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State of Uttar Pradesh Vs. Major Jitendra Kumar and Others | Tulzapurkar, J.1. The only question raised in this appeal pertains to adequacy of compensation and the points raised before us really dwell on appreciation of evidence on record and hence we are not inclined to interfere with the High Courts appreciation, especially as no breach of any principle of involved.2. About 80 bighas and 19 biswas of land in the town of Meerut was acquired for the benefit of the Meerut Cooperative Housing Society, Meerut under a Notification issued under Section 4 of the Land Acquisition Act on January 6, 1948 and the Notification under Section 6 followed on February 12, 1949. The Land Acquisition Officer made his award fixing the compensation at the rate of Re 1-0-6 per sq. yd. which was confirmed by the Civil Court in the land reference made to it. When the matter was carried in appeal to the High Court by the claimants, the High Court enhanced the rate of compensation from Re 1-0-6 to Rs 2-12-0 per sq. yd. It is this enhancement that is challenged before us.3. Principally the High Court relied upon a sale deed dated July 11, 1951 (Ex. 21) whereunder the Cooperative Society itself had purchased a part of this land at a price calculated at the rate of Rs 2-12-0 per sq. yd. for enhancing the rate of compensation. Other sale deeds at Exs. 1, 2, 3, 4, 5 and 6 under which the prices varying from Rs 5 per sq. yd. to Rs 2-12-0 per sq. yd. were also relied upon by the claimants but the High Court rejected the other sale deeds as affording proper guidance and accepted the rate of Rs 2-12-0 per sq. yd. at which land under Ex. 21 was purchased by the Society itself. for the State contended that the other sale deeds had been rejected on the ground that they pertained to comparatively smaller areas of land but the same reason was applicable to Ex. 21 also, for Ex. 21 also related to a smaller area. Secondly, counsel contended that Ex. 21 was of a date three years later than the relevant date of the Notification under Section 4. As against Ex. 21, on which the High Court has relied, counsel for the State urged before us that there were two compromise documents of the year 1949 Ex. A and Ex. B under which the Housing Society had purchased land from one Khan Bahadur Sheikh Wahiduddin and his tenants and the rate of Rs 1-0-6 per sq. yd. at which the land under these two documents had been purchased ought to have been accepted by the High Court. The High Court has pointed out that at the material time of the compromise deeds Khan Bahadur Sheikh Wahiduddin was heavily indebted to the tune of Re 1, 33, 000 and was financially embarrassed and, therefore, it left that it would be improper to rely upon these deep as affording proper guidance. It is true that the sale deed Ex. 21 upon which the High Court has relied is of a date three years later than the Notification under Section 4 but no material was produced before the Court to suggest that there was any fluctuation in the market rate at Meerut from 1948 onwards till 1951 and if so to what extent. In the absence of any material showing any fluctuation in the market rate the High Court thought it fit to rely upon Ex. 21 under which the Housing Society itself had purchased land in the neighbourhood of the land in dispute. On the whole we are not satisfied that any error was committed by the High Court in relying upon the sale deed Ex. 21. | 0[ds]It is true that the sale deed Ex. 21 upon which the High Court has relied is of a date three years later than the Notification under Section 4 but no material was produced before the Court to suggest that there was any fluctuation in the market rate at Meerut from 1948 onwards till 1951 and if so to what extent. In the absence of any material showing any fluctuation in the market rate the High Court thought it fit to rely upon Ex. 21 under which the Housing Society itself had purchased land in the neighbourhood of the land in dispute. On the whole we are not satisfied that any error was committed by the High Court in relying upon the sale deed Ex. 21. | 0 | 676 | 136 | ### 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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Tulzapurkar, J.1. The only question raised in this appeal pertains to adequacy of compensation and the points raised before us really dwell on appreciation of evidence on record and hence we are not inclined to interfere with the High Courts appreciation, especially as no breach of any principle of involved.2. About 80 bighas and 19 biswas of land in the town of Meerut was acquired for the benefit of the Meerut Cooperative Housing Society, Meerut under a Notification issued under Section 4 of the Land Acquisition Act on January 6, 1948 and the Notification under Section 6 followed on February 12, 1949. The Land Acquisition Officer made his award fixing the compensation at the rate of Re 1-0-6 per sq. yd. which was confirmed by the Civil Court in the land reference made to it. When the matter was carried in appeal to the High Court by the claimants, the High Court enhanced the rate of compensation from Re 1-0-6 to Rs 2-12-0 per sq. yd. It is this enhancement that is challenged before us.3. Principally the High Court relied upon a sale deed dated July 11, 1951 (Ex. 21) whereunder the Cooperative Society itself had purchased a part of this land at a price calculated at the rate of Rs 2-12-0 per sq. yd. for enhancing the rate of compensation. Other sale deeds at Exs. 1, 2, 3, 4, 5 and 6 under which the prices varying from Rs 5 per sq. yd. to Rs 2-12-0 per sq. yd. were also relied upon by the claimants but the High Court rejected the other sale deeds as affording proper guidance and accepted the rate of Rs 2-12-0 per sq. yd. at which land under Ex. 21 was purchased by the Society itself. for the State contended that the other sale deeds had been rejected on the ground that they pertained to comparatively smaller areas of land but the same reason was applicable to Ex. 21 also, for Ex. 21 also related to a smaller area. Secondly, counsel contended that Ex. 21 was of a date three years later than the relevant date of the Notification under Section 4. As against Ex. 21, on which the High Court has relied, counsel for the State urged before us that there were two compromise documents of the year 1949 Ex. A and Ex. B under which the Housing Society had purchased land from one Khan Bahadur Sheikh Wahiduddin and his tenants and the rate of Rs 1-0-6 per sq. yd. at which the land under these two documents had been purchased ought to have been accepted by the High Court. The High Court has pointed out that at the material time of the compromise deeds Khan Bahadur Sheikh Wahiduddin was heavily indebted to the tune of Re 1, 33, 000 and was financially embarrassed and, therefore, it left that it would be improper to rely upon these deep as affording proper guidance. It is true that the sale deed Ex. 21 upon which the High Court has relied is of a date three years later than the Notification under Section 4 but no material was produced before the Court to suggest that there was any fluctuation in the market rate at Meerut from 1948 onwards till 1951 and if so to what extent. In the absence of any material showing any fluctuation in the market rate the High Court thought it fit to rely upon Ex. 21 under which the Housing Society itself had purchased land in the neighbourhood of the land in dispute. On the whole we are not satisfied that any error was committed by the High Court in relying upon the sale deed Ex. 21.
### Response:
0
### Explanation:
It is true that the sale deed Ex. 21 upon which the High Court has relied is of a date three years later than the Notification under Section 4 but no material was produced before the Court to suggest that there was any fluctuation in the market rate at Meerut from 1948 onwards till 1951 and if so to what extent. In the absence of any material showing any fluctuation in the market rate the High Court thought it fit to rely upon Ex. 21 under which the Housing Society itself had purchased land in the neighbourhood of the land in dispute. On the whole we are not satisfied that any error was committed by the High Court in relying upon the sale deed Ex. 21.
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Shah Chhotalal Lallubhai & Others Vs. Charity Commissioner, Bombay & Others | as far as that intention can be carried out. If the method indicated by the founder cannot be carried out, the court will substitute another method cy pres, that is to say, as nearly as possible to the method specified by the founder. The application of to cy pres principle is explained in Storys Equity Jurisprudence, 3rd Edn. Article 1178, p. 494 thus:"The doctrine of cy pres as applied to charities was formerly pushed to a most extravagant length. But this sensible distinction now prevails that the Court will not decree the execution of the trust of a charity in a manner different from that intended, except so far as it is seen that the intention cannot be literally executed. In that case another mode will be adopted, consistent with the general intention, so as to execute it, although not in mode, yet in substance. If the mode should become by subsequent circumstances impossible, the general object is not to be defeated, if it can in any other way be attained."9. In the instant case, the overriding intention of the founder of the trust is that the sum of Rs. 75,000 set apart by him should be devoted to the objects mentioned in cl. (7) of the will, so that those objects may be continued and carried out for ever. His intention was that fixed sums should be expended annually for the 12 items of charity mentioned and reasonable sums should be expended annually in giving Swamivastal feasts to members of his caste. The sum spendable annually for the feast was necessarily of a fluctuating character. In accordance with the directions given in cl. (15) of the will, the obligations of the trust for the charities mentioned in items 2, 4, 5 and 6 of cl. (7) of the will have been fully discharged by donating Rs. 8,000 out of the corpus of the trust. The expenses of the annual Swamivastal feasts were met, and the payments to other charities were duly made out of the income of the balance funds every year up to Samvat 1999 corresponding to 1942-43 A.D., and the accumulations of the unexpended income up to that year represent a true surplus. In accordance with the intention of the founder of the trust, the surplus should be applied as nearly as possible to the original uses and purposes of the trust. In all the circumstances of the case, the surplus should be applied to increase the amounts spendable for the surviving objects of the trust. During the subsequent years up to Samvat year 2010 corresponding to 1953-54 A.D., the annual feasts could not be given due to rationing restrictions, but the expenses of the other charities were duly met. The savings of the income spendable during those years for the feasts should be applied suitably for carrying out the same object in future. The balance savings, if any, should be devoted towards increasing the amounts spendable for the other objects of the trust. The savings during Samvat year 2011 corresponding to 1954-55 A.D., were due to the fact that the annual feast was not given in spite of the absence of rationing restrictions. The savings for this year should be devoted towards the giving of the Swamivatsal feasts. The trustees cannot be allowed to defeat the objects of the trust by refusing to carry, them out. It is said that the giving of a Swamivatsal feast on the scale given in the past would now cost about Rs. 3,000. But if the income at the disposal of the trustees will not permit the spending of such a large amount, there is no reason why the trustees would not spend a smaller amount and give the feast to a smaller number of guests. In view of the enormous rise in prices since the creation of the trust, an increase of the amounts spendable for the charities would be in accordance with general intention of the founder. This is an additional reason for applying the unexpended income for the original objects of the trust instead of diverting them for other purposes. It is desirable that instead of spending the accumulations, the same should be invested and its income should be applied towards the original objects. In the light of all these considerations, we propose to give the directions set out in our order.10. The scheme framed by the Courts below is objectionable in several ways. In framing the Scheme, the Courts below erroneously disregarded one of the main objects of the trust, viz., the giving of the annual Swamivatsal feast on the ground that it is not expedient, desirable, necessary or proper in the public interest to carry out this object. The scheme disregards the basic principle that the trust funds should be applied for effectuating the intention of the founder of the trust as far as possible. The direction for payment of one half of the accumulations to the Sad Vidya Mandal on the ground that its object is analogous to the object of the Jain Gyan Fund mentioned in item 8 of, Cl.10 of the will is objectionable on the ground that the freeship are not restricted to the Jains and also on the ground that subject to giving the freeships the donee is entitled to spend the corpus for other purposes. Moreover the purposes of the Sad Vidya Mandal and its freeships are not analogous to the purposes of the Jain Shastras. The which is religious fund for imparting knowledge of Jain religion and Jain Shastras. The direction for payment of one half of the accumulated amount to the Sevashram Hospital is objectionable on the ground that medical treatment of the poor and deserving is not one of the objects specifically mentioned in cl. 7 of the will. Both these directions are also objectionable on the ground that they do not take into account the original objects of the trust. For all these reasons, the directions given by the Courts below must be set aside. | 1[ds]7. In this view of the matter, it is not necessary to decide whether the trust is a trust for religious purposes, and if so, whether, having regard to Ratilal Panachands case, 1954 SCR 1055 : (AIR 1954 SC 388 ), its income or surplus balance spendable for the purposes of the trust can be diverted for other purposes, thought the original object of the trust can still be carried out. The question whether or not objects mentioned in cl. (7) of the will are religious objects is not raised in the pleadings. No issues were framed and no evidence was led on this point by either party.What are religious purposes must be decided according to the tenets and religious beliefs of the Murti Pujak Swetambara sect of Jains, to which the testator belonged.It is difficult to decide the point in the absence of relevant pleadings, issues and evidence. The District Judge held that the Swamivatsal feast and many other objects are religious objects. The High Court too lightly brushed aside this finding. Chapter IX of the Report of the Hindu Religious Endowments Commissioncontains an interesting discussion of Jain endowments. Paragraphs 7 to 11 of Chap. IX of the Report refer to seven types of religions funds specifically recognised by the Jain scriptures concerning (1) Jeena Bimba, (2) Jeena Chaitya, (3) Gyan Fund. (4) Sadhu, (5) Sadhvi, (6) Shravak and (7) Shravika. The Jains recognise numerous other endowments or funds for general or specific purposes, the corpus or interest of which is to be utilised as per the donors intentions. The question whether the several objects of the trust including the giving of a Swamivatsal feast Are religious in their character must be left open for future decision.In the instant case, the overriding intention of the founder of the trust is that the sum of Rs. 75,000 set apart by him should be devoted to the objects mentioned in cl. (7) of the will, so that those objects may be continued and carried out for ever. His intention was that fixed sums should be expended annually for the 12 items of charity mentioned and reasonable sums should be expended annually in giving Swamivastal feasts to members of his caste. The sum spendable annually for the feast was necessarily of a fluctuating character. In accordance with the directions given in cl. (15) of the will, the obligations of the trust for the charities mentioned in items 2, 4, 5 and 6 of cl. (7) of the will have been fully discharged by donating Rs. 8,000 out of the corpus of the trust. The expenses of the annual Swamivastal feasts were met, and the payments to other charities were duly made out of the income of the balance funds every year up to Samvat 1999 corresponding to 1942-43 A.D., and the accumulations of the unexpended income up to that year represent a true surplus. In accordance with the intention of the founder of the trust, the surplus should be applied as nearly as possible to the original uses and purposes of the trust. In all the circumstances of the case, the surplus should be applied to increase the amounts spendable for the surviving objects of the trust. During the subsequent years up to Samvat year 2010 corresponding to 1953-54 A.D., the annual feasts could not be given due to rationing restrictions, but the expenses of the other charities were duly met. The savings of the income spendable during those years for the feasts should be applied suitably for carrying out the same object in future. The balance savings, if any, should be devoted towards increasing the amounts spendable for the other objects of the trust. The savings during Samvat year 2011 corresponding to 1954-55 A.D., were due to the fact that the annual feast was not given in spite of the absence of rationing restrictions. The savings for this year should be devoted towards the giving of the Swamivatsal feasts. The trustees cannot be allowed to defeat the objects of the trust by refusing to carry, them out. It is said that the giving of a Swamivatsal feast on the scale given in the past would now cost about Rs. 3,000. But if the income at the disposal of the trustees will not permit the spending of such a large amount, there is no reason why the trustees would not spend a smaller amount and give the feast to a smaller number of guests. In view of the enormous rise in prices since the creation of the trust, an increase of the amounts spendable for the charities would be in accordance with general intention of the founder. This is an additional reason for applying the unexpended income for the original objects of the trust instead of diverting them for other purposes. It is desirable that instead of spending the accumulations, the same should be invested and its income should be applied towards the original objects. In the light of all these considerations, we propose to give the directions set out in our order.10. The scheme framed by the Courts below is objectionable in several ways. In framing the Scheme, the Courts below erroneously disregarded one of the main objects of the trust, viz., the giving of the annual Swamivatsal feast on the ground that it is not expedient, desirable, necessary or proper in the public interest to carry out this object. The scheme disregards the basic principle that the trust funds should be applied for effectuating the intention of the founder of the trust as far as possible. The direction for payment of one half of the accumulations to the Sad Vidya Mandal on the ground that its object is analogous to the object of the Jain Gyan Fund mentioned in item 8 of, Cl.10 of the will is objectionable on the ground that the freeship are not restricted to the Jains and also on the ground that subject to giving the freeships the donee is entitled to spend the corpus for other purposes. Moreover the purposes of the Sad Vidya Mandal and its freeships are not analogous to the purposes of the Jain Shastras. The which is religious fund for imparting knowledge of Jain religion and Jain Shastras. The direction for payment of one half of the accumulated amount to the Sevashram Hospital is objectionable on the ground that medical treatment of the poor and deserving is not one of the objects specifically mentioned in cl. 7 of the will. Both these directions are also objectionable on the ground that they do not take into account the original objects of the trust. | 1 | 4,805 | 1,214 | ### 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:
as far as that intention can be carried out. If the method indicated by the founder cannot be carried out, the court will substitute another method cy pres, that is to say, as nearly as possible to the method specified by the founder. The application of to cy pres principle is explained in Storys Equity Jurisprudence, 3rd Edn. Article 1178, p. 494 thus:"The doctrine of cy pres as applied to charities was formerly pushed to a most extravagant length. But this sensible distinction now prevails that the Court will not decree the execution of the trust of a charity in a manner different from that intended, except so far as it is seen that the intention cannot be literally executed. In that case another mode will be adopted, consistent with the general intention, so as to execute it, although not in mode, yet in substance. If the mode should become by subsequent circumstances impossible, the general object is not to be defeated, if it can in any other way be attained."9. In the instant case, the overriding intention of the founder of the trust is that the sum of Rs. 75,000 set apart by him should be devoted to the objects mentioned in cl. (7) of the will, so that those objects may be continued and carried out for ever. His intention was that fixed sums should be expended annually for the 12 items of charity mentioned and reasonable sums should be expended annually in giving Swamivastal feasts to members of his caste. The sum spendable annually for the feast was necessarily of a fluctuating character. In accordance with the directions given in cl. (15) of the will, the obligations of the trust for the charities mentioned in items 2, 4, 5 and 6 of cl. (7) of the will have been fully discharged by donating Rs. 8,000 out of the corpus of the trust. The expenses of the annual Swamivastal feasts were met, and the payments to other charities were duly made out of the income of the balance funds every year up to Samvat 1999 corresponding to 1942-43 A.D., and the accumulations of the unexpended income up to that year represent a true surplus. In accordance with the intention of the founder of the trust, the surplus should be applied as nearly as possible to the original uses and purposes of the trust. In all the circumstances of the case, the surplus should be applied to increase the amounts spendable for the surviving objects of the trust. During the subsequent years up to Samvat year 2010 corresponding to 1953-54 A.D., the annual feasts could not be given due to rationing restrictions, but the expenses of the other charities were duly met. The savings of the income spendable during those years for the feasts should be applied suitably for carrying out the same object in future. The balance savings, if any, should be devoted towards increasing the amounts spendable for the other objects of the trust. The savings during Samvat year 2011 corresponding to 1954-55 A.D., were due to the fact that the annual feast was not given in spite of the absence of rationing restrictions. The savings for this year should be devoted towards the giving of the Swamivatsal feasts. The trustees cannot be allowed to defeat the objects of the trust by refusing to carry, them out. It is said that the giving of a Swamivatsal feast on the scale given in the past would now cost about Rs. 3,000. But if the income at the disposal of the trustees will not permit the spending of such a large amount, there is no reason why the trustees would not spend a smaller amount and give the feast to a smaller number of guests. In view of the enormous rise in prices since the creation of the trust, an increase of the amounts spendable for the charities would be in accordance with general intention of the founder. This is an additional reason for applying the unexpended income for the original objects of the trust instead of diverting them for other purposes. It is desirable that instead of spending the accumulations, the same should be invested and its income should be applied towards the original objects. In the light of all these considerations, we propose to give the directions set out in our order.10. The scheme framed by the Courts below is objectionable in several ways. In framing the Scheme, the Courts below erroneously disregarded one of the main objects of the trust, viz., the giving of the annual Swamivatsal feast on the ground that it is not expedient, desirable, necessary or proper in the public interest to carry out this object. The scheme disregards the basic principle that the trust funds should be applied for effectuating the intention of the founder of the trust as far as possible. The direction for payment of one half of the accumulations to the Sad Vidya Mandal on the ground that its object is analogous to the object of the Jain Gyan Fund mentioned in item 8 of, Cl.10 of the will is objectionable on the ground that the freeship are not restricted to the Jains and also on the ground that subject to giving the freeships the donee is entitled to spend the corpus for other purposes. Moreover the purposes of the Sad Vidya Mandal and its freeships are not analogous to the purposes of the Jain Shastras. The which is religious fund for imparting knowledge of Jain religion and Jain Shastras. The direction for payment of one half of the accumulated amount to the Sevashram Hospital is objectionable on the ground that medical treatment of the poor and deserving is not one of the objects specifically mentioned in cl. 7 of the will. Both these directions are also objectionable on the ground that they do not take into account the original objects of the trust. For all these reasons, the directions given by the Courts below must be set aside.
### Response:
1
### Explanation:
led on this point by either party.What are religious purposes must be decided according to the tenets and religious beliefs of the Murti Pujak Swetambara sect of Jains, to which the testator belonged.It is difficult to decide the point in the absence of relevant pleadings, issues and evidence. The District Judge held that the Swamivatsal feast and many other objects are religious objects. The High Court too lightly brushed aside this finding. Chapter IX of the Report of the Hindu Religious Endowments Commissioncontains an interesting discussion of Jain endowments. Paragraphs 7 to 11 of Chap. IX of the Report refer to seven types of religions funds specifically recognised by the Jain scriptures concerning (1) Jeena Bimba, (2) Jeena Chaitya, (3) Gyan Fund. (4) Sadhu, (5) Sadhvi, (6) Shravak and (7) Shravika. The Jains recognise numerous other endowments or funds for general or specific purposes, the corpus or interest of which is to be utilised as per the donors intentions. The question whether the several objects of the trust including the giving of a Swamivatsal feast Are religious in their character must be left open for future decision.In the instant case, the overriding intention of the founder of the trust is that the sum of Rs. 75,000 set apart by him should be devoted to the objects mentioned in cl. (7) of the will, so that those objects may be continued and carried out for ever. His intention was that fixed sums should be expended annually for the 12 items of charity mentioned and reasonable sums should be expended annually in giving Swamivastal feasts to members of his caste. The sum spendable annually for the feast was necessarily of a fluctuating character. In accordance with the directions given in cl. (15) of the will, the obligations of the trust for the charities mentioned in items 2, 4, 5 and 6 of cl. (7) of the will have been fully discharged by donating Rs. 8,000 out of the corpus of the trust. The expenses of the annual Swamivastal feasts were met, and the payments to other charities were duly made out of the income of the balance funds every year up to Samvat 1999 corresponding to 1942-43 A.D., and the accumulations of the unexpended income up to that year represent a true surplus. In accordance with the intention of the founder of the trust, the surplus should be applied as nearly as possible to the original uses and purposes of the trust. In all the circumstances of the case, the surplus should be applied to increase the amounts spendable for the surviving objects of the trust. During the subsequent years up to Samvat year 2010 corresponding to 1953-54 A.D., the annual feasts could not be given due to rationing restrictions, but the expenses of the other charities were duly met. The savings of the income spendable during those years for the feasts should be applied suitably for carrying out the same object in future. The balance savings, if any, should be devoted towards increasing the amounts spendable for the other objects of the trust. The savings during Samvat year 2011 corresponding to 1954-55 A.D., were due to the fact that the annual feast was not given in spite of the absence of rationing restrictions. The savings for this year should be devoted towards the giving of the Swamivatsal feasts. The trustees cannot be allowed to defeat the objects of the trust by refusing to carry, them out. It is said that the giving of a Swamivatsal feast on the scale given in the past would now cost about Rs. 3,000. But if the income at the disposal of the trustees will not permit the spending of such a large amount, there is no reason why the trustees would not spend a smaller amount and give the feast to a smaller number of guests. In view of the enormous rise in prices since the creation of the trust, an increase of the amounts spendable for the charities would be in accordance with general intention of the founder. This is an additional reason for applying the unexpended income for the original objects of the trust instead of diverting them for other purposes. It is desirable that instead of spending the accumulations, the same should be invested and its income should be applied towards the original objects. In the light of all these considerations, we propose to give the directions set out in our order.10. The scheme framed by the Courts below is objectionable in several ways. In framing the Scheme, the Courts below erroneously disregarded one of the main objects of the trust, viz., the giving of the annual Swamivatsal feast on the ground that it is not expedient, desirable, necessary or proper in the public interest to carry out this object. The scheme disregards the basic principle that the trust funds should be applied for effectuating the intention of the founder of the trust as far as possible. The direction for payment of one half of the accumulations to the Sad Vidya Mandal on the ground that its object is analogous to the object of the Jain Gyan Fund mentioned in item 8 of, Cl.10 of the will is objectionable on the ground that the freeship are not restricted to the Jains and also on the ground that subject to giving the freeships the donee is entitled to spend the corpus for other purposes. Moreover the purposes of the Sad Vidya Mandal and its freeships are not analogous to the purposes of the Jain Shastras. The which is religious fund for imparting knowledge of Jain religion and Jain Shastras. The direction for payment of one half of the accumulated amount to the Sevashram Hospital is objectionable on the ground that medical treatment of the poor and deserving is not one of the objects specifically mentioned in cl. 7 of the will. Both these directions are also objectionable on the ground that they do not take into account the original objects of the trust.
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M/S. Produce Exchange Corpn. Ltd Vs. Commissioner Of Excise, Assam & Ors | privilege of manufacturing or of supplying to licensed vendors or of manufacturing and supplying to licensed vendors any country liquor or intoxicating drug within any specified local area. In the absence of any rule, the Government could have exercised that power in the manner most advantageous to the State so long as it did not infringe any of the constitutional guarantees. In understanding the nature of the power under Rule 93, we have to bear in mind the fact that rules were framed by the Government itself in the exercise of the powers conferred on it under Section 36 of the Act. Having said that much we may now proceed to consider the rules relating to contract for supplying the country spirit to warehouses. The rules relevant for our present purpose are Rules 91 to 93. We may now read those rules."91. Tenders for a contract for the exclusive privilege of supplying country spirit from a distillery to licensed vendors within a specified area for a specified period will be called for by the Excise Commissioner 18 months before the date from which the contract will take effect. Provided that the Provincial Government may, if circumstances so require, direct that tenders be called for by the Excise Commissioner within a lesser period than 18 months specified above. 92. Any person tendering for a license specified in Rule 91, shall apply in writing to the Excise Commissioner furnishing the following particulars: (1) The name or names of the person or persons applying if a firm, the name of every partner of the firm, and, if a company, the registered name thereof: (2) The applicant (if he is other than the existing contractor) shall also state in his tender and he is willing to take over under the provisions of Rule 102 of these rules the existing vats and other permanent apparatuses in the warehouses within the area to be supplied and shall furnish a list of these in his application. 93. The Excise Commissioner shall forward the tenders with his recommendations to the Provincial Government which reserves to itself the right to accept any tender. If none of the tenders are accepted by the Provincial Government on the ground that none of them, on due consideration appear to be satisfactory, they reserve also the right to grant the licence to any person who has not tendered and is considered suitable in all respects: Provided that when a license is cancelled or suspended during the currency of the license, the Provincial Government further reserves the right to grant the license to any one without calling for tenders". 6. It was urged on behalf of the appellant that the impugned order cannot be sustained firstly because the Government has nowhere stated that the tenders made were not acceptable to it "on the ground that none of them on due consideration, appear to be satisfactory". Secondly under Rule 93, they could not have entered into negotiations with any of the tenderers. Neither of these contentions are sound. 7. From the facts stated earlier, it is clear that the Government considered the tenders by it to be unsatisfactory and hence unacceptable. That is clear from its letter to the tenderers asking them to reduce the price quoted. It is true that ultimately it granted the contract to the 5th respondent at the very rate quoted by the appellant. In the very notification calling for tenders, it had been mentioned that preference will be given to the manufacturers. Prima facie there is nothing wrong in giving preference to the manufacturers. It must be borne in mind that the Government is the purchaser. On good grounds it can prefer one seller to another. It is true that being a Government, it cannot show any undue favour to any party, but for good reasons it may prefer one party to another. There was justification in preferring a manufacturer to others. Evidently the idea was that there should be reasonable guarantee in the matter of supply of country liquor. It was not said that this preference was given for any collateral reason. The Government does not require any special power for preferring one class of sellers to others so long as the classification made by it is based on rational grounds. It is true that no rule confers on the Government power to prefer one set of suppliers to others. But what is important is that no rule prohibits it. In the absence of any such rule, S.19 of the Act confers on the Government such a power. 8. It was next said that R.93 prohibits the Government to negotiate with any of the tenderers. We are unable to read that rule in that way. That rule does not prohibit any negotiations with the tenderers. But on the other hand, it authorises the Government to negotiate with persons who have not tendered. Here again in the absence of any rule prohibiting the Government to negotiate with the tenderers, the Government can fall back on its powers under S.19. We are unable to find out any rational basis for prohibiting the Government from negotiating with the tenderers. All that the Government is interested is to get country spirit at the cheapest possible rates and to have regular supplies. For achieving those purposes, it can negotiate either with the tenderers or with others. 9. It was faintly argued that before concluding its contract with the 5th respondent, the Government should have given opportunity to the other tenderers to reduce the rates quoted by them. This contention is clearly a misunderstanding of the principles of natural justice. No one has a fundamental right to get a Government contract. The appellant was not deprived of any of its rights. It was given an adequate opportunity to submit its tender. Its offer was considered. The same was not rejected on irrational grounds. In matters like the one before us, no question of hearing the interested parties arises. All that is required is fair play. | 1[ds]7. From the facts stated earlier, it is clear that the Government considered the tenders by it to be unsatisfactory and hence unacceptable. That is clear from its letter to the tenderers asking them to reduce the price quoted. It is true that ultimately it granted the contract to the 5th respondent at the very rate quoted by the appellant. In the very notification calling for tenders, it had been mentioned that preference will be given to the manufacturers. Prima facie there is nothing wrong in giving preference to the manufacturers. It must be borne in mind that the Government is the purchaser. On good grounds it can prefer one seller to another. It is true that being a Government, it cannot show any undue favour to any party, but for good reasons it may prefer one party to another. There was justification in preferring a manufacturer to others. Evidently the idea was that there should be reasonable guarantee in the matter of supply of country liquor. It was not said that this preference was given for any collateral reason. The Government does not require any special power for preferring one class of sellers to others so long as the classification made by it is based on rational grounds. It is true that no rule confers on the Government power to prefer one set of suppliers to others. But what is important is that no rule prohibits it. In the absence of any such rule, S.19 of the Act confers on the Government such a power8. It was next said that R.93 prohibits the Government to negotiate with any of the tenderers. We are unable to read that rule in that way. That rule does not prohibit any negotiations with the tenderers. But on the other hand, it authorises the Government to negotiate with persons who have not tendered. Here again in the absence of any rule prohibiting the Government to negotiate with the tenderers, the Government can fall back on its powers under S.19. We are unable to find out any rational basis for prohibiting the Government from negotiating with the tenderers. All that the Government is interested is to get country spirit at the cheapest possible rates and to have regular supplies. For achieving those purposes, it can negotiate either with the tenderers or with others9. It was faintly argued that before concluding its contract with the 5th respondent, the Government should have given opportunity to the other tenderers to reduce the rates quoted by them. This contention is clearly a misunderstanding of the principles of natural justice. No one has a fundamental right to get a Government contract. The appellant was not deprived of any of its rights. It was given an adequate opportunity to submit its tender. Its offer was considered. The same was not rejected on irrational grounds. In matters like the one before us, no question of hearing the interested parties arises. All that is required is fair play. | 1 | 1,867 | 543 | ### Instruction:
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privilege of manufacturing or of supplying to licensed vendors or of manufacturing and supplying to licensed vendors any country liquor or intoxicating drug within any specified local area. In the absence of any rule, the Government could have exercised that power in the manner most advantageous to the State so long as it did not infringe any of the constitutional guarantees. In understanding the nature of the power under Rule 93, we have to bear in mind the fact that rules were framed by the Government itself in the exercise of the powers conferred on it under Section 36 of the Act. Having said that much we may now proceed to consider the rules relating to contract for supplying the country spirit to warehouses. The rules relevant for our present purpose are Rules 91 to 93. We may now read those rules."91. Tenders for a contract for the exclusive privilege of supplying country spirit from a distillery to licensed vendors within a specified area for a specified period will be called for by the Excise Commissioner 18 months before the date from which the contract will take effect. Provided that the Provincial Government may, if circumstances so require, direct that tenders be called for by the Excise Commissioner within a lesser period than 18 months specified above. 92. Any person tendering for a license specified in Rule 91, shall apply in writing to the Excise Commissioner furnishing the following particulars: (1) The name or names of the person or persons applying if a firm, the name of every partner of the firm, and, if a company, the registered name thereof: (2) The applicant (if he is other than the existing contractor) shall also state in his tender and he is willing to take over under the provisions of Rule 102 of these rules the existing vats and other permanent apparatuses in the warehouses within the area to be supplied and shall furnish a list of these in his application. 93. The Excise Commissioner shall forward the tenders with his recommendations to the Provincial Government which reserves to itself the right to accept any tender. If none of the tenders are accepted by the Provincial Government on the ground that none of them, on due consideration appear to be satisfactory, they reserve also the right to grant the licence to any person who has not tendered and is considered suitable in all respects: Provided that when a license is cancelled or suspended during the currency of the license, the Provincial Government further reserves the right to grant the license to any one without calling for tenders". 6. It was urged on behalf of the appellant that the impugned order cannot be sustained firstly because the Government has nowhere stated that the tenders made were not acceptable to it "on the ground that none of them on due consideration, appear to be satisfactory". Secondly under Rule 93, they could not have entered into negotiations with any of the tenderers. Neither of these contentions are sound. 7. From the facts stated earlier, it is clear that the Government considered the tenders by it to be unsatisfactory and hence unacceptable. That is clear from its letter to the tenderers asking them to reduce the price quoted. It is true that ultimately it granted the contract to the 5th respondent at the very rate quoted by the appellant. In the very notification calling for tenders, it had been mentioned that preference will be given to the manufacturers. Prima facie there is nothing wrong in giving preference to the manufacturers. It must be borne in mind that the Government is the purchaser. On good grounds it can prefer one seller to another. It is true that being a Government, it cannot show any undue favour to any party, but for good reasons it may prefer one party to another. There was justification in preferring a manufacturer to others. Evidently the idea was that there should be reasonable guarantee in the matter of supply of country liquor. It was not said that this preference was given for any collateral reason. The Government does not require any special power for preferring one class of sellers to others so long as the classification made by it is based on rational grounds. It is true that no rule confers on the Government power to prefer one set of suppliers to others. But what is important is that no rule prohibits it. In the absence of any such rule, S.19 of the Act confers on the Government such a power. 8. It was next said that R.93 prohibits the Government to negotiate with any of the tenderers. We are unable to read that rule in that way. That rule does not prohibit any negotiations with the tenderers. But on the other hand, it authorises the Government to negotiate with persons who have not tendered. Here again in the absence of any rule prohibiting the Government to negotiate with the tenderers, the Government can fall back on its powers under S.19. We are unable to find out any rational basis for prohibiting the Government from negotiating with the tenderers. All that the Government is interested is to get country spirit at the cheapest possible rates and to have regular supplies. For achieving those purposes, it can negotiate either with the tenderers or with others. 9. It was faintly argued that before concluding its contract with the 5th respondent, the Government should have given opportunity to the other tenderers to reduce the rates quoted by them. This contention is clearly a misunderstanding of the principles of natural justice. No one has a fundamental right to get a Government contract. The appellant was not deprived of any of its rights. It was given an adequate opportunity to submit its tender. Its offer was considered. The same was not rejected on irrational grounds. In matters like the one before us, no question of hearing the interested parties arises. All that is required is fair play.
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7. From the facts stated earlier, it is clear that the Government considered the tenders by it to be unsatisfactory and hence unacceptable. That is clear from its letter to the tenderers asking them to reduce the price quoted. It is true that ultimately it granted the contract to the 5th respondent at the very rate quoted by the appellant. In the very notification calling for tenders, it had been mentioned that preference will be given to the manufacturers. Prima facie there is nothing wrong in giving preference to the manufacturers. It must be borne in mind that the Government is the purchaser. On good grounds it can prefer one seller to another. It is true that being a Government, it cannot show any undue favour to any party, but for good reasons it may prefer one party to another. There was justification in preferring a manufacturer to others. Evidently the idea was that there should be reasonable guarantee in the matter of supply of country liquor. It was not said that this preference was given for any collateral reason. The Government does not require any special power for preferring one class of sellers to others so long as the classification made by it is based on rational grounds. It is true that no rule confers on the Government power to prefer one set of suppliers to others. But what is important is that no rule prohibits it. In the absence of any such rule, S.19 of the Act confers on the Government such a power8. It was next said that R.93 prohibits the Government to negotiate with any of the tenderers. We are unable to read that rule in that way. That rule does not prohibit any negotiations with the tenderers. But on the other hand, it authorises the Government to negotiate with persons who have not tendered. Here again in the absence of any rule prohibiting the Government to negotiate with the tenderers, the Government can fall back on its powers under S.19. We are unable to find out any rational basis for prohibiting the Government from negotiating with the tenderers. All that the Government is interested is to get country spirit at the cheapest possible rates and to have regular supplies. For achieving those purposes, it can negotiate either with the tenderers or with others9. It was faintly argued that before concluding its contract with the 5th respondent, the Government should have given opportunity to the other tenderers to reduce the rates quoted by them. This contention is clearly a misunderstanding of the principles of natural justice. No one has a fundamental right to get a Government contract. The appellant was not deprived of any of its rights. It was given an adequate opportunity to submit its tender. Its offer was considered. The same was not rejected on irrational grounds. In matters like the one before us, no question of hearing the interested parties arises. All that is required is fair play.
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K.S. Subbiah P-Illai Vs. The Commissioner Of Income Tax | S.P. Bharucha, J. 1. In these appeals filed by the assessee, which is a HIndu Undivided Family, we are concerned with the Assessment Years 1959-60 to 1965-66 and 1969-70 and 1970-71. The question that we are required to consider reads thus : "Whether, on the facts and in the circumstances of the case, the remuneration and commission received by Sri K.S. Subbiah Pillai was assessable in the hands of the assessee Hindu Undivided Family ?" It may be mentioned at the outset that the same assessee was assessed in Andhra Pradesh for the Assessment Years 1966-67 to 1968-69. The same question arose in regard to those assessments. The question was answered on reference by the High Court of Andhra Pradesh in favour of the assessee and the Revenue did not carry the matter further. 2. The judgment of the Andhra Pradesh High Court afore-mentioned was cited before the High Court at Madras in the reference proceedings out of which these appeals arise but the Madras High Court dissented therefrom. It dilated at length on Hindu Law but, with great respect, missed the point that the Income Tax Appellate Tribunal is the final fact-finding authority and, as it has itself noticed in the judgment under challenge, the Tribunal had held that the remuneration and commission received by the Karta of the HUF were earned by him on account of the investment of the family funds in the company and, therefore, could not be treated as the income of the HUF. 3. The High Court, having analysed the law, rightly concluded that the broad principle that emerged was whether the remuneration received by the coparcener was in substance one of the modes of return made to the family because of the investment of the family funds in the business or whether it was compensation made for services rendered by the individual coparcener. If it was the former, it was the income of the HUF; but if it was the latter, then it was the income of the individual coparcener. Applying this test, the High Court held, "There is absolutely no evidence to support the contention of the learned counsel for the assessee that the development of the business was due to any peculiar qualification or experience on the part of the assessee."4. We cannot agree. Having analysed the law, as it did correctly, the High Court should have taken note of the finding recorded by the Tribunal and noticed by it earlier, namely, that the remuneration and commission that were earned by the Karta were earned by him on account of his personal qualifications and exertions and not on account of the investment of the family funds and, therefore, should have held that the income could not be treated as the income of the HUF. | 1[ds]3. The High Court, having analysed the law, rightly concluded that the broad principle that emerged was whether the remuneration received by the coparcener was in substance one of the modes of return made to the family because of the investment of the family funds in the business or whether it was compensation made for services rendered by the individual coparcener. If it was the former, it was the income of the HUF; but if it was the latter, then it was the income of the individual coparcener.4. We cannot agree. Having analysed the law, as it did correctly, the High Court should have taken note of the finding recorded by the Tribunal and noticed by it earlier, namely, that the remuneration and commission that were earned by the Karta were earned by him on account of his personal qualifications and exertions and not on account of the investment of the family funds and, therefore, should have held that the income could not be treated as the income of the HUF. | 1 | 510 | 192 | ### Instruction:
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S.P. Bharucha, J. 1. In these appeals filed by the assessee, which is a HIndu Undivided Family, we are concerned with the Assessment Years 1959-60 to 1965-66 and 1969-70 and 1970-71. The question that we are required to consider reads thus : "Whether, on the facts and in the circumstances of the case, the remuneration and commission received by Sri K.S. Subbiah Pillai was assessable in the hands of the assessee Hindu Undivided Family ?" It may be mentioned at the outset that the same assessee was assessed in Andhra Pradesh for the Assessment Years 1966-67 to 1968-69. The same question arose in regard to those assessments. The question was answered on reference by the High Court of Andhra Pradesh in favour of the assessee and the Revenue did not carry the matter further. 2. The judgment of the Andhra Pradesh High Court afore-mentioned was cited before the High Court at Madras in the reference proceedings out of which these appeals arise but the Madras High Court dissented therefrom. It dilated at length on Hindu Law but, with great respect, missed the point that the Income Tax Appellate Tribunal is the final fact-finding authority and, as it has itself noticed in the judgment under challenge, the Tribunal had held that the remuneration and commission received by the Karta of the HUF were earned by him on account of the investment of the family funds in the company and, therefore, could not be treated as the income of the HUF. 3. The High Court, having analysed the law, rightly concluded that the broad principle that emerged was whether the remuneration received by the coparcener was in substance one of the modes of return made to the family because of the investment of the family funds in the business or whether it was compensation made for services rendered by the individual coparcener. If it was the former, it was the income of the HUF; but if it was the latter, then it was the income of the individual coparcener. Applying this test, the High Court held, "There is absolutely no evidence to support the contention of the learned counsel for the assessee that the development of the business was due to any peculiar qualification or experience on the part of the assessee."4. We cannot agree. Having analysed the law, as it did correctly, the High Court should have taken note of the finding recorded by the Tribunal and noticed by it earlier, namely, that the remuneration and commission that were earned by the Karta were earned by him on account of his personal qualifications and exertions and not on account of the investment of the family funds and, therefore, should have held that the income could not be treated as the income of the HUF.
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3. The High Court, having analysed the law, rightly concluded that the broad principle that emerged was whether the remuneration received by the coparcener was in substance one of the modes of return made to the family because of the investment of the family funds in the business or whether it was compensation made for services rendered by the individual coparcener. If it was the former, it was the income of the HUF; but if it was the latter, then it was the income of the individual coparcener.4. We cannot agree. Having analysed the law, as it did correctly, the High Court should have taken note of the finding recorded by the Tribunal and noticed by it earlier, namely, that the remuneration and commission that were earned by the Karta were earned by him on account of his personal qualifications and exertions and not on account of the investment of the family funds and, therefore, should have held that the income could not be treated as the income of the HUF.
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State Of Assam & Anr Vs. Bharat Kala Bhandar Ltd. & Ors | elaborate procedure provided for resolution of industrial disputes by industrial tribunals may not be desirable. Even so in the absence of express words in sub-r. (4) to show that the power thereunder depends for its exercise entirely on the subjective satisfaction of Government we would not be prepared to hold that that is what sub-r. (4) indicates. We have already said that the effect of sub-r. (4) is to disturb settled industrial relations whether based on contracts or on industrial awards, and it seems to us that before Government exercises the power under sub-r. (4) it should even in a real emergency consult the interests concerned before taking action thereunder. 28. It is not for us to indicate in detail what should be the procedure adopted by Government in a real emergency to consult the interests concerned, as that is a matter for Government to evolve for itself. But we may indicate that some kind of public notice to the particular interests should be given indicating what the Government intends to do and inviting representations from those interests and if necessary calling for data from them and also giving an oral hearing to the representatives of the interests concerned. This does not mean that notice should he given to individual employers or employees. Nor do we mean to say that this consultation should be of the same amplitude as adjudication by a quasi-judicial tribunal. It is not necessary that oral evidence should be taken and witnesses should be called, examined and cross-examined and documents produced or called for and arguments heard as if the matter was being tried by a quasi-judicial tribunal. But some kind of collection of data with the help of the interests concerned and some kind of hearing or conference with the interests concerned seems to us to be the barest minimum necessary to enable Government to exercise the power conferred under sub-r. (4) for we have no doubt that this sub-rule does not intend that Government should have power of the far-reaching nature conferred thereunder purely on its subjective satisfaction. Further if such consultation is necessary under sub-r. (4) and it seems to us that it is necessary-before an order can be passed thereunder, it would in our opinion be more convenient to hold consultation employment by employment, for it may be that needs of every employment may not be the same. After such consultation and consideration of data collected by Government itself as well as supplied by the interests concerned, it would be open to Government to pass an order under sub-r. (4) indicating that it has considered the data and consulted the interests concerned. We have indicated this procedure merely to illustrate what we say; but it is for Government to evolve such procedure as it considers will meet the needs of sub-r. (4). Once it is clear, as we have no doubt that it is so, that the order under sub-r. (4) is not to be passed merely on the subjective satisfaction of Government, it seems to us that even in a real emergency this consultative procedure should not take long and should be over within a few weeks. 29. It has been urged on behalf of the appellant that though the appellants contention has been that the power under sub-r. (4) can be exercised purely on the subjective satisfaction of Government, in effect the Government had consulted the interests concerned before issuing the two notifications under sub-r. (4) and therefore the two notifications should be upheld. In this connection, an affidavit was filed on behalf of the appellant in this Court and the contention that there was consultation is based on that affidavit. The facts stated in that affidavit are these. Soon after the Chinese invasion in 1962, the Labour Minister, Assam called an emergent meeting at Gauhati of the representatives of employees and workmen. 49 persons including about 17 representatives of employers attended the meeting. Unanimous resolutions were passed exhorting the employers and workmen to keep industrial peace and it was resolved to set up a Sub-Committee for the purpose of working out details of a machinery to be set up for adjustment of D. A. to neutralise any rise in the cost of living. A Sub-Committee consisting of three officials, three representatives of employers and three of workmen was set up. This Sub-Committee submitted its report in July 1964 and evolved a formula to neutralise any rise in working class cost of living of workers getting a salary of Rs. 400 or less. Complaints were received from Industrial Workers Unions of Tinsukia and Kamrup Districts in 1963 and 1964 about rise in prices of essential commodities and requests were made to Government to grant substantial emergency allowance. Consequently after consultation with the Director of Statistics on the rise in the cost of living the Government on a consideration of all this material and the report of the Sub-Committee decided to issue the notifications in questions ordering payment of Ad Hoc cost of living allowance of Rs. 10 per mensem to all workers driving upto Rs. 400 per mensem whether monthly rated or daily rated. This affidavit has been challenged on behalf of the respondents: but accepting it as correct, it still in our opinion falls short of the consultation necessary under sub-r. (4). As we have said already, the consultation must be with the interests concerned including employers and employees and should be employment by employment for needs of every employment may not be the same. All that we may accept after considering the affidavit filed on behalf of the appellant is that the notifications in question were not issued entirely arbitrarily but we do not think that the consultation to which reference was made in the affidavit of the appellant was enough for the purpose of sub-r. (4). We are therefore of opinion that the two notifications should be struck down and we do so, but for reasons different from those which commended themselves to the High Court. 30. | 1[ds]13. This analysis of R. 126-AA shows that it is a provision for maintenance of essential services during an emergency, and it is with that object that various powers are conferred on the Central Government or the State Government including the pointer of regulating wages and other conditions of service of persons engaged in essential services indicated in sub-r. (1) or declared to be such thereunder. It is with this back-ground of emergency that we have to construe the provisions contained in sub-r. (1) and also sub-r. (4) with which we are particularly concerned in the present appeals14. Turning first to sub-r. (1), we have already indicated that this sub-rule by its own force declares all employments under the Central Government or the State Government to be essential services for its purposes. Besides these two classes of employments, the Central Government or the State Government has been given the power to declare other employments also to be essentia1 for the purpose of sub-r. (1) and to be covered thereby. This the Central Government or the State Government can do by notification, if it is of opinion that such employment or class of employments is essential for securing any of the purposes mentioned in the sub-rule. It was under this power that the Governor of Assam issued the notification dated September 26, 1964 under sub-r. (1) The notification refers to a large number of employments and states that the Governor of Assam was of opinion that the employments specified therein were essential for securing public safety and for maintaining supplies and services necessary to the life of the community. The notification has been issued under the authentication of the Joint Secretary to the Government of Assam Labour Department. As it stands the notification is clearly in compliance with the provisions contained in sub-r. (1) of R. 126-A A.It is true that the notification has included a large number of employments in it; but we do not see why one notification may not he issued with respect to any number of employments, though there can be no objection to the Government issuing one notification with respect to one employment only. The mere fact that a notification includes within it a large number of employments is no ground for holding, as the High Court seems to have held that the Governor did not apply his mind to the conditions precedent to the issue of the notification. Nor do we think that the fact that the notification in question gave two purposes for its issue, namely, for securing public safety and for maintaining supplies and services necessary to the life of the community shows that the Governor did not apply his mind to the conditions precedent to the issue of the notification. Further when the Governor says in the notification that the employments included therein were essential for securing the public safety and for maintaining supplies and services necessary to the life of the community, he obviously holds the opinion that these employments were essential for both purposes. It was not, therefore, necessary for the Governor to specify which of the employments were essential for the purpose of maintaining supplies and services necessary to the life of the community and which were essential for the purpose of securing public safety. The notification, as it reads, indicates that in the opinion of the Governor these employments were essential for both purposes. We do not think, therefore, that the High Court was right in holding that as the notification does not show which employment was essential for which purpose, the Governor had not applied his mind and the notification was, therefore, colourable and mala fide in lawIt appears that in some of the writ petitions "defence" was introduced by the petitioners as a ground for the issue of the notification of sub-r. (1); so in the reply of the State the same ground was mechanically repeated in the counter-affidavit without carefully looking into the notification which had been issued under sub-r. (1).It is because of this mechanical introduction of defence by the State in the counter-affidavit that the High Court has held that it showed that the authority had equated public safety with defence and that the Government misconceived its powers and had no clear conception of the scope and ambit thereof. There is no doubt that the word "defence" came in the counter-affidavit mechanically in reply to the introduction of the word "defence" in many of the writ petitions. What the Court has to see is whether the conditions precedent were complied with at the time of the issue of the notification. It is unfortunate that in the counter-affidavit the word "defence" was introduced mechanically in reply to what was said in the writ petitions. But that in our opinion should not have led the High Court to the conclusion at which it has arrived, namely, that the Government misconceived its powers and had no clear conception of the scope and ambit thereof. In the circumstances we are inclined to attach no importance to the introduction of the word "defence" in the counter-affidavit filed on behalf of the State as it seems that that word came in mechanically in reply to the introduction of the word "defence" in some of the writ petitions16. It is clear that a notification under sub-r. (1) is conditioned on the subjective satisfaction of the Central Government or the State Government as to the various purposes mentioned in sub-r. (1)We are of opinion that both these grounds for holding that the conditions precedent to the issue of the notification under sub-r. (1) have not been fulfilled cannot be sustained. As the notification reads, it shows that the employments mentioned therein were essential for both purposes and this must be held to be the opinion of the Governor. That opinion cannot in our view be challenged in Court unless it is shown to be mala fide or it is shows that no reasonable man can come to that conclusion in the context of the employments specified in the notification. We cannot agree with the High Court that simply because a large number of employments were mentioned in one notification that can by itself show that the Governor had not applied his mind. Nor can we agree with the High Court that because two purposes were mentioned as the basis of the notification and as there was nothing to show which employment referred to which purpose, there is no formation of opinion. As we read the notification it must be held that the Governors opinion was formed with respect to the employments specified in he notification on the basis of both the purposes mentioned in the notification. The only thing that the High Court could see was whether considering the nature of the employments it was impossible for any reasonable man to come to the opinion that those employments were essential for securing public safety and for maintaining supplies and services necessary to the life of the community, and this has to be judged in the context of an emergency. It seems to us that where certain employments are "essential for the maintenance of supplies and services necessary to the life of the community the Governor may very well come to the conclusion that those employments are also necessary for securing public safety, for if supplies and services necessary to the life of community are not maintained, there may be danger to public safety. In these circumstances we cannot agree with tire High Court that the two purposes mentioned in the notification have no nexus with the employments specified therein, except in one case. We cannot also agree with the High Court that no reasonable man could come to the conclusion that the employments mentioned in the notification were essential for the two purposes which were the basis of the notification except again in the case of one employment. We have looked through all the employments which are included in the notification and it is enough to say that except in one case it cannot be said that no reasonable man could come to the conclusion that those employments were essential for securing public safety and for maintaining supplies and services necessary to the life of the community18. The only exception we find is veneer mills. Veneering, we understand, is a process by which thin flat plates or slips of fine wood or other suitable material are applied to other inferior wood in cabinet work or similar other furnitureWe fail to see how veneer mills which carry on this process of laying finer wood on inferior wood for purposes of beautifying furniture. etc., can be said by any reasonable man to be essential for the maintenance of supplies and services necessary to the life of the community and for securing public safety. It is open to us to strike down the notification under sub-r. (1) with respect to veneer mills alone, for the present notification including a large number of employments can be read to amount to so many single notifications, relating to each employment, rolled into one. Therefore, as we see the notification under sub-r. (1) we see no reason to hold that the Governor had not applied his mind to the conditions precedent before he issued the notification in question. We are also satisfied except in the case of veneer mills that it cannot be raid that no reasonable man could have come to the conclusion that the employments included in the notification were not essential for securing public safety and for maintaining supplies and services necessary to the life of the community. In this view of the matter we cannot see how the notification under sub-r. (1) can be said to be for any extraneous purpose unconnected with the purposes mentioned in the sub-rule; nor is there any reason to hold that the employments mentioned in the notification (except one) were not essential for securing public safety in addition to maintenance of supplies and services necessary to the life of the community. Nor do we see any reason to hold that the notification under sub-r (1)was mala fide.We have already mentioned that there are no mala fides in fact and we do not think there can be any question of any mala fide in law in view of what we have said above. We, therefore, uphold the notification under sub-r. (1), dated September 26, 1964 except in the case of veneer mills. We strike down the notification only with respect to the veneer mills mentioned at Item 5 of the employments included therein19. We now come to the two notifications under sub-r.(4). Incidentally we may mention that though the second notification is, dated November 4, 1964, the letter written by the Department of Labour, Government of Assam, to the Charduar Cotton Mills says that the cost of living allowance for persons engaged on daliy wages provided in the notification of November 4, 1964 should be paid from September 26, 1964. Now there is nothing in the notification of November 4, 1964 to show that it was retrospective, and we cannot understand how the Department of Labour advised the Mills in question to pay cost of living allowance to persons engaged on daily wages from September 26, 1964, which was the date of the notification under sub-r. (1). Nor do we think that there is anything in sub-r. (4) which authorises the Government to make an order thereunder with retrospective effectWe cannot agree with the High Court that it was necessary to recite in the notifications under sub-r. (4) that action was being taken thereunder for the purpose of securing public safety and for maintaining supplies and services necessary to the life of the community. Nor do we think that sub-r. (4) requires that notifications should show that the two purposes would in fact be achieved by the provision made thereunder. Further it is clear that the power under sub-r. (4) is not for fixation of minimum wages. It is power to regulate wages and this power is analogous to the power of industrial tribunals and, therefore the fact that there is provision in the Minimum Wages Act for fixation of minimum wages is no ground for holding that the power exercised by sub-r. (4) must be colourable. The two reasons given by the High Court for striking down the two notifications and holding them mala fide do not, appear to us to be correct. But this in our opinion is not the end of the matterThe notifications seem to proceed on the view that powers exercised thereunder are entirely within the subjective satisfaction of Government and it is that view which we must examine now22. We have already indicated that the power conferred by sub-r. (4) is consequential to the issue of a notification under sub-r. (1), in case of employment other than those under the Central Government or the State Government. Once the notification under sub-r. (1) is issued, the Central Government or the State Government has the power to regulate the wages and other conditions of service of persons or any class of persons engaged in any employment or class of employment included in the notification. Of course, the wages and other conditions of service of Central Government and State Government employees are also liable to be regulated under sub-r. (4). But it is unnecessary to refer to that aspect of the matter and what we say hereafter may be taken to apply only to those employments which are brought under R. 126-AA. by issue of a notification under sub-r. (1) thereofThe present case, however which deals with regulation of wages and other conditions of service and has a far-reaching effect on industrial relations based on contracts or even on industrial awards stands on a different footing altogether and cannot be governed by the ratio of that case25. We do not think it necessary in the present appeals to consider the various other rules to which reference has been made. Nor would it be desirable to do so for those rules do not arise for interpretation in the present appeals. We propose therefore to confine ourselves to sub-r. (4) with which alone we are concerned in these cases27. We have already set out sub-r. (4) and a perusal of its language will show that there is nothing in the words themselves which plainly and unambiguously indicates that the power exercised thereunder depends purely on the subjective satisfaction of Government. It is true that sub-r. (4) so far as it applies to employments other than those of Government is consequential on a notification under sub -r. (l). But that does not mean in the absence of express words in sub-r (4) that the power exercised thereunder depends purely on the subjective satisfaction of Government. We have already indicated that the power under sub-r. (4) is analogous to the power of industrial tribunals to decide disputes between employers and employees. The result of the exercise of the power under sub-r. (4) is to vary the contractual relations between employers and employees concerned in employments with respect to which a notification under sub-r. (1) has been issued. The effect of the exercise of such power is to unsettle settled relations between employers and employees which may be existing for a long time and which may be the outcome either of contractual relations or even of industrial awards. Sub-rule (4) not only deals with wages but also with other conditions of service and thus in a real emergency may practically supersede all industrial adjudication. The power conferred is thus of a far-reaching nature in the field of industrial relations and may have the effect of disturbing all such relations for the duration of a real emergency. The question therefore arises whether in the absence of express words in sub-r. (4) to indicate that the power is to be exercised purely on the subjective satisfaction of Government we should hold that an order under sub-r. (4) can be passed purely on such subjective satisfaction. When the effect of orders passed under sub-r. (4) can be so far-reaching and so wide in its impact we would be loath to hold that such wide and far-reaching powers were conferred on Government to be exercised purely on its subjective satisfaction without even consulting the interests concerned specially when the language is not plain and unambiguous and there is no indication in the sub-rule itself that the power can be exercised purely on the subjective satisfaction of Government. We are not unmindful of the fact that the power under sub-r. (4) has to be exercised in a real emergency. But the ambit of the power therein is analogous to the power of industrial courts. The power under sub-r. (4) may be exercised instead of referring industrial disputes relating to wages and other conditions of service to industrial tribunals. We are also not unmindful of the fact that in a real emergency, decisions may have to be taken quickly and delay inevitable in the elaborate procedure provided for resolution of industrial disputes by industrial tribunals may not be desirable. Even so in the absence of express words in sub-r. (4) to show that the power thereunder depends for its exercise entirely on the subjective satisfaction of Government we would not be prepared to hold that that is what sub-r. (4) indicates. We have already said that the effect of sub-r. (4) is to disturb settled industrial relations whether based on contracts or on industrial awards, and it seems to us that before Government exercises the power under sub-r. (4) it should even in a real emergency consult the interests concerned before taking action thereunder28. It is not for us to indicate in detail what should be the procedure adopted by Government in a real emergency to consult the interests concerned, as that is a matter for Government to evolve for itself. But we may indicate that some kind of public notice to the particular interests should be given indicating what the Government intends to do and inviting representations from those interests and if necessary calling for data from them and also giving an oral hearing to the representatives of the interests concerned. This does not mean that notice should he given to individual employers or employees. Nor do we mean to say that this consultation should be of the same amplitude as adjudication by a quasi-judicial tribunal. It is not necessary that oral evidence should be taken and witnesses should be called, examined and cross-examined and documents produced or called for and arguments heard as if the matter was being tried by a quasi-judicial tribunal. But some kind of collection of data with the help of the interests concerned and some kind of hearing or conference with the interests concerned seems to us to be the barest minimum necessary to enable Government to exercise the power conferred under sub-r. (4) for we have no doubt that this sub-rule does not intend that Government should have power of the far-reaching nature conferred thereunder purely on its subjective satisfaction. Further if such consultation is necessary under sub-r. (4) and it seems to us that it is necessary-before an order can be passed thereunder, it would in our opinion be more convenient to hold consultation employment by employment, for it may be that needs of every employment may not be the same. After such consultation and consideration of data collected by Government itself as well as supplied by the interests concerned, it would be open to Government to pass an order under sub-r. (4) indicating that it has considered the data and consulted the interests concerned. We have indicated this procedure merely to illustrate what we say; but it is for Government to evolve such procedure as it considers will meet the needs of sub-r. (4). Once it is clear, as we have no doubt that it is so, that the order under sub-r. (4) is not to be passed merely on the subjective satisfaction of Government, it seems to us that even in a real emergency this consultative procedure should not take long and should be over within a few weeksThis affidavit has been challenged on behalf of the respondents: but accepting it as correct, it still in our opinion falls short of the consultation necessary under sub-r. (4). As we have said already, the consultation must be with the interests concerned including employers and employees and should be employment by employment for needs of every employment may not be the same. All that we may accept after considering the affidavit filed on behalf of the appellant is that the notifications in question were not issued entirely arbitrarily but we do not think that the consultation to which reference was made in the affidavit of the appellant was enough for the purpose of sub-r. (4). We are therefore of opinion that the two notifications should be struck down and we do so, but for reasons different from those which commended themselves to the High Court. | 1 | 7,995 | 3,808 | ### Instruction:
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elaborate procedure provided for resolution of industrial disputes by industrial tribunals may not be desirable. Even so in the absence of express words in sub-r. (4) to show that the power thereunder depends for its exercise entirely on the subjective satisfaction of Government we would not be prepared to hold that that is what sub-r. (4) indicates. We have already said that the effect of sub-r. (4) is to disturb settled industrial relations whether based on contracts or on industrial awards, and it seems to us that before Government exercises the power under sub-r. (4) it should even in a real emergency consult the interests concerned before taking action thereunder. 28. It is not for us to indicate in detail what should be the procedure adopted by Government in a real emergency to consult the interests concerned, as that is a matter for Government to evolve for itself. But we may indicate that some kind of public notice to the particular interests should be given indicating what the Government intends to do and inviting representations from those interests and if necessary calling for data from them and also giving an oral hearing to the representatives of the interests concerned. This does not mean that notice should he given to individual employers or employees. Nor do we mean to say that this consultation should be of the same amplitude as adjudication by a quasi-judicial tribunal. It is not necessary that oral evidence should be taken and witnesses should be called, examined and cross-examined and documents produced or called for and arguments heard as if the matter was being tried by a quasi-judicial tribunal. But some kind of collection of data with the help of the interests concerned and some kind of hearing or conference with the interests concerned seems to us to be the barest minimum necessary to enable Government to exercise the power conferred under sub-r. (4) for we have no doubt that this sub-rule does not intend that Government should have power of the far-reaching nature conferred thereunder purely on its subjective satisfaction. Further if such consultation is necessary under sub-r. (4) and it seems to us that it is necessary-before an order can be passed thereunder, it would in our opinion be more convenient to hold consultation employment by employment, for it may be that needs of every employment may not be the same. After such consultation and consideration of data collected by Government itself as well as supplied by the interests concerned, it would be open to Government to pass an order under sub-r. (4) indicating that it has considered the data and consulted the interests concerned. We have indicated this procedure merely to illustrate what we say; but it is for Government to evolve such procedure as it considers will meet the needs of sub-r. (4). Once it is clear, as we have no doubt that it is so, that the order under sub-r. (4) is not to be passed merely on the subjective satisfaction of Government, it seems to us that even in a real emergency this consultative procedure should not take long and should be over within a few weeks. 29. It has been urged on behalf of the appellant that though the appellants contention has been that the power under sub-r. (4) can be exercised purely on the subjective satisfaction of Government, in effect the Government had consulted the interests concerned before issuing the two notifications under sub-r. (4) and therefore the two notifications should be upheld. In this connection, an affidavit was filed on behalf of the appellant in this Court and the contention that there was consultation is based on that affidavit. The facts stated in that affidavit are these. Soon after the Chinese invasion in 1962, the Labour Minister, Assam called an emergent meeting at Gauhati of the representatives of employees and workmen. 49 persons including about 17 representatives of employers attended the meeting. Unanimous resolutions were passed exhorting the employers and workmen to keep industrial peace and it was resolved to set up a Sub-Committee for the purpose of working out details of a machinery to be set up for adjustment of D. A. to neutralise any rise in the cost of living. A Sub-Committee consisting of three officials, three representatives of employers and three of workmen was set up. This Sub-Committee submitted its report in July 1964 and evolved a formula to neutralise any rise in working class cost of living of workers getting a salary of Rs. 400 or less. Complaints were received from Industrial Workers Unions of Tinsukia and Kamrup Districts in 1963 and 1964 about rise in prices of essential commodities and requests were made to Government to grant substantial emergency allowance. Consequently after consultation with the Director of Statistics on the rise in the cost of living the Government on a consideration of all this material and the report of the Sub-Committee decided to issue the notifications in questions ordering payment of Ad Hoc cost of living allowance of Rs. 10 per mensem to all workers driving upto Rs. 400 per mensem whether monthly rated or daily rated. This affidavit has been challenged on behalf of the respondents: but accepting it as correct, it still in our opinion falls short of the consultation necessary under sub-r. (4). As we have said already, the consultation must be with the interests concerned including employers and employees and should be employment by employment for needs of every employment may not be the same. All that we may accept after considering the affidavit filed on behalf of the appellant is that the notifications in question were not issued entirely arbitrarily but we do not think that the consultation to which reference was made in the affidavit of the appellant was enough for the purpose of sub-r. (4). We are therefore of opinion that the two notifications should be struck down and we do so, but for reasons different from those which commended themselves to the High Court. 30.
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contractual relations between employers and employees concerned in employments with respect to which a notification under sub-r. (1) has been issued. The effect of the exercise of such power is to unsettle settled relations between employers and employees which may be existing for a long time and which may be the outcome either of contractual relations or even of industrial awards. Sub-rule (4) not only deals with wages but also with other conditions of service and thus in a real emergency may practically supersede all industrial adjudication. The power conferred is thus of a far-reaching nature in the field of industrial relations and may have the effect of disturbing all such relations for the duration of a real emergency. The question therefore arises whether in the absence of express words in sub-r. (4) to indicate that the power is to be exercised purely on the subjective satisfaction of Government we should hold that an order under sub-r. (4) can be passed purely on such subjective satisfaction. When the effect of orders passed under sub-r. (4) can be so far-reaching and so wide in its impact we would be loath to hold that such wide and far-reaching powers were conferred on Government to be exercised purely on its subjective satisfaction without even consulting the interests concerned specially when the language is not plain and unambiguous and there is no indication in the sub-rule itself that the power can be exercised purely on the subjective satisfaction of Government. We are not unmindful of the fact that the power under sub-r. (4) has to be exercised in a real emergency. But the ambit of the power therein is analogous to the power of industrial courts. The power under sub-r. (4) may be exercised instead of referring industrial disputes relating to wages and other conditions of service to industrial tribunals. We are also not unmindful of the fact that in a real emergency, decisions may have to be taken quickly and delay inevitable in the elaborate procedure provided for resolution of industrial disputes by industrial tribunals may not be desirable. Even so in the absence of express words in sub-r. (4) to show that the power thereunder depends for its exercise entirely on the subjective satisfaction of Government we would not be prepared to hold that that is what sub-r. (4) indicates. We have already said that the effect of sub-r. (4) is to disturb settled industrial relations whether based on contracts or on industrial awards, and it seems to us that before Government exercises the power under sub-r. (4) it should even in a real emergency consult the interests concerned before taking action thereunder28. It is not for us to indicate in detail what should be the procedure adopted by Government in a real emergency to consult the interests concerned, as that is a matter for Government to evolve for itself. But we may indicate that some kind of public notice to the particular interests should be given indicating what the Government intends to do and inviting representations from those interests and if necessary calling for data from them and also giving an oral hearing to the representatives of the interests concerned. This does not mean that notice should he given to individual employers or employees. Nor do we mean to say that this consultation should be of the same amplitude as adjudication by a quasi-judicial tribunal. It is not necessary that oral evidence should be taken and witnesses should be called, examined and cross-examined and documents produced or called for and arguments heard as if the matter was being tried by a quasi-judicial tribunal. But some kind of collection of data with the help of the interests concerned and some kind of hearing or conference with the interests concerned seems to us to be the barest minimum necessary to enable Government to exercise the power conferred under sub-r. (4) for we have no doubt that this sub-rule does not intend that Government should have power of the far-reaching nature conferred thereunder purely on its subjective satisfaction. Further if such consultation is necessary under sub-r. (4) and it seems to us that it is necessary-before an order can be passed thereunder, it would in our opinion be more convenient to hold consultation employment by employment, for it may be that needs of every employment may not be the same. After such consultation and consideration of data collected by Government itself as well as supplied by the interests concerned, it would be open to Government to pass an order under sub-r. (4) indicating that it has considered the data and consulted the interests concerned. We have indicated this procedure merely to illustrate what we say; but it is for Government to evolve such procedure as it considers will meet the needs of sub-r. (4). Once it is clear, as we have no doubt that it is so, that the order under sub-r. (4) is not to be passed merely on the subjective satisfaction of Government, it seems to us that even in a real emergency this consultative procedure should not take long and should be over within a few weeksThis affidavit has been challenged on behalf of the respondents: but accepting it as correct, it still in our opinion falls short of the consultation necessary under sub-r. (4). As we have said already, the consultation must be with the interests concerned including employers and employees and should be employment by employment for needs of every employment may not be the same. All that we may accept after considering the affidavit filed on behalf of the appellant is that the notifications in question were not issued entirely arbitrarily but we do not think that the consultation to which reference was made in the affidavit of the appellant was enough for the purpose of sub-r. (4). We are therefore of opinion that the two notifications should be struck down and we do so, but for reasons different from those which commended themselves to the High Court.
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Lalrivenga Vs. State Of Mizoram | the Act had been published in the Official Gazette and argued that in the absence of such publication, the Division Bench of the High Court was not justified in relying upon the publication of declaration issued under Section 6 in the Official Gazette for recording a finding that Section 4(1) notification must have been likewise published in the Official Gazette. Learned counsel emphasised that the Land Settlement Certificates issued in favour of the appellants could not have been declared invalid on the ground that the same were not sanctioned by the competent authority because vide order dated 18.1.1983, respondent No.2 had authorised the Assistant Settlement Officer-II to decide the applications made for grant of such certificate and the Settlement Officer who issued certificates in favour of the appellants was senior to the designated officer. Shri Mukherjee then argued that the prohibition contained in the Government order dated 14.6.1985 could not have been invoked in the appellants case because they had purchased land from a private individual, namely, Dangliana in 1984 and no allotment had been made in their favour by any public authority.11. Shri R.F. Nariman, learned Solicitor General fairly stated that the Official Gazette in which notification dated 14.5.1985 was published has not been produced either before the High Court or this Court, but argued that the appellants cannot claim compensation in lieu of the acquisition of land in question because the purchase made by them was contrary to the statutory rules and order dated 14.6.1985. Learned Solicitor General further argued that the Court may not interfere with the impugned judgment because the appellants had obtained Land Settlement Certificates by manipulations and the same were rightly cancelled by the State Government. 12. We have considered the respective submissions/arguments and carefully scrutinized the record. In our view, the reasons assigned by the Division Bench of the High Court for setting aside the order of the learned Single Judge are legally unsustainable. Section 4(1) of the Act, which provides for publication of preliminary notification, reads as under: “4. Publication of preliminary notification and powers of officers thereupon.-(1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification.” 13. A reading of the above reproduced provision makes it clear that the notification issued by an appropriate Government proposing the acquisition of land must be published in the Official Gazette and two daily newspapers having wide circulation in the locality of which at least one shall be in the regional language. Not only this, the Collector is under an obligation to ensure that public notice of the substance of such notification is given at convenient places in the locality. This Court has repeatedly held that the requirement of publication of notification in the Official Gazette and two local newspapers is mandatory. The Division Bench of the High Court upheld the acquisition of land by assuming that notification dated 14.5.1985 issued under Section 4(1) must have been published in the Official Gazette because the declaration issued under Section 6 was published in the Official Gazette. In our view, this approach of the High Court was clearly erroneous. The question whether the notification issued under Section 4(1) was published in the Official Gazette is a question of fact and such question cannot be decided on assumptions and conjectures or inferences. Whenever the acquisition of land is challenged on the ground that the notification has not been published as per the mandate of the statute, the authority defending the acquisition is under an obligation to produce evidence in the form of documents to prove that the requirement of publication has been complied. In the absence of such evidence, the Court cannot decide challenge to the acquisition proceedings by assuming that the particular notification had been published as per the requirement of law. In the present case, no material was produced before the High Court and none has been produced before this Court to show that notification dated 14.5.1985 issued under Section 4(1) of the Act had been published in the Official Gazette. Therefore, the High Court was not justified in declining relief to the appellants by assuming that the said notification must have been published in the Official Gazette because other notifications including the one issued under Section 6 was published in the Official Gazette.14. We also agree with Shri Mukherjee that the Land Settlement Certificates issued in favour of the appellants could not have been cancelled on the ground that the same were issued without the sanction or approval of the competent authority. The respondents have not controverted the appellants assertion that vide order dated 18.1.1983, respondent No.2 had authorised the Assistant Settlement Officer-II to process and decide the applications for grant of the Land Settlement Certificates. It is also not in dispute that the appellants had purchased land in 1984 and the Settlement Officer had issued the Land Settlement Certificates in 1987 after duly scrutinizing the applications made for that purpose. This action of the concerned officer was not in violation of order dated 14.6.1985 vide which allotment of land to private individuals was restricted/freezed along the main National Highway and the road leading to old Zokhawsang village which was earmarked for shifting of First Assam Rifles. Indeed, it was neither the pleaded case of the respondents before the High Court nor any evidence was produced to show that the land in question had been allotted to the appellants by any public authority. | 1[ds]12. We have considered the respective submissions/arguments and carefully scrutinized the record. In our view, the reasons assigned by the Division Bench of the High Court for setting aside the order of the learned Single Judge are legally unsustainable. Section 4(1) of the Act, which provides for publication of preliminary notification, reads asPublication of preliminary notification and powers of officersWhenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification.A reading of the above reproduced provision makes it clear that the notification issued by an appropriate Government proposing the acquisition of land must be published in the Official Gazette and two daily newspapers having wide circulation in the locality of which at least one shall be in the regional language. Not only this, the Collector is under an obligation to ensure that public notice of the substance of such notification is given at convenient places in the locality. This Court has repeatedly held that the requirement of publication of notification in the Official Gazette and two local newspapers is mandatory. The Division Bench of the High Court upheld the acquisition of land by assuming that notification dated 14.5.1985 issued under Section 4(1) must have been published in the Official Gazette because the declaration issued under Section 6 was published in the Official Gazette. In our view, this approach of the High Court was clearly erroneous. The question whether the notification issued under Section 4(1) was published in the Official Gazette is a question of fact and such question cannot be decided on assumptions and conjectures or inferences. Whenever the acquisition of land is challenged on the ground that the notification has not been published as per the mandate of the statute, the authority defending the acquisition is under an obligation to produce evidence in the form of documents to prove that the requirement of publication has been complied. In the absence of such evidence, the Court cannot decide challenge to the acquisition proceedings by assuming that the particular notification had been published as per the requirement of law. In the present case, no material was produced before the High Court and none has been produced before this Court to show that notification dated 14.5.1985 issued under Section 4(1) of the Act had been published in the Official Gazette. Therefore, the High Court was not justified in declining relief to the appellants by assuming that the said notification must have been published in the Official Gazette because other notifications including the one issued under Section 6 was published in the Official Gazette.14. We also agree with Shri Mukherjee that the Land Settlement Certificates issued in favour of the appellants could not have been cancelled on the ground that the same were issued without the sanction or approval of the competent authority. The respondents have not controverted the appellants assertion that vide order dated 18.1.1983, respondent No.2 had authorised the Assistant Settlementto process and decide the applications for grant of the Land Settlement Certificates. It is also not in dispute that the appellants had purchased land in 1984 and the Settlement Officer had issued the Land Settlement Certificates in 1987 after duly scrutinizing the applications made for that purpose. This action of the concerned officer was not in violation of order dated 14.6.1985 vide which allotment of land to private individuals was restricted/freezed along the main National Highway and the road leading to old Zokhawsang village which was earmarked for shifting of First Assamit was neither the pleaded case of the respondents before the High Court nor any evidence was produced to show that the land in question had been allotted to the appellants by any public authority. | 1 | 2,380 | 753 | ### Instruction:
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the Act had been published in the Official Gazette and argued that in the absence of such publication, the Division Bench of the High Court was not justified in relying upon the publication of declaration issued under Section 6 in the Official Gazette for recording a finding that Section 4(1) notification must have been likewise published in the Official Gazette. Learned counsel emphasised that the Land Settlement Certificates issued in favour of the appellants could not have been declared invalid on the ground that the same were not sanctioned by the competent authority because vide order dated 18.1.1983, respondent No.2 had authorised the Assistant Settlement Officer-II to decide the applications made for grant of such certificate and the Settlement Officer who issued certificates in favour of the appellants was senior to the designated officer. Shri Mukherjee then argued that the prohibition contained in the Government order dated 14.6.1985 could not have been invoked in the appellants case because they had purchased land from a private individual, namely, Dangliana in 1984 and no allotment had been made in their favour by any public authority.11. Shri R.F. Nariman, learned Solicitor General fairly stated that the Official Gazette in which notification dated 14.5.1985 was published has not been produced either before the High Court or this Court, but argued that the appellants cannot claim compensation in lieu of the acquisition of land in question because the purchase made by them was contrary to the statutory rules and order dated 14.6.1985. Learned Solicitor General further argued that the Court may not interfere with the impugned judgment because the appellants had obtained Land Settlement Certificates by manipulations and the same were rightly cancelled by the State Government. 12. We have considered the respective submissions/arguments and carefully scrutinized the record. In our view, the reasons assigned by the Division Bench of the High Court for setting aside the order of the learned Single Judge are legally unsustainable. Section 4(1) of the Act, which provides for publication of preliminary notification, reads as under: “4. Publication of preliminary notification and powers of officers thereupon.-(1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification.” 13. A reading of the above reproduced provision makes it clear that the notification issued by an appropriate Government proposing the acquisition of land must be published in the Official Gazette and two daily newspapers having wide circulation in the locality of which at least one shall be in the regional language. Not only this, the Collector is under an obligation to ensure that public notice of the substance of such notification is given at convenient places in the locality. This Court has repeatedly held that the requirement of publication of notification in the Official Gazette and two local newspapers is mandatory. The Division Bench of the High Court upheld the acquisition of land by assuming that notification dated 14.5.1985 issued under Section 4(1) must have been published in the Official Gazette because the declaration issued under Section 6 was published in the Official Gazette. In our view, this approach of the High Court was clearly erroneous. The question whether the notification issued under Section 4(1) was published in the Official Gazette is a question of fact and such question cannot be decided on assumptions and conjectures or inferences. Whenever the acquisition of land is challenged on the ground that the notification has not been published as per the mandate of the statute, the authority defending the acquisition is under an obligation to produce evidence in the form of documents to prove that the requirement of publication has been complied. In the absence of such evidence, the Court cannot decide challenge to the acquisition proceedings by assuming that the particular notification had been published as per the requirement of law. In the present case, no material was produced before the High Court and none has been produced before this Court to show that notification dated 14.5.1985 issued under Section 4(1) of the Act had been published in the Official Gazette. Therefore, the High Court was not justified in declining relief to the appellants by assuming that the said notification must have been published in the Official Gazette because other notifications including the one issued under Section 6 was published in the Official Gazette.14. We also agree with Shri Mukherjee that the Land Settlement Certificates issued in favour of the appellants could not have been cancelled on the ground that the same were issued without the sanction or approval of the competent authority. The respondents have not controverted the appellants assertion that vide order dated 18.1.1983, respondent No.2 had authorised the Assistant Settlement Officer-II to process and decide the applications for grant of the Land Settlement Certificates. It is also not in dispute that the appellants had purchased land in 1984 and the Settlement Officer had issued the Land Settlement Certificates in 1987 after duly scrutinizing the applications made for that purpose. This action of the concerned officer was not in violation of order dated 14.6.1985 vide which allotment of land to private individuals was restricted/freezed along the main National Highway and the road leading to old Zokhawsang village which was earmarked for shifting of First Assam Rifles. Indeed, it was neither the pleaded case of the respondents before the High Court nor any evidence was produced to show that the land in question had been allotted to the appellants by any public authority.
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12. We have considered the respective submissions/arguments and carefully scrutinized the record. In our view, the reasons assigned by the Division Bench of the High Court for setting aside the order of the learned Single Judge are legally unsustainable. Section 4(1) of the Act, which provides for publication of preliminary notification, reads asPublication of preliminary notification and powers of officersWhenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification.A reading of the above reproduced provision makes it clear that the notification issued by an appropriate Government proposing the acquisition of land must be published in the Official Gazette and two daily newspapers having wide circulation in the locality of which at least one shall be in the regional language. Not only this, the Collector is under an obligation to ensure that public notice of the substance of such notification is given at convenient places in the locality. This Court has repeatedly held that the requirement of publication of notification in the Official Gazette and two local newspapers is mandatory. The Division Bench of the High Court upheld the acquisition of land by assuming that notification dated 14.5.1985 issued under Section 4(1) must have been published in the Official Gazette because the declaration issued under Section 6 was published in the Official Gazette. In our view, this approach of the High Court was clearly erroneous. The question whether the notification issued under Section 4(1) was published in the Official Gazette is a question of fact and such question cannot be decided on assumptions and conjectures or inferences. Whenever the acquisition of land is challenged on the ground that the notification has not been published as per the mandate of the statute, the authority defending the acquisition is under an obligation to produce evidence in the form of documents to prove that the requirement of publication has been complied. In the absence of such evidence, the Court cannot decide challenge to the acquisition proceedings by assuming that the particular notification had been published as per the requirement of law. In the present case, no material was produced before the High Court and none has been produced before this Court to show that notification dated 14.5.1985 issued under Section 4(1) of the Act had been published in the Official Gazette. Therefore, the High Court was not justified in declining relief to the appellants by assuming that the said notification must have been published in the Official Gazette because other notifications including the one issued under Section 6 was published in the Official Gazette.14. We also agree with Shri Mukherjee that the Land Settlement Certificates issued in favour of the appellants could not have been cancelled on the ground that the same were issued without the sanction or approval of the competent authority. The respondents have not controverted the appellants assertion that vide order dated 18.1.1983, respondent No.2 had authorised the Assistant Settlementto process and decide the applications for grant of the Land Settlement Certificates. It is also not in dispute that the appellants had purchased land in 1984 and the Settlement Officer had issued the Land Settlement Certificates in 1987 after duly scrutinizing the applications made for that purpose. This action of the concerned officer was not in violation of order dated 14.6.1985 vide which allotment of land to private individuals was restricted/freezed along the main National Highway and the road leading to old Zokhawsang village which was earmarked for shifting of First Assamit was neither the pleaded case of the respondents before the High Court nor any evidence was produced to show that the land in question had been allotted to the appellants by any public authority.
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Rajasthan State I.D.I.Corpn. Ltd. Vs. Diamond & Gem Dev. Corpn. Ltd. | to provide an approach road with respect to the land which was allotted; and that RIICO had failed to co-operate with the respondent-company to accomplish the task it had undertaken, and that the order of cancellation was liable to be set aside for lack of jurisdiction and for want of competence.25. The aforesaid reasons given by the High Court are mutually inconsistent. When the High Court came to the conclusion that the appellant-RIICO had no competence to deal with the land and to cancel the allotment made in favour of the respondent-company, there was no justification to hold RIICO responsible for providing the approach road. Such a finding could be permissible only if the appellant-RIICO had competence to deal with the land in dispute.26. The High Court also erred in holding that the provision of providing the access road was an obligation on the part of the appellant-RIICO, deciding this on equitable grounds. The terms of the lease deed clearly stipulated that in case the appellant-RIICO provides the access road, it will be vested with the right to collect the charges incurred by it from the respondent-company, therein, and in the alternative, it would be the obligation of the respondent- company to develop its own infrastructure, and the same would include development of the access road. Therefore, the appellant-RIICO was not under any obligation to provide the said access road. 27. The interpretation given to the amended Rule 11-A of the Rules 1959 by the High Court, takes away the vested right of the appellant- RIICO in the title as well as in the interest that it had acquired in the property, as it had paid the entire amount for the land to the State when possession of land was handed over to it. Rule 11-A of the Rules 1959 was amended only to facilitate the respondent-company to grant further sub-lease and not to divest RIICO from its rights and title. It was found necessary in wake of difficulties faced by the respondent-company as it was not permissible for it to grant further sub-lease. Thus, the rule provided a deeming clause/fiction that for the purpose of sub-lease by the respondent- company to further allottees, it would be deemed that the State Government had executed the lease in favour of the respondent-company. The terms “mutatis mutandis”, and “as if”, used in the amended provisions of Rule 11-A of the Rules 1959 simply facilitated the sub- letting of a part of the premises by the respondent-company, and did not take away the title and rights that the appellant-RIICO had over the land. The Rule 11-A of the Rules 1959 has further been amended on 12.10.2000 enabling all the allottees of RIICO to sub-lease further. Thus, if the interpretation given by the High Court is accepted, the appellant RIICO looses all its lands and properties and rendered the development authority existing on papers only, without any status/authority. 28. The ultra activist view articulated by the High Court on the basis of supposed intention and imaginative purpose to the amendment act, is uncalled for and ought to have been avoided. It rendered the appellant-RIICO totally insignificant and irrelevant without realising that the appellant-RIICO had autonomous functioning, and the interpretation given by the High Court has devastating effect underlying its status, authority and autonomous functioning. In fact, by interpretation the High Court had conferred an authoritarian role to the State, taking away the right of appellant-RIICO on its property without realising that the amendment to Rule 11-A of the Rules 1959 had specifically been engrafted therein only, for the purpose of facilitating the respondent-company to grant further sub-lease. Thus, it is evident that the High Court decided the case on speculative and hypothetical reasons. 29. The terms incorporated in the lease deed itself provide for timely completion of construction and also for the commencement of production within a stipulated period. Records however, reveal that only 10% of total construction work stood completed by the respondent- company. No proper application was ever filed for seeking extension of time by the respondent-company, as per the Rules. We have been taken through the record. While providing justification for the non-completion of construction and commencement of production, in very vague terms, it was submitted by the respondent-company that extension of time was sought from statutory authorities. However, the said application did not specify how much more time the company was seeking, and that too, without meeting any requirements provided in the statutory rules. 30. According to clause 2(d) of the lease deed the entire project was to be completed within a period of five years i.e. by 25.5.1994. But it is evident from the material on record that construction was just made on the fraction of the entire land. Clause 2 (i) contemplated that, the lessee will not transfer nor sub-let nor relinquish rights without prior permission from the appellant-RIICO. However, it is evident from the record that the respondent-company had negotiated with a third party for development of the land. 31. The cancellation of allotment was made by appellant- RIICO in exercise of its power under Rule 24 of the Rules 1979 read with the terms of the lease agreement. Such an order of cancellation could have been challenged by filing a review application before the competent authority under Rule 24 (aa) and, in the alternative, the respondent- company could have preferred an appeal under Rule 24(bb)(ii) before Infrastructure Development Committee of the Board. The respondent- company ought to have resorted to the arbitration clause provided in the lease deed in the event of a dispute, and the District Collector, Jaipur would have then, decided the case. However, the respondent- company did not resort to either of the statutory remedy, rather preferred a writ petition which could not have been entertained by the High Court. It is a settled law that writ does not lie merely because it is lawful to do so. A person may be asked to exhaust the statutory/alternative remedy available to him in law. | 1[ds]It is evident from the above, that generally the court should not exercise its writ jurisdiction to enforce the contractual obligation. The primary purpose of a writ of mandamus, is to protect and establish rights and to impose a corresponding imperative duty existing in law. It is designed to promote justice (ex debito justiceiae). The grant or refusal of the writ is at the discretion of the court. The writ cannot be granted unless it is established that there is an existing legal right of the applicant, or an existing duty of the respondent. Thus, the writ does not lie to create or to establish a legal right, but to enforce one that is already established. While dealing with a writ petition, the court must exercise discretion, taking into consideration a wide variety of circumstances, inter-alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, and the nature and extent of injury that is likely to ensue by such grant orHigh Court recorded a finding, as regards the submission made on behalf of the appellant-RIICO, stating that the audit conducted by it showing various irregularities and pointing out the mis-appropriation of public funds by the respondent-company, was a matter entirely unrelated to the allotment and development of the said land. Rule 11-A of the Rules 1959, as amended created a legal fiction by which the respondent-company had become a lessee and the State of Rajasthan, the lessor and therefore the order passed by the appellant- RIICO, was wholly without jurisdiction, as after 4.11.1991, RIICO had no authority whatsoever, to cancel the allotment of land made in favour of the respondent-company, since it was only the State of Rajasthan that had the authority to cancel the said allotment; by not providing for an access road, the purpose for which allotment was made by RIICO stood defeated, and this was what had resulted in the delay of the development of the said land, and in such a fact-situation, cancellation of land was not permissible; there was a constructive obligation on the part of the appellant-RIICO to provide an approach road with respect to the land which was allotted; and that RIICO had failed to co-operate with the respondent-company to accomplish the task it had undertaken, and that the order of cancellation was liable to be set aside for lack of jurisdiction and for want of competence.25. The aforesaid reasons given by the High Court are mutually inconsistent. When the High Court came to the conclusion that the appellant-RIICO had no competence to deal with the land and to cancel the allotment made in favour of the respondent-company, there was no justification to hold RIICO responsible for providing the approach road. Such a finding could be permissible only if the appellant-RIICO had competence to deal with the land in dispute.26. The High Court also erred in holding that the provision of providing the access road was an obligation on the part of the appellant-RIICO, deciding this on equitable grounds. The terms of the lease deed clearly stipulated that in case the appellant-RIICO provides the access road, it will be vested with the right to collect the charges incurred by it from the respondent-company, therein, and in the alternative, it would be the obligation of the respondent- company to develop its own infrastructure, and the same would include development of the access road. Therefore, the appellant-RIICO was not under any obligation to provide the said accesscancellation of allotment was made by appellant- RIICO in exercise of its power under Rule 24 of the Rules 1979 read with the terms of the lease agreement. Such an order of cancellation could have been challenged by filing a review application before the competent authority under Rule 24 (aa) and, in the alternative, the respondent- company could have preferred an appeal under Rule 24(bb)(ii) before Infrastructure Development Committee of the Board. The respondent- company ought to have resorted to the arbitration clause provided in the lease deed in the event of a dispute, and the District Collector, Jaipur would have then, decided the case. However, the respondent- company did not resort to either of the statutory remedy, rather preferred a writ petition which could not have been entertained by the High Court. It is a settled law that writ does not lie merely because it is lawful to do so. A person may be asked to exhaust the statutory/alternative remedy available to him in law.Hence, discretion must be exercised by the court on grounds of public policy, public interest and public good. The writ is equitable in nature and thus, its issuance is governed by equitable principles. Refusal of relief must be for reasons which would lead to injustice. The prime consideration for the issuance of the said writ is, whether or not substantial justice will be promoted. Furthermore, while granting such a writ, the court must make every effort to ensure from the averments of the writ petition, whether there exist proper pleadings. In order to maintain the writ of mandamus, the first and foremost requirement is that the petition must not be frivolous, and must be filed in good faith. Additionally, the applicant must make a demand which is clear, plain and unambiguous. It must be made to an officer having the requisite authority to perform the act demanded. Furthermore, the authority against whom mandamus is issued, should have rejected the demand earlier. Therefore, a demand and its subsequent refusal, either by words, or by conduct, are necessary to satisfy the court that the opposite party is determined to ignore the demand of the applicant with respect to the enforcement of his legal right. However, a demand may not be necessary when the same is manifest from the facts of the case, that is, when it is an empty formality, or when it is obvious that the opposite party would not consider the demand. | 1 | 7,280 | 1,101 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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to provide an approach road with respect to the land which was allotted; and that RIICO had failed to co-operate with the respondent-company to accomplish the task it had undertaken, and that the order of cancellation was liable to be set aside for lack of jurisdiction and for want of competence.25. The aforesaid reasons given by the High Court are mutually inconsistent. When the High Court came to the conclusion that the appellant-RIICO had no competence to deal with the land and to cancel the allotment made in favour of the respondent-company, there was no justification to hold RIICO responsible for providing the approach road. Such a finding could be permissible only if the appellant-RIICO had competence to deal with the land in dispute.26. The High Court also erred in holding that the provision of providing the access road was an obligation on the part of the appellant-RIICO, deciding this on equitable grounds. The terms of the lease deed clearly stipulated that in case the appellant-RIICO provides the access road, it will be vested with the right to collect the charges incurred by it from the respondent-company, therein, and in the alternative, it would be the obligation of the respondent- company to develop its own infrastructure, and the same would include development of the access road. Therefore, the appellant-RIICO was not under any obligation to provide the said access road. 27. The interpretation given to the amended Rule 11-A of the Rules 1959 by the High Court, takes away the vested right of the appellant- RIICO in the title as well as in the interest that it had acquired in the property, as it had paid the entire amount for the land to the State when possession of land was handed over to it. Rule 11-A of the Rules 1959 was amended only to facilitate the respondent-company to grant further sub-lease and not to divest RIICO from its rights and title. It was found necessary in wake of difficulties faced by the respondent-company as it was not permissible for it to grant further sub-lease. Thus, the rule provided a deeming clause/fiction that for the purpose of sub-lease by the respondent- company to further allottees, it would be deemed that the State Government had executed the lease in favour of the respondent-company. The terms “mutatis mutandis”, and “as if”, used in the amended provisions of Rule 11-A of the Rules 1959 simply facilitated the sub- letting of a part of the premises by the respondent-company, and did not take away the title and rights that the appellant-RIICO had over the land. The Rule 11-A of the Rules 1959 has further been amended on 12.10.2000 enabling all the allottees of RIICO to sub-lease further. Thus, if the interpretation given by the High Court is accepted, the appellant RIICO looses all its lands and properties and rendered the development authority existing on papers only, without any status/authority. 28. The ultra activist view articulated by the High Court on the basis of supposed intention and imaginative purpose to the amendment act, is uncalled for and ought to have been avoided. It rendered the appellant-RIICO totally insignificant and irrelevant without realising that the appellant-RIICO had autonomous functioning, and the interpretation given by the High Court has devastating effect underlying its status, authority and autonomous functioning. In fact, by interpretation the High Court had conferred an authoritarian role to the State, taking away the right of appellant-RIICO on its property without realising that the amendment to Rule 11-A of the Rules 1959 had specifically been engrafted therein only, for the purpose of facilitating the respondent-company to grant further sub-lease. Thus, it is evident that the High Court decided the case on speculative and hypothetical reasons. 29. The terms incorporated in the lease deed itself provide for timely completion of construction and also for the commencement of production within a stipulated period. Records however, reveal that only 10% of total construction work stood completed by the respondent- company. No proper application was ever filed for seeking extension of time by the respondent-company, as per the Rules. We have been taken through the record. While providing justification for the non-completion of construction and commencement of production, in very vague terms, it was submitted by the respondent-company that extension of time was sought from statutory authorities. However, the said application did not specify how much more time the company was seeking, and that too, without meeting any requirements provided in the statutory rules. 30. According to clause 2(d) of the lease deed the entire project was to be completed within a period of five years i.e. by 25.5.1994. But it is evident from the material on record that construction was just made on the fraction of the entire land. Clause 2 (i) contemplated that, the lessee will not transfer nor sub-let nor relinquish rights without prior permission from the appellant-RIICO. However, it is evident from the record that the respondent-company had negotiated with a third party for development of the land. 31. The cancellation of allotment was made by appellant- RIICO in exercise of its power under Rule 24 of the Rules 1979 read with the terms of the lease agreement. Such an order of cancellation could have been challenged by filing a review application before the competent authority under Rule 24 (aa) and, in the alternative, the respondent- company could have preferred an appeal under Rule 24(bb)(ii) before Infrastructure Development Committee of the Board. The respondent- company ought to have resorted to the arbitration clause provided in the lease deed in the event of a dispute, and the District Collector, Jaipur would have then, decided the case. However, the respondent- company did not resort to either of the statutory remedy, rather preferred a writ petition which could not have been entertained by the High Court. It is a settled law that writ does not lie merely because it is lawful to do so. A person may be asked to exhaust the statutory/alternative remedy available to him in law.
