, and thus, the inspection on 26th October, 2016 in no way offended Clause 8. Further, if the argument of the petitioners was to be accepted, it would result in a situation where the inspection report datedOctober, 2016 will have to be discarded as a whole. As the feasibility of grant of LOP for medical college is essentially founded on such assessment report, if that report is to be discarded then the petitioners cannot get any relief whatsoever, without fresh inspection. It is not necessary for us to dilate either on this aspect or any other contention raised by the petitioners as we are inclined to adopt the course predicated in the aforementioned two recent decisions of this Court.
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Madhavi Kerkar Vs. Assistant Commissioner of Income Tax | M.S. Sanklecha, J.1. At the request of the counsel, this Petition is being finally disposed of at the stage of admission.2. This Petition is under Article 226of the Constitution of India challenges the order dated 31st December 2015 passed by the Assistant Commissioner of Income Tax under section 179(1) of the Income Tax Act, 1961 (Act). The Assessment Years involved are Assessment Year 2006-07 to 2011-12.3. The only grievance of the Petitioner to the impugned order dated 31st December 2015 passed by the Assistant Commissioner of Income Tax is that the same is without jurisdiction. This according to the Petitioner is for the reason that as in terms of Section 179 (1) of the Act, the revenue is clothed with jurisdiction to proceed against a directors of a Private Limited Company to recover its dues only where the tax dues of the Private Limited Company cannot be recovered from it. In this case it is the case of the Petitioner that no effort was made to recover the tax dues from the defaulting Private Limited Company. Further reliance is also placed upon decision of this Court in Dinesh Tailor v. Tax Recovery Officer [2010] 326 ITR 85 /192 Taxman 152 .4. Mr. Vaidya, the learned counsel for the Petitioner invites our attention to the fact in its response to the notice under Section 179 (1) of the Act, it had raised the issue of jurisdiction. This by pointing out that no recovery measures were taken by the Revenue to recover the tax dues from the defaulting assessee i.e. to Private Limited Company. This submission it is pointed out has not been dealt with.5. As against the above, Mr. Pinto the learned counsel for the Respondent has pointed out that the impugned order dated 31st December 2015 in paragraph 2 thereof states that the recovery proceedings have been conducted by the department against assessee company but no recovery could be made. Therefore, it is submitted that jurisdiction under Section 179 of the Act has been exercised only after the department was unable to recover its tax dues from the delinquent Private Limited Company.6. This Court in the Dinesh Tailor (Supra) has while analysing Section 179 (1) of the Act has observed in paragraph 6 thereof as follows:-".... By sub-section (1) of Section 179, every person who is a director of a private company at any time during the relevant previous year is jointly and severally liable for the payment of tax due from the company, if such tax cannot be recovered. Though the liability of the directors of a private company for the payment of tax due from the company is made joint and several, the provision is attracted only where tax cannot be recovered form the company. It is only if the tax cannot be recovered from the company that every person who was a director of the company at any time during the relevant previous year becomes jointly and severally liable."(emphasis supplied.)7. Therefore, the Revenue would acquire/get jurisdiction to proceed against the directors of the delinquent Private Limited Company only after it has failed to recover its dues from the Private Limited Company, in which the Petitioner is a director. This is a condition precedent for the Assessing Officer to exercise jurisdiction under Section 179 (1) of the Act against the director of the delinquent company. In our view the jurisdictional requirement cannot be said to be satisfied by a mere statement in the impugned order that the recovery proceedings had been conducted against the defaulting Private Limited Company but it had failed to recover its dues. The above statement should be supported by mentioning briefly the types of efforts made and its results.8. Therefore appropriately, the notice to show cause issued under Section 179 (1) of the Act to the directors of the delinquent Private Limited Company must indicate albeit, briefly, the steps taken to recover the tax dues and its failure. In cases where the notice does not indicate the same and the Petitioner raises the objection of jurisdiction on the above account, then the Petitioner must be informed of the basis of the Assessing Officer exercising jurisdiction and the notice/directors response, if any, should be considered in the order passed under Section 179 (1) of the Act. In this case the show cause notice dated 16th December 2015 under Section 179 (1) of the Act does not indicate or give any particulars in respect of the steps taken by the Income Tax Department to recover the tax dues of the defaulting Private Limited Company and its failure. The Petitioner in response dated 29th December 2015 to the above notice, questioned the jurisdiction of the Revenue to issue the notice under Section 179 (1) of the Act and