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It is evident from the above, that generally the court should not exercise its writ jurisdiction to enforce the contractual obligation. The primary purpose of a writ of mandamus, is to protect and establish rights and to impose a corresponding imperative duty existing in law. It is designed to promote justice (ex debito justiceiae). The grant or refusal of the writ is at the discretion of the court. The writ cannot be granted unless it is established that there is an existing legal right of the applicant, or an existing duty of the respondent. Thus, the writ does not lie to create or to establish a legal right, but to enforce one that is already established. While dealing with a writ petition, the court must exercise discretion, taking into consideration a wide variety of circumstances, inter-alia, the facts of the case, the exigency that warrants such exercise of discretion, the consequences of grant or refusal of the writ, and the nature and extent of injury that is likely to ensue by such grant orHigh Court recorded a finding, as regards the submission made on behalf of the appellant-RIICO, stating that the audit conducted by it showing various irregularities and pointing out the mis-appropriation of public funds by the respondent-company, was a matter entirely unrelated to the allotment and development of the said land. Rule 11-A of the Rules 1959, as amended created a legal fiction by which the respondent-company had become a lessee and the State of Rajasthan, the lessor and therefore the order passed by the appellant- RIICO, was wholly without jurisdiction, as after 4.11.1991, RIICO had no authority whatsoever, to cancel the allotment of land made in favour of the respondent-company, since it was only the State of Rajasthan that had the authority to cancel the said allotment; by not providing for an access road, the purpose for which allotment was made by RIICO stood defeated, and this was what had resulted in the delay of the development of the said land, and in such a fact-situation, cancellation of land was not permissible; there was a constructive obligation on the part of the appellant-RIICO to provide an approach road with respect to the land which was allotted; and that RIICO had failed to co-operate with the respondent-company to accomplish the task it had undertaken, and that the order of cancellation was liable to be set aside for lack of jurisdiction and for want of competence.25. The aforesaid reasons given by the High Court are mutually inconsistent. When the High Court came to the conclusion that the appellant-RIICO had no competence to deal with the land and to cancel the allotment made in favour of the respondent-company, there was no justification to hold RIICO responsible for providing the approach road. Such a finding could be permissible only if the appellant-RIICO had competence to deal with the land in dispute.26. The High Court also erred in holding that the provision of providing the access road was an obligation on the part of the appellant-RIICO, deciding this on equitable grounds. The terms of the lease deed clearly stipulated that in case the appellant-RIICO provides the access road, it will be vested with the right to collect the charges incurred by it from the respondent-company, therein, and in the alternative, it would be the obligation of the respondent- company to develop its own infrastructure, and the same would include development of the access road. Therefore, the appellant-RIICO was not under any obligation to provide the said accesscancellation of allotment was made by appellant- RIICO in exercise of its power under Rule 24 of the Rules 1979 read with the terms of the lease agreement. Such an order of cancellation could have been challenged by filing a review application before the competent authority under Rule 24 (aa) and, in the alternative, the respondent- company could have preferred an appeal under Rule 24(bb)(ii) before Infrastructure Development Committee of the Board. The respondent- company ought to have resorted to the arbitration clause provided in the lease deed in the event of a dispute, and the District Collector, Jaipur would have then, decided the case. However, the respondent- company did not resort to either of the statutory remedy, rather preferred a writ petition which could not have been entertained by the High Court. It is a settled law that writ does not lie merely because it is lawful to do so. A person may be asked to exhaust the statutory/alternative remedy available to him in law.Hence, discretion must be exercised by the court on grounds of public policy, public interest and public good. The writ is equitable in nature and thus, its issuance is governed by equitable principles. Refusal of relief must be for reasons which would lead to injustice. The prime consideration for the issuance of the said writ is, whether or not substantial justice will be promoted. Furthermore, while granting such a writ, the court must make every effort to ensure from the averments of the writ petition, whether there exist proper pleadings. In order to maintain the writ of mandamus, the first and foremost requirement is that the petition must not be frivolous, and must be filed in good faith. Additionally, the applicant must make a demand which is clear, plain and unambiguous. It must be made to an officer having the requisite authority to perform the act demanded. Furthermore, the authority against whom mandamus is issued, should have rejected the demand earlier. Therefore, a demand and its subsequent refusal, either by words, or by conduct, are necessary to satisfy the court that the opposite party is determined to ignore the demand of the applicant with respect to the enforcement of his legal right. However, a demand may not be necessary when the same is manifest from the facts of the case, that is, when it is an empty formality, or when it is obvious that the opposite party would not consider the demand.
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Chaturbhuj. Panda & Ors Vs. The Collector, Raigarh | the evidence of the witnesses supporting that claim is unacceptable. Relying on certain official reports and the pamphlets published by certain individuals as to the yield from Orange, Mosambi and Gauva trees, average span of life of those trees and the market value of Orange, Mosambi and Gauva, the High Court re-assessed the compensation payable and came to the conclusion that the total value of the trees in the orchard in question could be reasonably fixed at Rs. 58,566. 5. Mr. S. T. Desai, learned Counsel for the appellants complained that the High Court was not right in looking into documents which were not a part of the records of the case particularly when his clients had not been given any opportunity to rebut the conclusions reached therein. It appears that these documents were looked into by the learned Judges after the conclusion of the arguments. If the High Court wanted to take into consideration any fresh evidence, it should have admitted the same in accordance with law. In that event, the appellants would have got opportunity to rebut that evidence. That having not been done, we do not think it was open to the High Court to rely on those documents. We accordingly exclude from consideration those documents. 6. But that is of no assistance to the appellants. As mentioned earlier, the High Court has refused to rely on the oral testimony adduced in support of the appellants claim as regards the value of the orchard. It is true that the witnesses examined on behalf of the appellants have not been effectively cross-examined.It is also true that the Collector had not adduced any evidence in rebuttal; but that does not mean that the court is bound to accept their evidence. The Judges are not computers. In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life. As Judge of fact it was open to the appellate Judges to test the evidence placed before them on the basis of probabilities. 7. We have been taken through the evidence of the witnesses. We are in agreement with the learned Judges of the High Court that the evidence in question is unacceptable. It may be that the garden in question was in a very good condition but it must be remembered that the garden was just 2 acres and 49 cents in extent. It is not possible for us to persuade ourselves to believe that the value of about Rs. 59,000 allowed by the High Court for that garden is by any measure inadequate. It is true that the conclusion of the High Court as regards the valuation of the garden rests on inadmissible evidence but the appellants cannot complain about that.If the evidence adduced by the appellants is rejected as has been done by the High Court then the valuation made by the Special Land Acquisition Officer should have remained but that valuation has been substantially enhanced by the High Court by relying on inadmissible evidence. The Government had not appealed against that decision. Therefore the decision of the High Court in that regard stands. 8. The High Court in our opinion was wrong in disallowing the statutory allowance permitted by Section 23 (2) over the value of the trees. The High Court erred in thinking that the value of the trees falls under the second clause of Section 23 (1). The first clause of Section 23 provides for determining the market value of the land acquired- Section 3 (a) prescribes that "the expression land includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth." Therefore the trees that were standing on the land were a component part of the land acquired.The High Court failed to notice that what was acquired are not the trees but the land as such. The value of the trees was ascertained only for the purpose of fixing the market value of the land. On the value of the land as determined, the court was bound to allow the 15 per cent allowance provided by Sec. 23 (2) of the Act. 9. In Sub Collector of Godavari v. Seragam Subbaroyadu, (1907) ILR 30 Mad 151, the High Court of Madras held that the trees standing on the land acquired are things attached to the earth and hence they are included in the definition of land in Section 3 (a) and that definition must apply in construing Section 23 of the Act. It further held that the value of the trees as are on the land when the declaration is made under Section 6 must be included in the market value of the land on which the allowance of 15 per cent should be given under Section 23 (2) of the Act, The same view was taken by the Allahabad High Court in Krishna Bai v. Secretary of State ILR 42 All 555 = (AIR 1920 All 101 ). We are satisfied that these decisions lay down the law correctly. No decision taking a contrary view was brought to our notice. 10. The only other contention taken on behalf of the appellants is as regards the costs. Both the trial court as well as the High Court directed the parties to bear their own costs. Mr. Desai contended that the compensation awarded by the Land Acquisition Officer having been substantially enhanced by those courts, they were bound to award his clients costs to the extent of their success. Costs are essentially in the discretion of the courts.Both the trial court as well as the High Court have given good reasons in support of their order as to costs. The claim made by the appellants was a highly exaggerated one. The bulk of the evidence adduced by them was found to be unacceptable. Under those circumstances, the courts thought that the appellants should not be granted any costs.We see no reason to interfere with that order. | 1[ds]It is true that the witnesses examined on behalf of the appellants have not been effectively cross-examined.It is also true that the Collector had not adduced any evidence in rebuttal; but that does not mean that the court is bound to accept their evidence. The Judges are not computers. In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life. As Judge of fact it was open to the appellate Judges to test the evidence placed before them on the basis of probabilities7. We have been taken through the evidence of the witnesses. We are in agreement with the learned Judges of the High Court that the evidence in question is unacceptable. It may be that the garden in question was in a very good condition but it must be remembered that the garden was just 2 acres and 49 cents in extent. It is not possible for us to persuade ourselves to believe that the value of about Rs. 59,000 allowed by the High Court for that garden is by any measure inadequate. It is true that the conclusion of the High Court as regards the valuation of the garden rests on inadmissible evidence but the appellants cannot complain about that.If the evidence adduced by the appellants is rejected as has been done by the High Court then the valuation made by the Special Land Acquisition Officer should have remained but that valuation has been substantially enhanced by the High Court by relying on inadmissible evidence. The Government had not appealed against that decision. Therefore the decision of the High Court in that regard stands8. The High Court in our opinion was wrong in disallowing the statutory allowance permitted by Section 23 (2) over the value of the trees. The High Court erred in thinking that the value of the trees falls under the second clause of Section 23 (1). The first clause of Section 23 provides for determining the market value of the land acquired- Section 3 (a) prescribes that "the expression land includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth." Therefore the trees that were standing on the land were a component part of the land acquired.The High Court failed to notice that what was acquired are not the trees but the land as such. The value of the trees was ascertained only for the purpose of fixing the market value of the land. On the value of the land as determined, the court was bound to allow the 15 per cent allowance provided by Sec. 23 (2) of the Act10. The only other contention taken on behalf of the appellants is as regards the costs. Both the trial court as well as the High Court directed the parties to bear their own costs. Mr. Desai contended that the compensation awarded by the Land Acquisition Officer having been substantially enhanced by those courts, they were bound to award his clients costs to the extent of their success. Costs are essentially in the discretion of the courts.Both the trial court as well as the High Court have given good reasons in support of their order as to costs. The claim made by the appellants was a highly exaggerated one. The bulk of the evidence adduced by them was found to be unacceptable. Under those circumstances, the courts thought that the appellants should not be granted any costs.We see no reason to interfere with that order. | 1 | 1,683 | 638 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the evidence of the witnesses supporting that claim is unacceptable. Relying on certain official reports and the pamphlets published by certain individuals as to the yield from Orange, Mosambi and Gauva trees, average span of life of those trees and the market value of Orange, Mosambi and Gauva, the High Court re-assessed the compensation payable and came to the conclusion that the total value of the trees in the orchard in question could be reasonably fixed at Rs. 58,566. 5. Mr. S. T. Desai, learned Counsel for the appellants complained that the High Court was not right in looking into documents which were not a part of the records of the case particularly when his clients had not been given any opportunity to rebut the conclusions reached therein. It appears that these documents were looked into by the learned Judges after the conclusion of the arguments. If the High Court wanted to take into consideration any fresh evidence, it should have admitted the same in accordance with law. In that event, the appellants would have got opportunity to rebut that evidence. That having not been done, we do not think it was open to the High Court to rely on those documents. We accordingly exclude from consideration those documents. 6. But that is of no assistance to the appellants. As mentioned earlier, the High Court has refused to rely on the oral testimony adduced in support of the appellants claim as regards the value of the orchard. It is true that the witnesses examined on behalf of the appellants have not been effectively cross-examined.It is also true that the Collector had not adduced any evidence in rebuttal; but that does not mean that the court is bound to accept their evidence. The Judges are not computers. In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life. As Judge of fact it was open to the appellate Judges to test the evidence placed before them on the basis of probabilities. 7. We have been taken through the evidence of the witnesses. We are in agreement with the learned Judges of the High Court that the evidence in question is unacceptable. It may be that the garden in question was in a very good condition but it must be remembered that the garden was just 2 acres and 49 cents in extent. It is not possible for us to persuade ourselves to believe that the value of about Rs. 59,000 allowed by the High Court for that garden is by any measure inadequate. It is true that the conclusion of the High Court as regards the valuation of the garden rests on inadmissible evidence but the appellants cannot complain about that.If the evidence adduced by the appellants is rejected as has been done by the High Court then the valuation made by the Special Land Acquisition Officer should have remained but that valuation has been substantially enhanced by the High Court by relying on inadmissible evidence. The Government had not appealed against that decision. Therefore the decision of the High Court in that regard stands. 8. The High Court in our opinion was wrong in disallowing the statutory allowance permitted by Section 23 (2) over the value of the trees. The High Court erred in thinking that the value of the trees falls under the second clause of Section 23 (1). The first clause of Section 23 provides for determining the market value of the land acquired- Section 3 (a) prescribes that "the expression land includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth." Therefore the trees that were standing on the land were a component part of the land acquired.The High Court failed to notice that what was acquired are not the trees but the land as such. The value of the trees was ascertained only for the purpose of fixing the market value of the land. On the value of the land as determined, the court was bound to allow the 15 per cent allowance provided by Sec. 23 (2) of the Act. 9. In Sub Collector of Godavari v. Seragam Subbaroyadu, (1907) ILR 30 Mad 151, the High Court of Madras held that the trees standing on the land acquired are things attached to the earth and hence they are included in the definition of land in Section 3 (a) and that definition must apply in construing Section 23 of the Act. It further held that the value of the trees as are on the land when the declaration is made under Section 6 must be included in the market value of the land on which the allowance of 15 per cent should be given under Section 23 (2) of the Act, The same view was taken by the Allahabad High Court in Krishna Bai v. Secretary of State ILR 42 All 555 = (AIR 1920 All 101 ). We are satisfied that these decisions lay down the law correctly. No decision taking a contrary view was brought to our notice. 10. The only other contention taken on behalf of the appellants is as regards the costs. Both the trial court as well as the High Court directed the parties to bear their own costs. Mr. Desai contended that the compensation awarded by the Land Acquisition Officer having been substantially enhanced by those courts, they were bound to award his clients costs to the extent of their success. Costs are essentially in the discretion of the courts.Both the trial court as well as the High Court have given good reasons in support of their order as to costs. The claim made by the appellants was a highly exaggerated one. The bulk of the evidence adduced by them was found to be unacceptable. Under those circumstances, the courts thought that the appellants should not be granted any costs.We see no reason to interfere with that order.
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It is true that the witnesses examined on behalf of the appellants have not been effectively cross-examined.It is also true that the Collector had not adduced any evidence in rebuttal; but that does not mean that the court is bound to accept their evidence. The Judges are not computers. In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life. As Judge of fact it was open to the appellate Judges to test the evidence placed before them on the basis of probabilities7. We have been taken through the evidence of the witnesses. We are in agreement with the learned Judges of the High Court that the evidence in question is unacceptable. It may be that the garden in question was in a very good condition but it must be remembered that the garden was just 2 acres and 49 cents in extent. It is not possible for us to persuade ourselves to believe that the value of about Rs. 59,000 allowed by the High Court for that garden is by any measure inadequate. It is true that the conclusion of the High Court as regards the valuation of the garden rests on inadmissible evidence but the appellants cannot complain about that.If the evidence adduced by the appellants is rejected as has been done by the High Court then the valuation made by the Special Land Acquisition Officer should have remained but that valuation has been substantially enhanced by the High Court by relying on inadmissible evidence. The Government had not appealed against that decision. Therefore the decision of the High Court in that regard stands8. The High Court in our opinion was wrong in disallowing the statutory allowance permitted by Section 23 (2) over the value of the trees. The High Court erred in thinking that the value of the trees falls under the second clause of Section 23 (1). The first clause of Section 23 provides for determining the market value of the land acquired- Section 3 (a) prescribes that "the expression land includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth." Therefore the trees that were standing on the land were a component part of the land acquired.The High Court failed to notice that what was acquired are not the trees but the land as such. The value of the trees was ascertained only for the purpose of fixing the market value of the land. On the value of the land as determined, the court was bound to allow the 15 per cent allowance provided by Sec. 23 (2) of the Act10. The only other contention taken on behalf of the appellants is as regards the costs. Both the trial court as well as the High Court directed the parties to bear their own costs. Mr. Desai contended that the compensation awarded by the Land Acquisition Officer having been substantially enhanced by those courts, they were bound to award his clients costs to the extent of their success. Costs are essentially in the discretion of the courts.Both the trial court as well as the High Court have given good reasons in support of their order as to costs. The claim made by the appellants was a highly exaggerated one. The bulk of the evidence adduced by them was found to be unacceptable. Under those circumstances, the courts thought that the appellants should not be granted any costs.We see no reason to interfere with that order.
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Kanhaiyalal Vs. Dr. D.R. Banaji & Others | is attacked on the ground that the owner of the property was dead at the date of the sale, or that there had been some fraud in connection with the sale proceedings, or that he had been kept out of his remedy under the Code by some fraudulent act, or that there was really no arrear due in respect of the property sold, or such allied grounds-suits based on grounds like these, would not be within the prohibition of S. 157 (1). Section 157 (2) specifically saves certain suits of the kind referred to therein, but it does not necessarily follow that suits not directly within the terms of sub-s. (2) of S. 157, are covered by the provisions of the positive bar laid down by S. 157 (1). There may be atertium quidbetween the grounds covered by S. 157 (1) and S. 157 (2). It is clear that the present suit is not covered either by the terms of S. 157 (1) or those of S. 157 (2).As already indicated, the position emerging in the present controversy, is not covered by the express provisions of S. 157.11. But it has been argued on behalf of the appellant that even though the provisions of S. 157 do not cover the ground raised in the present suit, S. 192 (1) of the Code, bars the suit. Section 192 (1) is in these terms :"192. (1) Except as otherwise provided in this Law, or in any other enactment for the time being in force, no civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which, the Provincial Government or any Revenue Officer is, by this Law, empowered to determine, decide or dispose of; and in particular and without prejudice to the generality of this provision, no civil Court shall exercise jurisdiction over any of the following matters:-"It is not necessary to set out the clauses (a) to (p) under sub-s. (1) of S. 192, because none of those clauses, has been claimed clearly to cover the present suit.12. Learned counsel for the appellant contended that setting aside a sale has been specifically provided for by the Code, which the several authorities under the Code have been empowered to determine, decide or dispose of, within the meaning of the section. There is no doubt that the matter of the setting aside of a sale by payment of the arrears under S. 155, and on the specific grounds under S. 156, as discussed above, has been provided for in the Code,but, as already observed, the suit does not raise any ground which is covered by the specific provisions of the Code for setting aside a sale. Strictly speaking, this is a suit for a declaration that the sale held by the revenue Courts, does not affect the interests which are in the custody of the Court through its Receiver, and for recovery of possession as against the auction-purchaser who is alleged to be in wrongful possession of the property which should have continued in possession of the Receiver, under the directions of the Bombay High Court. In short, this is not a suit simpliciter to set aside the sale held by the revenue authorities but a suit for a declaration and a consequential relief. A suit for such a declaration on the grounds taken by the Receiver and for possession, is not a matter, which the several authorities under the Code, have been empowered to determine, decide or dispose of.13. But the learned counsel for the appellant further contended that S. 192 takes in its sweep all the relevant provisions of the Code bearing on the rights of the Receiver to have a sale set aside. Undoubtedly, it is so, but, as pointed out above, the Receiver could not have brought the present controversy within the terms of any one of those sections. In this connection, reliance was also placed on the provisions of Ss. 32, 38 and 159 of the Code. In our opinion, those sections have no bearing on the present controversy. Section 32 deals with appeals and appellate authorities, and lays down the hierarchy of officers to deal with an appeal. Section 38 prescribes the authorities to deal with revisional matters, and S. 159 conserves the power of the Deputy Commissioner to pass ordersuo motu, that is to say, where no application has been made under S. 155 or S. 156, or even beyond the period of 30 days, which is the prescribed period for making applications under those sections. Thus, if the leave of the Bombay High Court had been taken to initiate proceedings under the Code, for the realization of Government revenue, or if the Receiver had been served with the notice of demand, it would have been his bounden duty to pay up the arrears of land revenue and to continue paying Government demands in respect of the property in his charge, in order to conserve it for the benefit of the parties which were before the Court in the mortgage suit. If such a step had been taken, and if the Receiver, in spite of notice, had allowed the auction-sale to be held for non-payment of Government demands, the sale would have been valid and subject only to such proceedings as are contemplated under Ss. 155 and 156 of the Code. In that case, there would have been no conflict of jurisdiction, and, therefore no question of infringing the sound principle discussed above. But the absence of the leave of the Court and of the necessary notice to the Receiver, makes all the difference between a valid and an illegal sale. The High Court has also relied upon the well-known rule of natural justice-audi alteram partem-as another reason for holding the sale to be illegal. It is not necessary for the purposes of this case to pronounce upon the difficult question of how far a principle of natural justice can override the specific provisions of a statute.1 | 0[ds]7. So far as the Indian Courts are concerned, it is settled law that a sale held without making attachment of the property, or without duly complying with the provisions of the law relating to attachment of property, its not void but only voidable.Rule 52 of O. 21 of the Code of Civil Procedure, requires that where the property is in the custody of any court or public officer, attachment shall be made by a notice to such court or officer. But the absence of such a notice would not render the sale void ab initio into because the jurisdiction of the court or the authority ordering the sale, does not depend upon the issue of the notice of attachment. It is also settled law that proceedings taken in respect of a property which is in the possession and management of a Receiver appointed by court under O. 40, R. 1 of the Code of Civil Procedure, without the leave of that Court, are illegal in the sense that the party proceeding against the property without the leave of the Court concerned, is liable to be committed for contempt of the court, and that the proceedings so held, do not affect the interest in the hands of the Receiver who holds the property for the benefit of the party who, ultimately, may be adjudged by the Court to be entitled to the same.The learned counsel for the respondent was not able to bring to our notice any ruling of any Court in India, holding that a sale held without notice to the Receiver or without the leave of the Court appointing the Receiver in respect of the property, is voidab initio.In the instant case, we do not think it necessary to go into the question raised by the learned counsel for the respondents that a sale of a property in the hands of the Court through its Receiver, without the leave of the Court, is a nullity.The American Courts appear to have taken the view that such a sale is void. In our opinion, it is enough to point out that the High Court took the view that the sale was voidable and could be declared illegal in a proper proceeding or by suit. We shall assume for the purposes of this case that such a sale is only voidable and not voidabis beyond question that the Code lays down a special machinery for the realization of Government revenue which has been declared as the paramount charge on the property, It lays down a summary procedure for the realization of public revenue, and all questions coming within the purview of the Code, must be determined according to the procedure laid down in that Code. Hence, in so far as the Code has laid down specific rules of procedure, those rules and no others, must apply in the determination of all controversies coming strictly within the terms of the statute.One thing is absolutely clear, namely, that the Code does not lay down any specific rules in respect of property which has been placed incustodia legis.The Code contemplates regular payment of government, revenue by the owner, possessor or the occupant of the property in respect of which Government revenue is payable. It also takes notice of devolution of interest by transfer or succession, but it does not contemplate the inter-position of a Receiver in respect of the property subject to the payment of Government revenue.This aspect of the matter becomes important because the only point for determination in this appeal, is whether the auction-sale held under the Code, without the leave of the Court or without notice to the Receiver appointed by the Court, should affect the interest which the Bombay High Court had, by appointing the Receiver, sought to protect if the sale in favour of the appellant, stands. The mortgagees security for the payment of the mortgage debt, in the event of the auction-sale being sustained, is to that extent adversely affected without his having any voice in the matter. Perhaps, if the Receiver were not there, the mortgagee may have been more vigilant and may have taken timely steps to pay the Government demand in respect of the property if only for conserving it for satisfying his own dues on theis no doubt that the matter of the setting aside of a sale by payment of the arrears under S. 155, and on the specific grounds under S. 156, as discussed above, has been provided for in the Code,but, as already observed, the suit does not raise any ground which is covered by the specific provisions of the Code for setting aside a sale. Strictly speaking, this is a suit for a declaration that the sale held by the revenue Courts, does not affect the interests which are in the custody of the Court through its Receiver, and for recovery of possession as against the auction-purchaser who is alleged to be in wrongful possession of the property which should have continued in possession of the Receiver, under the directions of the Bombay High Court. In short, this is not a suit simpliciter to set aside the sale held by the revenue authorities but a suit for a declaration and a consequential relief. A suit for such a declaration on the grounds taken by the Receiver and for possession, is not a matter, which the several authorities under the Code, have been empowered to determine, decide or disposeour opinion, those sections have no bearing on the present controversy. Section 32 deals with appeals and appellate authorities, and lays down the hierarchy of officers to deal with an appeal. Section 38 prescribes the authorities to deal with revisional matters, and S. 159 conserves the power of the Deputy Commissioner to pass ordersuo motu, that is to say, where no application has been made under S. 155 or S. 156, or even beyond the period of 30 days, which is the prescribed period for making applications under those sections. Thus, if the leave of the Bombay High Court had been taken to initiate proceedings under the Code, for the realization of Government revenue, or if the Receiver had been served with the notice of demand, it would have been his bounden duty to pay up the arrears of land revenue and to continue paying Government demands in respect of the property in his charge, in order to conserve it for the benefit of the parties which were before the Court in the mortgage suit. If such a step had been taken, and if the Receiver, in spite of notice, had allowed the auction-sale to be held for non-payment of Government demands, the sale would have been valid and subject only to such proceedings as are contemplated under Ss. 155 and 156 of the Code. In that case, there would have been no conflict of jurisdiction, and, therefore no question of infringing the sound principle discussed above. But the absence of the leave of the Court and of the necessary notice to the Receiver, makes all the difference between a valid and an illegal sale. The High Court has also relied upon the well-known rule of natural justice-audi alteram partem-as another reason for holding the sale to be illegal. It is not necessary for the purposes of this case to pronounce upon the difficult question of how far a principle of natural justice can override the specific provisions of a statute. | 0 | 4,773 | 1,343 | ### 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:
is attacked on the ground that the owner of the property was dead at the date of the sale, or that there had been some fraud in connection with the sale proceedings, or that he had been kept out of his remedy under the Code by some fraudulent act, or that there was really no arrear due in respect of the property sold, or such allied grounds-suits based on grounds like these, would not be within the prohibition of S. 157 (1). Section 157 (2) specifically saves certain suits of the kind referred to therein, but it does not necessarily follow that suits not directly within the terms of sub-s. (2) of S. 157, are covered by the provisions of the positive bar laid down by S. 157 (1). There may be atertium quidbetween the grounds covered by S. 157 (1) and S. 157 (2). It is clear that the present suit is not covered either by the terms of S. 157 (1) or those of S. 157 (2).As already indicated, the position emerging in the present controversy, is not covered by the express provisions of S. 157.11. But it has been argued on behalf of the appellant that even though the provisions of S. 157 do not cover the ground raised in the present suit, S. 192 (1) of the Code, bars the suit. Section 192 (1) is in these terms :"192. (1) Except as otherwise provided in this Law, or in any other enactment for the time being in force, no civil Court shall entertain any suit instituted or application made to obtain a decision or order on any matter which, the Provincial Government or any Revenue Officer is, by this Law, empowered to determine, decide or dispose of; and in particular and without prejudice to the generality of this provision, no civil Court shall exercise jurisdiction over any of the following matters:-"It is not necessary to set out the clauses (a) to (p) under sub-s. (1) of S. 192, because none of those clauses, has been claimed clearly to cover the present suit.12. Learned counsel for the appellant contended that setting aside a sale has been specifically provided for by the Code, which the several authorities under the Code have been empowered to determine, decide or dispose of, within the meaning of the section. There is no doubt that the matter of the setting aside of a sale by payment of the arrears under S. 155, and on the specific grounds under S. 156, as discussed above, has been provided for in the Code,but, as already observed, the suit does not raise any ground which is covered by the specific provisions of the Code for setting aside a sale. Strictly speaking, this is a suit for a declaration that the sale held by the revenue Courts, does not affect the interests which are in the custody of the Court through its Receiver, and for recovery of possession as against the auction-purchaser who is alleged to be in wrongful possession of the property which should have continued in possession of the Receiver, under the directions of the Bombay High Court. In short, this is not a suit simpliciter to set aside the sale held by the revenue authorities but a suit for a declaration and a consequential relief. A suit for such a declaration on the grounds taken by the Receiver and for possession, is not a matter, which the several authorities under the Code, have been empowered to determine, decide or dispose of.13. But the learned counsel for the appellant further contended that S. 192 takes in its sweep all the relevant provisions of the Code bearing on the rights of the Receiver to have a sale set aside. Undoubtedly, it is so, but, as pointed out above, the Receiver could not have brought the present controversy within the terms of any one of those sections. In this connection, reliance was also placed on the provisions of Ss. 32, 38 and 159 of the Code. In our opinion, those sections have no bearing on the present controversy. Section 32 deals with appeals and appellate authorities, and lays down the hierarchy of officers to deal with an appeal. Section 38 prescribes the authorities to deal with revisional matters, and S. 159 conserves the power of the Deputy Commissioner to pass ordersuo motu, that is to say, where no application has been made under S. 155 or S. 156, or even beyond the period of 30 days, which is the prescribed period for making applications under those sections. Thus, if the leave of the Bombay High Court had been taken to initiate proceedings under the Code, for the realization of Government revenue, or if the Receiver had been served with the notice of demand, it would have been his bounden duty to pay up the arrears of land revenue and to continue paying Government demands in respect of the property in his charge, in order to conserve it for the benefit of the parties which were before the Court in the mortgage suit. If such a step had been taken, and if the Receiver, in spite of notice, had allowed the auction-sale to be held for non-payment of Government demands, the sale would have been valid and subject only to such proceedings as are contemplated under Ss. 155 and 156 of the Code. In that case, there would have been no conflict of jurisdiction, and, therefore no question of infringing the sound principle discussed above. But the absence of the leave of the Court and of the necessary notice to the Receiver, makes all the difference between a valid and an illegal sale. The High Court has also relied upon the well-known rule of natural justice-audi alteram partem-as another reason for holding the sale to be illegal. It is not necessary for the purposes of this case to pronounce upon the difficult question of how far a principle of natural justice can override the specific provisions of a statute.1
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0
### Explanation:
was not able to bring to our notice any ruling of any Court in India, holding that a sale held without notice to the Receiver or without the leave of the Court appointing the Receiver in respect of the property, is voidab initio.In the instant case, we do not think it necessary to go into the question raised by the learned counsel for the respondents that a sale of a property in the hands of the Court through its Receiver, without the leave of the Court, is a nullity.The American Courts appear to have taken the view that such a sale is void. In our opinion, it is enough to point out that the High Court took the view that the sale was voidable and could be declared illegal in a proper proceeding or by suit. We shall assume for the purposes of this case that such a sale is only voidable and not voidabis beyond question that the Code lays down a special machinery for the realization of Government revenue which has been declared as the paramount charge on the property, It lays down a summary procedure for the realization of public revenue, and all questions coming within the purview of the Code, must be determined according to the procedure laid down in that Code. Hence, in so far as the Code has laid down specific rules of procedure, those rules and no others, must apply in the determination of all controversies coming strictly within the terms of the statute.One thing is absolutely clear, namely, that the Code does not lay down any specific rules in respect of property which has been placed incustodia legis.The Code contemplates regular payment of government, revenue by the owner, possessor or the occupant of the property in respect of which Government revenue is payable. It also takes notice of devolution of interest by transfer or succession, but it does not contemplate the inter-position of a Receiver in respect of the property subject to the payment of Government revenue.This aspect of the matter becomes important because the only point for determination in this appeal, is whether the auction-sale held under the Code, without the leave of the Court or without notice to the Receiver appointed by the Court, should affect the interest which the Bombay High Court had, by appointing the Receiver, sought to protect if the sale in favour of the appellant, stands. The mortgagees security for the payment of the mortgage debt, in the event of the auction-sale being sustained, is to that extent adversely affected without his having any voice in the matter. Perhaps, if the Receiver were not there, the mortgagee may have been more vigilant and may have taken timely steps to pay the Government demand in respect of the property if only for conserving it for satisfying his own dues on theis no doubt that the matter of the setting aside of a sale by payment of the arrears under S. 155, and on the specific grounds under S. 156, as discussed above, has been provided for in the Code,but, as already observed, the suit does not raise any ground which is covered by the specific provisions of the Code for setting aside a sale. Strictly speaking, this is a suit for a declaration that the sale held by the revenue Courts, does not affect the interests which are in the custody of the Court through its Receiver, and for recovery of possession as against the auction-purchaser who is alleged to be in wrongful possession of the property which should have continued in possession of the Receiver, under the directions of the Bombay High Court. In short, this is not a suit simpliciter to set aside the sale held by the revenue authorities but a suit for a declaration and a consequential relief. A suit for such a declaration on the grounds taken by the Receiver and for possession, is not a matter, which the several authorities under the Code, have been empowered to determine, decide or disposeour opinion, those sections have no bearing on the present controversy. Section 32 deals with appeals and appellate authorities, and lays down the hierarchy of officers to deal with an appeal. Section 38 prescribes the authorities to deal with revisional matters, and S. 159 conserves the power of the Deputy Commissioner to pass ordersuo motu, that is to say, where no application has been made under S. 155 or S. 156, or even beyond the period of 30 days, which is the prescribed period for making applications under those sections. Thus, if the leave of the Bombay High Court had been taken to initiate proceedings under the Code, for the realization of Government revenue, or if the Receiver had been served with the notice of demand, it would have been his bounden duty to pay up the arrears of land revenue and to continue paying Government demands in respect of the property in his charge, in order to conserve it for the benefit of the parties which were before the Court in the mortgage suit. If such a step had been taken, and if the Receiver, in spite of notice, had allowed the auction-sale to be held for non-payment of Government demands, the sale would have been valid and subject only to such proceedings as are contemplated under Ss. 155 and 156 of the Code. In that case, there would have been no conflict of jurisdiction, and, therefore no question of infringing the sound principle discussed above. But the absence of the leave of the Court and of the necessary notice to the Receiver, makes all the difference between a valid and an illegal sale. The High Court has also relied upon the well-known rule of natural justice-audi alteram partem-as another reason for holding the sale to be illegal. It is not necessary for the purposes of this case to pronounce upon the difficult question of how far a principle of natural justice can override the specific provisions of a statute.
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Bihar State Financial Corpn.&Ors Vs. M/S.Chemicot India P.Ltd.&Ors | respect of land. (c) Valid SSI, Registration Certificate. Clause 24: The concern shall have to submit D.G.T.D., Registration Certificate. 3. The agreement was registered on 31.3.1988, although no D.G.T.D. Certificate had been furnished. According to the 1st respondent, its unit being a small one, furnishing of such certificate was not necessary and in any event, the same was not granted by the authorities concerned. The Corporation refused to advance any amount on the terms that the 1st respondent had failed to furnish the said certificate, which according to it was necessary. 4. A writ petition was filed by the respondent before the Patna High Court which was marked as C.W.J.C. No.1691/1990. On a finding that the Corporation has waived its right to insist upon the Respondent to furnish such certificate in view of the fact that the agreement was registered, the Corporation was directed to disburse the term loan to the respondent- Company. The Corporation is, thus, before us. 5. Mr. M.P. Jha, learned counsel appearing on behalf of the Corporation, submitted that in view of the fact that as the respondent did not fulfil its obligation to repay the amount in terms of agreement in respect of the loan taken by it on 10.3.1983, 20.3.1986 and 24.3.1987, no Writ of Mandamus could issue. It was submitted that the Allahabad Bank, from which the 1st respondent had also taken loan, has also filed a suit for recovery of the loan granted to it. 6. Mr. S.B. Sanyal, learned Senior counsel appearing on behalf of the respondent, on the other hand, contended: i) The Corporation could not have refused to fulfil its solemn promise to advance the additional subsidy of Rs.15 lakhs. ii) The requirement of furnishing of D.G.T.D. Registration Certificate was not applicable in the case of a Small Scale Industry and in any event, the Corporation having registered the said documents, the order sanctioning the amount could not have been refused to be honoured. 7. At the outset, we may notice that on a query made by this Court as to whether the respondent-Company would be in a position to start the factory and commence production of Absorbent Cotton if the amount of loan was directed to be paid to it, an affidavit has been filed on behalf of the respondent-Company stating that the Corporation itself was responsible for the present state of affairs of the respondent as the sanctioned loan has not been disbursed in time. It was stated before us that the factory can be revived. The Corporation, however, in its affidavit stated : That it is submitted that the whole factory including the Machine rooms are in such a bad position that there is no machine available at the site and as per inspection done on 10.7.2006 by U.L. Karn, Branch Manager, Bihar State Financial Corporation, the petitioner herein, the main gate is locked for years. No one was seen since years as learnt from the neighbourhood, walls and structure of the factory are in damaged condition. There is no one attending the factory, there are no watch and ward staff, generators rooms are locked; machines rooms are empty, stores are locked, shutters are rotting in rain. 8. The Respondent, however, denies and disputes the said statements. 9. The Corporation is a statutory organization. Ordinarily, the Court in exercise of its writ jurisdiction, should not interfere with a decision taken by it, but, it is well settled, that the doctrine of promissory estoppel would apply as against the financial corporation if a case is made out therefor. 10. In the writ petition the High Court was not concerned with the question as to whether the respondent had complied with the terms and conditions of the loan agreement in the matter of repaying of the installments in time, but was concerned with the question as to whether the Corporation being a statutory organization, could take a stand different from the one passed in its order. The High Court evidently proceeded on the basis that it could not have been done. The High Court may not be entirely correct in its approach as the transactions were governed by a statute and were essentially commercial in character. Unfortunately, however, the contentions, which have been raised before us, were not raised before the High Court. 11. This Court in exercise of its jurisdiction under Article 136 of the Constitution of India, indisputably, can take note of the subsequent events. Rightly or wrongly the amount of subsidy has not been paid to the corporation for more than 15 years. Admittedly, now the unit is lying closed. The High Court and this Court having not been called upon to determine the question as to who was responsible therefor. Even otherwise, it is unnecessary to go into the said question. Fact, however, remains that no purpose would be served by directing the Corporation to pay unto the respondent the aforementioned amount of Rs.15 lakhs at this point of time. There is a serious dispute in regard to the viability of revival of the entire unit. This Court evidently cannot determine such a disputed question of fact in these proceedings. 12. We, therefore, in the peculiar facts if this case, are of the opinion that it would be futile to issue a writ of or in the nature of mandamus directing the Corporation to pay the aforementioned amount of Rs.15 lakhs to the respondent-Company. We may, however, hasten to add that we have not gone into the question as to whether the respondent-Company had paid any amount to the Corporation as against the loan amount which had admittedly been received by it. If the respondent-Company had not done so, the Corporation may take such steps in relation thereto, as it may be advised in this behalf but it goes without saying that it would be open to the respondent-Company to raise such contentions, including the payment of additional subsidy to it and/or effect thereof in the proceedings, which may be initiated by the Corporation. | 1[ds]9. The Corporation is a statutory organization. Ordinarily, the Court in exercise of its writ jurisdiction, should not interfere with a decision taken by it, but, it is well settled, that the doctrine of promissory estoppel would apply as against the financial corporation if a case is made out therefor10. In the writ petition the High Court was not concerned with the question as to whether the respondent had complied with the terms and conditions of the loan agreement in the matter of repaying of the installments in time, but was concerned with the question as to whether the Corporation being a statutory organization, could take a stand different from the one passed in its order. The High Court evidently proceeded on the basis that it could not have been done. The High Court may not be entirely correct in its approach as the transactions were governed by a statute and were essentially commercial in character. Unfortunately, however, the contentions, which have been raised before us, were not raised before the High Court12. We, therefore, in the peculiar facts if this case, are of the opinion that it would be futile to issue a writ of or in the nature of mandamus directing the Corporation to pay the aforementioned amount of Rs.15 lakhs to the respondent-Company. We may, however, hasten to add that we have not gone into the question as to whether the respondent-Company had paid any amount to the Corporation as against the loan amount which had admittedly been received by it. If the respondent-Company had not done so, the Corporation may take such steps in relation thereto, as it may be advised in this behalf but it goes without saying that it would be open to the respondent-Company to raise such contentions, including the payment of additional subsidy to it and/or effect thereof in the proceedings, which may be initiated by the Corporation. | 1 | 1,342 | 350 | ### Instruction:
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respect of land. (c) Valid SSI, Registration Certificate. Clause 24: The concern shall have to submit D.G.T.D., Registration Certificate. 3. The agreement was registered on 31.3.1988, although no D.G.T.D. Certificate had been furnished. According to the 1st respondent, its unit being a small one, furnishing of such certificate was not necessary and in any event, the same was not granted by the authorities concerned. The Corporation refused to advance any amount on the terms that the 1st respondent had failed to furnish the said certificate, which according to it was necessary. 4. A writ petition was filed by the respondent before the Patna High Court which was marked as C.W.J.C. No.1691/1990. On a finding that the Corporation has waived its right to insist upon the Respondent to furnish such certificate in view of the fact that the agreement was registered, the Corporation was directed to disburse the term loan to the respondent- Company. The Corporation is, thus, before us. 5. Mr. M.P. Jha, learned counsel appearing on behalf of the Corporation, submitted that in view of the fact that as the respondent did not fulfil its obligation to repay the amount in terms of agreement in respect of the loan taken by it on 10.3.1983, 20.3.1986 and 24.3.1987, no Writ of Mandamus could issue. It was submitted that the Allahabad Bank, from which the 1st respondent had also taken loan, has also filed a suit for recovery of the loan granted to it. 6. Mr. S.B. Sanyal, learned Senior counsel appearing on behalf of the respondent, on the other hand, contended: i) The Corporation could not have refused to fulfil its solemn promise to advance the additional subsidy of Rs.15 lakhs. ii) The requirement of furnishing of D.G.T.D. Registration Certificate was not applicable in the case of a Small Scale Industry and in any event, the Corporation having registered the said documents, the order sanctioning the amount could not have been refused to be honoured. 7. At the outset, we may notice that on a query made by this Court as to whether the respondent-Company would be in a position to start the factory and commence production of Absorbent Cotton if the amount of loan was directed to be paid to it, an affidavit has been filed on behalf of the respondent-Company stating that the Corporation itself was responsible for the present state of affairs of the respondent as the sanctioned loan has not been disbursed in time. It was stated before us that the factory can be revived. The Corporation, however, in its affidavit stated : That it is submitted that the whole factory including the Machine rooms are in such a bad position that there is no machine available at the site and as per inspection done on 10.7.2006 by U.L. Karn, Branch Manager, Bihar State Financial Corporation, the petitioner herein, the main gate is locked for years. No one was seen since years as learnt from the neighbourhood, walls and structure of the factory are in damaged condition. There is no one attending the factory, there are no watch and ward staff, generators rooms are locked; machines rooms are empty, stores are locked, shutters are rotting in rain. 8. The Respondent, however, denies and disputes the said statements. 9. The Corporation is a statutory organization. Ordinarily, the Court in exercise of its writ jurisdiction, should not interfere with a decision taken by it, but, it is well settled, that the doctrine of promissory estoppel would apply as against the financial corporation if a case is made out therefor. 10. In the writ petition the High Court was not concerned with the question as to whether the respondent had complied with the terms and conditions of the loan agreement in the matter of repaying of the installments in time, but was concerned with the question as to whether the Corporation being a statutory organization, could take a stand different from the one passed in its order. The High Court evidently proceeded on the basis that it could not have been done. The High Court may not be entirely correct in its approach as the transactions were governed by a statute and were essentially commercial in character. Unfortunately, however, the contentions, which have been raised before us, were not raised before the High Court. 11. This Court in exercise of its jurisdiction under Article 136 of the Constitution of India, indisputably, can take note of the subsequent events. Rightly or wrongly the amount of subsidy has not been paid to the corporation for more than 15 years. Admittedly, now the unit is lying closed. The High Court and this Court having not been called upon to determine the question as to who was responsible therefor. Even otherwise, it is unnecessary to go into the said question. Fact, however, remains that no purpose would be served by directing the Corporation to pay unto the respondent the aforementioned amount of Rs.15 lakhs at this point of time. There is a serious dispute in regard to the viability of revival of the entire unit. This Court evidently cannot determine such a disputed question of fact in these proceedings. 12. We, therefore, in the peculiar facts if this case, are of the opinion that it would be futile to issue a writ of or in the nature of mandamus directing the Corporation to pay the aforementioned amount of Rs.15 lakhs to the respondent-Company. We may, however, hasten to add that we have not gone into the question as to whether the respondent-Company had paid any amount to the Corporation as against the loan amount which had admittedly been received by it. If the respondent-Company had not done so, the Corporation may take such steps in relation thereto, as it may be advised in this behalf but it goes without saying that it would be open to the respondent-Company to raise such contentions, including the payment of additional subsidy to it and/or effect thereof in the proceedings, which may be initiated by the Corporation.
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9. The Corporation is a statutory organization. Ordinarily, the Court in exercise of its writ jurisdiction, should not interfere with a decision taken by it, but, it is well settled, that the doctrine of promissory estoppel would apply as against the financial corporation if a case is made out therefor10. In the writ petition the High Court was not concerned with the question as to whether the respondent had complied with the terms and conditions of the loan agreement in the matter of repaying of the installments in time, but was concerned with the question as to whether the Corporation being a statutory organization, could take a stand different from the one passed in its order. The High Court evidently proceeded on the basis that it could not have been done. The High Court may not be entirely correct in its approach as the transactions were governed by a statute and were essentially commercial in character. Unfortunately, however, the contentions, which have been raised before us, were not raised before the High Court12. We, therefore, in the peculiar facts if this case, are of the opinion that it would be futile to issue a writ of or in the nature of mandamus directing the Corporation to pay the aforementioned amount of Rs.15 lakhs to the respondent-Company. We may, however, hasten to add that we have not gone into the question as to whether the respondent-Company had paid any amount to the Corporation as against the loan amount which had admittedly been received by it. If the respondent-Company had not done so, the Corporation may take such steps in relation thereto, as it may be advised in this behalf but it goes without saying that it would be open to the respondent-Company to raise such contentions, including the payment of additional subsidy to it and/or effect thereof in the proceedings, which may be initiated by the Corporation.
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SAURAV YADAV & ORS Vs. STATE OF UTTAR PRADESH & ORS | in the very same paragraph and the illustration given thereafter are absolutely clear on the point. 30. The decision of this Court in Public Service Commission, Uttaranchal vs. Mamta Bisht (2010) 12 SCC 204 was also completely misunderstood. In that case one Neetu Joshi had secured a seat in General Category on her own merit and she also answered the category of horizontal reservation earmarked for Uttaranchal Mahila. The attempt on part of Mamta Bisht, the original writ petitioner, was to submit that said Neetu Joshi having been appointed on her own merit in General Category, the seat meant for Uttaranchal Mahila category had to be filled up by other candidates. In essence, what was projected was the same stand taken by the respondents in Rajesh Kumar Daria (2007) 8 SCC 785 , which was expressly rejected in that case. It is for this reason that para 15 of the decision in Public Service Commission, Uttaranchal vs. Mamta Bisht (2010) 12 SCC 204 expressly returned a finding that the judgment rendered by the High Court in accepting the claim of Mamta Bisht was not in consonance with law laid down in Rajesh Kumar Daria (2007) 8 SCC 785 and the appeal was allowed. This decision is thus not of any help or assistance in support of the second view. 31. The second view is thus neither based on any authoritative pronouncement by this Court nor does it lead to a situation where the merit is given precedence. Subject to any permissible reservations i.e. either Social (Vertical) or Special (Horizontal), opportunities to public employment and selection of candidates must purely be based on merit. Any selection which results in candidates getting selected against Open/General category with less merit than the other available candidates will certainly be opposed to principles of equality. There can be special dispensation when it comes to candidates being considered against seats or quota meant for reserved categories and in theory it is possible that a more meritorious candidate coming from Open/General category may not get selected. But the converse can never be true and will be opposed to the very basic principles which have all the while been accepted by this Court. Any view or process of interpretation which will lead to incongruity as highlighted earlier, must be rejected. 32. The second view will thus not only lead to irrational results where more meritorious candidates may possibly get sidelined as indicated above but will, of necessity, result in acceptance of a postulate that Open / General seats are reserved for candidates other than those coming from vertical reservation categories. Such view will be completely opposed to the long line of decisions of this Court. 33. We, therefore, do not approve the second view and reject it. The first view which weighed with the High Courts of Rajasthan, Bombay, Uttarakhand and Gujarat is correct and rational. 34. It must be stated here that the submissions advanced by the Advocate General for Uttar Pradesh as recorded in the order dated 16.03.2016 before the Single Judge of the High Court (quoted in paragraph 9 hereinabove) were absolutely correct. The Single Judge and the Division Bench of the High Court completely erred in rejecting the stand taken on behalf of the State. It appears that after such rejection, the Procedure laid down for completing the recruitment exercise as referred to in the order dated 22.02.2019 passed by the Division Bench of the High Court (quoted hereinabove in paragraph 11) had stated in step 4.1 that candidate not belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes category alone would be considered against general category. Said Procedure and especially step 4.1 was erroneous but was perhaps guided by the declaration issued by the High Court earlier. On the other hand, the stand taken by the Advocate General for Maharashtra as recorded by the High Court of Bombay in Charushila vs. State of Maharashtra 2019 SCC OnLine Bom 1519 was correct. 35. We must also clarify at this stage that it is not disputed that the Applicant no.1 and other similarly situated candidates are otherwise entitled and eligible to be appointed in Open/General Category and that they have not taken or availed of any special benefit which may disentitle them from being considered against Open/General Category seat. The entire discussion and analysis in the present case is, therefore, from said perspective. 36. Finally, we must say that the steps indicated by the High Court of Gujarat in para 56 of its judgment in Tamannaben Ashokbhai Desai (R/LPA No.1910 of 2019 in R/Special Civil Application No.18968 of 2018 etc. decided on 05.08.2020) contemplate the correct and appropriate procedure for considering and giving effect to both vertical and horizontal reservations. The illustration given by us deals with only one possible dimension. There could be multiple such possibilities. Even going by the present illustration, the first female candidate allocated in the vertical column for Scheduled Tribes may have secured higher position than the candidate at Serial No.64. In that event said candidate must be shifted from the category of Scheduled Tribes to Open / General category causing a resultant vacancy in the vertical column of Scheduled Tribes. Such vacancy must then enure to the benefit of the candidate in the Waiting List for Scheduled Tribes – Female. The steps indicated by Gujarat High Court will take care of every such possibility. It is true that the exercise of laying down a procedure must necessarily be left to the concerned authorities but we may observe that one set out in said judgment will certainly satisfy all claims and will not lead to any incongruity as highlighted by us in the preceding paragraphs. 37. Having come to the conclusion that the Appellant No.1 and similarly situated candidates had secured more marks than the last candidates selected in Open/General Category, the logical consequence must be to annul said selection and direct the authorities to do the exercise de novo in the light of conclusions arrived at by us. | 1[ds]16. Thus, the facts which stand accepted or admitted on record are as under:-a) In pursuance of the directions issued by this Court in its Order dated 24.07.2019, selection to the 3295 (Though the Order dated 24.07.2019 mentioned the figure to be 3294 (2312+982), according to the State, the actual figure is 3295.) posts in accordance with merit and consistent with reservation policy of the Government was undertaken by the State Government.b) According to the results declared on 11.11.2019, 188 posts in General Female Category were filled up.c) While filling up said 188 posts, the claim of OBC Female Candidates was not considered or taken into account.d) The last candidate appointed in the category of General Female had secured 274.8298 marks.e) Applicant no.1 Ms. Sonam Tomar had secured 276.5949 marks i.e. greater than the candidate with 274.8298 marks but her claim was not considered.f) 21 such applicants who come from the category of OBC Female are before this Court who had secured more than 274.8928 marks.In the backdrop of these admitted facts, the action on part of the State Government in refusing to consider the claim of OBC Female Category candidates in respect of General Female Category seats is in question in the present matter. It must be mentioned that no SC Female Category candidates who were not selected, had secured more marks than 274.8928. Therefore, the claim of Applicant no.2 and other similarly situated SC Female Category candidates does not stand on the same footing.The narration of events was only to note the effect of the order dated 16.03.2016 and the affirmation thereof in appeal, as a result of which revised final list was published on 29.11.2016. As the observations indicate, this Court had not gone into the details in respect of challenge entertained by the High Court as no occasion had arisen for such consideration. We, therefore, reject the submission that the Order dated 16.03.2016 stood approved by this Court.19. Paragraph 9 of Rajesh Kumar Daria etc. vs. Rajasthan Public Service Commission and others (2007) 8 SCC 785 referred to the well-established principle that a candidate belonging to any of the vertical reservation categories, on the basis of his own merit, is entitled to be selected in the Open or General Category and in such eventuality his selection is not to be counted against the quota reserved for such vertical reservation category. We may for the sake of clarity reproduce the following extract from the decision in Ritesh R. Sah vs. Dr. Y.L. Yamul and Others (1996) 3 SCC 253 which noted the larger Bench decisions in Indra Sawhney vs. Union of India (1992) Supp (3) SCC 217 and R. K. Sabharwal vs. State of Punjab (1995) 2 SCC 745 and stated:-13. There cannot be any dispute with the proposition that if a candidate is entitled to be admitted on the basis of his own merit then such admission should not be counted against the quota reserved for Scheduled Caste or Scheduled Tribe or any other reserved category since that will be against the constitutional mandate enshrined in Article 16(4).14. In a case Indra Sawhney v. Union of India (1992) Supp (3) SCC 217 commonly known as Mandal case, this Court held thus: (SCC p. 735, para 811)In this connection it is well to remember that the reservations under Article 16(4) do not operate like a communal reservation. It may well happen that some members belonging to, say, Scheduled Castes get selected in the open competition field on the basis of their own merit; they will not be counted against the quota reserved for Scheduled Castes; they will be treated as open competition candidates.15. In R.K. Sabharwal v. State of Punjab (1995) 2 SCC 745 the Constitution Bench of this Court considered the question of appointment and promotion and roster points vis-à-vis reservation and held thus: (SCC p. 750, para 4)When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16(4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward Class. The fact that considerable number of members of a Backward Class have been appointed/promoted against general seats in the State Services may be a relevant factor for the State Government to review the question of continuing reservation for the said class but so long as the instructions/rules providing certain percentage of reservations for the Backward Classes are operative the same have to be followed. Despite any number of appointees/promotees belonging to the Backward Classes against the general category posts the given percentage has to be provided in addition.16. In Union of India v. Virpal Singh Chauhan (1995) 6 SCC 684 (SCC at p. 705) it has been held that while determining the number of posts reserved for Scheduled Castes and Scheduled Tribes, the candidates belonging to reserved category but selected/promoted on the rule of merit (and not by virtue of rule of reservation) shall not be counted as reserved category candidates.20. None of the decisions referred to hereinabove however had an occasion to consider whether the principle as stated in decisions referred to in the preceding paragraph also apply to cases of horizontal reservation.21. The view taken by the High Courts of Rajasthan, Bombay, Uttarakhand and Gujarat is thus contrary to the one that weighed with the High Court of Allahabad. Apart from the Orders referred to in paragraphs 9 to 11 hereinabove, the Full Bench of the High Court of Allahabad in Ajay Kumar vs. State of U.P. and others (2019) 5 ALJ 466 held:-For the aforesaid, to our mind, inter-se merit of women has no role to play in the implementation of horizontal reservation as the socially reserved candidate (SC, ST, & OBC) seeking benefit of reservation of special category (women) cannot claim adjustment in open category.The High Court of Madhya Pradesh has also adopted a view similar to that taken by the High Court of Allahabad. In State of Madhya Pradesh and another vs. Uday Sisode and others (2019) SCC OnLine MP 5750, the High Court referred to the decision of this Court in Public Service Commission, Uttaranchal vs. Mamta Bisht (2010) 12 SCC 204 and observed:-18. In the above judgment the High Court had held that since the last selected candidate receiving the benefit of horizontal reservation had secured more marks than the last selected general category candidate, therefore, she ought to have been appointed against the vacancy in general category. The Honble Supreme Court has found this view of the High Court contrary to the law laid down in the case of Rajesh Kumar Daria. (2007) 8 SCC 785 Same is the position in the present case wherein OBC police personnel receiving the benefit of horizontal compartmentalised reservation is claiming the appointment on the ground that he has secured more marks than the last selected general category candidate, but this can not be accepted in view of above judgment.19. The issue relating to the appointment of physically handicapped persons [horizontal (social) reservation] against the seat of Open General Category on the basis of higher marks had earlier come up before the Division Bench of this Court at Gwalior in WA No. 414/2017 and the Division Bench had held it to be impermissible by holding that the concept of migration from one category to another on the basis of merit may hold good in vertical reservation, but in horizontal reservation the same is not applicable. In this regard the Division Bench has held as under:—9. The question is whether a candidate who opts to take up a competitive examination not as a General Category/Unreserved category but as a reserved category candidate belonging to SC/ST/OBC, as the case may be, thus competing amongst the candidates of his category, if obtains marks higher than obtained by the candidates of a General Category can be permitted to incurs in the General Category. In other words, whether a candidate having opted to participate in a competitive examination as a reserved category candidate can be permitted to migrate to General Category?10. In Indra Swahney v. Union of India, 1992 Supp (3) SCC 217 (Paragraph 812), it has been observed —11. Thus, when a reservation is horizontal, then the candidate selected on the basis of reservation in any category has to be fixed in said category and cannot be allowed to migrate to other category. The concept of migrating from one category to another on the basis of merit may hold good in vertical reservation but in horizontal reservation the same is not applicable.12. In Rajesh Kumar Daria v. Rajasthan Public Service Commission, (2007) 8 SCC 785 : AIR 2007 SC 3127 , it has been held—13. The impugned judgment when tested on the anvil of the above analysis cannot be faulted with as would warrant any interference. However, we are of the considered opinion, in the given facts of the case that there being no malafides on the part of the Commission in causing migration, no case is made out by the petitioners (respondents no. 1, 2 and 3) for imposing cost of Rs. 25,000/- payable in favour of each of the petitioners therein. We therefore set aside the cost imposed.20. In the present case the aforesaid judgment of the Division Bench was not brought to the notice when Writ Appeal was decided by judgment under review, and a different view has been taken which renders the judgment under review per incurium.21. In the present case learned Single Judge has placed reliance upon the judgment in the case of Jitendra Kumar Singh v. State of U.P. (2010) 3 SCC 119 and in the matter of Deepa E.V. v. Union of India (2017) 12 SCC 680 but these judgments relate to migration of SC, ST, OBC candidates to open category in case of vertical reservation. These are not the cases where horizontal reservation candidate has been permitted to take appointment against open category seat on the basis of their marks.22. The principle that candidates belonging to any of the vertical reservation categories are entitled to be selected in Open or General Category is well settled. It is also well accepted that if such candidates belonging to reserved categories are entitled to be selected on the basis of their own merit, their selection cannot be counted against the quota reserved for the categories for vertical reservation that they belong. Apart from the extracts from the decisions of this Court in Indra Sawhney (1992) Supp (3) SCC 217 and R. K. Sabharwal (1995) 2 SCC 745 the observations by the Constitution Bench of this Court in Shri V.V. Giri vs. Dippala Suri Dora and Others (1960) 1 SCR 426 , though in the context of election law, are quite noteworthy.21. … In our opinion, the true position is that a member of a Scheduled Caste or Tribe does not forego his right to seek election to the general seat merely because he avails himself of the additional concession of the reserved seat by making the prescribed declaration for that purpose. The claim of eligibility for the reserved seat does not exclude the claim for the general seat; it is an additional claim; and both the claims have to be decided on the basis that there is one election from the double-member constituency.22. In this connection we may refer by way of analogy to the provisions made in some educational institutions and universities whereby in addition to the prizes and scholarships awarded on general competition amongst all the candidates, some prizes and scholarships are reserved for candidates belonging to backward communities. In such cases, though the backward candidates may try for the reserved prizes and scholarships, they are not precluded from claiming the general prizes and scholarships by competition with the rest of the candidates.23. The High Courts of Rajasthan, Bombay, Uttarakhand, and Gujarat have adopted the same principle while dealing with horizontal reservation whereas the High Court of Allahabad and Madhya Pradesh have taken a contrary view. These two views, for facility, are referred to as the first view and the second view respectively. The second view that weighed with the High Courts of Allahabad and Madhya Pradesh is essentially based on the premise that after the first two steps as detailed in paragraph 18 of the decision in Anil Kumar Gupta and Others (1995) 5 SCC 173 and after vertical reservations are provided for, at the stage of accommodating candidates for effecting horizontal reservation, the candidates from reserved categories can be adjusted only against their own categories under the concerned vertical reservation and not against the Open or General Category.24. Thus, according to the second view, different principles must be adopted at two stages; in that:-.(I) At the initial stage when the Open or General Category seats are to be filled, the claim of all reserved category candidates based on merit must be considered and if any candidates from such reserved categories, on their own merit, are entitled to be selected against Open or General Category seats, such placement of the reserved category candidate is not to affect in any manner the quota reserved for such categories in vertical reservation.(II) However, when it comes to adjustment at the stage of horizontal reservation, even if, such reserved category candidates are entitled, on merit, to be considered and accommodated against Open or General Seats, at that stage the candidates from any reserved category can be adjusted only and only if there is scope for their adjustment in their own vertical column of reservation.Such exercise would be premised on following postulates: -(A) After the initial allocation of Open General Category seats is completed, the claim or right of reserved category candidates to be admitted in Open General Category seats on the basis of their own merit stands exhausted and they can only be considered against their respective column of vertical reservation.(B) If there be any resultant adjustment on account of horizontal reservation in Open General Category, only those candidates who are not in any of the categories for whom vertical reservations is provided, alone are to be considered.(C) In other words, at the stage of horizontal reservation, Open General Category is to be construed as category meant for candidates other than those coming from any of the categories for whom vertical reservation is provided.25. The second view may lead to a situation where, while making adjustment for horizontal reservation in Open or General Category seats, less meritorious candidates may be adjusted, as has happened in the present matter. Admittedly, the last selected candidates in Open General female category while making adjustment of horizontal reservation had secured lesser marks than the Applicants. The claim of the Applicants was disregarded on the ground that they could claim only and only if there was a vacancy or chance for them to be accommodated in their respective column of vertical reservation.26. Both the views can be compared and the issues involved in this matter can be considered in the light of a hypothetical illustration with following assumptions: -(i) The total seats available are 100; comprising of 50 seats for Open/General Category. The reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes is at 20%, 10% and 20% respectively and all candidates from these reserved categories are otherwise eligible to be considered against Open General Category.(ii) The percentage of seats available for Women by way of compartmentalized horizontal reservation is 30%.(iii) Out of all qualified candidates, when first 50 meritorious candidates are picked up to fill up the seats for Open/General Category:-(a) There are only 11 women in first 50 candidates in Open/General Category; and(b) the last five persons in the Open/General Category viz., the candidates at Serial Nos.46, 47, 48, 49 and 50 are–Sl. No. 46 - Open Category - MaleSl. No 47 - Open Category - MaleSl. No. 48 - Scheduled Caste - MaleSl. No. 49 - Scheduled Caste - MaleSl. No. 50 - Scheduled Caste - Female(c) first four female candidates in the waiting list, who do not belong to any of the reserved categories, are having overall merit position at Serial Nos. 52, 64, 87 and 88.(d) Going by the steps indicated in paragraph 18 of the decision in Anil Kumar Gupta and Others (1995) 5 SCC 173 , at the stage of filling up seats for Scheduled Castes Category, there are 7 females among 20 candidates with last 2 candidates being females whose overall ranking in the merit list is at Serial Nos. 80 and 86.(e) Similarly, the seats for Scheduled Tribes and Other Backward Categories are filled up.(f) Out of 20 candidates selected in Other Backward Category there are 09 females.27. Having allocated first 50 seats in Open General Category and filled up other vertical column of reservation, the next step is to effect horizontal reservation for women. If the reservation for women was to be overall horizontal reservation, there are 30 women (11+07+03+09) and nothing further is required to be done.However, if the horizontal reservation for women is to be taken as compartmentalized, as we are concerned in the present matter and the instant illustration, the appropriate steps must comprise of following:-(A) Since the shortfall for women is of four seats in Open / General Category, last four male candidates namely those at Serial Nos. 46, 47, 48 and 49 initially allocated to Open/General Category, will have to be displaced. The candidate at Serial No. 50, being a woman, cannot be displaced.(B) The male candidates at Serial Nos.46 and 47 being from Open/General Category, after such displacement will be completely out of reckoning as they cannot go to any reserved category.(C) The candidates at Serial Nos.48 and 49 being more meritorious than the candidates originally placed in the vertical column of reservation for Scheduled Castes, must go back to their own vertical column. This will cause resultant displacement of two candidates in that vertical column of reservation. The 20th candidate, whose overall merit position is at Serial No.86, though a female, but being in excess of quota for Scheduled Castes females and a male candidate immediately above the 19th candidate will thus get displaced.27.1 If we go by the second view, the female candidates at Serial Nos.52, 64, 87 and 88 must be accommodated against Open General Category seats whereas the candidate at Serial No.86, though more meritorious then those at Serial Nos.87 and 88, must be left without any seat.On the other hand, if we go by the first view, the claim of reserved category candidates if they are more meritorious, has to be considered, in which case the candidate at Serial No.86 will be required to be accommodated. Resultantly, the candidate at Serial No.88 must give way.There can be various such permutations and combinations and in a given case, the concerned female candidates from reserved category in the Waiting List for their respective vertical columns of reservation, may be more meritorious than the female candidates in the Waiting List for Open / General Category seats. The instant illustration is given to highlight the situation that can possibly emerge if the second view is adopted.28. The second view, based on adoption of a different principle at the stage of horizontal reservation as against one accepted to be a settled principle for vertical reservation, may thus lead to situations where a less meritorious candidate, not belonging to any of the reserved categories, may get selected in preference to a more meritorious candidate coming from a reserved category. This incongruity, according to the second view, must be accepted because of certain observations of this Court in Anil Kumar Gupta and Others (1995) 5 SCC 173 and Rajesh Kumar Daria (2007) 8 SCC 785. The following sentences from these two decisions are relied upon in support of the second view:-But if it is not so satisfied, the requisite number of special reservation candidates shall have to be taken and adjusted/accommodated against their respective social reservation categories by deleting the corresponding number of candidates therefrom. [from paragraph 18 of Anil Kumar Gupta (1995) 5 SCC 173 ]But the aforesaid principle applicable to vertical (social) reservations will not apply to horizontal (special) reservations. [from paragraph 9 of Rajesh Kumar Daria (2007) 8 SCC 785 ]29. These sentences are taken to be a mandate that at the stage of horizontal reservation the candidates must be adjusted /accommodated against their respective categories by deleting corresponding number of candidates from such categories and that the principle applicable for vertical (social reservation) will not apply to horizontal (special reservation). In our view, these sentences cannot be taken as a declaration supporting the second view and are certainly being picked out of context.The observations in paragraph 18 in Anil Kumar Gupta and Others (1995) 5 SCC 173 contemplated a situation where if special reservation candidates entitled to horizontal reservation are to be adjusted in a vertical column meant for social reservation, the corresponding number of candidates from such social reservation category ought to be deleted. It did not postulate that at the stage of making special or horizontal reservation a candidate belonging to any of the social reservation categories cannot be considered in Open/General Category. It is true that if the consideration for accommodation at horizontal reservation stage is only with regard to the concerned vertical reservation or social reservation category, the candidates belonging to that category alone must be considered. For example, if horizontal reservation is to be applied with regard to any of the categories of Scheduled Castes, Scheduled Tribes or Other Backward Classes, only those candidates answering that description alone can be considered at the stage of horizontal reservation. But it is completely different thing to say that if at the stage of horizontal reservation, accommodation is to be considered against Open/General seats, the candidates coming from any of the reserved categories who are more meritorious must be side-lined. That was never the intent of the observations sought to be relied upon in support of the second view.Similarly, the observations in Rajesh Kumar Daria (2007) 8 SCC 785 were in the context of emphasizing a distinguishing feature between vertical and horizontal reservations; in that:-(a) At the stage of vertical reservation, the reserved category candidates selected in Open/General category are not to be counted while filling up seats earmarked for the corresponding reserved categories.(b) But the same principle of not counting the concerned selected candidates is not to apply for horizontal reservation.Adopting principle (a) at the stage of horizontal reservation, the respondents in Rajesh Kumar Daria (2007) 8 SCC 785 had separately allocated 11 seats for women in General Category as part of special or horizontal reservation, though another set of 11 women candidates had got selected, according to their own merit, in General Category quota. The quota of 11 seats for women having been already satisfied, this Court negated the theory that their number be disregarded while making horizontal reservation for women. It was in that context that the distinction between vertical and horizontal reservations was highlighted by this Court in paragraph 9 of the decision. The subsequent sentence thus women selected on merit within the vertical reservation quota will be counted against the horizontal reservation for women in the very same paragraph and the illustration given thereafter are absolutely clear on the point.30. The decision of this Court in Public Service Commission, Uttaranchal vs. Mamta Bisht (2010) 12 SCC 204 was also completely misunderstood. In that case one Neetu Joshi had secured a seat in General Category on her own merit and she also answered the category of horizontal reservation earmarked for Uttaranchal Mahila. The attempt on part of Mamta Bisht, the original writ petitioner, was to submit that said Neetu Joshi having been appointed on her own merit in General Category, the seat meant for Uttaranchal Mahila category had to be filled up by other candidates. In essence, what was projected was the same stand taken by the respondents in Rajesh Kumar Daria (2007) 8 SCC 785 , which was expressly rejected in that case. It is for this reason that para 15 of the decision in Public Service Commission, Uttaranchal vs. Mamta Bisht (2010) 12 SCC 204 expressly returned a finding that the judgment rendered by the High Court in accepting the claim of Mamta Bisht was not in consonance with law laid down in Rajesh Kumar Daria (2007) 8 SCC 785 and the appeal was allowed. This decision is thus not of any help or assistance in support of the second view.31. The second view is thus neither based on any authoritative pronouncement by this Court nor does it lead to a situation where the merit is given precedence. Subject to any permissible reservations i.e. either Social (Vertical) or Special (Horizontal), opportunities to public employment and selection of candidates must purely be based on merit. Any selection which results in candidates getting selected against Open/General category with less merit than the other available candidates will certainly be opposed to principles of equality. There can be special dispensation when it comes to candidates being considered against seats or quota meant for reserved categories and in theory it is possible that a more meritorious candidate coming from Open/General category may not get selected. But the converse can never be true and will be opposed to the very basic principles which have all the while been accepted by this Court. Any view or process of interpretation which will lead to incongruity as highlighted earlier, must be rejected.32. The second view will thus not only lead to irrational results where more meritorious candidates may possibly get sidelined as indicated above but will, of necessity, result in acceptance of a postulate that Open / General seats are reserved for candidates other than those coming from vertical reservation categories. Such view will be completely opposed to the long line of decisions of this Court.33. We, therefore, do not approve the second view and reject it. The first view which weighed with the High Courts of Rajasthan, Bombay, Uttarakhand and Gujarat is correct and rational.34. It must be stated here that the submissions advanced by the Advocate General for Uttar Pradesh as recorded in the order dated 16.03.2016 before the Single Judge of the High Court (quoted in paragraph 9 hereinabove) were absolutely correct. The Single Judge and the Division Bench of the High Court completely erred in rejecting the stand taken on behalf of the State. It appears that after such rejection, the Procedure laid down for completing the recruitment exercise as referred to in the order dated 22.02.2019 passed by the Division Bench of the High Court (quoted hereinabove in paragraph 11) had stated in step 4.1 that candidate not belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes category alone would be considered against general category. Said Procedure and especially step 4.1 was erroneous but was perhaps guided by the declaration issued by the High Court earlier. On the other hand, the stand taken by the Advocate General for Maharashtra as recorded by the High Court of Bombay in Charushila vs. State of Maharashtra 2019 SCC OnLine Bom 1519 was correct.35. We must also clarify at this stage that it is not disputed that the Applicant no.1 and other similarly situated candidates are otherwise entitled and eligible to be appointed in Open/General Category and that they have not taken or availed of any special benefit which may disentitle them from being considered against Open/General Category seat. The entire discussion and analysis in the present case is, therefore, from said perspective.36. Finally, we must say that the steps indicated by the High Court of Gujarat in para 56 of its judgment in Tamannaben Ashokbhai Desai (R/LPA No.1910 of 2019 in R/Special Civil Application No.18968 of 2018 etc. decided on 05.08.2020) contemplate the correct and appropriate procedure for considering and giving effect to both vertical and horizontal reservations. The illustration given by us deals with only one possible dimension. There could be multiple such possibilities. Even going by the present illustration, the first female candidate allocated in the vertical column for Scheduled Tribes may have secured higher position than the candidate at Serial No.64. In that event said candidate must be shifted from the category of Scheduled Tribes to Open / General category causing a resultant vacancy in the vertical column of Scheduled Tribes. Such vacancy must then enure to the benefit of the candidate in the Waiting List for Scheduled Tribes – Female. The steps indicated by Gujarat High Court will take care of every such possibility. It is true that the exercise of laying down a procedure must necessarily be left to the concerned authorities but we may observe that one set out in said judgment will certainly satisfy all claims and will not lead to any incongruity as highlighted by us in the preceding paragraphs.37. Having come to the conclusion that the Appellant No.1 and similarly situated candidates had secured more marks than the last candidates selected in Open/General Category, the logical consequence must be to annul said selection and direct the authorities to do the exercise de novo in the light of conclusions arrived at by us.41. None of these petitioners had secured marks more than 274.8298 and as such, their case cannot be considered at par with that of Applicant no.1 – Ms. Sonam Tomar and other similarly situated candidates as discussed hereinabove.42. If there are unfilled vacancies, it is upto the authorities to act purely in terms of the concerned statutory provisions. Neither any case for issuance of mandamus, as prayed for, has been made out nor do we think it appropriate to pass any orders directing the concerned authorities to absorb the petitioners against unfilled vacancies. | 1 | 19,916 | 5,787 | ### Instruction:
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in the very same paragraph and the illustration given thereafter are absolutely clear on the point. 30. The decision of this Court in Public Service Commission, Uttaranchal vs. Mamta Bisht (2010) 12 SCC 204 was also completely misunderstood. In that case one Neetu Joshi had secured a seat in General Category on her own merit and she also answered the category of horizontal reservation earmarked for Uttaranchal Mahila. The attempt on part of Mamta Bisht, the original writ petitioner, was to submit that said Neetu Joshi having been appointed on her own merit in General Category, the seat meant for Uttaranchal Mahila category had to be filled up by other candidates. In essence, what was projected was the same stand taken by the respondents in Rajesh Kumar Daria (2007) 8 SCC 785 , which was expressly rejected in that case. It is for this reason that para 15 of the decision in Public Service Commission, Uttaranchal vs. Mamta Bisht (2010) 12 SCC 204 expressly returned a finding that the judgment rendered by the High Court in accepting the claim of Mamta Bisht was not in consonance with law laid down in Rajesh Kumar Daria (2007) 8 SCC 785 and the appeal was allowed. This decision is thus not of any help or assistance in support of the second view. 31. The second view is thus neither based on any authoritative pronouncement by this Court nor does it lead to a situation where the merit is given precedence. Subject to any permissible reservations i.e. either Social (Vertical) or Special (Horizontal), opportunities to public employment and selection of candidates must purely be based on merit. Any selection which results in candidates getting selected against Open/General category with less merit than the other available candidates will certainly be opposed to principles of equality. There can be special dispensation when it comes to candidates being considered against seats or quota meant for reserved categories and in theory it is possible that a more meritorious candidate coming from Open/General category may not get selected. But the converse can never be true and will be opposed to the very basic principles which have all the while been accepted by this Court. Any view or process of interpretation which will lead to incongruity as highlighted earlier, must be rejected. 32. The second view will thus not only lead to irrational results where more meritorious candidates may possibly get sidelined as indicated above but will, of necessity, result in acceptance of a postulate that Open / General seats are reserved for candidates other than those coming from vertical reservation categories. Such view will be completely opposed to the long line of decisions of this Court. 33. We, therefore, do not approve the second view and reject it. The first view which weighed with the High Courts of Rajasthan, Bombay, Uttarakhand and Gujarat is correct and rational. 34. It must be stated here that the submissions advanced by the Advocate General for Uttar Pradesh as recorded in the order dated 16.03.2016 before the Single Judge of the High Court (quoted in paragraph 9 hereinabove) were absolutely correct. The Single Judge and the Division Bench of the High Court completely erred in rejecting the stand taken on behalf of the State. It appears that after such rejection, the Procedure laid down for completing the recruitment exercise as referred to in the order dated 22.02.2019 passed by the Division Bench of the High Court (quoted hereinabove in paragraph 11) had stated in step 4.1 that candidate not belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes category alone would be considered against general category. Said Procedure and especially step 4.1 was erroneous but was perhaps guided by the declaration issued by the High Court earlier. On the other hand, the stand taken by the Advocate General for Maharashtra as recorded by the High Court of Bombay in Charushila vs. State of Maharashtra 2019 SCC OnLine Bom 1519 was correct. 35. We must also clarify at this stage that it is not disputed that the Applicant no.1 and other similarly situated candidates are otherwise entitled and eligible to be appointed in Open/General Category and that they have not taken or availed of any special benefit which may disentitle them from being considered against Open/General Category seat. The entire discussion and analysis in the present case is, therefore, from said perspective. 36. Finally, we must say that the steps indicated by the High Court of Gujarat in para 56 of its judgment in Tamannaben Ashokbhai Desai (R/LPA No.1910 of 2019 in R/Special Civil Application No.18968 of 2018 etc. decided on 05.08.2020) contemplate the correct and appropriate procedure for considering and giving effect to both vertical and horizontal reservations. The illustration given by us deals with only one possible dimension. There could be multiple such possibilities. Even going by the present illustration, the first female candidate allocated in the vertical column for Scheduled Tribes may have secured higher position than the candidate at Serial No.64. In that event said candidate must be shifted from the category of Scheduled Tribes to Open / General category causing a resultant vacancy in the vertical column of Scheduled Tribes. Such vacancy must then enure to the benefit of the candidate in the Waiting List for Scheduled Tribes – Female. The steps indicated by Gujarat High Court will take care of every such possibility. It is true that the exercise of laying down a procedure must necessarily be left to the concerned authorities but we may observe that one set out in said judgment will certainly satisfy all claims and will not lead to any incongruity as highlighted by us in the preceding paragraphs. 37. Having come to the conclusion that the Appellant No.1 and similarly situated candidates had secured more marks than the last candidates selected in Open/General Category, the logical consequence must be to annul said selection and direct the authorities to do the exercise de novo in the light of conclusions arrived at by us.
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been appointed on her own merit in General Category, the seat meant for Uttaranchal Mahila category had to be filled up by other candidates. In essence, what was projected was the same stand taken by the respondents in Rajesh Kumar Daria (2007) 8 SCC 785 , which was expressly rejected in that case. It is for this reason that para 15 of the decision in Public Service Commission, Uttaranchal vs. Mamta Bisht (2010) 12 SCC 204 expressly returned a finding that the judgment rendered by the High Court in accepting the claim of Mamta Bisht was not in consonance with law laid down in Rajesh Kumar Daria (2007) 8 SCC 785 and the appeal was allowed. This decision is thus not of any help or assistance in support of the second view.31. The second view is thus neither based on any authoritative pronouncement by this Court nor does it lead to a situation where the merit is given precedence. Subject to any permissible reservations i.e. either Social (Vertical) or Special (Horizontal), opportunities to public employment and selection of candidates must purely be based on merit. Any selection which results in candidates getting selected against Open/General category with less merit than the other available candidates will certainly be opposed to principles of equality. There can be special dispensation when it comes to candidates being considered against seats or quota meant for reserved categories and in theory it is possible that a more meritorious candidate coming from Open/General category may not get selected. But the converse can never be true and will be opposed to the very basic principles which have all the while been accepted by this Court. Any view or process of interpretation which will lead to incongruity as highlighted earlier, must be rejected.32. The second view will thus not only lead to irrational results where more meritorious candidates may possibly get sidelined as indicated above but will, of necessity, result in acceptance of a postulate that Open / General seats are reserved for candidates other than those coming from vertical reservation categories. Such view will be completely opposed to the long line of decisions of this Court.33. We, therefore, do not approve the second view and reject it. The first view which weighed with the High Courts of Rajasthan, Bombay, Uttarakhand and Gujarat is correct and rational.34. It must be stated here that the submissions advanced by the Advocate General for Uttar Pradesh as recorded in the order dated 16.03.2016 before the Single Judge of the High Court (quoted in paragraph 9 hereinabove) were absolutely correct. The Single Judge and the Division Bench of the High Court completely erred in rejecting the stand taken on behalf of the State. It appears that after such rejection, the Procedure laid down for completing the recruitment exercise as referred to in the order dated 22.02.2019 passed by the Division Bench of the High Court (quoted hereinabove in paragraph 11) had stated in step 4.1 that candidate not belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes category alone would be considered against general category. Said Procedure and especially step 4.1 was erroneous but was perhaps guided by the declaration issued by the High Court earlier. On the other hand, the stand taken by the Advocate General for Maharashtra as recorded by the High Court of Bombay in Charushila vs. State of Maharashtra 2019 SCC OnLine Bom 1519 was correct.35. We must also clarify at this stage that it is not disputed that the Applicant no.1 and other similarly situated candidates are otherwise entitled and eligible to be appointed in Open/General Category and that they have not taken or availed of any special benefit which may disentitle them from being considered against Open/General Category seat. The entire discussion and analysis in the present case is, therefore, from said perspective.36. Finally, we must say that the steps indicated by the High Court of Gujarat in para 56 of its judgment in Tamannaben Ashokbhai Desai (R/LPA No.1910 of 2019 in R/Special Civil Application No.18968 of 2018 etc. decided on 05.08.2020) contemplate the correct and appropriate procedure for considering and giving effect to both vertical and horizontal reservations. The illustration given by us deals with only one possible dimension. There could be multiple such possibilities. Even going by the present illustration, the first female candidate allocated in the vertical column for Scheduled Tribes may have secured higher position than the candidate at Serial No.64. In that event said candidate must be shifted from the category of Scheduled Tribes to Open / General category causing a resultant vacancy in the vertical column of Scheduled Tribes. Such vacancy must then enure to the benefit of the candidate in the Waiting List for Scheduled Tribes – Female. The steps indicated by Gujarat High Court will take care of every such possibility. It is true that the exercise of laying down a procedure must necessarily be left to the concerned authorities but we may observe that one set out in said judgment will certainly satisfy all claims and will not lead to any incongruity as highlighted by us in the preceding paragraphs.37. Having come to the conclusion that the Appellant No.1 and similarly situated candidates had secured more marks than the last candidates selected in Open/General Category, the logical consequence must be to annul said selection and direct the authorities to do the exercise de novo in the light of conclusions arrived at by us.41. None of these petitioners had secured marks more than 274.8298 and as such, their case cannot be considered at par with that of Applicant no.1 – Ms. Sonam Tomar and other similarly situated candidates as discussed hereinabove.42. If there are unfilled vacancies, it is upto the authorities to act purely in terms of the concerned statutory provisions. Neither any case for issuance of mandamus, as prayed for, has been made out nor do we think it appropriate to pass any orders directing the concerned authorities to absorb the petitioners against unfilled vacancies.
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Ponnaiyah Ramajayam Institute of Medical Sciences Vs. Union of India & Another | any deficiencies or shortcomings, MCI must, after pointing out the deficiencies, grant to the college concerned sufficient time to report compliance.(D) If compliance is reported and the applicant states that the deficiencies stand removed, MCI must cause compliance verification. It is possible that such compliance could be accepted even without actual physical verification but that assessment be left entirely to the discretion of MCI and the Central Government. In cases where actual physical verification is required, MCI and the Central Government must cause such verification before the deadline.(E) The result of such verification if positive in favour of the medical college concerned, the applicant ought to be given requisite permission/renewal. But if the deficiencies still persist or had not been removed, the applicant will stand disentitled so far as that academic year is concerned."20. As the findings in the inspections conducted by the MCI on 29/30.12.2015, 10.3.2016 and 28/29.12.2016 would reveal several deficiencies including those in faculty, residents, OPD attendance, bed occupancy etc. had been detected. Whereas as per the said reports, the deficiency in faculty had fluctuated from 22.72% to 46.15%, in residents, it ranged from 26.09% to 45.65%. The deficiencies in other areas, as finds mention in the reports, are also not negligible. Even the Oversight Committee in its letter dated 14.5.2017 has recorded deficiency in faculty to the tune of 9.09% and in residents at 21.74%, which exceeds the norms.21. As alluded hereinabove and as recommended by the Central Government, a fresh hearing was afforded to the petitioner/college. An analysis of the findings of the Hearing Committee, on the basis of which the impugned order dated 10.8.2017 has been issued, reveals the following features:a) The college had accepted that seven faculty and eleven residents were deficient on the date of inspection, which however, it claimed was 5% and 2% respectively.b) The college had furnished bank statement of salary payment of 106 faculty/residents.c) The college had informed that bio metric instruments had arrived but not installed.d) There was some shortfall of clinical material, but the college seemed to be making earnest efforts to increase patient load.e) The contention of the college that delivery patients were hard to get in private hospitals due to attractive maternity welfare scheme was acceptable.f) The college had informed that normal functioning of the hospital was disrupted in the aftermath of cyclone Vardah, though it was on 12.12.2016 and the inspection was done on 28.12.2016.g) The disruption factor would also get offset to some extent by the increase in number of patients due to various disease factors, post cyclone.22. In the face of the deficiencies pointed out by the MCI and the part acceptance thereof by the petitioner/college, the decision to debar it from admitting students in the MBBS course for the next two academic years 2017-18 and 2018-19 and to permit encashment of bank guarantee by the MCI was endorsed.23 True it is that as explicated on umpteen occasions and very recently in Royal Medical Trust (supra) the exercise of power of judicial review and the extent to which it has to be done would vary from case to case and would depend, amongst others on the factual projections. The following observations to this effect in the above decision succinctly adumbrates this postulation:"50.Thus analysed, it is evincible that the exercise of power of judicial review and the extent to which it has to be done will vary from case to case. It is necessary to state with emphasis that it has its own complexity and would depend upon the factual projection. The broad principles have been laid down in Tata Cellular (supra) and other decisions make it absolutely clear that judicial review, by no stretch of imagination, can be equated with the power of appeal, for while exercising the power under Article 226 or 32 of the Constitution, the constitutional courts do not exercise such power. The process of adjudication on merit by re-appreciation of the materials brought on record which is the duty of the appellate court is not permissible."24. Thus, in exercise of power of judicial review, re-appreciation of the materials on record, as otherwise warranted by an appellate forum is both inexpedient and uncalled for. In the backdrop of the deficiencies recorded in the successive inspections conducted by the MCI as noted by the Hearing Committee as well as the rival assertions vis-a-vis the same, it is not possible to readily discard the eventual findings recorded by the Hearing Committee and in the impugned order dated 10.8.2017, as bereft of any reason. This is more so, in the face of the statutory obligation cast on the MCI under the Act and the Regulations framed thereunder to sustain and enhance the excellence in medical eduction which eventually would cater to the exigencies of public health.25. In Royal Medical Trust (supra) again, this Court while responding to the assailment of the order impugned therein to be bereft of reasons, enunciated that the order passed has to be appreciated in its entirety and neither the Central Government nor the Hearing Committee is expected to pass a judgment as a Judge is expected to do. It was observed that the order must reflect application of mind and should indicate reasons. The plea based on want of reasons was negated.26. In any view of the matter, the respondents are the best judge to assess the findings in the inspection reports cumulatively on the touchstone of the statutory imperatives to ensure the required standard of medical education and achieve the paramount and salutary objective of the desired quality of health facilities in the public sector. In a way, a court is ill equipped for want of judicially manageable parameters to substitute the findings of experts on such issue by its views, which otherwise is inexpedient as well.27. In the overall factual setting and on a consideration of the materials on record in entirety, we do not feel persuaded in the facts and circumstances of the case to interfere with the impugned decision for want of reasons. | 1[ds]20. As thein the inspectionsby the MCI on29/30.12.2015, 10.3.2016 and 28/29.12.2016 would reveal several deficiencies including those in faculty, residents,, bed occupancy etc. had been detected. Whereas as per the said reports, the deficiency in faculty had fluctuated from 22.72% to 46.15%, in residents, it ranged from 26.09% to 45.65%. The deficiencies in other areas, as finds mention in the reports, are also not negligible. Even the Oversight Committee in its letter dated 14.5.2017 has recorded deficiency in faculty to the tune of 9.09% and in residents at 21.74%, which exceeds the norms.21. As alluded hereinabove and ashe Central Government,a fresh hearing was afforded to the petitioner/college. An analysis of the findings of the Hearing Committee, on the basis of which the impugned order dated 10.8.2017 has been issued, reveals the followingThe college had accepted that seven faculty and elevennt on the date of inspection, which however, it claimed was 5% and 2% respectively.b) The college had furnished bank statement of salary payment of 106 faculty/residents.c) The college had informed that bio metric instruments had arrived but not installed.d) There was some shortfall of clinical material, but the college seemedmaking earnest efforts to increase patient load.e) The contention of the college that deliverye hard to get in privatehospitals due to attractive maternity welfare scheme was acceptable.f) The college had informed that normal functioning of the hospital was disrupted in the aftermath of cyclone Vardah, though it was on 12.12.2016 and the inspection was done on 28.12.2016.g) The disruption factor would also get offset to some extent by the increase ints due to various disease factors, post cyclone.In the face of the deficiencies pointed out by the MCI and the part acceptance thereof by theon to debar it from admittinghe MBBS course for the next two academic years19 and to permit encashment of bank guarantee by the MCI was endorsed.23 True it is that as explicated on umpteen occasions and very recently in Royal Medical Trust (supra) the exercise ofal review and the extent to which it hasne would vary from case to case and would depend, amongst others on the factual projections.Thus, in exercise ofon of the materials on record, as otherwise warranted by an appellate forum is both inexpedient and uncalled for. In the backdrop of the deficiencies recorded in the successive inspectionsby the MCId by theHearing Committee as well as the rival assertionsthe same, it is not possible to readily discard the eventual findingshe Hearing Committeeand in the impugned order dated 10.8.2017, as bereft of any reason. This is more so, in the face of the statutory obligation cast on the MCI under the Act and the Regulations framed thereunder to sustain and enhance the excellence in medical eduction which eventually would cater to the exigencies of public health.In any view of the matter, the respondents are the best judge to assess thein the inspectionreports cumulatively on the touchstone of the statutory imperatives to ensure the required standard of medical education and achieve the paramount and salutary objective of the desired quality of healthlic sector. In a way, a court is ill equipped for want of judicially manageable parameters to substitute the findings of experts on such issue by its views, which otherwise is inexpedient as well.27. In the overall factual setting and on a consideration of the materials on record in entirety, we do not feel persuaded in the facts and circumstances of the case to interfere with the impugned decision for want of reasons. | 1 | 4,705 | 639 | ### Instruction:
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any deficiencies or shortcomings, MCI must, after pointing out the deficiencies, grant to the college concerned sufficient time to report compliance.(D) If compliance is reported and the applicant states that the deficiencies stand removed, MCI must cause compliance verification. It is possible that such compliance could be accepted even without actual physical verification but that assessment be left entirely to the discretion of MCI and the Central Government. In cases where actual physical verification is required, MCI and the Central Government must cause such verification before the deadline.(E) The result of such verification if positive in favour of the medical college concerned, the applicant ought to be given requisite permission/renewal. But if the deficiencies still persist or had not been removed, the applicant will stand disentitled so far as that academic year is concerned."20. As the findings in the inspections conducted by the MCI on 29/30.12.2015, 10.3.2016 and 28/29.12.2016 would reveal several deficiencies including those in faculty, residents, OPD attendance, bed occupancy etc. had been detected. Whereas as per the said reports, the deficiency in faculty had fluctuated from 22.72% to 46.15%, in residents, it ranged from 26.09% to 45.65%. The deficiencies in other areas, as finds mention in the reports, are also not negligible. Even the Oversight Committee in its letter dated 14.5.2017 has recorded deficiency in faculty to the tune of 9.09% and in residents at 21.74%, which exceeds the norms.21. As alluded hereinabove and as recommended by the Central Government, a fresh hearing was afforded to the petitioner/college. An analysis of the findings of the Hearing Committee, on the basis of which the impugned order dated 10.8.2017 has been issued, reveals the following features:a) The college had accepted that seven faculty and eleven residents were deficient on the date of inspection, which however, it claimed was 5% and 2% respectively.b) The college had furnished bank statement of salary payment of 106 faculty/residents.c) The college had informed that bio metric instruments had arrived but not installed.d) There was some shortfall of clinical material, but the college seemed to be making earnest efforts to increase patient load.e) The contention of the college that delivery patients were hard to get in private hospitals due to attractive maternity welfare scheme was acceptable.f) The college had informed that normal functioning of the hospital was disrupted in the aftermath of cyclone Vardah, though it was on 12.12.2016 and the inspection was done on 28.12.2016.g) The disruption factor would also get offset to some extent by the increase in number of patients due to various disease factors, post cyclone.22. In the face of the deficiencies pointed out by the MCI and the part acceptance thereof by the petitioner/college, the decision to debar it from admitting students in the MBBS course for the next two academic years 2017-18 and 2018-19 and to permit encashment of bank guarantee by the MCI was endorsed.23 True it is that as explicated on umpteen occasions and very recently in Royal Medical Trust (supra) the exercise of power of judicial review and the extent to which it has to be done would vary from case to case and would depend, amongst others on the factual projections. The following observations to this effect in the above decision succinctly adumbrates this postulation:"50.Thus analysed, it is evincible that the exercise of power of judicial review and the extent to which it has to be done will vary from case to case. It is necessary to state with emphasis that it has its own complexity and would depend upon the factual projection. The broad principles have been laid down in Tata Cellular (supra) and other decisions make it absolutely clear that judicial review, by no stretch of imagination, can be equated with the power of appeal, for while exercising the power under Article 226 or 32 of the Constitution, the constitutional courts do not exercise such power. The process of adjudication on merit by re-appreciation of the materials brought on record which is the duty of the appellate court is not permissible."24. Thus, in exercise of power of judicial review, re-appreciation of the materials on record, as otherwise warranted by an appellate forum is both inexpedient and uncalled for. In the backdrop of the deficiencies recorded in the successive inspections conducted by the MCI as noted by the Hearing Committee as well as the rival assertions vis-a-vis the same, it is not possible to readily discard the eventual findings recorded by the Hearing Committee and in the impugned order dated 10.8.2017, as bereft of any reason. This is more so, in the face of the statutory obligation cast on the MCI under the Act and the Regulations framed thereunder to sustain and enhance the excellence in medical eduction which eventually would cater to the exigencies of public health.25. In Royal Medical Trust (supra) again, this Court while responding to the assailment of the order impugned therein to be bereft of reasons, enunciated that the order passed has to be appreciated in its entirety and neither the Central Government nor the Hearing Committee is expected to pass a judgment as a Judge is expected to do. It was observed that the order must reflect application of mind and should indicate reasons. The plea based on want of reasons was negated.26. In any view of the matter, the respondents are the best judge to assess the findings in the inspection reports cumulatively on the touchstone of the statutory imperatives to ensure the required standard of medical education and achieve the paramount and salutary objective of the desired quality of health facilities in the public sector. In a way, a court is ill equipped for want of judicially manageable parameters to substitute the findings of experts on such issue by its views, which otherwise is inexpedient as well.27. In the overall factual setting and on a consideration of the materials on record in entirety, we do not feel persuaded in the facts and circumstances of the case to interfere with the impugned decision for want of reasons.
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20. As thein the inspectionsby the MCI on29/30.12.2015, 10.3.2016 and 28/29.12.2016 would reveal several deficiencies including those in faculty, residents,, bed occupancy etc. had been detected. Whereas as per the said reports, the deficiency in faculty had fluctuated from 22.72% to 46.15%, in residents, it ranged from 26.09% to 45.65%. The deficiencies in other areas, as finds mention in the reports, are also not negligible. Even the Oversight Committee in its letter dated 14.5.2017 has recorded deficiency in faculty to the tune of 9.09% and in residents at 21.74%, which exceeds the norms.21. As alluded hereinabove and ashe Central Government,a fresh hearing was afforded to the petitioner/college. An analysis of the findings of the Hearing Committee, on the basis of which the impugned order dated 10.8.2017 has been issued, reveals the followingThe college had accepted that seven faculty and elevennt on the date of inspection, which however, it claimed was 5% and 2% respectively.b) The college had furnished bank statement of salary payment of 106 faculty/residents.c) The college had informed that bio metric instruments had arrived but not installed.d) There was some shortfall of clinical material, but the college seemedmaking earnest efforts to increase patient load.e) The contention of the college that deliverye hard to get in privatehospitals due to attractive maternity welfare scheme was acceptable.f) The college had informed that normal functioning of the hospital was disrupted in the aftermath of cyclone Vardah, though it was on 12.12.2016 and the inspection was done on 28.12.2016.g) The disruption factor would also get offset to some extent by the increase ints due to various disease factors, post cyclone.In the face of the deficiencies pointed out by the MCI and the part acceptance thereof by theon to debar it from admittinghe MBBS course for the next two academic years19 and to permit encashment of bank guarantee by the MCI was endorsed.23 True it is that as explicated on umpteen occasions and very recently in Royal Medical Trust (supra) the exercise ofal review and the extent to which it hasne would vary from case to case and would depend, amongst others on the factual projections.Thus, in exercise ofon of the materials on record, as otherwise warranted by an appellate forum is both inexpedient and uncalled for. In the backdrop of the deficiencies recorded in the successive inspectionsby the MCId by theHearing Committee as well as the rival assertionsthe same, it is not possible to readily discard the eventual findingshe Hearing Committeeand in the impugned order dated 10.8.2017, as bereft of any reason. This is more so, in the face of the statutory obligation cast on the MCI under the Act and the Regulations framed thereunder to sustain and enhance the excellence in medical eduction which eventually would cater to the exigencies of public health.In any view of the matter, the respondents are the best judge to assess thein the inspectionreports cumulatively on the touchstone of the statutory imperatives to ensure the required standard of medical education and achieve the paramount and salutary objective of the desired quality of healthlic sector. In a way, a court is ill equipped for want of judicially manageable parameters to substitute the findings of experts on such issue by its views, which otherwise is inexpedient as well.27. In the overall factual setting and on a consideration of the materials on record in entirety, we do not feel persuaded in the facts and circumstances of the case to interfere with the impugned decision for want of reasons.
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Collector Of Customs, Calcutta Vs. East India Commercial Co. Ltd | tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority by the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcements."6. The matter was considered again by this Court in Madan Gopal Rungta v. Secretary to the Government of Orissa, C.A. No. 407 of 1961, D/-16-3-1962 :. (AIR 1962 SC l513), in connection with an order of the Central Government in revision under the Mineral Concession Rules, 1949, framed under the Mines and Minerals (Regulation and Development) Act (No. 53 of 1948), and it was held that when the Central Government rejected the review petition against the order of the State Government under the Mineral Concession Rules it was in effect rejecting the application of the appellant of that case for grant of the mining lease to him. The question of the merger of the original order with the appellate order was also considered in that case, though it was pointed out in view of R. 60 of the Mineral Concession Rules that it is the Central Government, order in review which is the effective and final order Learned counsel for the respondent sought to distinguish Madan Gopal Rungtas case C..A. No. 407 of 1961 D/-16-3-1962: (AIR 1962 SC 1513 ), on the ground that it was based mainly on an interpretation of R. 60 of the Mineral Concession Rules, 1949, though he did not pursue this further when S. 188 of the Sea Customs Act was pointed out to him.7. The main reliance however of the respondent both in the High Court and before us is on the decision in the State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595 : (AIR 1958 SC 86 ). That was a case where a public servant was dismissed on April 20,1948 before the Constitution had come into force. His appeal from the order of dismissal was dismissed in May 1449 which was also before the Constitution had come into force. His revision against the order in appeal was dismissed on April 22, l950, when the Constitution had come into force and the question that arose in that case was whether the dismissed public servant could take advantage of the provisions of the Constitution because the revisional order had been passed after the Constitution came into force. In that case, this Court certainly held that the order of the dismissal passed on April 20, 1948, not be said to have merged in the orders in appeal and in revision. It was pointed out that the order of dismissal was operative of its own strength as from April 20, 1948, and the public servant stood dismissed as from that date and therefore it was a case of dismissal before the Constitution came into force and the public servant could not take advantage of the provisions of the Constitution in view of the fact that his dismissal had taken place before the Constitution had come into force. As was pointed out in Madan Gopal Rungtas case, C.A. No. 407 of 1961, D/-16-31962: (AIR 1962 SC 1513 ), Mohammad Noohs case 1958 SCR 595 : (AIR 1958 SC 86 ), was a special case, which stands on its own facts. The question there was whether a writ under Art. 226 could be issued in respect of a dismissal which was effective from 1948. The relief that was being sought was against an order of dismissal which came into existence before the Constitution came into force and remained effective all along even after the dismissal of the appeal and the revision from that order. It was in those special circumstances that this Court held that the dismissal had taken place in 1948 and it could not be the subject-matter of consideration under Art. 226 of the Constitution, for that would be giving retrospective effect to the Article. The argument based on the principle of merger was repelled by this Court in that case on two grounds, namely, (i) that the principle of merger applicable to decrees of Courts would not be applicable to departmental tribunals, and (ii) that the original order would be operative on its own strength and did not gain greater efficacy by the subsequent order of dismissal of the appeal or revision. In effect, this means that even if the principle of merger were applicable to an order of dismissal like the one in Mohammad Noohs case, 1958 SCR 595 : (AIR 1958 SC 86 ), the fact would still remain that the dismissal was before the Constitution came into force and therefore the person dismissed could not take advantage of the provisions of the Constitution, so far as that dismissal was concerned. That case was not concerned with the territorial jurisdiction of the High Court where the original authority is within such territorial jurisdiction while the appellate authority is not and must therefore be confined to the special facts with which it was dealing. We have therefore no hesitation in holding consistently with the view taken by this Court in Musaliars case, 1955-2 SCR 1196 : ((S)AIR 1956 SC 246 ) as well as in Amritlal Bhogilals case. AIR 1958 SC 868 , that the order of the original authority must be held to have merged in the order of the appellate authority in a case like the present and it is only the order of the appellate authority which is operative after the appeal is disposed of. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it would not be open to it to issue a writ to the original authority which is within its jurisdiction so long as it cannot issue a writ to the appellate authority. It is not in dispute in this case that no writ could be issued to the appellate authority and in the circumstances the High Court could issue no writ even to the original authority. | 1[ds]The High Court has however not noticed this later decision of the Rajasthan High Court to which the learned Chief Justice who was party to the earlier Rajasthan case was also a party. The main reason which impelled the High Courts, which held otherwise, was that the order of the original authority got merged in the order of the appellate authority when the appeal was disposed of and therefore if the High Court had no territorial jurisdiction to issue a writ against the appellate authority it could not issue a writ against the original authority, even though the appellate authority had merely dismissed the appeal without any modification of the order passed by the originalis obvious that when an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification. It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority. The question therefore is whether there is any difference between these two cases and the third case here the appellate authority dismisses the appeal and thus confirms the order of the original authority. It seems to us that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate authority and the third kind of order passed by it. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it.In law, the appellate order of confirmation is quite as effications as an operative order as an appellate order of reversal or modification. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it seems difficult to hold even in a case where the appellate authority has confirmed the order of the original authority that the High Court can issue a writ to the original authority which may even have the effect of setting aside the order of the original authority when it cannot issue a writ to the appellate authority which has confirmed the order of the original authority. In effect, by issuing a writ to the original authority setting aside its order, the High Court would be interfering with the order of the appellate authority which had confirmed the order of the original authority even though it has no territorial jurisdiction to issue any writ to the appellate authority. We therefore feel that on principle when once an order of an original authority is taken in appeal to the appellate authority which is located beyond the territorial jurisdiction of the High Court, it is the order of the latter authority which is the operative order after the appeal is disposed of; and as the High Court cannot issue a writ against the appellate authority for want of territorial jurisdiction it would not be open to it to issue a writ to the original authority which may be within its territorial jurisdiction once the appeal is disposed of, though it may be that the appellate authority has merely confirmed the order of the original authority and dismissed the appeal.5. It is this principle, viz. that the appellate order is the operative order after the appeal is disposed of, which is in our opinion the basis of the rule that the decree of the lower court merges in the decree of the appellate court, and on the same principle it would not he incorrect to say that the order of the original authority is merged in the order of the appellate authority whatsoever its decision - whether of reversal or modification or merecase was not concerned with the territorial jurisdiction of the High Court where the original authority is within such territorial jurisdiction while the appellate authority is not and must therefore be confined to the special facts with which it was dealing. We have therefore no hesitation in holding consistently with the view taken by this Court in Musaliars case, 1955-2 SCR 1196 : ((S)AIR 1956 SC 246 ) as well as in Amritlal Bhogilals case. AIR 1958 SC 868 , that the order of the original authority must be held to have merged in the order of the appellate authority in a case like the present and it is only the order of the appellate authority which is operative after the appeal is disposed of. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it would not be open to it to issue a writ to the original authority which is within its jurisdiction so long as it cannot issue a writ to the appellate authority. It is not in dispute in this case that no writ could be issued to the appellate authority and in the circumstances the High Court could issue no writ even to the original authority. | 1 | 3,129 | 941 | ### Instruction:
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tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority by the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcements."6. The matter was considered again by this Court in Madan Gopal Rungta v. Secretary to the Government of Orissa, C.A. No. 407 of 1961, D/-16-3-1962 :. (AIR 1962 SC l513), in connection with an order of the Central Government in revision under the Mineral Concession Rules, 1949, framed under the Mines and Minerals (Regulation and Development) Act (No. 53 of 1948), and it was held that when the Central Government rejected the review petition against the order of the State Government under the Mineral Concession Rules it was in effect rejecting the application of the appellant of that case for grant of the mining lease to him. The question of the merger of the original order with the appellate order was also considered in that case, though it was pointed out in view of R. 60 of the Mineral Concession Rules that it is the Central Government, order in review which is the effective and final order Learned counsel for the respondent sought to distinguish Madan Gopal Rungtas case C..A. No. 407 of 1961 D/-16-3-1962: (AIR 1962 SC 1513 ), on the ground that it was based mainly on an interpretation of R. 60 of the Mineral Concession Rules, 1949, though he did not pursue this further when S. 188 of the Sea Customs Act was pointed out to him.7. The main reliance however of the respondent both in the High Court and before us is on the decision in the State of Uttar Pradesh v. Mohammad Nooh, 1958 SCR 595 : (AIR 1958 SC 86 ). That was a case where a public servant was dismissed on April 20,1948 before the Constitution had come into force. His appeal from the order of dismissal was dismissed in May 1449 which was also before the Constitution had come into force. His revision against the order in appeal was dismissed on April 22, l950, when the Constitution had come into force and the question that arose in that case was whether the dismissed public servant could take advantage of the provisions of the Constitution because the revisional order had been passed after the Constitution came into force. In that case, this Court certainly held that the order of the dismissal passed on April 20, 1948, not be said to have merged in the orders in appeal and in revision. It was pointed out that the order of dismissal was operative of its own strength as from April 20, 1948, and the public servant stood dismissed as from that date and therefore it was a case of dismissal before the Constitution came into force and the public servant could not take advantage of the provisions of the Constitution in view of the fact that his dismissal had taken place before the Constitution had come into force. As was pointed out in Madan Gopal Rungtas case, C.A. No. 407 of 1961, D/-16-31962: (AIR 1962 SC 1513 ), Mohammad Noohs case 1958 SCR 595 : (AIR 1958 SC 86 ), was a special case, which stands on its own facts. The question there was whether a writ under Art. 226 could be issued in respect of a dismissal which was effective from 1948. The relief that was being sought was against an order of dismissal which came into existence before the Constitution came into force and remained effective all along even after the dismissal of the appeal and the revision from that order. It was in those special circumstances that this Court held that the dismissal had taken place in 1948 and it could not be the subject-matter of consideration under Art. 226 of the Constitution, for that would be giving retrospective effect to the Article. The argument based on the principle of merger was repelled by this Court in that case on two grounds, namely, (i) that the principle of merger applicable to decrees of Courts would not be applicable to departmental tribunals, and (ii) that the original order would be operative on its own strength and did not gain greater efficacy by the subsequent order of dismissal of the appeal or revision. In effect, this means that even if the principle of merger were applicable to an order of dismissal like the one in Mohammad Noohs case, 1958 SCR 595 : (AIR 1958 SC 86 ), the fact would still remain that the dismissal was before the Constitution came into force and therefore the person dismissed could not take advantage of the provisions of the Constitution, so far as that dismissal was concerned. That case was not concerned with the territorial jurisdiction of the High Court where the original authority is within such territorial jurisdiction while the appellate authority is not and must therefore be confined to the special facts with which it was dealing. We have therefore no hesitation in holding consistently with the view taken by this Court in Musaliars case, 1955-2 SCR 1196 : ((S)AIR 1956 SC 246 ) as well as in Amritlal Bhogilals case. AIR 1958 SC 868 , that the order of the original authority must be held to have merged in the order of the appellate authority in a case like the present and it is only the order of the appellate authority which is operative after the appeal is disposed of. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it would not be open to it to issue a writ to the original authority which is within its jurisdiction so long as it cannot issue a writ to the appellate authority. It is not in dispute in this case that no writ could be issued to the appellate authority and in the circumstances the High Court could issue no writ even to the original authority.
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The High Court has however not noticed this later decision of the Rajasthan High Court to which the learned Chief Justice who was party to the earlier Rajasthan case was also a party. The main reason which impelled the High Courts, which held otherwise, was that the order of the original authority got merged in the order of the appellate authority when the appeal was disposed of and therefore if the High Court had no territorial jurisdiction to issue a writ against the appellate authority it could not issue a writ against the original authority, even though the appellate authority had merely dismissed the appeal without any modification of the order passed by the originalis obvious that when an appeal is made, the appellate authority can do one of three things, namely, (i) it may reverse the order under appeal, (ii) it may modify that order, and (iii) it may merely dismiss the appeal and thus confirm the order without any modification. It is not disputed that in the first two cases where the order of the original authority is either reversed or modified it is the order of the appellate authority which is the operative order and if the High Court has no jurisdiction to issue a writ to the appellate authority it cannot issue a writ to the original authority. The question therefore is whether there is any difference between these two cases and the third case here the appellate authority dismisses the appeal and thus confirms the order of the original authority. It seems to us that on principle it is difficult to draw a distinction between the first two kinds of orders passed by the appellate authority and the third kind of order passed by it. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it.In law, the appellate order of confirmation is quite as effications as an operative order as an appellate order of reversal or modification. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it seems difficult to hold even in a case where the appellate authority has confirmed the order of the original authority that the High Court can issue a writ to the original authority which may even have the effect of setting aside the order of the original authority when it cannot issue a writ to the appellate authority which has confirmed the order of the original authority. In effect, by issuing a writ to the original authority setting aside its order, the High Court would be interfering with the order of the appellate authority which had confirmed the order of the original authority even though it has no territorial jurisdiction to issue any writ to the appellate authority. We therefore feel that on principle when once an order of an original authority is taken in appeal to the appellate authority which is located beyond the territorial jurisdiction of the High Court, it is the order of the latter authority which is the operative order after the appeal is disposed of; and as the High Court cannot issue a writ against the appellate authority for want of territorial jurisdiction it would not be open to it to issue a writ to the original authority which may be within its territorial jurisdiction once the appeal is disposed of, though it may be that the appellate authority has merely confirmed the order of the original authority and dismissed the appeal.5. It is this principle, viz. that the appellate order is the operative order after the appeal is disposed of, which is in our opinion the basis of the rule that the decree of the lower court merges in the decree of the appellate court, and on the same principle it would not he incorrect to say that the order of the original authority is merged in the order of the appellate authority whatsoever its decision - whether of reversal or modification or merecase was not concerned with the territorial jurisdiction of the High Court where the original authority is within such territorial jurisdiction while the appellate authority is not and must therefore be confined to the special facts with which it was dealing. We have therefore no hesitation in holding consistently with the view taken by this Court in Musaliars case, 1955-2 SCR 1196 : ((S)AIR 1956 SC 246 ) as well as in Amritlal Bhogilals case. AIR 1958 SC 868 , that the order of the original authority must be held to have merged in the order of the appellate authority in a case like the present and it is only the order of the appellate authority which is operative after the appeal is disposed of. Therefore, if the appellate authority is beyond the territorial jurisdiction of the High Court it would not be open to it to issue a writ to the original authority which is within its jurisdiction so long as it cannot issue a writ to the appellate authority. It is not in dispute in this case that no writ could be issued to the appellate authority and in the circumstances the High Court could issue no writ even to the original authority.
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Raja Ram Chandra Reddy & Another Vs. Rani Shankaramma & Others | sufficiently dealt with there, presumably in view of a concession made by the Government Advocate before them as shown by the following passage in their judgment."Shri Anand Swarup Choudhury, Advocate, on behalf of the Government very candidly conceded before us that if it is held that the Revenue Minister had no jurisdiction, then in that case the sanction of the Chief Minister would not be valid."Such a concession would obviously not bind the appellants in this case. It is necessary for us, therefore, to deal with it. Now, it is true that where the responsibility for the passing of a particular kind of order is by statute vested in a specified authority but such an order was passed by a different authority, the fact, that the proper appellate authority affirmed the original invalid order does not cure the invalidity thereof. See - Suraj Narain v. N.W.F. Province, 1942 FC 3(AIR v. 29) at p. 6. (FC) (A).It is also true that the fact that the decision of a tribunal requires the sanction of a higher authority would not necessarily make it any the less an effective order amenable to the writ jurisdiction of courts in appropriate cases. See - The King v. Electricity Commrs., 1924-I KB 171(B) and - Bharat Bank Ltd. v. Employees of Bharat Bank Ltd, 1950 SC 188 (AIR v. 37) at pp. 190, 191 and 198 (PC) (C). But there are cases where the intended effective order according to the scheme of the statutory provisions relating thereto was the original order itself and not the appellate or confirming order. In the present case the position is different. The case was taken up by the Revenue Minister by virtue of S. 20(2) of the Hyderabad (Abolition of Jagirs), Regulation as being in a pending case. It was to be decided with references to "the existing law" as defined in that Regulation. Under that law in a case of this kind the only effective order would be that of the Nizam himself and not of any subordinate authority. As already pointed out the whole intendment of section 13(2) of the Atiyat Enquiries Act was to invest the Chief Ministers order in such cases with the a tributes of the Nizams Firman. This was indeed realised by the Revenue Minister himself who in his order specifically stated as follows :"So far as Atiyat properties are concerned it is completely within my jurisdiction subject to confirmation by the Honble the Chief Minister, who now exercises the powers of His Exalted Highness so far as final orders in Atiyat cases are concerned."This clearly shows that though he considered the matter to be within his jurisdiction or competence for the purposes of the enquiry, he was alive to the situation that the effective order in the case could only be that of the Nizam himself before the police action, or of the Chief Minister at the date of the order in question by virtue of what was then assumed to be his validly delegated authority in this behalf. The submission of his order to the Chief Minister was in terms only "for orders" and not for bare confirmation.Now, there can be no doubt that the Nizam himself in the period prior to the police action was competent to exercise the power not merely of accepting or vetoing, but of coming to his own independent conclusion, and of making any kind of disposition of the Jagir property (or its money substitute) such as the one contemplated by the order of the Revenue Minister in this case and overriding any supposed rights therein under his prior Firman. If so the Chief Minister could also do the same in purported exercise of the delegated authority (subject only to the objection as to the validity of such delegation). It is to be noticed the in the interval between the order of the Revenue Minister and that of the Chief Minister, both the parties sent representations to the Chief Minister for a hearing by counsel before passing any orders.The Chief Minister if he chose to accede to the request could well have come to an independent conclusion on a fresh consideration of the entire material.When, therefore, in spite of such a request by both the parties in spite of such a request by both the parties for being heard, the Chief Minister confirmed the Revenue Ministers order and specifically said that he saw no reason to interfere, it must be taken that he adopted the Revenue Ministers order as his own.That the Revenue Ministers order was elaborate and that of the Chief Minister is summary does not affect this position. We are therefore, clearly of the opinion that the Chief Ministers order must be taken to be a competent, valid and final order in so far as it relates to the Atiyat and Jagir property and that, in the events that have happened and by virtue of S. 13(2) of the Atiyat Enquiries Act., there has emerged a valid and final determination of the respective rights therein of the three contending parties, viz., Ramachandra Reddy, Rani Lakshmayamma and Rani Shankaramma.The measure of their respective rights is as specified and directed in the Revenue Ministers order. What becomes final and conclusive under S. 13(2) of the Atiyat Enquiries Act is the determination of the rights and not the reasoning or the steps leading thereto. It is needless to add that this does not affect any rights in or questions relating to non-Atiyat property.14. In the view we have taken of the Chief Ministers order of confirmation, it appears to us that the further argument advanced by Mr. Engineer as to whether the Revenue Ministers order had errors apparent on the face of the record justifying the issue of a writ of certiorari quashing it does not call for consideration. That question would have arisen only if the Revenue Ministers order was itself intended to be the final and effective order in the case and was within his competence. | 1[ds]The conflict of title arises from the fact that on the death of Raja Durga Reddy, Virasat for the Jagir had been sanctioned in the name of Rani Shankaramma by Firman of 1903 and that by the Nizams Firman dated 26-8-1934 the adoption of Ramachandra Reddy by Rani Lakshmayamma was sanctioned by the Nizam as regards Crown Grant Maash. What exactly the phrase "as regards Crown Grant Maash" was intended to convey has not been specifically stated in this Firman.In view of the fact that the Hyderabad (Abolition of Jagirs) Regulation abolishing the Jagirs themselves had already come into force by that time,his jurisdiction to deal with the matter has been questioned by the 1st respondent. But it has been maintained on the side of the appellants on two cumulative grounds. (1) That the questions raised before the Revenue Minister were matters which arose from a pending enquiry falling within the proviso to S. 21 (2), Hyderabad (Abolition of Jagirs) Regulation, and (2) that the questions at issue related to the Intazami side of the Atiyator not this contention is tenable, there can be no doubt that the judgment of the Nazim Atiyat dated 1-2-1950, was given on the footing that it was the petition of the 22nd June, 1949, which was by then treated as pending. An appeal as against the judgment, therefore, to the Revenue Minister would be an appeal in a pending proceeding if the appeal was competent. We are, therefore, unable to agree with the view taken by the High Court that there was no pending proceeding falling within the proviso to S. 21 (2) by the time when the Revenue Minister took up the matter in August, 1950, for hisare, however, unable to agree that either the wording of the petition filed by Ramachandra Reddy on 22-6-1949 or substance of the claim raised therein and the proceedings following thereon, can by any logic be said to be for a mere amendment of the Takhta Virasat or of the "Muntakhab" falling within item 7 of Schedule A of Gashti 19 of 1332 F. above quoted. The actual import of the various entries in Schedule A is somewhat obscure and could not be satisfactorily elucidated before us by learned counsel on either side. But it appears to us reasonably clear that the intention of the circular was that what may be called judicial matters which raise serious issues between parties involving their legal rights were to be taken out of the hands of the mere administrative machinery and had to be dealt with by the Directorate of Atiyat under judicial procedure and that it is only what may really be called administrative matters relating to Atiyat grants that could be dealt with as Atiyat Intezami by the ordinary Revenue departmental Machinery. This appears also to be confirmed by another copy of Circular No. 19 of 1332 F. supplied to us wherein as against entry No. 7 relating to amendment of Muntakhab of schedule A it is specifically stated "in case of any dispute the Revenue Minister will send the same to the Commissioner". Whether this copy is correct or not, there can be no doubt that in this case so far as Jagir property was concerned the question raised was a serious question of title between the parties. What in substance was asked for was the reopening of the Virasat proceedings which were originally taken on the death of Raja Durga Reddy and the reconsideration of the same with reference to the subsequent adoption which, it was claimed, dated back to Raja Durga Reddys death and divested the title of Rani Shankaramma.A careful perusal of the Revenue Ministers order relating to this part of the case clearly shows that this was in fact the contention which was accepted. Notwithstanding strenuous arguments to the contrary by the learned Attorney-General, we feel unable to accept the contention that the question raised before the Revenue Minister was one merely on the administrative side of the Atiyat department so as to vest the jurisdiction in him to deal with it. We are, therefore of the opinion that so far as the dispute as to Atiyat property was concerned and determination of the question involved in the case was outside the authority and competence of the Revenue Minister however bona fide his assumption of jurisdiction in this behalf maysuggestion - as we understand it - is that the Chief Minister by his order of confirmation must be taken to have adopted the Revenue Minister as his own and that, therefore, it was the Chief Ministers order, in terms of that of the Revenue Minister, which was the final and effective order in the case.In view of the language of S. 13(2), we are unable to accept these contentions.12. Doubtless, what falls within the ambit of the deeming provision is the Chief Ministers order and not somebody elses order. But what is cured thereby is not merely the incompetence any invalidity, if any, inhering in the Chief Minister to pass such an order. The language used is wide enough and strong enough to cure the incompetence and invalidity arising from similar lacuna in the precedent proceedings of which the Chief Ministers order is the culmination. It does not appear to us that in any other view full effect can be given to the language used. Even, on the view suggested by Mr. Engineer, the Chief Ministers order in such cases was to be taken as a substitute for the Nizams Firman and the purpose of S. 13(2) was to obviate the possible objection that the Nizams Firman in Atiyat case was an exercise of his prerogative and could not be delegated. If, as contended, that true purpose of S. 13(2) was to supply the lack of the imprimatur of the Nizams Firman, it is difficult to see why the operation of this provision should be confined to such of the Chief Ministers orders as are preceded by recommendations of competent authorities. No such limitation could have been imported into the effect of the Nizams Firman, at the time when the Nizam was in a position to issue the Firmans. We have no doubt, therefore, that if the intended effective order in a particular case was the Chief Ministers order, such an order would be validated by S. 13(2) irrespective of the competence of the preceding authorities who dealt with themay be mentioned at this stage that this aspect of the case does not appear to have received adequate attention in the Highthe present case the position is different. The case was taken up by the Revenue Minister by virtue of S. 20(2) of the Hyderabad (Abolition of Jagirs), Regulation as being in a pending case. It was to be decided with references to "the existing law" as defined in that Regulation. Under that law in a case of this kind the only effective order would be that of the Nizam himself and not of any subordinate authority. As already pointed out the whole intendment of section 13(2) of the Atiyat Enquiries Act was to invest the Chief Ministers order in such cases with the a tributes of the Nizams Firman. This was indeed realised by the Revenue Ministerclearly shows that though he considered the matter to be within his jurisdiction or competence for the purposes of the enquiry, he was alive to the situation that the effective order in the case could only be that of the Nizam himself before the police action, or of the Chief Minister at the date of the order in question by virtue of what was then assumed to be his validly delegated authority in thissubmission of his order to the Chief Minister was in terms only "for orders" and not for bare confirmation.Now, there can be no doubt that the Nizam himself in the period prior to the police action was competent to exercise the power not merely of accepting or vetoing, but of coming to his own independent conclusion, and of making any kind of disposition of the Jagir property (or its money substitute) such as the one contemplated by the order of the Revenue Minister in this case and overriding any supposed rights therein under his prior Firman. If so the Chief Minister could also do the same in purported exercise of the delegated authority (subject only to the objection as to the validity of suchChief Minister if he chose to accede to the request could well have come to an independent conclusion on a fresh consideration of the entire material.When, therefore, in spite of such a request by both the parties in spite of such a request by both the parties for being heard, the Chief Minister confirmed the Revenue Ministers order and specifically said that he saw no reason to interfere, it must be taken that he adopted the Revenue Ministers order as his own.That the Revenue Ministers order was elaborate and that of the Chief Minister is summary does not affect this position. We are therefore, clearly of the opinion that the Chief Ministers order must be taken to be a competent, valid and final order in so far as it relates to the Atiyat and Jagir property and that, in the events that have happened and by virtue of S. 13(2) of the Atiyat Enquiries Act., there has emerged a valid and final determination of the respective rights therein of the three contending parties, viz., Ramachandra Reddy, Rani Lakshmayamma and Rani Shankaramma.The measure of their respective rights is as specified and directed in the Revenue Ministers order. What becomes final and conclusive under S. 13(2) of the Atiyat Enquiries Act is the determination of the rights and not the reasoning or the steps leading thereto. It is needless to add that this does not affect any rights in or questions relating to non-Atiyatfirst observation that requires to be made as against the validity of this order is that there is no clear proof before us that Rani Shankaramma had title, if any, to the entire estate - a matter about which we express no opinion. Her title prima facie was only to the Jagir at the start and it may be a matter of contest between the parties as to whether there were any other properties of Raja Durga Reddy which he died possessed of and whether the subsequent accretions are accretions to the Jagir estate or to the non-Jagir property, it any, of Raja Durga Reddy or whether they are her absolute property. Even if the continuing title of Rani Shankaramma to the Jagir property were assumed it may not follow that the entire estate under the control of the Court of Wards is being held on behalf of Rani Shankaramma. This is a matter which may require further investigation. The High Court had no material before it to assume that the entire estate belonged to Rani Shankaramma and to direct the handing over of it to her.Apart however from his preliminary observation, the right of Rani Shankaramma to obtain possession of the estate is not as clear as the learned Judges have assumed it to be. Mr. Engineer for Rani Shankaramma has drawn our attention to voluminous material in this case bearing on her alleged right to obtain release in her favour, which according to him, has been accepted by a number of officers on prior occasions. But the fact remains that in spite of such expressions of opinion the estate was not fact handed over and some of the Firmans of the Nizam himself (in particular the Firmans dated 22-1-1920, 9-11-1922 and 24-11-1934, set out in an earlier part of this judgment) show a definite expression of intention to the contrary. We cannot treat the right of Rani Shankaramma to obtain possession and the obligation of the Court of Wards to hand over possession as beyondstated at the outset of this judgment the property was taken possession of immediately after the death of Raja Durga Reddy and the supervision of the Court of Wards was established, by notifications of the Government published on 21-5-1900 and 4-6-1900. It was thereafter that the Virasat in respect of Jagir Samasthan Papannepet was sanctioned in the name of Rani Shankaramma by a Firman of the Nizam dated 29-5-1903. That Firman specifically committed the care of the property and the person of Rani Shankaramma to the Court o f Wards. Subsequent proceedings have treated the supervision of the Court of Wards over the property as having been established by the Firmans of the Nizam. If therefore, S. 53 of the Court of Wards Act is to be applied to this case it would require another Firman of the Nazim for the supervision of the Court of Wards to be released and the fact that Rani Shankaramma attained majority would not by itself be enough. This indeed was the assumption to be found in some of the latter Firmans of the Nizam relating to this matter.It is true that clause (c) of S. 53 is inapplicable in the altered circumstances at any rate after 1950, since admittedly a Firman of Nizam can have now no constitutional validity. But we have not been shown whether this clause has been adapted or modified by the President under Art. 372 of the Constitution nor has it been urged before us that in the altered circumstances we can treat it as either abrogated or as suitably adapted. It is, therefore, enough to say that we have not been shown that the Court of Wards was under a statutory obligation is this case to hand over to Rani Shankaramma possession of the properties which are in their control. We are accordingly unable to maintain also the portion of the order of the High Court directing the estate to be handed over to her.17. This undoubtedly leads to a very anomalous situation and may have the effect of indefinitely continuing the administration of the Court of Wards over the property until such time as one party or the other goes to the Court and obtains release or until the Court of Wards releases the same on its own responsibility or by filing an interpleader suit. These are matters however which do not concern the Court in an application for issue of a writ. | 1 | 11,709 | 2,566 | ### Instruction:
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sufficiently dealt with there, presumably in view of a concession made by the Government Advocate before them as shown by the following passage in their judgment."Shri Anand Swarup Choudhury, Advocate, on behalf of the Government very candidly conceded before us that if it is held that the Revenue Minister had no jurisdiction, then in that case the sanction of the Chief Minister would not be valid."Such a concession would obviously not bind the appellants in this case. It is necessary for us, therefore, to deal with it. Now, it is true that where the responsibility for the passing of a particular kind of order is by statute vested in a specified authority but such an order was passed by a different authority, the fact, that the proper appellate authority affirmed the original invalid order does not cure the invalidity thereof. See - Suraj Narain v. N.W.F. Province, 1942 FC 3(AIR v. 29) at p. 6. (FC) (A).It is also true that the fact that the decision of a tribunal requires the sanction of a higher authority would not necessarily make it any the less an effective order amenable to the writ jurisdiction of courts in appropriate cases. See - The King v. Electricity Commrs., 1924-I KB 171(B) and - Bharat Bank Ltd. v. Employees of Bharat Bank Ltd, 1950 SC 188 (AIR v. 37) at pp. 190, 191 and 198 (PC) (C). But there are cases where the intended effective order according to the scheme of the statutory provisions relating thereto was the original order itself and not the appellate or confirming order. In the present case the position is different. The case was taken up by the Revenue Minister by virtue of S. 20(2) of the Hyderabad (Abolition of Jagirs), Regulation as being in a pending case. It was to be decided with references to "the existing law" as defined in that Regulation. Under that law in a case of this kind the only effective order would be that of the Nizam himself and not of any subordinate authority. As already pointed out the whole intendment of section 13(2) of the Atiyat Enquiries Act was to invest the Chief Ministers order in such cases with the a tributes of the Nizams Firman. This was indeed realised by the Revenue Minister himself who in his order specifically stated as follows :"So far as Atiyat properties are concerned it is completely within my jurisdiction subject to confirmation by the Honble the Chief Minister, who now exercises the powers of His Exalted Highness so far as final orders in Atiyat cases are concerned."This clearly shows that though he considered the matter to be within his jurisdiction or competence for the purposes of the enquiry, he was alive to the situation that the effective order in the case could only be that of the Nizam himself before the police action, or of the Chief Minister at the date of the order in question by virtue of what was then assumed to be his validly delegated authority in this behalf. The submission of his order to the Chief Minister was in terms only "for orders" and not for bare confirmation.Now, there can be no doubt that the Nizam himself in the period prior to the police action was competent to exercise the power not merely of accepting or vetoing, but of coming to his own independent conclusion, and of making any kind of disposition of the Jagir property (or its money substitute) such as the one contemplated by the order of the Revenue Minister in this case and overriding any supposed rights therein under his prior Firman. If so the Chief Minister could also do the same in purported exercise of the delegated authority (subject only to the objection as to the validity of such delegation). It is to be noticed the in the interval between the order of the Revenue Minister and that of the Chief Minister, both the parties sent representations to the Chief Minister for a hearing by counsel before passing any orders.The Chief Minister if he chose to accede to the request could well have come to an independent conclusion on a fresh consideration of the entire material.When, therefore, in spite of such a request by both the parties in spite of such a request by both the parties for being heard, the Chief Minister confirmed the Revenue Ministers order and specifically said that he saw no reason to interfere, it must be taken that he adopted the Revenue Ministers order as his own.That the Revenue Ministers order was elaborate and that of the Chief Minister is summary does not affect this position. We are therefore, clearly of the opinion that the Chief Ministers order must be taken to be a competent, valid and final order in so far as it relates to the Atiyat and Jagir property and that, in the events that have happened and by virtue of S. 13(2) of the Atiyat Enquiries Act., there has emerged a valid and final determination of the respective rights therein of the three contending parties, viz., Ramachandra Reddy, Rani Lakshmayamma and Rani Shankaramma.The measure of their respective rights is as specified and directed in the Revenue Ministers order. What becomes final and conclusive under S. 13(2) of the Atiyat Enquiries Act is the determination of the rights and not the reasoning or the steps leading thereto. It is needless to add that this does not affect any rights in or questions relating to non-Atiyat property.14. In the view we have taken of the Chief Ministers order of confirmation, it appears to us that the further argument advanced by Mr. Engineer as to whether the Revenue Ministers order had errors apparent on the face of the record justifying the issue of a writ of certiorari quashing it does not call for consideration. That question would have arisen only if the Revenue Ministers order was itself intended to be the final and effective order in the case and was within his competence.
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in purported exercise of the delegated authority (subject only to the objection as to the validity of suchChief Minister if he chose to accede to the request could well have come to an independent conclusion on a fresh consideration of the entire material.When, therefore, in spite of such a request by both the parties in spite of such a request by both the parties for being heard, the Chief Minister confirmed the Revenue Ministers order and specifically said that he saw no reason to interfere, it must be taken that he adopted the Revenue Ministers order as his own.That the Revenue Ministers order was elaborate and that of the Chief Minister is summary does not affect this position. We are therefore, clearly of the opinion that the Chief Ministers order must be taken to be a competent, valid and final order in so far as it relates to the Atiyat and Jagir property and that, in the events that have happened and by virtue of S. 13(2) of the Atiyat Enquiries Act., there has emerged a valid and final determination of the respective rights therein of the three contending parties, viz., Ramachandra Reddy, Rani Lakshmayamma and Rani Shankaramma.The measure of their respective rights is as specified and directed in the Revenue Ministers order. What becomes final and conclusive under S. 13(2) of the Atiyat Enquiries Act is the determination of the rights and not the reasoning or the steps leading thereto. It is needless to add that this does not affect any rights in or questions relating to non-Atiyatfirst observation that requires to be made as against the validity of this order is that there is no clear proof before us that Rani Shankaramma had title, if any, to the entire estate - a matter about which we express no opinion. Her title prima facie was only to the Jagir at the start and it may be a matter of contest between the parties as to whether there were any other properties of Raja Durga Reddy which he died possessed of and whether the subsequent accretions are accretions to the Jagir estate or to the non-Jagir property, it any, of Raja Durga Reddy or whether they are her absolute property. Even if the continuing title of Rani Shankaramma to the Jagir property were assumed it may not follow that the entire estate under the control of the Court of Wards is being held on behalf of Rani Shankaramma. This is a matter which may require further investigation. The High Court had no material before it to assume that the entire estate belonged to Rani Shankaramma and to direct the handing over of it to her.Apart however from his preliminary observation, the right of Rani Shankaramma to obtain possession of the estate is not as clear as the learned Judges have assumed it to be. Mr. Engineer for Rani Shankaramma has drawn our attention to voluminous material in this case bearing on her alleged right to obtain release in her favour, which according to him, has been accepted by a number of officers on prior occasions. But the fact remains that in spite of such expressions of opinion the estate was not fact handed over and some of the Firmans of the Nizam himself (in particular the Firmans dated 22-1-1920, 9-11-1922 and 24-11-1934, set out in an earlier part of this judgment) show a definite expression of intention to the contrary. We cannot treat the right of Rani Shankaramma to obtain possession and the obligation of the Court of Wards to hand over possession as beyondstated at the outset of this judgment the property was taken possession of immediately after the death of Raja Durga Reddy and the supervision of the Court of Wards was established, by notifications of the Government published on 21-5-1900 and 4-6-1900. It was thereafter that the Virasat in respect of Jagir Samasthan Papannepet was sanctioned in the name of Rani Shankaramma by a Firman of the Nizam dated 29-5-1903. That Firman specifically committed the care of the property and the person of Rani Shankaramma to the Court o f Wards. Subsequent proceedings have treated the supervision of the Court of Wards over the property as having been established by the Firmans of the Nizam. If therefore, S. 53 of the Court of Wards Act is to be applied to this case it would require another Firman of the Nazim for the supervision of the Court of Wards to be released and the fact that Rani Shankaramma attained majority would not by itself be enough. This indeed was the assumption to be found in some of the latter Firmans of the Nizam relating to this matter.It is true that clause (c) of S. 53 is inapplicable in the altered circumstances at any rate after 1950, since admittedly a Firman of Nizam can have now no constitutional validity. But we have not been shown whether this clause has been adapted or modified by the President under Art. 372 of the Constitution nor has it been urged before us that in the altered circumstances we can treat it as either abrogated or as suitably adapted. It is, therefore, enough to say that we have not been shown that the Court of Wards was under a statutory obligation is this case to hand over to Rani Shankaramma possession of the properties which are in their control. We are accordingly unable to maintain also the portion of the order of the High Court directing the estate to be handed over to her.17. This undoubtedly leads to a very anomalous situation and may have the effect of indefinitely continuing the administration of the Court of Wards over the property until such time as one party or the other goes to the Court and obtains release or until the Court of Wards releases the same on its own responsibility or by filing an interpleader suit. These are matters however which do not concern the Court in an application for issue of a writ.
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S.Malla Reddy Vs. M/S Future Builders Co-Op.Sty. | be rejected as an abuse of the process of Court. 17. It is contended by the learned counsel for the defendants that subsequent to the filing of I.A. No.416 of 2000, defendants came to know through the report of an expert that the written statement filed on their behalf was typed on the same typewriter on which the plaint was typed. In the common order challenged in these revisions, the trial Court considered that contention and held that that contention has to be decided at the time of trial, but cannot be considered at this stage. For the reasons given by the trial court, that finding cannot be said to be erroneous. 18. As rightly contended by the learned counsel for the plaintiff, the trial Court which agreed with the contention of the plaintiff that defendants cannot by invoking the plea of fraud seek the amendment sought, allowed the petitions only on the basis of the observations made in UDAY SHANKAR TRIYAR V. RAM KALEWAR PRASAD SINGH AIR 2006 SC 269 . In the very same judgment the apex Court held that procedure, a hand maiden to justice, should never be made a tool to carry justice or perpetuate injustice by any oppressive or punitive use. The trial Court without keeping in view the fact the defendants cannot repeatedly file the petition for the same relief which was negatived earlier, in a different form by quoting different provisions of law, thought it fit to allow the petitions and thereby virtually set at naught the order of dismissal of I.A.Nos.415 and 416 of 2000 passed by it earlier which order was confirmed by this Court and the Apex Court also. 21. Before going into the merits of the case, we would like to refer two of the provisions viz. Order VI Rule 16 and Order VI Rule 17 CPC which are involved in the instant case. These two provisions read as under:- ?16. Striking out pleadings— The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading— (a) which may be unnecessary, scandalous, frivolous or vexatious, or (b) which may tend to prejudice, embarrass or delay the fair trail of the suit, or (c) which is otherwise an abuse of the process of the Court.] 17. Amendment of pleadings— The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 22. Order VI Rule 16 CPC has been substituted by the CPC (Amendment) Act, 1976. This provision deals with the amendment or striking out of the pleadings, which a party desires to be made in his opponents pleadings. In other words, the plaintiff or the defendant may ask the court for striking out pleadings of his opponent on the ground that the pleadings are shown to be unnecessary, scandalous, frivolous or vexatious. This Rule is based on the principle of ex debito justitia. The court is empowered under this Rule to strike out any matter in the pleadings that appears to be unnecessary, scandalous, frivolous or vexatious or which tends to prejudice, embarrass or delay the fair trial of the suit. 23. On the other hand, Order VI Rule 17 CPC empowers the court to allow either party to alter or amend his own pleading and on such application the court may allow the parties to amend their pleadings subject to certain conditions enumerated in the said Rule. 24. Although the defendant-appellants filed the petition for striking out their own pleading i.e. written statement, labelling the petition as under Order VI Rule 16 CPC, but in substance the application was dealt with as if under Order VI Rule 17 CPC inasmuch as the trial court discussed the facts of the case and did not permit the defendants to substitute the written statement whereunder there was an admission of the suit claim of the plaintiff-Society. The relevant portion of the order quoted hereinabove reveals that the trial court while rejecting the aforementioned petition held that the defendant-appellants cannot be allowed to substitute their earlier written statement filed in the suit whereunder there was an admission of the claim of the plaintiff-Society (respondent herein). Similarly in the revision filed by the defendants, the High Court considered all the decisions referred by the defendants on the issue as to whether the defendants can withdraw the admission made in the written statement and finally came to the conclusion that the defendant-appellants cannot be allowed to resile from the admission made in the written statement by taking recourse to Order VIII Rule 9 or Order VI Rule 16 CPC by seeking to file a fresh written statement. In the aforesaid premises, filing of a fresh petition by the defendants under Order VI Rule 17 CPC after about 13 years when the hearing of the suit had already commenced and some of the witnesses were examined, is wholly misconceived. The High Court in the impugned order has rightly held that filing of subsequent application for the same relief is an abuse of the process of the court. As noticed above, the relief sought for by the defendants in a subsequent petition under Order VI Rule 17 CPC was elaborately dealt with on the two earlier petitions filed by the defendant-appellants under Order VI Rule 16 and Order VIII Rule 9 CPC and, therefore, the subsequent petition filed by the defendants labelling the petition under Order VI Rule 17 CPC is wholly misconceived and was not entertainable. 25. After giving our full consideration on the matter, | 0[ds]Although the defendant-appellants filed the petition for striking out their own pleading i.e. written statement, labelling the petition as under Order VI Rule 16 CPC, but in substance the application was dealt with as if under Order VI Rule 17 CPC inasmuch as the trial court discussed the facts of the case and did not permit the defendants to substitute the written statement whereunder there was an admission of the suit claim of the plaintiff-Society. The relevant portion of the order quoted hereinabove reveals that the trial court while rejecting the aforementioned petition held that the defendant-appellants cannot be allowed to substitute their earlier written statement filed in the suit whereunder there was an admission of the claim of the plaintiff-Society (respondent herein). Similarly in the revision filed by the defendants, the High Court considered all the decisions referred by the defendants on the issue as to whether the defendants can withdraw the admission made in the written statement and finally came to the conclusion that the defendant-appellants cannot be allowed to resile from the admission made in the written statement by taking recourse to Order VIII Rule 9 or Order VI Rule 16 CPC by seeking to file a fresh written statement. In the aforesaid premises, filing of a fresh petition by the defendants under Order VI Rule 17 CPC after about 13 years when the hearing of the suit had already commenced and some of the witnesses were examined, is wholly misconceived. The High Court in the impugned order has rightly held that filing of subsequent application for the same relief is an abuse of the process of the court. As noticed above, the relief sought for by the defendants in a subsequent petition under Order VI Rule 17 CPC was elaborately dealt with on the two earlier petitions filed by the defendant-appellants under Order VI Rule 16 and Order VIII Rule 9 CPC and, therefore, the subsequent petition filed by the defendants labelling the petition under Order VI Rule 17 CPC is wholly misconceived and was not entertainable. | 0 | 6,066 | 364 | ### Instruction:
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be rejected as an abuse of the process of Court. 17. It is contended by the learned counsel for the defendants that subsequent to the filing of I.A. No.416 of 2000, defendants came to know through the report of an expert that the written statement filed on their behalf was typed on the same typewriter on which the plaint was typed. In the common order challenged in these revisions, the trial Court considered that contention and held that that contention has to be decided at the time of trial, but cannot be considered at this stage. For the reasons given by the trial court, that finding cannot be said to be erroneous. 18. As rightly contended by the learned counsel for the plaintiff, the trial Court which agreed with the contention of the plaintiff that defendants cannot by invoking the plea of fraud seek the amendment sought, allowed the petitions only on the basis of the observations made in UDAY SHANKAR TRIYAR V. RAM KALEWAR PRASAD SINGH AIR 2006 SC 269 . In the very same judgment the apex Court held that procedure, a hand maiden to justice, should never be made a tool to carry justice or perpetuate injustice by any oppressive or punitive use. The trial Court without keeping in view the fact the defendants cannot repeatedly file the petition for the same relief which was negatived earlier, in a different form by quoting different provisions of law, thought it fit to allow the petitions and thereby virtually set at naught the order of dismissal of I.A.Nos.415 and 416 of 2000 passed by it earlier which order was confirmed by this Court and the Apex Court also. 21. Before going into the merits of the case, we would like to refer two of the provisions viz. Order VI Rule 16 and Order VI Rule 17 CPC which are involved in the instant case. These two provisions read as under:- ?16. Striking out pleadings— The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading— (a) which may be unnecessary, scandalous, frivolous or vexatious, or (b) which may tend to prejudice, embarrass or delay the fair trail of the suit, or (c) which is otherwise an abuse of the process of the Court.] 17. Amendment of pleadings— The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. 22. Order VI Rule 16 CPC has been substituted by the CPC (Amendment) Act, 1976. This provision deals with the amendment or striking out of the pleadings, which a party desires to be made in his opponents pleadings. In other words, the plaintiff or the defendant may ask the court for striking out pleadings of his opponent on the ground that the pleadings are shown to be unnecessary, scandalous, frivolous or vexatious. This Rule is based on the principle of ex debito justitia. The court is empowered under this Rule to strike out any matter in the pleadings that appears to be unnecessary, scandalous, frivolous or vexatious or which tends to prejudice, embarrass or delay the fair trial of the suit. 23. On the other hand, Order VI Rule 17 CPC empowers the court to allow either party to alter or amend his own pleading and on such application the court may allow the parties to amend their pleadings subject to certain conditions enumerated in the said Rule. 24. Although the defendant-appellants filed the petition for striking out their own pleading i.e. written statement, labelling the petition as under Order VI Rule 16 CPC, but in substance the application was dealt with as if under Order VI Rule 17 CPC inasmuch as the trial court discussed the facts of the case and did not permit the defendants to substitute the written statement whereunder there was an admission of the suit claim of the plaintiff-Society. The relevant portion of the order quoted hereinabove reveals that the trial court while rejecting the aforementioned petition held that the defendant-appellants cannot be allowed to substitute their earlier written statement filed in the suit whereunder there was an admission of the claim of the plaintiff-Society (respondent herein). Similarly in the revision filed by the defendants, the High Court considered all the decisions referred by the defendants on the issue as to whether the defendants can withdraw the admission made in the written statement and finally came to the conclusion that the defendant-appellants cannot be allowed to resile from the admission made in the written statement by taking recourse to Order VIII Rule 9 or Order VI Rule 16 CPC by seeking to file a fresh written statement. In the aforesaid premises, filing of a fresh petition by the defendants under Order VI Rule 17 CPC after about 13 years when the hearing of the suit had already commenced and some of the witnesses were examined, is wholly misconceived. The High Court in the impugned order has rightly held that filing of subsequent application for the same relief is an abuse of the process of the court. As noticed above, the relief sought for by the defendants in a subsequent petition under Order VI Rule 17 CPC was elaborately dealt with on the two earlier petitions filed by the defendant-appellants under Order VI Rule 16 and Order VIII Rule 9 CPC and, therefore, the subsequent petition filed by the defendants labelling the petition under Order VI Rule 17 CPC is wholly misconceived and was not entertainable. 25. After giving our full consideration on the matter,
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### Explanation:
Although the defendant-appellants filed the petition for striking out their own pleading i.e. written statement, labelling the petition as under Order VI Rule 16 CPC, but in substance the application was dealt with as if under Order VI Rule 17 CPC inasmuch as the trial court discussed the facts of the case and did not permit the defendants to substitute the written statement whereunder there was an admission of the suit claim of the plaintiff-Society. The relevant portion of the order quoted hereinabove reveals that the trial court while rejecting the aforementioned petition held that the defendant-appellants cannot be allowed to substitute their earlier written statement filed in the suit whereunder there was an admission of the claim of the plaintiff-Society (respondent herein). Similarly in the revision filed by the defendants, the High Court considered all the decisions referred by the defendants on the issue as to whether the defendants can withdraw the admission made in the written statement and finally came to the conclusion that the defendant-appellants cannot be allowed to resile from the admission made in the written statement by taking recourse to Order VIII Rule 9 or Order VI Rule 16 CPC by seeking to file a fresh written statement. In the aforesaid premises, filing of a fresh petition by the defendants under Order VI Rule 17 CPC after about 13 years when the hearing of the suit had already commenced and some of the witnesses were examined, is wholly misconceived. The High Court in the impugned order has rightly held that filing of subsequent application for the same relief is an abuse of the process of the court. As noticed above, the relief sought for by the defendants in a subsequent petition under Order VI Rule 17 CPC was elaborately dealt with on the two earlier petitions filed by the defendant-appellants under Order VI Rule 16 and Order VIII Rule 9 CPC and, therefore, the subsequent petition filed by the defendants labelling the petition under Order VI Rule 17 CPC is wholly misconceived and was not entertainable.
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Ramesh Narang Vs. Rama Narang & Others | officials of the Court are included in the Advisory Committee in order to enable the Administrator to avail of the official machinery of the Court for getting his decisions implemented. Dhanuka, J. has also stated in his order that the meetings and the working of the Advisory Committee may be organised, as far as practicable, in a way so as not to hamper performance of normal duties by the above referred to Court officials. On the basis of the material on record, we are of the view that it would be in the general interest of this Court if the two senior Officers who are working on the Committee of Advisors are spared. One of the officers has been recommended and is being paid remuneration of Rs.5,000/- per month. We have also found that the said member was asked to visit hotel at Aurangabad to make a report of the Civil work of renovation of rooms to be carried out. She had also gone to Delhi to attend the proceedings before the Company Law Board. Even during the hearing before us, she remained present in this Court for a number of days and she mentioned that she is representing the Administrator. Taking into consideration that both the Court officials are very senior Officers of this Court and taking into consideration the bitter and contentious litigation between the parties, we are of the view that unless impossible, the senior Officers of the Court or for that matter any officer of the Court should not be unnecessarily exposed to possible allegations and made to work in a private organization, may be under the Administrator. The reasons for avoiding such situation, in our opinion, are too obvious. We make it absolutely clear that we have found absolutely nothing objectionable in the conduct of the said officials. We are not suggesting even remotely anything against the said officers. Our only anxiety is to avoid the involvement of the Court officials in any private and personal disputes of the parties. We are also of the view that the time and energy of such senior officers should not be allowed to be spent except for their official duties. In the administration and management of a hotel business, we do not find any necessity for any Court official being involved in any manner. Any other professional or expert could more fruitfully and usefully be appointed. However, we feel that this aspect pertains to the discipline and administration of this Court which is best left to the learned Chief Justice of this Court and, accordingly, we direct the registry to place the matter for appropriate orders in that behalf before the learned Chief Justice.67.We are also of the opinion that taking into consideration the fact that litigation between these parties have exercised several forums, in several proceedings even on interim orders, it is necessary that the suit is decided as expeditiously as possible. However, for obvious reasons, we decline to fix a peremptory date of hearing of the suit which must be left to the learned Judge dealing with suits. Therefore, we grant liberty to the parties to approach the appropriate Court for expeditious disposal of the suit.68.At the time of the admission of the appeal on 16.6.1997, the Division Bench presided over by the learned Chief Justice had directed that holding of the Annual General Meeting which was held on that day and the Resolutions passed therein would be subject to the final decision which may bepassed by this Court in this appeal. If the appeal is ultimately allowed, this Court would pass appropriate orders for calling Annual General Meeting to consider the Resolutions which are moved by the Shareholders. In view of the discussion in the earlier part of this judgment, we hold that the learned Administrator was not authorized to determine and settle the resolutions and the agenda of the 16th and 17th Annual General Meetings of the respondent no.6 company. The normal result would be that the entire proceedings of the 16th and 17th Annual General Meetings will have to be quashed and set aside. However, with a view to avoiding any inconvenience as also in view of the submissions made by Mr.Kapil Sibal as recorded in para 60, we do not think it necessary to quash the proceedings and the resolutions so far as item no.1 i.e. to receive, consider and adopt the audited Balance Sheet as at 31st March, 1995 and the profit and loss account for the year ended on that date together with reports of the Directors and Auditors thereon, and item no.2 i.e. to confirm the appointment of M/s. J.G. Verma & Co., as Auditors for the financial year ended 31.3.1996 for which the Auditors Report dated 26th November 1996 has been submitted and to approve the remuneration of Rs.65,000/- paid to them, held to have been passed in the 16th Annual General Meeting held on 16.6.1997 are concerned. For the very reason, we are also not quashing the resolutions passed in terms of item no.1 i.e. to receive, consider and adopt the audited Balance Sheet as at 31st March, 1996 and the profit and loss account for the year ended on that date together with Reports of the Directors and Auditors thereon, item no.2 i.e. to confirm and treat the interim dividend declared and paid as the final dividend, and item no.3 i.e. to appoint and fix the remuneration of the Auditors M/s.J.G.Verma & Co., Chartered Accountants who retire at the conclusion of the Annual General Meeting and being eligible offer themselves for reappointment in the 17th Annual General Meeting of the respondent no.6 held on 16th June, 1997. However, resolutions no.3 and 4 held to have been passed in the 16th Annual General Meeting of the Respondent No.6 on 16th June, 1997 are hereby quashed. We direct that the 16th Annual General Meeting shall be held in accordance with the provisions of the Companies Act and in accordance with law and the observations made in this judgment. | 1[ds]66.We also cannot part with this matter without expressing our views on another aspect. Dhanuka, J. directed that the Administrator shall be assisted by an Advisory Committee of the plaintiff; the defendant No.3; the Prothonotary and Senior Master or a senior officer of the High Court on the Original Side recommended by the ProthonotarySenior Master or a senior officer of the High Court on the Original Side recommended by the ProthonotarySenior Master whose name is approved by the Court; the Court Receiver, High Court, or any other senior officer assisting the Court Receiver, in the office of the Court Receiver, whose name is recommended by the Court Receiver and approved by the Court. Dhanuka, J. has expressly stated in his order that two officials of the Court are included in the Advisory Committee in order to enable the Administrator to avail of the official machinery of the Court for getting his decisions implemented. Dhanuka, J. has also stated in his order that the meetings and the working of the Advisory Committee may be organised, as far as practicable, in a way so as not to hamper performance of normal duties by the above referred to Court officials. On the basis of the material on record, we are of the view that it would be in the general interest of this Court if the two senior Officers who are working on the Committee of Advisors are spared. One of the officers has been recommended and is being paid remuneration of Rs.5,000/per month. We have also found that the said member was asked to visit hotel at Aurangabad to make a report of the Civil work of renovation of rooms to be carried out. She had also gone to Delhi to attend the proceedings before the Company Law Board. Even during the hearing before us, she remained present in this Court for a number of days and she mentioned that she is representing the Administrator. Taking into consideration that both the Court officials are very senior Officers of this Court and taking into consideration the bitter and contentious litigation between the parties, we are of the view that unless impossible, the senior Officers of the Court or for that matter any officer of the Court should not be unnecessarily exposed to possible allegations and made to work in a private organization, may be under the Administrator. The reasons for avoiding such situation, in our opinion, are too obvious. We make it absolutely clear that we have found absolutely nothing objectionable in the conduct of the said officials. We are not suggesting even remotely anything against the said officers. Our only anxiety is to avoid the involvement of the Court officials in any private and personal disputes of the parties. We are also of the view that the time and energy of such senior officers should not be allowed to be spent except for their official duties. In the administration and management of a hotel business, we do not find any necessity for any Court official being involved in any manner. Any other professional or expert could more fruitfully and usefully be appointed. However, we feel that this aspect pertains to the discipline and administration of this Court which is best left to the learned Chief Justice of this Court and, accordingly, we direct the registry to place the matter for appropriate orders in that behalf before the learned Chief Justice.67.We are also of the opinion that taking into consideration the fact that litigation between these parties have exercised several forums, in several proceedings even on interim orders, it is necessary that the suit is decided as expeditiously as possible. However, for obvious reasons, we decline to fix a peremptory date of hearing of the suit which must be left to the learned Judge dealing with suits. Therefore, we grant liberty to the parties to approach the appropriate Court for expeditious disposal of the suit.68.At the time of the admission of the appeal on 16.6.1997, the Division Bench presided over by the learned Chief Justice had directed that holding of the Annual General Meeting which was held on that day and the Resolutions passed therein would be subject to the final decision which may bepassed by this Court in this appeal. If the appeal is ultimately allowed, this Court would pass appropriate orders for calling Annual General Meeting to consider the Resolutions which are moved by the Shareholders. In view of the discussion in the earlier part of this judgment, we hold that the learned Administrator was not authorized to determine and settle the resolutions and the agenda of the 16th and 17th Annual General Meetings of the respondent no.6 company. The normal result would be that the entire proceedings of the 16th and 17th Annual General Meetings will have to be quashed and set aside. However, with a view to avoiding any inconvenience as also in view of the submissions made by Mr.Kapil Sibal as recorded in para 60, we do not think it necessary to quash the proceedings and the resolutions so far as item no.1 i.e. to receive, consider and adopt the audited Balance Sheet as at 31st March, 1995 and the profit and loss account for the year ended on that date together with reports of the Directors and Auditors thereon, and item no.2 i.e. to confirm the appointment of M/s. J.G. VermaCo., as Auditors for the financial year ended 31.3.1996 for which the Auditors Report dated 26th November 1996 has been submitted and to approve the remuneration of Rs.65,000/paid to them, held to have been passed in the 16th Annual General Meeting held on 16.6.1997 are concerned. For the very reason, we are also not quashing the resolutions passed in terms of item no.1 i.e. to receive, consider and adopt the audited Balance Sheet as at 31st March, 1996 and the profit and loss account for the year ended on that date together with Reports of the Directors and Auditors thereon, item no.2 i.e. to confirm and treat the interim dividend declared and paid as the final dividend, and item no.3 i.e. to appoint and fix the remuneration of the Auditors M/s.J.G.VermaCo., Chartered Accountants who retire at the conclusion of the Annual General Meeting and being eligible offer themselves for reappointment in the 17th Annual General Meeting of the respondent no.6 held on 16th June, 1997. However, resolutions no.3 and 4 held to have been passed in the 16th Annual General Meeting of the Respondent No.6 on 16th June, 1997 are hereby quashed. We direct that the 16th Annual General Meeting shall be held in accordance with the provisions of the Companies Act and in accordance with law and the observations made in thisto the Notice of Motion No.2156 of 1997, we find it impossible to grant prayer (a) that the suit filed by the plaintiff be dismissed. We are not impressed by the submission that the plaintiff has obtained orders from the Court and is obstructing the implementation thereof. Freezing of various shares, including those of Fashion Wears Pvt. Ltd., is done under the orders of the competent Court which were passed on the basis of the facts and circumstances and requirement of particular proceedings before different Courts. The refusal of Ramesh to agree to particular arrangements cannot be treated as unwillingness or obstruction in the implementation of the orders of the Court. In that view of the matter, we are not inclined to grant any prayers made in Notice of Motion No.2156 of 1997 and the said Notice of Motion is, accordinglyare also of the opinion that the learned Judge in the impugned order was not right to decline to grant any relief to the plaintiff on the ground that it is not open to the plaintiff who has not cared to participate in the management and to assist the Administrator, though he is a member of the Advisory Committee to contend that the appointment of the 1st defendant as the Managing Director of the defendant No.6 company is illegal. Even if the conduct of the plaintiff is objectionable, the legal submissions made on behalf of the plaintiff or his rights as a shareholder under the provisions of the Companies Act cannot be denied.62.Assuming that the Administrator was competent to determine the agenda, in our opinion, the entire tenor and spirit of the order of Dhanuka, J. ought to have been taken into consideration before proposing Rama to be the Managing Director and Rohit to be the Joint Managing Director as has been done by the learned Administrator. It is extremely relevant to notice that the travesty of justice was management by the defendant nos. 1 to 5 to the exclusion of the plaintiff and redressal of that injustice was the theme of the judgment of Dhanuka, J. which is evident from various passages which we have quoted from Dhanuka, J.s judgment in the earlier part of this judgment. The justification that Rama is ready to undertake the liability, in our opinion, is no good reason. It does not depend on the volition of the Managing Director or the other Directors of the company to accept the liability or the statutory obligations. It is by force of law that any person who is a Managing Director or Director is obliged to comply with the statutory requirements and upon failure is exposed to statutory liabilities. Anyone holding the post of Managing Director or Director is exposed to statutory obligations and is automatically responsible by force of the provisions of the Companies Act. Under the circumstances, even if the Administrator wanted to settle the agenda, he ought to have seen that to the extent practicable, the spirit and intention of the order of Dhanuka, J. is implemented. We are also not impressed by the observations of the learned Administrator as well as the learned Judge that Rama is appointed a nominal Managing Director in the executive capacity. Indeed the post gives substantial monthly payments and several perquisites as indicated in the explanatory note to the resolution. As such, in any event, the Administrator could have suggested Managing Directorship to Rama and Joint Managing Directorship toour opinion, this was beyond the competence of the Administrator in his capacity as an Administrator under the orders of Dhanuka, J. The learned Judge, in our opinion, was not right in approving that part of the report of the Administrator and, consequently, the learned Judge was also not right in rejecting prayer (a) of the application made by plaintiff which ought to have been allowed. We make it clear, however, that whatever is the result of the Annual General Meeting held in accordance with the provisions of the Companies Act and whosoever may be the Managing Director or Joint Managing Director or Director, obviously, will be bound to obey the order of Dhanuka, J. so far as it restrains the Board of Directors from interfering with themanagement of the business of the defendant no.6 by thefar as these authorities cited by Mr.Dave are concerned, we are in complete agreement with the submission made by Mr.Seervai, learned counsel appearing for the defendant no.1, that the observations relied upon will have to be appreciated on the basis and in the context of the facts and circumstances and in the context of submissions and issues raised in each particular case. | 1 | 31,514 | 2,028 | ### 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:
officials of the Court are included in the Advisory Committee in order to enable the Administrator to avail of the official machinery of the Court for getting his decisions implemented. Dhanuka, J. has also stated in his order that the meetings and the working of the Advisory Committee may be organised, as far as practicable, in a way so as not to hamper performance of normal duties by the above referred to Court officials. On the basis of the material on record, we are of the view that it would be in the general interest of this Court if the two senior Officers who are working on the Committee of Advisors are spared. One of the officers has been recommended and is being paid remuneration of Rs.5,000/- per month. We have also found that the said member was asked to visit hotel at Aurangabad to make a report of the Civil work of renovation of rooms to be carried out. She had also gone to Delhi to attend the proceedings before the Company Law Board. Even during the hearing before us, she remained present in this Court for a number of days and she mentioned that she is representing the Administrator. Taking into consideration that both the Court officials are very senior Officers of this Court and taking into consideration the bitter and contentious litigation between the parties, we are of the view that unless impossible, the senior Officers of the Court or for that matter any officer of the Court should not be unnecessarily exposed to possible allegations and made to work in a private organization, may be under the Administrator. The reasons for avoiding such situation, in our opinion, are too obvious. We make it absolutely clear that we have found absolutely nothing objectionable in the conduct of the said officials. We are not suggesting even remotely anything against the said officers. Our only anxiety is to avoid the involvement of the Court officials in any private and personal disputes of the parties. We are also of the view that the time and energy of such senior officers should not be allowed to be spent except for their official duties. In the administration and management of a hotel business, we do not find any necessity for any Court official being involved in any manner. Any other professional or expert could more fruitfully and usefully be appointed. However, we feel that this aspect pertains to the discipline and administration of this Court which is best left to the learned Chief Justice of this Court and, accordingly, we direct the registry to place the matter for appropriate orders in that behalf before the learned Chief Justice.67.We are also of the opinion that taking into consideration the fact that litigation between these parties have exercised several forums, in several proceedings even on interim orders, it is necessary that the suit is decided as expeditiously as possible. However, for obvious reasons, we decline to fix a peremptory date of hearing of the suit which must be left to the learned Judge dealing with suits. Therefore, we grant liberty to the parties to approach the appropriate Court for expeditious disposal of the suit.68.At the time of the admission of the appeal on 16.6.1997, the Division Bench presided over by the learned Chief Justice had directed that holding of the Annual General Meeting which was held on that day and the Resolutions passed therein would be subject to the final decision which may bepassed by this Court in this appeal. If the appeal is ultimately allowed, this Court would pass appropriate orders for calling Annual General Meeting to consider the Resolutions which are moved by the Shareholders. In view of the discussion in the earlier part of this judgment, we hold that the learned Administrator was not authorized to determine and settle the resolutions and the agenda of the 16th and 17th Annual General Meetings of the respondent no.6 company. The normal result would be that the entire proceedings of the 16th and 17th Annual General Meetings will have to be quashed and set aside. However, with a view to avoiding any inconvenience as also in view of the submissions made by Mr.Kapil Sibal as recorded in para 60, we do not think it necessary to quash the proceedings and the resolutions so far as item no.1 i.e. to receive, consider and adopt the audited Balance Sheet as at 31st March, 1995 and the profit and loss account for the year ended on that date together with reports of the Directors and Auditors thereon, and item no.2 i.e. to confirm the appointment of M/s. J.G. Verma & Co., as Auditors for the financial year ended 31.3.1996 for which the Auditors Report dated 26th November 1996 has been submitted and to approve the remuneration of Rs.65,000/- paid to them, held to have been passed in the 16th Annual General Meeting held on 16.6.1997 are concerned. For the very reason, we are also not quashing the resolutions passed in terms of item no.1 i.e. to receive, consider and adopt the audited Balance Sheet as at 31st March, 1996 and the profit and loss account for the year ended on that date together with Reports of the Directors and Auditors thereon, item no.2 i.e. to confirm and treat the interim dividend declared and paid as the final dividend, and item no.3 i.e. to appoint and fix the remuneration of the Auditors M/s.J.G.Verma & Co., Chartered Accountants who retire at the conclusion of the Annual General Meeting and being eligible offer themselves for reappointment in the 17th Annual General Meeting of the respondent no.6 held on 16th June, 1997. However, resolutions no.3 and 4 held to have been passed in the 16th Annual General Meeting of the Respondent No.6 on 16th June, 1997 are hereby quashed. We direct that the 16th Annual General Meeting shall be held in accordance with the provisions of the Companies Act and in accordance with law and the observations made in this judgment.
### Response:
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### Explanation:
no.2 i.e. to confirm the appointment of M/s. J.G. VermaCo., as Auditors for the financial year ended 31.3.1996 for which the Auditors Report dated 26th November 1996 has been submitted and to approve the remuneration of Rs.65,000/paid to them, held to have been passed in the 16th Annual General Meeting held on 16.6.1997 are concerned. For the very reason, we are also not quashing the resolutions passed in terms of item no.1 i.e. to receive, consider and adopt the audited Balance Sheet as at 31st March, 1996 and the profit and loss account for the year ended on that date together with Reports of the Directors and Auditors thereon, item no.2 i.e. to confirm and treat the interim dividend declared and paid as the final dividend, and item no.3 i.e. to appoint and fix the remuneration of the Auditors M/s.J.G.VermaCo., Chartered Accountants who retire at the conclusion of the Annual General Meeting and being eligible offer themselves for reappointment in the 17th Annual General Meeting of the respondent no.6 held on 16th June, 1997. However, resolutions no.3 and 4 held to have been passed in the 16th Annual General Meeting of the Respondent No.6 on 16th June, 1997 are hereby quashed. We direct that the 16th Annual General Meeting shall be held in accordance with the provisions of the Companies Act and in accordance with law and the observations made in thisto the Notice of Motion No.2156 of 1997, we find it impossible to grant prayer (a) that the suit filed by the plaintiff be dismissed. We are not impressed by the submission that the plaintiff has obtained orders from the Court and is obstructing the implementation thereof. Freezing of various shares, including those of Fashion Wears Pvt. Ltd., is done under the orders of the competent Court which were passed on the basis of the facts and circumstances and requirement of particular proceedings before different Courts. The refusal of Ramesh to agree to particular arrangements cannot be treated as unwillingness or obstruction in the implementation of the orders of the Court. In that view of the matter, we are not inclined to grant any prayers made in Notice of Motion No.2156 of 1997 and the said Notice of Motion is, accordinglyare also of the opinion that the learned Judge in the impugned order was not right to decline to grant any relief to the plaintiff on the ground that it is not open to the plaintiff who has not cared to participate in the management and to assist the Administrator, though he is a member of the Advisory Committee to contend that the appointment of the 1st defendant as the Managing Director of the defendant No.6 company is illegal. Even if the conduct of the plaintiff is objectionable, the legal submissions made on behalf of the plaintiff or his rights as a shareholder under the provisions of the Companies Act cannot be denied.62.Assuming that the Administrator was competent to determine the agenda, in our opinion, the entire tenor and spirit of the order of Dhanuka, J. ought to have been taken into consideration before proposing Rama to be the Managing Director and Rohit to be the Joint Managing Director as has been done by the learned Administrator. It is extremely relevant to notice that the travesty of justice was management by the defendant nos. 1 to 5 to the exclusion of the plaintiff and redressal of that injustice was the theme of the judgment of Dhanuka, J. which is evident from various passages which we have quoted from Dhanuka, J.s judgment in the earlier part of this judgment. The justification that Rama is ready to undertake the liability, in our opinion, is no good reason. It does not depend on the volition of the Managing Director or the other Directors of the company to accept the liability or the statutory obligations. It is by force of law that any person who is a Managing Director or Director is obliged to comply with the statutory requirements and upon failure is exposed to statutory liabilities. Anyone holding the post of Managing Director or Director is exposed to statutory obligations and is automatically responsible by force of the provisions of the Companies Act. Under the circumstances, even if the Administrator wanted to settle the agenda, he ought to have seen that to the extent practicable, the spirit and intention of the order of Dhanuka, J. is implemented. We are also not impressed by the observations of the learned Administrator as well as the learned Judge that Rama is appointed a nominal Managing Director in the executive capacity. Indeed the post gives substantial monthly payments and several perquisites as indicated in the explanatory note to the resolution. As such, in any event, the Administrator could have suggested Managing Directorship to Rama and Joint Managing Directorship toour opinion, this was beyond the competence of the Administrator in his capacity as an Administrator under the orders of Dhanuka, J. The learned Judge, in our opinion, was not right in approving that part of the report of the Administrator and, consequently, the learned Judge was also not right in rejecting prayer (a) of the application made by plaintiff which ought to have been allowed. We make it clear, however, that whatever is the result of the Annual General Meeting held in accordance with the provisions of the Companies Act and whosoever may be the Managing Director or Joint Managing Director or Director, obviously, will be bound to obey the order of Dhanuka, J. so far as it restrains the Board of Directors from interfering with themanagement of the business of the defendant no.6 by thefar as these authorities cited by Mr.Dave are concerned, we are in complete agreement with the submission made by Mr.Seervai, learned counsel appearing for the defendant no.1, that the observations relied upon will have to be appreciated on the basis and in the context of the facts and circumstances and in the context of submissions and issues raised in each particular case.
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Shikharchand Jain Vs. Digamber Jain Praband Karini Sabha & Others | appellant on the facts of this case. In the last case this Court said:"If in dealing with a question of fact that first appellate court has placed the onus on a wrong party and its finding of fact is the result, substantially of this wrong approach, that may be regarded as a defect in procedure under Section 100 (1)(c). The same view has been expressed in Ladli Prasad Jaiswal, v. Karnal Distillery Co. Ltd. (1964) 1 SCR 270 = (AIR 1963 SC 1279 ). In this case the High Court has upset a finding of fact recorded by the lower appellate court inter alia on the ground that the burden of proof was wrongly placed on the plaintiff. Shah J., while affirming the judgment of the High Court, said:"A decision of the first appellate court reached after placing the onus wrongly...is not conclusive and a second appeal lies to the High Court against that decision. 9. In Jai Krishna v. Babu, AIR 1933 Nag 112 it was held that possession of a nonowner after partition is adverse. No exception can be taken to this proposition. But we fail to understand how this case will assist the appellant. 10. We now pass on to another aspect of the case. During pendency of this appeal Smt. Rajrani died on December 5, 1968. The appellant first filed C. M. P. No. 1377 of 1969 for his substitution in place of Smt. Rajrani, the fifth respondent, as her legal representative. No order has yet been made on this application. Now he has made another application in the course of hearing. By this application he seeks to amend his written statement. He wants to make this addition to the written statement."12 (a) that the gift deed dated 18-1-1954 was executed by Smt. Rajrani who was a limited owner having a widows estate on the date of the execution of the gift deed. Assuming though not admitting the said gift deed was valid it is submitted that the above gift could at most enure for the life of the defendant No. 5. The plaintiff can- not have any rights in the suit lands after the death of Smt. Rajrani and the defendant as the sole surviving reversioner becomes the owner of the lands and resist the claim of the plaintiff. (b) that the genealogy of the family is as under. "12(c) that the deceased Smt. Rajrani could not transfer the suit property even for the religious and charitable purposes as it was the entire property she had and such a transfer is not binding on the defendant after he death. 11. He also prays for the renumbering of present paragraph 12 as paragraph 13 of the written statement. Sri Tarkunde has submitted that if the assertions made in the new paragraph 12 are accepted by the Court, the respondents suit will have to be dismissed. It is also said that the new situation arising on the death of Smt. Rajrani during pendency of the appeal can be considered by the Court in order to mould the decree in the suit out of which this appeal has arisen. In our view, Mr. Tarkunde, is right in this submission. Ordinarily, a suit is tried in all its, stages on the cause of action as it existed on the date of its institution. But it is open to a Court including a Court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the parties. (See Rai Charan v. Biswanath, AIR 1915 Cal 103). 12. Sri Chagla counsel for the respondent, has submitted that the application for amendment of the written statement should not be allowed. It is said that the appellant has alleged in his written statement that Smt. Rajrani could not transfer the disputed land as she was a limited owner having a widows estate. The trial Court had framed a specific issue on this aspect and recorded a finding against the appellants. The trial Court said:"Smt. Rajrani is a Jain widow and therefore she is competent to transfer the suit lands for religious and charitable purposes. The trial Court decreed the suit. The appellant filed an appeal. The appeal was allowed and the decree of the trial Court was set aside. The respondent then filed a second appeal in the High Court. As already stated, the High Court set aside the decree of the first appellate Court and restored the decree of the trial Court. It is said by Sri Chagla that as the appellant did not challenge the validity of the gift either in the first appellate Court or in the High Court, he should not be allowed to challenge it now by an amendment of his written statement. We find it difficult to accept this submission of Sri Chagla. Even if the assertions made in the application for amendment of the written statement are found to be true, the appellant could not have non-suited the respondent during the lifetime of Smt. Rajrani. The gift was valid during her lifetime. Her death gives a fresh cause of action to the appellant who claims to be her next reversioner. It appears to us that it will be just and proper to allow the amendment sought for. It will shorten litigation. 13. Sri Chagla has also pointed out that the respondent has acquired new rights under the Land reform measures passed by the Madhya Pradesh Legislature. It will be open to the respondent to file a reply to the amendment when the case goes back to the trial Court and raise any plea which according to it is likely to defeat the appellants new claim. | 1[ds]4. The first appellate court has held that Shikharchand was in possession over the disputed land since 1937 and has become the owner thereof by adverse possession before Smt. Rajrani transferred the land to the plaintiff. Sri Tarkunde, counsel for Shikharchnd, says that it is a finding of fact and that accordingly the High Court could not interfere with it in second appeal. It appear that the High Court was aware that it was interfering with a finding of fact in a second appeal. So the High Court has explained7. The High Court has considered afresh the entire evidence on record and has held that Shikharchand has failed to establish by positive evidence his adverse possession for more than 12 years. The appellant could not show to us that the finding is not sustainable on the evidence on record. It is not necessary for us to reappraise that evidence again, but we may point out two circumstances which heavily tell against the appellant. Assuming that his adverse possession started in 1937 and continued till 1949, he became the owner of the land in dispute in 1950. Nevertheless he did not move the appropriate revenue authority for the correction of the entries in the record of rights. He did not get the name of Smt. Rajrani expunged from the record and his name entered therein. Again, Beni Ram, one of his witnesses, has admitted that Shikharchand had been paying rent of the sir land of Smt. Rajrani on behalf of Smt. Rajrani until 1958-59. Had he become an-owner by adverse possession in 1950, he would never have paid rent on behalf of Smt. RajraniIn our view, Mr. Tarkunde, is right in this submission. Ordinarily, a suit is tried in all its, stages on the cause of action as it existed on the date of its institution. But it is open to a Court including a Court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the parties9. In Jai Krishna v. Babu, AIR 1933 Nag 112 it was held that possession of a nonowner after partition is adverse. No exception can be taken to this proposition. But we fail to understand how this case will assist the appellant10. We now pass on to another aspect of the case. During pendency of this appeal Smt. Rajrani died on December 5, 1968. The appellant first filed C. M. P. No. 1377 of 1969 for his substitution in place of Smt. Rajrani, the fifth respondent, as her legal representative. No order has yet been made on this application. Now he has made another application in the course of hearing. By this application he seeks to amend his written statement. He wants to make this addition to the written statement"12 (a) that the gift deed dated 18-1-1954 was executed by Smt. Rajrani who was a limited owner having a widows estate on the date of the execution of the gift deed. Assuming though not admitting the said gift deed was valid it is submitted that the above gift could at most enure for the life of the defendant No. 5. The plaintiff can- not have any rights in the suit lands after the death of Smt. Rajrani and the defendant as the sole surviving reversioner becomes the owner of the lands and resist the claim of the plaintiff(b) that the genealogy of the family is as under"12(c) that the deceased Smt. Rajrani could not transfer the suit property even for the religious and charitable purposes as it was the entire property she had and such a transfer is not binding on the defendant after he death.He also prays for the renumbering of present paragraph 12 as paragraph 13 of the written statementIn our view, Mr. Tarkunde, is right in this submission. Ordinarily, a suit is tried in all its, stages on the cause of action as it existed on the date of its institution. But it is open to a Court including a Court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the. (See Rai Charan v. Biswanath, AIR 1915 Cal 103)The trial Court had framed a specific issue on this aspect and recorded a finding against the. The trial Court said:"Smt. Rajrani is a Jain widow and therefore she is competent to transfer the suit lands for religious and charitable purposes.trial Court decreed the suit. The appellant filed an appeal. The appeal was allowed and the decree of the trial Court was set aside. The respondent then filed a second appeal in the High Court. As already stated, the High Court set aside the decree of the first appellate Court and restored the decree of the trial Court. It is said by Sri Chagla that as the appellant did not challenge the validity of the gift either in the first appellate Court or in the High Court, he should not be allowed to challenge it now by an amendment of his written statement. We find it difficult to accept this submission of Sri Chagla. Even if the assertions made in the application for amendment of the written statement are found to be true, the appellant could not have non-suited the respondent during the lifetime of Smt. Rajrani. The gift was valid during her lifetime. Her death gives a fresh cause of action to the appellant who claims to be her next reversioner. It appears to us that it will be just and proper to allow the amendment sought for. It will shorten litigation. | 1 | 3,415 | 1,154 | ### Instruction:
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appellant on the facts of this case. In the last case this Court said:"If in dealing with a question of fact that first appellate court has placed the onus on a wrong party and its finding of fact is the result, substantially of this wrong approach, that may be regarded as a defect in procedure under Section 100 (1)(c). The same view has been expressed in Ladli Prasad Jaiswal, v. Karnal Distillery Co. Ltd. (1964) 1 SCR 270 = (AIR 1963 SC 1279 ). In this case the High Court has upset a finding of fact recorded by the lower appellate court inter alia on the ground that the burden of proof was wrongly placed on the plaintiff. Shah J., while affirming the judgment of the High Court, said:"A decision of the first appellate court reached after placing the onus wrongly...is not conclusive and a second appeal lies to the High Court against that decision. 9. In Jai Krishna v. Babu, AIR 1933 Nag 112 it was held that possession of a nonowner after partition is adverse. No exception can be taken to this proposition. But we fail to understand how this case will assist the appellant. 10. We now pass on to another aspect of the case. During pendency of this appeal Smt. Rajrani died on December 5, 1968. The appellant first filed C. M. P. No. 1377 of 1969 for his substitution in place of Smt. Rajrani, the fifth respondent, as her legal representative. No order has yet been made on this application. Now he has made another application in the course of hearing. By this application he seeks to amend his written statement. He wants to make this addition to the written statement."12 (a) that the gift deed dated 18-1-1954 was executed by Smt. Rajrani who was a limited owner having a widows estate on the date of the execution of the gift deed. Assuming though not admitting the said gift deed was valid it is submitted that the above gift could at most enure for the life of the defendant No. 5. The plaintiff can- not have any rights in the suit lands after the death of Smt. Rajrani and the defendant as the sole surviving reversioner becomes the owner of the lands and resist the claim of the plaintiff. (b) that the genealogy of the family is as under. "12(c) that the deceased Smt. Rajrani could not transfer the suit property even for the religious and charitable purposes as it was the entire property she had and such a transfer is not binding on the defendant after he death. 11. He also prays for the renumbering of present paragraph 12 as paragraph 13 of the written statement. Sri Tarkunde has submitted that if the assertions made in the new paragraph 12 are accepted by the Court, the respondents suit will have to be dismissed. It is also said that the new situation arising on the death of Smt. Rajrani during pendency of the appeal can be considered by the Court in order to mould the decree in the suit out of which this appeal has arisen. In our view, Mr. Tarkunde, is right in this submission. Ordinarily, a suit is tried in all its, stages on the cause of action as it existed on the date of its institution. But it is open to a Court including a Court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the parties. (See Rai Charan v. Biswanath, AIR 1915 Cal 103). 12. Sri Chagla counsel for the respondent, has submitted that the application for amendment of the written statement should not be allowed. It is said that the appellant has alleged in his written statement that Smt. Rajrani could not transfer the disputed land as she was a limited owner having a widows estate. The trial Court had framed a specific issue on this aspect and recorded a finding against the appellants. The trial Court said:"Smt. Rajrani is a Jain widow and therefore she is competent to transfer the suit lands for religious and charitable purposes. The trial Court decreed the suit. The appellant filed an appeal. The appeal was allowed and the decree of the trial Court was set aside. The respondent then filed a second appeal in the High Court. As already stated, the High Court set aside the decree of the first appellate Court and restored the decree of the trial Court. It is said by Sri Chagla that as the appellant did not challenge the validity of the gift either in the first appellate Court or in the High Court, he should not be allowed to challenge it now by an amendment of his written statement. We find it difficult to accept this submission of Sri Chagla. Even if the assertions made in the application for amendment of the written statement are found to be true, the appellant could not have non-suited the respondent during the lifetime of Smt. Rajrani. The gift was valid during her lifetime. Her death gives a fresh cause of action to the appellant who claims to be her next reversioner. It appears to us that it will be just and proper to allow the amendment sought for. It will shorten litigation. 13. Sri Chagla has also pointed out that the respondent has acquired new rights under the Land reform measures passed by the Madhya Pradesh Legislature. It will be open to the respondent to file a reply to the amendment when the case goes back to the trial Court and raise any plea which according to it is likely to defeat the appellants new claim.