sought details of the steps taken by the department to recover tax dues from the defaulting Private Limited Company. In fact, in its reply dated 29th December 2015, the Petitioner pointed out that the defaulting Company had assets of over Rs. 100 Crores. Admittedly, in this case no particulars of steps taken to recover the dues from the defaulting Company were communicated to the Petitioner nor indicated in the impugned order. In this case we find that except a statement that recovery proceedings against the defaulting assessee had failed, no particulars of the same are indicated, so as to enable the Petitioner to object to it on facts. | 0[ds]7. Therefore, the Revenue would acquire/get jurisdiction to proceed against the directors of the delinquent Private Limited Company only after it has failed to recover its dues from the Private Limited Company, in which the Petitioner is a director. This is a condition precedent for the Assessing Officer to exercise jurisdiction under Section 179 (1) of the Act against the director of the delinquent company. In our view the jurisdictional requirement cannot be said to be satisfied by a mere statement in the impugned order that the recovery proceedings had been conducted against the defaulting Private Limited Company but it had failed to recover its dues. The above statement should be supported by mentioning briefly the types of efforts made and its results.8. Therefore appropriately, the notice to show cause issued under Section 179 (1) of the Act to the directors of the delinquent Private Limited Company must indicate albeit, briefly, the steps taken to recover the tax dues and its failure. In cases where the notice does not indicate the same and the Petitioner raises the objection of jurisdiction on the above account, then the Petitioner must be informed of the basis of the Assessing Officer exercising jurisdiction and the notice/directors response, if any, should be considered in the order passed under Section 179 (1) of the Act. In this case the show cause notice dated 16th December 2015 under Section 179 (1) of the Act does not indicate or give any particulars in respect of the steps taken by the Income Tax Department to recover the tax dues of the defaulting Private Limited Company and its failure. The Petitioner in response dated 29th December 2015 to the above notice, questioned the jurisdiction of the Revenue to issue the notice under Section 179 (1) of the Act and sought details of the steps taken by the department to recover tax dues from the defaulting Private Limited Company. In fact, in its reply dated 29th December 2015, the Petitioner pointed out that the defaulting Company had assets of over Rs. 100 Crores. Admittedly, in this case no particulars of steps taken to recover the dues from the defaulting Company were communicated to the Petitioner nor indicated in the impugned order. In this case we find that except a statement that recovery proceedings against the defaulting assessee had failed, no particulars of the same are indicated, so as to enable the Petitioner to object to it on facts. | 0 | 996 | 449 | ### 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:
M.S. Sanklecha, J.1. At the request of the counsel, this Petition is being finally disposed of at the stage of admission.2. This Petition is under Article 226of the Constitution of India challenges the order dated 31st December 2015 passed by the Assistant Commissioner of Income Tax under section 179(1) of the Income Tax Act, 1961 (Act). The Assessment Years involved are Assessment Year 2006-07 to 2011-12.3. The only grievance of the Petitioner to the impugned order dated 31st December 2015 passed by the Assistant Commissioner of Income Tax is that the same is without jurisdiction. This according to the Petitioner is for the reason that as in terms of Section 179 (1) of the Act, the revenue is clothed with jurisdiction to proceed against a directors of a Private Limited Company to recover its dues only where the tax dues of the Private Limited Company cannot be recovered from it. In this case it is the case of the Petitioner that no effort was made to recover the tax dues from the defaulting Private Limited Company. Further reliance is also placed upon decision of this Court in Dinesh Tailor v. Tax Recovery Officer [2010] 326 ITR 85 /192 Taxman 152 .4. Mr. Vaidya, the learned counsel for the Petitioner invites our attention to the fact in its response to the notice under Section 179 (1) of the Act, it had raised the issue of jurisdiction. This by pointing out that no recovery measures were taken by the Revenue to recover the tax dues from the defaulting assessee i.e. to Private Limited Company. This submission it is pointed out has not been dealt with.5. As against the above, Mr. Pinto the learned counsel for the Respondent has pointed out that the impugned order dated 31st December 2015 in paragraph 2 thereof states that the recovery proceedings have been conducted by the department against assessee company but no recovery could be made. Therefore, it is submitted that jurisdiction under Section 179 of the Act has been exercised only after the department was unable to recover its tax dues from the delinquent Private Limited Company.6. This Court in the Dinesh Tailor (Supra) has while analysing Section 179 (1) of the Act has observed in paragraph 6 thereof as follows:-".... By sub-section (1) of Section 179, every person who is a director of a private company at any time during the relevant previous year is jointly and severally liable for the payment of tax due from the company, if such tax cannot be recovered. Though the liability of the directors of a private company for the payment of tax due from the company is made joint and several, the provision is attracted only where tax cannot be recovered form the company. It is only if the tax cannot be recovered from the company that every person who was a director of the company at any time during the relevant previous year becomes jointly and severally liable."