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Sri Tarkunde, counsel for Shikharchnd, says that it is a finding of fact and that accordingly the High Court could not interfere with it in second appeal. It appear that the High Court was aware that it was interfering with a finding of fact in a second appeal. So the High Court has explained7. The High Court has considered afresh the entire evidence on record and has held that Shikharchand has failed to establish by positive evidence his adverse possession for more than 12 years. The appellant could not show to us that the finding is not sustainable on the evidence on record. It is not necessary for us to reappraise that evidence again, but we may point out two circumstances which heavily tell against the appellant. Assuming that his adverse possession started in 1937 and continued till 1949, he became the owner of the land in dispute in 1950. Nevertheless he did not move the appropriate revenue authority for the correction of the entries in the record of rights. He did not get the name of Smt. Rajrani expunged from the record and his name entered therein. Again, Beni Ram, one of his witnesses, has admitted that Shikharchand had been paying rent of the sir land of Smt. Rajrani on behalf of Smt. Rajrani until 1958-59. Had he become an-owner by adverse possession in 1950, he would never have paid rent on behalf of Smt. RajraniIn our view, Mr. Tarkunde, is right in this submission. Ordinarily, a suit is tried in all its, stages on the cause of action as it existed on the date of its institution. But it is open to a Court including a Court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the parties9. In Jai Krishna v. Babu, AIR 1933 Nag 112 it was held that possession of a nonowner after partition is adverse. No exception can be taken to this proposition. But we fail to understand how this case will assist the appellant10. We now pass on to another aspect of the case. During pendency of this appeal Smt. Rajrani died on December 5, 1968. The appellant first filed C. M. P. No. 1377 of 1969 for his substitution in place of Smt. Rajrani, the fifth respondent, as her legal representative. No order has yet been made on this application. Now he has made another application in the course of hearing. By this application he seeks to amend his written statement. He wants to make this addition to the written statement"12 (a) that the gift deed dated 18-1-1954 was executed by Smt. Rajrani who was a limited owner having a widows estate on the date of the execution of the gift deed. Assuming though not admitting the said gift deed was valid it is submitted that the above gift could at most enure for the life of the defendant No. 5. The plaintiff can- not have any rights in the suit lands after the death of Smt. Rajrani and the defendant as the sole surviving reversioner becomes the owner of the lands and resist the claim of the plaintiff(b) that the genealogy of the family is as under"12(c) that the deceased Smt. Rajrani could not transfer the suit property even for the religious and charitable purposes as it was the entire property she had and such a transfer is not binding on the defendant after he death.He also prays for the renumbering of present paragraph 12 as paragraph 13 of the written statementIn our view, Mr. Tarkunde, is right in this submission. Ordinarily, a suit is tried in all its, stages on the cause of action as it existed on the date of its institution. But it is open to a Court including a Court of appeal to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate; or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the. (See Rai Charan v. Biswanath, AIR 1915 Cal 103)The trial Court had framed a specific issue on this aspect and recorded a finding against the. The trial Court said:"Smt. Rajrani is a Jain widow and therefore she is competent to transfer the suit lands for religious and charitable purposes.trial Court decreed the suit. The appellant filed an appeal. The appeal was allowed and the decree of the trial Court was set aside. The respondent then filed a second appeal in the High Court. As already stated, the High Court set aside the decree of the first appellate Court and restored the decree of the trial Court. It is said by Sri Chagla that as the appellant did not challenge the validity of the gift either in the first appellate Court or in the High Court, he should not be allowed to challenge it now by an amendment of his written statement. We find it difficult to accept this submission of Sri Chagla. Even if the assertions made in the application for amendment of the written statement are found to be true, the appellant could not have non-suited the respondent during the lifetime of Smt. Rajrani. The gift was valid during her lifetime. Her death gives a fresh cause of action to the appellant who claims to be her next reversioner. It appears to us that it will be just and proper to allow the amendment sought for. It will shorten litigation.
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Dipak Babaria Vs. State Of Gujarat | of all that is stated above is that the land which was purchased by respondent No.4 for Rs.70 lakhs is permitted by the Government of Gujarat to be sold directly to respondent No.5 at Rs.1.20 crores to set up an industry which could not have been done legally. It is undoubtedly not a case of loss of hundreds of crores as claimed by the appellants, but certainly a positive case of a loss of a few crores by the public exchequer by not going for public auction of the concerned property. It is true as pointed out by Mr. Venugopal, learned senior counsel that in a given case the state may invite an entrepreneur and give an offer. However, in the instant case, the sale of the land for industrial purpose is controlled by the statutory provisions, and the State was bound to act as per the requirements of the statute. The minister’s direction as seen from the record clearly indicates an arbitrary exercise of power. The orders passed by the Government cannot therefore be sustained. As seen earlier, there is neither a power nor a justification to make any special case, in favour of the Respondent No 5. Such exceptions may open floodgates for similar applications and orders, even though the Gujarat Government is contending that this order is purportedly not to be treated as a precedent.64. In our view, considering the scheme of the act, the process of industrialization must take place in accordance therewith. As stated earlier if the law requires a particular thing should be done in a particular manner it must be done in that way and none other. The State cannot ignore the policy intent and the procedure contemplated by the statute. In the instant case, the State could have acquired the land, and then either by auction or by considering the merit of the proposal of respondent No.5 allotted it to respondent No.5. Assuming that the application of the Respondent No 5 was for a bona-fide purpose, the same had to be examined by the industrial commissioner, to begin with, and thereafter it should have gone to the collector. After the property vests in the Government, even if there were other bidders to the property, the collector could have considered the merits and the bona-fides of the application of Respondent No. 5, and nothing would have prevented him from following the course which is permissible under the law. It is not merely the end but the means which are of equal importance, particularly if they are enshrined in the legislative scheme. The minimum that was required was an enquiry at the level of the Collector who is the statutory authority. Dictating him to act in a particular manner on the assumption by the Minister that it is in the interest of the industrial development would lead to a breach of the mandate of the statute framed by the legislature. The Ministers are not expected to act in this manner and therefore, this particular route through the corridors of the Ministry, contrary to the statute, cannot be approved. The present case is clearly one of dereliction of his duties by the Collector and dictation by the Minister, showing nothing but arrogance of power.65. The High Court has erred in overlooking the legal position. It was expected to look into all the earlier mentioned aspects. The impugned judgment does not reflect on the issues raised in the petition. It could not be said that the petition was delayed and merely because investment had been made by the respondent No.5, the court would decline to look into the important issues raised in the PIL. Epilogue:- 66. Before we conclude, we may observe that India is essentially a land of villages. Although, urbanization and industrialization is taking place, the industry has not developed sufficiently, and large part of our population is still required to depend on agriculture for sustenance. Lands are, therefore, required to be retained for agricultural purposes. They are also required to be protected from the damage of industrial pollution. Bonafide industrial activity may mean good income to the entrepreneurs, but it should also result into good employment and revenue to the State, causing least pollution and damage to the environment and adjoining agriculturists. While granting the permission under Section 89A (5) the Collector has to examine all these aspects. This is because the only other exception for conversion of agricultural lands to non-agricultural purpose is for those lands which are in an industrial zone. As far as the conversion of lands otherwise than those in the industrial zone is concerned, all the aforesaid precautions are required to be taken when a decision is to be arrived at as to whether the application is for a bonafide industrial purpose. In the instant case, there were newspaper reports of apprehensions and protest of the adjoining farmers. The Revenue Secretary and the Chief Secretary had placed the statutory provisions on record. It was expected of the Government and the Revenue Minister to take cognizance of these apprehensions of the farmers as well as the statutory provisions brought to her notice by the secretaries. She has simply brushed aside the objections of the secretaries merely because the Chief Minister’s secretary had written a letter, and because she was the minister concerned. While over-ruling the opinion of secretaries to the concerned department, the Minister was expected to give some reasons in support of the view she was taking. No such reason has come on record in her file notings. She has ignored that howsoever high you may be, the law is above you. 67. Development should not be measured merely in terms of growth of gross domestic product, but it should be in terms of utility to the community and the society in general. There is a certain inbuilt wisdom in the statute which is the mandate of the legislature which represents the people. The Minister has clearly failed to pay respect to the same. Hence, the following decision:- | 1[ds]) Therefore, when Indigold informed the Collector on 6.12.2008 that they were ‘no moreto put up any industrial project, and were disposing of the entire piece of land to their prospective client, the Collector was expected to hold the necessary enquiry. This was the minimum that he was expected to do. After holding the enquiry, if he was convinced that the industrial activity had not been started, he was expected to pass an order that the land will vest in the State which will have to be done after determining the compensation payable having regard to the price paid by the purchaser. In the instant case, the respondent No.4 claims to have purchased the land for Rs.70 lakhs. As pointed out by Mr. Krishnan Venugopal himself, as per the jantri price of the lands at that time, i.e. even at the Government rate in 2008, the land was worth Rs.4.35 crores. The collector was expected to dispose of the land by auction which is the normal method for disposal of natural resources which are national assets. Out of that amount, the compensation payable to the respondent no.4 would have been around Rs.70 lakhs having regard to the amount that the respondent No.4 had paid. This is because respondent no. 4 had purchased agricultural land to put up an industry, and they had taken no steps whatsoever for over five years to set up the industry. They were not expected to purchase the land, and thereafter sell it for profiteering. The Jantri price is an official price. In actual auction the State could have realised a greater amount. In permitting the sale inter-se parties, the State exchequer has positively suffered.(ii) On the other hand, in the event, the Collector was to form an opinion after receiving the bids or otherwise that it was not worth disposing of the land in that particular way, he could have divested Respondent No. 4 of the land by paying compensation, and re-allotted the same to the Respondent No 5 at an appropriate consideration. The statute required him to act in a particular manner and the land had to be dealt in that particular manner only, and in no other manner, as can be seen from the legal position, accepted in various judgments based on the proposition in Taylor vs. Taylor.55. Thus inspite of the Secretaries repeating their advice, the Minister of Revenue Smt. Anandiben Patel has insisted on treating this case as a special case for which she has recorded no justifiable reasons whatsoever, and orders were issued accordingly. Under Section 89A(3), the Government is the appellate authority where the Collector does not grant a certificate for purchase of bonafide industrial purpose. Thus what has happened, thereby is that the powers of the statutory authority have been exercised by the Government which is an appellate authority.As noted earlier, the State Government is an Appellate Authority under sub-section 3 of Section 89A, and it could not have given a direction to the Collector who was supposed to take the decision under his own authority. We may profitably refer to a judgment of a Constitutional Bench in State of Punjay vs. Hari Kishan reported in AIR 1966 SC 1081 . In that matter, the respondent desired to construct a cinema at Jhajhar. He submitted an application and under the orders of the State Government all applications were directed to be referred to the State Government. Therefore, though his application was initially accepted, the SDO informed him that the application was rejected. He appealed to the State Government and the appeal was rejected which has led to the petition in the High Court. The Punjab High Court framed the question as to whether the State of Punjab was justified in assuming the jurisdiction which was conferred on the licensing authority by the act. The Supreme Court held in paragraph 4 of the judgment, that the course adopted by the State of Punjab had resulted in the conversion of the appellate authority into the licensing authority. That was not permissible, and so it is in the present case. The reliance by the State Government on the overall control of the State under Section 126 of the Tenancy Act cannot be used when in the instant case the power is with the Collector and the appellate power is with the State Government. The power under Section 126 can be utilized for giving general guidelines, but not for interference or giving directions in individual cases.59. The submission that condition No.4 of the permission to purchase, obtained by respondent No.4 in 2003 permits the Collector to pass such an order is equally untenable. There is nothing in the statutory scheme to suggest that a second sale, inter se parties, after the failure of a purchaser to set up an industry is permissible. In such an event, the statute requires an enquiry to be conducted by the collector. If he is satisfied that there is a failure to set up the industry, the compensation to be paid to the purchaser is determined. After this stage the land vests in the Government. It is thus clear that the condition No 4 in the permission obtained by Respondent No. 4 is bad in law, not having its basis in any statutory provision. Even assuming that the Collector had that power to lay down such a condition, the authority to permit the sale as per the said condition had to be exercised by him in the manner contemplated under Section 89 A (5) viz. after holding the enquiry as prescribed. Here the enquiry itself was dispensed with. Rule 45(b) of the Bombay Tenancy and Agricultural Lands Rules, 1959 also cannot be pressed into service for the reason that, neither under Section 89 nor under Section 89A, a sale inter-se parties is contemplated or permitted.60. Now, what is to be noted is that wherever an agriculturist is in possession of a land, either as an owner or as a tenant protected by the statute, transfer of his land for industrial purposes is subject to the conditions regulated by the Act. It is for the protection and preservation of the agricultural land that the bar against conversion is created under Section 89. Thereafter, as an exception, only a bonafide use for industrial purpose is permissible under section 89A. Ownership of respondent No.4 was subject to the conditions of utilization for bonafide industrial purpose, and it was clear on record that respondent No.4 had failed to utilize the land for bonafide industrial purpose. The reliance on Sections 7 and 10 of the Transfer of Property Act is also misconceived in the present case, since the Tenancy Act is a welfare enactment, enacted for the protection of the agriculturists. It is a special statute and the sale of agricultural land permitted under this statue will have to be held as governed by the conditions prescribed under the statute itself. The special provisions made in the Tenancy Act will therefore prevail over those in the Transfer of Property Act to that extent.61. Besides, the present case is clearly a case of dictation by the State Government to the Collector. As observed by Wade and Forsyth in Tenth Edition of Administrativeintervention is in fact the effective cause, and if the power to act belongs to a body which ought to act independently, the action taken is invalid on the ground of external dictation as well as on the obvious grounds of bad faith or abuse ofobservations by the learned authors to the same effect in the Seventh Edition were relied upon by a bench of three judges of this Court in Anirudhsinhji Karansinhji Jadega and anr. vs. State of Gujarat reported in 1995 (5) SCC 302. In this matter the appellant was produced before the Executive Magistrate, Gondal, on the allegation that certain weapons were recovered from him. The provisions of TADA had been invoked. Theapplication for bail was rejected. A specific point was taken that the DSP had not given prior approval and the invocation of TADA was non-est. The DSP, instead of granting prior approval, made a report to the Additional Chief Secretary, and asked for permission to proceed underCourt in para 13, 14, 15 has held this to be a clear case ofThe respondent No.5 had the courage to state that the notings of the Secretaries were inconsequential. As a beneficiary of the largesse of the Government, respondent No.5 could say that, but it is not possible for us to accept the same.63. Now, the effect of all that is stated above is that the land which was purchased by respondent No.4 for Rs.70 lakhs is permitted by the Government of Gujarat to be sold directly to respondent No.5 at Rs.1.20 crores to set up an industry which could not have been done legally. It is undoubtedly not a case of loss of hundreds of crores as claimed by the appellants, but certainly a positive case of a loss of a few crores by the public exchequer by not going for public auction of the concernedis true as pointed out by Mr. Venugopal, learned senior counsel that in a given case the state may invite an entrepreneur and give an offer. However, in the instant case, the sale of the land for industrial purpose is controlled by the statutory provisions, and the State was bound to act as per the requirements of the statute. Thedirection as seen from the record clearly indicates an arbitrary exercise of power. The orders passed by the Government cannot therefore be sustained. As seen earlier, there is neither a power nor a justification to make any special case, in favour of the Respondent No 5. Such exceptions may open floodgates for similar applications and orders, even though the Gujarat Government is contending that this order is purportedly not to be treated as a precedent.64. In our view, considering the scheme of the act, the process of industrialization must take place in accordance therewith. As stated earlier if the law requires a particular thing should be done in a particular manner it must be done in that way and none other. The State cannot ignore the policy intent and the procedure contemplated by the statute. In the instant case, the State could have acquired the land, and then either by auction or by considering the merit of the proposal of respondent No.5 allotted it to respondent No.5. Assuming that the application of the Respondent No 5 was for a bona-fide purpose, the same had to be examined by the industrial commissioner, to begin with, and thereafter it should have gone to the collector. After the property vests in the Government, even if there were other bidders to the property, the collector could have considered the merits and the bona-fides of the application of Respondent No. 5, and nothing would have prevented him from following the course which is permissible under the law. It is not merely the end but the means which are of equal importance, particularly if they are enshrined in the legislative scheme. The minimum that was required was an enquiry at the level of the Collector who is the statutory authority. Dictating him to act in a particular manner on the assumption by the Minister that it is in the interest of the industrial development would lead to a breach of the mandate of the statute framed by the legislature. The Ministers are not expected to act in this manner and therefore, this particular route through the corridors of the Ministry, contrary to the statute, cannot be approved. The present case is clearly one of dereliction of his duties by the Collector and dictation by the Minister, showing nothing but arrogance of power.65. The High Court has erred in overlooking the legal position. It was expected to look into all the earlier mentioned aspects. The impugned judgment does not reflect on the issues raised in the petition. It could not be said that the petition was delayed and merely because investment had been made by the respondent No.5, the court would decline to look into the important issues raised in the PIL.(i) In normal circumstances, the order hereafter would have been to direct the Collector to proceed in accordance with Section 89A(5) viz., to hold an enquiry to decide whether the purchaser viz. Indigold had failed to commence the industrial activity and the production of goods and services within the period specified. In the instant case, there is no need of any such direction to hold an enquiry, in view of the letter of Indigold itself, dated 6.12.2008, wherein, it clearly stated that they were no more interested in putting up any industrial project in the said land.(ii) Consequently, there will be an order that the land shall vest in the State Government free from all encumbrances. This vesting order, however, has to be on payment of appropriate compensation to the purchaser as the Collector may determine. In the instant case, there is no need of having this determination, for the reason that Indigold has received from Alumina Rs. 1.20 crores as against the amount of 70 lakhs, which it had paid to the agriculturists when it bought those lands in 2003. Neither Indigold nor Alumina is making any grievance towards this figure or the payment thereof.In fact, it is the case of both of them that the direct sale by Indigold to Alumina for this amount as permitted by the State Government be held valid. That being so, this amount of Rs. 1.20 crores would be set-off towards the compensation which would be payable by the State Government to the purchaser Indigold, since the land was originally purchased by Indigold, and is now to vest in the State Government.(iii) The third step in this regard is that the land is to be disposed off by the State Government, having regard to the use of the land. The land was supposed to be used for the industrial activity on the basis of the utilization of bauxite found in Kutch, and respondent No. 5 has proposed a plant based on use of bauxite. The disposal of the land will, however, have to be at least as per the minimum price that would be receivable at the Government rate. In the facts and circumstances of this case, having noted that the respondent No.5 claims to have made some good investment, and that the Respondent No.5 has also offered to pay, without prejudice, the difference between Rs.4.35 crores and Rs.1.20 crores i.e. Rs.3.15 cores to the State, the land will be permitted to be disposed of by the State Government to Alumina provided Alumina pays this amount of Rs. 3.15 crores to the State Government. This particular order is being made having further noted that, Alumina has acted on the basis of the commitment made to it by the Government of Gujarat in the Vibrant Gujarat Summit, and in furtherance of the industrial development policy of the State. It is also relevant to note that the respondent No.5 had made an application to the Collector in the year 2009 for permitting the purchase of the land, and has been waiting to set up its industry for the last four years. Mr. Ahmadi, learned senior counsel appearing for the appellants has also submitted that, as such, appellants are not against the development of Kutch area, but they do want the state to follow the law and exchequer not to suffer. In the circumstances, although we do not approve the action of the State Government, and hold it to be clearly arbitrary and untenable, we are of the view that the aforesaid order will be appropriate to do complete justice in the matter. | 1 | 17,816 | 2,875 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
of all that is stated above is that the land which was purchased by respondent No.4 for Rs.70 lakhs is permitted by the Government of Gujarat to be sold directly to respondent No.5 at Rs.1.20 crores to set up an industry which could not have been done legally. It is undoubtedly not a case of loss of hundreds of crores as claimed by the appellants, but certainly a positive case of a loss of a few crores by the public exchequer by not going for public auction of the concerned property. It is true as pointed out by Mr. Venugopal, learned senior counsel that in a given case the state may invite an entrepreneur and give an offer. However, in the instant case, the sale of the land for industrial purpose is controlled by the statutory provisions, and the State was bound to act as per the requirements of the statute. The minister’s direction as seen from the record clearly indicates an arbitrary exercise of power. The orders passed by the Government cannot therefore be sustained. As seen earlier, there is neither a power nor a justification to make any special case, in favour of the Respondent No 5. Such exceptions may open floodgates for similar applications and orders, even though the Gujarat Government is contending that this order is purportedly not to be treated as a precedent.64. In our view, considering the scheme of the act, the process of industrialization must take place in accordance therewith. As stated earlier if the law requires a particular thing should be done in a particular manner it must be done in that way and none other. The State cannot ignore the policy intent and the procedure contemplated by the statute. In the instant case, the State could have acquired the land, and then either by auction or by considering the merit of the proposal of respondent No.5 allotted it to respondent No.5. Assuming that the application of the Respondent No 5 was for a bona-fide purpose, the same had to be examined by the industrial commissioner, to begin with, and thereafter it should have gone to the collector. After the property vests in the Government, even if there were other bidders to the property, the collector could have considered the merits and the bona-fides of the application of Respondent No. 5, and nothing would have prevented him from following the course which is permissible under the law. It is not merely the end but the means which are of equal importance, particularly if they are enshrined in the legislative scheme. The minimum that was required was an enquiry at the level of the Collector who is the statutory authority. Dictating him to act in a particular manner on the assumption by the Minister that it is in the interest of the industrial development would lead to a breach of the mandate of the statute framed by the legislature. The Ministers are not expected to act in this manner and therefore, this particular route through the corridors of the Ministry, contrary to the statute, cannot be approved. The present case is clearly one of dereliction of his duties by the Collector and dictation by the Minister, showing nothing but arrogance of power.65. The High Court has erred in overlooking the legal position. It was expected to look into all the earlier mentioned aspects. The impugned judgment does not reflect on the issues raised in the petition. It could not be said that the petition was delayed and merely because investment had been made by the respondent No.5, the court would decline to look into the important issues raised in the PIL. Epilogue:- 66. Before we conclude, we may observe that India is essentially a land of villages. Although, urbanization and industrialization is taking place, the industry has not developed sufficiently, and large part of our population is still required to depend on agriculture for sustenance. Lands are, therefore, required to be retained for agricultural purposes. They are also required to be protected from the damage of industrial pollution. Bonafide industrial activity may mean good income to the entrepreneurs, but it should also result into good employment and revenue to the State, causing least pollution and damage to the environment and adjoining agriculturists. While granting the permission under Section 89A (5) the Collector has to examine all these aspects. This is because the only other exception for conversion of agricultural lands to non-agricultural purpose is for those lands which are in an industrial zone. As far as the conversion of lands otherwise than those in the industrial zone is concerned, all the aforesaid precautions are required to be taken when a decision is to be arrived at as to whether the application is for a bonafide industrial purpose. In the instant case, there were newspaper reports of apprehensions and protest of the adjoining farmers. The Revenue Secretary and the Chief Secretary had placed the statutory provisions on record. It was expected of the Government and the Revenue Minister to take cognizance of these apprehensions of the farmers as well as the statutory provisions brought to her notice by the secretaries. She has simply brushed aside the objections of the secretaries merely because the Chief Minister’s secretary had written a letter, and because she was the minister concerned. While over-ruling the opinion of secretaries to the concerned department, the Minister was expected to give some reasons in support of the view she was taking. No such reason has come on record in her file notings. She has ignored that howsoever high you may be, the law is above you. 67. Development should not be measured merely in terms of growth of gross domestic product, but it should be in terms of utility to the community and the society in general. There is a certain inbuilt wisdom in the statute which is the mandate of the legislature which represents the people. The Minister has clearly failed to pay respect to the same. Hence, the following decision:-
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for similar applications and orders, even though the Gujarat Government is contending that this order is purportedly not to be treated as a precedent.64. In our view, considering the scheme of the act, the process of industrialization must take place in accordance therewith. As stated earlier if the law requires a particular thing should be done in a particular manner it must be done in that way and none other. The State cannot ignore the policy intent and the procedure contemplated by the statute. In the instant case, the State could have acquired the land, and then either by auction or by considering the merit of the proposal of respondent No.5 allotted it to respondent No.5. Assuming that the application of the Respondent No 5 was for a bona-fide purpose, the same had to be examined by the industrial commissioner, to begin with, and thereafter it should have gone to the collector. After the property vests in the Government, even if there were other bidders to the property, the collector could have considered the merits and the bona-fides of the application of Respondent No. 5, and nothing would have prevented him from following the course which is permissible under the law. It is not merely the end but the means which are of equal importance, particularly if they are enshrined in the legislative scheme. The minimum that was required was an enquiry at the level of the Collector who is the statutory authority. Dictating him to act in a particular manner on the assumption by the Minister that it is in the interest of the industrial development would lead to a breach of the mandate of the statute framed by the legislature. The Ministers are not expected to act in this manner and therefore, this particular route through the corridors of the Ministry, contrary to the statute, cannot be approved. The present case is clearly one of dereliction of his duties by the Collector and dictation by the Minister, showing nothing but arrogance of power.65. The High Court has erred in overlooking the legal position. It was expected to look into all the earlier mentioned aspects. The impugned judgment does not reflect on the issues raised in the petition. It could not be said that the petition was delayed and merely because investment had been made by the respondent No.5, the court would decline to look into the important issues raised in the PIL.(i) In normal circumstances, the order hereafter would have been to direct the Collector to proceed in accordance with Section 89A(5) viz., to hold an enquiry to decide whether the purchaser viz. Indigold had failed to commence the industrial activity and the production of goods and services within the period specified. In the instant case, there is no need of any such direction to hold an enquiry, in view of the letter of Indigold itself, dated 6.12.2008, wherein, it clearly stated that they were no more interested in putting up any industrial project in the said land.(ii) Consequently, there will be an order that the land shall vest in the State Government free from all encumbrances. This vesting order, however, has to be on payment of appropriate compensation to the purchaser as the Collector may determine. In the instant case, there is no need of having this determination, for the reason that Indigold has received from Alumina Rs. 1.20 crores as against the amount of 70 lakhs, which it had paid to the agriculturists when it bought those lands in 2003. Neither Indigold nor Alumina is making any grievance towards this figure or the payment thereof.In fact, it is the case of both of them that the direct sale by Indigold to Alumina for this amount as permitted by the State Government be held valid. That being so, this amount of Rs. 1.20 crores would be set-off towards the compensation which would be payable by the State Government to the purchaser Indigold, since the land was originally purchased by Indigold, and is now to vest in the State Government.(iii) The third step in this regard is that the land is to be disposed off by the State Government, having regard to the use of the land. The land was supposed to be used for the industrial activity on the basis of the utilization of bauxite found in Kutch, and respondent No. 5 has proposed a plant based on use of bauxite. The disposal of the land will, however, have to be at least as per the minimum price that would be receivable at the Government rate. In the facts and circumstances of this case, having noted that the respondent No.5 claims to have made some good investment, and that the Respondent No.5 has also offered to pay, without prejudice, the difference between Rs.4.35 crores and Rs.1.20 crores i.e. Rs.3.15 cores to the State, the land will be permitted to be disposed of by the State Government to Alumina provided Alumina pays this amount of Rs. 3.15 crores to the State Government. This particular order is being made having further noted that, Alumina has acted on the basis of the commitment made to it by the Government of Gujarat in the Vibrant Gujarat Summit, and in furtherance of the industrial development policy of the State. It is also relevant to note that the respondent No.5 had made an application to the Collector in the year 2009 for permitting the purchase of the land, and has been waiting to set up its industry for the last four years. Mr. Ahmadi, learned senior counsel appearing for the appellants has also submitted that, as such, appellants are not against the development of Kutch area, but they do want the state to follow the law and exchequer not to suffer. In the circumstances, although we do not approve the action of the State Government, and hold it to be clearly arbitrary and untenable, we are of the view that the aforesaid order will be appropriate to do complete justice in the matter.
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TRF Ltd Vs. Energo Engineering Projects Ltd | their authority to nominate cannot be questioned. What really in that circumstance can be called in question is the procedural compliance and the eligibility of their arbitrator depending upon the norms provided under the Act and the Schedules appended thereto. But, here is a case where the Managing Director is the "named sole arbitrator" and he has also been conferred with the power to nominate one who can be the arbitrator in his place. Thus, there is subtle distinction. In this regard, our attention has been drawn to a two-Judge Bench decision in State of Orissa and others v. Commissioner of Land Records & Settlement, Cuttack and others, (1998) 7 SCC 162. In the said case, the question arose can the Board of Revenue revise the order passed by its delegate. Dwelling upon the said proposition, the Court held: "25. We have to note that the Commissioner when he exercises power of the Board delegated to him under Section 33 of the Settlement Act, 1958, the order passed by him is to be treated as an order of the Board of Revenue and not as that of the Commissioner in his capacity as Commissioner. This position is clear from two rulings of this Court to which we shall presently refer. The first of the said rulings is the one decided by the Constitution Bench of this Court in Roop Chand v. State of Punjab. In that case, it was held by the majority that where the State Government had, under Section 41(1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, delegated its appellate powers vested in it under Section 21(4) to an "officer", an order passed by such an officer was an order passed by the State Government itself and "not an order passed by any officer under this Act" within Section 42 and was not revisable by the State Government. It was pointed out that for the purpose of exercise of powers of revision by the State under Section 42 of that Act, the order sought to be revised must be an order passed by an officer in his own right and not as a delegate of the State. The State Government was, therefore, not entitled under Section 42 to call for the records of the case which was disposed of by an officer acting as its delegate." 54. Be it noted in the said case, reference was made to Behari Kunj Sahkari Awas Samiti v. State of U.P., 1997(4) R.C.R (Civil) 95 : (1997) 7 SCC 37 , which followed the decision in Roop Chand v. State of Punjab, AIR 1963 SC 1503 . It is seemly to note here that said principle has been followed in Chairman, Indore Vikas Pradhikaran (supra). 55. Mr. Sundaram, has strongly relied on Firm of Pratapchand Nopaji (supra). In the said case, the three-Judge Bench applied the maxim "Qui facit per alium facit per se". We may profitably reproduce the passage: "9. ... The principle which would apply, if the objects are struck by Section 23 of the Contract Act, is embodied in the maxim: "Qui facit per alium facit per se" (What one does through another is done by oneself). To put it in another form, that which cannot be done directly may not be done indirectly by engaging another outside the prohibited area to do the illegal act within the prohibited area. It is immaterial whether, for the doing of such an illegal act, the agent employed is given the wider powers or authority of the "pucca adatia", or, as the High Court had held, he is clothed with the powers of an ordinary commission agent only." 56. The aforesaid authorities have been commended to us to establish the proposition that if the nomination of an arbitrator by an ineligible arbitrator is allowed, it would tantamount to carrying on the proceeding of arbitration by himself. According to learned counsel for the appellant, ineligibility strikes at the root of his power to arbitrate or get it arbitrated upon by a nominee. 57. In such a context, the fulcrum of the controversy would be, can an ineligible arbitrator, like the Managing Director, nominate an arbitrator, who may be otherwise eligible and a respectable person. As stated earlier, we are neither concerned with the objectivity nor the individual respectability. We are only concerned with the authority or the power of the Managing Director. By our analysis, we are obligated to arrive at the conclusion that once the arbitrator has become ineligible by operation of law, he cannot nominate another as an arbitrator. The arbitrator becomes ineligible as per prescription contained in Section 12(5) of the Act. It is inconceivable in law that person who is statutorily ineligible can nominate a person. Needless to say, once the infrastructure collapses, the superstructure is bound to collapse. One cannot have a building without the plinth. Or to put it differently, once the identity of the Managing Director as the sole arbitrator is lost, the power to nominate someone else as an arbitrator is obliterated. Therefore, the view expressed by the High Court is not sustainable and we say so.58. Another facet needs to be addressed. The Designated Judge in a cryptic manner has ruled after noting that the petitioner therein had no reservation for nomination of the nominated arbitrator and further taking note of the fact that there has been a disclosure, that he has exercised the power under Section 11(6) of the Act. We are impelled to think that that is not the right procedure to be adopted and, therefore, we are unable to agree with the High Court on that score also and, accordingly, we set aside the order appointing the arbitrator. However, as Clause (c) is independent of Clause (d), the arbitration clause survives and hence, the Court can appoint an arbitrator taking into consideration all the aspects. Therefore, we remand the matter to the High Court for fresh consideration of the prayer relating to appointment of an arbitrator. | 1[ds]9. We have reproduced the entire Clause 33 to appreciate the dispute resolution mechanism in its proper perspective.(c) of Clause 33 clearly postulates that if the dispute cannot be settled by negotiation, it has to be determined under the Act, as amended. Therefore, the amended provisions doa careful scrutiny of the proviso, it is discernible that there are fundamentally three components, namely, the parties can waive the applicability of thethe said waiver can only take place subsequent to dispute having arisen between the parties; and such waiver must be by an express agreement in writing.24. The aforesaid decision clearly lays down that it is not open to either of the parties to unilaterally appoint an arbitrator for resolution of the disputes in a situation that had arisen in the said case.The purpose of referring to the aforesaid judgments is that courts in certain circumstances have exercised the jurisdiction to nullify the appointments made by the authorities as there has been failure of procedure or ex facie contravention of the inherent facet of the arbitration clause.The said pronouncement, as we find, is factually distinguishable and it cannot be said in absolute terms that the proceeding once initiated could not be interfered with the proceeding under Section 11 of the Act. As we find, the said case pertained to ICC Rules and, in any case, we are disposed to observe that the said case rests upon its ownit clearly stated that the said decision is only concerned with the "concept of court" in the context of Sections 42, 34, 9 and 2(1)(e) of the Act. In the present case, we are exclusively concerned with the statutory disqualification of the learned arbitrator. The principles laid down in Associated Contractors (supra) has no applicability to the case at hand and reliance placed upon the same, we are obliged to say, is nothing but a sisyphean endeavour.We have discussed in detail to understand the context in which judgment in Associated Contractors (supra) was delivered. Suffice it to mention that in Walter Bau AG (supra), the designated Judge only reiterated the principles which have been stated by age Bench decisions that had dealt with Section 11 of the Act. We may also hasten to make it clear that the authority in Associated Contractors (supra) deals with a different situation and it has nothing to do with the conundrum that has arisen in the instant case. We have devoted some space as the said authority was pressed into service with enormous conviction. Beit clearly stated that the said decision is only concerned with the "concept of court" in the context of Sections 42, 34, 9 and 2(1)(e) of the Act. In the present case, we are exclusively concerned with the statutory disqualification of the learned arbitrator. The principles laid down in Associated Contractors (supra) has no applicability to the case at hand and reliance placed upon the same, we are obliged to say, is nothing but a sisyphean endeavour.It is worthy to note here that in the said case, the Court set aside the impugned order as the designated Judge had entered into the billing disputes, which he could not have. The purpose of referring to these two judgments is that apart from the fact that the Designated Judge can, at the initial stage, adjudicate upon his jurisdiction, he is also entitled to scrutinize the existence of the condition precedent for the exercise of his power and also the disqualification of the arbitrator orthe impugned order would indicate, the learned Judge has opined that there had been no failure of procedure, for there was a request for appointment of an arbitrator and an arbitrator has been appointed. It is apt to state here that the present factual score projects a different picture altogether and we have to carefully analyse thethink it appropriate to make it clear that in the case at hand we are neither concerned with the disclosure nor objectivity nor impartiality nor any such other circumstance.In such a context, the fulcrum of the controversy would be, can an ineligible arbitrator, like the Managing Director, nominate an arbitrator, who may be otherwise eligible and a respectable person. As stated earlier, we are neither concerned with the objectivity nor the individual respectability. We are only concerned with the authority or the power of the Managing Director. By our analysis, we are obligated to arrive at the conclusion that once the arbitrator has become ineligible by operation of law, he cannot nominate another as an arbitrator. The arbitrator becomes ineligible as per prescription contained in Section 12(5) of the Act. It is inconceivable in law that person who is statutorily ineligible can nominate a person. Needless to say, once the infrastructure collapses, the superstructure is bound to collapse. One cannot have a building without the plinth. Or to put it differently, once the identity of the Managing Director as the sole arbitrator is lost, the power to nominate someone else as an arbitrator is obliterated. Therefore, the view expressed by the High Court is not sustainable and we say so.58. Another facet needs to be addressed. The Designated Judge in a cryptic manner has ruled after noting that the petitioner therein had no reservation for nomination of the nominated arbitrator and further taking note of the fact that there has been a disclosure, that he has exercised the power under Section 11(6) of the Act. We are impelled to think that that is not the right procedure to be adopted and, therefore, we are unable to agree with the High Court on that score also and, accordingly, we set aside the order appointing the arbitrator. However, as Clause (c) is independent of Clause (d), the arbitration clause survives and hence, the Court can appoint an arbitrator taking into consideration all the aspects. Therefore, we remand the matter to the High Court for fresh consideration of the prayer relating to appointment of an arbitrator. | 1 | 12,720 | 1,114 | ### 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:
their authority to nominate cannot be questioned. What really in that circumstance can be called in question is the procedural compliance and the eligibility of their arbitrator depending upon the norms provided under the Act and the Schedules appended thereto. But, here is a case where the Managing Director is the "named sole arbitrator" and he has also been conferred with the power to nominate one who can be the arbitrator in his place. Thus, there is subtle distinction. In this regard, our attention has been drawn to a two-Judge Bench decision in State of Orissa and others v. Commissioner of Land Records & Settlement, Cuttack and others, (1998) 7 SCC 162. In the said case, the question arose can the Board of Revenue revise the order passed by its delegate. Dwelling upon the said proposition, the Court held: "25. We have to note that the Commissioner when he exercises power of the Board delegated to him under Section 33 of the Settlement Act, 1958, the order passed by him is to be treated as an order of the Board of Revenue and not as that of the Commissioner in his capacity as Commissioner. This position is clear from two rulings of this Court to which we shall presently refer. The first of the said rulings is the one decided by the Constitution Bench of this Court in Roop Chand v. State of Punjab. In that case, it was held by the majority that where the State Government had, under Section 41(1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, delegated its appellate powers vested in it under Section 21(4) to an "officer", an order passed by such an officer was an order passed by the State Government itself and "not an order passed by any officer under this Act" within Section 42 and was not revisable by the State Government. It was pointed out that for the purpose of exercise of powers of revision by the State under Section 42 of that Act, the order sought to be revised must be an order passed by an officer in his own right and not as a delegate of the State. The State Government was, therefore, not entitled under Section 42 to call for the records of the case which was disposed of by an officer acting as its delegate." 54. Be it noted in the said case, reference was made to Behari Kunj Sahkari Awas Samiti v. State of U.P., 1997(4) R.C.R (Civil) 95 : (1997) 7 SCC 37 , which followed the decision in Roop Chand v. State of Punjab, AIR 1963 SC 1503 . It is seemly to note here that said principle has been followed in Chairman, Indore Vikas Pradhikaran (supra). 55. Mr. Sundaram, has strongly relied on Firm of Pratapchand Nopaji (supra). In the said case, the three-Judge Bench applied the maxim "Qui facit per alium facit per se". We may profitably reproduce the passage: "9. ... The principle which would apply, if the objects are struck by Section 23 of the Contract Act, is embodied in the maxim: "Qui facit per alium facit per se" (What one does through another is done by oneself). To put it in another form, that which cannot be done directly may not be done indirectly by engaging another outside the prohibited area to do the illegal act within the prohibited area. It is immaterial whether, for the doing of such an illegal act, the agent employed is given the wider powers or authority of the "pucca adatia", or, as the High Court had held, he is clothed with the powers of an ordinary commission agent only." 56. The aforesaid authorities have been commended to us to establish the proposition that if the nomination of an arbitrator by an ineligible arbitrator is allowed, it would tantamount to carrying on the proceeding of arbitration by himself. According to learned counsel for the appellant, ineligibility strikes at the root of his power to arbitrate or get it arbitrated upon by a nominee. 57. In such a context, the fulcrum of the controversy would be, can an ineligible arbitrator, like the Managing Director, nominate an arbitrator, who may be otherwise eligible and a respectable person. As stated earlier, we are neither concerned with the objectivity nor the individual respectability. We are only concerned with the authority or the power of the Managing Director. By our analysis, we are obligated to arrive at the conclusion that once the arbitrator has become ineligible by operation of law, he cannot nominate another as an arbitrator. The arbitrator becomes ineligible as per prescription contained in Section 12(5) of the Act. It is inconceivable in law that person who is statutorily ineligible can nominate a person. Needless to say, once the infrastructure collapses, the superstructure is bound to collapse. One cannot have a building without the plinth. Or to put it differently, once the identity of the Managing Director as the sole arbitrator is lost, the power to nominate someone else as an arbitrator is obliterated. Therefore, the view expressed by the High Court is not sustainable and we say so.58. Another facet needs to be addressed. The Designated Judge in a cryptic manner has ruled after noting that the petitioner therein had no reservation for nomination of the nominated arbitrator and further taking note of the fact that there has been a disclosure, that he has exercised the power under Section 11(6) of the Act. We are impelled to think that that is not the right procedure to be adopted and, therefore, we are unable to agree with the High Court on that score also and, accordingly, we set aside the order appointing the arbitrator. However, as Clause (c) is independent of Clause (d), the arbitration clause survives and hence, the Court can appoint an arbitrator taking into consideration all the aspects. Therefore, we remand the matter to the High Court for fresh consideration of the prayer relating to appointment of an arbitrator.
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### Explanation:
9. We have reproduced the entire Clause 33 to appreciate the dispute resolution mechanism in its proper perspective.(c) of Clause 33 clearly postulates that if the dispute cannot be settled by negotiation, it has to be determined under the Act, as amended. Therefore, the amended provisions doa careful scrutiny of the proviso, it is discernible that there are fundamentally three components, namely, the parties can waive the applicability of thethe said waiver can only take place subsequent to dispute having arisen between the parties; and such waiver must be by an express agreement in writing.24. The aforesaid decision clearly lays down that it is not open to either of the parties to unilaterally appoint an arbitrator for resolution of the disputes in a situation that had arisen in the said case.The purpose of referring to the aforesaid judgments is that courts in certain circumstances have exercised the jurisdiction to nullify the appointments made by the authorities as there has been failure of procedure or ex facie contravention of the inherent facet of the arbitration clause.The said pronouncement, as we find, is factually distinguishable and it cannot be said in absolute terms that the proceeding once initiated could not be interfered with the proceeding under Section 11 of the Act. As we find, the said case pertained to ICC Rules and, in any case, we are disposed to observe that the said case rests upon its ownit clearly stated that the said decision is only concerned with the "concept of court" in the context of Sections 42, 34, 9 and 2(1)(e) of the Act. In the present case, we are exclusively concerned with the statutory disqualification of the learned arbitrator. The principles laid down in Associated Contractors (supra) has no applicability to the case at hand and reliance placed upon the same, we are obliged to say, is nothing but a sisyphean endeavour.We have discussed in detail to understand the context in which judgment in Associated Contractors (supra) was delivered. Suffice it to mention that in Walter Bau AG (supra), the designated Judge only reiterated the principles which have been stated by age Bench decisions that had dealt with Section 11 of the Act. We may also hasten to make it clear that the authority in Associated Contractors (supra) deals with a different situation and it has nothing to do with the conundrum that has arisen in the instant case. We have devoted some space as the said authority was pressed into service with enormous conviction. Beit clearly stated that the said decision is only concerned with the "concept of court" in the context of Sections 42, 34, 9 and 2(1)(e) of the Act. In the present case, we are exclusively concerned with the statutory disqualification of the learned arbitrator. The principles laid down in Associated Contractors (supra) has no applicability to the case at hand and reliance placed upon the same, we are obliged to say, is nothing but a sisyphean endeavour.It is worthy to note here that in the said case, the Court set aside the impugned order as the designated Judge had entered into the billing disputes, which he could not have. The purpose of referring to these two judgments is that apart from the fact that the Designated Judge can, at the initial stage, adjudicate upon his jurisdiction, he is also entitled to scrutinize the existence of the condition precedent for the exercise of his power and also the disqualification of the arbitrator orthe impugned order would indicate, the learned Judge has opined that there had been no failure of procedure, for there was a request for appointment of an arbitrator and an arbitrator has been appointed. It is apt to state here that the present factual score projects a different picture altogether and we have to carefully analyse thethink it appropriate to make it clear that in the case at hand we are neither concerned with the disclosure nor objectivity nor impartiality nor any such other circumstance.In such a context, the fulcrum of the controversy would be, can an ineligible arbitrator, like the Managing Director, nominate an arbitrator, who may be otherwise eligible and a respectable person. As stated earlier, we are neither concerned with the objectivity nor the individual respectability. We are only concerned with the authority or the power of the Managing Director. By our analysis, we are obligated to arrive at the conclusion that once the arbitrator has become ineligible by operation of law, he cannot nominate another as an arbitrator. The arbitrator becomes ineligible as per prescription contained in Section 12(5) of the Act. It is inconceivable in law that person who is statutorily ineligible can nominate a person. Needless to say, once the infrastructure collapses, the superstructure is bound to collapse. One cannot have a building without the plinth. Or to put it differently, once the identity of the Managing Director as the sole arbitrator is lost, the power to nominate someone else as an arbitrator is obliterated. Therefore, the view expressed by the High Court is not sustainable and we say so.58. Another facet needs to be addressed. The Designated Judge in a cryptic manner has ruled after noting that the petitioner therein had no reservation for nomination of the nominated arbitrator and further taking note of the fact that there has been a disclosure, that he has exercised the power under Section 11(6) of the Act. We are impelled to think that that is not the right procedure to be adopted and, therefore, we are unable to agree with the High Court on that score also and, accordingly, we set aside the order appointing the arbitrator. However, as Clause (c) is independent of Clause (d), the arbitration clause survives and hence, the Court can appoint an arbitrator taking into consideration all the aspects. Therefore, we remand the matter to the High Court for fresh consideration of the prayer relating to appointment of an arbitrator.
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Reliance Airport Developers Pvt. Ltd. Vs. Airports Authority of India and Ors. | authority to decide has been delegated to it unlawfully, or (4) it is without competence to deal with a matter by reason of the parties, the area in which the issue arose, the nature of the subject-matter, the value of that subject-matter, or the non- existence of any other pre-requisite of a valid adjudication. Excess of jurisdiction is not materially distinguishable from lack of jurisdiction and the expressions may be used interchangeably. Where the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of, the issue, or as jurisdictional. (p. 114). There is a presumption in construing statutes which confer jurisdiction or discretionary powers on a body, that if that body makes an error of law while purporting to act within that jurisdiction or in exercising those powers, its decision or action will exceed the jurisdiction conferred and will be quashed. The error must be one on which the decision or action depends. An error of law going to jurisdiction may be committed by a body which fails to follow the proper procedure required by law, which takes legally irrelevant considerations into account, or which fails to take relevant considerations into account, or which asks itself and answers the wrong question. (pp. 119-120) The presumption that error of law goes to jurisdiction may be rebutted on the construction of a particular statute, so that the relevant body will not exceed its jurisdiction by going wrong in law. Previously, the courts were more likely to find that errors of law were within jurisdiction; but with the modern approach errors of law will be held to fall within a bodys jurisdiction only in exceptional cases. The Court will generally assume that their expertise in determining the principles of law applicable in any case has not been excluded by Parliament.(p. 120). Errors of law include misinterpretation of a statute or any other legal document or a rule of common law; asking oneself and answering the wrong question, taking irrelevant considerations into account or failing to take relevant considerations into account when purporting to apply the law to the facts; admitting inadmissible evidence or rejecting admissible and relevant evidence; exercising a discretion on the basis of incorrect legal principles; giving reasons which disclose faulty legal reasoning or which are inadequate to fulfil an express duty to give reasons, and misdirecting oneself as to the burden of proof. (pp.121- 122) 60. H.W.R. Wade and C.F. Forsyth in their book - Administrative Law, 7th Edn., (1994) - discuss the subject regarding the jurisdiction of superior courts over subordinate courts and tribunals under the head Jurisdiction over Fact and Law in Chapter 9, pp. 284-320. The decisions before Anisminic and those in the post - Anisminic period have been discussed in detail. At pp. 319-320, the authors give the Summary of Rules thus: Jurisdiction over fact and law: Summary At the end of a chapter which is top- heavy with obsolescent material, it may be useful to summarise the position as shortly as possible. The overall picture is of an expanding system struggling to free itself from the trammels of classical doctrines laid down in the past. It is not safe to say that the classical doctrines are wholly obsolete and that the broad and simple principles of review, which clearly now commend themselves to the judiciary, will entirely supplant them. A summary can therefore only state the long-established rules together with and broader rules which have now superseded them, much for the benefit of the law. Together they are as follows: Errors of fact Old rule : The court would quash only if the erroneous jurisdictional. New rule : The court will quash if an erroneous and decisive fact was - (a) jurisdictional (b) found on the basis of no evidence; or (c) wrong, misunderstood or ignored. Errors of law Old rule: The court would quash only if the error was- (a) jurisdictional; or (b) on the face of the record. New rule: The court will quash for any decisive error because all errors of law are now jurisdictional. (emphasis supplied) The above position was highlighted by this Court in Mafatlal Industries Ltd. and Ors. v. Union of India and Ors. 1997(89)ELT247(SC) . Stand of respondents about appellants objectionable conduct needs consideration. Para 1.3 of RFP reads as follows: 1.3. Confidentiality- PQB receiving this RFP must have completed and returned the required, duly executed Confidentiality Deed. PQB are reminded that information provided in this RFP and the accompanying documentation package is covered by the terms of the Confidentiality Deed and the Disclaimer set out herein. PQB are also reminded that they are not to make any public statements about the Transaction process or their participation in it. Para 6.13 speaks of the Contract Points and in no uncertain terms provides as follows: ...Any request for information or clarification of information must be directed through the questions and answer process set out in Section 3. 3 hereof. PQB and their advisers must not make contact with any employees of AAI or other GOI agencies or airport customers except as arranged through ABN AMRO as part of the Transaction process. 61. Learned Counsel for the appellant submitted that the expression contract obviously means an illegal attempt for bribery etc. and cannot stand on the way of submission of documents for consideration. The plea is clearly untenable. Though, there is no penal clause for such breach it goes against a very concept of fairness in the process and evaluation of bids. Whatever documents are to be submitted are clearly stipulated. Any attempt to take advantage of any newspaper report, clearly falls foul of the mandate that there shall not be any contract with any person involved in the process of selection. It is unusual that the RFP did not make such a contract is a factor for disqualification. This is to be kept in view in future tenders. | 0[ds]It is to be noted that the ultimate authority to take the decision in the matter was EGOM. It was within the powers of EGOM to decide as to what inputs it can take note of and the source of these inputs. Therefore, the necessity for taking views of various committees constituted appears to be a step-in the right direction. This was a step which appears to have been taken for making the whole decision making process transparent. There was no question of having the view of one Committee in preference to another. EC was a Committee constituted as a part of the decision making process like other Committees vis. GRC, COS and IMG. In the multi tier system in the decision making process the authority empowered to take a decision can accept the view expressed by one committee in preference to another for plausible reasons. It is not bound to accept the view of any committee. These committees, it needs no emphasis, are constituted to assist the decision making authority in arriving at the proper decision. It is a matter of discretion of the authority to modify the norms. It is not a case of absolute discretion.31. In the instant case, though the High Court seems to have noted that the EGOM has absolute discretion, it has really not held that the discretion was unfettered. In fact it has on facts found that the discretion was properly exercised to make some variations in the terms of RFP. Coming to the constitution of GETE, no mala fides are alleged against the members. It is only the method of evaluation done by GETE which is challenged apart from contending that GETE should not have been constituted. About the constitution of GETE, as noted above, the stand is clearly untenable. So far as evaluation of the marks as done by EC is concerned, GETE has given reasons for altering the marks allotted which ultimately led to the non qualification of the appellant. There were four identified areas where it was noted that the ECs approach in the evaluation exercise was inconsistent with the terms of the RFP.32. EGOM in its order dated 27.12.2005 constituting GETE, stipulated as follows:The Group would particularly look into and present its recommendations before the COS on:(a) Overall validation of the evaluation process, including calibration of the qualification and sensitivity analysis. The sensitivity analysis will cover the impact of inter-se weight ages of sub-criteria as well as scoring.b) The issues raised by the Members of the Inter Ministerial Group about the evaluation process.c) An overall assessment of transparency and fairness of the evaluation process, including steps required, if any, to achieve a transparent and fair outcome.d) Suggestions for improving the selection process for Joint Venture Partner in the future.Essentially there were four instances of rewriting of priorities and weight ages as contained in the RFP and valuation was then made by the EC on the basis of these re- written priorities and weight ages. These were as follows;(i) Change in priority in the matter of absorption of staff,(ii) Changing the weightage ascribed to property development by merging the marks for infrastructure development and property development,(iii) Changing of the weightage ascribed to non- aeronautical development by failing to consider aeronautical revenue of 40% as a threshold less than which would not get any marks, and(iv) Changing the weightage of experience in respect of a non-OECD airport by treatment of a OECD airport on par with non-OECD airports.33. As regards (i), the EC divided the marks between 3.1.1 and 3.1.2 unequally, and also awarded marks for the extent of absorption proposed from a baseline of Zero instead of a baseline of 40% which was the mandatory absorption criteria. The RFP accorded a priority to a higher absorption of existing staff by the new company. The EC proceeded to modify this priority. It opined that the overall approach was more important than absorption, and gave marks accordingly. So far as (ii) is concerned, the EC again altered the weight ages accorded in the RFP, which considered experience in property development as valuable as infrastructure development and thereby put each of them as a sub-head. According to EC, the former was not as important as the latter and thus gave 1.6 marks for the former (1.2.2) and 4.7 marks for the latter (1.2.3.).34. As consequence of (iii) above, EC gave marks to the appellant who had projected less than 40% non-aeronautical revenue- whereas the RFP clearly gave a weightage to aeronautical revenue beyond 40%. As rightly contended by the respondents, if a project has a high revenue share given to the government, then aeronautical revenue being regulated, the incomes would flow from non-aeronautical revenues. However generation of such non-aeronautical revenues would involve a larger capital investment in property development. EC (a) gave less marks to GVK because it had a high capital outlay projected (as compared to the appellant), (b) did not regard experience in property development as having the same priority as infrastructure development, and (c) gave marks to the appellant for its non-aeronautical revenue, although its projected revenue was less than 40%.As a consequence of (iv) above, EC gave marks to the appellant for Mexico Airport which is admittedly an OECD Airport - on the spacious reasoning that it is virtually like a non-OECD Airport since Mexico is like a developing country.36. As rightly pointed out by learned Counsel for the respondents that if EC felt that the priorities and weight ages as indicated in the RFP were inappropriate, it should have requested AAI/GOI to amend the RFP before the bids were received. Interestingly, the modifications were resorted to after the bids were opened. That is the principal reason for which EGOM appears to have sought views of the COS and the COS was equally entitled to invite a group of experts to examine the matter.It is to be noted that the appellant had no property development experience. It had projected less than 40% non aeronautical revenue and had a partner from an OECD country. The GETEs report shows that even taking these four modifications led to some of the bidders getting more marks. GVK and others did not cross the bench mark of 80% and even after exclusion of these marks, GMR had more than 80% marks. It was only the appellant who crossed the threshold of 80% on account of these four variations and fell below 80% when the effect of these four variations was excluded. Departure from the RFP made by EC after opening the bids can reasonably raise a doubt that EC knew that the modalities would benefit the appellant. In any event, it is not necessary to go into the question whether EC was partial to the appellant because that is nobodys case, though it has been submitted that after opening the bids, EC made the variations and beneficiary was the appellant. GETEs report shows that it enunciated the principle to carry out an exercise that would be more in the nature of validation dealing with the four variations made by EC. GETE also noted that certain issues can be more satisfactorily addressed by process of validation that would involve a re-allocation of marks, on the assessment made by the EC of the bids albeit in a manner that would be consistent with the RFP. It essentially was not an exercise of re-evaluation but of a re-allocation consistent with RFP.38. As noted in GETEs first report, its attempt was to assess whether EC had assigned weight ages and marks in a logical and transparent manner to the sub-factors and whether there had been any biased in favour of or against any of the bidders while assigning marks, with reference to the RFP. While making such examination, the issues raised by the members of IMG were kept in view, but as stated in the report, GETE was not solely guided by their views. Though the first report itself indicated the reasons as to why the evaluation process containing the moderation exercise was not undertaken in respect of bidders, as desired by EGOM GETE did so and submitted its second report. Undisputedly, GMR crossed the bench mark of 80% in respect of both the bids while others did not.It is to be noted that the appellant had come into the zone of consideration only because of lowering of the bench mark as otherwise after the modifications were made by GETE, it had not crossed the bench mark. The appellants stand that if none was found eligible on the basis of 80% bench mark, there should have been a fresh bid, has been answered by the respondents. It has been pointed out that the number of bidders was small. The bidders after opening of the bid knew the merits and demerits of all the bids. There was an urgency for early completion of the airports keeping in view the 2010 Commonwealth Games. The scope for judicial review of administrative actions has been considered by this Court in various cases.The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and (ii) excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires.41. The present trend of judicial opinion is to restrict the doctrine of immunity from judicial review to those class of cases which relate to deployment of troupes, entering into international treaties, etc. The distinctive features of some of these recent cases signify the willingness of the Courts to assert their power to scrutinize the factual basis upon which discretionary powers have been exercised. One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is illegality the second irrationality, and the third procedural impropriety. These principles were highlighted by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service 1984 (3) All.ER.935, (commonly known as CCSU Case). If the power has been exercised on a non-consideration or non- application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. (See Commissioner of Income-tax v. Mahindra and Mahindra Ltd. [1983]144ITR225(SC) ).Therefore, to arrive at a decision on reasonableness the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view.Therefore, to arrive at a decision on reasonableness the Court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view.In other words, to characterize a decision of the administrator as irrational the Court has to hold, on material, that it is a decision so outrageous as to be in total defiance of logic or moral standards. Adoption of proportionality into administrative law was left for the future. In essence, the test is to see whether there is any infirmity in the decision making process and not in the decision itself. (See Indian Railway Construction Co. Ltd. v. Ajay Kumar (2003)IILLJ150SC )It is also to be noted that there was no stand before the High Court that the appellant wanted to match the bid. Even if it is accepted for the sake of argument, that was so urged it would have no consequence.49. A very attractive argument was advanced that as GMR has been allowed to match the financial dealing of appellant for Mumbai airport, the same modality should have been adopted for the other bidders. Though the argument is attractive, at first flush, it cannot be accepted for the simple reason that when bench mark is crossed, financial consideration is the determinative factor because of revenue sharing. It is to be noted that though emphasis was led that the constitution of Committees of non technical persons could not have thrown much light on the ultimate decision, yet it is to be noted that all the three Committees were part of the government machinery. The issue was to assess correctness of the ECs decision.50. Expression of different views and discussions in different meetings really lead to a transparent process and transparency in the decision making process. In the realms of contract, various choices were available. Comparison of the respective merits, offers of choice and whether that choice has been properly exercised are the deciding factors in the judicial review.51. As has been rightly submitted by learned Counsel for the Union of India, the RFP has to be considered in the context of other documents like substantial document OMDA, execution of the agreements culminating to the final master plan. Initial development plan is nothing but a projection which has to be broadly in line with OMDA. Undisputedly, OMDA is prepared by the GOI and AAI. One of the documents in the transaction documents is OMDA. It is to be noted that if no one was qualified, two alternatives were available either to scrap or abandon the process and second to re-conduct the tenders. As noted above, the practical compulsion which made the choice avoidable cannot be termed as perverse or lacking rationality. The safety valve is the OMDA. The ranking becomes irrelevant after the bidders have come to the arena and then finally the financial bid which determines the ultimate bid. It is to be noted that GETE wanted to know as to whether the variation for allotment of marks in respect of the development side area was done before opening the bids or after opening it. EC had given a very evasive answer stating that same was done before allotting marks. GETEs job was not the evaluation but verifying the evaluation process. GETEs examination was restricted to see whether alignment with RFP was correctly done. GETE was not expected to give fresh opinion and no evaluation was necessary. Weightage introduces subjectivity. GETE has gone by objective standards. The criterion adopted by GETE appears to be more rational. It proceeded with the idea that more objectivity was necessary. So it has called the process to be validation process.52. It is pointed out by learned Counsel for the respondents that parameters for judicial review are different in the matters of contract for normal case of tenders. In case of commercial contracts the normal contractual matters are excluded. It is pointed out that there is no overwhelming public interest involving such matters. GETE had only touched the fallacious approach of EC to make the process transparent. The view taken is a possible view supported by reasons and there should not be any interference. In the ultimate, the question would be whether in the process of selection the Government had adopted transparent and fair process. While balancing several claims a rational approach is necessary and that is to be formed in line with the scope of judicial interference. It is to be noted that Clause 5.5. deals with a situation of the same bidder being the highest bidder for both the airports. It proceeds on the basis that there would be another eligible bidder for the other airport and on that basis the procedure to be adopted has been prescribed. In such a situation the bidder who would be successful i.e. the highest bidder would be asked to take the airport when the difference between his bid and the next higher bid is greater. Such a procedure could be followed where there is second valid bid at the final phase. This procedure does not deal with a situation where there is only one bidder with valid bids for both the airports. In such a situation he becomes the highest bidder for both the airports and for that reason alone, the question of evaluation of financial bid arises.53. If the RFP was to consider at the final phase of evaluation there would be only one bid for each of the airports. In that event, there would be no question of finding out difference between the various bids or comparing bids. That left no option with the EGOM but to either vary RFP or to award one of the airports to GMR and to cancel the process for the second or cancel the entire process. The latter course would not have been in larger public interest. Therefore, the EGOM exercised its option. In final analysis, what the EGOM has done is to accept the report of EC subject to validation done by GETE.It is to be noted that in respect of both the appellant and the GETE wherever subjectivity criteria is involved, GETE has not dealt with the same.56. The mandate of EGOM was to validate and not to invalidate. It was a process for overall validation and calibration to apply the correct standard. It is the texture of the tendered document which is of paramount importance. EC has changed the texture whereas GETE did not do it. It needs no emphasis that uneven denomination breaks the integrity and textures. Perverseness in connection with a finding of fact is an aspect of mistake of law. Linked with the question whether GETEs constitution was legal, other question is whether the jurisdiction conferred on GETE has been properly exercised. Examination of the second question alone would be necessary since we have held that constitution of GETE does not suffer from any infirmity.Stand of respondents about appellants objectionable conduct needs consideration.Para 1.3 of RFP reads as follows:1.3. Confidentiality- PQB receiving this RFP must have completed and returned the required, duly executed Confidentiality Deed.PQB are reminded that information provided in this RFP and the accompanying documentation package is covered by the terms of the Confidentiality Deed and the Disclaimer set out herein. PQB are also reminded that they are not to make any public statements about the Transaction process or their participation in it.Para 6.13 speaks of the Contract Points and in no uncertain terms provides as follows:...Any request for information or clarification of information must be directed through the questions and answer process set out in Section 3. 3 hereof.PQB and their advisers must not make contact with any employees of AAI or other GOI agencies or airport customers except as arranged through ABN AMRO as part of the Transaction process.61. Learned Counsel for the appellant submitted that the expression contract obviously means an illegal attempt for bribery etc. and cannot stand on the way of submission of documents for consideration. The plea is clearly untenable. Though, there is no penal clause for such breach it goes against a very concept of fairness in the process and evaluation of bids. Whatever documents are to be submitted are clearly stipulated. Any attempt to take advantage of any newspaper report, clearly falls foul of the mandate that there shall not be any contract with any person involved in the process of selection. It is unusual that the RFP did not make such a contract is a factor for disqualification. This is to be kept in view in future tenders. | 0 | 22,836 | 3,826 | ### 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:
authority to decide has been delegated to it unlawfully, or (4) it is without competence to deal with a matter by reason of the parties, the area in which the issue arose, the nature of the subject-matter, the value of that subject-matter, or the non- existence of any other pre-requisite of a valid adjudication. Excess of jurisdiction is not materially distinguishable from lack of jurisdiction and the expressions may be used interchangeably. Where the jurisdiction of a tribunal is dependent on the existence of a particular state of affairs, that state of affairs may be described as preliminary to, or collateral to the merits of, the issue, or as jurisdictional. (p. 114). There is a presumption in construing statutes which confer jurisdiction or discretionary powers on a body, that if that body makes an error of law while purporting to act within that jurisdiction or in exercising those powers, its decision or action will exceed the jurisdiction conferred and will be quashed. The error must be one on which the decision or action depends. An error of law going to jurisdiction may be committed by a body which fails to follow the proper procedure required by law, which takes legally irrelevant considerations into account, or which fails to take relevant considerations into account, or which asks itself and answers the wrong question. (pp. 119-120) The presumption that error of law goes to jurisdiction may be rebutted on the construction of a particular statute, so that the relevant body will not exceed its jurisdiction by going wrong in law. Previously, the courts were more likely to find that errors of law were within jurisdiction; but with the modern approach errors of law will be held to fall within a bodys jurisdiction only in exceptional cases. The Court will generally assume that their expertise in determining the principles of law applicable in any case has not been excluded by Parliament.(p. 120). Errors of law include misinterpretation of a statute or any other legal document or a rule of common law; asking oneself and answering the wrong question, taking irrelevant considerations into account or failing to take relevant considerations into account when purporting to apply the law to the facts; admitting inadmissible evidence or rejecting admissible and relevant evidence; exercising a discretion on the basis of incorrect legal principles; giving reasons which disclose faulty legal reasoning or which are inadequate to fulfil an express duty to give reasons, and misdirecting oneself as to the burden of proof. (pp.121- 122) 60. H.W.R. Wade and C.F. Forsyth in their book - Administrative Law, 7th Edn., (1994) - discuss the subject regarding the jurisdiction of superior courts over subordinate courts and tribunals under the head Jurisdiction over Fact and Law in Chapter 9, pp. 284-320. The decisions before Anisminic and those in the post - Anisminic period have been discussed in detail. At pp. 319-320, the authors give the Summary of Rules thus: Jurisdiction over fact and law: Summary At the end of a chapter which is top- heavy with obsolescent material, it may be useful to summarise the position as shortly as possible. The overall picture is of an expanding system struggling to free itself from the trammels of classical doctrines laid down in the past. It is not safe to say that the classical doctrines are wholly obsolete and that the broad and simple principles of review, which clearly now commend themselves to the judiciary, will entirely supplant them. A summary can therefore only state the long-established rules together with and broader rules which have now superseded them, much for the benefit of the law. Together they are as follows: Errors of fact Old rule : The court would quash only if the erroneous jurisdictional. New rule : The court will quash if an erroneous and decisive fact was - (a) jurisdictional (b) found on the basis of no evidence; or (c) wrong, misunderstood or ignored. Errors of law Old rule: The court would quash only if the error was- (a) jurisdictional; or (b) on the face of the record. New rule: The court will quash for any decisive error because all errors of law are now jurisdictional. (emphasis supplied) The above position was highlighted by this Court in Mafatlal Industries Ltd. and Ors. v. Union of India and Ors. 1997(89)ELT247(SC) . Stand of respondents about appellants objectionable conduct needs consideration. Para 1.3 of RFP reads as follows: 1.3. Confidentiality- PQB receiving this RFP must have completed and returned the required, duly executed Confidentiality Deed. PQB are reminded that information provided in this RFP and the accompanying documentation package is covered by the terms of the Confidentiality Deed and the Disclaimer set out herein. PQB are also reminded that they are not to make any public statements about the Transaction process or their participation in it. Para 6.13 speaks of the Contract Points and in no uncertain terms provides as follows: ...Any request for information or clarification of information must be directed through the questions and answer process set out in Section 3. 3 hereof. PQB and their advisers must not make contact with any employees of AAI or other GOI agencies or airport customers except as arranged through ABN AMRO as part of the Transaction process. 61. Learned Counsel for the appellant submitted that the expression contract obviously means an illegal attempt for bribery etc. and cannot stand on the way of submission of documents for consideration. The plea is clearly untenable. Though, there is no penal clause for such breach it goes against a very concept of fairness in the process and evaluation of bids. Whatever documents are to be submitted are clearly stipulated. Any attempt to take advantage of any newspaper report, clearly falls foul of the mandate that there shall not be any contract with any person involved in the process of selection. It is unusual that the RFP did not make such a contract is a factor for disqualification. This is to be kept in view in future tenders.
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available either to scrap or abandon the process and second to re-conduct the tenders. As noted above, the practical compulsion which made the choice avoidable cannot be termed as perverse or lacking rationality. The safety valve is the OMDA. The ranking becomes irrelevant after the bidders have come to the arena and then finally the financial bid which determines the ultimate bid. It is to be noted that GETE wanted to know as to whether the variation for allotment of marks in respect of the development side area was done before opening the bids or after opening it. EC had given a very evasive answer stating that same was done before allotting marks. GETEs job was not the evaluation but verifying the evaluation process. GETEs examination was restricted to see whether alignment with RFP was correctly done. GETE was not expected to give fresh opinion and no evaluation was necessary. Weightage introduces subjectivity. GETE has gone by objective standards. The criterion adopted by GETE appears to be more rational. It proceeded with the idea that more objectivity was necessary. So it has called the process to be validation process.52. It is pointed out by learned Counsel for the respondents that parameters for judicial review are different in the matters of contract for normal case of tenders. In case of commercial contracts the normal contractual matters are excluded. It is pointed out that there is no overwhelming public interest involving such matters. GETE had only touched the fallacious approach of EC to make the process transparent. The view taken is a possible view supported by reasons and there should not be any interference. In the ultimate, the question would be whether in the process of selection the Government had adopted transparent and fair process. While balancing several claims a rational approach is necessary and that is to be formed in line with the scope of judicial interference. It is to be noted that Clause 5.5. deals with a situation of the same bidder being the highest bidder for both the airports. It proceeds on the basis that there would be another eligible bidder for the other airport and on that basis the procedure to be adopted has been prescribed. In such a situation the bidder who would be successful i.e. the highest bidder would be asked to take the airport when the difference between his bid and the next higher bid is greater. Such a procedure could be followed where there is second valid bid at the final phase. This procedure does not deal with a situation where there is only one bidder with valid bids for both the airports. In such a situation he becomes the highest bidder for both the airports and for that reason alone, the question of evaluation of financial bid arises.53. If the RFP was to consider at the final phase of evaluation there would be only one bid for each of the airports. In that event, there would be no question of finding out difference between the various bids or comparing bids. That left no option with the EGOM but to either vary RFP or to award one of the airports to GMR and to cancel the process for the second or cancel the entire process. The latter course would not have been in larger public interest. Therefore, the EGOM exercised its option. In final analysis, what the EGOM has done is to accept the report of EC subject to validation done by GETE.It is to be noted that in respect of both the appellant and the GETE wherever subjectivity criteria is involved, GETE has not dealt with the same.56. The mandate of EGOM was to validate and not to invalidate. It was a process for overall validation and calibration to apply the correct standard. It is the texture of the tendered document which is of paramount importance. EC has changed the texture whereas GETE did not do it. It needs no emphasis that uneven denomination breaks the integrity and textures. Perverseness in connection with a finding of fact is an aspect of mistake of law. Linked with the question whether GETEs constitution was legal, other question is whether the jurisdiction conferred on GETE has been properly exercised. Examination of the second question alone would be necessary since we have held that constitution of GETE does not suffer from any infirmity.Stand of respondents about appellants objectionable conduct needs consideration.Para 1.3 of RFP reads as follows:1.3. Confidentiality- PQB receiving this RFP must have completed and returned the required, duly executed Confidentiality Deed.PQB are reminded that information provided in this RFP and the accompanying documentation package is covered by the terms of the Confidentiality Deed and the Disclaimer set out herein. PQB are also reminded that they are not to make any public statements about the Transaction process or their participation in it.Para 6.13 speaks of the Contract Points and in no uncertain terms provides as follows:...Any request for information or clarification of information must be directed through the questions and answer process set out in Section 3. 3 hereof.PQB and their advisers must not make contact with any employees of AAI or other GOI agencies or airport customers except as arranged through ABN AMRO as part of the Transaction process.61. Learned Counsel for the appellant submitted that the expression contract obviously means an illegal attempt for bribery etc. and cannot stand on the way of submission of documents for consideration. The plea is clearly untenable. Though, there is no penal clause for such breach it goes against a very concept of fairness in the process and evaluation of bids. Whatever documents are to be submitted are clearly stipulated. Any attempt to take advantage of any newspaper report, clearly falls foul of the mandate that there shall not be any contract with any person involved in the process of selection. It is unusual that the RFP did not make such a contract is a factor for disqualification. This is to be kept in view in future tenders.
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Indian Carbon Ltd Vs. Superintendent Of Taxes, Gauhati & Ors | dismissed. 3. In the writ petition as also the return filed in reply thereto and before the High Court the provisions of certain other enactments were mentioned. These were the Assam Finance Sales Tax Act, 1956 as amended from time to time and the Assam Sales of Petroleum and Petroleum Products, including Motor Spirit and Lubricants Taxation Act, 1956 as amended. It is unnecessary to refer to their relevant provision because before us it is common ground that the tax would be payable under the Assam Act, the only question being about the rate. Under the Assam Act the rate chargeable was 5 paise per rupee. But it has been claimed on behalf of the appellant that by virtue of the provisions of the Central Sales Tax Act 1956, hereinafter called the "Central Act", the rate at which the tax would be payable is 2 paise per rupee."Section 14 declares, inter alia, that coal including coke in all its forms constitutes goods which are of special importance in inter-State trade or commerce. Section 15 (1) of the Central Act as it stood at the relevant time was in the following terms:- Section 15. "Every sales tax law of a State shall, in so far as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions, namely:- (a) the tax payable under that law in respect of any sale or purchase of such goods inside the State shall not exceed (two per cent.) of the sale or purchase price thereof, and such tax shall not be levied at more than one stage. (b) .........................." It may be mentioned that by Amending Act 13 of 1966 3% was substituted for 2% with effect from July 1, 1966. 4. It is not disputed that if petroleum coke is covered by Clause (i) of Section 14 which reads "coal including coke in all its forms" the State was not competent to levy tax at a rate exceeding the one given in Section 15 (a) of the Central Act. Before the High Court it was common ground that petroleum coke is used mainly in industries dealing with the manufacture of carbon products and it differs in material constituents, quality, utility and composition from the ordinary coke used as fuel. It is used largely in the manufacture of dry cells, carbon electrodes and electric furnace resistance elements. Reference has also been made in the Judgment to what is stated in Chemical Engineers Handbook, 3rd Edn, at page 1566:-"Coke is a hard, dense, infusible carbonization residue that ranges from a dull gray-back to a silvery gray the latter is characteristic of good quality, high temperature coke. A coke of this type makes a ringing sound when dropped or struck with a hard object. It exhibits a porous cellular structure, which primarily depends upon the kind of coal used and the rate of heating during the carbonization process." The High Court was of the view that the word coal includes coke in all its forms in Clause (i) of Section 14 of the Central Act and must be taken to mean coke derived from coal. In other words it must be coke which had been derived or acquired from coal by following the usual process of heating or burning. The contention, therefore, of the appellant was negatived that petroleum coke was covered by the aforesaid provision of the Central Act. 5. We are wholly unable to agree with the reasoning or the conclusion of the High Court with regard to the ambit and scope of Clause (i) of Section 14 of the Central Act. The language is clearly wide and coal has been stated to include coke in all its forms. It is not denied that petroleum coke is one of the forms of coke. Therefore on a plain reading of the aforesaid clause it is incomprehensible how petroleum coke can be excluded from its ambit. It may be that the clause mentions coal only and then declares that that word shall include coke in all its forms. That shows that the object of the words which follow coal is to extend its meaning. In the writ petition it was stated in Para 2 that "coke is the refuse left after destructive distillation of coal, shale or oil and is called petroleum coke, Metallurgical coke or pitch coke, to indicate its source or origin; but all these are carbonaceous material used for the same purpose and having same properties, more or less, main being - Mixed Carbon, - Volatile Matters, - Ash and - Moisture." In the affidavit in opposition that was filed by the Assistant Commissioner of Taxes, Assam, this statement does not appear to have been properly denied. All that has been stated in Para 5 is that the word "coke" in Clause (i) of Section 14 implies coke obtained from coal only and does not include petroleum coke. The statement in the writ petition is very similar to the meaning of the word "coke" given in Websters New International Dictionary, Vol. 1 which is as follows :-"The infusible cellular, coherent residue obtained when coal is subjected to destructive distillation. It consists mainly of carbon, is hard porous and gray, and has a submetallic luster. Any similar substance left as a residue when petroleum, shole oil, etc. are distilled to dryness."Our attention has been invited by learned counsel for State to the discussion in Encyclopaedia Britannica, Vol. 5 on coke, coking and high temperature carbonization. We do not consider that when the Parliament used the word "coke" in a Section 14 (i) of the Central Act it had any intention to give it a meaning other than the ordinary dictionary meaning which would cover petroleum coke. At any rate, the language employed is so wide viz. "Coke in all its forms" that petroleum coke which is a form of coke cannot possibly be excluded merely by reference to the word "Coal". | 1[ds]are wholly unable to agree with the reasoning or the conclusion of the High Court with regard to the ambit and scope of Clause (i) of Section 14 of the Central Act. The language is clearly wide and coal has been stated to include coke in all its forms. It is not denied that petroleum coke is one of the forms of coke. Therefore on a plain reading of the aforesaid clause it is incomprehensible how petroleum coke can be excluded from its ambit. It may be that the clause mentions coal only and then declares that that word shall include coke in all its forms. That shows that the object of the words which follow coal is to extend its meaning. In the writ petition it was stated in Para 2 that "coke is the refuse left after destructive distillation of coal, shale or oil and is called petroleum coke, Metallurgical coke or pitch coke, to indicate its source or origin; but all these are carbonaceous material used for the same purpose and having same properties, more or less, main being - Mixed Carbon, - Volatile Matters, - Ash and - Moisture."In the affidavit in opposition that was filed by the Assistant Commissioner of Taxes, Assam, this statement does not appear to have been properly denied. All that has been stated in Para 5 is that the word "coke" in Clause (i) of Section 14 implies coke obtained from coal only and does not include petroleum coke. The statement in the writ petition is very similar to the meaning of the word "coke" given in Websters New International Dictionary, Vol. 1 which is as follows :-"The infusible cellular, coherent residue obtained when coal is subjected to destructive distillation. It consists mainly of carbon, is hard porous and gray, and has a submetallic luster. Any similar substance left as a residue when petroleum, shole oil, etc. are distilled to dryness."Our attention has been invited by learned counsel for State to the discussion in Encyclopaedia Britannica, Vol. 5 on coke, coking and high temperature carbonization. We do not consider that when the Parliament used the word "coke" in a Section 14 (i) of the Central Act it had any intention to give it a meaning other than the ordinary dictionary meaning which would cover petroleum coke. At any rate, the language employed is so wide viz. "Coke in all its forms" that petroleum coke which is a form of coke cannot possibly be excluded merely by reference to the word "Coal". | 1 | 1,481 | 487 | ### 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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dismissed. 3. In the writ petition as also the return filed in reply thereto and before the High Court the provisions of certain other enactments were mentioned. These were the Assam Finance Sales Tax Act, 1956 as amended from time to time and the Assam Sales of Petroleum and Petroleum Products, including Motor Spirit and Lubricants Taxation Act, 1956 as amended. It is unnecessary to refer to their relevant provision because before us it is common ground that the tax would be payable under the Assam Act, the only question being about the rate. Under the Assam Act the rate chargeable was 5 paise per rupee. But it has been claimed on behalf of the appellant that by virtue of the provisions of the Central Sales Tax Act 1956, hereinafter called the "Central Act", the rate at which the tax would be payable is 2 paise per rupee."Section 14 declares, inter alia, that coal including coke in all its forms constitutes goods which are of special importance in inter-State trade or commerce. Section 15 (1) of the Central Act as it stood at the relevant time was in the following terms:- Section 15. "Every sales tax law of a State shall, in so far as it imposes or authorises the imposition of a tax on the sale or purchase of declared goods, be subject to the following restrictions and conditions, namely:- (a) the tax payable under that law in respect of any sale or purchase of such goods inside the State shall not exceed (two per cent.) of the sale or purchase price thereof, and such tax shall not be levied at more than one stage. (b) .........................." It may be mentioned that by Amending Act 13 of 1966 3% was substituted for 2% with effect from July 1, 1966. 4. It is not disputed that if petroleum coke is covered by Clause (i) of Section 14 which reads "coal including coke in all its forms" the State was not competent to levy tax at a rate exceeding the one given in Section 15 (a) of the Central Act. Before the High Court it was common ground that petroleum coke is used mainly in industries dealing with the manufacture of carbon products and it differs in material constituents, quality, utility and composition from the ordinary coke used as fuel. It is used largely in the manufacture of dry cells, carbon electrodes and electric furnace resistance elements. Reference has also been made in the Judgment to what is stated in Chemical Engineers Handbook, 3rd Edn, at page 1566:-"Coke is a hard, dense, infusible carbonization residue that ranges from a dull gray-back to a silvery gray the latter is characteristic of good quality, high temperature coke. A coke of this type makes a ringing sound when dropped or struck with a hard object. It exhibits a porous cellular structure, which primarily depends upon the kind of coal used and the rate of heating during the carbonization process." The High Court was of the view that the word coal includes coke in all its forms in Clause (i) of Section 14 of the Central Act and must be taken to mean coke derived from coal. In other words it must be coke which had been derived or acquired from coal by following the usual process of heating or burning. The contention, therefore, of the appellant was negatived that petroleum coke was covered by the aforesaid provision of the Central Act. 5. We are wholly unable to agree with the reasoning or the conclusion of the High Court with regard to the ambit and scope of Clause (i) of Section 14 of the Central Act. The language is clearly wide and coal has been stated to include coke in all its forms. It is not denied that petroleum coke is one of the forms of coke. Therefore on a plain reading of the aforesaid clause it is incomprehensible how petroleum coke can be excluded from its ambit. It may be that the clause mentions coal only and then declares that that word shall include coke in all its forms. That shows that the object of the words which follow coal is to extend its meaning. In the writ petition it was stated in Para 2 that "coke is the refuse left after destructive distillation of coal, shale or oil and is called petroleum coke, Metallurgical coke or pitch coke, to indicate its source or origin; but all these are carbonaceous material used for the same purpose and having same properties, more or less, main being - Mixed Carbon, - Volatile Matters, - Ash and - Moisture." In the affidavit in opposition that was filed by the Assistant Commissioner of Taxes, Assam, this statement does not appear to have been properly denied. All that has been stated in Para 5 is that the word "coke" in Clause (i) of Section 14 implies coke obtained from coal only and does not include petroleum coke. The statement in the writ petition is very similar to the meaning of the word "coke" given in Websters New International Dictionary, Vol. 1 which is as follows :-"The infusible cellular, coherent residue obtained when coal is subjected to destructive distillation. It consists mainly of carbon, is hard porous and gray, and has a submetallic luster. Any similar substance left as a residue when petroleum, shole oil, etc. are distilled to dryness."Our attention has been invited by learned counsel for State to the discussion in Encyclopaedia Britannica, Vol. 5 on coke, coking and high temperature carbonization. We do not consider that when the Parliament used the word "coke" in a Section 14 (i) of the Central Act it had any intention to give it a meaning other than the ordinary dictionary meaning which would cover petroleum coke. At any rate, the language employed is so wide viz. "Coke in all its forms" that petroleum coke which is a form of coke cannot possibly be excluded merely by reference to the word "Coal".
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are wholly unable to agree with the reasoning or the conclusion of the High Court with regard to the ambit and scope of Clause (i) of Section 14 of the Central Act. The language is clearly wide and coal has been stated to include coke in all its forms. It is not denied that petroleum coke is one of the forms of coke. Therefore on a plain reading of the aforesaid clause it is incomprehensible how petroleum coke can be excluded from its ambit. It may be that the clause mentions coal only and then declares that that word shall include coke in all its forms. That shows that the object of the words which follow coal is to extend its meaning. In the writ petition it was stated in Para 2 that "coke is the refuse left after destructive distillation of coal, shale or oil and is called petroleum coke, Metallurgical coke or pitch coke, to indicate its source or origin; but all these are carbonaceous material used for the same purpose and having same properties, more or less, main being - Mixed Carbon, - Volatile Matters, - Ash and - Moisture."In the affidavit in opposition that was filed by the Assistant Commissioner of Taxes, Assam, this statement does not appear to have been properly denied. All that has been stated in Para 5 is that the word "coke" in Clause (i) of Section 14 implies coke obtained from coal only and does not include petroleum coke. The statement in the writ petition is very similar to the meaning of the word "coke" given in Websters New International Dictionary, Vol. 1 which is as follows :-"The infusible cellular, coherent residue obtained when coal is subjected to destructive distillation. It consists mainly of carbon, is hard porous and gray, and has a submetallic luster. Any similar substance left as a residue when petroleum, shole oil, etc. are distilled to dryness."Our attention has been invited by learned counsel for State to the discussion in Encyclopaedia Britannica, Vol. 5 on coke, coking and high temperature carbonization. We do not consider that when the Parliament used the word "coke" in a Section 14 (i) of the Central Act it had any intention to give it a meaning other than the ordinary dictionary meaning which would cover petroleum coke. At any rate, the language employed is so wide viz. "Coke in all its forms" that petroleum coke which is a form of coke cannot possibly be excluded merely by reference to the word "Coal".
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State of Maharashtra and Another Vs. Chandrakant Anant Kulkarni and Others | by the former State Governments of Madhya Pradesh and Hyderabad for promotion to the post of STOs formed part of the conditions of service of ASTOs from Madhya Pradesh and Hyderabad 19. Mere chances of promotion are not conditions of service and the fact that there was reduction in the chances of promotion did not tantamount to a change in the conditions of service. A right to be considered for promotion is a term of service, but mere chances of promotion are not. Under the Departmental Examination Rules for STOs, 1954, framed by the former State Government of Madhya Pradesh. as amended on January 20, 1960, mere passing of the departmental ex amination conferred no right on the STIs of Bombay, to promotion. By passing the examination, they merely became eligible for promotion. They had to be brought on to a select list not merely on the length of service, but on the basis of meri t-cum-seniority principle. It was, therefore, nothing but a mere chance of promotion. In consequence of the impugned orders of reversion, all that happened is that some of the STIs who had wrongly been promoted as STOs Gr. III had to be reverted a nd thereby lost a few places. In contrast, the conditions of service of ASTOs from Madhya Pradesh and Hyderabad, at least so far as one stage of promotion above the one held by them before the reorganisation of States, could not be altered without the previous sanction of the Central Government as laid down in the Proviso to sub-s. (7) of s. 115 of the Act. 20. We are unable to agree with the High Court in its opinion that ASTOs from Madhya Pradesh and Hyderabad on th eir allocation to the new State of Bombay, who had wrongly been put at par with STIs from Bombay, had to pass the departmental examination prescribed by the former State Government of Bombay, for promotion to the post of STO Gr. III before the y could be actually so promoted. 21. It is an incontrovertible fact that the departmental examination prescribed by the former State Governments of Madhya Pradesh and Hyderabad had not been held after August 8, 1960 i.e. for the last 20 years. Mer ely because the C.P. and Berar Sales Tax Act, 1947 and the Hyderabad General Sales Tax Act, 1950 stood repealed with effect from January 1, 1960, that hardly furnished a ground for not holding the examination. The State Government, in their affidavit before the High Court, tried to justify their action that the subjects under the ex- Madhya Pradesh and Hyderabad Rules had become obsolete and, therefore, it was felt that no useful purpose would be served in holding these examinations. This was no justification at all, for even after the Bombay Sales Tax Act, 1959 had been extended throughout the State with effect from January 1, 1960, all pending assessments pertaining to the Vidarbha and Marathwada regions of th e former States of Madhya Pradesh and Hyderabad had to be completed in accordance with the repealed Acts. In this context, the High Court observed that it examined the subjects prescribed for the three departmental examinations of Bombay, Madhya Pradesh and Hyderabad and found that "there was not much difference". It went on to say that "it could hardly be suggested by any one that prescribing a subject more or less for an examination would adversely affect conditions of servi ce. The purpose of examination is to prepare the officer to be able to cope up with different kinds of problems that would confront him with reasonable efficiency." To say the least, the observations made by the High Court are un warranted. 22. Be that as it may, the fact remains that the condition regarding the passing of the departmental examination became incapable of compliance in the case of ASTOs from Madhya Pradesh and Hyderabad who had been promoted as STOs Gr. III. T hey were entitled to such promotion without passing such examination. Under the relevant rules which regulated their conditions of service, there was only a possibility of reversion in the eventuality of their not passing the examination within the stipulated time. Since no examinations admittedly have been held, there is no question of their reversion as ASTOs. If the decision of the High Court were to be upheld, it would imply that many of the ASTO from Madhya Pradesh and Hyderabad who had been promoted as STOs Gr III and during the past 20 years have reached the higher echelons of service, would now have to be put back as ASTOs, for no fault of their own. Many of them either have retired or are on the verge of retirement. 23. There was thus no alternative for the State Government but to suspend the operation of the amendment made on January 20, 1961 to r. 1(b) (ii) of the recruitment rules, by its order dated October 1, 1965, which made the passing o f the STO examination a condition A precedent for promotion of STIs to STO Gr. III. There can be no doubt that the State Governments Resolution dated June 13, 1964 and its Memorandum of November 21, 1964, clarifying that the ASTOs from Madhya Prades h and Hyderabad were entitled for promotion to the post of STO Gr. III without passing the departmental examination, placed STIs from Bombay at a disadvantage. To ensure fair and equitable treatment, the State Government rightly dispensed with the requirement of passing the departmental examination in the case of STIs from the former State of Bombay. 24. In the end, reverting back to the main question. On an overall view of things, we are satisfied that the State Government acted with t he best of intentions. It endeavoured to strike a balance between the competing claims to relative seniority. When sub-s. (5) of s. 115 of the Act speaks of "fair and equitable treatment", obviously it envisages a decision which is fair and equitable to all. 25. | 1[ds]Rules 2(d) of the Departmental Examination Rules of Sales Tax officers and Assistant Sa les Tax officers issued by the Finance Department of the former Hyderabad Govt. under their Notification number 1118/3 S. T. dated the 24th January, 1956 lays down that Inspecting officers, Sales Tax Officers (Class I and II) and Assistant Sales Tax Officers who are not confirmed in their respective posts, should pass the examination within the period specified in clause (c) of Rule 2 of the said Rules failing which they would be reverted to their substantive post. In accordance with this Rule Government have reverted some Sales Tax officers from the former Hyderabad State for not having passed the Departmental Examination within the prescribed time. The Government of Andhra Pradesh has brought to the notice of this Government the instructions contained in Ex-Hyderabad, Finance Department, Letter No. 7851/ Admn. dated the 31st October 1956 according to which officers and the staff of the Sales Tax Department of the former Hyderabad State, even though they have not passed the prescribed Departmental Examination ate to be con firmed, if they are otherwise found deserving of con firmation on the basis of their confidential records, efficiency and seniority. The said letter dated 31st October 1955 of the Hyderabad Finance Department, also laid down that such confirmed personnel should not be promoted to higher A posts until such times as they complete the prescribed Departmental ExaminationAs the Central Government was of the opinion that the Bombay Departmental Examination Rules should not be made applicable to the allocated ASTOs from Madhya Pradesh and Hyderabad to their disadvantage, all the ASTOs from Madhya Pradesh and Hyderabad who were compelled earlier to appear for the said examination and who had failed to pass it were reinstated as STOs. As a direct consequence of this, the Respondents l and 2 who had been promoted to officiate as STO, Gr. III were reverted as STls by orders dated April 28, 1965 and June 30, 1965. Since the amendment made to rule I (b) (ii) on January 20, 1961 operated to the disadvantage of STIs from Bombay, the State Government b y its orders dated October 1, 1965, suspended the said amendment to the Recruitment Rules until further orders. In view of these changes, the State Government reviewed the cases of all the ASTOs and STIs from the three regions, and those who were otherwise found suitable were according to their seniority promoted to the post of STO Gr. III even though they had not passed the STO examination. On January 6, 1966, the State Government published a revised gradation list of ASTOs and STIs and invited objections thereto. None of the respondents except Respondent 4 filed any objection. That representation, on being forwarded by the State Government, was duly considered by the Government of India, who rejected the samePrior to the reorganisation of the States, a Conference of the Chief Secretaries of the States that were to be affected by the reorganisation was held at Delhi on May 18 and 19, 1956 for the purpose of the formulation of the principles upon which integration of services was to be effected. The Government of India by their letter dated April 3, 1957 informed the State Government that the work of integration of services should be dealt with by them in the light of the general principles already settled at the Chief Secretaries Conference. This has been construed to be a valid delegation of powers to prepare the preliminary and final gradation lists under the direction and with the sanction of the Central Government. The Government of India by its Circular dated May 11, 1957 to all the State Governments stated inter alia that it agreed with the views expressed on behalf of the States representatives that it would not be appropriate to provide any protection in the matter of departmental promotionOn merits, if the duties of Assistant Sales Tax officers of those two States and those of Insp ectors are compared in the light of the minutes contained in Ex.2 (Memorandum of the Government of Maharashtra, Finance Department. dated November 21, 1964) the difference is not much. We enquired about the nature of work they are doing today and we are told on instructions by the States counsel that they are doing the work that the Sales Tax Inspectors are doingIn our opinion, the question does not really arise. There can be no dispute with the proposition that a rule framed under the Proviso to Ar t. 309 of the Constitution cannot be modified by an executive order. But the question is whether that principle is attracted to the facts and circumstances of the present case. The Resolution and the Memorandum referred to above, undou btedly do not have the status of a rule framed under the Proviso to Art. 309 of the Constitution. They merely conveyed the decision of the State Government that the allocated ASTOs from Madhya Pradesh and Hyderabad should be considered eligib le for promotion to the post of STO, Gr. IlI without passing the departmental examination for STO, Gr. III. The State Government had not by its Resolution dated June 13, 1964, or by its Memorandum dated Nov. 21, 1964, brought about a change in the conditions of service by an executive order. All that was done was to rectify a mistake that had been committed in the past in subjecting the ASTOs from Madhya Pradesh and Hyderabad to the Departmental Examination Rules framed b y the former State Government of Bombay i.e. to a rule which did not form part of conditions of their service and, therefore, was not applicable to them. We find no infirmity in these two documents. The decisions reached by the Government on the representations made by ASTos from Madhya Pradesh and Hyderabad were strictly in conformity with the recruitment rules framed by the former State of Madhya Pradesh and Hyderabad under the Proviso to Art. 309 of the Constitution. It is quite obvious that STIs from Bombay were not entitled to the above concession, as the passing of the STOs examination had been made a condition precedent for their promotion as STO Gr.e was a marked distinction between the recru itment rules framed by the former State Governments of Bombay and Madhya Pradesh and Hyderabad for appointment as STOs. In the former State of Bombay, eligibility for the promotion of STIs to the post of STO Gr. III depended upon their passing the departmental examination for the non-gazetted staff of the Sales Tax Department under r. 1(b) (ii) of the Recruitment Rules for the S.T.Os. Gr. III. Under r. 3, preference was to be given to an Inspector who had passed the departmental examination prescribed for STOs over those who had not. By the amendment of January 20, 1961 made by the State Government, the words "and also the departmental examination for STOs were added after the words "time for promotion". The effect of t his amendment was to make the passing of the STO examination a condition precedent for promotion of STIs as STO Gr. III. Further, the amendment deleted r. 3 which laid down a rule of preference. In the former States of Madhya Pradesh and Hyde rabad, neither such condition nor any rule of preference was there. Under r. 1 of the Rules for Departmental Examination framed by the former State Government of Madhya Pradesh, ASTOs who were promoted as STOs were required to pass the depar tmental examination within two years from the date of such promotion. Rule 4 provided that they would not be confirmed till they pass the said examination and on their failure to do so, they would be reverted to the substantive post of ASTO s. Similarly, under r. 2(c) of the Rules framed by the former Hyderabad State, ASTOs who were prompted as STOs were required to pass the departmental examination within three years from the date of commencement of the rules failing which their gra de increment was to be withheld till they pass such examination. Rule 2 (d) provided that STOs Cl. 1 and II who had not been confirmed in their respective posts, were required to pass the said examination within the said period failing which they were to be reverted to their substantive posts. According to the general Circular issued by the State Government of the reorganised State of Bombay dated April 29, 1960, pending unification of the recruitment rules framed by the State Government of Bombay, Madhya Pradesh and Hyderabad, the recruitment to the various posts and services was to be regulated A according to the rules framed by the State Governments and not according to the Bombay Civil Service (Classification and Recruitment) Rules. It is not disputed that the Departmental Examination Rules framed by the former State Governments of Madhya Pradesh and Hyderabad for promotion to the post of STOs formed part of the conditions of service of ASTOs from Madhya Pradesh ande chances of promotion are not conditions of service and the fact that there was reduction in the chances of promotion did not tantamount to a change in the conditions of service. A right to be considered for promotion is a term of service, but mere chances of promotion are not. Under the Departmental Examination Rules for STOs, 1954, framed by the former State Government of Madhya Pradesh. as amended on January 20, 1960, mere passing of the departmental ex amination conferred no right on the STIs of Bombay, to promotion. By passing the examination, they merely became eligible for promotion. They had to be brought on to a select list not merely on the length of service, but on the basis of meri t-cum-seniority principle. It was, therefore, nothing but a mere chance of promotion. In consequence of the impugned orders of reversion, all that happened is that some of the STIs who had wrongly been promoted as STOs Gr. III had to be reverted a nd thereby lost a few places. In contrast, the conditions of service of ASTOs from Madhya Pradesh and Hyderabad, at least so far as one stage of promotion above the one held by them before the reorganisation of States, could not be altered without the previous sanction of the Central Government as laid down in the Proviso to sub-s. (7) of s. 115 of the ActWe are unable to agree with the High Court in its opinion that ASTOs from Madhya Pradesh and Hyderabad on th eir allocation to the new State of Bombay, who had wrongly been put at par with STIs from Bombay, had to pass the departmental examination prescribed by the former State Government of Bombay, for promotion to the post of STO Gr. III before the y could be actually so promotedThere was thus no alternative for the State Government but to suspend the operation of the amendment made on January 20, 1961 to r. 1(b) (ii) of the recruitment rules, by its order dated October 1, 1965, which made the passing o f the STO examination a condition A precedent for promotion of STIs to STO Gr. III. There can be no doubt that the State Governments Resolution dated June 13, 1964 and its Memorandum of November 21, 1964, clarifying that the ASTOs from Madhya Prades h and Hyderabad were entitled for promotion to the post of STO Gr. III without passing the departmental examination, placed STIs from Bombay at a disadvantage. To ensure fair and equitable treatment, the State Government rightly dispensed with the requirement of passing the departmental examination in the case of STIs from the former State ofn the end, reverting back to the main question. On an overall view of things, we are satisfied that the State Government acted with t he best of intentions. It endeavoured to strike a balance between the competing claims to relative seniority. When sub-s. (5) of s. 115 of the Act speaks of "fair and equitable treatment", obviously it envisages a decision which is fair and equitable to all. | 1 | 6,854 | 2,202 | ### Instruction:
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by the former State Governments of Madhya Pradesh and Hyderabad for promotion to the post of STOs formed part of the conditions of service of ASTOs from Madhya Pradesh and Hyderabad 19. Mere chances of promotion are not conditions of service and the fact that there was reduction in the chances of promotion did not tantamount to a change in the conditions of service. A right to be considered for promotion is a term of service, but mere chances of promotion are not. Under the Departmental Examination Rules for STOs, 1954, framed by the former State Government of Madhya Pradesh. as amended on January 20, 1960, mere passing of the departmental ex amination conferred no right on the STIs of Bombay, to promotion. By passing the examination, they merely became eligible for promotion. They had to be brought on to a select list not merely on the length of service, but on the basis of meri t-cum-seniority principle. It was, therefore, nothing but a mere chance of promotion. In consequence of the impugned orders of reversion, all that happened is that some of the STIs who had wrongly been promoted as STOs Gr. III had to be reverted a nd thereby lost a few places. In contrast, the conditions of service of ASTOs from Madhya Pradesh and Hyderabad, at least so far as one stage of promotion above the one held by them before the reorganisation of States, could not be altered without the previous sanction of the Central Government as laid down in the Proviso to sub-s. (7) of s. 115 of the Act. 20. We are unable to agree with the High Court in its opinion that ASTOs from Madhya Pradesh and Hyderabad on th eir allocation to the new State of Bombay, who had wrongly been put at par with STIs from Bombay, had to pass the departmental examination prescribed by the former State Government of Bombay, for promotion to the post of STO Gr. III before the y could be actually so promoted. 21. It is an incontrovertible fact that the departmental examination prescribed by the former State Governments of Madhya Pradesh and Hyderabad had not been held after August 8, 1960 i.e. for the last 20 years. Mer ely because the C.P. and Berar Sales Tax Act, 1947 and the Hyderabad General Sales Tax Act, 1950 stood repealed with effect from January 1, 1960, that hardly furnished a ground for not holding the examination. The State Government, in their affidavit before the High Court, tried to justify their action that the subjects under the ex- Madhya Pradesh and Hyderabad Rules had become obsolete and, therefore, it was felt that no useful purpose would be served in holding these examinations. This was no justification at all, for even after the Bombay Sales Tax Act, 1959 had been extended throughout the State with effect from January 1, 1960, all pending assessments pertaining to the Vidarbha and Marathwada regions of th e former States of Madhya Pradesh and Hyderabad had to be completed in accordance with the repealed Acts. In this context, the High Court observed that it examined the subjects prescribed for the three departmental examinations of Bombay, Madhya Pradesh and Hyderabad and found that "there was not much difference". It went on to say that "it could hardly be suggested by any one that prescribing a subject more or less for an examination would adversely affect conditions of servi ce. The purpose of examination is to prepare the officer to be able to cope up with different kinds of problems that would confront him with reasonable efficiency." To say the least, the observations made by the High Court are un warranted. 22. Be that as it may, the fact remains that the condition regarding the passing of the departmental examination became incapable of compliance in the case of ASTOs from Madhya Pradesh and Hyderabad who had been promoted as STOs Gr. III. T hey were entitled to such promotion without passing such examination. Under the relevant rules which regulated their conditions of service, there was only a possibility of reversion in the eventuality of their not passing the examination within the stipulated time. Since no examinations admittedly have been held, there is no question of their reversion as ASTOs. If the decision of the High Court were to be upheld, it would imply that many of the ASTO from Madhya Pradesh and Hyderabad who had been promoted as STOs Gr III and during the past 20 years have reached the higher echelons of service, would now have to be put back as ASTOs, for no fault of their own. Many of them either have retired or are on the verge of retirement. 23. There was thus no alternative for the State Government but to suspend the operation of the amendment made on January 20, 1961 to r. 1(b) (ii) of the recruitment rules, by its order dated October 1, 1965, which made the passing o f the STO examination a condition A precedent for promotion of STIs to STO Gr. III. There can be no doubt that the State Governments Resolution dated June 13, 1964 and its Memorandum of November 21, 1964, clarifying that the ASTOs from Madhya Prades h and Hyderabad were entitled for promotion to the post of STO Gr. III without passing the departmental examination, placed STIs from Bombay at a disadvantage. To ensure fair and equitable treatment, the State Government rightly dispensed with the requirement of passing the departmental examination in the case of STIs from the former State of Bombay. 24. In the end, reverting back to the main question. On an overall view of things, we are satisfied that the State Government acted with t he best of intentions. It endeavoured to strike a balance between the competing claims to relative seniority. When sub-s. (5) of s. 115 of the Act speaks of "fair and equitable treatment", obviously it envisages a decision which is fair and equitable to all. 25.
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not entitled to the above concession, as the passing of the STOs examination had been made a condition precedent for their promotion as STO Gr.e was a marked distinction between the recru itment rules framed by the former State Governments of Bombay and Madhya Pradesh and Hyderabad for appointment as STOs. In the former State of Bombay, eligibility for the promotion of STIs to the post of STO Gr. III depended upon their passing the departmental examination for the non-gazetted staff of the Sales Tax Department under r. 1(b) (ii) of the Recruitment Rules for the S.T.Os. Gr. III. Under r. 3, preference was to be given to an Inspector who had passed the departmental examination prescribed for STOs over those who had not. By the amendment of January 20, 1961 made by the State Government, the words "and also the departmental examination for STOs were added after the words "time for promotion". The effect of t his amendment was to make the passing of the STO examination a condition precedent for promotion of STIs as STO Gr. III. Further, the amendment deleted r. 3 which laid down a rule of preference. In the former States of Madhya Pradesh and Hyde rabad, neither such condition nor any rule of preference was there. Under r. 1 of the Rules for Departmental Examination framed by the former State Government of Madhya Pradesh, ASTOs who were promoted as STOs were required to pass the depar tmental examination within two years from the date of such promotion. Rule 4 provided that they would not be confirmed till they pass the said examination and on their failure to do so, they would be reverted to the substantive post of ASTO s. Similarly, under r. 2(c) of the Rules framed by the former Hyderabad State, ASTOs who were prompted as STOs were required to pass the departmental examination within three years from the date of commencement of the rules failing which their gra de increment was to be withheld till they pass such examination. Rule 2 (d) provided that STOs Cl. 1 and II who had not been confirmed in their respective posts, were required to pass the said examination within the said period failing which they were to be reverted to their substantive posts. According to the general Circular issued by the State Government of the reorganised State of Bombay dated April 29, 1960, pending unification of the recruitment rules framed by the State Government of Bombay, Madhya Pradesh and Hyderabad, the recruitment to the various posts and services was to be regulated A according to the rules framed by the State Governments and not according to the Bombay Civil Service (Classification and Recruitment) Rules. It is not disputed that the Departmental Examination Rules framed by the former State Governments of Madhya Pradesh and Hyderabad for promotion to the post of STOs formed part of the conditions of service of ASTOs from Madhya Pradesh ande chances of promotion are not conditions of service and the fact that there was reduction in the chances of promotion did not tantamount to a change in the conditions of service. A right to be considered for promotion is a term of service, but mere chances of promotion are not. Under the Departmental Examination Rules for STOs, 1954, framed by the former State Government of Madhya Pradesh. as amended on January 20, 1960, mere passing of the departmental ex amination conferred no right on the STIs of Bombay, to promotion. By passing the examination, they merely became eligible for promotion. They had to be brought on to a select list not merely on the length of service, but on the basis of meri t-cum-seniority principle. It was, therefore, nothing but a mere chance of promotion. In consequence of the impugned orders of reversion, all that happened is that some of the STIs who had wrongly been promoted as STOs Gr. III had to be reverted a nd thereby lost a few places. In contrast, the conditions of service of ASTOs from Madhya Pradesh and Hyderabad, at least so far as one stage of promotion above the one held by them before the reorganisation of States, could not be altered without the previous sanction of the Central Government as laid down in the Proviso to sub-s. (7) of s. 115 of the ActWe are unable to agree with the High Court in its opinion that ASTOs from Madhya Pradesh and Hyderabad on th eir allocation to the new State of Bombay, who had wrongly been put at par with STIs from Bombay, had to pass the departmental examination prescribed by the former State Government of Bombay, for promotion to the post of STO Gr. III before the y could be actually so promotedThere was thus no alternative for the State Government but to suspend the operation of the amendment made on January 20, 1961 to r. 1(b) (ii) of the recruitment rules, by its order dated October 1, 1965, which made the passing o f the STO examination a condition A precedent for promotion of STIs to STO Gr. III. There can be no doubt that the State Governments Resolution dated June 13, 1964 and its Memorandum of November 21, 1964, clarifying that the ASTOs from Madhya Prades h and Hyderabad were entitled for promotion to the post of STO Gr. III without passing the departmental examination, placed STIs from Bombay at a disadvantage. To ensure fair and equitable treatment, the State Government rightly dispensed with the requirement of passing the departmental examination in the case of STIs from the former State ofn the end, reverting back to the main question. On an overall view of things, we are satisfied that the State Government acted with t he best of intentions. It endeavoured to strike a balance between the competing claims to relative seniority. When sub-s. (5) of s. 115 of the Act speaks of "fair and equitable treatment", obviously it envisages a decision which is fair and equitable to all.
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Savita Chemicals Pvt. Ltd Vs. Dyes & Chemical Workers Union | may be, in connection with these matters which were not expressly so covered and referred to in the settlement and thus matters which were expressly not so covered could be made the subject matter of grievance by the parties concerned during the currency of such settlement and if a strike is resorted to by the union of workmen on that ground, it could not be said that the said strike would be hit by the provisions of Section 24(1)(i) of the Act. As a result of the aforesaid conclusion, it must be held that the impugned strike notice was not violative of Section 24(1)(i) of the Act so far as the grievance regarding computation of privilege leave was concerned. The Labour Court had patently erred in mis-reading the relevant provisions of the Act and the express terms of the settlement while reaching the conclusion that the impugned notice refers to the grievance regarding non-implementation of the settlement terms in connection with privilege leave and had, therefore, violated the aforesaid provisions of the Act. This patent error was rightly set aside by the High Court in exercise of its jurisdiction under Article 227. 17. It was further contended by learned senior counsel for the appellant that, in any case, the impugned strike notice was also violative of the aforesaid provisions, in connection with the settlement regarding demand No. 26 providing for medical check-up. It, therefore, becomes necessary to look at the terms of the settlement on the said demand. It reads as under : "Demand No. 26 : Medical Check Up : The Company shall get at its expense all the confirmed workmen medically examined i.e. X-ray, blood and Urine examination and medical check up at the beginning of the year and the reports obtained. If during this check up any workman is found suffering from any ailments arising out of the chemicals of gas emanating from the process in the factory the management will bear the medical expenses for his immediate and initial treatment." So far as this contention is concerned, Shri Bhandare, learned senior counsel for the appellant is on a still weaker footing. The settlement regarding medical check up deals with the rights of the workmen to get medical re-imbursement and the procedure for the medical examination of the workmen suffering from any ailment or disease. This right would arise under the settlement in connection with those workmen who have already got afflicted by occupational ailments. This has nothing to do with the grievance found in the impugned strike notice regarding the health hazards suffered by the workmen and preventive measures required to be taken by the company in this connection. This grievance found in the notice is based on the dictum "prevention is better than cure". The settlement regarding demand No. 26 pertaining to medical check up deals with the procedure to be followed and the rights available to the workman after he has suffered from occupational diseases. The strike notice referred to an independent grievance in connection with the situation wherein a disease on proper preventive measures could be avoided. It also referred to various health hazards due to the working conditions of the workmen. These grievances are entirely foreign to the terms of the settlement regarding medical check up. We fail to appreciate as to how the Labour Court could persuade itself to hold that the terms of settlement regarding demand No. 26 were also sought to be contravened by the impugned demands in the notice. The said finding of the Labour Court, to say least, was totally contrary to the express terms of the settlement of demand No. 26. Such a patently erroneous finding had to be set aside by the High Court in writ proceedings and no fault can be found with the High Court in undertaking such an exercise. The valiant attempt of Shri Bhandare, learned senior counsel for the appellant, for getting the impugned strike declared as illegal on this ground is found to be wholly without any substance. It must, therefore, be held that the impugned strike notice was not violative of provisions of Section 24(1)(i) of the Act and had nothing to do with settlement on demand Nos. 14 and 26. The third point for determination is to be answered in negative against the appellant and in favour of Respondent No. 1. Point No. 4 : 18. So far as this point is concerned, placing reliance on various decisions of this court namely, Harish Vishnu Kamath v. Syed Ahmad Ishaque and others, 1955(1) SCR 1104, Nagendra Nath Bora and another v. The Commissioner of Hills Division & Appeals Assam and others, 1958 SCR 1240 and Sadhu Ram v. Delhi Transport Corporation, AIR 1984 SC 1467 , learned senior counsel for the appellant submitted that unless there was a patent error committed by the Labour Court, the High Court under Article 227 could not have interfered with the findings of the Labour Court as if it was hearing an appeal. There cannot be any dispute on the said settled legal position. Under Article 227 of the Constitution of India, the High Court could not have set aside any finding reached by the lower authorities where two views were possible and unless those findings were found to be patently bad and suffering from clear errors of law. As we have already discussed earlier while considering point Nos. 1 and 3, the finding reached by the Labour Court on the relevant terms were patently erroneous and de hors the factual and legal position on record. The said patently illegal findings, could not have been countenanced under Article 227 of the Constitution of India by the High Court and the High Court would have failed to exercise its jurisdiction if it had not set aside such patently illegal findings of the Labour Court. Consequently, on this point the appellant has no case. Point No. 4 is, therefore, answered in negative against the appellant and in favour of the respondent. Point No. 5 : | 0[ds]When we examine the impugned strike notice, we find that all these four basic requirements ofhave been complied with in the present case. The name and address of the Trade Union which served the notice are clearly mentioned, the date of the notice is also indicated, the name of the addressee of the notice and his address are also mentioned, namely, it has been addressed to the Factory Manager of the company who wasof the company at the relevant time and under whom the workmen proposing to go on strike were actually working. It is also clearly mentioned as to from which date the strike is proposed to be resorted to, as it is mentioned that the strike would be resorted to on the expiry of 14 days from the date of the receipt of the letter cum notice. It is also clearly mentioned that the letter will be treated as notice for going on proposed strike. Then follows the heart of the notice, namely, reasons why the proposed strike has to be resorted. Thus, all the basic requirements ofhave been satisfied. Even the Labour Court took the view that the substance of the notice had to be seen and not its form. Still, however, it persuaded itself to hold that the notice was not in the prescribed form. The said finding of the Labour Court was patently illegal and was rightly reversed by the High Court in the impugned judgment. | 0 | 11,334 | 265 | ### Instruction:
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may be, in connection with these matters which were not expressly so covered and referred to in the settlement and thus matters which were expressly not so covered could be made the subject matter of grievance by the parties concerned during the currency of such settlement and if a strike is resorted to by the union of workmen on that ground, it could not be said that the said strike would be hit by the provisions of Section 24(1)(i) of the Act. As a result of the aforesaid conclusion, it must be held that the impugned strike notice was not violative of Section 24(1)(i) of the Act so far as the grievance regarding computation of privilege leave was concerned. The Labour Court had patently erred in mis-reading the relevant provisions of the Act and the express terms of the settlement while reaching the conclusion that the impugned notice refers to the grievance regarding non-implementation of the settlement terms in connection with privilege leave and had, therefore, violated the aforesaid provisions of the Act. This patent error was rightly set aside by the High Court in exercise of its jurisdiction under Article 227. 17. It was further contended by learned senior counsel for the appellant that, in any case, the impugned strike notice was also violative of the aforesaid provisions, in connection with the settlement regarding demand No. 26 providing for medical check-up. It, therefore, becomes necessary to look at the terms of the settlement on the said demand. It reads as under : "Demand No. 26 : Medical Check Up : The Company shall get at its expense all the confirmed workmen medically examined i.e. X-ray, blood and Urine examination and medical check up at the beginning of the year and the reports obtained. If during this check up any workman is found suffering from any ailments arising out of the chemicals of gas emanating from the process in the factory the management will bear the medical expenses for his immediate and initial treatment." So far as this contention is concerned, Shri Bhandare, learned senior counsel for the appellant is on a still weaker footing. The settlement regarding medical check up deals with the rights of the workmen to get medical re-imbursement and the procedure for the medical examination of the workmen suffering from any ailment or disease. This right would arise under the settlement in connection with those workmen who have already got afflicted by occupational ailments. This has nothing to do with the grievance found in the impugned strike notice regarding the health hazards suffered by the workmen and preventive measures required to be taken by the company in this connection. This grievance found in the notice is based on the dictum "prevention is better than cure". The settlement regarding demand No. 26 pertaining to medical check up deals with the procedure to be followed and the rights available to the workman after he has suffered from occupational diseases. The strike notice referred to an independent grievance in connection with the situation wherein a disease on proper preventive measures could be avoided. It also referred to various health hazards due to the working conditions of the workmen. These grievances are entirely foreign to the terms of the settlement regarding medical check up. We fail to appreciate as to how the Labour Court could persuade itself to hold that the terms of settlement regarding demand No. 26 were also sought to be contravened by the impugned demands in the notice. The said finding of the Labour Court, to say least, was totally contrary to the express terms of the settlement of demand No. 26. Such a patently erroneous finding had to be set aside by the High Court in writ proceedings and no fault can be found with the High Court in undertaking such an exercise. The valiant attempt of Shri Bhandare, learned senior counsel for the appellant, for getting the impugned strike declared as illegal on this ground is found to be wholly without any substance. It must, therefore, be held that the impugned strike notice was not violative of provisions of Section 24(1)(i) of the Act and had nothing to do with settlement on demand Nos. 14 and 26. The third point for determination is to be answered in negative against the appellant and in favour of Respondent No. 1. Point No. 4 : 18. So far as this point is concerned, placing reliance on various decisions of this court namely, Harish Vishnu Kamath v. Syed Ahmad Ishaque and others, 1955(1) SCR 1104, Nagendra Nath Bora and another v. The Commissioner of Hills Division & Appeals Assam and others, 1958 SCR 1240 and Sadhu Ram v. Delhi Transport Corporation, AIR 1984 SC 1467 , learned senior counsel for the appellant submitted that unless there was a patent error committed by the Labour Court, the High Court under Article 227 could not have interfered with the findings of the Labour Court as if it was hearing an appeal. There cannot be any dispute on the said settled legal position. Under Article 227 of the Constitution of India, the High Court could not have set aside any finding reached by the lower authorities where two views were possible and unless those findings were found to be patently bad and suffering from clear errors of law. As we have already discussed earlier while considering point Nos. 1 and 3, the finding reached by the Labour Court on the relevant terms were patently erroneous and de hors the factual and legal position on record. The said patently illegal findings, could not have been countenanced under Article 227 of the Constitution of India by the High Court and the High Court would have failed to exercise its jurisdiction if it had not set aside such patently illegal findings of the Labour Court. Consequently, on this point the appellant has no case. Point No. 4 is, therefore, answered in negative against the appellant and in favour of the respondent. Point No. 5 :
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When we examine the impugned strike notice, we find that all these four basic requirements ofhave been complied with in the present case. The name and address of the Trade Union which served the notice are clearly mentioned, the date of the notice is also indicated, the name of the addressee of the notice and his address are also mentioned, namely, it has been addressed to the Factory Manager of the company who wasof the company at the relevant time and under whom the workmen proposing to go on strike were actually working. It is also clearly mentioned as to from which date the strike is proposed to be resorted to, as it is mentioned that the strike would be resorted to on the expiry of 14 days from the date of the receipt of the letter cum notice. It is also clearly mentioned that the letter will be treated as notice for going on proposed strike. Then follows the heart of the notice, namely, reasons why the proposed strike has to be resorted. Thus, all the basic requirements ofhave been satisfied. Even the Labour Court took the view that the substance of the notice had to be seen and not its form. Still, however, it persuaded itself to hold that the notice was not in the prescribed form. The said finding of the Labour Court was patently illegal and was rightly reversed by the High Court in the impugned judgment.
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Ravindra Nath Vs. Raghbir Singh & Anr | 117 with consequential adaptations for the purposes of the proviso to S. 97 (1), it will appear that the treasury receipt showing the deposit of the security must be produced before the Tribunal along with the notice of recrimination.It follows that the recriminator must give the security referred to in Section 117 by producing the treasury receipt showing the deposit of the security at the time of the giving of the notice under the proviso to Section 97 (1).8.If the recriminator fails to give the requisite security under Section 117 at the time of giving the notice of recrimination, he loses the right to lead evidence under Section 97 sad the notice of recrimination stands virtually rejected.It was suggested that as under Section 90 (3) the Tribunal could not dismiss an election petition for non-compliance with the provisions of Section 117, the legislature could not have intended that the notice of recrimination would stand rejected for failure to give the security under Section 117. This argument overlooks the fact that under Section 85 it is the duty of the Election Commission to dismiss the election petition for non-compliance with the provisions of Section 117.9. Likewise reading Section 118 with the proviso to Section 97 (1) it will appear that during the course of the trial of the recrimination the Tribunal may at any time call upon the recriminator to give such further security for costs as it may direct and may, if he fails to do so, reject the notice of recrimination given under the proviso to Section 97 (1). It was suggested that the proviso to Section 97 (1) having enacted that the forfeiture of the right to lead evidence would be the penalty for failure to give the further security under Sec. 118, the legislature could not have intended that the rejection of the notice of recrimination would be an additional penalty for this default. This suggestion is based on fallacious assumptions.The only right conferred on the recriminator satisfying the conditions of the proviso to S. 97 (1) is the right to lead evidence that the election of the other candidate would have been void if he had been the returned candidate. If the recriminator fails to fulfil the conditions of the proviso he loses this right, and the Tribunal is entitled to record an order to this effect. An order recording that the recriminator has no right to give evidence under Section 97 is tantamount to an order rejecting the notice of recrimination. There is thus no substantial difference between the penalty prescribed by the proviso to Section 97 (l) and the penalty prescribed by Section 118 for the default in giving the further security.10. The High Court held that the recriminator loses his right to lead evidence under Section 97 for failure to give security only in cases in which the provisions of Sections 117 and 118 are not complied with before the date fixed for recording evidence. In N. R. Shishak v. R. P. Dikshit, 1965 All LJ 25 at pp. 41-42 = (AIR l965 All 454 at p. 463), a Full Bench of the Allahabad High Court also held that since no period is fixed within which the security is to be given, the security may be given at any time before the recriminator gives evidence. We are unable to agree with this decision on this point or with the judgment under appeal. We have already seen that the time for giving the initial security for the recrimination is fixed on a combined reading of the proviso to Section 97 (1) and Section 117 and the initial security must be given at the time of giving the notice of recrimination.Other considerations also show that the date fixed for recording the evidence cannot be the date within which the security referred to in Sections 117 and 118 is to be given under the proviso to Section 97 (1). The recrimination starts on the giving of the notice under the proviso. Though the taking of the recriminatory evidence may be postponed preliminary directions for discovery inspection and other matters are given long before the evidence is taken. It is, therefore desirable that the initial security referred to in Section 117 should be given along with the notice of recrimination at the very commencement of the recrimination proceeding. Moreover the date fixed for recording the evidence cannot be the time limit for giving further security under Section 118. The Tribunal may demand the further security under Section 118 at any time in course of the trial of the recrimination even after the evidence has been partly taken.11. The High Court thought that the decision in Kumaranand v Brij Mohan, (1965) 1 SCR 116 = (AIR 1965 SC 628 ) lends support to its conclusion that the Tribunal could not refuse to admit the evidence under Section 97 if the security under Section 117 is given before the date fixed for recording the evidence. That decision turned on the construction of Section 119-A and is not relevant on the questions under consideration in this appeal. As Section 119-A did not expressly provide the penalty for failure to furnish the security for costs of an appeal at the time of filing the memorandurn of appeal the failure to furnish the security did not automatically result in dismissal of the appeal, and it was for the High Court to decide having regard to the circumstances of each case whether it should decline to proceed with the hearing of the appeal. But the proviso to Section 97 (1) expressly provides that the recriminator shall not be entitled to give evidence unless inter alia he gives the security referred to in Section 117.12. The tribunal rightly held that the respondent No. l was required to produce with the notice under the proviso to Section 97(l) a Government treasury receipt showing a deposit of Rs. 2.000 as security for costs of the recrimination. The High Court was in error in quashing this order.13. | 1[ds]notice of recrimination is thus in substance a counter petition calling in question the claim that the other candidate has been duly elected. In this background, it is not surprising that the legislature provided that notice of recrimination must be accompanied by the statement and particulars required by Sec. 83 in the case of an election petition and signed and verified in like manner and the recriminator must give the security and the further security for costs required under Sections 117 and 118 in the case of an electionthe taking of the recriminatory evidence may be postponed preliminary directions for discovery inspection and other matters are given long before the evidence is taken. It is, therefore desirable that the initial security referred to in Section 117 should be given along with the notice of recrimination at the very commencement of the recrimination proceeding. Moreover the date fixed for recording the evidence cannot be the time limit for giving further security under Section 118. The Tribunal may demand the further security under Section 118 at any time in course of the trial of the recrimination even after the evidence has been partly taken.The High Court thought that the decision in Kumaranand v Brij Mohan, (1965) 1 SCR 116 = (AIR 1965 SC 628 ) lends support to its conclusion that the Tribunal could not refuse to admit the evidence under Section 97 if the security under Section 117 is given before the date fixed for recording the evidence. That decision turned on the construction of Section 119-A and is not relevant on the questions under consideration in this appeal. As Section 119-A did not expressly provide the penalty for failure to furnish the security for costs of an appeal at the time of filing the memorandurn of appeal the failure to furnish the security did not automatically result in dismissal of the appeal, and it was for the High Court to decide having regard to the circumstances of each case whether it should decline to proceed with the hearing of the appeal. But the proviso to Section 97 (1) expressly provides that the recriminator shall not be entitled to give evidence unless inter alia he gives the security referred to in Section 117.The tribunal rightly held that the respondent No. l was required to produce with the notice under the proviso to Section 97(l) a Government treasury receipt showing a deposit of Rs. 2.000 as security for costs of the recrimination. The High Court was in error in quashing this order. | 1 | 2,870 | 449 | ### Instruction:
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117 with consequential adaptations for the purposes of the proviso to S. 97 (1), it will appear that the treasury receipt showing the deposit of the security must be produced before the Tribunal along with the notice of recrimination.It follows that the recriminator must give the security referred to in Section 117 by producing the treasury receipt showing the deposit of the security at the time of the giving of the notice under the proviso to Section 97 (1).8.If the recriminator fails to give the requisite security under Section 117 at the time of giving the notice of recrimination, he loses the right to lead evidence under Section 97 sad the notice of recrimination stands virtually rejected.It was suggested that as under Section 90 (3) the Tribunal could not dismiss an election petition for non-compliance with the provisions of Section 117, the legislature could not have intended that the notice of recrimination would stand rejected for failure to give the security under Section 117. This argument overlooks the fact that under Section 85 it is the duty of the Election Commission to dismiss the election petition for non-compliance with the provisions of Section 117.9. Likewise reading Section 118 with the proviso to Section 97 (1) it will appear that during the course of the trial of the recrimination the Tribunal may at any time call upon the recriminator to give such further security for costs as it may direct and may, if he fails to do so, reject the notice of recrimination given under the proviso to Section 97 (1). It was suggested that the proviso to Section 97 (1) having enacted that the forfeiture of the right to lead evidence would be the penalty for failure to give the further security under Sec. 118, the legislature could not have intended that the rejection of the notice of recrimination would be an additional penalty for this default. This suggestion is based on fallacious assumptions.The only right conferred on the recriminator satisfying the conditions of the proviso to S. 97 (1) is the right to lead evidence that the election of the other candidate would have been void if he had been the returned candidate. If the recriminator fails to fulfil the conditions of the proviso he loses this right, and the Tribunal is entitled to record an order to this effect. An order recording that the recriminator has no right to give evidence under Section 97 is tantamount to an order rejecting the notice of recrimination. There is thus no substantial difference between the penalty prescribed by the proviso to Section 97 (l) and the penalty prescribed by Section 118 for the default in giving the further security.10. The High Court held that the recriminator loses his right to lead evidence under Section 97 for failure to give security only in cases in which the provisions of Sections 117 and 118 are not complied with before the date fixed for recording evidence. In N. R. Shishak v. R. P. Dikshit, 1965 All LJ 25 at pp. 41-42 = (AIR l965 All 454 at p. 463), a Full Bench of the Allahabad High Court also held that since no period is fixed within which the security is to be given, the security may be given at any time before the recriminator gives evidence. We are unable to agree with this decision on this point or with the judgment under appeal. We have already seen that the time for giving the initial security for the recrimination is fixed on a combined reading of the proviso to Section 97 (1) and Section 117 and the initial security must be given at the time of giving the notice of recrimination.Other considerations also show that the date fixed for recording the evidence cannot be the date within which the security referred to in Sections 117 and 118 is to be given under the proviso to Section 97 (1). The recrimination starts on the giving of the notice under the proviso. Though the taking of the recriminatory evidence may be postponed preliminary directions for discovery inspection and other matters are given long before the evidence is taken. It is, therefore desirable that the initial security referred to in Section 117 should be given along with the notice of recrimination at the very commencement of the recrimination proceeding. Moreover the date fixed for recording the evidence cannot be the time limit for giving further security under Section 118. The Tribunal may demand the further security under Section 118 at any time in course of the trial of the recrimination even after the evidence has been partly taken.11. The High Court thought that the decision in Kumaranand v Brij Mohan, (1965) 1 SCR 116 = (AIR 1965 SC 628 ) lends support to its conclusion that the Tribunal could not refuse to admit the evidence under Section 97 if the security under Section 117 is given before the date fixed for recording the evidence. That decision turned on the construction of Section 119-A and is not relevant on the questions under consideration in this appeal. As Section 119-A did not expressly provide the penalty for failure to furnish the security for costs of an appeal at the time of filing the memorandurn of appeal the failure to furnish the security did not automatically result in dismissal of the appeal, and it was for the High Court to decide having regard to the circumstances of each case whether it should decline to proceed with the hearing of the appeal. But the proviso to Section 97 (1) expressly provides that the recriminator shall not be entitled to give evidence unless inter alia he gives the security referred to in Section 117.12. The tribunal rightly held that the respondent No. l was required to produce with the notice under the proviso to Section 97(l) a Government treasury receipt showing a deposit of Rs. 2.000 as security for costs of the recrimination. The High Court was in error in quashing this order.13.
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notice of recrimination is thus in substance a counter petition calling in question the claim that the other candidate has been duly elected. In this background, it is not surprising that the legislature provided that notice of recrimination must be accompanied by the statement and particulars required by Sec. 83 in the case of an election petition and signed and verified in like manner and the recriminator must give the security and the further security for costs required under Sections 117 and 118 in the case of an electionthe taking of the recriminatory evidence may be postponed preliminary directions for discovery inspection and other matters are given long before the evidence is taken. It is, therefore desirable that the initial security referred to in Section 117 should be given along with the notice of recrimination at the very commencement of the recrimination proceeding. Moreover the date fixed for recording the evidence cannot be the time limit for giving further security under Section 118. The Tribunal may demand the further security under Section 118 at any time in course of the trial of the recrimination even after the evidence has been partly taken.The High Court thought that the decision in Kumaranand v Brij Mohan, (1965) 1 SCR 116 = (AIR 1965 SC 628 ) lends support to its conclusion that the Tribunal could not refuse to admit the evidence under Section 97 if the security under Section 117 is given before the date fixed for recording the evidence. That decision turned on the construction of Section 119-A and is not relevant on the questions under consideration in this appeal. As Section 119-A did not expressly provide the penalty for failure to furnish the security for costs of an appeal at the time of filing the memorandurn of appeal the failure to furnish the security did not automatically result in dismissal of the appeal, and it was for the High Court to decide having regard to the circumstances of each case whether it should decline to proceed with the hearing of the appeal. But the proviso to Section 97 (1) expressly provides that the recriminator shall not be entitled to give evidence unless inter alia he gives the security referred to in Section 117.The tribunal rightly held that the respondent No. l was required to produce with the notice under the proviso to Section 97(l) a Government treasury receipt showing a deposit of Rs. 2.000 as security for costs of the recrimination. The High Court was in error in quashing this order.
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Kistamma Vs. Dr. H. T. Vira Reddy | from the record the form of the question and answer given by the witness. Failure on the part of the presiding Judge and the lawyer for Dr. Reddy to obtain a clarification is of some importance. We have carefully read the record of the evidence and we are of the view that the evidence of this witness is vague and unsatisfactory, and apart from the statement made by him in cross-examination the testimony itself is such that no reliance can be placed upon it. 8. P.Ws. 3, 4 and 5 are the only independent witnesses whose testimony was accepted by the High Court as corroborating the case of Dr. Reddy. In our view their testimony cannot be used to support the case of Dr. Reddy. 9. Dr. Reddy deposed that on November 17, 1957, Kistamma left the matrimonial home and never returned thereafter. But Dr. Reddy is highly interested in the result of the litigation. It would be difficult to rely upon his bare testimony unsupported by strong corroborative evidence. 10. There are certain circumstances which clearly support the contention of Kistamma that Dr. Reddy’s case is not true. In the "notice" served on May 28, 1959, through a lawyer there was no reference to the claim that the child born of Kistamma in December, 1958, was illegitimate. It was stated in the "notice" that Kistamma was "guilty of acts of antagonism and violence deliberately intended to cause annoyance and misery so as to render Dr. Reddy’s life one of abject misery". It was further stated in the "notice" that while Dr. Reddy was considering the question of getting a judicial separation from kistamma on grounds of cruelty, Kistamma "suddenly walked out of his house in November, 1957, after creating a regrettable scene before some very respectable members of the public, other patients and members of his staff, with bag and baggage" swearing never to see him alive or return to him and "had not both red to have any manner of contact with him till that date". It is difficult to believe that if it was the case of Dr. Reddy at that stage that the child born of Kistamma in December, 1958, was not his child, he would have, when he was seeking to give intimation of a proposed proceeding for divorce, failed to mention prominently the only ground available to him on which he could apply for dissolution of marriage under Section 13 of the Hindu Marriage Act. 11. Mr. Gokhale on behalf of Dr. Reddy submitted that there were certain other circumstances which supported the case of Dr. Reddy. Counsel relied upon the circumstances that there was no correspondence between the spouses after they separated; that no interest was taken by Dr. Reddy or other members of his family in the child born of Kistamma; that Dr. Reddy was informed of the birth of the child three days after the birth; that no information was given to the father of Dr. Reddy who was residing only at a distance of 18 miles from Bellary where the child was born that no invitations were sent for the namakaran ceremony and other ceremonies of the child; and that when Kistamma left the matrimonial home Dr. Reddy did not accompany her to the Railway Station nor did he make any arrangements for providing a conveyance to her for going to the Railway Station. It is however accepted that there was correspondence between the husband and wife, but the correspondence has not been produced. In any case the relations between the husband and wife, were even on the case of Dr. Reddy severely strained, and absence of correspondence cannot support the case that Kistamma must have left the matrimonial home on November 17, 1957, and not in August, 1958. It is true that there is a delay of about three days in giving telegraphic information to Dr. Reddy about the birth of the child. Having regard to the strained relations between the husband and wife no inference may be drawn from that circumstance. Some reliance was sought to be placed upon the form of the telegram, but unless it be shown that the telegram was drafted by the sender, reference to Kistamma in the telegram "as your wife" will not, in our judgment, justify any adverse inference. The conduct of Dr. Reddy in not taking any interest in the child and not accompanying his wife to the Railway Station is also attributable to the strained relations between the husband and wife. Again it may be noticed that it was the case of Dr. Reddy that Kistamma was accompanied by her brother and his wife. There is no clear evidence on the record that any formal namakaran ceremony or other ceremonies took place. We do not think that these circumstances by themselves are sufficient to establish the case of Dr. Reddy that Kistamma left the matrimonial home on November 17, 1957, as alleged. We are of the view that no case was made out for the High Court to interfere with the conclusion of the Trial Court as confirmed by Jagadisan, J. 12. Counsel contended that in any case Dr. Reddy was entitled to a decree for judicial separation under Section 10(1)(a) of the Hindu Marriage Act. But no case was made out in the Courts below that Kistamma had deserted Dr. Reddy for a continuous period of not less than two years immediately preceding the presentation of the petition. Dr. Reddy went to trial only on a case arising under Section 10(1)(f) of the Act. Again, if it be accepted that Kistamma left the matrimonial home in August, 1958, the petition was clearly filed within two years of the date of departure of Kistamma, and the petition was not maintainable under Section 10(1)(a) of the Act. We may observe that in so stating we are not, in any manner, accepting the suggestion made by counsel for Dr. Reddy that Kistamma had deserted her husband when she left the matrimonial home. | 1[ds]3. Normally in an appeal with special leave, this Court does not enter upon a reappraisal of the evidence. But, in our judgment, this is one of those exceptional cases in which departure from the normal practice is called for. The High Court was of the view that the Trial Court and Jagdisan, J., had misread the evidence and had on that account reached an erroneous conclusion. for Kistamma contends that the High Court had misread the evidence and has relied upon several matters of importance which were never deposed to by the witnessesThe witness deposed to matters which took place nearly three years before the date of his examination in Court, and it is difficult to believe that he could have remembered either the occasion or the conversation which he had with Kistamma. No reason was suggested as to why Kistamma should go in the company of her brother and her brother’s wife and proclaim that she was leaving her husband’s house. We agree with the Trial Court that the testimony of the witness is unreliableThe testimony of this witness, even if it be accepted, does not prove that Kistamma had left the matrimonial home in November 1957. There is no statement of the witnesses that she had any travelling kit with her or that she took any conveyance for going to the Railway Station. The words "went away" with her brother cannot justify an inference that she abandoned the matrimonial home as alleged by Dr. Reddy. The statement made inn about what Dr. Reddy had told him is hearsay. The High Court was of the view that the comment made by Jagadisan, J., "is hardly fair to this witness". They observed that if the evidence is "properly read and not misquoted or misread" it is clear that the witness stated inn that in November 1957, Dr. Reddy had told him that Kistamma quarrelled with him, (Dr. Reddy), and had left his house. We have carefully gone through the evidence and we are unable to hold that the view taken by Jagadisan, J., was not correctThe statement is somewhat obscure and the obscurity must have been apparent to the Judge and the lawyer, but the lawyer for Dr. Reddy did not attempt to clarify this answer given in answer to a question put in, nor did the learned Judge attempt to do so. The judgment of the Trial Court was delivered by Mr. P. Lakshmanan, Additional Judge, who had heard the evidence of this witness, and he understood the statement of the witness to mean that Kistamma had left the matrimonial home in 1958. He also made no attempt to seek a clarification of the statement. Apparently, Jagadisan, J., also read the statement of the witness in the manner in which it was understood by the Trial Judge. The High Court tried to reconstruct the form of the question and the answer given by the witness and observed that it was "hardly fair to read from the admission made by the witness that Kistamma had left the house in 1958". The testimony of this witness has not been recorded in the form of questions and answers. It is impossible to reconstruct from the record the form of the question and answer given by the witness. Failure on the part of the presiding Judge and the lawyer for Dr. Reddy to obtain a clarification is of some importance. We have carefully read the record of the evidence and we are of the view that the evidence of this witness is vague and unsatisfactory, and apart from the statement made by him inn the testimony itself is such that no reliance can be placed upon it8. P.Ws. 3, 4 and 5 are the only independent witnesses whose testimony was accepted by the High Court as corroborating the case of Dr. Reddy. In our view their testimony cannot be used to support the case of Dr. Reddy9. Dr. Reddy deposed that on November 17, 1957, Kistamma left the matrimonial home and never returned thereafter. But Dr. Reddy is highly interested in the result of the litigation. It would be difficult to rely upon his bare testimony unsupported by strong corroborative evidence10. There are certain circumstances which clearly support the contention of Kistamma that Dr. Reddy’s case is not true. In the "notice" served on May 28, 1959, through a lawyer there was no reference to the claim that the child born of Kistamma in December, 1958, was illegitimate. It was stated in the "notice" that Kistamma was "guilty of acts of antagonism and violence deliberately intended to cause annoyance and misery so as to render Dr. Reddy’s life one of abject misery". It was further stated in the "notice" that while Dr. Reddy was considering the question of getting a judicial separation from kistamma on grounds of cruelty, Kistamma "suddenly walked out of his house in November, 1957, after creating a regrettable scene before some very respectable members of the public, other patients and members of his staff, with bag and baggage" swearing never to see him alive or return to him and "had not both red to have any manner of contact with him till that date". It is difficult to believe that if it was the case of Dr. Reddy at that stage that the child born of Kistamma in December, 1958, was not his child, he would have, when he was seeking to give intimation of a proposed proceeding for divorce, failed to mention prominently the only ground available to him on which he could apply for dissolution of marriage under Section 13 of the Hindu Marriage ActIt is however accepted that there was correspondence between the husband and wife, but the correspondence has not been. In any case the relations between the husband and wife, were even on the case of Dr. Reddy severely strained, and absence of correspondence cannot support the case that Kistamma must have left the matrimonial home on November 17, 1957, and not in August, 1958. It is true that there is a delay of about three days in giving telegraphic information to Dr. Reddy about the birth of the child. Having regard to the strained relations between the husband and wife no inference may be drawn from that circumstance. Some reliance was sought to be placed upon the form of the telegram, but unless it be shown that the telegram was drafted by the sender, reference to Kistamma in the telegram "as your wife" will not, in our judgment, justify any adverse inference. The conduct of Dr. Reddy in not taking any interest in the child and not accompanying his wife to the Railway Station is also attributable to the strained relations between the husband and wife. Again it may be noticed that it was the case of Dr. Reddy that Kistamma was accompanied by her brother and his wife. There is no clear evidence on the record that any formal namakaran ceremony or other ceremonies took place. We do not think that these circumstances by themselves are sufficient to establish the case of Dr. Reddy that Kistamma left the matrimonial home on November 17, 1957, as alleged. We are of the view that no case was made out for the High Court to interfere with the conclusion of the Trial Court as confirmed by Jagadisan, JBut no case was made out in the Courts below that Kistamma had deserted Dr. Reddy for a continuous period of not less than two years immediately preceding the presentation of the petition. Dr. Reddy went to trial only on a case arising under Section 10(1)(f) of the Act. Again, if it be accepted that Kistamma left the matrimonial home in August, 1958, the petition was clearly filed within two years of the date of departure of Kistamma, and the petition was not maintainable under Section 10(1)(a) of the Act. We may observe that in so stating we are not, in any manner, accepting the suggestion made by counsel for Dr. Reddy that Kistamma had deserted her husband when she left the matrimonial home. | 1 | 2,939 | 1,494 | ### Instruction:
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from the record the form of the question and answer given by the witness. Failure on the part of the presiding Judge and the lawyer for Dr. Reddy to obtain a clarification is of some importance. We have carefully read the record of the evidence and we are of the view that the evidence of this witness is vague and unsatisfactory, and apart from the statement made by him in cross-examination the testimony itself is such that no reliance can be placed upon it. 8. P.Ws. 3, 4 and 5 are the only independent witnesses whose testimony was accepted by the High Court as corroborating the case of Dr. Reddy. In our view their testimony cannot be used to support the case of Dr. Reddy. 9. Dr. Reddy deposed that on November 17, 1957, Kistamma left the matrimonial home and never returned thereafter. But Dr. Reddy is highly interested in the result of the litigation. It would be difficult to rely upon his bare testimony unsupported by strong corroborative evidence. 10. There are certain circumstances which clearly support the contention of Kistamma that Dr. Reddy’s case is not true. In the "notice" served on May 28, 1959, through a lawyer there was no reference to the claim that the child born of Kistamma in December, 1958, was illegitimate. It was stated in the "notice" that Kistamma was "guilty of acts of antagonism and violence deliberately intended to cause annoyance and misery so as to render Dr. Reddy’s life one of abject misery". It was further stated in the "notice" that while Dr. Reddy was considering the question of getting a judicial separation from kistamma on grounds of cruelty, Kistamma "suddenly walked out of his house in November, 1957, after creating a regrettable scene before some very respectable members of the public, other patients and members of his staff, with bag and baggage" swearing never to see him alive or return to him and "had not both red to have any manner of contact with him till that date". It is difficult to believe that if it was the case of Dr. Reddy at that stage that the child born of Kistamma in December, 1958, was not his child, he would have, when he was seeking to give intimation of a proposed proceeding for divorce, failed to mention prominently the only ground available to him on which he could apply for dissolution of marriage under Section 13 of the Hindu Marriage Act. 11. Mr. Gokhale on behalf of Dr. Reddy submitted that there were certain other circumstances which supported the case of Dr. Reddy. Counsel relied upon the circumstances that there was no correspondence between the spouses after they separated; that no interest was taken by Dr. Reddy or other members of his family in the child born of Kistamma; that Dr. Reddy was informed of the birth of the child three days after the birth; that no information was given to the father of Dr. Reddy who was residing only at a distance of 18 miles from Bellary where the child was born that no invitations were sent for the namakaran ceremony and other ceremonies of the child; and that when Kistamma left the matrimonial home Dr. Reddy did not accompany her to the Railway Station nor did he make any arrangements for providing a conveyance to her for going to the Railway Station. It is however accepted that there was correspondence between the husband and wife, but the correspondence has not been produced. In any case the relations between the husband and wife, were even on the case of Dr. Reddy severely strained, and absence of correspondence cannot support the case that Kistamma must have left the matrimonial home on November 17, 1957, and not in August, 1958. It is true that there is a delay of about three days in giving telegraphic information to Dr. Reddy about the birth of the child. Having regard to the strained relations between the husband and wife no inference may be drawn from that circumstance. Some reliance was sought to be placed upon the form of the telegram, but unless it be shown that the telegram was drafted by the sender, reference to Kistamma in the telegram "as your wife" will not, in our judgment, justify any adverse inference. The conduct of Dr. Reddy in not taking any interest in the child and not accompanying his wife to the Railway Station is also attributable to the strained relations between the husband and wife. Again it may be noticed that it was the case of Dr. Reddy that Kistamma was accompanied by her brother and his wife. There is no clear evidence on the record that any formal namakaran ceremony or other ceremonies took place. We do not think that these circumstances by themselves are sufficient to establish the case of Dr. Reddy that Kistamma left the matrimonial home on November 17, 1957, as alleged. We are of the view that no case was made out for the High Court to interfere with the conclusion of the Trial Court as confirmed by Jagadisan, J. 12. Counsel contended that in any case Dr. Reddy was entitled to a decree for judicial separation under Section 10(1)(a) of the Hindu Marriage Act. But no case was made out in the Courts below that Kistamma had deserted Dr. Reddy for a continuous period of not less than two years immediately preceding the presentation of the petition. Dr. Reddy went to trial only on a case arising under Section 10(1)(f) of the Act. Again, if it be accepted that Kistamma left the matrimonial home in August, 1958, the petition was clearly filed within two years of the date of departure of Kistamma, and the petition was not maintainable under Section 10(1)(a) of the Act. We may observe that in so stating we are not, in any manner, accepting the suggestion made by counsel for Dr. Reddy that Kistamma had deserted her husband when she left the matrimonial home.
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statement is somewhat obscure and the obscurity must have been apparent to the Judge and the lawyer, but the lawyer for Dr. Reddy did not attempt to clarify this answer given in answer to a question put in, nor did the learned Judge attempt to do so. The judgment of the Trial Court was delivered by Mr. P. Lakshmanan, Additional Judge, who had heard the evidence of this witness, and he understood the statement of the witness to mean that Kistamma had left the matrimonial home in 1958. He also made no attempt to seek a clarification of the statement. Apparently, Jagadisan, J., also read the statement of the witness in the manner in which it was understood by the Trial Judge. The High Court tried to reconstruct the form of the question and the answer given by the witness and observed that it was "hardly fair to read from the admission made by the witness that Kistamma had left the house in 1958". The testimony of this witness has not been recorded in the form of questions and answers. It is impossible to reconstruct from the record the form of the question and answer given by the witness. Failure on the part of the presiding Judge and the lawyer for Dr. Reddy to obtain a clarification is of some importance. We have carefully read the record of the evidence and we are of the view that the evidence of this witness is vague and unsatisfactory, and apart from the statement made by him inn the testimony itself is such that no reliance can be placed upon it8. P.Ws. 3, 4 and 5 are the only independent witnesses whose testimony was accepted by the High Court as corroborating the case of Dr. Reddy. In our view their testimony cannot be used to support the case of Dr. Reddy9. Dr. Reddy deposed that on November 17, 1957, Kistamma left the matrimonial home and never returned thereafter. But Dr. Reddy is highly interested in the result of the litigation. It would be difficult to rely upon his bare testimony unsupported by strong corroborative evidence10. There are certain circumstances which clearly support the contention of Kistamma that Dr. Reddy’s case is not true. In the "notice" served on May 28, 1959, through a lawyer there was no reference to the claim that the child born of Kistamma in December, 1958, was illegitimate. It was stated in the "notice" that Kistamma was "guilty of acts of antagonism and violence deliberately intended to cause annoyance and misery so as to render Dr. Reddy’s life one of abject misery". It was further stated in the "notice" that while Dr. Reddy was considering the question of getting a judicial separation from kistamma on grounds of cruelty, Kistamma "suddenly walked out of his house in November, 1957, after creating a regrettable scene before some very respectable members of the public, other patients and members of his staff, with bag and baggage" swearing never to see him alive or return to him and "had not both red to have any manner of contact with him till that date". It is difficult to believe that if it was the case of Dr. Reddy at that stage that the child born of Kistamma in December, 1958, was not his child, he would have, when he was seeking to give intimation of a proposed proceeding for divorce, failed to mention prominently the only ground available to him on which he could apply for dissolution of marriage under Section 13 of the Hindu Marriage ActIt is however accepted that there was correspondence between the husband and wife, but the correspondence has not been. In any case the relations between the husband and wife, were even on the case of Dr. Reddy severely strained, and absence of correspondence cannot support the case that Kistamma must have left the matrimonial home on November 17, 1957, and not in August, 1958. It is true that there is a delay of about three days in giving telegraphic information to Dr. Reddy about the birth of the child. Having regard to the strained relations between the husband and wife no inference may be drawn from that circumstance. Some reliance was sought to be placed upon the form of the telegram, but unless it be shown that the telegram was drafted by the sender, reference to Kistamma in the telegram "as your wife" will not, in our judgment, justify any adverse inference. The conduct of Dr. Reddy in not taking any interest in the child and not accompanying his wife to the Railway Station is also attributable to the strained relations between the husband and wife. Again it may be noticed that it was the case of Dr. Reddy that Kistamma was accompanied by her brother and his wife. There is no clear evidence on the record that any formal namakaran ceremony or other ceremonies took place. We do not think that these circumstances by themselves are sufficient to establish the case of Dr. Reddy that Kistamma left the matrimonial home on November 17, 1957, as alleged. We are of the view that no case was made out for the High Court to interfere with the conclusion of the Trial Court as confirmed by Jagadisan, JBut no case was made out in the Courts below that Kistamma had deserted Dr. Reddy for a continuous period of not less than two years immediately preceding the presentation of the petition. Dr. Reddy went to trial only on a case arising under Section 10(1)(f) of the Act. Again, if it be accepted that Kistamma left the matrimonial home in August, 1958, the petition was clearly filed within two years of the date of departure of Kistamma, and the petition was not maintainable under Section 10(1)(a) of the Act. We may observe that in so stating we are not, in any manner, accepting the suggestion made by counsel for Dr. Reddy that Kistamma had deserted her husband when she left the matrimonial home.
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Kanhiayalal Vs. Rameshwar and Others | 1. Special leave granted.2. We heard Mr. Naunit Lal, learned counsel for the appellant and Mr. H. K. Puri, learned counsel for respondent 1. We are of the opinion date the High Court was clearly in error in holding that the appeal preferred by the present appellant had abated on account of the death of the judgment-debtor, who was one of the respondents.3. A few facts will immediately focus the attention on the question involved in this appeal.4. The decree-holder, respondent 1, Rameshwar, obtained a decree for Rs. 8500 plus interest against respondents 2, 3 and 4. One Bhikaji father of the appellant and respondents 6 and 7 and husband of respondent 5 stood as surety for the judgment-debtors. After the decree was put into execution certain objections were raised by the judgment--debtors which were overruled and a revision petition against the order failed. In the meantime a house of the judgment-debtors was attached. Subsequently, the executions was set in motion against the surety Bhikaji and he raised certain objections. Pending the execution proceedings Bhikaji died and his heirs and legal representatives were substituted. They include appellant and respondents 5 to 9. The substituted heirs raised certain objections. These objections were overruled, whereupon the present appellant and respondents 5 to 9 preferred an appeal being Civil Appeal No. 8 of 1977. When the appeal was pending in the High Court it was brought to the notice of the Court that the judgment-debtor 2 Hukum Chand had died. Appellant and respondents 5 to 9 moved an application for substitution. On behalf of the executing decree-holder a contention was raised that as the heirs and legal representatives of the deceased Hukum Chand judgment-debtor were not substituted in time, the appeal has abated. By a short cryptic order, the High Court accepted the contention of the decree- holder and disposed of the appeal, as having abated.5. It is this order which is in appeal before us.6. Mr. Naunit Lal raised two contentions. But we propose to examine second of the two contentions. The first contention is that the provisions of Order 22, Rules 3, 4 and 8 of the CPC do not apply to the execution proceedings. The question is not whether the heirs were not impleaded in execution proceedings but whether the appeal has abated on account of the failure of appellant to seeks substitution of the deceased respondent 2 pending the appeal. We do not propose to examine the first contention. But the second contention which we are inclined to accept is sufficient to dispose of this appeal. Mr. Naunit Lal submitted that the appellant is the heir of the surety, contesting suretys liability and the appellant was not seeking any relief against the original judgment-debtor who was a proforma respondent. It was urged that the failure to implead the legal representatives of a proforma, respondent against whom no relief is claimed would not have the effect of abating the appeal preferred by the present appellant. The heir of surety was contesting his liability to satisfy the decretal debt. The appellant claimed no relief against the proforma judgment-debtor. The judgment-debtor is contesting his liability with which we are not concerned. By the death of proforma respondent, judgment-debtor, right to sue does not revive against him or his heirs and their presence was unnecessary and the appeal can proceed in their absence. Therefore, the High Court was clearly in error in holding that the appeal would abate on the sole ground that the heirs of the deceased judgment-debtor proforma respondent 2 were not substituted in time. No substitution was necessary and appeal could have been proceeded with in the absence of the deceased judgment-debtor and disposed of on merits. | 1[ds]We are of the opinion date the High Court was clearly in error in holding that the appeal preferred by the present appellant had abated on account of the death of thewho was one of thedo not propose to examine the first contention. But the second contention which we are inclined to accept is sufficient to dispose of this appeal. Mr. Naunit Lal submitted that the appellant is the heir of the surety, contesting suretys liability and the appellant was not seeking any relief against the originalwho was a proforma respondent. It was urged that the failure to implead the legal representatives of a proforma, respondent against whom no relief is claimed would not have the effect of abating the appeal preferred by the present appellant. The heir of surety was contesting his liability to satisfy the decretal debt. The appellant claimed no relief against the proformaor is contesting his liability with which we are not concerned. By the death of proforma respondent,right to sue does not revive against him or his heirs and their presence was unnecessary and the appeal can proceed in their absence. Therefore, the High Court was clearly in error in holding that the appeal would abate on the sole ground that the heirs of the deceasedproforma respondent 2 were not substituted in time. No substitution was necessary and appeal could have been proceeded with in the absence of the deceasedand disposed of on merits. | 1 | 673 | 257 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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1. Special leave granted.2. We heard Mr. Naunit Lal, learned counsel for the appellant and Mr. H. K. Puri, learned counsel for respondent 1. We are of the opinion date the High Court was clearly in error in holding that the appeal preferred by the present appellant had abated on account of the death of the judgment-debtor, who was one of the respondents.3. A few facts will immediately focus the attention on the question involved in this appeal.4. The decree-holder, respondent 1, Rameshwar, obtained a decree for Rs. 8500 plus interest against respondents 2, 3 and 4. One Bhikaji father of the appellant and respondents 6 and 7 and husband of respondent 5 stood as surety for the judgment-debtors. After the decree was put into execution certain objections were raised by the judgment--debtors which were overruled and a revision petition against the order failed. In the meantime a house of the judgment-debtors was attached. Subsequently, the executions was set in motion against the surety Bhikaji and he raised certain objections. Pending the execution proceedings Bhikaji died and his heirs and legal representatives were substituted. They include appellant and respondents 5 to 9. The substituted heirs raised certain objections. These objections were overruled, whereupon the present appellant and respondents 5 to 9 preferred an appeal being Civil Appeal No. 8 of 1977. When the appeal was pending in the High Court it was brought to the notice of the Court that the judgment-debtor 2 Hukum Chand had died. Appellant and respondents 5 to 9 moved an application for substitution. On behalf of the executing decree-holder a contention was raised that as the heirs and legal representatives of the deceased Hukum Chand judgment-debtor were not substituted in time, the appeal has abated. By a short cryptic order, the High Court accepted the contention of the decree- holder and disposed of the appeal, as having abated.5. It is this order which is in appeal before us.6. Mr. Naunit Lal raised two contentions. But we propose to examine second of the two contentions. The first contention is that the provisions of Order 22, Rules 3, 4 and 8 of the CPC do not apply to the execution proceedings. The question is not whether the heirs were not impleaded in execution proceedings but whether the appeal has abated on account of the failure of appellant to seeks substitution of the deceased respondent 2 pending the appeal. We do not propose to examine the first contention. But the second contention which we are inclined to accept is sufficient to dispose of this appeal. Mr. Naunit Lal submitted that the appellant is the heir of the surety, contesting suretys liability and the appellant was not seeking any relief against the original judgment-debtor who was a proforma respondent. It was urged that the failure to implead the legal representatives of a proforma, respondent against whom no relief is claimed would not have the effect of abating the appeal preferred by the present appellant. The heir of surety was contesting his liability to satisfy the decretal debt. The appellant claimed no relief against the proforma judgment-debtor. The judgment-debtor is contesting his liability with which we are not concerned. By the death of proforma respondent, judgment-debtor, right to sue does not revive against him or his heirs and their presence was unnecessary and the appeal can proceed in their absence. Therefore, the High Court was clearly in error in holding that the appeal would abate on the sole ground that the heirs of the deceased judgment-debtor proforma respondent 2 were not substituted in time. No substitution was necessary and appeal could have been proceeded with in the absence of the deceased judgment-debtor and disposed of on merits.
### Response:
1
### Explanation:
We are of the opinion date the High Court was clearly in error in holding that the appeal preferred by the present appellant had abated on account of the death of thewho was one of thedo not propose to examine the first contention. But the second contention which we are inclined to accept is sufficient to dispose of this appeal. Mr. Naunit Lal submitted that the appellant is the heir of the surety, contesting suretys liability and the appellant was not seeking any relief against the originalwho was a proforma respondent. It was urged that the failure to implead the legal representatives of a proforma, respondent against whom no relief is claimed would not have the effect of abating the appeal preferred by the present appellant. The heir of surety was contesting his liability to satisfy the decretal debt. The appellant claimed no relief against the proformaor is contesting his liability with which we are not concerned. By the death of proforma respondent,right to sue does not revive against him or his heirs and their presence was unnecessary and the appeal can proceed in their absence. Therefore, the High Court was clearly in error in holding that the appeal would abate on the sole ground that the heirs of the deceasedproforma respondent 2 were not substituted in time. No substitution was necessary and appeal could have been proceeded with in the absence of the deceasedand disposed of on merits.
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Ruston & Hornsby Ltd Vs. The Zamindara Engineering Co | a trade mark in respect of any goods shall, give to the person the exclusive right to the use of the Trade mark in relation to those goods and, without prejudice to the generality of the foregoing provision, that right shall be deemed to be infringed by any person who, not being the proprietor of the trade mark or a registered user thereof using by way of the permitted use, uses a mark identical with it or so nearly resembling it as to be likely to deceive or cause confusion, in the course of trade, in relation to any goods in respect of which it is registered, and in such manner as to render the use of the mark likely to be taken either-(a) as being used as a trade mark; or(b) to import a reference to some person having the right either as a proprietor or as registered user to use the trade mark or to goods with which such a person as aforesaid is connected in the course of trade."4. The distinction between an infringement action and a passing off action is important. Apart from the question as to the nature of trade mark the issue in an infringement action is quite different from the issue in a passing off action.In a passing off action the issue is as follows:"Is the defendant selling goods so marked as to be designed or calculated to lead purchasers to believe that they are the plaintiffs goods?"5. But in an infringement action the issue is as follows:"Is the defendant using a mark which is the same as or which is a colourable imitation of the plaintiffs registered trade mark?"It very often happens that although the defendant is not using the trade mark of the plaintiff,the get-up of the defendants goods may be so much like the plaintiffs that a clear case of passing off would be proved. It is on the contrary conceivable that although the defendant may be using the plaintiffs mark the get-up of the defendants goods may be so different from the get-up of the plaintiffs goods and the prices also may be so different that there would be no probability of deception of the public. Nevertheless, in an action on the trade mark, that is to say, in an infringement action, an injunction would issue as soon as it is proved that the defendant is improperly using the plaintiffs mark.6. The action for infringement is a statutory right. It is dependent upon the validity of the registration and subject to other restrictions laid down in Sections 30, 34 and 35 of the Act. On the other hand the gist of a passing off action is that A is not entitled to represent his goods as the goods of B but it is not necessary for B to prove that A did this knowingly on with any intent to deceive. It is enough that the get-up of Bs goods has become distinctive of them and that there is a probability of confusion between them and the goods of A. No case of actual deception nor any actual damage need be proved.At common law the action was not maintainable unless there had been fraud on As part. In equity, however, Lord Cottenham L. C. in Millington v. Fox (1838) 3 My and Cr 338 held that it was immaterial whether the defendant had been fraudulent or not in using the plaintiffs trade mark and granted an injunction accordingly. The common law courts, however, adhered to their view that fraud was necessary until the Judicature Acts, by fusing law and equity, gave the equitable rule the victory over the common law rule.7. The two actions, however, are closely similar in some respects. As was observed by the Master of the Rolls in Saville Perfumery Ltd. v. June Perfect Ltd. (1941) 58 RPC 147 at p. 161:"The Statute law relating to infringement of trade marks is based on the same fundamental idea as the law relating to passing - off. But it differs from that law in two particulars, namely (1) it is concerned only with one method of passing-off, namely, the use of a trade mark, and (2) the statutory protection is absolute in the sense that once a mark is shown to offend the user of it cannot escape by showing that by something outside the actual mark itself he has distinguished his goods from those of the registered proprietor. Accordingly, in considering the question of infringement the Courts have held, and it is now expressly provided by the Trade Marks Act, 1938, Section 4, that infringement takes place not merely by exact imitation but by the use of a mark so nearly resembling the registered mark as to be likely to deceive."In an action for infringement where the defendants trade mark is identical with the plaintiffs mark, the Court will not inquire whether the infringement is such as is likely to deceive or cause confusion. But where the alleged infringement consists of using not the exact mark on the Register, but something similar to it the test of infringement is the same as in an action for passing-off. In other words, the test as to likelihood of confusion or deception arising from similarity of marks is the same both in infringement and passing-off actions.8. In the present case the High Court has found that there is a deceptive resemblance between the word "RUSTON" and the word "RUSTAM" and therefore the use of the bare word "RUSTAM" constituted infringement of the plaintiffs trade mark "RUSTON". The respondent has not brought an appeal against the judgment of the High Court on this point and it is, therefore, not open to him to challenge that finding. If the respondents trade mark is deceptively similar to that of the appellant the fact that the word INDIA is added to the respondents trade mark is of no consequence and the appellant is entitled to succeed in its action for infringement of its trade mark. | 1[ds]4. The distinction between an infringement action and a passing off action is important. Apart from the question as to the nature of trade mark the issue in an infringement action is quite different from the issue in a passing off action.In a passing off action the issue is asthe defendant selling goods so marked as to be designed or calculated to lead purchasers to believe that they are the plaintiffst in an infringement action the issue is asthe defendant using a mark which is the same as or which is a colourable imitation of the plaintiffs registered tradean action for infringement where the defendants trade mark is identical with the plaintiffs mark, the Court will not inquire whether the infringement is such as is likely to deceive or cause confusion. But where the alleged infringement consists of using not the exact mark on the Register, but something similar to it the test of infringement is the same as in an action for passing-off. In other words, the test as to likelihood of confusion or deception arising from similarity of marks is the same both in infringement and passing-off actions.8. In the present case the High Court has found that there is a deceptive resemblance between the word "RUSTON" and the word "RUSTAM" and therefore the use of the bare word "RUSTAM" constituted infringement of the plaintiffs trade mark "RUSTON". The respondent has not brought an appeal against the judgment of the High Court on this point and it is, therefore, not open to him to challenge that finding. If the respondents trade mark is deceptively similar to that of the appellant the fact that the word INDIA is added to the respondents trade mark is of no consequence and the appellant is entitled to succeed in its action for infringement of its tradevery often happens that although the defendant is not using the trade mark of the plaintiff,theof the defendants goods may be so much like the plaintiffs that a clear case of passing off would be proved. It is on the contrary conceivable that although the defendant may be using the plaintiffs mark theof the defendants goods may be so different from theof the plaintiffs goods and the prices also may be so different that there would be no probability of deception of the public. Nevertheless, in an action on the trade mark, that is to say, in an infringement action, an injunction would issue as soon as it is proved that the defendant is improperly using the plaintiffs mark.6. The action for infringement is a statutory right. It is dependent upon the validity of the registration and subject to other restrictions laid down in Sections 30, 34 and 35 of the Act. On the other hand the gist of a passing off action is that A is not entitled to represent his goods as the goods of B but it is not necessary for B to prove that A did this knowingly on with any intent to deceive. It is enough that theof Bs goods has become distinctive of them and that there is a probability of confusion between them and the goods of A. No case of actual deception nor any actual damage need be proved.At common law the action was not maintainable unless there had been fraud on As part. | 1 | 1,624 | 594 | ### Instruction:
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a trade mark in respect of any goods shall, give to the person the exclusive right to the use of the Trade mark in relation to those goods and, without prejudice to the generality of the foregoing provision, that right shall be deemed to be infringed by any person who, not being the proprietor of the trade mark or a registered user thereof using by way of the permitted use, uses a mark identical with it or so nearly resembling it as to be likely to deceive or cause confusion, in the course of trade, in relation to any goods in respect of which it is registered, and in such manner as to render the use of the mark likely to be taken either-(a) as being used as a trade mark; or(b) to import a reference to some person having the right either as a proprietor or as registered user to use the trade mark or to goods with which such a person as aforesaid is connected in the course of trade."4. The distinction between an infringement action and a passing off action is important. Apart from the question as to the nature of trade mark the issue in an infringement action is quite different from the issue in a passing off action.In a passing off action the issue is as follows:"Is the defendant selling goods so marked as to be designed or calculated to lead purchasers to believe that they are the plaintiffs goods?"5. But in an infringement action the issue is as follows:"Is the defendant using a mark which is the same as or which is a colourable imitation of the plaintiffs registered trade mark?"It very often happens that although the defendant is not using the trade mark of the plaintiff,the get-up of the defendants goods may be so much like the plaintiffs that a clear case of passing off would be proved. It is on the contrary conceivable that although the defendant may be using the plaintiffs mark the get-up of the defendants goods may be so different from the get-up of the plaintiffs goods and the prices also may be so different that there would be no probability of deception of the public. Nevertheless, in an action on the trade mark, that is to say, in an infringement action, an injunction would issue as soon as it is proved that the defendant is improperly using the plaintiffs mark.6. The action for infringement is a statutory right. It is dependent upon the validity of the registration and subject to other restrictions laid down in Sections 30, 34 and 35 of the Act. On the other hand the gist of a passing off action is that A is not entitled to represent his goods as the goods of B but it is not necessary for B to prove that A did this knowingly on with any intent to deceive. It is enough that the get-up of Bs goods has become distinctive of them and that there is a probability of confusion between them and the goods of A. No case of actual deception nor any actual damage need be proved.At common law the action was not maintainable unless there had been fraud on As part. In equity, however, Lord Cottenham L. C. in Millington v. Fox (1838) 3 My and Cr 338 held that it was immaterial whether the defendant had been fraudulent or not in using the plaintiffs trade mark and granted an injunction accordingly. The common law courts, however, adhered to their view that fraud was necessary until the Judicature Acts, by fusing law and equity, gave the equitable rule the victory over the common law rule.7. The two actions, however, are closely similar in some respects. As was observed by the Master of the Rolls in Saville Perfumery Ltd. v. June Perfect Ltd. (1941) 58 RPC 147 at p. 161:"The Statute law relating to infringement of trade marks is based on the same fundamental idea as the law relating to passing - off. But it differs from that law in two particulars, namely (1) it is concerned only with one method of passing-off, namely, the use of a trade mark, and (2) the statutory protection is absolute in the sense that once a mark is shown to offend the user of it cannot escape by showing that by something outside the actual mark itself he has distinguished his goods from those of the registered proprietor. Accordingly, in considering the question of infringement the Courts have held, and it is now expressly provided by the Trade Marks Act, 1938, Section 4, that infringement takes place not merely by exact imitation but by the use of a mark so nearly resembling the registered mark as to be likely to deceive."In an action for infringement where the defendants trade mark is identical with the plaintiffs mark, the Court will not inquire whether the infringement is such as is likely to deceive or cause confusion. But where the alleged infringement consists of using not the exact mark on the Register, but something similar to it the test of infringement is the same as in an action for passing-off. In other words, the test as to likelihood of confusion or deception arising from similarity of marks is the same both in infringement and passing-off actions.8. In the present case the High Court has found that there is a deceptive resemblance between the word "RUSTON" and the word "RUSTAM" and therefore the use of the bare word "RUSTAM" constituted infringement of the plaintiffs trade mark "RUSTON". The respondent has not brought an appeal against the judgment of the High Court on this point and it is, therefore, not open to him to challenge that finding. If the respondents trade mark is deceptively similar to that of the appellant the fact that the word INDIA is added to the respondents trade mark is of no consequence and the appellant is entitled to succeed in its action for infringement of its trade mark.
### Response:
1
### Explanation:
4. The distinction between an infringement action and a passing off action is important. Apart from the question as to the nature of trade mark the issue in an infringement action is quite different from the issue in a passing off action.In a passing off action the issue is asthe defendant selling goods so marked as to be designed or calculated to lead purchasers to believe that they are the plaintiffst in an infringement action the issue is asthe defendant using a mark which is the same as or which is a colourable imitation of the plaintiffs registered tradean action for infringement where the defendants trade mark is identical with the plaintiffs mark, the Court will not inquire whether the infringement is such as is likely to deceive or cause confusion. But where the alleged infringement consists of using not the exact mark on the Register, but something similar to it the test of infringement is the same as in an action for passing-off. In other words, the test as to likelihood of confusion or deception arising from similarity of marks is the same both in infringement and passing-off actions.8. In the present case the High Court has found that there is a deceptive resemblance between the word "RUSTON" and the word "RUSTAM" and therefore the use of the bare word "RUSTAM" constituted infringement of the plaintiffs trade mark "RUSTON". The respondent has not brought an appeal against the judgment of the High Court on this point and it is, therefore, not open to him to challenge that finding. If the respondents trade mark is deceptively similar to that of the appellant the fact that the word INDIA is added to the respondents trade mark is of no consequence and the appellant is entitled to succeed in its action for infringement of its tradevery often happens that although the defendant is not using the trade mark of the plaintiff,theof the defendants goods may be so much like the plaintiffs that a clear case of passing off would be proved. It is on the contrary conceivable that although the defendant may be using the plaintiffs mark theof the defendants goods may be so different from theof the plaintiffs goods and the prices also may be so different that there would be no probability of deception of the public. Nevertheless, in an action on the trade mark, that is to say, in an infringement action, an injunction would issue as soon as it is proved that the defendant is improperly using the plaintiffs mark.6. The action for infringement is a statutory right. It is dependent upon the validity of the registration and subject to other restrictions laid down in Sections 30, 34 and 35 of the Act. On the other hand the gist of a passing off action is that A is not entitled to represent his goods as the goods of B but it is not necessary for B to prove that A did this knowingly on with any intent to deceive. It is enough that theof Bs goods has become distinctive of them and that there is a probability of confusion between them and the goods of A. No case of actual deception nor any actual damage need be proved.At common law the action was not maintainable unless there had been fraud on As part.
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Collector Of Central Excise, Bombay-I & Anr Vs. Parle Exports (P) Ltd | construe, execute and apply the said enactmentsHow then should the courts proceed ? The expressions in the Schedule and in the notification for exemption should be understood by the language employed therein bearing in mind the context in which the expressions occur. The words used in the provision imposing taxes or granting exemption should be understood in the same way in which these are understood in ordinary parlance in the area in which the law is in force or by the people who ordinarily deal with them It is, however, necessary to bear in mind certain principles. The notification in this case was issued under rule 8 of the Central Excise Rules and should be read along with the Act. The notification must be read as a whole in the context of the other relevant provisions. When a notification is issued in accordance with the power conferred by the statute, it has statutory force and validity and, therefore, the exemption under the notification is, as if it were contained in the Act itself. See in this connection, the observations of this court in Orient Weaving Mills (P.) Ltd. v. Union of India [1962] Supp 3 SCR 481. See also Kailash Nath v. State of U. P. [1957] 8 STC 358 (SC) ; AIR 1957 SC 790 . The principle is well-settled that when two views of notification are possible, it should be construed in favour of the subject as notification is part of a fiscal enactment. But, in this connection, it is well to remember the observations of the Judicial Committee in Carolin M. Armytage v. Frederick Wilkinson [1878] 3 AC 355 at 370 (PC) that it is only, however, in the event of there being a real difficulty in ascertaining the meaning of a particular enactment that the question of strictness or of liberality of construction arises. The Judicial Committee reiterated in the said decision at page 369 of the report that, in a taxing Act, provisions establishing an exception to the general rule of taxation are to be construed strictly against those who invoke its benefit. While interpreting an exemption clause, liberal interpretation should be imparted to the language thereof, provided no violence is done to the language employed. It must, however, be borne in mind that absurd results of construction should be avoidedIn Hindustan Aluminium Corporation Ltd. v. State of Uttar Pradesh [1981] 48 STC 411 ; [1982] 1 SCR 129 this court emphasised that the notification should not only be confined to its grammatical or ordinary parlance but it should also be construed in the light of the context. This court reiterated that the expression should be construed in manner in which similar expressions have been employed by those who framed the relevant notification. The court emphasised the need to derive the intent from a contextual scheme. In this case, therefore, it is necessary to endeavour to find out the true intent of the expressions "food products and food preparations, " having regard to the object and the purpose for which the exemption is granted bearing in mind the context and also taking note of the literal or common parlance meaning by those who deal with those goods, of course bearing in mind that, in case of doubt only, it should be resolved in favour of the assessee or the dealer, avoiding, however, an absurd meaning. Bearing the aforesaid principles in mind, in our opinion, the Revenue is right that the non-alcoholic beverage bases in India cannot be treated or understood as new "nutritive material absorbed or taken into the body of an organism which serves for the purpose of growth, work or repair and for the maintenance of the vital, process" and an average Indian will not treat non-alcoholic beverage bases as food products or food preparations in that light. 12. We have also noted how these goods were treated by the Government as mentioned hereinbefore. There is no direct evidence as such as to how, in commercial parlance, unlike in ordinary parlance, non-alcoholic beverage bases are treated or whether they are treated as food products or food preparations. The purpose of exemption is to encourage food production and also give a boost to the production of goods in common use and need. After all, the purpose of exemption is to help production of food and food preparations at a cheaper price and also help production of items which are in common use and need like electric light and powerThe question of interpretation involves determining the meaning of text contained in one or more documents. Judges are often criticised for being tied too closely to statutory words and for failing to give effect to the intention of Parliament or the law-maker. Such language, it has been said, in Crosss Statutory Interpretation (second edition) at page 21, appears to suggest that there are two units of enquiry in statutory interpretation the statutory text and the intention of Parliament and the judge must seek to harmonise the two. This, however, is not correct. According to the tradition of our law, primacy is to be given to the text in which the intention of the law-giver has been expressed. Cross refers to Blackstones observations that the fairest and most rational method to interpret the will of the law-maker is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequences or the spirit and reason of the law. We have no doubt, in our opinion that, having regard to the language used, it would not be in consonance with the spirit and the reason of law to give exemption for non-alcoholic beverage bases under the notification in question. Bearing the aforesaid purpose, in our opinion, it cannot be contended that expensive items like Gold Spot base, Limca base or Thums-Up base were intended to be given exemption at the cost of the public exchequer. 13. | 1[ds]We have also noted how these goods were treated by the Government as mentioned hereinbefore. There is no direct evidence as such as to how, in commercial parlance, unlike in ordinary parlance, non-alcoholic beverage bases are treated or whether they are treated as food products or food preparations. The purpose of exemption is to encourage food production and also give a boost to the production of goods in common use and need. After all, the purpose of exemption is to help production of food and food preparations at a cheaper price and also help production of items which are in common use and need like electric light and powerThe question of interpretation involves determining the meaning of text contained in one or more documents. Judges are often criticised for being tied too closely to statutory words and for failing to give effect to the intention of Parliament or the law-maker. Such language, it has been said, in Crosss Statutory Interpretation (second edition) at page 21, appears to suggest that there are two units of enquiry in statutory interpretation the statutory text and the intention of Parliament and the judge must seek to harmonise the two. This, however, is not correct. According to the tradition of our law, primacy is to be given to the text in which the intention of the law-giver has been expressed. Cross refers to Blackstones observations that the fairest and most rational method to interpret the will of the law-maker is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequences or the spirit and reason of the law. We have no doubt, in our opinion that, having regard to the language used, it would not be in consonance with the spirit and the reason of law to give exemption for non-alcoholic beverage bases under the notification in question. Bearing the aforesaid purpose, in our opinion, it cannot be contended that expensive items like Gold Spot base, Limca base or Thums-Up base were intended to be given exemption at the cost of the public exchequerFor the aforesaid reasons, the appeals have to be allowed and the decision of the Tribunal reversed. We, however, need not go into the question of penalty as well as the question of limitation which have been left open by the Tribunal in its order. It will be open for the parties to urge these points afresh before the Tribunal. We express no opinion on these aspects.The appeals to the extent indicated above are allowed. There will, however, be no order as to costs. Appeals allowed. | 1 | 5,662 | 497 | ### Instruction:
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construe, execute and apply the said enactmentsHow then should the courts proceed ? The expressions in the Schedule and in the notification for exemption should be understood by the language employed therein bearing in mind the context in which the expressions occur. The words used in the provision imposing taxes or granting exemption should be understood in the same way in which these are understood in ordinary parlance in the area in which the law is in force or by the people who ordinarily deal with them It is, however, necessary to bear in mind certain principles. The notification in this case was issued under rule 8 of the Central Excise Rules and should be read along with the Act. The notification must be read as a whole in the context of the other relevant provisions. When a notification is issued in accordance with the power conferred by the statute, it has statutory force and validity and, therefore, the exemption under the notification is, as if it were contained in the Act itself. See in this connection, the observations of this court in Orient Weaving Mills (P.) Ltd. v. Union of India [1962] Supp 3 SCR 481. See also Kailash Nath v. State of U. P. [1957] 8 STC 358 (SC) ; AIR 1957 SC 790 . The principle is well-settled that when two views of notification are possible, it should be construed in favour of the subject as notification is part of a fiscal enactment. But, in this connection, it is well to remember the observations of the Judicial Committee in Carolin M. Armytage v. Frederick Wilkinson [1878] 3 AC 355 at 370 (PC) that it is only, however, in the event of there being a real difficulty in ascertaining the meaning of a particular enactment that the question of strictness or of liberality of construction arises. The Judicial Committee reiterated in the said decision at page 369 of the report that, in a taxing Act, provisions establishing an exception to the general rule of taxation are to be construed strictly against those who invoke its benefit. While interpreting an exemption clause, liberal interpretation should be imparted to the language thereof, provided no violence is done to the language employed. It must, however, be borne in mind that absurd results of construction should be avoidedIn Hindustan Aluminium Corporation Ltd. v. State of Uttar Pradesh [1981] 48 STC 411 ; [1982] 1 SCR 129 this court emphasised that the notification should not only be confined to its grammatical or ordinary parlance but it should also be construed in the light of the context. This court reiterated that the expression should be construed in manner in which similar expressions have been employed by those who framed the relevant notification. The court emphasised the need to derive the intent from a contextual scheme. In this case, therefore, it is necessary to endeavour to find out the true intent of the expressions "food products and food preparations, " having regard to the object and the purpose for which the exemption is granted bearing in mind the context and also taking note of the literal or common parlance meaning by those who deal with those goods, of course bearing in mind that, in case of doubt only, it should be resolved in favour of the assessee or the dealer, avoiding, however, an absurd meaning. Bearing the aforesaid principles in mind, in our opinion, the Revenue is right that the non-alcoholic beverage bases in India cannot be treated or understood as new "nutritive material absorbed or taken into the body of an organism which serves for the purpose of growth, work or repair and for the maintenance of the vital, process" and an average Indian will not treat non-alcoholic beverage bases as food products or food preparations in that light. 12. We have also noted how these goods were treated by the Government as mentioned hereinbefore. There is no direct evidence as such as to how, in commercial parlance, unlike in ordinary parlance, non-alcoholic beverage bases are treated or whether they are treated as food products or food preparations. The purpose of exemption is to encourage food production and also give a boost to the production of goods in common use and need. After all, the purpose of exemption is to help production of food and food preparations at a cheaper price and also help production of items which are in common use and need like electric light and powerThe question of interpretation involves determining the meaning of text contained in one or more documents. Judges are often criticised for being tied too closely to statutory words and for failing to give effect to the intention of Parliament or the law-maker. Such language, it has been said, in Crosss Statutory Interpretation (second edition) at page 21, appears to suggest that there are two units of enquiry in statutory interpretation the statutory text and the intention of Parliament and the judge must seek to harmonise the two. This, however, is not correct. According to the tradition of our law, primacy is to be given to the text in which the intention of the law-giver has been expressed. Cross refers to Blackstones observations that the fairest and most rational method to interpret the will of the law-maker is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequences or the spirit and reason of the law. We have no doubt, in our opinion that, having regard to the language used, it would not be in consonance with the spirit and the reason of law to give exemption for non-alcoholic beverage bases under the notification in question. Bearing the aforesaid purpose, in our opinion, it cannot be contended that expensive items like Gold Spot base, Limca base or Thums-Up base were intended to be given exemption at the cost of the public exchequer. 13.