(emphasis supplied.)7. Therefore, the Revenue would acquire/get jurisdiction to proceed against the directors of the delinquent Private Limited Company only after it has failed to recover its dues from the Private Limited Company, in which the Petitioner is a director. This is a condition precedent for the Assessing Officer to exercise jurisdiction under Section 179 (1) of the Act against the director of the delinquent company. In our view the jurisdictional requirement cannot be said to be satisfied by a mere statement in the impugned order that the recovery proceedings had been conducted against the defaulting Private Limited Company but it had failed to recover its dues. The above statement should be supported by mentioning briefly the types of efforts made and its results.8. Therefore appropriately, the notice to show cause issued under Section 179 (1) of the Act to the directors of the delinquent Private Limited Company must indicate albeit, briefly, the steps taken to recover the tax dues and its failure. In cases where the notice does not indicate the same and the Petitioner raises the objection of jurisdiction on the above account, then the Petitioner must be informed of the basis of the Assessing Officer exercising jurisdiction and the notice/directors response, if any, should be considered in the order passed under Section 179 (1) of the Act. In this case the show cause notice dated 16th December 2015 under Section 179 (1) of the Act does not indicate or give any particulars in respect of the steps taken by the Income Tax Department to recover the tax dues of the defaulting Private Limited Company and its failure. The Petitioner in response dated 29th December 2015 to the above notice, questioned the jurisdiction of the Revenue to issue the notice under Section 179 (1) of the Act and sought details of the steps taken by the department to recover tax dues from the defaulting Private Limited Company. In fact, in its reply dated 29th December 2015, the Petitioner pointed out that the defaulting Company had assets of over Rs. 100 Crores. Admittedly, in this case no particulars of steps taken to recover the dues from the defaulting Company were communicated to the Petitioner nor indicated in the impugned order. In this case we find that except a statement that recovery proceedings against the defaulting assessee had failed, no particulars of the same are indicated, so as to enable the Petitioner to object to it on facts.
### Response:
0
### Explanation:
7. Therefore, the Revenue would acquire/get jurisdiction to proceed against the directors of the delinquent Private Limited Company only after it has failed to recover its dues from the Private Limited Company, in which the Petitioner is a director. This is a condition precedent for the Assessing Officer to exercise jurisdiction under Section 179 (1) of the Act against the director of the delinquent company. In our view the jurisdictional requirement cannot be said to be satisfied by a mere statement in the impugned order that the recovery proceedings had been conducted against the defaulting Private Limited Company but it had failed to recover its dues. The above statement should be supported by mentioning briefly the types of efforts made and its results.8. Therefore appropriately, the notice to show cause issued under Section 179 (1) of the Act to the directors of the delinquent Private Limited Company must indicate albeit, briefly, the steps taken to recover the tax dues and its failure. In cases where the notice does not indicate the same and the Petitioner raises the objection of jurisdiction on the above account, then the Petitioner must be informed of the basis of the Assessing Officer exercising jurisdiction and the notice/directors response, if any, should be considered in the order passed under Section 179 (1) of the Act. In this case the show cause notice dated 16th December 2015 under Section 179 (1) of the Act does not indicate or give any particulars in respect of the steps taken by the Income Tax Department to recover the tax dues of the defaulting Private Limited Company and its failure. The Petitioner in response dated 29th December 2015 to the above notice, questioned the jurisdiction of the Revenue to issue the notice under Section 179 (1) of the Act and sought details of the steps taken by the department to recover tax dues from the defaulting Private Limited Company. In fact, in its reply dated 29th December 2015, the Petitioner pointed out that the defaulting Company had assets of over Rs. 100 Crores. Admittedly, in this case no particulars of steps taken to recover the dues from the defaulting Company were communicated to the Petitioner nor indicated in the impugned order. In this case we find that except a statement that recovery proceedings against the defaulting assessee had failed, no particulars of the same are indicated, so as to enable the Petitioner to object to it on facts.