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We have also noted how these goods were treated by the Government as mentioned hereinbefore. There is no direct evidence as such as to how, in commercial parlance, unlike in ordinary parlance, non-alcoholic beverage bases are treated or whether they are treated as food products or food preparations. The purpose of exemption is to encourage food production and also give a boost to the production of goods in common use and need. After all, the purpose of exemption is to help production of food and food preparations at a cheaper price and also help production of items which are in common use and need like electric light and powerThe question of interpretation involves determining the meaning of text contained in one or more documents. Judges are often criticised for being tied too closely to statutory words and for failing to give effect to the intention of Parliament or the law-maker. Such language, it has been said, in Crosss Statutory Interpretation (second edition) at page 21, appears to suggest that there are two units of enquiry in statutory interpretation the statutory text and the intention of Parliament and the judge must seek to harmonise the two. This, however, is not correct. According to the tradition of our law, primacy is to be given to the text in which the intention of the law-giver has been expressed. Cross refers to Blackstones observations that the fairest and most rational method to interpret the will of the law-maker is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject-matter, the effects and consequences or the spirit and reason of the law. We have no doubt, in our opinion that, having regard to the language used, it would not be in consonance with the spirit and the reason of law to give exemption for non-alcoholic beverage bases under the notification in question. Bearing the aforesaid purpose, in our opinion, it cannot be contended that expensive items like Gold Spot base, Limca base or Thums-Up base were intended to be given exemption at the cost of the public exchequerFor the aforesaid reasons, the appeals have to be allowed and the decision of the Tribunal reversed. We, however, need not go into the question of penalty as well as the question of limitation which have been left open by the Tribunal in its order. It will be open for the parties to urge these points afresh before the Tribunal. We express no opinion on these aspects.The appeals to the extent indicated above are allowed. There will, however, be no order as to costs. Appeals allowed.
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Chandra Bhan Singh Vs. Latafat Ullah Khan & Ors | Court by way of an appeal or revision or in any original suit, application or execution proceedings." So when the aggrieved persons did not invoke the appellate or revisional jurisdiction of the Appellate Officer, the order of the Competent Officer dated August 31, 1955 , became final by virtue of section 18 and could not be called in question thereafter. 9. It will be recalled that, as has been mentioned, the property was again reported to be of a composite nature, and fresh notices were inadvertently issued to t he non-evacuee shareholders. They were personally served on Mohammed Latafat Ullah Khan, and on Mohammed Shamfat Ullah Khan through his son Shaukat Ullah Khan, on February 25, 1956, but no claim was filed by anyone in spite of that second opportunity, and a vesting order was once again made under section 11 of the Act on March 23, 1957. No appeal or revision application was filed against that order also, under sections 14 and 15 of the Act. In fact it was after a lapse of some 2 1/2 years from the order dated August 31, 1955, and 1 year from March 23, 1957 that Mohammed Latafat Ullah Khan and the four sons of Mohammed Sharafat Ullah Khan made an application for "restoration" of their claims on March 12, 1958. By t hen the order dated August 31, 1955 had become final and binding under section 18 and it was not permissible for any one to reopen it merely on the basis of a "restoration" application and to review the earlier order dated August 31, 1955 in disregard of the statutory bar of that section. It is well settled that review is a creature of statute and cannot be entertained in the absence of a provision therefor. It will be enough to make a reference in this connection to the decision of this Court in Harbhajan Singh v. Karam Singh and others(1) which approved the earlier Privy Council decision in Baijnath Ram Goenka v. Nand Kumar Singh(2) the decision in Anantharaju Shetty v. Appu Hegde(3) and reiterated the decision in Patel Chunib hai Dajibhai etc. v. Naravanrao Khanderao Jambekar and another(4). The orders of the Competent Officer dated March 15, 1958 and May 12, 1958 in favour of the writ petitioners setting aside the vesting order dated August 31, 1955, and tra nsferring the evacuee interest in the property to Mohammed Latafat Ullah Khan and the four sons of Mohammed Sharafat Ullah Khan for Rs. 5000/- were therefore without jurisdiction. As has been stated, the Assistant Custodian felt aggrieved against th e orders of the Competent Officer dated March 15, 1958, and May 12, 1958, and made application soon after, on June 11, 1958, and July 10, 1958, for review, and the Competent Officer allowed them by his orders dated July 10, 1958 and September 8, 1958. The order dated July 10, 1958 was not of much consequence. The fact therefore remains that the two sets of orders of the Competent Officer, namely, the first set of the two orders dated March 15, 1958 and May 12, 1958, and the second set consisting of the orders dated July 10, 1958 and September 8, 1958 suffered from the same vice of lack of jurisdiction and were equally void.This fact was specifically brought to the notice of the High Court, but it ruled it out by merely saying that the "fact that the petitioners had wrongly filed a review application which was allowed by the Competent Officer would not confer jurisdiction on the Competent Officer to review his orders if the statute had not made any provision for it." T hat was begging the question, and could not possibly meet the objection of the present appellants. If we may say so with respect, what the High Court failed to appreciate was that while it was true that want of jurisdiction to review the order of August 31, 1955, could not be cured by waiver, it would not necessarily follow that the Court was obliged to grant certiorari at the instance of a party whose conduct was such as to disentitle it for it. The High Court was exercising its extraordinary jurisdiction and the conduct of the petitioners was a matter of considerable importance. The High Court did not take due notice of the fact that the writ petitioners (or their predecessors-in- interest) had allowed the passing of the order dated August 31, 1955 in spite of the individual notices which were issued under section 7, and did not deserve any relief. It did not notice the further fact that when the order dated August 31, 1955 had become final because of the fail ure to file an appeal or an application for revision, it was not permissible under the law, in view of the specific bar of section 18, for the writ petitioners to move a "restoration" application on March 12, 1958 for its review and to obtain its reversal by the Competent Officers orders dated March 15, 1958 and May 12, 1958, and to obtain a wholly beneficial order for the transfer of the one-third evacuee interest to them on payment of Rs. 5000/-. They, nevertheless, did so. So when the writ petitioners had themselves unlawfully invoked the review jurisdiction of the Competent Officer, which did not exist, to their advantage, and to the disadvantage of the present appellant, by their application dated March 12, 1958, they could not be heard to say, when the Department invoked the self-same jurisdiction on two important grounds (to which reference has been made earlier) that the review orders of the Competent Officer dated July 10, 1958 and September 8, 1958 were void for want of jurisdiction and must be set aside for that reason. The conduct of the writ petitioners was therefore such as to disentitle them to certiorari, and the High Court erred in ignoring that important aspect of the matter even though it was sufficient for the dismissal of the writ petition. 10. | 1[ds]In order to appreciate the controversy, it will be desirable to examine the facts and circumstances of the case with due regard to the provisions of the ActIt has not been disputed before us, and is in fact beyond challenge, that the property in question was "composite property" within the meaning of section 2(d) of the Act because the one-third undivided share of Mohammed Salamat Ullah Khans sons Karamat Ullah Khan, Dilawar Ullah Khan, Muzaf far Ullah Khan and Tahir Khan, who had migrated to Pakistan in 1940, had been declared to be evacuee property and had vested in the Custodian underthe Administration of Evacuee Property Act, 1950, while the remaining share belong ed to the other two brothers of Mohammed Salamat Ullah Khan who were non-evacuees. The evacuee interest in the property was therefore confined to that one-third share in the entire property being the right, title and interest of the evacuees therein within the meaning of clause (e) of section 2. It is equally clear that it was permissible for the non-evacuee shareholders having the remaining two-third share in the property to make a claim in respect of it within the meaning of clause (b) of section 2 of the Act in their capacity as co-sharers of the evacuees in the property.Section 5 of the Act gives jurisdiction to the Competent Officer to decide any claim relating to a composite property, and section 6 requires that for the purpose of determining or separating the evacuee interest in a composite property, the Competent Officer may issue a general, and also an individual notice on every person who in his opinion may have a claim in that prope rty to submit claims in the prescribed form and manner. It will be remembered that as the property was listed as "composite property", notices were issued under section 6 of the Act and the individual notices were served on Latafat Ullah Kha n and Sharafat Ullah Khan and their acknowledgments were placed on the record. No claim was however filed under section 7 of the Act claiming any interest in the composite property. Section 8 of the Act provides that on receipt of a claim under section 7, the Competent Officer shall hold an inquiry into the claim and give his decision thereon, while sections 9 and 10 deal with reliefs in respect of mortgaged property of evacuees and separation of the interest of evacuees from those of the claimants in a composite property. Section 11 provides for the vesting of evacuee interest in the custodian where a notice under section 6 is issued in respect of any property but no claim is filed. As no statement of claim was received by the Competent Officer, the evacuee interest in the "composite property" vested in the Custodian and the Competent Officer accordingly took a decision to that effect on August 31, 1955. It was a lawful order under section 8 read with section 11 of the ActSection 14 provides that any person aggrieved by an order of the Competent Officer made under Section 8 may prefer an appeal to the Appellate Officer within 60 days of that order, and it would then be for the Appellate Officer to confirm, vary or reverse the order appealed from and to pass such orders as he deems fit. Section 15 of the Act further provides that the Appellate Officer may at any time call for the record of any proceeding in which the Competent Officer has passed an order for the purpose of satisfying himself as to the legality or propriety thereof and to pass such order in relation thereto as he thinks fit. This appellate and revisional jurisdiction was therefore available to the writ petitioners if they felt dissatisfied with the order of the Competent Officer dated August 31, 1955, but it is admitted before us that they did not avail of it. Section 18 of the Act therefore came into operation which provides as. Save as otherwise expressly provided in this Act, every order made by any appellate officer or competent officer shall be final and shall not be called in question in any Court by way of an appeal or revision or in any original suit, application or execution proceedings."So when the aggrieved persons did not invoke the appellate or revisional jurisdiction of the Appellate Officer, the order of the Competent Officer dated August 31, 1955 , became final by virtue of section 18 and could not be called in question thereafterIt will be recalled that, as has been mentioned, the property was again reported to be of a composite nature, and fresh notices were inadvertently issued to t he non-evacuee shareholders. They were personally served on Mohammed Latafat Ullah Khan, and on Mohammed Shamfat Ullah Khan through his son Shaukat Ullah Khan, on February 25, 1956, but no claim was filed by anyone in spite of that second opportunity, and a vesting order was once again made under section 11 of the Act on March 23, 1957. No appeal or revision application was filed against that order also, under sections 14 and 15 of the Act. In fact it was after a lapse of some 2 1/2 years from the order dated August 31, 1955, and 1 year from March 23, 1957 that Mohammed Latafat Ullah Khan and the four sons of Mohammed Sharafat Ullah Khan made an application for "restoration" of their claims on March 12, 1958. By t hen the order dated August 31, 1955 had become final and binding under section 18 and it was not permissible for any one to reopen it merely on the basis of a "restoration" application and to review the earlier order dated August 31, 1955 in disregard of the statutory bar of that section. It is well settled that review is a creature of statute and cannot be entertained in the absence of a provision therefor. It will be enough to make a reference in this connection to the decision of this Court in Harbhajan Singh v. Karam Singh and others(1) which approved the earlier Privy Council decision in Baijnath Ram Goenka v. Nand Kumar Singh(2) the decision in Anantharaju Shetty v. Appu Hegde(3) and reiterated the decision in Patel Chunib hai Dajibhai etc. v. Naravanrao Khanderao Jambekar and another(4). The orders of the Competent Officer dated March 15, 1958 and May 12, 1958 in favour of the writ petitioners setting aside the vesting order dated August 31, 1955, and tra nsferring the evacuee interest in the property to Mohammed Latafat Ullah Khan and the four sons of Mohammed Sharafat Ullah Khan for Rs. 5000/- were therefore without jurisdiction. As has been stated, the Assistant Custodian felt aggrieved against th e orders of the Competent Officer dated March 15, 1958, and May 12, 1958, and made application soon after, on June 11, 1958, and July 10, 1958, for review, and the Competent Officer allowed them by his orders dated July 10, 1958 and September 8, 1958. The order dated July 10, 1958 was not of much consequence. The fact therefore remains that the two sets of orders of the Competent Officer, namely, the first set of the two orders dated March 15, 1958 and May 12, 1958, and the second set consisting of the orders dated July 10, 1958 and September 8, 1958 suffered from the same vice of lack of jurisdiction and were equally void.This fact was specifically brought to the notice of the High Court, but it ruled it out by merely saying that the "fact that the petitioners had wrongly filed a review application which was allowed by the Competent Officer would not confer jurisdiction on the Competent Officer to review his orders if the statute had not made any provision for it." T hat was begging the question, and could not possibly meet the objection of the present appellants. If we may say so with respect, what the High Court failed to appreciate was that while it was true that want of jurisdiction to review the order of August 31, 1955, could not be cured by waiver, it would not necessarily follow that the Court was obliged to grant certiorari at the instance of a party whose conduct was such as to disentitle it for it. The High Court was exercising its extraordinary jurisdiction and the conduct of the petitioners was a matter of considerable importance. The High Court did not take due notice of the fact that the writ petitioners (or their predecessors-in- interest) had allowed the passing of the order dated August 31, 1955 in spite of the individual notices which were issued under section 7, and did not deserve any relief. It did not notice the further fact that when the order dated August 31, 1955 had become final because of the fail ure to file an appeal or an application for revision, it was not permissible under the law, in view of the specific bar of section 18, for the writ petitioners to move a "restoration" application on March 12, 1958 for its review and to obtain its reversal by the Competent Officers orders dated March 15, 1958 and May 12, 1958, and to obtain a wholly beneficial order for the transfer of the one-third evacuee interest to them on payment of Rs. 5000/-. They, nevertheless, did so. So when the writ petitioners had themselves unlawfully invoked the review jurisdiction of the Competent Officer, which did not exist, to their advantage, and to the disadvantage of the present appellant, by their application dated March 12, 1958, they could not be heard to say, when the Department invoked the self-same jurisdiction on two important grounds (to which reference has been made earlier) that the review orders of the Competent Officer dated July 10, 1958 and September 8, 1958 were void for want of jurisdiction and must be set aside for that reason. The conduct of the writ petitioners was therefore such as to disentitle them to certiorari, and the High Court erred in ignoring that important aspect of the matter even though it was sufficient for the dismissal of the writ petition. | 1 | 3,343 | 1,860 | ### Instruction:
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Court by way of an appeal or revision or in any original suit, application or execution proceedings." So when the aggrieved persons did not invoke the appellate or revisional jurisdiction of the Appellate Officer, the order of the Competent Officer dated August 31, 1955 , became final by virtue of section 18 and could not be called in question thereafter. 9. It will be recalled that, as has been mentioned, the property was again reported to be of a composite nature, and fresh notices were inadvertently issued to t he non-evacuee shareholders. They were personally served on Mohammed Latafat Ullah Khan, and on Mohammed Shamfat Ullah Khan through his son Shaukat Ullah Khan, on February 25, 1956, but no claim was filed by anyone in spite of that second opportunity, and a vesting order was once again made under section 11 of the Act on March 23, 1957. No appeal or revision application was filed against that order also, under sections 14 and 15 of the Act. In fact it was after a lapse of some 2 1/2 years from the order dated August 31, 1955, and 1 year from March 23, 1957 that Mohammed Latafat Ullah Khan and the four sons of Mohammed Sharafat Ullah Khan made an application for "restoration" of their claims on March 12, 1958. By t hen the order dated August 31, 1955 had become final and binding under section 18 and it was not permissible for any one to reopen it merely on the basis of a "restoration" application and to review the earlier order dated August 31, 1955 in disregard of the statutory bar of that section. It is well settled that review is a creature of statute and cannot be entertained in the absence of a provision therefor. It will be enough to make a reference in this connection to the decision of this Court in Harbhajan Singh v. Karam Singh and others(1) which approved the earlier Privy Council decision in Baijnath Ram Goenka v. Nand Kumar Singh(2) the decision in Anantharaju Shetty v. Appu Hegde(3) and reiterated the decision in Patel Chunib hai Dajibhai etc. v. Naravanrao Khanderao Jambekar and another(4). The orders of the Competent Officer dated March 15, 1958 and May 12, 1958 in favour of the writ petitioners setting aside the vesting order dated August 31, 1955, and tra nsferring the evacuee interest in the property to Mohammed Latafat Ullah Khan and the four sons of Mohammed Sharafat Ullah Khan for Rs. 5000/- were therefore without jurisdiction. As has been stated, the Assistant Custodian felt aggrieved against th e orders of the Competent Officer dated March 15, 1958, and May 12, 1958, and made application soon after, on June 11, 1958, and July 10, 1958, for review, and the Competent Officer allowed them by his orders dated July 10, 1958 and September 8, 1958. The order dated July 10, 1958 was not of much consequence. The fact therefore remains that the two sets of orders of the Competent Officer, namely, the first set of the two orders dated March 15, 1958 and May 12, 1958, and the second set consisting of the orders dated July 10, 1958 and September 8, 1958 suffered from the same vice of lack of jurisdiction and were equally void.This fact was specifically brought to the notice of the High Court, but it ruled it out by merely saying that the "fact that the petitioners had wrongly filed a review application which was allowed by the Competent Officer would not confer jurisdiction on the Competent Officer to review his orders if the statute had not made any provision for it." T hat was begging the question, and could not possibly meet the objection of the present appellants. If we may say so with respect, what the High Court failed to appreciate was that while it was true that want of jurisdiction to review the order of August 31, 1955, could not be cured by waiver, it would not necessarily follow that the Court was obliged to grant certiorari at the instance of a party whose conduct was such as to disentitle it for it. The High Court was exercising its extraordinary jurisdiction and the conduct of the petitioners was a matter of considerable importance. The High Court did not take due notice of the fact that the writ petitioners (or their predecessors-in- interest) had allowed the passing of the order dated August 31, 1955 in spite of the individual notices which were issued under section 7, and did not deserve any relief. It did not notice the further fact that when the order dated August 31, 1955 had become final because of the fail ure to file an appeal or an application for revision, it was not permissible under the law, in view of the specific bar of section 18, for the writ petitioners to move a "restoration" application on March 12, 1958 for its review and to obtain its reversal by the Competent Officers orders dated March 15, 1958 and May 12, 1958, and to obtain a wholly beneficial order for the transfer of the one-third evacuee interest to them on payment of Rs. 5000/-. They, nevertheless, did so. So when the writ petitioners had themselves unlawfully invoked the review jurisdiction of the Competent Officer, which did not exist, to their advantage, and to the disadvantage of the present appellant, by their application dated March 12, 1958, they could not be heard to say, when the Department invoked the self-same jurisdiction on two important grounds (to which reference has been made earlier) that the review orders of the Competent Officer dated July 10, 1958 and September 8, 1958 were void for want of jurisdiction and must be set aside for that reason. The conduct of the writ petitioners was therefore such as to disentitle them to certiorari, and the High Court erred in ignoring that important aspect of the matter even though it was sufficient for the dismissal of the writ petition. 10.
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in question in any Court by way of an appeal or revision or in any original suit, application or execution proceedings."So when the aggrieved persons did not invoke the appellate or revisional jurisdiction of the Appellate Officer, the order of the Competent Officer dated August 31, 1955 , became final by virtue of section 18 and could not be called in question thereafterIt will be recalled that, as has been mentioned, the property was again reported to be of a composite nature, and fresh notices were inadvertently issued to t he non-evacuee shareholders. They were personally served on Mohammed Latafat Ullah Khan, and on Mohammed Shamfat Ullah Khan through his son Shaukat Ullah Khan, on February 25, 1956, but no claim was filed by anyone in spite of that second opportunity, and a vesting order was once again made under section 11 of the Act on March 23, 1957. No appeal or revision application was filed against that order also, under sections 14 and 15 of the Act. In fact it was after a lapse of some 2 1/2 years from the order dated August 31, 1955, and 1 year from March 23, 1957 that Mohammed Latafat Ullah Khan and the four sons of Mohammed Sharafat Ullah Khan made an application for "restoration" of their claims on March 12, 1958. By t hen the order dated August 31, 1955 had become final and binding under section 18 and it was not permissible for any one to reopen it merely on the basis of a "restoration" application and to review the earlier order dated August 31, 1955 in disregard of the statutory bar of that section. It is well settled that review is a creature of statute and cannot be entertained in the absence of a provision therefor. It will be enough to make a reference in this connection to the decision of this Court in Harbhajan Singh v. Karam Singh and others(1) which approved the earlier Privy Council decision in Baijnath Ram Goenka v. Nand Kumar Singh(2) the decision in Anantharaju Shetty v. Appu Hegde(3) and reiterated the decision in Patel Chunib hai Dajibhai etc. v. Naravanrao Khanderao Jambekar and another(4). The orders of the Competent Officer dated March 15, 1958 and May 12, 1958 in favour of the writ petitioners setting aside the vesting order dated August 31, 1955, and tra nsferring the evacuee interest in the property to Mohammed Latafat Ullah Khan and the four sons of Mohammed Sharafat Ullah Khan for Rs. 5000/- were therefore without jurisdiction. As has been stated, the Assistant Custodian felt aggrieved against th e orders of the Competent Officer dated March 15, 1958, and May 12, 1958, and made application soon after, on June 11, 1958, and July 10, 1958, for review, and the Competent Officer allowed them by his orders dated July 10, 1958 and September 8, 1958. The order dated July 10, 1958 was not of much consequence. The fact therefore remains that the two sets of orders of the Competent Officer, namely, the first set of the two orders dated March 15, 1958 and May 12, 1958, and the second set consisting of the orders dated July 10, 1958 and September 8, 1958 suffered from the same vice of lack of jurisdiction and were equally void.This fact was specifically brought to the notice of the High Court, but it ruled it out by merely saying that the "fact that the petitioners had wrongly filed a review application which was allowed by the Competent Officer would not confer jurisdiction on the Competent Officer to review his orders if the statute had not made any provision for it." T hat was begging the question, and could not possibly meet the objection of the present appellants. If we may say so with respect, what the High Court failed to appreciate was that while it was true that want of jurisdiction to review the order of August 31, 1955, could not be cured by waiver, it would not necessarily follow that the Court was obliged to grant certiorari at the instance of a party whose conduct was such as to disentitle it for it. The High Court was exercising its extraordinary jurisdiction and the conduct of the petitioners was a matter of considerable importance. The High Court did not take due notice of the fact that the writ petitioners (or their predecessors-in- interest) had allowed the passing of the order dated August 31, 1955 in spite of the individual notices which were issued under section 7, and did not deserve any relief. It did not notice the further fact that when the order dated August 31, 1955 had become final because of the fail ure to file an appeal or an application for revision, it was not permissible under the law, in view of the specific bar of section 18, for the writ petitioners to move a "restoration" application on March 12, 1958 for its review and to obtain its reversal by the Competent Officers orders dated March 15, 1958 and May 12, 1958, and to obtain a wholly beneficial order for the transfer of the one-third evacuee interest to them on payment of Rs. 5000/-. They, nevertheless, did so. So when the writ petitioners had themselves unlawfully invoked the review jurisdiction of the Competent Officer, which did not exist, to their advantage, and to the disadvantage of the present appellant, by their application dated March 12, 1958, they could not be heard to say, when the Department invoked the self-same jurisdiction on two important grounds (to which reference has been made earlier) that the review orders of the Competent Officer dated July 10, 1958 and September 8, 1958 were void for want of jurisdiction and must be set aside for that reason. The conduct of the writ petitioners was therefore such as to disentitle them to certiorari, and the High Court erred in ignoring that important aspect of the matter even though it was sufficient for the dismissal of the writ petition.
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Punjab Dairy Development Board Vs. Cepham Milk Specialities Ltd. | 620] repugnancy must exist as a fact and not as a mere possibility. In the absence of any specific order or provision the question of repugnancy cannot arise. Admittedly, the Central Legislation levies no cess or fee. Thus, there can be no question of repugnancy if a fee were to be levied. 13. While the High Court was wrong in these conclusions, the question would still remains whether the levy was a tax or a fee. In the view which we are taking, and which is set out hereinafter, it is not necessary for us to decide this question. We have the question open. 14. We find that the High Court was, however, right in concluding that the levy, even if it be a fee, is arbitrary and discriminatory. The levy is ostensibly for the purpose of co-ordination between organizations engaged in dairy sector and to develop modern dairy farming technology. However, the levy is on milk plants at the rate of 10 paise per litre of the licenced capacity. The term milk plant has been defined under Section 2(d) to mean a milk handling, processing or manufacturing unit registered under the Milk and Milk Products Order, 1992 of the Government of India. The Order has been issued under the Essential Commodities Act. Under this Order, only milk plants having an installed capacity for handling milk in excess of 10,000 litres per day or milk products in excess of 500 tones per annum require registration. Thus, only such milk plants, i.e. milk plants which have an installed capacity to handle 10,000 litres per day or who produce milk products in excess of 500 per annum have to pay cess. Further, the levy is not on the basis of actual production but on the licenced capacity of their plants. Thus if a milk plant had a licenced capacity of 40,000 litres, even though the actual consumption was only 10,000 litres, they would still have to pay cess at the rate of 10 paise per litre on 40,000 litre. It could not be denied that milk production and consumption vary from month to month and from season to season. Irrespective of such variation and without any regard to the actual production or consumption, the levy is on the installed capacity only. The levy was for the purposes of uplifting the standards of the Dairy Industry. Yet there is no levy on the farmers or co-operative societies, who produces the milk, nor on plants whose installed capacity is less than 10,000 litres per day. No rational explanation could be given as to why the levy was only on these plants. The only explanation given was that these plants could apply for reduction of the installed capacity in case they were not capable of using their entire capacity. It was stated that on such an application being made they would be allowed to reduce their installed capacity. We are not impressed by this explanation. One fails to understand why a milk plant should apply for reducing its capacity. It may consume, as per its capacity in seasons when that quantity of milk is available, but it may not be able to consume, as per its capacity in seasons or at times when milk of that quantity is not available. Further, due to temporary closure of some machines for purposes of repairs or maintenance they maybe consuming less during a particular period. Further, even if there is no production/consumption and even if the plant is shut down the cess would still have to be paid. This would be so even if the closure is for more than six months in any particular year. Irrespective of what their consumption/production is, these plants would have to continue to pay cess at the rate of 10 paise per litre of their installed capacity. We find that such a levy is arbitrary. 15. We also find that the levy is discriminatory. There is no levy on the farmers and co-operative societies, who produce the milk and/or milk plants whose capacity is less than 10,000 litres per day. No explanation is given which justified this discrimination. Faced with this situation, it was submitted that this Court could read down the Act. It was submitted that from the definition of the term milk plant in Section 2(d) of the Act, the words which was registered under the Milk and Milk Products Order, 1992 be deleted. It was submitted that the words licenced capacity in Section 12 be also deleted. It was submitted that it is settled law that wherever it is possible to uphold legislation by reading it down the Court must do so. 16. There can be no dispute with the principle that if possible the provision of the Statute must be saved by, if necessary, reading them down. However, in this case, we are unable to accept this submission. As stated above, the Act has been amended in 2004. This levy is already abolished. At present, the purchase tax is again being levied. For the period during which the Act subsisted, it is not possible for us to read it down inasmuch as it would now affect persons, who never went to Court because during the period it existed it did not apply to them. Such parties are not before Court. We thus see no reason to delete the words as suggested on behalf of the Appellants. 17. It was next submitted that the ground that the Act is discriminatory and violative and, therefore, liable to struck down, has not been taken in the Writ Petitions. We are unable to accept this submission. In our view, the Writ Petitions contain the necessary averments and these have also been met in the reply of the Respondents. 18. Thus, even though the reasoning of the High Court may be erroneous, the ultimate result is that the levy of cess requires to be struck down as being arbitrary and discriminatory. In this view of the matter, we see no reason to interfere. | 0[ds]11. In our view, the law is quite well settled. As the High Court has itself noticed the principles laid down in M/s Kishan Lal Lakhmi Chands case (supra) have been diluted by subsequent decisions. It has been held that the observations in the above case are obiter. This being the position, the High Court was not correct in following the principles laid down in M/s Kishan Lal Lakhmi Chands case (supra)12. Even otherwise we find that the High Court was wrong in concluding that the field was already occupied by a Central Legislation, namely, the Industries (Development and Regulation Act, 195114. We find that the High Court was, however, right in concluding that the levy, even if it be a fee, is arbitrary and discriminatory. The levy is ostensibly for the purpose oforganizations engaged in dairy sector and to develop modern dairy farming technology. However, the levy is on milk plants at the rate of 10 paise per litre of the licenced capacity. The term milk plant has been defined under Section 2(d) to mean a milk handling, processing or manufacturing unit registered under the Milk and Milk Products Order, 1992 of the Government of India. The Order has been issued under the Essential Commodities Act. Under this Order, only milk plants having an installed capacity for handling milk in excess of 10,000 litres per day or milk products in excess of 500 tones per annum require registration. Thus, only such milk plants, i.e. milk plants which have an installed capacity to handle 10,000 litres per day or who produce milk products in excess of 500 per annum have to pay cess. Further, the levy is not on the basis of actual production but on the licenced capacity of their plants. Thus if a milk plant had a licenced capacity of 40,000 litres, even though the actual consumption was only 10,000 litres, they would still have to pay cess at the rate of 10 paise per litre on 40,000 litre. It could not be denied that milk production and consumption vary from month to month and from season to season. Irrespective of such variation and without any regard to the actual production or consumption, the levy is on the installed capacity only. The levy was for the purposes of uplifting the standards of the Dairy Industry. Yet there is no levy on the farmers ore societies, who produces the milk, nor on plants whose installed capacity is less than 10,000 litres per day. No rational explanation could be given as to why the levy was only on these plants. The only explanation given was that these plants could apply for reduction of the installed capacity in case they were not capable of using their entire capacity. It was stated that on such an application being made they would be allowed to reduce their installed capacity. We are not impressed by this explanation. One fails to understand why a milk plant should apply for reducing its capacity. It may consume, as per its capacity in seasons when that quantity of milk is available, but it may not be able to consume, as per its capacity in seasons or at times when milk of that quantity is not available. Further, due to temporary closure of some machines for purposes of repairs or maintenance they maybe consuming less during a particular period. Further, even if there is no production/consumption and even if the plant is shut down the cess would still have to be paid. This would be so even if the closure is for more than six months in any particular year. Irrespective of what their consumption/production is, these plants would have to continue to pay cess at the rate of 10 paise per litre of their installed capacity. We find that such a levy is arbitrary15. We also find that the levy is discriminatory. There is no levy on the farmers ande societies, who produce the milk and/or milk plants whose capacity is less than 10,000 litres per day. No explanation is given which justified this discrimination. Faced with this situation, it was submitted that this Court could read down the Act. It was submitted that from the definition of the term milk plant in Section 2(d) of the Act, the words which was registered under the Milk and Milk Products Order, 1992 be deleted. It was submitted that the words licenced capacity in Section 12 be also deleted. It was submitted that it is settled law that wherever it is possible to uphold legislation by reading it down the Court must do so16. There can be no dispute with the principle that if possible the provision of the Statute must be saved by, if necessary, reading them down. However, in this case, we are unable to accept this submission. As stated above, the Act has been amended in 2004. This levy is already abolished. At present, the purchase tax is again being levied. For the period during which the Act subsisted, it is not possible for us to read it down inasmuch as it would now affect persons, who never went to Court because during the period it existed it did not apply to them. Such parties are not before Court. We thus see no reason to delete the words as suggested on behalf of the Appellants18. Thus, even though the reasoning of the High Court may be erroneous, the ultimate result is that the levy of cess requires to be struck down as being arbitrary and discriminatory. In this view of the matter, we see no reason to interfere. | 0 | 3,376 | 1,037 | ### Instruction:
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620] repugnancy must exist as a fact and not as a mere possibility. In the absence of any specific order or provision the question of repugnancy cannot arise. Admittedly, the Central Legislation levies no cess or fee. Thus, there can be no question of repugnancy if a fee were to be levied. 13. While the High Court was wrong in these conclusions, the question would still remains whether the levy was a tax or a fee. In the view which we are taking, and which is set out hereinafter, it is not necessary for us to decide this question. We have the question open. 14. We find that the High Court was, however, right in concluding that the levy, even if it be a fee, is arbitrary and discriminatory. The levy is ostensibly for the purpose of co-ordination between organizations engaged in dairy sector and to develop modern dairy farming technology. However, the levy is on milk plants at the rate of 10 paise per litre of the licenced capacity. The term milk plant has been defined under Section 2(d) to mean a milk handling, processing or manufacturing unit registered under the Milk and Milk Products Order, 1992 of the Government of India. The Order has been issued under the Essential Commodities Act. Under this Order, only milk plants having an installed capacity for handling milk in excess of 10,000 litres per day or milk products in excess of 500 tones per annum require registration. Thus, only such milk plants, i.e. milk plants which have an installed capacity to handle 10,000 litres per day or who produce milk products in excess of 500 per annum have to pay cess. Further, the levy is not on the basis of actual production but on the licenced capacity of their plants. Thus if a milk plant had a licenced capacity of 40,000 litres, even though the actual consumption was only 10,000 litres, they would still have to pay cess at the rate of 10 paise per litre on 40,000 litre. It could not be denied that milk production and consumption vary from month to month and from season to season. Irrespective of such variation and without any regard to the actual production or consumption, the levy is on the installed capacity only. The levy was for the purposes of uplifting the standards of the Dairy Industry. Yet there is no levy on the farmers or co-operative societies, who produces the milk, nor on plants whose installed capacity is less than 10,000 litres per day. No rational explanation could be given as to why the levy was only on these plants. The only explanation given was that these plants could apply for reduction of the installed capacity in case they were not capable of using their entire capacity. It was stated that on such an application being made they would be allowed to reduce their installed capacity. We are not impressed by this explanation. One fails to understand why a milk plant should apply for reducing its capacity. It may consume, as per its capacity in seasons when that quantity of milk is available, but it may not be able to consume, as per its capacity in seasons or at times when milk of that quantity is not available. Further, due to temporary closure of some machines for purposes of repairs or maintenance they maybe consuming less during a particular period. Further, even if there is no production/consumption and even if the plant is shut down the cess would still have to be paid. This would be so even if the closure is for more than six months in any particular year. Irrespective of what their consumption/production is, these plants would have to continue to pay cess at the rate of 10 paise per litre of their installed capacity. We find that such a levy is arbitrary. 15. We also find that the levy is discriminatory. There is no levy on the farmers and co-operative societies, who produce the milk and/or milk plants whose capacity is less than 10,000 litres per day. No explanation is given which justified this discrimination. Faced with this situation, it was submitted that this Court could read down the Act. It was submitted that from the definition of the term milk plant in Section 2(d) of the Act, the words which was registered under the Milk and Milk Products Order, 1992 be deleted. It was submitted that the words licenced capacity in Section 12 be also deleted. It was submitted that it is settled law that wherever it is possible to uphold legislation by reading it down the Court must do so. 16. There can be no dispute with the principle that if possible the provision of the Statute must be saved by, if necessary, reading them down. However, in this case, we are unable to accept this submission. As stated above, the Act has been amended in 2004. This levy is already abolished. At present, the purchase tax is again being levied. For the period during which the Act subsisted, it is not possible for us to read it down inasmuch as it would now affect persons, who never went to Court because during the period it existed it did not apply to them. Such parties are not before Court. We thus see no reason to delete the words as suggested on behalf of the Appellants. 17. It was next submitted that the ground that the Act is discriminatory and violative and, therefore, liable to struck down, has not been taken in the Writ Petitions. We are unable to accept this submission. In our view, the Writ Petitions contain the necessary averments and these have also been met in the reply of the Respondents. 18. Thus, even though the reasoning of the High Court may be erroneous, the ultimate result is that the levy of cess requires to be struck down as being arbitrary and discriminatory. In this view of the matter, we see no reason to interfere.
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11. In our view, the law is quite well settled. As the High Court has itself noticed the principles laid down in M/s Kishan Lal Lakhmi Chands case (supra) have been diluted by subsequent decisions. It has been held that the observations in the above case are obiter. This being the position, the High Court was not correct in following the principles laid down in M/s Kishan Lal Lakhmi Chands case (supra)12. Even otherwise we find that the High Court was wrong in concluding that the field was already occupied by a Central Legislation, namely, the Industries (Development and Regulation Act, 195114. We find that the High Court was, however, right in concluding that the levy, even if it be a fee, is arbitrary and discriminatory. The levy is ostensibly for the purpose oforganizations engaged in dairy sector and to develop modern dairy farming technology. However, the levy is on milk plants at the rate of 10 paise per litre of the licenced capacity. The term milk plant has been defined under Section 2(d) to mean a milk handling, processing or manufacturing unit registered under the Milk and Milk Products Order, 1992 of the Government of India. The Order has been issued under the Essential Commodities Act. Under this Order, only milk plants having an installed capacity for handling milk in excess of 10,000 litres per day or milk products in excess of 500 tones per annum require registration. Thus, only such milk plants, i.e. milk plants which have an installed capacity to handle 10,000 litres per day or who produce milk products in excess of 500 per annum have to pay cess. Further, the levy is not on the basis of actual production but on the licenced capacity of their plants. Thus if a milk plant had a licenced capacity of 40,000 litres, even though the actual consumption was only 10,000 litres, they would still have to pay cess at the rate of 10 paise per litre on 40,000 litre. It could not be denied that milk production and consumption vary from month to month and from season to season. Irrespective of such variation and without any regard to the actual production or consumption, the levy is on the installed capacity only. The levy was for the purposes of uplifting the standards of the Dairy Industry. Yet there is no levy on the farmers ore societies, who produces the milk, nor on plants whose installed capacity is less than 10,000 litres per day. No rational explanation could be given as to why the levy was only on these plants. The only explanation given was that these plants could apply for reduction of the installed capacity in case they were not capable of using their entire capacity. It was stated that on such an application being made they would be allowed to reduce their installed capacity. We are not impressed by this explanation. One fails to understand why a milk plant should apply for reducing its capacity. It may consume, as per its capacity in seasons when that quantity of milk is available, but it may not be able to consume, as per its capacity in seasons or at times when milk of that quantity is not available. Further, due to temporary closure of some machines for purposes of repairs or maintenance they maybe consuming less during a particular period. Further, even if there is no production/consumption and even if the plant is shut down the cess would still have to be paid. This would be so even if the closure is for more than six months in any particular year. Irrespective of what their consumption/production is, these plants would have to continue to pay cess at the rate of 10 paise per litre of their installed capacity. We find that such a levy is arbitrary15. We also find that the levy is discriminatory. There is no levy on the farmers ande societies, who produce the milk and/or milk plants whose capacity is less than 10,000 litres per day. No explanation is given which justified this discrimination. Faced with this situation, it was submitted that this Court could read down the Act. It was submitted that from the definition of the term milk plant in Section 2(d) of the Act, the words which was registered under the Milk and Milk Products Order, 1992 be deleted. It was submitted that the words licenced capacity in Section 12 be also deleted. It was submitted that it is settled law that wherever it is possible to uphold legislation by reading it down the Court must do so16. There can be no dispute with the principle that if possible the provision of the Statute must be saved by, if necessary, reading them down. However, in this case, we are unable to accept this submission. As stated above, the Act has been amended in 2004. This levy is already abolished. At present, the purchase tax is again being levied. For the period during which the Act subsisted, it is not possible for us to read it down inasmuch as it would now affect persons, who never went to Court because during the period it existed it did not apply to them. Such parties are not before Court. We thus see no reason to delete the words as suggested on behalf of the Appellants18. Thus, even though the reasoning of the High Court may be erroneous, the ultimate result is that the levy of cess requires to be struck down as being arbitrary and discriminatory. In this view of the matter, we see no reason to interfere.
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State Of Bihar Vs. Kalyanpur Cements Ltd | wrong. The third reason given is that the State-level Empowered Committee (SLEC) had not approved the rehabilitation package. This clearly is against the record which has been examined by us in the earlier part of the judgment. Not only the exemption was recommended by the competent Committees under the Industrial Policy, 1995, emphatic assurances were given that the notification will be issued within a very short period. The fourth reason with regard to the resolution passed at the Chief Ministers Conference is equally extraneous to the issue. The Company had made the application for exemption at a much prior time in 1997. No material has been placed either before the High Court or before this Court about the legal enforceability of the resolutions passed at the Chief Ministers Conference. In our opinion the decision making process which culminated in passing of the orders dated 06.01.2001 and 05.03.2001 is seriously flawed, therefore, the same have been justifiably quashed by the High Court. 74. We may now consider the submissions made in IA No.3 of 2006. On 18.11.2002, this Court passed the following order: As an interim arrangement during the pendency of this appeal, with a view to protect the interests of either side, we direct the respondent to deposit an amount equivalent to the sale tax payable by it as and when it becomes due in an interest hearing account in a nationalized bank. This amount and the amount accused during the pendency of the appeal, shall not be withdrawn by other side. The amount no kept in deposit shall become payable to the party which ultimately succeeds in this appeal. The appellants are directed to issue the exemption orders and on receipt of such order, the above said amount shall be deposited. The issuance of the exemption order is without prejudice to the case of the parties in this appeal. The I.A. in the disposed of. 75. It is not in dispute for us that pursuant to the aforesaid directions the appellant has issued the Notification No. SO-174 dated 18.10.2004 granting exemption to the company. The notification was to have effect for five years from the date of publication in the official gazette or till the disposal of special leave petition No.5181 of 2002, whichever is earlier. The notification was issued subject to the terms and conditions notice earlier in the judgment. Under the aforesaid terms and conditions, the company was to deposit the tax payable per month with an interest bearing (wrongly typed in the order as hearing) account in a nationalized bank. The company was also to provide information of the bank account to the circle where it is registered. Details regarding amount of payment made each month was also to be supplied to the appellant. 76. It is now the submission of the learned counsel for the appellant that the company has neither complied with the order passed by this Court on 18.11.2002 nor the conditions stipulated in the notification dated 16.10.2004. It is further submitted that prayers in the application were to recall the order dated 18.11.2002 and to stay the operation of a judgment under appeal dated 24.04.2002. However the application was not finally disposed of, even through the pleadings were complete. 77. During the pendency of the proceedings there have been some further development, which will now need to be taken into consideration by the Court, to do justice between the parties. 78. During the interregnum the company has been collecting the amount equivalent to the tax from the consumers. According to Dr. Rajiv Dhawan, Mr. Dwivedi during this period the company has collected more than Rs.60 crores on the sale of cement by virtue of the directions issued by this Court in the Order dated 18.11.2002. In view of the law laid down by this Court in Amrit Banaspati (supra) the company cannot be permitted to retain the amount collected from the customers. This would amount unjust enrichment. Therefore, a direction is required to be issued that the amount deposited by the company with the bank pursuant to the orders of this Court be released to the appellant State. On the other hand, Mr. Parshad has submitted that the delay in issuance of the exemption Notification by the State has crippled the Company financially. Even then the Company is trying to revive itself through financial restructuring. The survival of the Company now depends on the approval of the Financial Restructuring Package prepared by the respondent No.2. This package has been submitted to the Chief Minister of Bihar which is still on the consideration of the Government. With regard to the non- deposit of amount equivalent to the tax due, Mr. Parshad reiterated that the Company had made bona fide efforts, but was unable to deposit the amount due to its `sickness. On the one hand the revised rehabilitation package is kept under consideration, on the other the appellants seeks the vacation of the order dated 18.11.2002. The application, according to the learned senior counsel, deserves outright dismissal. 79. We have considered the submissions made by the learned counsel. It would be not possible to accept the submissions of Mr. Parshad that in view of the financial condition of the company it may be permitted to retain the amount collected under the orders of this Court. The amount was collected from the consumer to offset the tax liability. Such amount cannot be permitted to be retained by the company. In Amrit Banaspati case (supra) it has been held that exemption and refund of tax are two different legal and distinct concepts. The objective of the exemption is to grant incentive to encourage industrialization. It is to enable the industry to compete in the market. On the other hand, refund of tax is made only when it has been realized illegally or contrary to the provisions of law. Tax lawfully levied and realized cannot be refunded. In view of the settled position of the law, we decline to accept the suggestion made by Mr. Parshad. | 1[ds]23. We have considered the detailed facts and relevant documents which are on the record. However, in our opinion, before we consider the submissions made on the factual situation of this case, it would be appropriate to consider the primary issue as to whether the Company could have invoked the principle of `promissory estoppel in support of its claimn that the doctrine of promissory estoppel has been recognized and enforced in the Courts in England for a considerable period of time. The principle of `promissory estoppel was stated by Denning, J in theCentral London Property Trust Ltd. v. High Trees House, Ltd. 1956) 1 All ER. In this matter the landlords had let a new block of flats in 1957 to the tenants on a9 lease at a ground rent of 2500 (Pound Sterling). However, in view of war time conditions and without consideration, as a result of discussions, an arrangement was made between the parties to reduce the ground rent to 1,250 for the years 1941, 1942, 1943 and 1944 the tenants paid the reduced rent. At the end of the war in September, 1945, the landlord, however, claimed that the original ground rent reserved under the lease had to be paid. The landlord also claimed arrears for the years when the reduced rent was paid in the sum of 7916. No payment was received. The landlord, therefore, brought an action to test the proposition of law. The Court notices the plea of the tenant as followsThe tenants said first that the reduction of 1,250 was to apply throughout the term ofe years, and that the reduced rent was payable during the whole of that time. Alternatively, they said that was payable up to Sept.24, 1945, when the increased rent would start. Upon consideration of the entire issue, it is observed by Denning, J as follows:If I consider this matter without regard to recent developments in the law there is no doubt that the whole claim must succeedAs to estoppel, this representation with reference to reducing the rent was not a representation of existing fact, which is the essence of common law estoppel; it was a representation in effect as to the futurea representation that the rent would not be enforced at the full rate but only at the reduced rate........ So at common law it seems to me there would be no answer to the whole claim.What, then, is the position in view of developments in the law in recent years? The law has not been standing still even sinceJorden v. Money (1854) (5 HL Cas.. There has been a series of decisions over the last fifty years which, although said to be cases of estoppel, are not really such. They are cases or promises which were intended to create legal relations and which, in the knowledge of the person making the promise, were going to be acted on by the party to whom the promise was made, and have been so acted on. In such cases the Courts have said these promises must be honouredI am satisfied that the promise was understood by all parties only to apply in the conditions prevailing at the time of the flats partially let, and the promise did not extend any further than that25. The doctrine of promissory estoppel as developed in the administrative law of this country has been eloquently explained in Kasinka Trading v. Union of India (1995) 1 SCC 274 by Dr. A.S. Anand, J, in the following words:-11. The doctrine of promissory estoppel or equitable estoppel is well established in the administrative law of the country. To put it simply, the doctrine represents a principle evolved by equity to avoid injustice. The basis of the doctrine is that where any party has by his word or conduct made to the other party an unequivocal promise or representation by word or conduct, which is intended to create legal relations or effect a legal relationship to arise in the future, knowing as well as intending that the representation, assurance or the promise would be acted upon by the other party to whom it has been made and has in fact been so acted upon by the other party, the promise, assurance or representation should be binding on the party making it and that party should not be permitted to go back upon it, if it would be inequitable to allow him to do so, having regard to the dealings, which have taken place or are intended to take place between the parties12. It has been settled by this Court that the doctrine of promissory estoppel is applicable against the Government also particularly where it is necessary to prevent fraud or manifest injustice. The doctrine, however, cannot be pressed into aid to compel the Government or the public authority to carry out a representation or promise which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make. There is preponderance of judicial opinion that to invoke the doctrine of promissory estoppel clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and that bald expressions, without any supporting material, to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine. In our opinion, the doctrine of promissory estoppel cannot be invoked in the abstract and the courts are bound to consider all aspects including the results sought to be achieved and the public good at large, because while considering the applicability of the doctrine, the courts have to do equity and the fundamental principles of equity must for ever be present to the mind of the court, while considering the applicability of the doctrine. The doctrine must yield when the equity so demands if it can be shown having regard to the facts and circumstances of the case that it would be inequitable to hold the Government or the public authority to its promise, assurance or representation26. In our opinion, the aforesaid statement of law covers the submissions of Dr. Dhawan and Mr. Dwivedi that in order to invoke the aforesaid doctrine, it must be established that (a) that a party must make an unequivocal promise or representation by word or conduct to the other party (b) the representation was intended to create legal relations or affect the legal relationship, to arise in the future (c) a clear foundation has to be laid in the petition, with supporting documents (d) it has to be shown that the party invoking the doctrine has altered its position relying on the promise (e) it is possible for the Government to resile from its promise when public interest would be prejudiced if the Government were required to carry out the promise (f) the Court will not apply the doctrine in abstract. However, since the judgments have been cited, we may notice the law laid down therein27. In STO vs. Durga Oil Mills (1998) 1 SCC 572 it was held that Moreover, as it has been noted earlier that the IPR itself had not granted any exemption but had indicated that orders will be issued by various departments for granting the exemptions. The exemption order under Sales Tax could only be issued under Section 6 which could be amended or withdrawn altogether. This is expressly provided by Section 6. If the respondent acted on the basis of a notification issued under Section 6 it should have known that such notification was liable to be amended or rescinded at any point of time, if the Government felt that it was necessary to do so in public interest28. In Bakul Cashew Co. v. STO (1986) 2 SCC 365 In cases of this nature the evidence of representation should be clear and unambiguous. It must be certain to every intent. The statements that are made by ministers at such meetings, such as, let us see, we shall consider the question of granting of exemption sympathetically, we shall get the matter examined, you have a good case for exemption etc. even if true, cannot form the basis for a plea of estoppel29. In Sharma Transport v. Govt. of AP (2002) 2 SCC 188 it is observed that There is preponderance of judicial opinion that to invoke the doctrine of promissory estoppel, clear, sound and positive foundation must be laid in the petition itself by the party invoking the doctrine and that bald expressions, without any supporting material, to the effect that the doctrine is attracted because the party invoking the doctrine has altered its position relying on the assurance of the Government would not be sufficient to press into aid the doctrine30. In Shri Bakul Oil Industries vs. State of Gujarat, this Court held that Viewed from another perspective, it may be noticed that the State Government was under no obligation to grant exemption from sales tax. The appellants could not, therefore, have insisted on the State Government granting exemption to them from payment of sales tax. What consequently follows is that the exemption granted by the Government was only by way of concession. Once this position emerges it goes without saying that a concession can be withdrawn at any time and no time limit can be insisted upon before the concession is withdrawn. The notifications of the Government clearly manifest that the State Government had earlier granted the exemption only by way of concession and subsequently by means of revised notification issued on July 17, 1971, the concession had been withdrawn. As the State Government was under no obligation, in any manner known to law, to grant exemption it was fully within its powers to revoke the exemption by means of a subsequent notification. This is an additional factor militating against the contentions of the appellants31. In Motilal Padampat Sugar Mills Co. Ltd. vs. State of UP (1979) 2 SCC 409 , it is held that we do not think it is necessary, in order to attract the applicability of the doctrine of promissory estoppel, that the promisee, acting in reliance on the promise, should suffer any detriment. What is necessary is only that the promisee should have altered his position in reliance on the promiseBut it is necessary to point out that since the doctrine of promissory estoppel is an equitable doctrine, it must yield when the equity so requires. If it can be shown by the Government that having regard to the facts as they have transpired, it would be inequitable to hold the Government to the promise made by it, the Court would not raise an equity in favour of the promise and enforce the promise against the Govenrment. The doctrine of promissory estoppel would be displaced in such a case because, on the facts, equity would not require that the Government should be held bound by the promise made by it. When the Government is able to show that in view of the facts as have transpired since the making of the promise, public interest would be prejudiced if the Government were required to carry out the promise, the Court would have to balance the public interest in the Government carrying out a promise made to a citizen which has induced the citizen to act upon it and alter his position and the public interest likely to suffer if the promise were required to be carried out by the Government and determine which way the equity lies. It would not be enough for the Government just to say that public interest requires that the Government should not be compelled to carry out the promise or that the public interest would suffer if the Government were required to honour itIn the same paragraph it is further observed that:-24........the Government cannot, as Shah,J., pointed out in the Indo-Afghan Agencies case, claim to be exempt from the liability to carry out the promise on some indefinite and undisclosed ground of necessity or expediency, nor can the Government claim to be the sole judge of its liability and repudiate it on an ex parte appraisement of the circumstances. If the Government wants to resist the liability, it will have to disclose to the Court what are the facts and circumstances on account of which the Government claims to be exempt from the liability and it would be for the Court to decide whether those facts and circumstances are such as to render it inequitable to enforce the liability against the Government. Mere claim of change of policy would not be sufficient to exonerate the Government from the liability: the Government would have to show what precisely is the changed policy and also its reason and justification so that the Court can judge for itself which way the public interest lies and what the equity of the case demands. It is only if the Court is satisfied, on proper interest requires that the Government should not be held bound by the promise but should be free to act unfettered by it, that the court would not act on the mere ipse dixit of the Government, for it is the Court which has to decide and not the Government whether the Government should be held exempt from liability. This is the essence of the rule of lawThe burden would be upon the Government to show that the public interest in the Government acting otherwise than in accordance with the promise is so overwhelming that it would be inequitable to hold the Government bound by the promise and the Court would insist on a highly rigorous standard of proof in the discharge of this burden32. It is further held that Lastly, a proper reading of the observation of the Court clearly shows that what the Court intended to say was that where the Government owes a duty to the public to act differently, promissory estoppel cannot be invoked to prevent the Government from doing so. This proposition is unexceptionable, because where the Government owes a duty to the public to act in a particular manner, and here obviously duty means a course of conduct enjoined by law, the doctrine of promissory estoppel cannot be invoked for preventing the Government from acting in discharge of its duty under the law. This doctrine of promissory estoppel cannot be applied in teeth of an obligation or liability imposed by law33. In DCM Ltd. vs. Union of India (1996) 5 SCC 468 , this Court reiterated that It is well settled that the doctrine of promissory estoppel represents a principle evolved by equity to avoid injustice and, though commonly named promissory estoppel, it is neither in the realm of contract nor in the realm of estoppel. The basis of this doctrine is the inter-position of equity which has always proved to its form, stepped in to mitigate the rigour of strict law. It is equally true that the doctrine of promissory estoppel is not limited in its application only to defence but it can also find a cause of action. This doctrine is applicable against the Government in the exercise of its governmental public or executive functions and the doctrine of executive necessity or freedom of future executive action, cannot be invoked to defeat the applicability of this doctrine. It is further well established that the doctrine of promissory estoppel must yield when the equity so requires. If it can be shown by the Government or public authority that having regard to the facts as they have transpired, it would be unequitable to hold the Government or public authority to the promise or representation made by it, the court would not raise an equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case because on the facts, equity would not require that the Government or public authority should be held bound by the promise or representation made by it34. In Shrijee Sales Corpn. Vs. Union of India (1997) 3 SCC 398 it was held that It is not necessary for us to go into a historical analysis of the case - law relating to promissory estoppel against the Government. Suffice it to say that the principle of promissory estoppel is applicable against the Government but in case there is a supervening public equity, the Government would be allowed to change its stand; it would then be able to withdraw from representation made by it which induced persons to take certain steps which may have gone adverse to the interest of such persons on account of such withdrawal. However, the Court must satisfy itself that such a public interest exits35. In Pawan Alloys & Casting (P) Ltd. v. UP SEB (1997) 7 SCC 251 it is held that (31). The appellants will not be able to enforce the equity by way of promissory estoppel against the Board if it is shown by the Board that public interest required it to withdraw this incentive rebate even prior to the expiry of three years as available to the appellants concerned. It has also to be held that even if such withdrawal of development rebate prior to three years is not based on any overriding public interest, if it is shown that by such premature withdrawal the appellant-promisees would be restored to status quo ante and would be placed in the same position in which they were prior to the grant of such rebate by earlier notifications the appellants would not be entitled to succeed36. In Shreeji Sales Corpn.( supra) it is also held thatHowever, in the present case, there is a supervening public interest and hence it should not be mandatory for the Government to give a notice before withdrawing the exemption37. In Bannari Amman Sugars Ltd. vs. Commercial Tax Officer (2005) 1 SCC 625 it is observed that We find no substance in the plea that before a policy decision is taken to amend or alter the promise indicated in any particular notification, the beneficiary was to be granted an opportunity of hearing. Such a plea is clearly unsustainable. While taking policy decision, the Government is not required to hear the persons who have been granted the benefit which is sought to be withdrawn38. In Rom Industries Ltd. vs. State of J&K, this Court held thatWe are not prepared to hold that the government policy by itself could give rise to any promissory estoppel in favour of the appellants against the respondents since the policy itself made it absolutely clear that if would come into effect only on appropriate notification being issued. The notification was issued in exercise of the admitted powers of the State Government under the State General Sales Tax Act. The State Government having power and competent to grant the exemption was equally empowered to withdraw it. As we have also noticed there was nothing either in the notification or in the policy which provided that the Negative List would not be amended or altered. On the contrary clause (vii) of para 7 to GO No.10 of 1995 expressly reserved the Governments right to amend the Negative List. The right if any of the appellants was a precarious one and could not found a claim for promissory estoppel52. The Company applied to the State Government on 21.11.1997 for grant of sales tax exemption under the Industrial Policy, 1995. Even though the Company was entitled under the aforesaid Policy to exemption for 8 years, it made an application only for 5 years exemption. This request of the Company was considered by the State-level Committee on Rehabilitation in a meeting held on 07.01.1998. This was attended by the senior Officers of the State Government, representatives of the financial Institutions and the CompanyIt was observed as follows:-It was felt that the Company is potential sick unit and is fit for consideration for exemption from payment of Sales Tax for a period of 5 years from 1.1.1998The Committee recommended that as per the provision of Industrial Policy 1995 the Sales Tax exemption on finished products can be granted to M/s. Kalyanpur Cement Ltd. for a period of five years from 1.1.1998 to 31.12.2002 to improve liquidity of the Company for its rehabilitation and sound financial position and decided to put up the case in the meeting of the High Empowered Committee under the Chairmanship of the Chief Secretary for final decision53. In a meeting held on 23.01.1998 it was noticed that the Company has been provided the facility of deferment of commercial taxes on two earlier occasions. The deferred amount is being repaid even though payment of the unit is not up-to-date. It was also accepted that the benefits under the Industrial Policy, 1995 which are to be given to the new units are also to be given to sick and closed units. However, it was observed that the opinion of the Advocate General should be taken as to whether any amendment is required in the Sales Tax rules. In an another meeting held on the same date i.e. on 12th March, 1998 the reconstruction proposal of the Company was again considered in a meeting of the High Level Authorisation Committee (HLAC) held under the Chairmanship of the Chief Secretary. In this meeting, it was noticed that the Company is running in losses. The main reason for the present position of the Company is sluggishness in the cement market. The Company had, therefore, made an application for Sales Tax exemption from 01.01.1998 to 31.12.2002 under the Industrial Policy, 1995. Upon consideration and discussion, it was decided that before exempting the Company from Sales Tax, opinion of Advocate General should be taken as to whether any amendment is required in the Bihar Finance Act. Subsequently, the Advocate General opined that no amendments are required in the Bihar Finance Act, 1981 and that the exemption can be considered for a class of dealers i.e. sick units in terms of Section 7(3)(b) of that Act. 54. In an another meeting held on 12.07.1999 at IFCI Head Office, New Delhi, the representatives of the State Government clearly stated that the Government of Bihar was committed to the revival of industry in the State in general and that of ACL in particular as it was located in one of the backward districts of Bihar and provided direct employment to over 2000 persons. With regard to the Sales Tax exemption it was stated that the legal opinion of the Advocate General, Bihar had already been obtained the final decision of the Cabinet sub-Committee is expected within 2-3 months time. The Indian promoters of the Company had been invited to join the meeting and were requested to respond to the observations of the participants. It was explained on behalf of the Company that although the performance of the Company was consistently above the rated capacity, it had not been able to achieved optimum level of operations mainly due to lack of adequate working capital. Since the promoters were not to bring any further funds, most of the required amount would have to be met out of the proposed funding and expected Sales Tax exemption. In the summary record of the proceedings of the Joint Meeting, it was recorded that there was further discussion amongst the participants and there was a general consensus that a restructuring package would be necessary for ensuring the revival of KCL and accordingly, KCL be advised to submit, at the earliest, a revised restructuring proposal with a cut off date of 31.12.1999....... It was considered necessary to stipulate preconditions such as the State Government of Bihar granting the Sales Tax exemption and renewal/revalidation of the mining leases for the proposed restructuring packages, as and when sanctioned54. Thereafter, the representatives of the Company were invited to join the meeting held between the Government of Bihar and financial institutions on 29.10.1999. Reference was made, in this meeting, to the deliberations at the previous meeting held on 12.07.1999, when it was decided to undertake revised restructuring exercise in respect of the Company. Accordingly, a revised restructuring proposal was formulated by the Industrial Finance Corporation of India Ltd. (hereinafter referred to as `IFCI). In this meeting of the representative of the State Government mentioned that the legal opinion of the Advocate General Bihar has been obtained. However, decision of the Sales Tax exemption proposal had been held up due to the Election. It was now expected to be taken up in December, 1999. The financial institutions stated that they would consider granting reliefs only after grant of Sales Tax exemptions by the State Government of Bihar55. Thereafter by letter dated 02.10.1999, the State Government informed the financial institutions as under:-The State Government has since decided to notify the provisions of providing Sales Tax benefits to Sick Units and potentially viable non-BIFR sick units in the meeting of the Economic Sub-Committee held on November 30,1999. We shall forward a copy of the notification as soon as it is gazetted56. From the above it becomes apparent that the State Government had been consistently giving assurances not only to the Company but also to the financial institutions that the necessary Sales Tax exemption notification will be issued. In our opinion the Company had laid a clear, sound and a positive foundation for invoking the doctrine of `promissory estoppel. Therefore, it is not possible to accept the submissions made by Dr. Dhawan and Mr. Dwivedi that no definite promises were ever made. This, however, is not the end of the matter57. Even in the meeting held on 17.12.1999 under the Chairmanship of the Minister for Water Resources and Industry, Bihar the problems being faced by the Company were discussed. It was pointed out by the Industrial Development Commissioner that future of thousands of people is linked with the Company and, therefore, positive cooperation of financial institutions/bank is desirable for its rehabilitation. The Chairman of the Company was invited to apprise the meeting of the financial and other difficulties. It was accepted by the whole-time Director of IFCI, Mr. Ganguly that the financial institutions have always been supporting the Company and will support in the future. It was also stated by him that in the Industrial Policy, 1995 there is a provision of giving Sales Tax exemption for 8 years to a sick company. However, the Company had asked for the above facility only for 5 years. So far as the viability of the Company is concerned, it was stated to have already been established. After hearing all the concerned parties, the Minister mentioned that the Government of Bihar is very keen for rehabilitation of the Company and that all possible support will be provided for implementation of the rehabilitation package prepared by financial institutions. So far as the Sales Tax relief is concerned, it was stated that a decision will be taken in a day or two and the notification relating therewith will be issued by 2nd week of January, 2000..... With this assurance a consensus had emerged among the financial institutions and the Banks that if the Government implements the Industrial Policy, 1995 in its true spirit particularly on the issue relating to deferment/ exemption Sales Tax, the financial institutions and Banks will give their full cooperation. A number of very important decisions were taken in the aforesaid meeting. Decision No.4 was that State Government will ensure that the notification regarding Sales Tax exemption is issued by the 2nd week of January, 200058. On 25th January, 2000, the State Government informed the lead institution (IFCI) that the matter was discussed in the Cabinet Sub-Committee and draft notification was approved therein. It was further pointed out that due to ensuing Assembly Elections, it was being examined whether it was a violation of Model Code of Conduct or not. Once it is sorted out, action will be taken in this regard. Again vide letter dated 31.03.2000, the State Government informed the IFCI that the matter was delayed due to election and the necessary notification shall be issued soon. There was another meeting held on 29.05.2000 under the Chairmanship of the Minister of Industries on problems faced by the Company. The meeting recorded as follows:-After intense discussion in the meeting, the following decisions were taken:1. Under the Industrial Policy, 1995 the Commercial Tax Department shall immediately issue the matching notification to provide the facility of exemption/deferment from Sales Tax to be potentially sick and closed units2. The Forest and Environment Deptt. Will take necessary steps immediately to take out the Limestone bearing areas from the Kaimur Wild Life Sanctuary and for grant of Mining Leases to KCL so that the Limestone availability to the Company is ensured uninterruptedly and thousands of workers working are saved from unemployment (given Forest and Environment Deptt.)61. During the course of the proceedings in the writ petition, the State Government in its supplementary affidavit dated 05.12.2000 filed on behalf of respondent No.4 (i.e. Secretary-cum-Commissioner, Commercial Taxes Department) again categorically reiterated that the Honble Minister, Department of Commercial Taxes has approved the proposals along with draft notification regarding extension of Sales Tax related incentives to sick industrial units....... It had been submitted to the Chief (Finance) Minister on 18.11.2000. It shall be possible to issue necessary notification after approval of the proposal by the Chief (Finance) Minister. Having made the aforesaid statements in an affidavit before the High Court, the Government has resiled from the unequivocal representations in the decisions dated 06.01.2001 and 05.03.2001. Therefore, strong reliance was placed on clauses 22 and 24 of the 1995 Policy and the doctrine of `promissory estoppel in support of the plea that the action of the State Government in issuing orders dated 06.01.2001 and 05.03.2001 are wholly arbitrary and unjust62. In reply, it was contended that the decision dated 06.01.2001 had been taken for the four reasons stated earlier. It was further stated that the decisions taken in the meeting of the Cabinet held on 05.03.2001 was upon thoughtful and due consideration of all the relevant factors. Taking into consideration the totality of the circumstance, a policy decisions had been taken that notification relating to the Sales Tax incentive be not issued. Therefore, the Company was not entitled to any relief. It was on consideration of the entire matter that the High Court concluded as follows:-When the State Government gives an assurance and undertaking, in form of a policy then in fact it allures person/industries to enter into the individual ventures, invest money on the assurances contained in the policy, would it be justified on the part of the State Government to say later on that on a second thought they were withdrawing the policy and the benefits flowing from that policy? We are unable to agree to this argument63. We are of the opinion that the aforesaid conclusion reached by the High Court is based on due consideration of the material placed before it. We see no reason to differ with the opinion expressed by the High Court. We are unable to accept the submissions made by Dr. Dhawan and Mr. Dwivedi that no clear-cut assurances were held out to the Company. We are also unable to accept the submissions of Mr. Dwivedi that the Company has failed to place on the record sufficient material to establish that unequivocal promises and representations had been made by the appellant to the Company by word and by conduct64. In our opinion, the matter is squarely covered by the observations made by this Court in the Mangalore Chemicals (supra) There is, as set out earlier, no dispute that the appellant was entitled to the benefit of the Notification dated June 30, 1969. There is also no dispute that the refunds were eligible to be adjusted against sales tax payable for respective years. The only controversy is whether the appellant, not having actually secured the prior permission would be entitled to adjustment having regard to the words of the Notification of August 11, 1975, that until permission of renewal is granted by the Deputy Commissioner of Commercial Taxes, the new industry should not be allowed to adjust the refunds. The contention virtually means this: No doubt you were eligible and entitled to make the adjustments. There was also no impediment in law to grant you such permission. But see language of clause 5. Since we did not give you the permission you cannot be permitted to adjust. Is this the effect of the law?10. The sales tax already paid by the appellant on the raw materials procured by it is the subject matter of the refunds. The sales tax against which the refund is sought to be adjusted is the sales tax payable by appellant on the sales of goods manufactured by it. If the contention of the Revenue is correct, the position is that while the appellant is entitled to the refund it cannot, however, adjust the same against current dues of the particular year but should pay the tax working out its refunds separately. The situation may well have been such but the snag comes here. If the adjustments made by the appellant in its monthly statements are disallowed, the sales tax payable would be deemed to be in default and would attract a penalty ranging from 1 1/2 per cent to 2 1/2 per cent per month from the date it fell due. That penalty, in the facts of this case, would be very much more than the amounts of refund11. What emerges from the undisputed facts is that appellant was entitled to the benefit of these adjustments in the respective years. It had done and carried out all that was necessary for it to do and carry out in that behalf. The grant of permission remained pending on account of certain outstanding inter-departmental issues as to which of the departments – the Department of Sales Tax or the Department of Industries -- should absorb the financial impact of these concessions. Correspondence indicates that on account of these questions, internal to administration, the request for permission to adjust was not processed22......There is no dispute that appellant had satisfied these conditions. Yet the permission was withheld -- not for any valid and substantial reason but owing to certain extraneous things concerning some inter-departmental issues. Appellant had nothing to do with those issues. Appellant is now told, We are sorry. We should have given you the permission. But now that the period is over, nothing can be done. The answer to this is in the words of Lord Denning:4 Now I know that a public authority cannot be estopped from doing its public duty, but I do think it can be estopped from relying on a technicality and this is a technicality23. Francis Bennion in his Statutory Interpretation, (1984 edn.) says at page 683:Unnecessary technicality: Modern courts seek to cut down technicalities attendant upon a statutory procedure where these cannot be shown to be necessary to the fulfillment of the purposes of the legislation65. The law with regard to the applicability of the doctrine of promissory estoppel was again comprehensively considered by this Court in the case of Nestle India (supra). Ruma Pal, J. speaking for the Bench observed as follows:-24. But first a recapitulation of the law on the subject of promissory estoppel. The foundation of the doctrine was laid in the decision of Chandrasekhara Aiyar, J. in Collector of Bombay v. Municipal Corpn. of the City of Bombay..........Chandrasekhara Aiyar, J. concurred with the conclusion of Das, J. but based his reasoning on the fact that by the resolution, representations had been made to the Corporation by the Government and the accident that the grant was invalid did not wipe out the existence of the representation nor the fact that it was acted upon by the Corporation. What has since been recognised as a signal exposition of the principles of promissory estoppel, Chandrasekhara Aiyar, J. said: (AIR p. 476, paras 21 & 22)The invalidity of the grant does not lead to the obliteration of the representation. Can the Government be now allowed to go back on the representation, and, if we do so, would it not amount to our countenancing the perpetration of what can be compendiously described as legal fraud which a court of equity must prevent being committed. If the resolution can be read as meaning that the grant was of rent-free land, the case would come strictly within the doctrine of estoppel enunciated in Section 115 of the Evidence Act. But even otherwise, that is, if there was merely the holding out of a promise that no rent will be charged in the future, the Government must be deemed in the circumstances of this case to have bound themselves to fulfil it. ... Courts must do justice by the promotion of honesty and good faith, as far as it lies in their power25. In other words, promissory estoppel long recognised as a legitimate defence in equity was held to found a cause of action against the Government, even when, and this needs to be emphasised, the representation sought to be enforced was legally invalid in the sense that it was made in a manner which was not in conformity with the procedure prescribed by statute26. This principle was built upon in Union of India v. Anglo Afghan Agencies where it was said (SCR at p. 385): (AIR p 728, para 23) 23. Under our jurisprudence the Government is not exempt from liability to carry out the representation made by it as to its future conduct and it cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it, nor claim to be the judge of its own obligation to the citizen on an ex parte appraisement of the circumstances in which the obligation has arisen44. Of course, the Government cannot rely on a representation made without complying with the procedure prescribed by the relevant statute, but a citizen may and can compel the Government to do so if the factors necessary for founding a plea of promissory estoppel are established. Such a proposition would not fall foul of our constitutional scheme and public interest. On the other hand, as was observed in Motilal Padampat Sugar Mills case and approved in the subsequent decisions: (SCC p. 442, para 24)It is indeed the pride of constitutional democracy and rule of law that the Government stands on the same footing as a private individual so far as the obligation of the law is concerned: the former is equally bound as the latter. It is indeed difficult to see on what principle can a Government, committed to the rule of law, claim immunity from the doctrine of promissory estoppel46. ...........The facts in the present case are similar to those prevailing in Godfrey Philips. There too, as we have noted earlier, the statutory provisions required exemption to be granted by notification. Nevertheless, the Court having found that the essential prerequisites for the operation of promissory estoppel had been established, directed the issuance of the exemption notification66. In Petrochemical (supra), this Court has clearly reiterated the promissory estoppel would apply where a party alters his position pursuant to or in furtherance of the promise made by a State. It is also clearly held that such a policy decision can be expressed in notifications under statutory provisions or even by executive instructions. Whenever the ingredients for invoking the principle of promissory estoppel are established, it could give rise to a cause of action. Not only may it give rise to a cause of action but would also preserve a right. The relevant observations are as under:-121. The doctrine of promissory estoppel would undoubtedly be applicable where an entrepreneur alters his position pursuant to or in furtherance of the promise made by a State to grant inter alia exemption from payment of taxes or charges on the basis of the current tariff. Such a policy decision on the part of the State shall not only be expressed by reason of notifications issued under the statutory provisions but also under the executive instructions. The appellants had undoubtedly been enjoying the benefit of (sic exemption from) payment of tax in respect of sale/consumption of electrical energy in relation to the cogenerating power plants122. Unlike an ordinary estoppel, promissory estoppel gives rise to a cause of action. It indisputably creates a right. It also acts on equity. However, its application against constitutional or statutory provisions is impermissible in law130. We, therefore, are of the opinion that doctrine of promissory estoppel also preserves a right. A right would be preserved when it is not expressly taken away but in fact has expressly been preserved67. This Court in MRF Ltd. Kottayam (supra) considered the legality of a notification withdrawing the exemption granted by an earlier notification. Relying on the representations contained in the earlier notification, MRF had altered its position. Whilst setting aside the subsequent notification withdrawing the exemptions, this Court held that the whole actions of the State including exercise of executive power has to be tested on the touchstone of Article 14 of the Constitution of India. It was held that the action of the State must be fair. In this context we may notice the observations made in paragraph 38 and 39 of the judgment:-38. The principle underlying legitimate expectation which is based on Article 14 and the rule of fairness has been restated by this Court in Bannari Amman Sugars Ltd. v. CTO21. It was observed in paras 8 and 9: (SCC pp. 633-34)8. A person may have a `legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment. The expectation may arise either from a representation or promise made by the authority, including an implied representation, or from consistent past practice. The doctrine of legitimate expectation has an important place in the developing law of judicial review. It is, however, not necessary to explore the doctrine in this case, it is enough merely to note that a legitimate expectation can provide a sufficient interest to enable one who cannot point to the existence of a substantive right to obtain the leave of the court to apply for judicial review. It is generally agreed that `legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. The doctrine does not give scope to claim relief straightaway from the administrative authorities as no crystallised right as such is involved. The protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. In other words, where a persons legitimate expectation is not fulfilled by taking a particular decision then the decision-maker should justify the denial of such expectation by showing some overriding public interest. (See Union of India v. Hindustan Development Corpn)9. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touchstone irrespective of the field of activity of the State is an accepted tenet. The basic requirement of Article 14 is fairness in action by the State, and non-arbitrariness in essence and substance is the heartbeat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the State must act validly for discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualised than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness. (emphasis supplied)39. MRF made a huge investment in the State of Kerala under a promise held to it that it would be granted exemption from payment of sales tax for a period of seven years........ .......The action of the State cannot be permitted to operate if it is arbitrary or unreasonable. This Court in E.P. Royappa v. State of T.N observed that where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14. Equity that arises in favour of a party as a result of a representation made by the State is founded on the basic concept of justice and fair play. The attempt to take away the said benefit of exemption with effect from 15-1-1998 and thereby deprive MRF of the benefit of exemption for more than 5 years out of a total period of 7 years, in our opinion, is highly arbitrary, unjust and unreasonable and deserves to be quashed68. We are also unable to accept the submission with the decisions dated 06.01.2001 and 05.03.2001 had been taken due to the change in the national policy. This was sought to be justified by Dr. Dhawan on the basis of the Conferences of Chief Ministers/Finance Ministers. It is settled law as noticed by Bhagwati, J in Motilal Padampat (supra) that the Government cannot, claim to be exempt from liability to carry out the promise, on some indefinite and undisclosed ground of necessity or expediency. The Government is required to place before the Court the entire material on account of which it claims to be exempt from liability. Thereafter, it would be for the Court to decide whether those facts and circumstances are such as to render it inequitable to enforce the liability against the Government. Mere claim of change of policy would not be sufficient to exonerate the Government from liability. It is only when the Court is satisfied that the Court would decline to enforce the promise against the Government. However, the burden would be upon the Government to show that it would be inequitable to hold the Government bound by the promise. The Court would insist a highly rigorous standard of proof in the discharge of this burden. In the present case, the claim of the Government is based on a change in policy advocated in the Chief Ministers Conference. These Conferences have taken place before the affidavit is filed on 05.12.2001. Therefore, the High Court concluded that the Government has not been candid in disclosure of the reasons for passing the order dated 06.01.2001. In our opinion, the aforesaid decisions with regard to the discontinuance of the Sales Tax exemptions from 01.01.2000 could not have affected the rights of the Company under the Industrial Policy, 1995. Necessary application was made to the Government seeking exemption on 21.11.1997. For more than 3 years, the Company and the financial institutions had been assured by the Government that the notification will be issued forthwith. However, it was not issued. We are of the opinion that the action of the appellants is arbitrary and indefensible69. Learned Senior counsel for the appellants had also submitted that it was not necessary to issue the notification within one month as stipulated in clause 24 of the Industrial Policy, 1995. In order to appreciate the aforesaid submission, it would be necessary to make a reference to the relevant clauses of the Industrial Policy, 1995. Clause 22, 23 and 24 are as under:-The continuing problems of industrial sickness is a matter of great concern for the Government. Closure of units leads to unemployment and locking up of capital deployed in such ventures. The State Government is determined to take effective measures and to render all possible assistance for the amelioration of this malaise22.1. INDUSTRIAL SICKNESS IN SSI SECTIONThe State Government proposes to take the following measures for the revival of SSI units:i. there are scores of medium and small scale units which are sick but have the potential of becoming viable. For such SSI units which are outside the purview of the Bureau of Industrial and Financial Reconstruction (BIFR), the State Government proposes to form an apex body on the lines of BIFR with Director of Industries as its Head to consider their revivalii. The State level apex body for rehabilitation of sick industry would be vested with adequate powers so that it can effectively implement management and financial restructuringiii. The sick SSI units would be identified as per guidelines given by RBI/IDBI. Appropriate packages of reliefs and concessions for such units would be approved for their rehabilitationiv. Sick units undergoing rehabilitation will not have to take sickness certificate every year. The approved revival package for each sick unit would indicate the period of revivalv. The Apex Body shall monitor the progress of the revival packagevi. A sick unit being revived would be entitled to Sales Tax exemption/deferment exemption from Minimum Guarantee etc. as determined in the revival packagevii. The State level Apex body would besides representatives of Government Department/ Organisations/ financial institutions will also have its members one representative each of confederation of Indian Industries, Bihar Industries Association and Bihar Chamber of CommerceThe rehabilitation package would be implemented within a fixed time frame so that the process of revival is not delayed22.2 SICKNESS IN LARGE AND MEDIUM SECTORi. A committee with Industrial Development Commissioner as its head will be constituted to evolve suitable measures for potentially viable non-BIFR sick industrial units including PSUs in the large and medium sectorThe Committee will recommend concessions and facilities including those in this policy statement if considered necessary for revival of the Unit; These recommendations would be placed before the Government through State level Empowered Committee (SLEC) already constituted under the chairmanship of Chief Secretary for final decisionii. Concessions and facilities identified under the Scheme of rehabilitation prepared by the Board for Industrial and Financial Reconstruction (BIFR) or by Inter- Institutional Committee of IRBI, BICICO/BSFC and Bank would be placed before the Committee headed by the Industrial Development Commissioner for consideration and recommendation to Government through SLEC for approvaliii. Rehabilitation measures for sick but potentially viable industrial units may, inter alia, include reliefs and concessions or sacrifice from various government departments/ organizations and or additional facilities including allocation of power from BSEB/DVC and any other agency/statutory body/local authority22.3 Such closed and sick industrial units which have once availed of the facility of Sales Tax exemption/deferment under a rehabilitation package prepared by BIFR shall not get the same facility again if they turn sick or are closed again. This will also apply to other facilities given to such sick and closed industrial units which have once availed of such facilities in the past. However, the State Government may consider extending such facilities on case to case basis as required23. Definition(s) given in the Annexure form(s) part of the policyAll concerned departments and organizations will issue follow up notifications to give effect to the provisions of the policy within a month. This will be appropriately monitored by the Govt | 1 | 18,346 | 9,356 | ### Instruction:
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wrong. The third reason given is that the State-level Empowered Committee (SLEC) had not approved the rehabilitation package. This clearly is against the record which has been examined by us in the earlier part of the judgment. Not only the exemption was recommended by the competent Committees under the Industrial Policy, 1995, emphatic assurances were given that the notification will be issued within a very short period. The fourth reason with regard to the resolution passed at the Chief Ministers Conference is equally extraneous to the issue. The Company had made the application for exemption at a much prior time in 1997. No material has been placed either before the High Court or before this Court about the legal enforceability of the resolutions passed at the Chief Ministers Conference. In our opinion the decision making process which culminated in passing of the orders dated 06.01.2001 and 05.03.2001 is seriously flawed, therefore, the same have been justifiably quashed by the High Court. 74. We may now consider the submissions made in IA No.3 of 2006. On 18.11.2002, this Court passed the following order: As an interim arrangement during the pendency of this appeal, with a view to protect the interests of either side, we direct the respondent to deposit an amount equivalent to the sale tax payable by it as and when it becomes due in an interest hearing account in a nationalized bank. This amount and the amount accused during the pendency of the appeal, shall not be withdrawn by other side. The amount no kept in deposit shall become payable to the party which ultimately succeeds in this appeal. The appellants are directed to issue the exemption orders and on receipt of such order, the above said amount shall be deposited. The issuance of the exemption order is without prejudice to the case of the parties in this appeal. The I.A. in the disposed of. 75. It is not in dispute for us that pursuant to the aforesaid directions the appellant has issued the Notification No. SO-174 dated 18.10.2004 granting exemption to the company. The notification was to have effect for five years from the date of publication in the official gazette or till the disposal of special leave petition No.5181 of 2002, whichever is earlier. The notification was issued subject to the terms and conditions notice earlier in the judgment. Under the aforesaid terms and conditions, the company was to deposit the tax payable per month with an interest bearing (wrongly typed in the order as hearing) account in a nationalized bank. The company was also to provide information of the bank account to the circle where it is registered. Details regarding amount of payment made each month was also to be supplied to the appellant. 76. It is now the submission of the learned counsel for the appellant that the company has neither complied with the order passed by this Court on 18.11.2002 nor the conditions stipulated in the notification dated 16.10.2004. It is further submitted that prayers in the application were to recall the order dated 18.11.2002 and to stay the operation of a judgment under appeal dated 24.04.2002. However the application was not finally disposed of, even through the pleadings were complete. 77. During the pendency of the proceedings there have been some further development, which will now need to be taken into consideration by the Court, to do justice between the parties. 78. During the interregnum the company has been collecting the amount equivalent to the tax from the consumers. According to Dr. Rajiv Dhawan, Mr. Dwivedi during this period the company has collected more than Rs.60 crores on the sale of cement by virtue of the directions issued by this Court in the Order dated 18.11.2002. In view of the law laid down by this Court in Amrit Banaspati (supra) the company cannot be permitted to retain the amount collected from the customers. This would amount unjust enrichment. Therefore, a direction is required to be issued that the amount deposited by the company with the bank pursuant to the orders of this Court be released to the appellant State. On the other hand, Mr. Parshad has submitted that the delay in issuance of the exemption Notification by the State has crippled the Company financially. Even then the Company is trying to revive itself through financial restructuring. The survival of the Company now depends on the approval of the Financial Restructuring Package prepared by the respondent No.2. This package has been submitted to the Chief Minister of Bihar which is still on the consideration of the Government. With regard to the non- deposit of amount equivalent to the tax due, Mr. Parshad reiterated that the Company had made bona fide efforts, but was unable to deposit the amount due to its `sickness. On the one hand the revised rehabilitation package is kept under consideration, on the other the appellants seeks the vacation of the order dated 18.11.2002. The application, according to the learned senior counsel, deserves outright dismissal. 79. We have considered the submissions made by the learned counsel. It would be not possible to accept the submissions of Mr. Parshad that in view of the financial condition of the company it may be permitted to retain the amount collected under the orders of this Court. The amount was collected from the consumer to offset the tax liability. Such amount cannot be permitted to be retained by the company. In Amrit Banaspati case (supra) it has been held that exemption and refund of tax are two different legal and distinct concepts. The objective of the exemption is to grant incentive to encourage industrialization. It is to enable the industry to compete in the market. On the other hand, refund of tax is made only when it has been realized illegally or contrary to the provisions of law. Tax lawfully levied and realized cannot be refunded. In view of the settled position of the law, we decline to accept the suggestion made by Mr. Parshad.