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ALEEMUDDIN Vs. STATE OF UTTAR PRADESH | Dr. Dhananjay A.Y. Chandrachud, J. 1. Leave granted. A petition was filed purportedly in public interest before the Allahabad High Court by the fifth respondent. In his petition, the fifth respondent sought a direction to the State Government to establish a new tehsil building for Tehsil Hasanpur at Village Karanpur Mafi in the District of Amroha in Uttar Pradesh. The relief which he sought was in the following terms : (i) Issue a writ, order or direction in the nature of mandamus directing the respondent No.2 to establish new building of Tehsil Hasanpur District Amroha at Village Karanpur Mafi, District Amroha; (ii) Issue a writ, order or direction in the nature of mandamus directing the respondent No.1 to decide the representation of the petitioner dated 16.12.2015; within the stipulated period. 2. The Division Bench was apprised of the fact that the Government had granted its financial sanction for the construction of a new Tehsil office. Accordingly, in terms of the submission made by the fifth respondent, the High Court disposed of the petition by directing the State to take all necessary steps for the construction of a new Tehsil office for Hasanpur, District Amroha at Village Karanpur Mafi. 3. The appellant filed a recall application (Numbered as Civil Miscellaneous Application No.259865 of 2017) which was rejected by the impugned order dated 13 October 2017. Challenging the order of the High Court declining to recall its previous order, these proceedings have been instituted. 4. The Special Leave Petition discloses that the Tehsil of Hasanpur is situated in District Amroha in the State of Uttar Pradesh. The proposal for the reconstruction of the Tehsil building of Tehsil Hasanpur was sanctioned. The appellant has averred that the PIL which was filed by the fifth respondent before the Allahabad High Court for getting the Tehsil building shifted to a new place, namely, Gata No.195 situated at Village Karanpur Mafi was to subserve his personal interest. It has been stated that, Gata No.196 situated at Village Karanpur Mafi belongs to the family of the fifth respondent, the original petitioner before the High Court. Hence he had a vested interest in seeking a direction of this nature before the High Court so that the value of his land would increase with a new tehsil building coming up in close proximity. 5. On 23 February 2018, notice was issued in these proceedings and an order of status quo was passed. 6. A counter affidavit has been filed on behalf of the State of Uttar Pradesh in which it has been submitted thus : The answering respondent respectfully submits that for reconstruction of building of tehsil Hasanpur vide order dated 18.09.2002 issued by commissioner division Moradabad the land Gata No.195/01M area 0.953 hectare situated in village Karanpur Mafi Tehsil Hasanpur was acquired by the State Government. The said land was registered as non productive land in the revenue records. 2. The answering respondent respectfully submits that on 14.04.2016 it was declared by the State Government that instead of transferring the Tehsil Building to any other place it shall be reconstructed in Tehsil Hasanpur at the place of old Tehsil building by demolishing the old building. 3. The answering respondent respectfully submits that during this period the Honble High Court of judicature at Allahabad passed an order dated 06.01.2017 in public interest litigation Writ No.157 of 2017 whereby the Honble High Court directed to respondent No.2 to take all necessary steps for construction of new Tehsil office Hasanpur District Amroha at Village Karanpur Mafi District Amroha. 4. The answering respondent respectfully submits that in compliance of the order dated 06.01.2017 passed by the Honble High Court Allahabad the then District Magistrate, Amroha vide its letter dated 06.03.2017 recommended the construction of new tehsil office at gram Karanpur Mafi keeping in view the larger public interest. 7. The submission of the State makes it patently clear that the State Government had taken a decision that instead of transferring the Tehsil building to a new location, it should be reconstructed at the place of the old Tehsil building. The implementation of this administrative decision was preempted by the directions which were issued in the PIL filed by the fifth respondent. 8. Learned counsel appearing on behalf of the fifth respondent has not disputed the factual position that the fifth respondent and/or the members of his family own a land adjacent to the place where the shifting of the Tehsil building was sought before the High Court. That being the position, we are of the view that the petition which was filed in the High Court by the fifth respondent was not a genuine petition in public interest but was intended to subserve the personal interest of the fifth respondent. 9. Where a Tehsil building should be constructed is not a matter for the High court to determine in the exercise of its writ jurisdiction under Article 226 of the Constitution of India. These are essentially administrative matters and a decision has to be taken by the executive. This is hence an illustration of how a public interest litigation (PIL) has been utilised to subserve a personal interest. The High Courts must remain vigilant to the attempts to misuse PILs to subserve extraneous and motivated purposes. Such efforts must be dealt with firmly. High prerogative writs cannot be utilised for such ends. 10. The High Court was manifestly in error in its original order dated 6 January 2017 in directing the State to construct a new Tehsil office for Hasanpur at a particular place. This is a matter which should have been left to the State Government to take an appropriate decision. | 1[ds]7. The submission of the State makes it patently clear that the State Government had taken a decision that instead of transferring the Tehsil building to a new location, it should be reconstructed at the place of the old Tehsil building. The implementation of this administrative decision was preempted by the directions which were issued in the PIL filed by the fifth respondent.That being the position, we are of the view that the petition which was filed in the High Court by the fifth respondent was not a genuine petition in public interest but was intended to subserve the personal interest of the fifth respondent.9. Where a Tehsil building should be constructed is not a matter for the High court to determine in the exercise of its writ jurisdiction under Article 226 of the Constitution of India. These are essentially administrative matters and a decision has to be taken by the executive. This is hence an illustration of how a public interest litigation (PIL) has been utilised to subserve a personal interest. The High Courts must remain vigilant to the attempts to misuse PILs to subserve extraneous and motivated purposes. Such efforts must be dealt with firmly. High prerogative writs cannot be utilised for such ends.10. The High Court was manifestly in error in its original order dated 6 January 2017 in directing the State to construct a new Tehsil office for Hasanpur at a particular place. This is a matter which should have been left to the State Government to take an appropriate decision. | 1 | 1,014 | 275 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
Dr. Dhananjay A.Y. Chandrachud, J. 1. Leave granted. A petition was filed purportedly in public interest before the Allahabad High Court by the fifth respondent. In his petition, the fifth respondent sought a direction to the State Government to establish a new tehsil building for Tehsil Hasanpur at Village Karanpur Mafi in the District of Amroha in Uttar Pradesh. The relief which he sought was in the following terms : (i) Issue a writ, order or direction in the nature of mandamus directing the respondent No.2 to establish new building of Tehsil Hasanpur District Amroha at Village Karanpur Mafi, District Amroha; (ii) Issue a writ, order or direction in the nature of mandamus directing the respondent No.1 to decide the representation of the petitioner dated 16.12.2015; within the stipulated period. 2. The Division Bench was apprised of the fact that the Government had granted its financial sanction for the construction of a new Tehsil office. Accordingly, in terms of the submission made by the fifth respondent, the High Court disposed of the petition by directing the State to take all necessary steps for the construction of a new Tehsil office for Hasanpur, District Amroha at Village Karanpur Mafi. 3. The appellant filed a recall application (Numbered as Civil Miscellaneous Application No.259865 of 2017) which was rejected by the impugned order dated 13 October 2017. Challenging the order of the High Court declining to recall its previous order, these proceedings have been instituted. 4. The Special Leave Petition discloses that the Tehsil of Hasanpur is situated in District Amroha in the State of Uttar Pradesh. The proposal for the reconstruction of the Tehsil building of Tehsil Hasanpur was sanctioned. The appellant has averred that the PIL which was filed by the fifth respondent before the Allahabad High Court for getting the Tehsil building shifted to a new place, namely, Gata No.195 situated at Village Karanpur Mafi was to subserve his personal interest. It has been stated that, Gata No.196 situated at Village Karanpur Mafi belongs to the family of the fifth respondent, the original petitioner before the High Court. Hence he had a vested interest in seeking a direction of this nature before the High Court so that the value of his land would increase with a new tehsil building coming up in close proximity. 5. On 23 February 2018, notice was issued in these proceedings and an order of status quo was passed. 6. A counter affidavit has been filed on behalf of the State of Uttar Pradesh in which it has been submitted thus : The answering respondent respectfully submits that for reconstruction of building of tehsil Hasanpur vide order dated 18.09.2002 issued by commissioner division Moradabad the land Gata No.195/01M area 0.953 hectare situated in village Karanpur Mafi Tehsil Hasanpur was acquired by the State Government. The said land was registered as non productive land in the revenue records. 2. The answering respondent respectfully submits that on 14.04.2016 it was declared by the State Government that instead of transferring the Tehsil Building to any other place it shall be reconstructed in Tehsil Hasanpur at the place of old Tehsil building by demolishing the old building. 3. The answering respondent respectfully submits that during this period the Honble High Court of judicature at Allahabad passed an order dated 06.01.2017 in public interest litigation Writ No.157 of 2017 whereby the Honble High Court directed to respondent No.2 to take all necessary steps for construction of new Tehsil office Hasanpur District Amroha at Village Karanpur Mafi District Amroha. 4. The answering respondent respectfully submits that in compliance of the order dated 06.01.2017 passed by the Honble High Court Allahabad the then District Magistrate, Amroha vide its letter dated 06.03.2017 recommended the construction of new tehsil office at gram Karanpur Mafi keeping in view the larger public interest. 7. The submission of the State makes it patently clear that the State Government had taken a decision that instead of transferring the Tehsil building to a new location, it should be reconstructed at the place of the old Tehsil building. The implementation of this administrative decision was preempted by the directions which were issued in the PIL filed by the fifth respondent. 8. Learned counsel appearing on behalf of the fifth respondent has not disputed the factual position that the fifth respondent and/or the members of his family own a land adjacent to the place where the shifting of the Tehsil building was sought before the High Court. That being the position, we are of the view that the petition which was filed in the High Court by the fifth respondent was not a genuine petition in public interest but was intended to subserve the personal interest of the fifth respondent. 9. Where a Tehsil building should be constructed is not a matter for the High court to determine in the exercise of its writ jurisdiction under Article 226 of the Constitution of India. These are essentially administrative matters and a decision has to be taken by the executive. This is hence an illustration of how a public interest litigation (PIL) has been utilised to subserve a personal interest. The High Courts must remain vigilant to the attempts to misuse PILs to subserve extraneous and motivated purposes. Such efforts must be dealt with firmly. High prerogative writs cannot be utilised for such ends. 10. The High Court was manifestly in error in its original order dated 6 January 2017 in directing the State to construct a new Tehsil office for Hasanpur at a particular place. This is a matter which should have been left to the State Government to take an appropriate decision.