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submission with the decisions dated 06.01.2001 and 05.03.2001 had been taken due to the change in the national policy. This was sought to be justified by Dr. Dhawan on the basis of the Conferences of Chief Ministers/Finance Ministers. It is settled law as noticed by Bhagwati, J in Motilal Padampat (supra) that the Government cannot, claim to be exempt from liability to carry out the promise, on some indefinite and undisclosed ground of necessity or expediency. The Government is required to place before the Court the entire material on account of which it claims to be exempt from liability. Thereafter, it would be for the Court to decide whether those facts and circumstances are such as to render it inequitable to enforce the liability against the Government. Mere claim of change of policy would not be sufficient to exonerate the Government from liability. It is only when the Court is satisfied that the Court would decline to enforce the promise against the Government. However, the burden would be upon the Government to show that it would be inequitable to hold the Government bound by the promise. The Court would insist a highly rigorous standard of proof in the discharge of this burden. In the present case, the claim of the Government is based on a change in policy advocated in the Chief Ministers Conference. These Conferences have taken place before the affidavit is filed on 05.12.2001. Therefore, the High Court concluded that the Government has not been candid in disclosure of the reasons for passing the order dated 06.01.2001. In our opinion, the aforesaid decisions with regard to the discontinuance of the Sales Tax exemptions from 01.01.2000 could not have affected the rights of the Company under the Industrial Policy, 1995. Necessary application was made to the Government seeking exemption on 21.11.1997. For more than 3 years, the Company and the financial institutions had been assured by the Government that the notification will be issued forthwith. However, it was not issued. We are of the opinion that the action of the appellants is arbitrary and indefensible69. Learned Senior counsel for the appellants had also submitted that it was not necessary to issue the notification within one month as stipulated in clause 24 of the Industrial Policy, 1995. In order to appreciate the aforesaid submission, it would be necessary to make a reference to the relevant clauses of the Industrial Policy, 1995. Clause 22, 23 and 24 are as under:-The continuing problems of industrial sickness is a matter of great concern for the Government. Closure of units leads to unemployment and locking up of capital deployed in such ventures. The State Government is determined to take effective measures and to render all possible assistance for the amelioration of this malaise22.1. INDUSTRIAL SICKNESS IN SSI SECTIONThe State Government proposes to take the following measures for the revival of SSI units:i. there are scores of medium and small scale units which are sick but have the potential of becoming viable. For such SSI units which are outside the purview of the Bureau of Industrial and Financial Reconstruction (BIFR), the State Government proposes to form an apex body on the lines of BIFR with Director of Industries as its Head to consider their revivalii. The State level apex body for rehabilitation of sick industry would be vested with adequate powers so that it can effectively implement management and financial restructuringiii. The sick SSI units would be identified as per guidelines given by RBI/IDBI. Appropriate packages of reliefs and concessions for such units would be approved for their rehabilitationiv. Sick units undergoing rehabilitation will not have to take sickness certificate every year. The approved revival package for each sick unit would indicate the period of revivalv. The Apex Body shall monitor the progress of the revival packagevi. A sick unit being revived would be entitled to Sales Tax exemption/deferment exemption from Minimum Guarantee etc. as determined in the revival packagevii. The State level Apex body would besides representatives of Government Department/ Organisations/ financial institutions will also have its members one representative each of confederation of Indian Industries, Bihar Industries Association and Bihar Chamber of CommerceThe rehabilitation package would be implemented within a fixed time frame so that the process of revival is not delayed22.2 SICKNESS IN LARGE AND MEDIUM SECTORi. A committee with Industrial Development Commissioner as its head will be constituted to evolve suitable measures for potentially viable non-BIFR sick industrial units including PSUs in the large and medium sectorThe Committee will recommend concessions and facilities including those in this policy statement if considered necessary for revival of the Unit; These recommendations would be placed before the Government through State level Empowered Committee (SLEC) already constituted under the chairmanship of Chief Secretary for final decisionii. Concessions and facilities identified under the Scheme of rehabilitation prepared by the Board for Industrial and Financial Reconstruction (BIFR) or by Inter- Institutional Committee of IRBI, BICICO/BSFC and Bank would be placed before the Committee headed by the Industrial Development Commissioner for consideration and recommendation to Government through SLEC for approvaliii. Rehabilitation measures for sick but potentially viable industrial units may, inter alia, include reliefs and concessions or sacrifice from various government departments/ organizations and or additional facilities including allocation of power from BSEB/DVC and any other agency/statutory body/local authority22.3 Such closed and sick industrial units which have once availed of the facility of Sales Tax exemption/deferment under a rehabilitation package prepared by BIFR shall not get the same facility again if they turn sick or are closed again. This will also apply to other facilities given to such sick and closed industrial units which have once availed of such facilities in the past. However, the State Government may consider extending such facilities on case to case basis as required23. Definition(s) given in the Annexure form(s) part of the policyAll concerned departments and organizations will issue follow up notifications to give effect to the provisions of the policy within a month. This will be appropriately monitored by the Govt
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OKHLA ENCLAVE PLOT HOLDERS WEL. ASON Vs. UNION OF INDIA THROUGH SECRETARY | incidental expenses. If the above amount is not paid by the sixth respondent-Colonizer, it is for the State of Haryana to proceed against the sixth respondent to recover the amount as fee which is a land revenue.51. Surplus plots, if any, left – Entitlement of respondent No.6-Colonizer:- It has been submitted by Respondent No.6- Colonizer that a joint technological survey was conducted by the State and the Colonizer as per order dated 07.05.2016 of the Arbitrator. In this survey, electoral and electricity records of the encroached area were taken and tallied with the names in the scrutiny report to determine the genuineness of plot holders. It was found that a considerably large number of petitioners before this Court are already living on the licensed land* Under Point No.4 at Pg.3 of submissions on behalf of R6 to clarifications sought by the Supreme Court vide order dated 14.02.2019. . Respondent No.6 is required to submit a final list of such claimants before the Arbitrator. It is clarified that if it is found that any allottee is already living on the encroached land, they would not be entitled from claiming any further allotment in their favour.52. Surplus plot if any – Entitlement of Respondent No.6- Colonizer:- One last issue as to the entitlement over the surplus land, if any, left after allotment of land to eligible allottees has to be settled. In this context, it is observed that though there are various claims as to who is the present Director of M/s Durga Builders Private Limited, there is no serious dispute that the land in question was owned by said M/s Durga Builders Private Limited and its associate companies. Licenses were also granted to them by the State of Haryana. These licenses have long since expired and have not been renewed after 1999. However, till date no action has been taken against these companies on account of non-renewal of license. According to the State of Haryana, an amount of Rs. 21,86,97,901/- (as on 28.02.2019) is outstanding against licence renewal fee. On payment of this outstanding amount against the license renewal fee with interest from 28.02.2019 and also on payment of expenses borne by DCTP in engaging the security agencies for watch and ward of the licensed area, M/s Durga Builders Private Limited and its associate companies would be entitled to claim the surplus plots.53. Additionally, in case, if any of the allottees are not in a position to pay the apportioned internal and external development charges and expresses willingness to quit and consequently the plot falls vacant, the same shall be considered being allotted to the sixth respondent-Colonizer, of course, striking a balance between the allottee of the plot and the Colonizer. The Arbitrator shall determine the compensation payable by the sixth respondent-Colonizer and direct the sixth respondent-Colonizer to compensate the allottee of the plot by directing the sixth respondent-Colonizer to pay adequate compensation in lieu of the claim for the plot falling vacant. In order to make a claim for such plots falling vacant, the sixth respondent- Colonizer is to pay:- (i) the compensation to allottee as directed by the learned arbitrator; and (ii) to pay the apportioned amount of internal and external development charges. Question No.4:- The last direction as sought by the Arbitrator is to pass appropriate directions for converting these proceedings to that of a Special Committee:- 54. In this context, we may usefully refer to the order of appointment of the Arbitrator dated 27.01.2016 wherein, this Court provided that all the parties shall submit their respective proposed terms of reference before the Arbitrator who shall first settle the terms of reference and thereafter, resolve the disputes involved between the parties. On completion of the arbitral proceedings, the Arbitrator was directed to submit a report to the Supreme Court.55. Arbitration is a mechanism to settle the disputes of the parties on the basis of the terms of arbitration agreement between the parties. In the present case, there is no agreement between the parties. The matter was referred to Justice Vikramjit Sen only as a remedial measure to solve the grievance of the petitioners who were aggrieved by the non-allotment of the plots by Colonizer and to resolve the lengthy issue involved in such allotment. Thus, the instant arbitration proceedings cannot be strictly called so and the term ‘arbitration? in this context is a misnomer and the proceedings actually are one of a Special Committee.56. In his letter dated 23.01.2018, the Arbitrator has also observed that ?these proceedings are not in the nature of arbitration and essentially, in the nature of a Special Committee of the Hon?ble Supreme Court of India.? We fully agree with the views expressed by Justice Vikramjit Sen. It is made clear that the present proceedings are not in the nature of arbitration within the meaning of the Arbitration and Conciliation Act, 1996; but essentially, in the nature of a Special Committee constituted by the Hon?ble Supreme Court of India.Other observations relevant for determination of the issue:- 57. Remuneration payable to the Arbitrator:- As to the question of remuneration payable to the Arbitrator, reference can be made to the order dated 27.01.2016 wherein, it was provided that the fee shall be decided by the Arbitrator and be borne equally by all the parties. Accordingly, the Arbitrator shall decide his fee to be payable by the parties as directed by the learned arbitrator. 58. Summary of Conclusion:-Number of claimants settled by the Scrutiny Committee:- The number of eligible allottees are to be decided by the Arbitrator applying the parameters as set out in the order of the Arbitrator dated 07.05.2016 and the learned Arbitrator to determine the final list of eligible plot owners in all the categories – NPNL, Economic Weaker Sections (EWS) and General and also commercial. Once the allottees are identified and the allottees pay the apportioned development charges, the learned Arbitrator shall direct the Director to execute necessary documents in favour of the allottees in terms of Section 8(4) of the HDRA Act. | 1[ds]14. Issue of Ownership:- As per the report of Sh. H.P. Sharma, Court Commissioner, appointed by the Supreme Court, Sh. Arun Mehra father of Sh. Divij Mehra, on behalf of M/s Hindustan Commercial Investment Trust Ltd. and M/s Class Sales Pvt. Ltd. had filed claim for 87 plots (65 plots + 22 plots), which he claimed to have purchased from M/s Durga Builder Pvt. Ltd. This claim of plots was rejected by Court Commissioner. Pg.No.4 of the reply dated 19.08.2019 filed by DTCP, Haryana Sh. Arun Mehra filed an application of impleadment in WP(C) No.113 of 1996 in the Supreme Court on behalf of M/s Rajdhani Housing Syndicate Pvt. Ltd. in January, 2014. In its reply, the State of Haryana has stated that it has received an e-mail dated 18.07.2014 from Advocate Deepak Khosla mentioning that as per the decision of the Company Law Board dated 11.03.2014, Sh. Arun Mehra and Sh. Divij Mehra are the present Directors of M/s Durga Builder Pvt. Ltd. It is stated that one Sh. R.K. Nanda claims to have become the Director of M/s Durga Builder Pvt. Ltd. who attended the proceedings before the Director General, Town and Country Planning, Haryana at Chandigarh as Director of M/s Durga Builder Pvt. Ltd. It was submitted that by the Gazette Notification dated 24.09.2018, the name of M/s Durga Builder Pvt. Ltd. has been struck off from the Registrar of Companies and dissolved by the Government of India, Ministry of Company Affairs, New Delhi. On behalf of the Colonizer, an order dated 24.01.2019 passed by the National Company Law Tribunal has been produced to show that in the Gazette Notification dated 24.08.2018 qua M/s Durga Builder Pvt. Ltd. has been kept in abeyance. (Under Point No.1 at Pg. No.4-5 of Reply filed by DTCP, Haryana on 19.08.2019)far as the claim of Mr. Arun Mehra in respect of 87 plots, liberty is granted to Mr. Arun Mehra to work out his remedy in accordance with law by agitating the matter before the competent court. However, it is made clear that the claim of Mr. Arun Mehra in respect of 87 plots shall not come in the way of the claim of the beneficiaries identified by the Scrutiny Committee.17. Though the Commissioner rejected the claim of the sixth respondent-Colonizer, the correctness of the same shall be examined with reference to documents. The area claimed by the Colonizer can be considered by the arbitrator by considering the layout plan now produced by DTCP, Haryana.18. The claim of the sixth respondent can be considered by the arbitrator only subject to the condition that he is paying the licence renewal fee of Rs.21,86,97,901/- (as on 28.02.2019) payable with interest @ 6% from 28.02.2019 plus Rs.1.25 crores borne by DTCP, Haryana in maintaining the security as per the order of the Court dated 18.07.2013. The area claimed by the sixth respondent- Colonizer shall be considered by the learned arbitrator only after examining by the rightful claim of the beneficiaries identified by Scrutiny Committee (to be finalised and approved by the learned arbitrator).As discussed above, a total of Rs.117,00,00,000/- is required for completion of internal and external development works. Since the completion of internal and external development works would take some time, suitable provision has to be made for increase in cost of internal and external development works and other incidental expenses. In our view, in addition to Rs.117,00,00,000/- (Rs.70,00,00,000/-plus Rs.47,00,00,000/-) for internal and external development works, another 10% i.e. Rs.11,70,00,000/- is to be added to the total cost of internal and external development works. Thus, the amount of Rs.128,70,00,000/- (Rs.117,00,00,000/- + Rs.11,70,00,000/-) is payable to the Director General, Town and Country Planning (DGTCP), Haryana for undertaking and completing the internal and external development works.Apportionment of the total cost for internal and external developmentt of the total cost for internal and external developmente learned senior counselappearing for the petitioners submitted that the members of the petitioner association are ready to proportionately bear the cost of the internal and external development works.Taking the total amount as Rs. 128,70,00,000/- and the total extent of area to be allotted to the eligible allottees, the Arbitrator shall determine the cost for the square meter and proportionately apportion the total cost amongst the eligible plot owners. Each one of the eligible plot owners shall file individual affidavit undertaking to make the payment before the DTCP within the time frame fixed by the Arbitrator. If the proportionate amount so apportioned to the individual plot owners is not paid within the stipulated time frame, they shall forfeit the right over the plot. The format of the affidavit shall be finalised by the learned Arbitrator. In case if any of the eligible allottees are having difficulty in paying the amount, two or three eligible allottees are at liberty to join together depending upon the size of the plot and pay the development charges and share their proportionate right over the plot. It is made clear that the payment of the development charges will have to be time bound and in case, the amount is not paid within the time bound, the said allottee shall forfeit the right for the plot.33. From out of the above amount of Rs.1,28,70,00,000/-, Rs.70 lakhs to be kept apart to enable the Director, Town and Country Planning, Haryana to adjust the expenditure so far borne by DTCP in issuing various advertisements and other such incidental expenses. The details of such expenditure so far made by DTCP along with necessary bills/vouchers be produced before the learned Arbitrator and the learned Arbitrator to pass appropriate orders for adjustment of the expenditure amount so far borne by DTCP,request for one more opportunity to deposit the apportioned amount payable cannot be accepted since the matter is pending for more than two decades. The payment of apportioned amount should be a time bound one. In case if any of the plot owner (who has already obtained the sale deed) does not pay the apportioned external and internal development charges within the time frame, the developments/amenities like sewerage, water connection, electricity and other developments shall not be extended tothere are number of beneficiaries, it is necessary to clarify the consequence if the claimants do not pay the amount stipulated within the prescribed time frame. In case the claimants express unwillingness to pay the proportionate development charges or fail to give an undertaking within the given time frame, the land allotted to them will revert to the Colonizer on certain conditions viz. – colonizer will pay the claimant the amount paid towards the cost of land with interest from the date on which such payment was made at a rate which may be considered appropriate by the arbitrator. The Colonizer in addition to the above, shall also pay the proportionate amount towards development works payable for the said plot to the government of Haryana. On the order passed by the arbitrator, such payment shall be made within six weeks from the date of failure of payment by the claimant.36. Insofar as the other categories of allottees who have not been identified and who are yet to have the sale deed, in case if they do not pay the development charges within the time frame, as discussed earlier, they shall forfeit the right over the plot. The Colonizer has undertaken to refund the amount to the allottees in case of failure to pay the apportioned amount by the individual plot owners. The Colonizer has also undertaken to refund the amount to the allottees who cannot pay the due amount to DTCP, Haryana. In case of the plot owner who cannot pay the apportioned development charges or committed default in payment of the apportioned amount, the colonizer shall pay the consideration amount paid by the allottee along with the reasonable interest. Additionally, the Colonizer shall also pay the apportioned amount of the development charges qua those plots.37. Number of claimants settled by the Scrutiny Committee appointed by the learned Arbitratorper order dated 18.07.2013 of the Supreme Court, it was directed that fresh exercise to prepare a final list of claimants be undertaken by the Director General, Town and Country Planning. This was accordingly done and 3002 eligible plot holders were identified. This information was submitted to the Supreme Court through affidavit dated 15.11.2013. The Arbitrator vide order dated 07.05.2016 set the following conditions to determine the entitlement of each plot) Plot holders should have made bookings alongwith entire payments towards cost of land prior to 07.04.1997.b) Such plot holders should have paid/deposited the entire development charges with the Haryana Government upto 31.12.1999, in terms of the order of the Supreme Court dated 02.12.1999.c) The plot holders who have made bookings alongwith the entire payment towards cost of land prior to 07.04.1997 but had not made payments towards the development charges in terms of the order of the Supreme Court dated 02.12.1999, can be considered provided they are willing to pay the development charges as would be required on the date of carrying out the actual development.d) Multiplicity and duplicity of claims, i.e. more than one claim from one family will not be considered as eligible. Further, if any person is already in occupation of a plot illegally or by encroachment, he will similarly not be considered for any further allotment.(Para Nos.3-5 of the Order dated 07.05.2016 of Arbitrator)The exercise of deciding eligible candidates was started with the NPNL category. The Director, Town and Country Planning, Haryana issued a public notice on 18.08.2016 in the newspaper inviting applications to file claims accompanied with supporting documents regarding allotment/booking of plot in NPNL category. The Scrutiny Committee decided that an amount of Rs. 550/- be taken as development charge for scrutiny of claims. (Under Point No.6 at Pg 4 of submission of R6 dated 22.07.2019) The Scrutiny Committee received 2690 applications for the purpose of scrutiny before the cut-off date. However, 523 applicants did not appear before the Committee for the purpose of scrutiny. After scrutiny of applications, the Committee found total 1932 NPNL category applicants, 73 general category applicants, 165 commercial category applicants and 2 EWS category applicants.(Pg 23 of vol. 1 of scrutiny committee report dated 28.10.2017) 39. NPNL Category were divided into five categories as under (Under Point No.3 at Pg.9 of the Reply filed by DTCP, Haryana on 19.08.2019)40. Thereafter, scrutiny qua general and EWS category claimants was started. Vide order No.20 dated 13.07.2018, the Arbitrator directed the State to again give state-level advertisements inviting representation from all parties alongwith documents supporting their allotment in General and EWS category by 31.07.2018. The cut-off date for submitting application/claims was four weeks from the date of advertisement. In compliance of this order, public notice was advertised on 04.08.2018 in Amar Ujala, Dainik Jagran (Hindi) and Tribune (English). The last date for receipt of application was 03.09.2018 but since 03.09.2018 being a gazetted holiday, the applications received upto 04.09.2018 were considered by the Committee.(Pg 3 of scrutiny committee report qua general and EWS category).Under the EWS category, draw was held on 30.07.1994 and 18.11.1995 where 350 persons were successful. Only 106 applicants applied for allotment.(Pg.6 of scrutiny committee report qua general and EWS category) 41. General Category:- During scrutiny of documents, it was observed that in the general category plots where Builder Buyer Agreement has been executed, the rate for plot size more than 263 sq. yards had been fixed @ 425 per sq. yards.The Scrutiny Committee consisting of Senior Town Planners and others have thus identified the number of eligible plot owners. The number of eligible allottees have to be decided by the Arbitrator applying the parameters as set out in the order of the Arbitrator dated 07.05.2016 and the learned Arbitrator to determine the final list of eligible plot owners in all the categories – NPNL, Economic Weaker Sections (EWS) and General and also commercial.43. Once the number of allottees are identified, as discussed earlier, the amount of internal and external development cost has to be proportionately apportioned amongst each one of the eligible allottees. It is seen from the Scrutiny Committee Report and the status report filed by the State of Haryana, about 452 plot owners have got the sale deed from the Colonizer; some of the allottees are yet to get the sale deed. Section 8 of the Haryana Development and Regulation Urban Areas Act, 1975 (HDRA Act) inter alia provides for cancellation of licences if the Colonizer contravenes any of the conditions of the licence or the provisions of the HDRA Act and also provides for mode of carrying out the development works in the colony. Section 8(4) of the HDRA Act enables the Director to transfer the possession and title of the land to the plot owners.Out of the total 234.675 acres licensed land under seven licences, 46.85 acres land is under encroachment/unauthorised construction and 187.825 acres land is stated to be available for planning. In the report filed by the DTCP, Haryana dated 19.08.2019, it is stated that out of the above 187.825 acres area,43.68 acres area was reserved for general category plots, 23.475 acres area was reserved for community/infrastructure sites. Balance, 120.67 acres was planned for EWS and NPNL category plots.On behalf of the Director, Town and Country Planning, Haryana, it is stated that as per the revised layout plan of Phase-I and Phase-II, the plotted area shall not exceed 55% of the net planned area of the colony. The commercial area shall also be included in this plotted area for calculations of the area under the plots. In Phase-I, the total area under the scheme is 126.724 acres out of which the area under the residential plot is 61.64 acres. In Phase-II, the total area under the scheme is 107.95 acres out of which 51.03 acres is the area in residential plots.* Under Point No.2 at Pg. 3 in the status affidavit filed by DTCP, Haryana dated 07.03.201946. Insofar as the question raised by the learned Arbitrator that whether the present density norms can be relaxed for the project, Mr. Maninder Singh, learned Senior counsel appearing for the State of Haryana has submitted that the density norms like the area reserved for roads, common purposes, etc. cannot be reduced. Insofar as the density of the plots, the learned Arbitrator if need be, shall make appropriate adjustments of the plots in conformity with the existing rules. The adjustments of the plot area will have to be done from amongst the plot owners. The State of Haryana shall render its co-operation in adjustment of the plot sizes in the approved layout of course, subject to the conformity with the existing rules and governing sanction of the scheme.Licence fee payable by the Colonizer, issue of encroachment and the expenses met by the Director, Town and Country Planning, Haryana in engaging the watch and ward of the licensed area and other issues.47. Licence fee:- As discussed earlier, seven licences were issued to M/s Durga Builders Private Limited and its associate companies for the total area measuring 234.674 acres under Section 3 of the Haryana Development and Regulation of Urban Areas Act, 1975 (HD&RUA Act). The above said licensed areas are in two pockets i.e. as Okhla Enclave Phase-I (Area 126.724 acres) and Okhla Enclave Phase-II (Area 107.95 acres). The copies of the approved layout plans of Okhla Enclave Phase-I and Phase-II are revised on 24.09.1997. In terms of the provisions of the Act and as per the conditions of the licence, the Colonizer has to pay the licence fee and the licence renewal fee. In the status affidavit filed by the Director, Town and Country Planning, Haryana in March, 2019, it is stated that an amount of Rs.21,86,97,901/- (as on 28.02.2019) is outstanding from the Colonizer. As per the terms and the conditions of the licence, the Colonizer/Developer is bound to bear the expenses to carry out the internal development works in the colony and to clear the government dues of fee for renewal of licence and other expenses borne by the State of Haryana. However, with a view to move forward with the development, the allottees of the plots have undertaken to pay the cost of the internal and the external developments. But the Colonizer cannot be allowed to go scot free. The sixth respondent-Colonizer is bound to pay the licence fee of Rs. 21,86,97,901/- (as on 28.02.2019) towards the fee for renewal of licence which is payable with interest @ 6% per annum from 28.02.2019. If the amount is not paid by the sixth respondent, it is for the State of Haryana to proceed against the sixth respondent to recover the amount as if it is a land revenue. For the said amount of 21,86,97,901/- (as on 28.02.2019), there would be a charge on the properties of the sixth respondent- Colonizer.In this regard, DTCP, Haryana has pointed out that an amount of Rs.1.25 crores already spent by the Department towards the watch and ward and the same is also payable by the sixth respondent-Colonizer. Thus, the total amount payable by the Colonizer to the Department is Rs.21,86,97,901/- (as on 28.02.2019) which is payable with interest @ 6% per annum from 28.02.2019 Plus Rs.1.25 crores borne by the Department to the security agency till August, 2019-the date of filing of the affidavit before the Supreme Court and further expenses borne by the Department for watch and ward of the licensed area and other incidental expenses. If the above amount is not paid by the sixth respondent-Colonizer, it is for the State of Haryana to proceed against the sixth respondent to recover the amount as fee which is a land revenue.51. Surplus plots, if any, left – Entitlement of respondent No.6-Colonizer:- It has been submitted by Respondent No.6- Colonizer that a joint technological survey was conducted by the State and the Colonizer as per order dated 07.05.2016 of the Arbitrator. In this survey, electoral and electricity records of the encroached area were taken and tallied with the names in the scrutiny report to determine the genuineness of plot holders. It was found that a considerably large number of petitioners before this Court are already living on the licensed land* Under Point No.4 at Pg.3 of submissions on behalf of R6 to clarifications sought by the Supreme Court vide order dated 14.02.2019. . Respondent No.6 is required to submit a final list of such claimants before the Arbitrator. It is clarified that if it is found that any allottee is already living on the encroached land, they would not be entitled from claiming any further allotment in their favour.52. Surplus plot if any – Entitlement of Respondent No.6- Colonizer:- One last issue as to the entitlement over the surplus land, if any, left after allotment of land to eligible allottees has to be settled. In this context, it is observed that though there are various claims as to who is the present Director of M/s Durga Builders Private Limited, there is no serious dispute that the land in question was owned by said M/s Durga Builders Private Limited and its associate companies. Licenses were also granted to them by the State of Haryana. These licenses have long since expired and have not been renewed after 1999. However, till date no action has been taken against these companies on account of non-renewal of license. According to the State of Haryana, an amount of Rs. 21,86,97,901/- (as on 28.02.2019) is outstanding against licence renewal fee. On payment of this outstanding amount against the license renewal fee with interest from 28.02.2019 and also on payment of expenses borne by DCTP in engaging the security agencies for watch and ward of the licensed area, M/s Durga Builders Private Limited and its associate companies would be entitled to claim the surplus plots.53. Additionally, in case, if any of the allottees are not in a position to pay the apportioned internal and external development charges and expresses willingness to quit and consequently the plot falls vacant, the same shall be considered being allotted to the sixth respondent-Colonizer, of course, striking a balance between the allottee of the plot and the Colonizer. The Arbitrator shall determine the compensation payable by the sixth respondent-Colonizer and direct the sixth respondent-Colonizer to compensate the allottee of the plot by directing the sixth respondent-Colonizer to pay adequate compensation in lieu of the claim for the plot falling vacant. In order to make a claim for such plots falling vacant, the sixth respondent- Colonizer is to pay:- (i) the compensation to allottee as directed by the learned arbitrator; and (ii) to pay the apportioned amount of internal and external development charges.In this context, we may usefully refer to the order of appointment of the Arbitrator dated 27.01.2016 wherein, this Court provided that all the parties shall submit their respective proposed terms of reference before the Arbitrator who shall first settle the terms of reference and thereafter, resolve the disputes involved between the parties. On completion of the arbitral proceedings, the Arbitrator was directed to submit a report to the Supreme Court.55. Arbitration is a mechanism to settle the disputes of the parties on the basis of the terms of arbitration agreement between the parties. In the present case, there is no agreement between the parties. The matter was referred to Justice Vikramjit Sen only as a remedial measure to solve the grievance of the petitioners who were aggrieved by the non-allotment of the plots by Colonizer and to resolve the lengthy issue involved in such allotment. Thus, the instant arbitration proceedings cannot be strictly called so and the term ‘arbitration? in this context is a misnomer and the proceedings actually are one of a Special Committee.56. In his letter dated 23.01.2018, the Arbitrator has also observed that?these proceedings are not in the nature of arbitration and essentially, in the nature of a Special Committee of the Hon?ble Supreme Court of India.?We fully agree with the views expressed by Justice Vikramjit Sen. It is made clear that the present proceedings are not in the nature of arbitration within the meaning of the Arbitration and Conciliation Act, 1996; but essentially, in the nature of a Special Committee constituted by the Hon?ble Supreme Court of India.Other observations relevant for determination of theRemuneration payable to the Arbitrator:- As to the question of remuneration payable to the Arbitrator, reference can be made to the order dated 27.01.2016 wherein, it was provided that the fee shall be decided by the Arbitrator and be borne equally by all the parties. Accordingly, the Arbitrator shall decide his fee to be payable by the parties as directed by the learned arbitrator.ber of claimants settled by the Scrutinynumber of eligible allottees are to be decided by the Arbitrator applying the parameters as set out in the order of the Arbitrator dated 07.05.2016 and the learned Arbitrator to determine the final list of eligible plot owners in all the categories – NPNL, Economic Weaker Sections (EWS) and General and also commercial.The learned amicus curiae submitted that as per the affidavit dated 19.08.2019 filed by DTCP, Haryana and e-mail dated 18.07.2014 received by the Department from the advocate Deepak Khosla mentioning that as per the decision of the Company Law Board dated 11.03.2014, Mr. Arun Mehra and Divij Mehra are the present Directors of M/s Durga Builders Pvt. Ltd. The learned amicus submitted that when Mr. Arun Mehra is claiming to be the Director of M/s Durga Builders Pvt. Ltd. of which he is a Director, the claim of Mr. Arun Mehra need not be considered as it has been rejected by the Court Commissioner. Sofar as the claim of Mr. Arun Mehra in respect of 87 plots, liberty is granted to Mr. Arun Mehra to work out his remedy in accordance with law by agitating the matter before the competent court. However, it is made clear that the claim of Mr. Arun Mehra in respect of 87 plots shall not come in the way of the claim of the beneficiaries identified by the Scrutinyit is submitted that an amount of Rs.37.739 crores is outstanding against External Development Charges. As per rough estimate given by the Superintending Engineer, HSVP Circle, Faridabad, about Rs.47.00 crores would be required for completion of the external development works around the colony area and connecting the services with the internal works to be executed in the colony. (Para No.2 at Pg.4-6 of Status Affidavit filed by DTCP, Haryana filed on 07.03.2019)12. Before we consider the claim of M/s Durga Builder Pvt. Ltd., it is necessary to point out that M/s Durga Builder Pvt. Ltd. had not renewed the licence by paying necessary fee. The above seven licences i.e. licence Nos.1-3 of 1991, 65 of 1992 to 68 of 1992 were not renewed after 1999. In its reply, the State of Haryana stated that an amount of Rs.21,86,97,901/- is outstanding against the licence renewal fee.(Under Point No.1 at Pg. 2 of reply filed by DTCP, Haryana on 19.08.2019)This amount is payable by the sixth respondent-Colonizer to DTCP, Haryana. There are also other charges payable by the sixth respondent-Colonizer to the DTCP, Haryana. DTCP, Haryana has spent about Rs.1.25 crores in keeping watch and ward over the property and this amount is also payable by the sixth respondent. The claim of the sixth respondent- colonizer could be considered only if respondent No.6-Colonizer pays the licence renewal fee of Rs.21.89 crores and other amount spent by DTCP, Haryana towards keeping watch and ward of the licensed area and other charges.Once the number of allottees are identified, as discussed earlier, the amount of internal and external development cost has to be proportionately apportioned amongst each one of the eligible allottees. It is seen from the Scrutiny Committee Report and the status report filed by the State of Haryana, about 452 plot owners have got the sale deed from the Colonizer; some of the allottees are yet to get the sale deed. Section 8 of the Haryana Development and Regulation Urban Areas Act, 1975 (HDRA Act) inter alia provides for cancellation of licences if the Colonizer contravenes any of the conditions of the licence or the provisions of the HDRA Act and also provides for mode of carrying out the development works in the colony. Section 8(4) of the HDRA Act enables the Director to transfer the possession and title of the land to the plotthe allottees are identified and the allottees pay the apportioned development charges, the learned Arbitrator shall direct the Director to execute necessary documents in favour of the allottees in terms of Section 8(4) of the HDRA Act.Issue of encroachment and the expenses met by the Director, Town and Country Planning, Haryana in engaging the watch and ward of the licensedof claimants settled by the Scrutinynumber of eligible allottees are to be decided by the Arbitrator applying the parameters as set out in the order of the Arbitrator dated 07.05.2016 and the learned Arbitrator to determine the final list of eligible plot owners in all the categories – NPNL, Economic Weaker Sections (EWS) and General and also commercial.the allottees are identified and the allottees pay the apportioned development charges, the learned Arbitrator shall direct the Director to execute necessary documents in favour of the allottees in terms of Section 8(4) of the HDRAof claimants settled by the Scrutinynumber of eligible allottees are to be decided by the Arbitrator applying the parameters as set out in the order of the Arbitrator dated 07.05.2016 and the learned Arbitrator to determine the final list of eligible plot owners in all the categories – NPNL, Economic Weaker Sections (EWS) and General and alsothe allottees are identified and the allottees pay the apportioned development charges, the learned Arbitrator shall direct the Director to execute necessary documents in favour of the allottees in terms of Section 8(4) of the HDRA | 1 | 10,874 | 5,102 | ### Instruction:
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incidental expenses. If the above amount is not paid by the sixth respondent-Colonizer, it is for the State of Haryana to proceed against the sixth respondent to recover the amount as fee which is a land revenue.51. Surplus plots, if any, left – Entitlement of respondent No.6-Colonizer:- It has been submitted by Respondent No.6- Colonizer that a joint technological survey was conducted by the State and the Colonizer as per order dated 07.05.2016 of the Arbitrator. In this survey, electoral and electricity records of the encroached area were taken and tallied with the names in the scrutiny report to determine the genuineness of plot holders. It was found that a considerably large number of petitioners before this Court are already living on the licensed land* Under Point No.4 at Pg.3 of submissions on behalf of R6 to clarifications sought by the Supreme Court vide order dated 14.02.2019. . Respondent No.6 is required to submit a final list of such claimants before the Arbitrator. It is clarified that if it is found that any allottee is already living on the encroached land, they would not be entitled from claiming any further allotment in their favour.52. Surplus plot if any – Entitlement of Respondent No.6- Colonizer:- One last issue as to the entitlement over the surplus land, if any, left after allotment of land to eligible allottees has to be settled. In this context, it is observed that though there are various claims as to who is the present Director of M/s Durga Builders Private Limited, there is no serious dispute that the land in question was owned by said M/s Durga Builders Private Limited and its associate companies. Licenses were also granted to them by the State of Haryana. These licenses have long since expired and have not been renewed after 1999. However, till date no action has been taken against these companies on account of non-renewal of license. According to the State of Haryana, an amount of Rs. 21,86,97,901/- (as on 28.02.2019) is outstanding against licence renewal fee. On payment of this outstanding amount against the license renewal fee with interest from 28.02.2019 and also on payment of expenses borne by DCTP in engaging the security agencies for watch and ward of the licensed area, M/s Durga Builders Private Limited and its associate companies would be entitled to claim the surplus plots.53. Additionally, in case, if any of the allottees are not in a position to pay the apportioned internal and external development charges and expresses willingness to quit and consequently the plot falls vacant, the same shall be considered being allotted to the sixth respondent-Colonizer, of course, striking a balance between the allottee of the plot and the Colonizer. The Arbitrator shall determine the compensation payable by the sixth respondent-Colonizer and direct the sixth respondent-Colonizer to compensate the allottee of the plot by directing the sixth respondent-Colonizer to pay adequate compensation in lieu of the claim for the plot falling vacant. In order to make a claim for such plots falling vacant, the sixth respondent- Colonizer is to pay:- (i) the compensation to allottee as directed by the learned arbitrator; and (ii) to pay the apportioned amount of internal and external development charges. Question No.4:- The last direction as sought by the Arbitrator is to pass appropriate directions for converting these proceedings to that of a Special Committee:- 54. In this context, we may usefully refer to the order of appointment of the Arbitrator dated 27.01.2016 wherein, this Court provided that all the parties shall submit their respective proposed terms of reference before the Arbitrator who shall first settle the terms of reference and thereafter, resolve the disputes involved between the parties. On completion of the arbitral proceedings, the Arbitrator was directed to submit a report to the Supreme Court.55. Arbitration is a mechanism to settle the disputes of the parties on the basis of the terms of arbitration agreement between the parties. In the present case, there is no agreement between the parties. The matter was referred to Justice Vikramjit Sen only as a remedial measure to solve the grievance of the petitioners who were aggrieved by the non-allotment of the plots by Colonizer and to resolve the lengthy issue involved in such allotment. Thus, the instant arbitration proceedings cannot be strictly called so and the term ‘arbitration? in this context is a misnomer and the proceedings actually are one of a Special Committee.56. In his letter dated 23.01.2018, the Arbitrator has also observed that ?these proceedings are not in the nature of arbitration and essentially, in the nature of a Special Committee of the Hon?ble Supreme Court of India.? We fully agree with the views expressed by Justice Vikramjit Sen. It is made clear that the present proceedings are not in the nature of arbitration within the meaning of the Arbitration and Conciliation Act, 1996; but essentially, in the nature of a Special Committee constituted by the Hon?ble Supreme Court of India.Other observations relevant for determination of the issue:- 57. Remuneration payable to the Arbitrator:- As to the question of remuneration payable to the Arbitrator, reference can be made to the order dated 27.01.2016 wherein, it was provided that the fee shall be decided by the Arbitrator and be borne equally by all the parties. Accordingly, the Arbitrator shall decide his fee to be payable by the parties as directed by the learned arbitrator. 58. Summary of Conclusion:-Number of claimants settled by the Scrutiny Committee:- The number of eligible allottees are to be decided by the Arbitrator applying the parameters as set out in the order of the Arbitrator dated 07.05.2016 and the learned Arbitrator to determine the final list of eligible plot owners in all the categories – NPNL, Economic Weaker Sections (EWS) and General and also commercial. Once the allottees are identified and the allottees pay the apportioned development charges, the learned Arbitrator shall direct the Director to execute necessary documents in favour of the allottees in terms of Section 8(4) of the HDRA Act.
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essentially, in the nature of a Special Committee of the Hon?ble Supreme Court of India.?We fully agree with the views expressed by Justice Vikramjit Sen. It is made clear that the present proceedings are not in the nature of arbitration within the meaning of the Arbitration and Conciliation Act, 1996; but essentially, in the nature of a Special Committee constituted by the Hon?ble Supreme Court of India.Other observations relevant for determination of theRemuneration payable to the Arbitrator:- As to the question of remuneration payable to the Arbitrator, reference can be made to the order dated 27.01.2016 wherein, it was provided that the fee shall be decided by the Arbitrator and be borne equally by all the parties. Accordingly, the Arbitrator shall decide his fee to be payable by the parties as directed by the learned arbitrator.ber of claimants settled by the Scrutinynumber of eligible allottees are to be decided by the Arbitrator applying the parameters as set out in the order of the Arbitrator dated 07.05.2016 and the learned Arbitrator to determine the final list of eligible plot owners in all the categories – NPNL, Economic Weaker Sections (EWS) and General and also commercial.The learned amicus curiae submitted that as per the affidavit dated 19.08.2019 filed by DTCP, Haryana and e-mail dated 18.07.2014 received by the Department from the advocate Deepak Khosla mentioning that as per the decision of the Company Law Board dated 11.03.2014, Mr. Arun Mehra and Divij Mehra are the present Directors of M/s Durga Builders Pvt. Ltd. The learned amicus submitted that when Mr. Arun Mehra is claiming to be the Director of M/s Durga Builders Pvt. Ltd. of which he is a Director, the claim of Mr. Arun Mehra need not be considered as it has been rejected by the Court Commissioner. Sofar as the claim of Mr. Arun Mehra in respect of 87 plots, liberty is granted to Mr. Arun Mehra to work out his remedy in accordance with law by agitating the matter before the competent court. However, it is made clear that the claim of Mr. Arun Mehra in respect of 87 plots shall not come in the way of the claim of the beneficiaries identified by the Scrutinyit is submitted that an amount of Rs.37.739 crores is outstanding against External Development Charges. As per rough estimate given by the Superintending Engineer, HSVP Circle, Faridabad, about Rs.47.00 crores would be required for completion of the external development works around the colony area and connecting the services with the internal works to be executed in the colony. (Para No.2 at Pg.4-6 of Status Affidavit filed by DTCP, Haryana filed on 07.03.2019)12. Before we consider the claim of M/s Durga Builder Pvt. Ltd., it is necessary to point out that M/s Durga Builder Pvt. Ltd. had not renewed the licence by paying necessary fee. The above seven licences i.e. licence Nos.1-3 of 1991, 65 of 1992 to 68 of 1992 were not renewed after 1999. In its reply, the State of Haryana stated that an amount of Rs.21,86,97,901/- is outstanding against the licence renewal fee.(Under Point No.1 at Pg. 2 of reply filed by DTCP, Haryana on 19.08.2019)This amount is payable by the sixth respondent-Colonizer to DTCP, Haryana. There are also other charges payable by the sixth respondent-Colonizer to the DTCP, Haryana. DTCP, Haryana has spent about Rs.1.25 crores in keeping watch and ward over the property and this amount is also payable by the sixth respondent. The claim of the sixth respondent- colonizer could be considered only if respondent No.6-Colonizer pays the licence renewal fee of Rs.21.89 crores and other amount spent by DTCP, Haryana towards keeping watch and ward of the licensed area and other charges.Once the number of allottees are identified, as discussed earlier, the amount of internal and external development cost has to be proportionately apportioned amongst each one of the eligible allottees. It is seen from the Scrutiny Committee Report and the status report filed by the State of Haryana, about 452 plot owners have got the sale deed from the Colonizer; some of the allottees are yet to get the sale deed. Section 8 of the Haryana Development and Regulation Urban Areas Act, 1975 (HDRA Act) inter alia provides for cancellation of licences if the Colonizer contravenes any of the conditions of the licence or the provisions of the HDRA Act and also provides for mode of carrying out the development works in the colony. Section 8(4) of the HDRA Act enables the Director to transfer the possession and title of the land to the plotthe allottees are identified and the allottees pay the apportioned development charges, the learned Arbitrator shall direct the Director to execute necessary documents in favour of the allottees in terms of Section 8(4) of the HDRA Act.Issue of encroachment and the expenses met by the Director, Town and Country Planning, Haryana in engaging the watch and ward of the licensedof claimants settled by the Scrutinynumber of eligible allottees are to be decided by the Arbitrator applying the parameters as set out in the order of the Arbitrator dated 07.05.2016 and the learned Arbitrator to determine the final list of eligible plot owners in all the categories – NPNL, Economic Weaker Sections (EWS) and General and also commercial.the allottees are identified and the allottees pay the apportioned development charges, the learned Arbitrator shall direct the Director to execute necessary documents in favour of the allottees in terms of Section 8(4) of the HDRAof claimants settled by the Scrutinynumber of eligible allottees are to be decided by the Arbitrator applying the parameters as set out in the order of the Arbitrator dated 07.05.2016 and the learned Arbitrator to determine the final list of eligible plot owners in all the categories – NPNL, Economic Weaker Sections (EWS) and General and alsothe allottees are identified and the allottees pay the apportioned development charges, the learned Arbitrator shall direct the Director to execute necessary documents in favour of the allottees in terms of Section 8(4) of the HDRA
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Gujarat Ambuja Cement Vs. Union Of India | of the Constitution of India. For deciding the aforesaid question, evidence was led by the contesting parties before the High Court and more voluminous evidence is led before us by the contesting parties in these appeals. However, unfortunately, the High Court in the impugned judgment has not thought it fit to address itself to this moot question presumably because of the stand as taken by learned senior counsel for the respondents, on the basis of counter filed in the High Court on their behalf that the grievance of the writ petitioners was academic as it was free for them not to purchase coal from these premium collieries by paying 10% more and they could well purchase coal from other collieries which were supplying requisite coal to them at cheaper rates. It is this stand which, as we have noted earlier, appealed to the High Court for disposing of the writ petitions without going into the main question in controversy between the parties as aforesaid. It is true that the stand of the respondents before the High Court was that it was not compulsory for the writ petitioners to purchase coal from premium collieries. It is also true that the same stand is reiterated before us by learned senior counsel for the respondents. But the real grievance of the writ petitioners which unfortunately remained unnoticed by the High Court is that during the relevant period with which we are concerned in the present proceedings, from a practical point of view, it was almost impossible for the writ petitioners to lift the coal from any other colliery except from these premium collieries on account of various problems faced by the writ petitioner manufacturers of cement as tried to be highlighted before us in the additional affidavit filed on behalf of the writ petitioners in Civil Appeal No. 2245 of 1996 at pages 265 to 268. It was contended before us in the light of the aforesaid grievance categorised in the said additional affidavit that during the relevant time production, distribution and sale of coal was a monopoly of the Union of India and that this power was conferred under the Colliery Control Order of 1945. The quotas of coal were allotted by Central Government under the said Order to the consumers of coal. The bulk transportation of coal was also under the Control of Union of India inasmuch as the same could only be done through railways as the railways are the monopoly of the Union of India. The price at which the coal had to be sold was fixed by the Central Government in the said Order of 1945. The quantity of coal allotted to bulk of consumers like the writ petitioners was admittedly being controlled by the linkage committee of the Central Government since the last number of years. Because of the direction of the linkage committee the coal allotted to the writ petitioners had to be lifted from the colliery assigned to it by the said committee. Therefore, there was no choice left to the writ petitioners in connection with lifting of coal from the colliery concerned. It was, therefore, submitted that it would not be correct to assume as done by the High Court that the grievance of the writ petitioners was imaginary or of academic nature. 9. Having given our anxious consideration to the rival contentions, we have reached the conclusion that the High Court simply assumed that the main grievance of the writ petitioners against 10% hike in price by way of premium was only of academic nature. The High Court had also not gone into the question whether the said grievance was really academic in view of the difficulties tried to be projected by the writ petitioners in that connection and which were highlighted before us by the aforesaid additional affidavit of the appellants in the leading appeal. Similar grievances were voiced before us by learned counsel of the other appellants whose writ petitions were also disposed of by the common judgment. Therefore, it was for the High Court to consider whether the grievance of the writ petitioners had become really academic in nature and if it was not of academic nature, then the question regarding the merits of the pricing policy in the light of the limited inquiry which was required to be undertaken on the touchstone of Article 14 of the Constitution of India had to be gone into by the High Court on a consideration of the voluminous evidence produced before it by the respective parties in support of their rival contentions. 10. Consequently, without expressing any opinion on the merits of the controversy between the parties, we deem it fit to set aside the impugned common judgment and restore all the writ petitions filed by the writ petitioners before the High Court in their original numbers for decision of the High Court on merits. The High Court is requested to consider the question whether the impugned premium of 10% as charged by the respondents from the writ petitioners is, in any way, violative of guarantee under Article 14 of the Constitution of India and also to go into the question whether the said grievance of the writ petitioners was really academic in nature or was a subsisting one requiring adjudication by the Court. All these questions will have to be considered by the High Court in the remanded proceedings. We would also request the High Court to decide all these questions including the main controversy on merits, even if after hearing the parties concerned, the High Court is once again inclined to take the view that the grievance of the petitioners was of academic nature. In that case the High Court may examine the said main grievance in the alternative. This request is made to the High Court in order to avoid any future possibility of further remand to the High Court in case its decision on the academic nature of writ petitioners grievance gets upset in the hierarchy of proceedings. | 1[ds]8. In our view, the aforesaid rival contentions would squarely pose the main question whether the charging of 10% premium over the price given in Table II to the impugned notification can be treated to be so unreasonable and arbitrary as to fall foul on the touchstone of Article 14 of the Constitution of India. For deciding the aforesaid question, evidence was led by the contesting parties before the High Court and more voluminous evidence is led before us by the contesting parties in these appeals. However, unfortunately, the High Court in the impugned judgment has not thought it fit to address itself to this moot question presumably because of the stand as taken by learned senior counsel for the respondents, on the basis of counter filed in the High Court on their behalf that the grievance of the writ petitioners was academic as it was free for them not to purchase coal from these premium collieries by paying 10% more and they could well purchase coal from other collieries which were supplying requisite coal to them at cheaper rates. It is this stand which, as we have noted earlier, appealed to the High Court for disposing of the writ petitions without going into the main question in controversy between the parties as aforesaid. It is true that the stand of the respondents before the High Court was that it was not compulsory for the writ petitioners to purchase coal from premium collieries. | 1 | 3,960 | 262 | ### Instruction:
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of the Constitution of India. For deciding the aforesaid question, evidence was led by the contesting parties before the High Court and more voluminous evidence is led before us by the contesting parties in these appeals. However, unfortunately, the High Court in the impugned judgment has not thought it fit to address itself to this moot question presumably because of the stand as taken by learned senior counsel for the respondents, on the basis of counter filed in the High Court on their behalf that the grievance of the writ petitioners was academic as it was free for them not to purchase coal from these premium collieries by paying 10% more and they could well purchase coal from other collieries which were supplying requisite coal to them at cheaper rates. It is this stand which, as we have noted earlier, appealed to the High Court for disposing of the writ petitions without going into the main question in controversy between the parties as aforesaid. It is true that the stand of the respondents before the High Court was that it was not compulsory for the writ petitioners to purchase coal from premium collieries. It is also true that the same stand is reiterated before us by learned senior counsel for the respondents. But the real grievance of the writ petitioners which unfortunately remained unnoticed by the High Court is that during the relevant period with which we are concerned in the present proceedings, from a practical point of view, it was almost impossible for the writ petitioners to lift the coal from any other colliery except from these premium collieries on account of various problems faced by the writ petitioner manufacturers of cement as tried to be highlighted before us in the additional affidavit filed on behalf of the writ petitioners in Civil Appeal No. 2245 of 1996 at pages 265 to 268. It was contended before us in the light of the aforesaid grievance categorised in the said additional affidavit that during the relevant time production, distribution and sale of coal was a monopoly of the Union of India and that this power was conferred under the Colliery Control Order of 1945. The quotas of coal were allotted by Central Government under the said Order to the consumers of coal. The bulk transportation of coal was also under the Control of Union of India inasmuch as the same could only be done through railways as the railways are the monopoly of the Union of India. The price at which the coal had to be sold was fixed by the Central Government in the said Order of 1945. The quantity of coal allotted to bulk of consumers like the writ petitioners was admittedly being controlled by the linkage committee of the Central Government since the last number of years. Because of the direction of the linkage committee the coal allotted to the writ petitioners had to be lifted from the colliery assigned to it by the said committee. Therefore, there was no choice left to the writ petitioners in connection with lifting of coal from the colliery concerned. It was, therefore, submitted that it would not be correct to assume as done by the High Court that the grievance of the writ petitioners was imaginary or of academic nature. 9. Having given our anxious consideration to the rival contentions, we have reached the conclusion that the High Court simply assumed that the main grievance of the writ petitioners against 10% hike in price by way of premium was only of academic nature. The High Court had also not gone into the question whether the said grievance was really academic in view of the difficulties tried to be projected by the writ petitioners in that connection and which were highlighted before us by the aforesaid additional affidavit of the appellants in the leading appeal. Similar grievances were voiced before us by learned counsel of the other appellants whose writ petitions were also disposed of by the common judgment. Therefore, it was for the High Court to consider whether the grievance of the writ petitioners had become really academic in nature and if it was not of academic nature, then the question regarding the merits of the pricing policy in the light of the limited inquiry which was required to be undertaken on the touchstone of Article 14 of the Constitution of India had to be gone into by the High Court on a consideration of the voluminous evidence produced before it by the respective parties in support of their rival contentions. 10. Consequently, without expressing any opinion on the merits of the controversy between the parties, we deem it fit to set aside the impugned common judgment and restore all the writ petitions filed by the writ petitioners before the High Court in their original numbers for decision of the High Court on merits. The High Court is requested to consider the question whether the impugned premium of 10% as charged by the respondents from the writ petitioners is, in any way, violative of guarantee under Article 14 of the Constitution of India and also to go into the question whether the said grievance of the writ petitioners was really academic in nature or was a subsisting one requiring adjudication by the Court. All these questions will have to be considered by the High Court in the remanded proceedings. We would also request the High Court to decide all these questions including the main controversy on merits, even if after hearing the parties concerned, the High Court is once again inclined to take the view that the grievance of the petitioners was of academic nature. In that case the High Court may examine the said main grievance in the alternative. This request is made to the High Court in order to avoid any future possibility of further remand to the High Court in case its decision on the academic nature of writ petitioners grievance gets upset in the hierarchy of proceedings.
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8. In our view, the aforesaid rival contentions would squarely pose the main question whether the charging of 10% premium over the price given in Table II to the impugned notification can be treated to be so unreasonable and arbitrary as to fall foul on the touchstone of Article 14 of the Constitution of India. For deciding the aforesaid question, evidence was led by the contesting parties before the High Court and more voluminous evidence is led before us by the contesting parties in these appeals. However, unfortunately, the High Court in the impugned judgment has not thought it fit to address itself to this moot question presumably because of the stand as taken by learned senior counsel for the respondents, on the basis of counter filed in the High Court on their behalf that the grievance of the writ petitioners was academic as it was free for them not to purchase coal from these premium collieries by paying 10% more and they could well purchase coal from other collieries which were supplying requisite coal to them at cheaper rates. It is this stand which, as we have noted earlier, appealed to the High Court for disposing of the writ petitions without going into the main question in controversy between the parties as aforesaid. It is true that the stand of the respondents before the High Court was that it was not compulsory for the writ petitioners to purchase coal from premium collieries.
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Kali Prasad Agarwall and Ors Vs. Bharat Coking Coal Limited and Ors | or has complied, with such terms and conditions as that government may think fit to impose, direct, by an order in writing, that the right, title and interest of an owner in relation to a coal mine referred to in Section 3, shall, instead of continuing to vest in the Central Government, vest in the government company either on the date of publication of the direction or on such earlier or later date (not being a date earlier than the appointed day), as may be specified in the direction." 12. Section 6(1) provides as under "(1) All property which vests in the Central Government or in a government company under this Chapter shall, by force of such vesting be freed and discharged from any trust, obligation, mortgage, charge, lien and all other incumbrances affecting it and any attachment, injunction or decree or order of any court restricting the use of such property in any manner shall be deemed to have been withdrawn." 13. Sections 8 to 10 in Chapter III provide for payment of compensation to owners of coal mines. Provisions under Chapter IV of the Act deal with claims to be made for compensation and for disbursing the amounts payable to the owners of coal mines by Commissioner of Payments. 14. On behalf of the plaintiffs, 11 witnesses were examined including plaintiff 1 himself. Most of the witnesses have not made any relevant statement on the question of location or user of the suit land. However, Kanhaiya Lal Agarwal, witness 6 for the plaintiff stated, "The land is full of collieries on all the four sides". Likewise Ram Briksha Viswakarma, witness 8 for the plaintiffs has stated that the suit land is a fallow land and no crop is grown on it and there is nothing except the road in between the suit land and the North Bhuggatdih Colliery. Witness 9 of the plaintiffs B. K. Mukherjee, who surveyed the locality and submitted a report statedAt the time of my inspection, the defendants were removing the over-burdened surface and then taking out coal and this is called open cast working....... I do not see the quarry by southern side of the leased coal land but do not remember whose quarry was there. There were coal all over the land but it was after the burden of earth was removed.... The coal was being cut at the depth of 25 from the surface. Adjoining the quarry, the land was not for homestead purposes. 15. The witnesses for the defendant company have specifically stated that the land in dispute constitutes the upper layer of the coal lying beneath and above the surface. The working of the mines is by open cast working system. When the mining operations are carried on in the other parts of the seam, the land is being used for the various purposes connected with the mining operations. 16. In the light of this evidence, the location of the suit land and the uses to which it is put to are beyond doubt. The land is being used for carrying on the mining operations and it is adjacent to a mine. It is used for the purposes of the mine for carrying on the mining operations in respect of the part of the seam lying immediately below the surface. Apparently, there cannot be any working mine without the surface being included in that concept. If the surface does not form part of the concept of mine, it is not possible to have any excavation. Section 2(h) (iv) includes open cast working within the definition of "mine". 17. Secondly, the suit land is also adjacent to a coal mine, namely, North Bhuggatdih Colliery and is being used for the purposes of the said mine, namely, stacking of the coal and effecting local sale thereof. It is, therefore, a mine as defined under Section 2(h) (vi) of the Act. 18. Under Section 3 of the Act, the right, title and interest of the owners in relation to the coal mines stand transferred to and shall vest absolutely in the Central Government free from encumbrances. For the purpose of acquisition and vesting, it is immaterial whether the mine belongs to the State or to the plaintiffs. In either case, the Act extinguishes the title. A Constitution Bench of this Court in State of West Bengal v. Union of India has held that under entry 42 of List III of the Seventh Schedule to the Constitution, Parliament is competent to make a law for acquisition of property owned by the State. 19. It was, however, urged for the appellants that there is no proper pleading or issue for determination of the aforesaid question and the evidence let in should not be looked into. It is too late to raise this contention. The parties went to trial knowing fully well what they were required to prove. They have adduced evidence of their choice in support of the respective claims. That evidence has been considered by both courts below. They cannot now turn round and say that the evidence should not be looked into. This is a well accepted principle. 20. In Kunju Kesavan v. M. M. Philip, this Court has stated (as summarised in the headnote at p. 637): "The parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagwati Valli or not. The absence of an issue, therefore, did not lead to a material sufficient of vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff stated in his replication that the "suit property was obtained as makkathayam property, by Bhagatvathi Valli under the Ezhava Act". The subject of exemption from Part IV of the Ezhava Act, was properly raised in the trial court and was rightly considered by the High Court." 21. On the facts and circumstances of the case we cannot, therefore, accept the contention urged for the appellant in this regard. | 0[ds]9. In our opinion, it is unnecessary to consider the first question and indeed it is not proper also to consider the question in the absence of the State which is a necessary party for adjudication of that dispute. The State of Bihar is not impleaded as a party to the suit and we, therefore, refrain from expressing any opinion on the first question. On the second question, the relevant provisions ofthe Coal Mines (Nationalisation) Act, 1973 (the Act) may now be2(h) defines "mines" to mean any excavation where any operation for the purpose of searching for or obtaining minerals has been or is being carried on, and includes -(iv) all open cast workings;(vi) all lands, buildings, works, adits, levels, planes, machinery and equipments, instruments, stores, vehicles, railways, tramways and siding on, or adjacent to, a mine and used for the purpose of the mine;(x) all lands, buildings and equipments belonging to the owners of the mine, and in, adjacent to or situated on the surface of, the mine where the washing of coal obtained from the mine or manufacture, therefrom, of coke is carriedSection 3, so far it is relevant,On the appointed day, the right, title and interest of the owners in relation to the coal mines specified in the Schedule shall stand transferred to, and shall vest absolutely in, the Central Government free from allSection 5(1) reads asNotwithstanding anything contained in Sections 3 and 4, the Central Government may, if it is satisfied that a government company is willing to comply, or has complied, with such terms and conditions as that government may think fit to impose, direct, by an order in writing, that the right, title and interest of an owner in relation to a coal mine referred to in Section 3, shall, instead of continuing to vest in the Central Government, vest in the government company either on the date of publication of the direction or on such earlier or later date (not being a date earlier than the appointed day), as may be specified in theSection 6(1) provides asAll property which vests in the Central Government or in a government company under this Chapter shall, by force of such vesting be freed and discharged from any trust, obligation, mortgage, charge, lien and all other incumbrances affecting it and any attachment, injunction or decree or order of any court restricting the use of such property in any manner shall be deemed to have beenSections 8 to 10 in Chapter III provide for payment of compensation to owners of coal mines. Provisions under Chapter IV of the Act deal with claims to be made for compensation and for disbursing the amounts payable to the owners of coal mines by Commissioner ofOn behalf of the plaintiffs, 11 witnesses were examined including plaintiff 1 himself. Most of the witnesses have not made any relevant statement on the question of location or user of the suit land. However, Kanhaiya Lal Agarwal, witness 6 for the plaintiff stated, "The land is full of collieries on all the four sides". Likewise Ram Briksha Viswakarma, witness 8 for the plaintiffs has stated that the suit land is a fallow land and no crop is grown on it and there is nothing except the road in between the suit land and the North Bhuggatdih Colliery. Witness 9 of the plaintiffs B. K. Mukherjee, who surveyed the locality and submitted a report statedAt the time of my inspection, the defendants were removing the over-burdened surface and then taking out coal and this is called open cast working....... I do not see the quarry by southern side of the leased coal land but do not remember whose quarry was there. There were coal all over the land but it was after the burden of earth was removed.... The coal was being cut at the depth of 25 from the surface. Adjoining the quarry, the land was not for homesteadThe witnesses for the defendant company have specifically stated that the land in dispute constitutes the upper layer of the coal lying beneath and above the surface. The working of the mines is by open cast working system. When the mining operations are carried on in the other parts of the seam, the land is being used for the various purposes connected with the miningIn the light of this evidence, the location of the suit land and the uses to which it is put to are beyond doubt. The land is being used for carrying on the mining operations and it is adjacent to a mine. It is used for the purposes of the mine for carrying on the mining operations in respect of the part of the seam lying immediately below the surface. Apparently, there cannot be any working mine without the surface being included in that concept. If the surface does not form part of the concept of mine, it is not possible to have any excavation. Section 2(h) (iv) includes open cast working within the definition ofSecondly, the suit land is also adjacent to a coal mine, namely, North Bhuggatdih Colliery and is being used for the purposes of the said mine, namely, stacking of the coal and effecting local sale thereof. It is, therefore, a mine as defined under Section 2(h) (vi) of theUnder Section 3 of the Act, the right, title and interest of the owners in relation to the coal mines stand transferred to and shall vest absolutely in the Central Government free from encumbrances. For the purpose of acquisition and vesting, it is immaterial whether the mine belongs to the State or to the plaintiffs. In either case, the Act extinguishes the title. A Constitution Bench of this Court in State of West Bengal v. Union of India has held that under entry 42 of List III of the Seventh Schedule to the Constitution, Parliament is competent to make a law for acquisition of property owned by theIt was, however, urged for the appellants that there is no proper pleading or issue for determination of the aforesaid question and the evidence let in should not be looked into. It is too late to raise this contention. The parties went to trial knowing fully well what they were required to prove. They have adduced evidence of their choice in support of the respective claims. That evidence has been considered by both courts below. They cannot now turn round and say that the evidence should not be looked into. This is a well acceptedIn Kunju Kesavan v. M. M. Philip, this Court has stated (as summarised in the headnote at p.parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagwati Valli or not. The absence of an issue, therefore, did not lead to a material sufficient of vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff stated in his replication that the "suit property was obtained as makkathayam property, by Bhagatvathi Valli under the Ezhava Act". The subject of exemption from Part IV of the Ezhava Act, was properly raised in the trial court and was rightly considered by the HighOn the facts and circumstances of the case we cannot, therefore, accept the contention urged for the appellant in this regard | 0 | 2,325 | 1,383 | ### 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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or has complied, with such terms and conditions as that government may think fit to impose, direct, by an order in writing, that the right, title and interest of an owner in relation to a coal mine referred to in Section 3, shall, instead of continuing to vest in the Central Government, vest in the government company either on the date of publication of the direction or on such earlier or later date (not being a date earlier than the appointed day), as may be specified in the direction." 12. Section 6(1) provides as under "(1) All property which vests in the Central Government or in a government company under this Chapter shall, by force of such vesting be freed and discharged from any trust, obligation, mortgage, charge, lien and all other incumbrances affecting it and any attachment, injunction or decree or order of any court restricting the use of such property in any manner shall be deemed to have been withdrawn." 13. Sections 8 to 10 in Chapter III provide for payment of compensation to owners of coal mines. Provisions under Chapter IV of the Act deal with claims to be made for compensation and for disbursing the amounts payable to the owners of coal mines by Commissioner of Payments. 14. On behalf of the plaintiffs, 11 witnesses were examined including plaintiff 1 himself. Most of the witnesses have not made any relevant statement on the question of location or user of the suit land. However, Kanhaiya Lal Agarwal, witness 6 for the plaintiff stated, "The land is full of collieries on all the four sides". Likewise Ram Briksha Viswakarma, witness 8 for the plaintiffs has stated that the suit land is a fallow land and no crop is grown on it and there is nothing except the road in between the suit land and the North Bhuggatdih Colliery. Witness 9 of the plaintiffs B. K. Mukherjee, who surveyed the locality and submitted a report statedAt the time of my inspection, the defendants were removing the over-burdened surface and then taking out coal and this is called open cast working....... I do not see the quarry by southern side of the leased coal land but do not remember whose quarry was there. There were coal all over the land but it was after the burden of earth was removed.... The coal was being cut at the depth of 25 from the surface. Adjoining the quarry, the land was not for homestead purposes. 15. The witnesses for the defendant company have specifically stated that the land in dispute constitutes the upper layer of the coal lying beneath and above the surface. The working of the mines is by open cast working system. When the mining operations are carried on in the other parts of the seam, the land is being used for the various purposes connected with the mining operations. 16. In the light of this evidence, the location of the suit land and the uses to which it is put to are beyond doubt. The land is being used for carrying on the mining operations and it is adjacent to a mine. It is used for the purposes of the mine for carrying on the mining operations in respect of the part of the seam lying immediately below the surface. Apparently, there cannot be any working mine without the surface being included in that concept. If the surface does not form part of the concept of mine, it is not possible to have any excavation. Section 2(h) (iv) includes open cast working within the definition of "mine". 17. Secondly, the suit land is also adjacent to a coal mine, namely, North Bhuggatdih Colliery and is being used for the purposes of the said mine, namely, stacking of the coal and effecting local sale thereof. It is, therefore, a mine as defined under Section 2(h) (vi) of the Act. 18. Under Section 3 of the Act, the right, title and interest of the owners in relation to the coal mines stand transferred to and shall vest absolutely in the Central Government free from encumbrances. For the purpose of acquisition and vesting, it is immaterial whether the mine belongs to the State or to the plaintiffs. In either case, the Act extinguishes the title. A Constitution Bench of this Court in State of West Bengal v. Union of India has held that under entry 42 of List III of the Seventh Schedule to the Constitution, Parliament is competent to make a law for acquisition of property owned by the State. 19. It was, however, urged for the appellants that there is no proper pleading or issue for determination of the aforesaid question and the evidence let in should not be looked into. It is too late to raise this contention. The parties went to trial knowing fully well what they were required to prove. They have adduced evidence of their choice in support of the respective claims. That evidence has been considered by both courts below. They cannot now turn round and say that the evidence should not be looked into. This is a well accepted principle. 20. In Kunju Kesavan v. M. M. Philip, this Court has stated (as summarised in the headnote at p. 637): "The parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagwati Valli or not. The absence of an issue, therefore, did not lead to a material sufficient of vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff stated in his replication that the "suit property was obtained as makkathayam property, by Bhagatvathi Valli under the Ezhava Act". The subject of exemption from Part IV of the Ezhava Act, was properly raised in the trial court and was rightly considered by the High Court." 21. On the facts and circumstances of the case we cannot, therefore, accept the contention urged for the appellant in this regard.
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shall vest absolutely in, the Central Government free from allSection 5(1) reads asNotwithstanding anything contained in Sections 3 and 4, the Central Government may, if it is satisfied that a government company is willing to comply, or has complied, with such terms and conditions as that government may think fit to impose, direct, by an order in writing, that the right, title and interest of an owner in relation to a coal mine referred to in Section 3, shall, instead of continuing to vest in the Central Government, vest in the government company either on the date of publication of the direction or on such earlier or later date (not being a date earlier than the appointed day), as may be specified in theSection 6(1) provides asAll property which vests in the Central Government or in a government company under this Chapter shall, by force of such vesting be freed and discharged from any trust, obligation, mortgage, charge, lien and all other incumbrances affecting it and any attachment, injunction or decree or order of any court restricting the use of such property in any manner shall be deemed to have beenSections 8 to 10 in Chapter III provide for payment of compensation to owners of coal mines. Provisions under Chapter IV of the Act deal with claims to be made for compensation and for disbursing the amounts payable to the owners of coal mines by Commissioner ofOn behalf of the plaintiffs, 11 witnesses were examined including plaintiff 1 himself. Most of the witnesses have not made any relevant statement on the question of location or user of the suit land. However, Kanhaiya Lal Agarwal, witness 6 for the plaintiff stated, "The land is full of collieries on all the four sides". Likewise Ram Briksha Viswakarma, witness 8 for the plaintiffs has stated that the suit land is a fallow land and no crop is grown on it and there is nothing except the road in between the suit land and the North Bhuggatdih Colliery. Witness 9 of the plaintiffs B. K. Mukherjee, who surveyed the locality and submitted a report statedAt the time of my inspection, the defendants were removing the over-burdened surface and then taking out coal and this is called open cast working....... I do not see the quarry by southern side of the leased coal land but do not remember whose quarry was there. There were coal all over the land but it was after the burden of earth was removed.... The coal was being cut at the depth of 25 from the surface. Adjoining the quarry, the land was not for homesteadThe witnesses for the defendant company have specifically stated that the land in dispute constitutes the upper layer of the coal lying beneath and above the surface. The working of the mines is by open cast working system. When the mining operations are carried on in the other parts of the seam, the land is being used for the various purposes connected with the miningIn the light of this evidence, the location of the suit land and the uses to which it is put to are beyond doubt. The land is being used for carrying on the mining operations and it is adjacent to a mine. It is used for the purposes of the mine for carrying on the mining operations in respect of the part of the seam lying immediately below the surface. Apparently, there cannot be any working mine without the surface being included in that concept. If the surface does not form part of the concept of mine, it is not possible to have any excavation. Section 2(h) (iv) includes open cast working within the definition ofSecondly, the suit land is also adjacent to a coal mine, namely, North Bhuggatdih Colliery and is being used for the purposes of the said mine, namely, stacking of the coal and effecting local sale thereof. It is, therefore, a mine as defined under Section 2(h) (vi) of theUnder Section 3 of the Act, the right, title and interest of the owners in relation to the coal mines stand transferred to and shall vest absolutely in the Central Government free from encumbrances. For the purpose of acquisition and vesting, it is immaterial whether the mine belongs to the State or to the plaintiffs. In either case, the Act extinguishes the title. A Constitution Bench of this Court in State of West Bengal v. Union of India has held that under entry 42 of List III of the Seventh Schedule to the Constitution, Parliament is competent to make a law for acquisition of property owned by theIt was, however, urged for the appellants that there is no proper pleading or issue for determination of the aforesaid question and the evidence let in should not be looked into. It is too late to raise this contention. The parties went to trial knowing fully well what they were required to prove. They have adduced evidence of their choice in support of the respective claims. That evidence has been considered by both courts below. They cannot now turn round and say that the evidence should not be looked into. This is a well acceptedIn Kunju Kesavan v. M. M. Philip, this Court has stated (as summarised in the headnote at p.parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagwati Valli or not. The absence of an issue, therefore, did not lead to a material sufficient of vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff stated in his replication that the "suit property was obtained as makkathayam property, by Bhagatvathi Valli under the Ezhava Act". The subject of exemption from Part IV of the Ezhava Act, was properly raised in the trial court and was rightly considered by the HighOn the facts and circumstances of the case we cannot, therefore, accept the contention urged for the appellant in this regard
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Manti Devi Vs. Kishun Sah @ Kishun Deo Sao | Kurian Joseph, J. 1. The appellants filed a suit before the Munsif Court, Patna City for ejectment of two katras on the ground of personal need. The appellants are mother and son. The suit was decreed on the following terms:- 27. Issue No.II:- Have the plaintiff got valid cause of action for the suit. The plaintiffs have sought for eviction of the defendants from the suit katras on the ground of their personal necessity. The plaintiffs have purchased the suit katra from the original landlord of the defendant no.1. The defendant no.1 denied to accept the plaintiff as his landlord and refused to pay the monthly rent to the plaintiffs. The defendant No.1 refused to pay rent to the plaintiffs on the ground that the plaintiffs were not landlord of the suit katra. The defendant no.1 also denied the relationship of tenant and landlord with the plaintiffs. It has been concluded above that the plaintiffs being the purchaser of the suit property stepped into the shoes of their vendors and by the fiction of law they become the landlord. In this view of the matter I find that the plaintiffs have got valid cause of action for the suit. In this way, Issue NO.II is also decided in favour of the plaintiffs. 28. Issue No.7:- Are the plaintiffs entitled to a decree for eviction as sought for or to any other relief or reliefs. It has been concluded above that the plaintiffs require the suit katras for their personal necessity and as such they are entitled to get the suit katras vacated by the tenants. It has also been concluded that the plaintiffs have purchased the suit katras from the real owners and they become the landlord or the aforesaid katra. In view of the above conclusion I also come to the conclusion that the plaintiff is entitled to get eviction decree against the defendants. In the facts and circumstances of the case the plaintiffs are also entitled to the cost of the suit. 29. In view of the above conclusion I find and hold that the defendants are liable to be evicted from the suit katras. Accordingly, the defendants are directed to vacate the suit katras within two months from the date of this order and to hand over the vacant possession thereof failing which the plaintiff shall be entitled to vacant possession of the suit katras by the process of law. 2. The respondents/tenants pursued the matter in revision before the High Court. The High Court took the view that the suit was liable to be dismissed for misjoinder of parties. The relevant consideration reads as follows:- In my view, the present case is not saved for the simple reason that where the plaintiffs had jointly petitioned to be the landlord and it is found that they are not landlord for the purposes of the suit in question, then jointly they has no causes of action. Further individually they had distinct causes of action as against distinct properties. The evidence does not distinguish the properties. It deals with the property as co owner which is incorrect. Their suit was instituted on a wrong and misconceived premise of joint/co ownership of premises. They had no joint personal necessity. In my view, it materially affects the merit of the case and is accordingly not saved by Section 99 of the Code of Civil Procedure. The decree of eviction is thus liable to be reversed and is accordingly set aside and the suit is dismissed. 3. We have heard Mr. Nagendra Rai, learned senior counsel appearing for the appellants and Mr. Gaurav Agrawal, learned counsel appearing for the respondents. 4. Learned senior counsel, inviting our attention to Section 99 of the Code of Civil Procedure, contends that no decree shall be reversed or varied substantially on account of non-joinder or misjoinder of parties. Section 99 of the Code of Civil Procedure reads as follows:- 99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.- No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court: Provided that nothing in this section shall apply to non-joinder of a necessary party. 5. The provision, in our view, is crystal clear. No decree can be reversed or substantially varied in appeal on account of misjoinder or non-joinder of parties. Under Section 141 of the Code of Civil Procedure, procedure under the Code in regard to suit shall be followed as far as it can be made applicable to proceedings in any Court of Civil jurisdiction. Therefore, what is provided under Section 99 of the Code of Civil Procedure in respect of appeal would apply to revision as well. | 1[ds]5. The provision, in our view, is crystal clear. No decree can be reversed or substantially varied in appeal on account of misjoinder or non-joinder of parties. Under Section 141 of the Code of Civil Procedure, procedure under the Code in regard to suit shall be followed as far as it can be made applicable to proceedings in any Court of Civil jurisdiction. Therefore, what is provided under Section 99 of the Code of Civil Procedure in respect of appeal would apply to revision as well | 1 | 899 | 98 | ### 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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Kurian Joseph, J. 1. The appellants filed a suit before the Munsif Court, Patna City for ejectment of two katras on the ground of personal need. The appellants are mother and son. The suit was decreed on the following terms:- 27. Issue No.II:- Have the plaintiff got valid cause of action for the suit. The plaintiffs have sought for eviction of the defendants from the suit katras on the ground of their personal necessity. The plaintiffs have purchased the suit katra from the original landlord of the defendant no.1. The defendant no.1 denied to accept the plaintiff as his landlord and refused to pay the monthly rent to the plaintiffs. The defendant No.1 refused to pay rent to the plaintiffs on the ground that the plaintiffs were not landlord of the suit katra. The defendant no.1 also denied the relationship of tenant and landlord with the plaintiffs. It has been concluded above that the plaintiffs being the purchaser of the suit property stepped into the shoes of their vendors and by the fiction of law they become the landlord. In this view of the matter I find that the plaintiffs have got valid cause of action for the suit. In this way, Issue NO.II is also decided in favour of the plaintiffs. 28. Issue No.7:- Are the plaintiffs entitled to a decree for eviction as sought for or to any other relief or reliefs. It has been concluded above that the plaintiffs require the suit katras for their personal necessity and as such they are entitled to get the suit katras vacated by the tenants. It has also been concluded that the plaintiffs have purchased the suit katras from the real owners and they become the landlord or the aforesaid katra. In view of the above conclusion I also come to the conclusion that the plaintiff is entitled to get eviction decree against the defendants. In the facts and circumstances of the case the plaintiffs are also entitled to the cost of the suit. 29. In view of the above conclusion I find and hold that the defendants are liable to be evicted from the suit katras. Accordingly, the defendants are directed to vacate the suit katras within two months from the date of this order and to hand over the vacant possession thereof failing which the plaintiff shall be entitled to vacant possession of the suit katras by the process of law. 2. The respondents/tenants pursued the matter in revision before the High Court. The High Court took the view that the suit was liable to be dismissed for misjoinder of parties. The relevant consideration reads as follows:- In my view, the present case is not saved for the simple reason that where the plaintiffs had jointly petitioned to be the landlord and it is found that they are not landlord for the purposes of the suit in question, then jointly they has no causes of action. Further individually they had distinct causes of action as against distinct properties. The evidence does not distinguish the properties. It deals with the property as co owner which is incorrect. Their suit was instituted on a wrong and misconceived premise of joint/co ownership of premises. They had no joint personal necessity. In my view, it materially affects the merit of the case and is accordingly not saved by Section 99 of the Code of Civil Procedure. The decree of eviction is thus liable to be reversed and is accordingly set aside and the suit is dismissed. 3. We have heard Mr. Nagendra Rai, learned senior counsel appearing for the appellants and Mr. Gaurav Agrawal, learned counsel appearing for the respondents. 4. Learned senior counsel, inviting our attention to Section 99 of the Code of Civil Procedure, contends that no decree shall be reversed or varied substantially on account of non-joinder or misjoinder of parties. Section 99 of the Code of Civil Procedure reads as follows:- 99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction.- No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the court: Provided that nothing in this section shall apply to non-joinder of a necessary party. 5. The provision, in our view, is crystal clear. No decree can be reversed or substantially varied in appeal on account of misjoinder or non-joinder of parties. Under Section 141 of the Code of Civil Procedure, procedure under the Code in regard to suit shall be followed as far as it can be made applicable to proceedings in any Court of Civil jurisdiction. Therefore, what is provided under Section 99 of the Code of Civil Procedure in respect of appeal would apply to revision as well.
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5. The provision, in our view, is crystal clear. No decree can be reversed or substantially varied in appeal on account of misjoinder or non-joinder of parties. Under Section 141 of the Code of Civil Procedure, procedure under the Code in regard to suit shall be followed as far as it can be made applicable to proceedings in any Court of Civil jurisdiction. Therefore, what is provided under Section 99 of the Code of Civil Procedure in respect of appeal would apply to revision as well
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Captain Ganpati Singhji Vs. State of Ajmer and Another | Regulation under which he purported to act.3. The learned Judicial Commissioner refused to issue the writ but granted leave to appeal under article 132(1) of the Constitution in the following terms: "I am of opinion that the question whether the regulation and the bye-laws framed thereunder amount to a reasonable restriction on the appellants fundamental right to hold a cattle fair in his own land involves a substantial question of law as to the interpretation of the Constitution".4. The leave is confined to the vires of the Regulation and the bye-laws but we allowed the appellant to attack the, validity of the District Magistrates action as well. It is admitted that the land on which the fair is normally held belongs to the appellant. That being so, he has a fundamental right under article 19(1)(f) which can only be restricted in the manner permitted by sub-clause (5). The holding of an annual fair is an occupation or business within the meaning of article 19 (1) (g), therefore, the appellant also has a fundamental right to engage in that occupation on his land provided it does not infringe any law imposing "reasonable restrictions on that right in the interests of the general public", or any law"relating to- (i) the professional or technical qualifications necessary for practising................ or carrying on" the occupation or business in question. (Article 19(6) as amended in 1951).The only law relevant here is sections 40 and 41 of Regulation III of 1877. Under section 40, the Chief Commissioner is empowered, among other things, to make rules about"(a) the maintenance of watch and ward, and the establishment of a proper system of conservancy and sanitation at fairs and other large public assemblies;(b) the imposition of taxes for the purposes mentioned in clause (a) of this section on persons holding or joining any of the assemblies therein referred to;........ .......... .....(e) the registration of cattle".5. Section 41 provides for penalties in the following terms:"The Chief Commissioner may, in making any rule under this Regulation, attach to the breach of it, in addition to any other consequences that would entire from such breach, a punishment, on conviction before a Magistrate, not exceeding rigorous or simple imprisonment for a month or a fine of two hundred rupees, or both".These sections were not impugned in the argument before us nor were they attacked in the petition made to the Judicial Commissioner, so we will pass on to the rules made by the Chief Commissioner.The first three sub-rules of Rule I deal with permits. They prohibit the holding of a fair except under a permit issued by the District Magistrate, and the District Magistrate is enjoined to- "satisfy himself, before issuing any permit, that the applicant is in a position to establish a proper system of conservancy, sanitation and watch and ward at the fair". The fourth sub-rule empowers the District Magistrateto "revoke any such permit without assigning any reasons or giving any previous notice".6. When the appellant applied for a permit on 9-7-1952) the District Magistrate replied: "It has been decided that as a matter of policy permits to hold fairs will be issued only to local bodies and not to private individuals. It is, therefore, regretted that you cannot be permitted to hold the fair and you are therefore requested to please abandon the idea".In our opinion, the rules travel beyond the Regulation in at least two respects. The Regulation empowers the Chief Commissioner to make rules for the establishment of a system of conservancy and sanitation. He can only do this by bringing a system into existence and incorporating it in his rules so that all concerned can know what the system is and make arrangements to comply with it. What he has done is to leave it to the District Magistrate to see that persons desiring to hold a fair are in a position "to establish a proper system of conservancy, etc." But who, according to this, is to determine what a proper system is: obviously the District Magistrate. Therefore, in effect, the rules empower the District Magistrate to make his own system and see that it is observed. But the Regulation confers this power on the Chief Commissioner and not on the District Magistrate, therefore the action of the Chief Commissioner in delegating this authority to the District Magistrate is ultra vires.7. Further, under the fourth sub-rule of Rule I the District Magistrate is empowered to revoke a permit granted "without assigning any reasons or giving any previous notice". This absolute and arbitrary power uncontrolled by any discretion is also ultra vires. The Regulation assumes the right of persons to hold fairs, and all it requires is that those who do so should have due regard for the requirements -of conservancy and sanitation; and in order that they may know just what these requirements are, the Chief Commissioner (not some lesser authority) is given the power to draw up a set of rules stating what is necessary. If they are in a position to observe these rules, they are, so far as the Regulation is concerned, entitled to hold their fair, for there is no other law restricting that right. Therefore, the Chief Commissioner cannot by Rule invest the District Magistrate with the right arbitrarily to prohibit that which the law and the Constitution, not only allow, but guarantee. As these sub-rules of Rule I are ultra vires, the District Magistrates order, which in effect prohibits the holding of the fair, is also bad for, without the aid of these rules or of some other law validlyempowering him to impose the ban, he has no power in himself to do it. The matter is covered by the decision of this Court in Tahir Hussain v. District Board, Muzafarnagar(A.I.R. 1954 S C. 630). The appeal is allowed and the order of the Judicial Commissioner is set aside. We declare that the rules are void to the extent indicated above and we quash the order of the District Magistrate dated 18-9-1952. | 1[ds]6. When the appellant applied for a permit onthe District Magistrate replied: "It has been decided that as a matter of policy permits to hold fairs will be issued only to local bodies and not to private individuals. It is, therefore, regretted that you cannot be permitted to hold the fair and you are therefore requested to please abandon the idea".In our opinion, the rules travel beyond the Regulation in at least two respects. The Regulation empowers the Chief Commissioner to make rules for the establishment of a system of conservancy and sanitation. He can only do this by bringing a system into existence and incorporating it in his rules so that all concerned can know what the system is and make arrangements to comply with it. What he has done is to leave it to the District Magistrate to see that persons desiring to hold a fair are in a position "to establish a proper system of conservancy, etc." But who, according to this, is to determine what a proper system is: obviously the District Magistrate. Therefore, in effect, the rules empower the District Magistrate to make his own system and see that it is observed. But the Regulation confers this power on the Chief Commissioner and not on the District Magistrate, therefore the action of the Chief Commissioner in delegating this authority to the District Magistrate is ultra vires.7. Further, under the fourthof Rule I the District Magistrate is empowered to revoke a permit granted "without assigning any reasons or giving any previous notice". This absolute and arbitrary power uncontrolled by any discretion is also ultra vires. The Regulation assumes the right of persons to hold fairs, and all it requires is that those who do so should have due regard for the requirementsof conservancy and sanitation; and in order that they may know just what these requirements are, the Chief Commissioner (not some lesser authority) is given the power to draw up a set of rules stating what is necessary. If they are in a position to observe these rules, they are, so far as the Regulation is concerned, entitled to hold their fair, for there is no other law restricting that right. Therefore, the Chief Commissioner cannot by Rule invest the District Magistrate with the right arbitrarily to prohibit that which the law and the Constitution, not only allow, but guarantee. As theseThe rules under which he is to grant or refuse permits in this behalf only authorise him to satisfy himself that the applicant is in a position to establish a proper system of conservancy, sanitation and watch and ward at the fair and also to impose such terms and conditions as he may deem fit. But they do not authorise him to reject an application on the ground on which he has done.2. The rules themselves under which the permit has been asked for and with reference to which the District Magistrate declined to grant the permit are not within the ambit of thepower. These rules purport to have been framed in exercise of the powers conferred by sections 40 and 41 of the Ajmer Laws Regulation, 1877. Section 40 authorises the framing of the rules "for the maintenance of watch and ward and the establishment of a proper system of conservancy and sanitation at fairs and other large public assemblies". But the actual rules as framed are to the effect (1) that no such fair can be held except under a permit of the District Magistrate, (2) that before issuing a permit the District Magistrate is to satisfy himself that the applicant is in a positiontion and watch and ward at the fair, (3) that when issuing a permit the District Magistrate can impose such terms and conditions as he may deem fit. The net effect of these rules is merely to establish a system of ad hoc control by the District Magistrate through the issue of a permit and by the vesting of other powers in him under the rules. These cannot be said to be rules which in themselves constitute a system of conservancy, sanitation and watch and ward. Thus the result that is brought about is not within the intendment of the section which authorises the making of the rules. A system of ad hoc control of responsible officers may, possibly be one method of regulating the sanitary and other arrangements at such large gatherings. But if it is intended to constitute a system of ad hoc control with reasonable safeguards, the power to make rules in that behalf must be granted to theauthority by the legislative organ in appropriate language. | 1 | 1,344 | 849 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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Regulation under which he purported to act.3. The learned Judicial Commissioner refused to issue the writ but granted leave to appeal under article 132(1) of the Constitution in the following terms: "I am of opinion that the question whether the regulation and the bye-laws framed thereunder amount to a reasonable restriction on the appellants fundamental right to hold a cattle fair in his own land involves a substantial question of law as to the interpretation of the Constitution".4. The leave is confined to the vires of the Regulation and the bye-laws but we allowed the appellant to attack the, validity of the District Magistrates action as well. It is admitted that the land on which the fair is normally held belongs to the appellant. That being so, he has a fundamental right under article 19(1)(f) which can only be restricted in the manner permitted by sub-clause (5). The holding of an annual fair is an occupation or business within the meaning of article 19 (1) (g), therefore, the appellant also has a fundamental right to engage in that occupation on his land provided it does not infringe any law imposing "reasonable restrictions on that right in the interests of the general public", or any law"relating to- (i) the professional or technical qualifications necessary for practising................ or carrying on" the occupation or business in question. (Article 19(6) as amended in 1951).The only law relevant here is sections 40 and 41 of Regulation III of 1877. Under section 40, the Chief Commissioner is empowered, among other things, to make rules about"(a) the maintenance of watch and ward, and the establishment of a proper system of conservancy and sanitation at fairs and other large public assemblies;(b) the imposition of taxes for the purposes mentioned in clause (a) of this section on persons holding or joining any of the assemblies therein referred to;........ .......... .....(e) the registration of cattle".5. Section 41 provides for penalties in the following terms:"The Chief Commissioner may, in making any rule under this Regulation, attach to the breach of it, in addition to any other consequences that would entire from such breach, a punishment, on conviction before a Magistrate, not exceeding rigorous or simple imprisonment for a month or a fine of two hundred rupees, or both".These sections were not impugned in the argument before us nor were they attacked in the petition made to the Judicial Commissioner, so we will pass on to the rules made by the Chief Commissioner.The first three sub-rules of Rule I deal with permits. They prohibit the holding of a fair except under a permit issued by the District Magistrate, and the District Magistrate is enjoined to- "satisfy himself, before issuing any permit, that the applicant is in a position to establish a proper system of conservancy, sanitation and watch and ward at the fair". The fourth sub-rule empowers the District Magistrateto "revoke any such permit without assigning any reasons or giving any previous notice".6. When the appellant applied for a permit on 9-7-1952) the District Magistrate replied: "It has been decided that as a matter of policy permits to hold fairs will be issued only to local bodies and not to private individuals. It is, therefore, regretted that you cannot be permitted to hold the fair and you are therefore requested to please abandon the idea".In our opinion, the rules travel beyond the Regulation in at least two respects. The Regulation empowers the Chief Commissioner to make rules for the establishment of a system of conservancy and sanitation. He can only do this by bringing a system into existence and incorporating it in his rules so that all concerned can know what the system is and make arrangements to comply with it. What he has done is to leave it to the District Magistrate to see that persons desiring to hold a fair are in a position "to establish a proper system of conservancy, etc." But who, according to this, is to determine what a proper system is: obviously the District Magistrate. Therefore, in effect, the rules empower the District Magistrate to make his own system and see that it is observed. But the Regulation confers this power on the Chief Commissioner and not on the District Magistrate, therefore the action of the Chief Commissioner in delegating this authority to the District Magistrate is ultra vires.7. Further, under the fourth sub-rule of Rule I the District Magistrate is empowered to revoke a permit granted "without assigning any reasons or giving any previous notice". This absolute and arbitrary power uncontrolled by any discretion is also ultra vires. The Regulation assumes the right of persons to hold fairs, and all it requires is that those who do so should have due regard for the requirements -of conservancy and sanitation; and in order that they may know just what these requirements are, the Chief Commissioner (not some lesser authority) is given the power to draw up a set of rules stating what is necessary. If they are in a position to observe these rules, they are, so far as the Regulation is concerned, entitled to hold their fair, for there is no other law restricting that right. Therefore, the Chief Commissioner cannot by Rule invest the District Magistrate with the right arbitrarily to prohibit that which the law and the Constitution, not only allow, but guarantee. As these sub-rules of Rule I are ultra vires, the District Magistrates order, which in effect prohibits the holding of the fair, is also bad for, without the aid of these rules or of some other law validlyempowering him to impose the ban, he has no power in himself to do it. The matter is covered by the decision of this Court in Tahir Hussain v. District Board, Muzafarnagar(A.I.R. 1954 S C. 630). The appeal is allowed and the order of the Judicial Commissioner is set aside. We declare that the rules are void to the extent indicated above and we quash the order of the District Magistrate dated 18-9-1952.
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6. When the appellant applied for a permit onthe District Magistrate replied: "It has been decided that as a matter of policy permits to hold fairs will be issued only to local bodies and not to private individuals. It is, therefore, regretted that you cannot be permitted to hold the fair and you are therefore requested to please abandon the idea".In our opinion, the rules travel beyond the Regulation in at least two respects. The Regulation empowers the Chief Commissioner to make rules for the establishment of a system of conservancy and sanitation. He can only do this by bringing a system into existence and incorporating it in his rules so that all concerned can know what the system is and make arrangements to comply with it. What he has done is to leave it to the District Magistrate to see that persons desiring to hold a fair are in a position "to establish a proper system of conservancy, etc." But who, according to this, is to determine what a proper system is: obviously the District Magistrate. Therefore, in effect, the rules empower the District Magistrate to make his own system and see that it is observed. But the Regulation confers this power on the Chief Commissioner and not on the District Magistrate, therefore the action of the Chief Commissioner in delegating this authority to the District Magistrate is ultra vires.7. Further, under the fourthof Rule I the District Magistrate is empowered to revoke a permit granted "without assigning any reasons or giving any previous notice". This absolute and arbitrary power uncontrolled by any discretion is also ultra vires. The Regulation assumes the right of persons to hold fairs, and all it requires is that those who do so should have due regard for the requirementsof conservancy and sanitation; and in order that they may know just what these requirements are, the Chief Commissioner (not some lesser authority) is given the power to draw up a set of rules stating what is necessary. If they are in a position to observe these rules, they are, so far as the Regulation is concerned, entitled to hold their fair, for there is no other law restricting that right. Therefore, the Chief Commissioner cannot by Rule invest the District Magistrate with the right arbitrarily to prohibit that which the law and the Constitution, not only allow, but guarantee. As theseThe rules under which he is to grant or refuse permits in this behalf only authorise him to satisfy himself that the applicant is in a position to establish a proper system of conservancy, sanitation and watch and ward at the fair and also to impose such terms and conditions as he may deem fit. But they do not authorise him to reject an application on the ground on which he has done.2. The rules themselves under which the permit has been asked for and with reference to which the District Magistrate declined to grant the permit are not within the ambit of thepower. These rules purport to have been framed in exercise of the powers conferred by sections 40 and 41 of the Ajmer Laws Regulation, 1877. Section 40 authorises the framing of the rules "for the maintenance of watch and ward and the establishment of a proper system of conservancy and sanitation at fairs and other large public assemblies". But the actual rules as framed are to the effect (1) that no such fair can be held except under a permit of the District Magistrate, (2) that before issuing a permit the District Magistrate is to satisfy himself that the applicant is in a positiontion and watch and ward at the fair, (3) that when issuing a permit the District Magistrate can impose such terms and conditions as he may deem fit. The net effect of these rules is merely to establish a system of ad hoc control by the District Magistrate through the issue of a permit and by the vesting of other powers in him under the rules. These cannot be said to be rules which in themselves constitute a system of conservancy, sanitation and watch and ward. Thus the result that is brought about is not within the intendment of the section which authorises the making of the rules. A system of ad hoc control of responsible officers may, possibly be one method of regulating the sanitary and other arrangements at such large gatherings. But if it is intended to constitute a system of ad hoc control with reasonable safeguards, the power to make rules in that behalf must be granted to theauthority by the legislative organ in appropriate language.