### Response:
1
### Explanation:
7. The submission of the State makes it patently clear that the State Government had taken a decision that instead of transferring the Tehsil building to a new location, it should be reconstructed at the place of the old Tehsil building. The implementation of this administrative decision was preempted by the directions which were issued in the PIL filed by the fifth respondent.That being the position, we are of the view that the petition which was filed in the High Court by the fifth respondent was not a genuine petition in public interest but was intended to subserve the personal interest of the fifth respondent.9. Where a Tehsil building should be constructed is not a matter for the High court to determine in the exercise of its writ jurisdiction under Article 226 of the Constitution of India. These are essentially administrative matters and a decision has to be taken by the executive. This is hence an illustration of how a public interest litigation (PIL) has been utilised to subserve a personal interest. The High Courts must remain vigilant to the attempts to misuse PILs to subserve extraneous and motivated purposes. Such efforts must be dealt with firmly. High prerogative writs cannot be utilised for such ends.10. The High Court was manifestly in error in its original order dated 6 January 2017 in directing the State to construct a new Tehsil office for Hasanpur at a particular place. This is a matter which should have been left to the State Government to take an appropriate decision.
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Mathura Prasad Vs. Commissioner of Income Tax, Uttar Pradesh | that if the manager was appointed a managing director as representing the Hindu undivided family, the income received would be taxable as the income of the Hindu undivided family. It was observed at page 130" The articles of association of the company provided for the appoint ment as managing director of the very person who, as the karta of the family, had promoted the company. The acquisition of the business, the floatation of the company and the appointment of the managing director appear to us to be inseparably linked together. The joint family assets were used for acquiring the concern and for financing it and in lieu of all that detriment to the joint family properties the joint family got not only the shares standing in the names of two members of the family but also, as part and parcel of the same scheme, the managing directorship of the company when incorporated . . . . The finding in this case is that the promotion of the company and the taking over of the concern and the financing of it were all done with the help of the joint family funds and the said B. K. Rohatgi did not contribute anything out of his personal funds, if any. In the circumstances, we are clearly of opinion that the managing directors remuneration received by B. K. Rohatgi was, as between him and the Hindu undivided family, the income of the latter and should be assessed in its hands."7. In the present cases the Tribunal has found that Mathura Prasad had become a partner in the firm of Badri Prasad Jagan Prasad with the aid of the funds of the Hindu undivided family, and as a partner of the firm he was entrusted with the management of the Agarwal Iron Works and he earned the allowance which was claimed to be salary. The right to draw the allowance was, in the view of the Tribunal, made possible, by the use of family funds. The family funds enabled him to become a partner and to claim the allowance for the services rendered. There was in the view of the Tribunal an inseparable connection between the joint family funds and the allowance received. The right to draw the allowance therefore arose direcly from the joint family fundsIt may be recalled that in the second paragraph of clause 8 of the partnership agreement, though a monthly allowance of Rs. 1, 500 was named as the amount which Mathura Prasad was entitled to withdraw, the amount was liable to be reduced, if the profits earned did not justify the withdrawals, and Mathura Prasad was bound to refund the excess of the withdrawals over his appropriate share in the profits. Therefore, by the agreement it was intended that subject to a maximum of Rs. 1, 500 per month, Mathura Prasad will be entitled to make withdrawals commensurate with the profits of the firm. In the light of the principle laid down by this court in Kalu Babu Lal Chands case , it must be held that on the finding recorded by the Tribunal, the question, which it was claimed should be referred to the High Court, was concluded by the judgment of this court, and any further elaboration would have been academic. It cannot be denied and it was not disputed that the Tribunal is entitled to reject an application for reference, if the question of law, even though arising from the order, is academic or is concluded by a judgment of the highest court8. The decision in Piyare Lal Adishwar Lal v. Commissioner of Income-tax, on which reliance was sought to be placed, has no bearing on the question sought to be raised in this appeal. That was a case in which a member of a Hindu undivided family had furnished as security the properties of the family under an agreement whereby he was appointed treasurer of a bank. Remuneration received by the manager of the family for working as a treasurer was claimed to be income of the Hindu undivided family, because the properties of the family were furnished as security, but this court rejected that claim. We see no analogy between a case in which the property of the Hindu undivided family is sought to be encumbered for obtaining a benefit which is essentially personal to the manager, and a case in which with the aid of the family funds the manager of the family is able to enter into a partnership and to earn allowance, which he would not otherwise have been entitled to receiveThe second contention needs no elaboration. It was suggested that Mathura Prasad earned the allowance sought to be brought to tax because of the special aptitude he possessed for managing the Agarwal Iron Works, and the allowance claimed by him was not earned by the use of the joint family funds. But no such contention was raised before the High Court. We have been taken through the petition filed in the High Court under section 66(2) of the Act, and there is no averment to the effect that Mathura Prasad had any special aptitude for management of the Agarwal Iron Works, and what was agreed to be paid to him was as remuneration for performing services because of such aptitude. Again, the Tribunal found as a fact that the right to draw the allowance was made possible by the use of the joint family funds which enabled Mathura Prasad to become a partner and claim remuneration. The finding was based on evidence, and the High Court could not ignore that finding9. It is unnecessary, therefore, to consider whether remuneration earned by a person from a partnership in which he is inducted because he brings into the partnership his joint family funds, would be regarded as separate income of such person and not taxable in the hands of the Hindu undivided family, if he possesses some special aptitude for performing the duties with which he is entrusted by the partnership10. | 0[ds]It was conceded before the Tribunal that Mathura Prasad, the manager of the Hindu undivided family, had entered into a partnership as representing the Hindu undivided family of which be was the manager and for the benefit of the family. There is also no dispute that in the firm of Badri Prasad Jagan Prasad the assets of theIn the present cases the Tribunal has found that Mathura Prasad had become a partner in the firm of Badri Prasad Jagan Prasad with the aid of the funds of the Hindu undivided family, and as a partner of the firm he was entrusted with the management of the Agarwal Iron Works and he earned the allowance which was claimed to be salary. The right to draw the allowance was, in the view of the Tribunal, made possible, by the use of family funds. The family funds enabled him to become a partner and to claim the allowance for the services rendered. There was in the view of the Tribunal an inseparable connection between the joint family funds and the allowance received. The right to draw the allowance therefore arose direcly from the joint family fundsIt may be recalled that in the second paragraph of clause 8 of the partnership agreement, though a monthly allowance of Rs. 1, 500 was named as the amount which Mathura Prasad was entitled to withdraw, the amount was liable to be reduced, if the profits earned did not justify the withdrawals, and Mathura Prasad was bound to refund the excess of the withdrawals over his appropriate share in the profits. Therefore, by the agreement it was intended that subject to a maximum of Rs. 1, 500 per month, Mathura Prasad will be entitled to make withdrawals commensurate with the profits of the firm. In the light of the principle laid down by this court in Kalu Babu Lal Chands case , it must be held that on the finding recorded by the Tribunal, the question, which it was claimed should be referred to the High Court, was concluded by the judgment of this court, and any further elaboration would have been academic. It cannot be denied and it was not disputed that the Tribunal is entitled to reject an application for reference, if the question of law, even though arising from the order, is academic or is concluded by a judgment of the highest courtWe see no analogy between a case in which the property of the Hindu undivided family is sought to be encumbered for obtaining a benefit which is essentially personal to the manager, and a case in which with the aid of the family funds the manager of the family is able to enter into a partnership and to earn allowance, which he would not otherwise have been entitled toIt is unnecessary, therefore, to consider whether remuneration earned by a person from a partnership in which he is inducted because he brings into the partnership his joint family funds, would be regarded as separate income of such person and not taxable in the hands of the Hindu undivided family, if he possesses some special aptitude for performing the duties with which he is entrusted by the partnership | 0 | 2,504 | 575 | ### 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:
that if the manager was appointed a managing director as representing the Hindu undivided family, the income received would be taxable as the income of the Hindu undivided family. It was observed at page 130" The articles of association of the company provided for the appoint ment as managing director of the very person who, as the karta of the family, had promoted the company. The acquisition of the business, the floatation of the company and the appointment of the managing director appear to us to be inseparably linked together. The joint family assets were used for acquiring the concern and for financing it and in lieu of all that detriment to the joint family properties the joint family got not only the shares standing in the names of two members of the family but also, as part and parcel of the same scheme, the managing directorship of the company when incorporated . . . . The finding in this case is that the promotion of the company and the taking over of the concern and the financing of it were all done with the help of the joint family funds and the said B. K. Rohatgi did not contribute anything out of his personal funds, if any. In the circumstances, we are clearly of opinion that the managing directors remuneration received by B. K. Rohatgi was, as between him and the Hindu undivided family, the income of the latter and should be assessed in its hands."7. In the present cases the Tribunal has found that Mathura Prasad had become a partner in the firm of Badri Prasad Jagan Prasad with the aid of the funds of the Hindu undivided family, and as a partner of the firm he was entrusted with the management of the Agarwal Iron Works and he earned the allowance which was claimed to be salary. The right to draw the allowance was, in the view of the Tribunal, made possible, by the use of family funds. The family funds enabled him to become a partner and to claim the allowance for the services rendered. There was in the view of the Tribunal an inseparable connection between the joint family funds and the allowance received. The right to draw the allowance therefore arose direcly from the joint family fundsIt may be recalled that in the second paragraph of clause 8 of the partnership agreement, though a monthly allowance of Rs. 1, 500 was named as the amount which Mathura Prasad was entitled to withdraw, the amount was liable to be reduced, if the profits earned did not justify the withdrawals, and Mathura Prasad was bound to refund the excess of the withdrawals over his appropriate share in the profits. Therefore, by the agreement it was intended that subject to a maximum of Rs. 1, 500 per month, Mathura Prasad will be entitled to make withdrawals commensurate with the profits of the firm. In the light of the principle laid down by this court in Kalu Babu Lal Chands case , it must be held that on the finding recorded by the Tribunal, the question, which it was claimed should be referred to the High Court, was concluded by the judgment of this court, and any further elaboration would have been academic. It cannot be denied and it was not disputed that the Tribunal is entitled to reject an application for reference, if the question of law, even though arising from the order, is academic or is concluded by a judgment of the highest court8. The decision in Piyare Lal Adishwar Lal v. Commissioner of Income-tax, on which reliance was sought to be placed, has no bearing on the question sought to be raised in this appeal. That was a case in which a member of a Hindu undivided family had furnished as security the properties of the family under an agreement whereby he was appointed treasurer of a bank. Remuneration received by the manager of the family for working as a treasurer was claimed to be income of the Hindu undivided family, because the properties of the family were furnished as security, but this court rejected that claim. We see no analogy between a case in which the property of the Hindu undivided family is sought to be encumbered for obtaining a benefit which is essentially personal to the manager, and a case in which with the aid of the family funds the manager of the family is able to enter into a partnership and to earn allowance, which he would not otherwise have been entitled to receiveThe second contention needs no elaboration. It was suggested that Mathura Prasad earned the allowance sought to be brought to tax because of the special aptitude he possessed for managing the Agarwal Iron Works, and the allowance claimed by him was not earned by the use of the joint family funds. But no such contention was raised before the High Court. We have been taken through the petition filed in the High Court under section 66(2) of the Act, and there is no averment to the effect that Mathura Prasad had any special aptitude for management of the Agarwal Iron Works, and what was agreed to be paid to him was as remuneration for performing services because of such aptitude. Again, the Tribunal found as a fact that the right to draw the allowance was made possible by the use of the joint family funds which enabled Mathura Prasad to become a partner and claim remuneration. The finding was based on evidence, and the High Court could not ignore that finding9. It is unnecessary, therefore, to consider whether remuneration earned by a person from a partnership in which he is inducted because he brings into the partnership his joint family funds, would be regarded as separate income of such person and not taxable in the hands of the Hindu undivided family, if he possesses some special aptitude for performing the duties with which he is entrusted by the partnership10.
### Response:
0
### Explanation:
It was conceded before the Tribunal that Mathura Prasad, the manager of the Hindu undivided family, had entered into a partnership as representing the Hindu undivided family of which be was the manager and for the benefit of the family. There is also no dispute that in the firm of Badri Prasad Jagan Prasad the assets of theIn the present cases the Tribunal has found that Mathura Prasad had become a partner in the firm of Badri Prasad Jagan Prasad with the aid of the funds of the Hindu undivided family, and as a partner of the firm he was entrusted with the management of the Agarwal Iron Works and he earned the allowance which was claimed to be salary. The right to draw the allowance was, in the view of the Tribunal, made possible, by the use of family funds. The family funds enabled him to become a partner and to claim the allowance for the services rendered. There was in the view of the Tribunal an inseparable connection between the joint family funds and the allowance received. The right to draw the allowance therefore arose direcly from the joint family fundsIt may be recalled that in the second paragraph of clause 8 of the partnership agreement, though a monthly allowance of Rs. 1, 500 was named as the amount which Mathura Prasad was entitled to withdraw, the amount was liable to be reduced, if the profits earned did not justify the withdrawals, and Mathura Prasad was bound to refund the excess of the withdrawals over his appropriate share in the profits. Therefore, by the agreement it was intended that subject to a maximum of Rs. 1, 500 per month, Mathura Prasad will be entitled to make withdrawals commensurate with the profits of the firm. In the light of the principle laid down by this court in Kalu Babu Lal Chands case , it must be held that on the finding recorded by the Tribunal, the question, which it was claimed should be referred to the High Court, was concluded by the judgment of this court, and any further elaboration would have been academic. It cannot be denied and it was not disputed that the Tribunal is entitled to reject an application for reference, if the question of law, even though arising from the order, is academic or is concluded by a judgment of the highest courtWe see no analogy between a case in which the property of the Hindu undivided family is sought to be encumbered for obtaining a benefit which is essentially personal to the manager, and a case in which with the aid of the family funds the manager of the family is able to enter into a partnership and to earn allowance, which he would not otherwise have been entitled toIt is unnecessary, therefore, to consider whether remuneration earned by a person from a partnership in which he is inducted because he brings into the partnership his joint family funds, would be regarded as separate income of such person and not taxable in the hands of the Hindu undivided family, if he possesses some special aptitude for performing the duties with which he is entrusted by the partnership
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