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State of West Bengal & Others Vs. Bata Krishna Burman | two rules were valid.11. The aforesaid conclusion of the Letters Patent Bench really concluded the matter and the respondents writ petition had to be allowed. But the learned Single Judge, as also the learned Judges forming the Letters Patent Bench, went into the question of the validity of the said rules. That, in our view, was not necessary for the purposes of the case. It is true that the learned Single Judge went into the question of the validity of the said rules as it was contended before him that the said rules placed unreasonable restrictions on the respondents freedom of speech and expression guaranteed by Art. 19 (1) (a) and (b), and were not saved by cl. (2) of that article. Reliance was placed before him on an earlier decision of Sinha. J. in Krishna C. Chatterjee v. Chief Supdt. Central Telegraph Office Calcutta, AIR 1955 Cal 76 where the words in R. 20 (1), namely, "capable of embarrassing" were held to be vague and the freedom of speech and expression having been made therein subject to "the arbitrary subjective satisfaction" of a few persons in authority. In the opinion of the learned Single Judge, the word "embarrassing" could not be regarded as vague or uncertain, as expressions such as "lending to embarrass the administration of justice" and "calculated to prejudice the fair trial of a case" were well known judicial expressions used in cases of contempt of court, and therefore, R. 20 (l) according to him could not be held to be vague or uncertain. On merits, he found that the impugned order itself showed that the Director had not wholly condoned "the misconduct" of the respondent and that on the other hand, he had been administered a warning not to take part in politics in future. Therefore, the grant of 25 p.c. of his pay only during the suspension period was justified. In this view he dismissed the respondents writ petition. The Letters Patent Bench disagreed with the reasoning of the learned Single Judge and thought that the decisions of this Court in Kameshwar Prasad v. State of Bihar 1962 Supp (3) SCR 369 = (AIR 1962 SC 1166 ) and O. E. Ghosh v. E. X. Joseph, 1963 Supp (1) SCR 789 = (AIR 1963 SC 812 ) in relation to R. 4 (A) of the Bihar Government Servants Conduct Rules, 1956 and Rr. 4 (A) and 4 (B) of the Central Civil Services (Conduct) Rules, 1955, applied against R. 23 (1) (i) of the rules in question, and held that that rule violated Art. 19 (1) (a) and (b) and was not protected by cl (2) of that Article, and consequent1y, held that rule to be invalid.12. We are of the opinion that In view of the clear statements made by the Director in his counter-affidavit the respondent could not be held responsible for the publication of the said pamphlet. As aforesaid, there was not and could not be such a finding, and therefore, R. 20 could not be invoked against him. Similarly, since even according to the Director, the respondent was connected only with the Arya Samaj, in the absence of any finding that the Arya Samaj was either a political movement or a political organisation, R. 23 also could not be invoked against him. That being the position, the impugned order passed, as a disciplinary measure against him was not sustainable under either of the said two rules and had, therefore, to be quashed. In this view the Letters Patent Bench could have concluded the appeal before it without going into the question as to the validity of the said two rules.13. It is true that the learned Single Judge had cast doubt on the correctness of the decision of Sinha, J. on R. 20 of the said Rules in the case of Krishna C. Chatterjee, AIR 1955 Cal 76 . But he had not based his decision in the present case on any finding that the respondent had published the said pamphlet and was therefore guilty of breach of R. 20. Consequently, R. 20 could not be applied by him against the respondent in the absence of any finding by the Director that the respondent had published the said pamphlet. It was, therefore, not necessary for the Letters Patent Bench to go into the question of the validity of R. 20. Regarding R. 23, that rule was not the subject matter in the case of Krishna C. Chatterjee, AIR 1955 Cal 76 . For the reasons already set out above, R. 23 also could not be pressed into service against the respondent. The learned Single Judge, no doubt, upheld the impugned order but that was on an assumption by him that the respondent was guilty of misconduct, i.e., misconduct of being politically connected. But that assumption was unjustified as there was no such charge against the respondent nor was any finding that he was connected or associated with any political organisation or party. On this ground alone the judgment of the learned Single Judge was liable to be reversed. Thus it was not necessary for the Letters Patent Bench to decide the question of validity of either R. 20 or R. 23 and that question was only academic.14. In these circumstances, we ourselves do not feel called upon to go into the question of the validity of the said two rules on which, we feel, much can be said by both the sides It may be that the view taken by the Letters Patent Bench will bind the State Government whenever it seeks to take action against any one of its servants in future. But the correctness of the view taken by the Bench in this case can be challenged in future by the Government, if it considers it necessary, in a more suitable case. So far as the present case is concerned, the controversy is altogether academic as on merits neither of the two rules could be invoked against the respondent. | 1[ds]5. It may be noticed that the order did not contain any finding on the four charges served on the respondent or any one of them It did not also state that the respondent had published the said pamphlet or that in consequence of his having published it, he was responsible for embarrassing the Government in its relations with the public or any section thereof, or that the publication by him constituted his participating actively in politics, or that because of such alleged publication by him he was guilty of carrying on propaganda in connection with any general elections or that he was, therefore, guilty of breach of Rules 20 and 23 of the said rules.6. As appearing from thefiled by the Director (Transportation), no such finding was possible as none of the said charges was brought home to the respondent. Indeed, the Director, in the said affidavit, could only say that the documentary and oral evidence adduced in the said enquiry showed; (a) that the petitioner was the secretary of the Arya Samaj at whose instance the said pamphlet had been printed and the respondents name was printed as its publisher, (b) that it was admitted by the respondent that the books and pamphlets of the Arya Samaj were printed at the Satyanarain Press and (c) that the respondent had actively been participating in politics. He conceded that the only conclusion he could come to was that the petitioner (i.e., the respondent) was politically connected although it vas difficult to establish the same from the available records and as a disciplinary measure the petitioner was granted a subsistence allowance during the period of his suspension and warned not to take part in any political activities."It is clear from this concession that it was not possible for the Director to hold, on the available data before him, the respondent guilty of any of the four charges preferred against him. A fortiori he could not be held guilty of having violated Rule 20 or Rule 23 That being so, it is impossible to understand how the order of suspension, the payment to the respondent of only 25 per cent of his basic pay and the warning ad ministered to him, all as disciplinary measures, i.e., as penalties, could possibly beis true, as thestated that the respondent was the secretary of the Arya Samaj at whose instance the said pamphlet had been printed and the respondents name was published therein as its publisher. But the respondents case all throughout was that his name was mentioned in the said pamphlet as its publisher without his knowledge or consent. There was no finding that the respondents case was untrue. In the absence of such a finding and holding the respondent responsible for the publication of the said pamphlet, the charge of violating Rule 20 against him was clearly unsustainable. Further, there was no finding that the said pamphlet contained any statement of fact or opinion which was capable of embarrassing the relations between the Government and the people of India or any section thereof, or the relations between the Government on the one hand and any foreign country or the ruler of any State in India as required by Rule 20 (1).9. The position in regard to Rule 23 was even less sustainable. None of the four charges preferred against him alleged that he had taken part in or subscribed in aid of or assisted in any way any political movement in India or relating to Indian affairs. There was no finding, nor was there any allegation in the Directors saidthat the Arya Samaj, of which the respondent was the secretary, was a political movement in which the respondent had taken part or had rendered any assistance. There being no such charge or finding, the respondent obviously could not be held guilty of any breach of Rule 23. As already stated, the only conclusion arrived at by the Director, if it could at all be characterised as a conclusion. was that the respondent was "politically connected". Such a statement was not a conclusion because the Director did not specify with what movement or party or organisation the respondent was politically connected. The only connection referred to was with the Arya Samaj which was not found or named by the Director as a political movement or a political organisation. The statement, therefore, was not only vague but was a mere speculation on the part of the Director, since it was not based on any evidence andas the Director himself confessed in his"it was difficult to establish the same from the available records". Such a finding was therefore, no finding based on any evidence, and could not be depended upon and made the basis for any disciplinary penalty.10.There was, therefore, no question of either R. 20 or R. 23 being enforced against the respondent. The order imposing the penalty of3/4th of the basic pay and directing to pay to the respondent only 1/4th thereof and the warning issued to him both as and by way of penalties was without any basis and was therefore bad. The Letters Patent Bench of the High Court, therefore, was right in allowing the respondents writ petition and setting aside the order even on the assumption that said two rules were valid.11. The aforesaid conclusion of the Letters Patent Bench really concluded the matter and the respondents writ petition had to be allowed. But the learned Single Judge, as also the learned Judges forming the Letters Patent Bench, went into the question of the validity of the said rules. That, in our view, was not necessary for the purposes of the case. It is true that the learned Single Judge went into the question of the validity of the said rules as it was contended before him that the said rules placed unreasonable restrictions on the respondents freedom of speech and expression guaranteed by Art. 19 (1) (a) and (b), and were not saved by cl. (2) of that article.We are of the opinion that In view of the clear statements made by the Director in histhe respondent could not be held responsible for the publication of the said pamphlet. As aforesaid, there was not and could not be such a finding, and therefore, R. 20 could not be invoked against him. Similarly, since even according to the Director, the respondent was connected only with the Arya Samaj, in the absence of any finding that the Arya Samaj was either a political movement or a political organisation, R. 23 also could not be invoked against him. That being the position, the impugned order passed, as a disciplinary measure against him was not sustainable under either of the said two rules and had, therefore, to be quashed. In this view the Letters Patent Bench could have concluded the appeal before it without going into the question as to the validity of the said two rules.13. It is true that the learned Single Judge had cast doubt on the correctness of the decision of Sinha, J. on R. 20 of the said Rules in the case of Krishna C. Chatterjee, AIR 1955 Cal 76 . But he had not based his decision in the present case on any finding that the respondent had published the said pamphlet and was therefore guilty of breach of R. 20. Consequently, R. 20 could not be applied by him against the respondent in the absence of any finding by the Director that the respondent had published the said pamphlet. It was, therefore, not necessary for the Letters Patent Bench to go into the question of the validity of R. 20. Regarding R. 23, that rule was not the subject matter in the case of Krishna C. Chatterjee, AIR 1955 Cal 76 . For the reasons already set out above, R. 23 also could not be pressed into service against the respondent. The learned Single Judge, no doubt, upheld the impugned order but that was on an assumption by him that the respondent was guilty of misconduct, i.e., misconduct of being politically connected. But that assumption was unjustified as there was no such charge against the respondent nor was any finding that he was connected or associated with any political organisation or party. On this ground alone the judgment of the learned Single Judge was liable to be reversed. Thus it was not necessary for the Letters Patent Bench to decide the question of validity of either R. 20 or R. 23 and that question was only academic.14. In these circumstances, we ourselves do not feel called upon to go into the question of the validity of the said two rules on which, we feel, much can be said by both the sides It may be that the view taken by the Letters Patent Bench will bind the State Government whenever it seeks to take action against any one of its servants in future. But the correctness of the view taken by the Bench in this case can be challenged in future by the Government, if it considers it necessary, in a more suitable case. So far as the present case is concerned, the controversy is altogether academic as on merits neither of the two rules could be invoked against the respondent. | 1 | 3,049 | 1,693 | ### Instruction:
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two rules were valid.11. The aforesaid conclusion of the Letters Patent Bench really concluded the matter and the respondents writ petition had to be allowed. But the learned Single Judge, as also the learned Judges forming the Letters Patent Bench, went into the question of the validity of the said rules. That, in our view, was not necessary for the purposes of the case. It is true that the learned Single Judge went into the question of the validity of the said rules as it was contended before him that the said rules placed unreasonable restrictions on the respondents freedom of speech and expression guaranteed by Art. 19 (1) (a) and (b), and were not saved by cl. (2) of that article. Reliance was placed before him on an earlier decision of Sinha. J. in Krishna C. Chatterjee v. Chief Supdt. Central Telegraph Office Calcutta, AIR 1955 Cal 76 where the words in R. 20 (1), namely, "capable of embarrassing" were held to be vague and the freedom of speech and expression having been made therein subject to "the arbitrary subjective satisfaction" of a few persons in authority. In the opinion of the learned Single Judge, the word "embarrassing" could not be regarded as vague or uncertain, as expressions such as "lending to embarrass the administration of justice" and "calculated to prejudice the fair trial of a case" were well known judicial expressions used in cases of contempt of court, and therefore, R. 20 (l) according to him could not be held to be vague or uncertain. On merits, he found that the impugned order itself showed that the Director had not wholly condoned "the misconduct" of the respondent and that on the other hand, he had been administered a warning not to take part in politics in future. Therefore, the grant of 25 p.c. of his pay only during the suspension period was justified. In this view he dismissed the respondents writ petition. The Letters Patent Bench disagreed with the reasoning of the learned Single Judge and thought that the decisions of this Court in Kameshwar Prasad v. State of Bihar 1962 Supp (3) SCR 369 = (AIR 1962 SC 1166 ) and O. E. Ghosh v. E. X. Joseph, 1963 Supp (1) SCR 789 = (AIR 1963 SC 812 ) in relation to R. 4 (A) of the Bihar Government Servants Conduct Rules, 1956 and Rr. 4 (A) and 4 (B) of the Central Civil Services (Conduct) Rules, 1955, applied against R. 23 (1) (i) of the rules in question, and held that that rule violated Art. 19 (1) (a) and (b) and was not protected by cl (2) of that Article, and consequent1y, held that rule to be invalid.12. We are of the opinion that In view of the clear statements made by the Director in his counter-affidavit the respondent could not be held responsible for the publication of the said pamphlet. As aforesaid, there was not and could not be such a finding, and therefore, R. 20 could not be invoked against him. Similarly, since even according to the Director, the respondent was connected only with the Arya Samaj, in the absence of any finding that the Arya Samaj was either a political movement or a political organisation, R. 23 also could not be invoked against him. That being the position, the impugned order passed, as a disciplinary measure against him was not sustainable under either of the said two rules and had, therefore, to be quashed. In this view the Letters Patent Bench could have concluded the appeal before it without going into the question as to the validity of the said two rules.13. It is true that the learned Single Judge had cast doubt on the correctness of the decision of Sinha, J. on R. 20 of the said Rules in the case of Krishna C. Chatterjee, AIR 1955 Cal 76 . But he had not based his decision in the present case on any finding that the respondent had published the said pamphlet and was therefore guilty of breach of R. 20. Consequently, R. 20 could not be applied by him against the respondent in the absence of any finding by the Director that the respondent had published the said pamphlet. It was, therefore, not necessary for the Letters Patent Bench to go into the question of the validity of R. 20. Regarding R. 23, that rule was not the subject matter in the case of Krishna C. Chatterjee, AIR 1955 Cal 76 . For the reasons already set out above, R. 23 also could not be pressed into service against the respondent. The learned Single Judge, no doubt, upheld the impugned order but that was on an assumption by him that the respondent was guilty of misconduct, i.e., misconduct of being politically connected. But that assumption was unjustified as there was no such charge against the respondent nor was any finding that he was connected or associated with any political organisation or party. On this ground alone the judgment of the learned Single Judge was liable to be reversed. Thus it was not necessary for the Letters Patent Bench to decide the question of validity of either R. 20 or R. 23 and that question was only academic.14. In these circumstances, we ourselves do not feel called upon to go into the question of the validity of the said two rules on which, we feel, much can be said by both the sides It may be that the view taken by the Letters Patent Bench will bind the State Government whenever it seeks to take action against any one of its servants in future. But the correctness of the view taken by the Bench in this case can be challenged in future by the Government, if it considers it necessary, in a more suitable case. So far as the present case is concerned, the controversy is altogether academic as on merits neither of the two rules could be invoked against the respondent.
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even less sustainable. None of the four charges preferred against him alleged that he had taken part in or subscribed in aid of or assisted in any way any political movement in India or relating to Indian affairs. There was no finding, nor was there any allegation in the Directors saidthat the Arya Samaj, of which the respondent was the secretary, was a political movement in which the respondent had taken part or had rendered any assistance. There being no such charge or finding, the respondent obviously could not be held guilty of any breach of Rule 23. As already stated, the only conclusion arrived at by the Director, if it could at all be characterised as a conclusion. was that the respondent was "politically connected". Such a statement was not a conclusion because the Director did not specify with what movement or party or organisation the respondent was politically connected. The only connection referred to was with the Arya Samaj which was not found or named by the Director as a political movement or a political organisation. The statement, therefore, was not only vague but was a mere speculation on the part of the Director, since it was not based on any evidence andas the Director himself confessed in his"it was difficult to establish the same from the available records". Such a finding was therefore, no finding based on any evidence, and could not be depended upon and made the basis for any disciplinary penalty.10.There was, therefore, no question of either R. 20 or R. 23 being enforced against the respondent. The order imposing the penalty of3/4th of the basic pay and directing to pay to the respondent only 1/4th thereof and the warning issued to him both as and by way of penalties was without any basis and was therefore bad. The Letters Patent Bench of the High Court, therefore, was right in allowing the respondents writ petition and setting aside the order even on the assumption that said two rules were valid.11. The aforesaid conclusion of the Letters Patent Bench really concluded the matter and the respondents writ petition had to be allowed. But the learned Single Judge, as also the learned Judges forming the Letters Patent Bench, went into the question of the validity of the said rules. That, in our view, was not necessary for the purposes of the case. It is true that the learned Single Judge went into the question of the validity of the said rules as it was contended before him that the said rules placed unreasonable restrictions on the respondents freedom of speech and expression guaranteed by Art. 19 (1) (a) and (b), and were not saved by cl. (2) of that article.We are of the opinion that In view of the clear statements made by the Director in histhe respondent could not be held responsible for the publication of the said pamphlet. As aforesaid, there was not and could not be such a finding, and therefore, R. 20 could not be invoked against him. Similarly, since even according to the Director, the respondent was connected only with the Arya Samaj, in the absence of any finding that the Arya Samaj was either a political movement or a political organisation, R. 23 also could not be invoked against him. That being the position, the impugned order passed, as a disciplinary measure against him was not sustainable under either of the said two rules and had, therefore, to be quashed. In this view the Letters Patent Bench could have concluded the appeal before it without going into the question as to the validity of the said two rules.13. It is true that the learned Single Judge had cast doubt on the correctness of the decision of Sinha, J. on R. 20 of the said Rules in the case of Krishna C. Chatterjee, AIR 1955 Cal 76 . But he had not based his decision in the present case on any finding that the respondent had published the said pamphlet and was therefore guilty of breach of R. 20. Consequently, R. 20 could not be applied by him against the respondent in the absence of any finding by the Director that the respondent had published the said pamphlet. It was, therefore, not necessary for the Letters Patent Bench to go into the question of the validity of R. 20. Regarding R. 23, that rule was not the subject matter in the case of Krishna C. Chatterjee, AIR 1955 Cal 76 . For the reasons already set out above, R. 23 also could not be pressed into service against the respondent. The learned Single Judge, no doubt, upheld the impugned order but that was on an assumption by him that the respondent was guilty of misconduct, i.e., misconduct of being politically connected. But that assumption was unjustified as there was no such charge against the respondent nor was any finding that he was connected or associated with any political organisation or party. On this ground alone the judgment of the learned Single Judge was liable to be reversed. Thus it was not necessary for the Letters Patent Bench to decide the question of validity of either R. 20 or R. 23 and that question was only academic.14. In these circumstances, we ourselves do not feel called upon to go into the question of the validity of the said two rules on which, we feel, much can be said by both the sides It may be that the view taken by the Letters Patent Bench will bind the State Government whenever it seeks to take action against any one of its servants in future. But the correctness of the view taken by the Bench in this case can be challenged in future by the Government, if it considers it necessary, in a more suitable case. So far as the present case is concerned, the controversy is altogether academic as on merits neither of the two rules could be invoked against the respondent.
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Kanti Lal Bose Vs. State of West Bengal | of the same by the State Government. Learned counsel for the respondent, who had the Government file relating to the detention of the petitioner, could not furnish any explanation as to why the Government took a long period of 28 days to consider and reject the petitioners representation. In the absence of any cogent ground the failure of the State Government to consider the representation of the petitioner and pass an order thereon for a period of 28 days would, in our opinion, invalidate the detention of the petitioner. 6. In the case of Jayanarayan Sukul v. State of West Bengal ((1970) 3 SCR 225 : (1970) 1 SCC 219.) the Constitution Bench of this Court emphasized the imperative necessity of the consideration of the representation made by a detenu by the Government as early as possible. It was observed : "It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.No define time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible." 7. The detenu in that case a representation to the State Government on June 23, 1969, and the same was rejected by the said Government on August 9, 1969. It was held that the Government was guilty of infraction of constitutional provision because of the inordinate delay in considering the representation. The petitioner was accordingly set at liberty. 8. Reliance in the case of Jayanarayan v. State of W.B. (supra) was palace upon the earlier decision of this Court in the case of Khairul Haque v. State of W.B. (W.P. No. 246 of 1969, decided on September 10, 1969.) In that case this Court held that Article 22(5) of the Constitution envisaged a dual obligation of the Government and a corresponding dual right in favour of a detenu, namely : (1) to have his representation independently considered by the Government, and (2) to have that representation, in the light of the facts and circumstances of the case, considered by an Advisory Board. It was observed that the said provision enjoined upon the detaining authority to afford to the detenu the earliest opportunity to make a representation. This fact, in the opinion of the Court, necessarily implied that such a representation must, when made, be considered and disposed of as expeditiously as possible, for otherwise "the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning". In Prof. K.I. Singh v. State of Manipur (AIR 1972 SC 438 : (1972) 2 SCC 576.) , this Court held that an unexplained delay of 17 days was enough to render the detention illegal. In Baidya Nath Chunkar v. State West Bengal (W.P. No. 377 of 1971, decided on March 14, 1972 : (1972) 2 SCC 473.) , unexplained delay of 29 days in considering the representation was held to have vitiated the detention of the detenu. In the case of Nagendra Nath Mondal v. State of West Bengal ((1972) 1 SCC 498.) on the other hand, although 34 days had elapsed between the receipt of the representation and its disposal by the Government, the delay was held by this Court to have been satisfactorily explained. The cases mentioned above were referred to by this Court in Ranjit Das v. State of West Bengal (W.P. No. 14 of 1972, decided on May 3, 1972.), and it was held that unexplained delay of 19 days in considering the detenus representation would invalidate the detention. In the present case, as stated earlier the delay of 28 days in considering an rejecting the representation of the petitioner has not been explained. The said delay would consequently vitiate the detention of the petitioner. 9. Mr. Ghosh has referred to a decision of this Court in the case of Arun Kumar Roy alias Katu v. State of West Bengal (W.P. No. 52 of 1972, decided on May 3, 1972.). The representation of the detenu in that case was received by the State Government on October 7, 1971, and after consideration was rejected by the said Government on November 17, 1971. The fact, that a period of one month and ten days elapsed between the receipt of the detenus representation and its disposal by the State Government was enough, according to the submission made in that case, to invalidate the detention. This submission was rejected on the ground that the petitioner had make no grievance in the writ petition about the delay in the consideration of his representation. It was observed that if any such plea had been taken, the Court would have had to consider whether the Government had any explanation to offer for the delay. The above case, in our opinion cannot be of much assistance to the respondent-State. As stated earlier, the counsel arguing on behalf of the petitioner had been permitted to take additional grounds. One of those grounds specially dealt with the point that respondent had made an inordinate delay in considering the representation of the petitioner and, as such, had contravened Article 22(5) of the Constitution. The learned counsel for the respondent-State thereafter looked into the official file and could furnish no explanation for the failure of the State Government to consider the representation of the petitioner till September 8, 1971. | 1[ds]5. It was argued on behalf of the petitioner that his representation was received by the State Government on August 11, 1971. The State Government considered the representation and rejected it on September 8, 1971. There thus elapsed a period of 28 days between the receipt of the petitioners representation and the consideration and rejection of the same by the State Government.8. Reliance in the case of Jayanarayan v. State of W.B. (supra) was palace upon the earlier decision of this Court in the case of Khairul Haque v. State of W.B. (W.P. No. 246 of 1969, decided on September 10, 1969.) In that case this Court held that Article 22(5) of the Constitution envisaged a dual obligation of the Government and a corresponding dual right in favour of a detenu, namely : (1) to have his representation independently considered by the Government, and (2) to have that representation, in the light of the facts and circumstances of the case, considered by an Advisory Board. It was observed that the said provision enjoined upon the detaining authority to afford to the detenu the earliest opportunity to make a representation. This fact, in the opinion of the Court, necessarily implied that such a representation must, when made, be considered and disposed of as expeditiously as possible, for otherwise "the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning". In Prof. K.I. Singh v. State of Manipur (AIR 1972 SC 438 : (1972) 2 SCC 576.) , this Court held that an unexplained delay of 17 days was enough to render the detention illegal. In Baidya Nath Chunkar v. State West Bengal (W.P. No. 377 of 1971, decided on March 14, 1972 : (1972) 2 SCC 473.) , unexplained delay of 29 days in considering the representation was held to have vitiated the detention of the detenu. In the case of Nagendra Nath Mondal v. State of West Bengal ((1972) 1 SCC 498.) on the other hand, although 34 days had elapsed between the receipt of the representation and its disposal by the Government, the delay was held by this Court to have been satisfactorily explained. The cases mentioned above were referred to by this Court in Ranjit Das v. State of West Bengal (W.P. No. 14 of 1972, decided on May 3, 1972.), and it was held that unexplained delay of 19 days in considering the detenus representation would invalidate the detention. In the present case, as stated earlier the delay of 28 days in considering an rejecting the representation of the petitioner has not been explained. The said delay would consequently vitiate the detention of the petitioner9. Mr. Ghosh has referred to a decision of this Court in the case of Arun Kumar Roy alias Katu v. State of West Bengal (W.P. No. 52 of 1972, decided on May 3, 1972.).The representation of the detenu in that case was received by the State Government on October 7, 1971, and after consideration was rejected by the said Government on November 17, 1971. The fact, that a period of one month and ten days elapsed between the receipt of the detenus representation and its disposal by the State Government was enough, according to the submission made in that case, to invalidate the detention. This submission was rejected on the ground that the petitioner had make no grievance in the writ petition about the delay in the consideration of his representation. It was observed that if any such plea had been taken, the Court would have had to consider whether the Government had any explanation to offer for the delay. The above case, in our opinion cannot be of much assistance to the. As stated earlier, the counsel arguing on behalf of the petitioner had been permitted to take additional grounds. One of those grounds specially dealt with the point that respondent had made an inordinate delay in considering the representation of the petitioner and, as such, had contravened Article 22(5) of the Constitution. The learned counsel for thee thereafter looked into the official file and could furnish no explanation for the failure of the State Government to consider the representation of the petitioner till September 8, 1971. | 1 | 1,754 | 813 | ### Instruction:
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of the same by the State Government. Learned counsel for the respondent, who had the Government file relating to the detention of the petitioner, could not furnish any explanation as to why the Government took a long period of 28 days to consider and reject the petitioners representation. In the absence of any cogent ground the failure of the State Government to consider the representation of the petitioner and pass an order thereon for a period of 28 days would, in our opinion, invalidate the detention of the petitioner. 6. In the case of Jayanarayan Sukul v. State of West Bengal ((1970) 3 SCR 225 : (1970) 1 SCC 219.) the Constitution Bench of this Court emphasized the imperative necessity of the consideration of the representation made by a detenu by the Government as early as possible. It was observed : "It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.No define time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible." 7. The detenu in that case a representation to the State Government on June 23, 1969, and the same was rejected by the said Government on August 9, 1969. It was held that the Government was guilty of infraction of constitutional provision because of the inordinate delay in considering the representation. The petitioner was accordingly set at liberty. 8. Reliance in the case of Jayanarayan v. State of W.B. (supra) was palace upon the earlier decision of this Court in the case of Khairul Haque v. State of W.B. (W.P. No. 246 of 1969, decided on September 10, 1969.) In that case this Court held that Article 22(5) of the Constitution envisaged a dual obligation of the Government and a corresponding dual right in favour of a detenu, namely : (1) to have his representation independently considered by the Government, and (2) to have that representation, in the light of the facts and circumstances of the case, considered by an Advisory Board. It was observed that the said provision enjoined upon the detaining authority to afford to the detenu the earliest opportunity to make a representation. This fact, in the opinion of the Court, necessarily implied that such a representation must, when made, be considered and disposed of as expeditiously as possible, for otherwise "the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning". In Prof. K.I. Singh v. State of Manipur (AIR 1972 SC 438 : (1972) 2 SCC 576.) , this Court held that an unexplained delay of 17 days was enough to render the detention illegal. In Baidya Nath Chunkar v. State West Bengal (W.P. No. 377 of 1971, decided on March 14, 1972 : (1972) 2 SCC 473.) , unexplained delay of 29 days in considering the representation was held to have vitiated the detention of the detenu. In the case of Nagendra Nath Mondal v. State of West Bengal ((1972) 1 SCC 498.) on the other hand, although 34 days had elapsed between the receipt of the representation and its disposal by the Government, the delay was held by this Court to have been satisfactorily explained. The cases mentioned above were referred to by this Court in Ranjit Das v. State of West Bengal (W.P. No. 14 of 1972, decided on May 3, 1972.), and it was held that unexplained delay of 19 days in considering the detenus representation would invalidate the detention. In the present case, as stated earlier the delay of 28 days in considering an rejecting the representation of the petitioner has not been explained. The said delay would consequently vitiate the detention of the petitioner. 9. Mr. Ghosh has referred to a decision of this Court in the case of Arun Kumar Roy alias Katu v. State of West Bengal (W.P. No. 52 of 1972, decided on May 3, 1972.). The representation of the detenu in that case was received by the State Government on October 7, 1971, and after consideration was rejected by the said Government on November 17, 1971. The fact, that a period of one month and ten days elapsed between the receipt of the detenus representation and its disposal by the State Government was enough, according to the submission made in that case, to invalidate the detention. This submission was rejected on the ground that the petitioner had make no grievance in the writ petition about the delay in the consideration of his representation. It was observed that if any such plea had been taken, the Court would have had to consider whether the Government had any explanation to offer for the delay. The above case, in our opinion cannot be of much assistance to the respondent-State. As stated earlier, the counsel arguing on behalf of the petitioner had been permitted to take additional grounds. One of those grounds specially dealt with the point that respondent had made an inordinate delay in considering the representation of the petitioner and, as such, had contravened Article 22(5) of the Constitution. The learned counsel for the respondent-State thereafter looked into the official file and could furnish no explanation for the failure of the State Government to consider the representation of the petitioner till September 8, 1971.
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5. It was argued on behalf of the petitioner that his representation was received by the State Government on August 11, 1971. The State Government considered the representation and rejected it on September 8, 1971. There thus elapsed a period of 28 days between the receipt of the petitioners representation and the consideration and rejection of the same by the State Government.8. Reliance in the case of Jayanarayan v. State of W.B. (supra) was palace upon the earlier decision of this Court in the case of Khairul Haque v. State of W.B. (W.P. No. 246 of 1969, decided on September 10, 1969.) In that case this Court held that Article 22(5) of the Constitution envisaged a dual obligation of the Government and a corresponding dual right in favour of a detenu, namely : (1) to have his representation independently considered by the Government, and (2) to have that representation, in the light of the facts and circumstances of the case, considered by an Advisory Board. It was observed that the said provision enjoined upon the detaining authority to afford to the detenu the earliest opportunity to make a representation. This fact, in the opinion of the Court, necessarily implied that such a representation must, when made, be considered and disposed of as expeditiously as possible, for otherwise "the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning". In Prof. K.I. Singh v. State of Manipur (AIR 1972 SC 438 : (1972) 2 SCC 576.) , this Court held that an unexplained delay of 17 days was enough to render the detention illegal. In Baidya Nath Chunkar v. State West Bengal (W.P. No. 377 of 1971, decided on March 14, 1972 : (1972) 2 SCC 473.) , unexplained delay of 29 days in considering the representation was held to have vitiated the detention of the detenu. In the case of Nagendra Nath Mondal v. State of West Bengal ((1972) 1 SCC 498.) on the other hand, although 34 days had elapsed between the receipt of the representation and its disposal by the Government, the delay was held by this Court to have been satisfactorily explained. The cases mentioned above were referred to by this Court in Ranjit Das v. State of West Bengal (W.P. No. 14 of 1972, decided on May 3, 1972.), and it was held that unexplained delay of 19 days in considering the detenus representation would invalidate the detention. In the present case, as stated earlier the delay of 28 days in considering an rejecting the representation of the petitioner has not been explained. The said delay would consequently vitiate the detention of the petitioner9. Mr. Ghosh has referred to a decision of this Court in the case of Arun Kumar Roy alias Katu v. State of West Bengal (W.P. No. 52 of 1972, decided on May 3, 1972.).The representation of the detenu in that case was received by the State Government on October 7, 1971, and after consideration was rejected by the said Government on November 17, 1971. The fact, that a period of one month and ten days elapsed between the receipt of the detenus representation and its disposal by the State Government was enough, according to the submission made in that case, to invalidate the detention. This submission was rejected on the ground that the petitioner had make no grievance in the writ petition about the delay in the consideration of his representation. It was observed that if any such plea had been taken, the Court would have had to consider whether the Government had any explanation to offer for the delay. The above case, in our opinion cannot be of much assistance to the. As stated earlier, the counsel arguing on behalf of the petitioner had been permitted to take additional grounds. One of those grounds specially dealt with the point that respondent had made an inordinate delay in considering the representation of the petitioner and, as such, had contravened Article 22(5) of the Constitution. The learned counsel for thee thereafter looked into the official file and could furnish no explanation for the failure of the State Government to consider the representation of the petitioner till September 8, 1971.
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Commissioner Of Income-Tax, West Bengal Vs. Allahabad Bank Limited | Companies Act, 1948 (11 and 12 Geo. 6 ch. 38). Before the Companies Act of 1956 there was no provision in the Indian Companies Act 1913 which required a Company to maintain a separate share premium account. After the coming into force of the Companies Act 1 of 1956 a share premium account had to be maintained and the share premium could not be used otherwise than for the specific purposes mentioned in Section 78 (2).9. The plea raised by the Commissioner that the Company failed to comply with the statutory injunction contained in Clause (1) of Section 78 and on that account the premiums received were not "standing to the credit of the share premium account" within the meaning of the Explanation to Paragraph D in the Finance Act 1956 may be rejected on a simple ground.10. In the assessment year 1956-57 the Company was being assessed to tax in respect of the previous year of the Company ending on December 31, 1955. In the calendar year 1955, the company was governed by the Indian Companies Act 7 of 1913 which contained no provision analogous to Section 78 of the Companies Act of 1956. The Companies Act was before the Parliament during the year 1955, but the Company was on that account not obliged to transfer to a separate share premium account independent of the reserve the premiums received prior to January 1, 1955. The Companies Act came into force on April 1, 1956: it had no retrospective operation. Since there was no obligation upon the Company to maintain a separate share premium account in the previous year corresponding to the assessment year 1956-57 the share premium account maintained as an identifiable account within the reserves qualified for being included in the paid up capital within the meaning of this expression in the Explanation to Paragraph D part II of the Finance Act, 1956,11. For the assessment year 1956-57, therefore rebate in super-tax was liable to be reduced, if the Company had distributed dividend exceeding six per cent of the paid-up capital inclusive of share premiums maintained as an identifiable account. The contention raised by the Commissioner must therefore fail in respect of the assessment year 1956-57.12. Counsel for the Commissioner contends that in any event in the Finance Act 2 of 1957 the expression "share premium account" has only the meaning ascribed thereto in the Companies Act, 1956, and in respect of the assessment year 1957-58, reduction in the rebate must be computed without taking into account the share premium which was maintained by the Company, in the year of account 1956 within the reserve.13. Under the Finance Act 2 of 1957 rebate in super-tax is liable to be reduced in the case of Companies which have, inter alia, distributed to the share-holders in the previous year dividends in excess of 6 per cent of the paid-up capital not being dividend payable at a fixed rate. The expression "paid-up capital" is also defied in substantially the same terms as under the Finance Act, 1956.14. For the assessment year 1957-58 the Tribunal found that the share premium was liable to be included in the paid-up capital, because it was an identifiable part of the reserves. In our judgment the Tribunal was right in so holding. The Explanation to Paragraph D Part II of the Finance Act, 1957, does not require that the share premium account must be maintained as an account outside the reserves. Under the Companies Act of 1956 there was an express provisions that the share premium account shall be maintained in a separate account. It is true that in the balance sheet in Sch. VI of the Act the share premium has to be shown under the head "Liabilities" as part of the share capital and not of reserves. But it cannot be assumed on that account that if the share premium is maintained as a separate account within the reserves, reduction in the rebate in super-tax is liable to be computed after excluding share premium. The Exp1aliation requires that in determining the paid-up capital for the purpose of rebate in super-tax, share premium as standing to the credit of a share premium account shall be excluded: it does not make maintenance of an account outside the reserve a condition of its inclusion in the paid-up capital.15. Again if under the Finance Act 1956, the expression "standing to the credit of the share premium account" did not mean that the share premiums shall be maintained in a separate account apart from the reserve, is there any reason why under an identical scheme of reducing rebate in super-tax in the year 1957-58, it should have a different meaning? In the absence of any compelling grounds, we would not be justified in holding that the Parliament attributed to the expression "standing to the credit of the share premium account as used in the Explanation to Paragraph D Part II of the Finance Act 2 of 1957, a meaning different from the one which it had under the Finance Act, 1956. The object of the Parliament in enacting Paragraph D of the Finance Act was that profits earned by a Company should be available for being ploughed back into the business and should not be distributed to the shareholders by way of dividend in excess of the rate prescribed. To secure that object the Parliament gave an incentive to the Company of substantial rebate in payment of super-tax which would be liable to be forfeited, if part of dividend exceeding 6 per cent was distributed to the shareholders.16. Share Premium account is accordingly liable to be included in the paidup capital for the purpose of computing rebate if it is maintained as a separate account. The Explanation does not contemplate that the account must be kept apart from the reserves. If within the reserves it is an identifiable separate account, the share premium will qualify for inclusion in the paid-up capital in computing the reduction in rebate of super-tax. | 0[ds]6. The reduction in rebate in supertax depended upon the proportion which the dividend distributed bore to the paidup capital. If the Company distributed dividends exceeding 6% of its paid-up capital as defined in the Explanation, the rebate was liable to be reduced to the extent provided in the second proviso (sic) the relevant years of account, the share premium formed an identifiable part of the reserves of the Company but was not shown in a separate share premium account apart from the reserves.e plea raised by the Commissioner that the Company failed to comply with the statutory injunction contained in Clause (1) of Section 78 and on that account the premiums received were not "standing to the credit of the share premium account" within the meaning of the Explanation to Paragraph D in the Finance Act 1956may be rejected on a simple ground.For the assessment year 1957-58 the Tribunal found that the share premium was liable to be included in the paid-up capital, because it was an identifiable part of the reserves. In our judgment the Tribunal was right in so holding. The Explanation to Paragraph D Part II of the Finance Act, 1957, does not require that the share premium account must be maintained as an account outside the reserves. Under the Companies Act of 1956 there was an express provisions that the share premium account shall be maintained in a separate account. It is true that in the balance sheet in Sch. VI of the Act the share premium has to be shown under the head "Liabilities" as part of the share capital and not of reserves. But it cannot be assumed on that account that if the share premium is maintained as a separate account within the reserves, reduction in the rebate in super-tax is liable to be computed after excluding share premium. The Exp1aliation requires that in determining the paid-up capital for the purpose of rebate in super-tax, share premium as standing to the credit of a share premium account shall be excluded: it does not make maintenance of an account outside the reserve a condition of its inclusion in the paid-up capital.15. Again if under the Finance Act 1956, the expression "standing to the credit of the share premium account" did not mean that the share premiums shall be maintained in a separate account apart from the reserve, is there any reason why under an identical scheme of reducing rebate in super-tax in the year 1957-58, it should have a different meaning? In the absence of any compelling grounds, we would not be justified in holding that the Parliament attributed to the expression "standing to the credit of the share premium account as used in the Explanation to Paragraph D Part II of the Finance Act 2 of 1957, a meaning different from the one which it had under the Finance Act, 1956.Share Premium account is accordingly liable to be included in the paidup capital for the purpose of computing rebate if it is maintained as a separate account. The Explanation does not contemplate that the account must be kept apart from the reserves. If within the reserves it is an identifiable separate account, the share premium will qualify for inclusion in the paid-up capital in computing the reduction in rebate of super-tax.In the assessment yearthe Company was being assessed to tax in respect of the previous year of the Company ending on December 31, 1955. In the calendar year 1955, the company was governed by the Indian Companies Act 7 of 1913 which contained no provision analogous to Section 78 of the Companies Act of 1956. The Companies Act was before the Parliament during the year 1955, but the Company was on that account not obliged to transfer to a separate share premium account independent of the reserve the premiums received prior to January 1, 1955. The Companies Act came into force on April 1, 1956: it had no retrospective operation. Since there was no obligation upon the Company to maintain a separate share premium account in the previous year corresponding to the assessment yearthe share premium account maintained as an identifiable account within the reserves qualified for being included in the paid up capital within the meaning of this expression in the Explanation to Paragraph D part II of the Finance Act, 1956,11. For the assessment yeare rebate inwas liable to be reduced, if the Company had distributed dividend exceeding six per cent of thel inclusive of share premiums maintained as an identifiable account. The contention raised by the Commissioner must therefore fail in respect of the assessment year | 0 | 2,589 | 826 | ### 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:
Companies Act, 1948 (11 and 12 Geo. 6 ch. 38). Before the Companies Act of 1956 there was no provision in the Indian Companies Act 1913 which required a Company to maintain a separate share premium account. After the coming into force of the Companies Act 1 of 1956 a share premium account had to be maintained and the share premium could not be used otherwise than for the specific purposes mentioned in Section 78 (2).9. The plea raised by the Commissioner that the Company failed to comply with the statutory injunction contained in Clause (1) of Section 78 and on that account the premiums received were not "standing to the credit of the share premium account" within the meaning of the Explanation to Paragraph D in the Finance Act 1956 may be rejected on a simple ground.10. In the assessment year 1956-57 the Company was being assessed to tax in respect of the previous year of the Company ending on December 31, 1955. In the calendar year 1955, the company was governed by the Indian Companies Act 7 of 1913 which contained no provision analogous to Section 78 of the Companies Act of 1956. The Companies Act was before the Parliament during the year 1955, but the Company was on that account not obliged to transfer to a separate share premium account independent of the reserve the premiums received prior to January 1, 1955. The Companies Act came into force on April 1, 1956: it had no retrospective operation. Since there was no obligation upon the Company to maintain a separate share premium account in the previous year corresponding to the assessment year 1956-57 the share premium account maintained as an identifiable account within the reserves qualified for being included in the paid up capital within the meaning of this expression in the Explanation to Paragraph D part II of the Finance Act, 1956,11. For the assessment year 1956-57, therefore rebate in super-tax was liable to be reduced, if the Company had distributed dividend exceeding six per cent of the paid-up capital inclusive of share premiums maintained as an identifiable account. The contention raised by the Commissioner must therefore fail in respect of the assessment year 1956-57.12. Counsel for the Commissioner contends that in any event in the Finance Act 2 of 1957 the expression "share premium account" has only the meaning ascribed thereto in the Companies Act, 1956, and in respect of the assessment year 1957-58, reduction in the rebate must be computed without taking into account the share premium which was maintained by the Company, in the year of account 1956 within the reserve.13. Under the Finance Act 2 of 1957 rebate in super-tax is liable to be reduced in the case of Companies which have, inter alia, distributed to the share-holders in the previous year dividends in excess of 6 per cent of the paid-up capital not being dividend payable at a fixed rate. The expression "paid-up capital" is also defied in substantially the same terms as under the Finance Act, 1956.14. For the assessment year 1957-58 the Tribunal found that the share premium was liable to be included in the paid-up capital, because it was an identifiable part of the reserves. In our judgment the Tribunal was right in so holding. The Explanation to Paragraph D Part II of the Finance Act, 1957, does not require that the share premium account must be maintained as an account outside the reserves. Under the Companies Act of 1956 there was an express provisions that the share premium account shall be maintained in a separate account. It is true that in the balance sheet in Sch. VI of the Act the share premium has to be shown under the head "Liabilities" as part of the share capital and not of reserves. But it cannot be assumed on that account that if the share premium is maintained as a separate account within the reserves, reduction in the rebate in super-tax is liable to be computed after excluding share premium. The Exp1aliation requires that in determining the paid-up capital for the purpose of rebate in super-tax, share premium as standing to the credit of a share premium account shall be excluded: it does not make maintenance of an account outside the reserve a condition of its inclusion in the paid-up capital.15. Again if under the Finance Act 1956, the expression "standing to the credit of the share premium account" did not mean that the share premiums shall be maintained in a separate account apart from the reserve, is there any reason why under an identical scheme of reducing rebate in super-tax in the year 1957-58, it should have a different meaning? In the absence of any compelling grounds, we would not be justified in holding that the Parliament attributed to the expression "standing to the credit of the share premium account as used in the Explanation to Paragraph D Part II of the Finance Act 2 of 1957, a meaning different from the one which it had under the Finance Act, 1956. The object of the Parliament in enacting Paragraph D of the Finance Act was that profits earned by a Company should be available for being ploughed back into the business and should not be distributed to the shareholders by way of dividend in excess of the rate prescribed. To secure that object the Parliament gave an incentive to the Company of substantial rebate in payment of super-tax which would be liable to be forfeited, if part of dividend exceeding 6 per cent was distributed to the shareholders.16. Share Premium account is accordingly liable to be included in the paidup capital for the purpose of computing rebate if it is maintained as a separate account. The Explanation does not contemplate that the account must be kept apart from the reserves. If within the reserves it is an identifiable separate account, the share premium will qualify for inclusion in the paid-up capital in computing the reduction in rebate of super-tax.
### Response:
0
### Explanation:
6. The reduction in rebate in supertax depended upon the proportion which the dividend distributed bore to the paidup capital. If the Company distributed dividends exceeding 6% of its paid-up capital as defined in the Explanation, the rebate was liable to be reduced to the extent provided in the second proviso (sic) the relevant years of account, the share premium formed an identifiable part of the reserves of the Company but was not shown in a separate share premium account apart from the reserves.e plea raised by the Commissioner that the Company failed to comply with the statutory injunction contained in Clause (1) of Section 78 and on that account the premiums received were not "standing to the credit of the share premium account" within the meaning of the Explanation to Paragraph D in the Finance Act 1956may be rejected on a simple ground.For the assessment year 1957-58 the Tribunal found that the share premium was liable to be included in the paid-up capital, because it was an identifiable part of the reserves. In our judgment the Tribunal was right in so holding. The Explanation to Paragraph D Part II of the Finance Act, 1957, does not require that the share premium account must be maintained as an account outside the reserves. Under the Companies Act of 1956 there was an express provisions that the share premium account shall be maintained in a separate account. It is true that in the balance sheet in Sch. VI of the Act the share premium has to be shown under the head "Liabilities" as part of the share capital and not of reserves. But it cannot be assumed on that account that if the share premium is maintained as a separate account within the reserves, reduction in the rebate in super-tax is liable to be computed after excluding share premium. The Exp1aliation requires that in determining the paid-up capital for the purpose of rebate in super-tax, share premium as standing to the credit of a share premium account shall be excluded: it does not make maintenance of an account outside the reserve a condition of its inclusion in the paid-up capital.15. Again if under the Finance Act 1956, the expression "standing to the credit of the share premium account" did not mean that the share premiums shall be maintained in a separate account apart from the reserve, is there any reason why under an identical scheme of reducing rebate in super-tax in the year 1957-58, it should have a different meaning? In the absence of any compelling grounds, we would not be justified in holding that the Parliament attributed to the expression "standing to the credit of the share premium account as used in the Explanation to Paragraph D Part II of the Finance Act 2 of 1957, a meaning different from the one which it had under the Finance Act, 1956.Share Premium account is accordingly liable to be included in the paidup capital for the purpose of computing rebate if it is maintained as a separate account. The Explanation does not contemplate that the account must be kept apart from the reserves. If within the reserves it is an identifiable separate account, the share premium will qualify for inclusion in the paid-up capital in computing the reduction in rebate of super-tax.In the assessment yearthe Company was being assessed to tax in respect of the previous year of the Company ending on December 31, 1955. In the calendar year 1955, the company was governed by the Indian Companies Act 7 of 1913 which contained no provision analogous to Section 78 of the Companies Act of 1956. The Companies Act was before the Parliament during the year 1955, but the Company was on that account not obliged to transfer to a separate share premium account independent of the reserve the premiums received prior to January 1, 1955. The Companies Act came into force on April 1, 1956: it had no retrospective operation. Since there was no obligation upon the Company to maintain a separate share premium account in the previous year corresponding to the assessment yearthe share premium account maintained as an identifiable account within the reserves qualified for being included in the paid up capital within the meaning of this expression in the Explanation to Paragraph D part II of the Finance Act, 1956,11. For the assessment yeare rebate inwas liable to be reduced, if the Company had distributed dividend exceeding six per cent of thel inclusive of share premiums maintained as an identifiable account. The contention raised by the Commissioner must therefore fail in respect of the assessment year
|
State Of Rajasthan Vs. Kheraj Ram | murder by hired assassin for money or reward or a cold-blooded murder for gains of a person vis-a-vis whom the murders is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland.(3) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of bride burning or dowry deaths or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position or a public figure generally loved an respected by the community. 39. If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so. 40. A convict hovers between life and death when the question of gravity of the offence and award of adequate sentence comes up for consideration. Mankind has shifted from the state of nature towards a civilized society and it is no longer the physical opinion of the majority that takes away the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment. Award of punishment following convicting at a trial in a system wedded to the rule of law is the outcome of cool deliberation in the court room after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecuted is given as opportunity of meeting the accusations by establishing his innocence. It is the outcome of cool deliberations and the screening of the material by the informed man i.e. the Judge that leads to determination of the lis. 41. The principle of proportion between crime and punishment is a principle of just desert that serves as the foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle that only the guilty ought to be punished. Indeed, the requirement that punishment not be disproportionately great, which is a corollary of just desert, is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt. 42. The criminal law adheres in general to the principles of proportionately in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judge in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the traffic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread. 43. Proportion between crime and punishment is a goal respected in principles, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now a single grave infraction that is thought to call for uniformly drastic measures. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences. 44. The factual matrix as described by the prosecution and established by the evidence on record shows that the cruel and diabolic manner in which the killings were conceived and executed. The accused did not act on any spur of the moment provocation. It was deliberately planned and meticulously executed. There was not even any remorse for such gruesome act. On the contrary, after the killing the accused tried to divert attention and used PW-9 as the cats-paw. He went on taking diversive tactics to suit his purpose. The calmness with which he smoked chilam was an indication of the fact that the gruesome act did not even arouse any human touch in him. On the contrary, he was satisfied with what he had done. In a given case, a person having seen a ghastly crime may act in a different way. That itself in another case may not constitute a suspicious circumstance. But when the entire chain of events and circumstances are comprehended, the inevitable conclusion is that the accused acted in the most cruel and inhuman manner and the murder was committed in extremely brutal, grotesque, diabolical, revolting and dastardly manner. The victims were two innocent children and a helpless woman. Taking note of these factors, the death sentence imposed by the Trial Court is most appropriate. The respondent shall surrender to custody forthwith and serve out the sentence. | 1[ds]44. The factual matrix as described by the prosecution and established by the evidence on record shows that the cruel and diabolic manner in which the killings were conceived and executed. The accused did not act on any spur of the moment provocation. It was deliberately planned and meticulously executed. There was not even any remorse for such gruesome act. On the contrary, after the killing the accused tried to divert attention and used PW-9 as the cats-paw. He went on taking diversive tactics to suit his purpose. The calmness with which he smoked chilam was an indication of the fact that the gruesome act did not even arouse any human touch in him. On the contrary, he was satisfied with what he had done. In a given case, a person having seen a ghastly crime may act in a different way. That itself in another case may not constitute a suspicious circumstance. But when the entire chain of events and circumstances are comprehended, the inevitable conclusion is that the accused acted in the most cruel and inhuman manner and the murder was committed in extremely brutal, grotesque, diabolical, revolting and dastardly manner. The victims were two innocent children and a helpless woman. Taking note of these factors, the death sentence imposed by the Trial Court is most appropriate. The respondent shall surrender to custody forthwith and serve out the sentence. | 1 | 8,028 | 258 | ### 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:
murder by hired assassin for money or reward or a cold-blooded murder for gains of a person vis-a-vis whom the murders is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland.(3) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of bride burning or dowry deaths or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position or a public figure generally loved an respected by the community. 39. If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so. 40. A convict hovers between life and death when the question of gravity of the offence and award of adequate sentence comes up for consideration. Mankind has shifted from the state of nature towards a civilized society and it is no longer the physical opinion of the majority that takes away the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment. Award of punishment following convicting at a trial in a system wedded to the rule of law is the outcome of cool deliberation in the court room after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecuted is given as opportunity of meeting the accusations by establishing his innocence. It is the outcome of cool deliberations and the screening of the material by the informed man i.e. the Judge that leads to determination of the lis. 41. The principle of proportion between crime and punishment is a principle of just desert that serves as the foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle that only the guilty ought to be punished. Indeed, the requirement that punishment not be disproportionately great, which is a corollary of just desert, is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt. 42. The criminal law adheres in general to the principles of proportionately in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judge in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation, and sometimes even the traffic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread. 43. Proportion between crime and punishment is a goal respected in principles, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now a single grave infraction that is thought to call for uniformly drastic measures. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences. 44. The factual matrix as described by the prosecution and established by the evidence on record shows that the cruel and diabolic manner in which the killings were conceived and executed. The accused did not act on any spur of the moment provocation. It was deliberately planned and meticulously executed. There was not even any remorse for such gruesome act. On the contrary, after the killing the accused tried to divert attention and used PW-9 as the cats-paw. He went on taking diversive tactics to suit his purpose. The calmness with which he smoked chilam was an indication of the fact that the gruesome act did not even arouse any human touch in him. On the contrary, he was satisfied with what he had done. In a given case, a person having seen a ghastly crime may act in a different way. That itself in another case may not constitute a suspicious circumstance. But when the entire chain of events and circumstances are comprehended, the inevitable conclusion is that the accused acted in the most cruel and inhuman manner and the murder was committed in extremely brutal, grotesque, diabolical, revolting and dastardly manner. The victims were two innocent children and a helpless woman. Taking note of these factors, the death sentence imposed by the Trial Court is most appropriate. The respondent shall surrender to custody forthwith and serve out the sentence.
### Response:
1
### Explanation:
44. The factual matrix as described by the prosecution and established by the evidence on record shows that the cruel and diabolic manner in which the killings were conceived and executed. The accused did not act on any spur of the moment provocation. It was deliberately planned and meticulously executed. There was not even any remorse for such gruesome act. On the contrary, after the killing the accused tried to divert attention and used PW-9 as the cats-paw. He went on taking diversive tactics to suit his purpose. The calmness with which he smoked chilam was an indication of the fact that the gruesome act did not even arouse any human touch in him. On the contrary, he was satisfied with what he had done. In a given case, a person having seen a ghastly crime may act in a different way. That itself in another case may not constitute a suspicious circumstance. But when the entire chain of events and circumstances are comprehended, the inevitable conclusion is that the accused acted in the most cruel and inhuman manner and the murder was committed in extremely brutal, grotesque, diabolical, revolting and dastardly manner. The victims were two innocent children and a helpless woman. Taking note of these factors, the death sentence imposed by the Trial Court is most appropriate. The respondent shall surrender to custody forthwith and serve out the sentence.
|
M/S. Bharat Barrel & Drum Mfg. Co Vs. L. K. Bose & Ors | inconsistently. It may perhaps be said that if Lalta Prasad had been examined he might have explained the inconsistency. But as already stated Lalta Prasad had ample opportunity through his counsel to explain the said inconsistency. If that inconsistency had been explained by the companys counsel during the hearing it cannot be doubted that the Controller would have considered such explanation tendered by counsel. That being so, the refusal of the Controller to record Lalta Prasads evidence cannot be said to have precluded the company from offering an explanation of the said inconsistency. Nor can it be said that the refusal amounted to any breach of natural justice. Since the procedure for inquiry was left to be devised by the Controller and the procedure followed by him was not in any way in contravention of the said consent order nor contrary to natural justice the contention urged by Mr. Bishan Narain must be rejected. 13. The next contention of Mr. Bishan Narain was that on the question of refund of the excess charges the impugned order suffered from an error of law apparent on the record. The question is what is an error of law apparent on the record. In Champsey Bhara and Co. v. Jivraj Ballo Spinning and Weaving Co., 1923 AC, 480: (AIR 1923 PC 66), Lord Dunedin observed that an error on the face of an award means that the Court must first find whether there is any legal proposition which is the basis of such an award.He also said that where an award is challenged upon such a ground it is not permissible to read words into it or to draw inferences and the award or the order must be taken as it stands. Tucker, T. said the same thing in James Clark (Brush Materials) Ltd. v. Carters (Merchants) Ltd., 1944-1 KB 566. Reading the impugned order it is difficult to say what legal proportion it contains in respect of which it can be said that there is an error of law apparent on the record.The issue before the Controller was whether in refusing to give the refund of the said excess the 6th respondent guilty of obstructing the implementation of the order, dated May 1/2,1962 or of preventing the appellant company from taking delivery of the said goods. It is true that the Controller had on more than one occasion directed the 6th respondent to deduct the said excess from its pro forma invoice and the 6th respondent had in fact expressed its willingness to deduct it. The dispute between the parties was within a circumscribed compass viz. whether the appellant company should first withdraw the suit. The appellant company would not withdraw the suit and hence the controversy. But then it is not possible to say that there was no difficulty in the way of the 6th respondent in deducting straightway the said excess from its invoice, for, as already stated, the appellant company had stated different sums of such excess at different times. The Controller had not fixed the exact amount of the said excess and had not directed as to when and on what condition the appellant companys suit should be withdrawn. If in these circumstances the Controller finds that the appellant company should not have insisted on the deduction before withdrawing its suit even if a Court were to come to a different conclusion it certainly is not a case of an error apparent on the face of the record. 14. That takes us to the third and the last contention viz., that the impugned order that the appellant company wanted to pick and choose was without evidence. The order was based on the finding that it was for the first time in its letter dated May 8, 1962 that the appellant company claimed that it would only accept goods of standard and merchantable quality. That conclusion, in our view, cannot be said to be without evidence. As explained by the High Court, the appellant company, no doubt, had in its letter of April 23, 1962 claimed survey and inspection but that letter does not show that the appellant company was not willing to accept the goods in the condition in which they were in the 6th respondents godown. The demand for inspection and survey was made with a view to claim rebate in the event of the goods being found either rusty or in damaged condition. But in the letter of May 8. 1962 it would seem that the appellant company stiffened its attitude and laid down the condition that it would accept such of the goods only as were of standard and merchantable quality. As already stated long before May 8, 1962 the appellant company was well aware that the goods had become rusted as they were lying for a long time in the godown. Even the 6th respondent had complained that the goods were getting rusted. Yet. at no time before May 8, 1962 the appellant company had insisted that it would accept only those goods which were of standard and merchantable quality. It may perhaps be that the Controller could have taken the view that since the appellant company required the goods for manufacturing barrels, it was entitled to have goods of merchantable quality. At the same time it is also possible to take a different view viz., that the appellant company could have abided by the Controllers directions in his order, dated 1/2 May 1962 and could have accepted delivery under protest and if necessary claimed damages. But merely because there was the possibility of two views being taken it would not be possible to say, as was contended in the High Court, that the order was perverse. In any event, since it was for the first time in its letter of May 8, 1962 that the aforesaid demand was made by the appellant company it is impossible to say that this part of the order was without any evidence and, therefore, liable to be quashed. | 0[ds]12. It is clear from the said consent order that the Controller was not a judicial Tribunal in the sense of a Court of law and though the inquiry held by him was a quasi judicial inquiry it certainly was not a trial. It was confined to one question only, viz., whether he should reconsider the order made by him cancelling the allocation in favour of the appellant company. In order to decide that question he had to ascertain who was to be blamed as between the appellant company and the 6th respondent for non-implementation of his order, dated 1/2 May 1962. No doubt the consent order required him "to hear" the parties. But it is obvious that the order never contemplated that he should follow an elaborate procedure and take oral evidence of witnesses tendered by the parties. The order did not lay down any such procedure or any procedure at all, with the consequence that he was left to devise his own procedure. So long as the procedure devised by him gave a fair and adequate opportunity to the parties to put forward and explain their respective case such procedure would be sufficient and cannot be challenged on the ground of any contravention of natural justice. The dispute between the parties was as to the existence of an oral agreement under which the 6th respondent was to deliver 4,500 tons of steel sheets. From that arose the question whether the delivery of 1,238 and odd tons was made under the said alleged agreement or under the said release orders. It is not disputed that the Controller heard the parties on the 13th and the 18th December 1962 and the respective cases of the parties were put forward before him through counsel who, we have no doubt, made their submissions fully. The said Lalta Prasad was present at the hearing presumably giving instructions to the companys counsel. He had, therefore, ample opportunity to put forward the case of the appellant company in regard to the said alleged oral agreement. The parties also produced before the Controller such correspondence and documents as they thought proper and necessary to establish their case. There is no doubt that the letters already referred to above in which the appellant company has set out the said alleged agreement were produced before the Controller and considered by him. In these circumstances it is difficult to appreciate what difference it would have made if Lalta Prasads oral testimony had been recorded. The letters presumably contained all that he had to say in regard to the alleged agreement arrived at between him and the said Jitpal. Obviously he could not have added anything to those letters nor could he have deposed contrary to them. This position seems to have been realised by the appellant company. It was, therefore that though the Controller had rejected the application for recording the evidence of Lalta Prasad no protest was made by the appellant company or on its behalf at that stage. No such protest was also placed on record between the 18th and the 21st December 1962 when the Controller declared his order. It was only on the 5th January 1963 that the attorneys of the appellant company complained for the first time about the Controllers decision rejecting the application to record Lalta Prasads evidence alleging that the said order of the Controller was mala fide. The appellant company filed the present writ petition on January 7, 1963. It would appear from these facts that the grievance of Lalta Prasad not being allowed to give evidence was made in the letter of the 5th January 1963 to bolster up the case in the proposed writ petition that the said order of the Controller was perverse and mala fide. It is true that the Controller rejected the appellant companys case about the said oral agreement on the ground that the correspondence indicated that it had been putting up its case inconsistently. It may perhaps be said that if Lalta Prasad had been examined he might have explained the inconsistency. But as already stated Lalta Prasad had ample opportunity through his counsel to explain the said inconsistency. If that inconsistency had been explained by the companys counsel during the hearing it cannot be doubted that the Controller would have considered such explanation tendered by counsel. That being so, the refusal of the Controller to record Lalta Prasads evidence cannot be said to have precluded the company from offering an explanation of the said inconsistency. Nor can it be said that the refusal amounted to any breach of natural justice. Since the procedure for inquiry was left to be devised by the Controller and the procedure followed by him was not in any way in contravention of the said consent order nor contrary to natural justice the contention urged by Mr. Bishan Narain must be rejectedIt is true that the Controller had on more than one occasion directed the 6th respondent to deduct the said excess from its pro forma invoice and the 6th respondent had in fact expressed its willingness to deduct it. The dispute between the parties was within a circumscribed compass viz. whether the appellant company should first withdraw the suit. The appellant company would not withdraw the suit and hence the controversy. But then it is not possible to say that there was no difficulty in the way of the 6th respondent in deducting straightway the said excess from its invoice, for, as already stated, the appellant company had stated different sums of such excess at different times. The Controller had not fixed the exact amount of the said excess and had not directed as to when and on what condition the appellant companys suit should be withdrawn. If in these circumstances the Controller finds that the appellant company should not have insisted on the deduction before withdrawing its suit even if a Court were to come to a different conclusion it certainly is not a case of an error apparent on the face of the record14. That takes us to the third and the last contention viz., that the impugned order that the appellant company wanted to pick and choose was without evidenceThe order was based on the finding that it was for the first time in its letter dated May 8, 1962 that the appellant company claimed that it would only accept goods of standard and merchantable quality. That conclusion, in our view, cannot be said to be without evidence. As explained by the High Court, the appellant company, no doubt, had in its letter of April 23, 1962 claimed survey and inspection but that letter does not show that the appellant company was not willing to accept the goods in the condition in which they were in the 6th respondents godown. The demand for inspection and survey was made with a view to claim rebate in the event of the goods being found either rusty or in damaged condition. But in the letter of May 8. 1962 it would seem that the appellant company stiffened its attitude and laid down the condition that it would accept such of the goods only as were of standard and merchantable quality. As already stated long before May 8, 1962 the appellant company was well aware that the goods had become rusted as they were lying for a long time in the godown. Even the 6th respondent had complained that the goods were getting rusted. Yet. at no time before May 8, 1962 the appellant company had insisted that it would accept only those goods which were of standard and merchantable quality. It may perhaps be that the Controller could have taken the view that since the appellant company required the goods for manufacturing barrels, it was entitled to have goods of merchantable quality. At the same time it is also possible to take a different view viz., that the appellant company could have abided by the Controllers directions in his order, dated 1/2 May 1962 and could have accepted delivery under protest and if necessary claimed damages. But merely because there was the possibility of two views being taken it would not be possible to say, as was contended in the High Court, that the order was perverse. In any event, since it was for the first time in its letter of May 8, 1962 that the aforesaid demand was made by the appellant company it is impossible to say that this part of the order was without any evidence and, therefore, liable to be quashed9. In order to appreciate the first contention it is necessary first to consider the content of the principles of natural justice. That question has been ther of a number of decisions. It is now well settled that while considering the question of breach of the principles of natural justice the court should not proceed as if there are any inflexible rules of natural justice of universal application. The Court therefore has to consider in each case whether in the light of the facts and circumstances of that case, the nature of the issues involved in the inquiry, the nature of the order passed and the interests affected thereby, a fair and reasonable opportunity of being heard was furnished to the person affected. Inl Government Board v. Arlidge, 1915 AC120 Lord Parmoor observed as follows :Where, however, the question of procedure is raised in a hearing, before some tribunal other than a court of law, there is no obligation to adopt the regular forms of judicial procedure. It is sufficient that the case has been heard in a judicial spirit and in accordance with the principles of substantial justice. In determining whether the principles of substantial justice have been complied with in matters of procedure regard must necessarily be had to the nature of the issue to be determined and the constitution of the Tribunal."It is thus clear that the Councils order was set aside on the footing that it had failed to hold "due inquiry" within the meaning of S. 29 and the said Rule, as contrary to the provisions of that Rule the Council had prevented Spackman from leading evidence. The decision in 1958 SCR 499 : (AIR 1957 SC 882 ) (supra), was in connection with an inquiry held under Art. 311 of the Constitution. The observations made in that case, therefore, would bear no analogy to the inquiry held by the Controller in the instant case. Neither of those two decisions, therefore, can help Mr. Bishan Narain. | 0 | 6,168 | 1,885 | ### 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:
inconsistently. It may perhaps be said that if Lalta Prasad had been examined he might have explained the inconsistency. But as already stated Lalta Prasad had ample opportunity through his counsel to explain the said inconsistency. If that inconsistency had been explained by the companys counsel during the hearing it cannot be doubted that the Controller would have considered such explanation tendered by counsel. That being so, the refusal of the Controller to record Lalta Prasads evidence cannot be said to have precluded the company from offering an explanation of the said inconsistency. Nor can it be said that the refusal amounted to any breach of natural justice. Since the procedure for inquiry was left to be devised by the Controller and the procedure followed by him was not in any way in contravention of the said consent order nor contrary to natural justice the contention urged by Mr. Bishan Narain must be rejected. 13. The next contention of Mr. Bishan Narain was that on the question of refund of the excess charges the impugned order suffered from an error of law apparent on the record. The question is what is an error of law apparent on the record. In Champsey Bhara and Co. v. Jivraj Ballo Spinning and Weaving Co., 1923 AC, 480: (AIR 1923 PC 66), Lord Dunedin observed that an error on the face of an award means that the Court must first find whether there is any legal proposition which is the basis of such an award.He also said that where an award is challenged upon such a ground it is not permissible to read words into it or to draw inferences and the award or the order must be taken as it stands. Tucker, T. said the same thing in James Clark (Brush Materials) Ltd. v. Carters (Merchants) Ltd., 1944-1 KB 566. Reading the impugned order it is difficult to say what legal proportion it contains in respect of which it can be said that there is an error of law apparent on the record.The issue before the Controller was whether in refusing to give the refund of the said excess the 6th respondent guilty of obstructing the implementation of the order, dated May 1/2,1962 or of preventing the appellant company from taking delivery of the said goods. It is true that the Controller had on more than one occasion directed the 6th respondent to deduct the said excess from its pro forma invoice and the 6th respondent had in fact expressed its willingness to deduct it. The dispute between the parties was within a circumscribed compass viz. whether the appellant company should first withdraw the suit. The appellant company would not withdraw the suit and hence the controversy. But then it is not possible to say that there was no difficulty in the way of the 6th respondent in deducting straightway the said excess from its invoice, for, as already stated, the appellant company had stated different sums of such excess at different times. The Controller had not fixed the exact amount of the said excess and had not directed as to when and on what condition the appellant companys suit should be withdrawn. If in these circumstances the Controller finds that the appellant company should not have insisted on the deduction before withdrawing its suit even if a Court were to come to a different conclusion it certainly is not a case of an error apparent on the face of the record. 14. That takes us to the third and the last contention viz., that the impugned order that the appellant company wanted to pick and choose was without evidence. The order was based on the finding that it was for the first time in its letter dated May 8, 1962 that the appellant company claimed that it would only accept goods of standard and merchantable quality. That conclusion, in our view, cannot be said to be without evidence. As explained by the High Court, the appellant company, no doubt, had in its letter of April 23, 1962 claimed survey and inspection but that letter does not show that the appellant company was not willing to accept the goods in the condition in which they were in the 6th respondents godown. The demand for inspection and survey was made with a view to claim rebate in the event of the goods being found either rusty or in damaged condition. But in the letter of May 8. 1962 it would seem that the appellant company stiffened its attitude and laid down the condition that it would accept such of the goods only as were of standard and merchantable quality. As already stated long before May 8, 1962 the appellant company was well aware that the goods had become rusted as they were lying for a long time in the godown. Even the 6th respondent had complained that the goods were getting rusted. Yet. at no time before May 8, 1962 the appellant company had insisted that it would accept only those goods which were of standard and merchantable quality. It may perhaps be that the Controller could have taken the view that since the appellant company required the goods for manufacturing barrels, it was entitled to have goods of merchantable quality. At the same time it is also possible to take a different view viz., that the appellant company could have abided by the Controllers directions in his order, dated 1/2 May 1962 and could have accepted delivery under protest and if necessary claimed damages. But merely because there was the possibility of two views being taken it would not be possible to say, as was contended in the High Court, that the order was perverse. In any event, since it was for the first time in its letter of May 8, 1962 that the aforesaid demand was made by the appellant company it is impossible to say that this part of the order was without any evidence and, therefore, liable to be quashed.
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refusal amounted to any breach of natural justice. Since the procedure for inquiry was left to be devised by the Controller and the procedure followed by him was not in any way in contravention of the said consent order nor contrary to natural justice the contention urged by Mr. Bishan Narain must be rejectedIt is true that the Controller had on more than one occasion directed the 6th respondent to deduct the said excess from its pro forma invoice and the 6th respondent had in fact expressed its willingness to deduct it. The dispute between the parties was within a circumscribed compass viz. whether the appellant company should first withdraw the suit. The appellant company would not withdraw the suit and hence the controversy. But then it is not possible to say that there was no difficulty in the way of the 6th respondent in deducting straightway the said excess from its invoice, for, as already stated, the appellant company had stated different sums of such excess at different times. The Controller had not fixed the exact amount of the said excess and had not directed as to when and on what condition the appellant companys suit should be withdrawn. If in these circumstances the Controller finds that the appellant company should not have insisted on the deduction before withdrawing its suit even if a Court were to come to a different conclusion it certainly is not a case of an error apparent on the face of the record14. That takes us to the third and the last contention viz., that the impugned order that the appellant company wanted to pick and choose was without evidenceThe order was based on the finding that it was for the first time in its letter dated May 8, 1962 that the appellant company claimed that it would only accept goods of standard and merchantable quality. That conclusion, in our view, cannot be said to be without evidence. As explained by the High Court, the appellant company, no doubt, had in its letter of April 23, 1962 claimed survey and inspection but that letter does not show that the appellant company was not willing to accept the goods in the condition in which they were in the 6th respondents godown. The demand for inspection and survey was made with a view to claim rebate in the event of the goods being found either rusty or in damaged condition. But in the letter of May 8. 1962 it would seem that the appellant company stiffened its attitude and laid down the condition that it would accept such of the goods only as were of standard and merchantable quality. As already stated long before May 8, 1962 the appellant company was well aware that the goods had become rusted as they were lying for a long time in the godown. Even the 6th respondent had complained that the goods were getting rusted. Yet. at no time before May 8, 1962 the appellant company had insisted that it would accept only those goods which were of standard and merchantable quality. It may perhaps be that the Controller could have taken the view that since the appellant company required the goods for manufacturing barrels, it was entitled to have goods of merchantable quality. At the same time it is also possible to take a different view viz., that the appellant company could have abided by the Controllers directions in his order, dated 1/2 May 1962 and could have accepted delivery under protest and if necessary claimed damages. But merely because there was the possibility of two views being taken it would not be possible to say, as was contended in the High Court, that the order was perverse. In any event, since it was for the first time in its letter of May 8, 1962 that the aforesaid demand was made by the appellant company it is impossible to say that this part of the order was without any evidence and, therefore, liable to be quashed9. In order to appreciate the first contention it is necessary first to consider the content of the principles of natural justice. That question has been ther of a number of decisions. It is now well settled that while considering the question of breach of the principles of natural justice the court should not proceed as if there are any inflexible rules of natural justice of universal application. The Court therefore has to consider in each case whether in the light of the facts and circumstances of that case, the nature of the issues involved in the inquiry, the nature of the order passed and the interests affected thereby, a fair and reasonable opportunity of being heard was furnished to the person affected. Inl Government Board v. Arlidge, 1915 AC120 Lord Parmoor observed as follows :Where, however, the question of procedure is raised in a hearing, before some tribunal other than a court of law, there is no obligation to adopt the regular forms of judicial procedure. It is sufficient that the case has been heard in a judicial spirit and in accordance with the principles of substantial justice. In determining whether the principles of substantial justice have been complied with in matters of procedure regard must necessarily be had to the nature of the issue to be determined and the constitution of the Tribunal."It is thus clear that the Councils order was set aside on the footing that it had failed to hold "due inquiry" within the meaning of S. 29 and the said Rule, as contrary to the provisions of that Rule the Council had prevented Spackman from leading evidence. The decision in 1958 SCR 499 : (AIR 1957 SC 882 ) (supra), was in connection with an inquiry held under Art. 311 of the Constitution. The observations made in that case, therefore, would bear no analogy to the inquiry held by the Controller in the instant case. Neither of those two decisions, therefore, can help Mr. Bishan Narain.
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S.D.S. Shipping Pvt. Ltd Vs. Jay Container Services Co.Pvt.Ltd. | 81,77,632.50 (rounded of to Rs. 82,00,000/-) within 12 weeks period. It was further directed that the amount was to be deposited in a nationalised bank for a period of 37 months and the deposit was to be renewed at a time by 13 months until the suit was decided. This order is under challenge. 7. Mr. R.F. Nariman, learned senior counsel for the appellants submitted that the Division Bench manifestly erred in directing deposit by overlooking the factual and legal background involved. In a commercial suit where there was dispute regarding the liability such directions could not have been given. Even in respect of a summary suit under Order 37 there was no scope for giving the type of direction as done. The Division Bench while implicitly upholding the view of learned Single Judge that Order 12 Rule 6 was not applicable could not have applied the logic of Order 39 Rule 10 of the Code which operates in an entirely different background. It was pointed out that the Division Bench committed factual error in observing that there was no clear denial to the claim of the plaintiff and/ or that its stand was an evasive one and at times in the nature of an afterthought. Having ruled out application of Order 12 Rule 6, it was not open to the Division Bench to bring in operation of Rule 39 Rule 10, of the Code with the help of Section 151. It was also submitted that the claim as made clearly exaggerated, without any foundation or basis and neither in law nor equity plaintiff was entitled to any relief. 8. It was, however, accepted that at the most the plaintiff may be entitled to the arrears of rentals and nothing beyond that. The question of making any payment for the rentals after expiry of the agreement period is also not contemplated in law. There was no termination of the agreement and on the contrary it lost it currency after the extended period of one month beyond the initially stipulated last date. 9. Responding to the above submissions, Mr. K.K. Venugopal, learned senior counsel for the plaintiff (respondent no.1) submitted that here is a case where the party has taken advantage of its own wrong doings. Undisputedly it had taken the containers on lease. Clause 6 of the agreement clearly stipulates that rental charges were to be paid till the containers are returned. This has admittedly not been done. There are several letters where there was express acceptance of the liability. Finally it was submitted that this is not a case where this Court should exercise powers under Article 136 of the Constitution of India, 1950 (in short the Constitution). 10. By way of reply to the submissions made by Mr. Venugopal, Mr. Nariman submitted that the scope and ambit of Article 136 is too well known and, therefore, where substantial question of law relating to jurisdiction of a commercial court is raised, the Court has to see whether the impugned judgment meets the requirement of law. According to him, it is too futile to contend that Article 136 will not be exercised in a case of this nature where the Division Bench of the High Court clearly acted contrary to well-settled principle of law. 11. Few facts of relevance need to be noted in view of the rival stands. Undisputedly, the order impugned is an interim order. The direction is for deposit and no liberty has been granted to the plaintiff for withdrawal after the deposit. As noted supra, there was no serious dispute relating to the claim for arrears of rentals. Admittedly, 92 containers were leased out by the plaintiff to the defendant no.1 according to whom some of the containers were not traceable and were lost. We may add here that subsequent to the filing of the suit, it was contended that all the 92 vessels were lost. 12. In view of the factual scenario unfolded above, it does not appears to be a case where interference under Article 136 of the Constitution is called for. That power is exercised only on showing substantial injustice, and not for merely technical flaws in a proceeding. (See Shahoodul Haque vs. The Registrar, Co- operative Societies, Bihar and Anr. (1975 (3) SCC 108) . The position was illuminatingly stated in Rashpal Malhotra vs. Mrs. Satya Rajput and Anr. (1987 (4) SCC 391) . This Court in Heavy Engineering Corporation Ltd., Ranchi vs. K. Singh and Co., Ranchi (AIR 1977 SC 2031 ) expressed the opinion that although the powers of this Court were wide under Article 136, it could not be urged that because leave had been granted the court must always in every case deal with the merits, even though it was satisfied that the ends of justice did not justify its interference in a given case. It is not as if, in an appeal with leave under Article 136, this Court was bound to decide the question if on facts at the later hearing the court felt that the ends of justice did not make it necessary to decide the point. Similarly in Baigana vs. Deputy Collector of Consolidation (1978 (3) SCR 509 ) it was held that this Court was more than a court of appeal. It exercises power only when there is supreme need. It is not the fifth court of appeal, but the final court of the nation. Therefore, even if legal flaws might be electronically detected, it may not interfere save manifest injustice or substantial question of public importance. 13. In Taherakhatoon (D) by Lrs. vs. Salambin Mohammad (1999 (2) SCC 635) , it was noted that even in cases where leave has been granted, the Court might after declaring the correct legal position decline to interfere saying that it would not exercise discretion to decide the case on merits and that it would decide on the basis of the equitable considerations in the facts and circumstances of the case and mould the final order. | 1[ds]11. Few facts of relevance need to be noted in view of the rival stands. Undisputedly, the order impugned is an interim order. The direction is for deposit and no liberty has been granted to the plaintiff for withdrawal after the deposit. As noted supra, there was no serious dispute relating to the claim for arrears of rentals. Admittedly, 92 containers were leased out by the plaintiff to the defendant no.1 according to whom some of the containers were not traceable and were lost. We may add here that subsequent to the filing of the suit, it was contended that all the 92 vessels were lost12. In view of the factual scenario unfolded above, it does not appears to be a case where interference under Article 136 of the Constitution is called for. That power is exercised only on showing substantial injustice, and not for merely technical flaws in a proceeding. (See Shahoodul Haque vs. The Registrar, Co- operative Societies, Bihar and Anr. (1975 (3) SCC 108) . The position was illuminatingly stated in Rashpal Malhotra vs. Mrs. Satya Rajput and Anr. (1987 (4) SCC 391) . This Court in Heavy Engineering Corporation Ltd., Ranchi vs. K. Singh and Co., Ranchi (AIR 1977 SC 2031 ) expressed the opinion that although the powers of this Court were wide under Article 136, it could not be urged that because leave had been granted the court must always in every case deal with the merits, even though it was satisfied that the ends of justice did not justify its interference in a given case. It is not as if, in an appeal with leave under Article 136, this Court was bound to decide the question if on facts at the later hearing the court felt that the ends of justice did not make it necessary to decide the point. Similarly in Baigana vs. Deputy Collector of Consolidation (1978 (3) SCR 509 ) it was held that this Court was more than a court of appeal. It exercises power only when there is supreme need. It is not the fifth court of appeal, but the final court of the nation. Therefore, even if legal flaws might be electronically detected, it may not interfere save manifest injustice or substantial question of public importance13. In Taherakhatoon (D) by Lrs. vs. Salambin Mohammad (1999 (2) SCC 635) , it was noted that even in cases where leave has been granted, the Court might after declaring the correct legal position decline to interfere saying that it would not exercise discretion to decide the case on merits and that it would decide on the basis of the equitable considerations in the facts and circumstances of the case and mould the final order. | 1 | 2,033 | 515 | ### 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:
81,77,632.50 (rounded of to Rs. 82,00,000/-) within 12 weeks period. It was further directed that the amount was to be deposited in a nationalised bank for a period of 37 months and the deposit was to be renewed at a time by 13 months until the suit was decided. This order is under challenge. 7. Mr. R.F. Nariman, learned senior counsel for the appellants submitted that the Division Bench manifestly erred in directing deposit by overlooking the factual and legal background involved. In a commercial suit where there was dispute regarding the liability such directions could not have been given. Even in respect of a summary suit under Order 37 there was no scope for giving the type of direction as done. The Division Bench while implicitly upholding the view of learned Single Judge that Order 12 Rule 6 was not applicable could not have applied the logic of Order 39 Rule 10 of the Code which operates in an entirely different background. It was pointed out that the Division Bench committed factual error in observing that there was no clear denial to the claim of the plaintiff and/ or that its stand was an evasive one and at times in the nature of an afterthought. Having ruled out application of Order 12 Rule 6, it was not open to the Division Bench to bring in operation of Rule 39 Rule 10, of the Code with the help of Section 151. It was also submitted that the claim as made clearly exaggerated, without any foundation or basis and neither in law nor equity plaintiff was entitled to any relief. 8. It was, however, accepted that at the most the plaintiff may be entitled to the arrears of rentals and nothing beyond that. The question of making any payment for the rentals after expiry of the agreement period is also not contemplated in law. There was no termination of the agreement and on the contrary it lost it currency after the extended period of one month beyond the initially stipulated last date. 9. Responding to the above submissions, Mr. K.K. Venugopal, learned senior counsel for the plaintiff (respondent no.1) submitted that here is a case where the party has taken advantage of its own wrong doings. Undisputedly it had taken the containers on lease. Clause 6 of the agreement clearly stipulates that rental charges were to be paid till the containers are returned. This has admittedly not been done. There are several letters where there was express acceptance of the liability. Finally it was submitted that this is not a case where this Court should exercise powers under Article 136 of the Constitution of India, 1950 (in short the Constitution). 10. By way of reply to the submissions made by Mr. Venugopal, Mr. Nariman submitted that the scope and ambit of Article 136 is too well known and, therefore, where substantial question of law relating to jurisdiction of a commercial court is raised, the Court has to see whether the impugned judgment meets the requirement of law. According to him, it is too futile to contend that Article 136 will not be exercised in a case of this nature where the Division Bench of the High Court clearly acted contrary to well-settled principle of law. 11. Few facts of relevance need to be noted in view of the rival stands. Undisputedly, the order impugned is an interim order. The direction is for deposit and no liberty has been granted to the plaintiff for withdrawal after the deposit. As noted supra, there was no serious dispute relating to the claim for arrears of rentals. Admittedly, 92 containers were leased out by the plaintiff to the defendant no.1 according to whom some of the containers were not traceable and were lost. We may add here that subsequent to the filing of the suit, it was contended that all the 92 vessels were lost. 12. In view of the factual scenario unfolded above, it does not appears to be a case where interference under Article 136 of the Constitution is called for. That power is exercised only on showing substantial injustice, and not for merely technical flaws in a proceeding. (See Shahoodul Haque vs. The Registrar, Co- operative Societies, Bihar and Anr. (1975 (3) SCC 108) . The position was illuminatingly stated in Rashpal Malhotra vs. Mrs. Satya Rajput and Anr. (1987 (4) SCC 391) . This Court in Heavy Engineering Corporation Ltd., Ranchi vs. K. Singh and Co., Ranchi (AIR 1977 SC 2031 ) expressed the opinion that although the powers of this Court were wide under Article 136, it could not be urged that because leave had been granted the court must always in every case deal with the merits, even though it was satisfied that the ends of justice did not justify its interference in a given case. It is not as if, in an appeal with leave under Article 136, this Court was bound to decide the question if on facts at the later hearing the court felt that the ends of justice did not make it necessary to decide the point. Similarly in Baigana vs. Deputy Collector of Consolidation (1978 (3) SCR 509 ) it was held that this Court was more than a court of appeal. It exercises power only when there is supreme need. It is not the fifth court of appeal, but the final court of the nation. Therefore, even if legal flaws might be electronically detected, it may not interfere save manifest injustice or substantial question of public importance. 13. In Taherakhatoon (D) by Lrs. vs. Salambin Mohammad (1999 (2) SCC 635) , it was noted that even in cases where leave has been granted, the Court might after declaring the correct legal position decline to interfere saying that it would not exercise discretion to decide the case on merits and that it would decide on the basis of the equitable considerations in the facts and circumstances of the case and mould the final order.
### Response:
1
### Explanation:
11. Few facts of relevance need to be noted in view of the rival stands. Undisputedly, the order impugned is an interim order. The direction is for deposit and no liberty has been granted to the plaintiff for withdrawal after the deposit. As noted supra, there was no serious dispute relating to the claim for arrears of rentals. Admittedly, 92 containers were leased out by the plaintiff to the defendant no.1 according to whom some of the containers were not traceable and were lost. We may add here that subsequent to the filing of the suit, it was contended that all the 92 vessels were lost12. In view of the factual scenario unfolded above, it does not appears to be a case where interference under Article 136 of the Constitution is called for. That power is exercised only on showing substantial injustice, and not for merely technical flaws in a proceeding. (See Shahoodul Haque vs. The Registrar, Co- operative Societies, Bihar and Anr. (1975 (3) SCC 108) . The position was illuminatingly stated in Rashpal Malhotra vs. Mrs. Satya Rajput and Anr. (1987 (4) SCC 391) . This Court in Heavy Engineering Corporation Ltd., Ranchi vs. K. Singh and Co., Ranchi (AIR 1977 SC 2031 ) expressed the opinion that although the powers of this Court were wide under Article 136, it could not be urged that because leave had been granted the court must always in every case deal with the merits, even though it was satisfied that the ends of justice did not justify its interference in a given case. It is not as if, in an appeal with leave under Article 136, this Court was bound to decide the question if on facts at the later hearing the court felt that the ends of justice did not make it necessary to decide the point. Similarly in Baigana vs. Deputy Collector of Consolidation (1978 (3) SCR 509 ) it was held that this Court was more than a court of appeal. It exercises power only when there is supreme need. It is not the fifth court of appeal, but the final court of the nation. Therefore, even if legal flaws might be electronically detected, it may not interfere save manifest injustice or substantial question of public importance13. In Taherakhatoon (D) by Lrs. vs. Salambin Mohammad (1999 (2) SCC 635) , it was noted that even in cases where leave has been granted, the Court might after declaring the correct legal position decline to interfere saying that it would not exercise discretion to decide the case on merits and that it would decide on the basis of the equitable considerations in the facts and circumstances of the case and mould the final order.
|
Kays Construction Co. (P) Ltd Vs. State Of Uttar Pradesh And Others | be taken before the Labour Court under the second sub-section to determine the money equivalent of the "benefit" to which the workmen were entitled before the certificate could issue. In other words, Broome, J. was of opinion that the application of the first sub-section of S. 6-H was premature and thus erroneous.7. Against this decision an appeal was filed under the Letters Patent of the High Court and by the order, now under appeal, the judgment of Broome, J. was reversed. The Division Bench held that the words of the second sub-section "any benefit which is capable of being computed in terms of money" indicated benefits like free quarters or free electricity and not something which a workman earned through his labour. Reliance was placed upon a decision of this Court in S. S. Shetty v. Bharat Nidhi Ltd., 1958 SCR 442 : (AIR 1958 SC 12 ), where Bhagwati, J. has pointed out that if any benefit awarded by the Tribunal was not expressed in terms of money it was necessary to have it computed in terms of money before the appropriate Government could be asked to help in the recovery under S. 20 (2) of the Industrial Disputes (Appellate Tribunal), Act, 1950. In the opinion of the Division Bench this decision supported their conclusion that the computation in terms of money of a benefit was something different from mere arithmetical calculation of the amount of back wages. The Divisional Bench distinguished Kasturi and Sons (P) Ltd. v. N. Salivatesaran, AIR 1958 SC 507 , on the ground that S. 17 of the Working Journalists (Condition of Service and Miscellaneous Provisions) Act, 1955 referred expressly to money due by way of compensation, gratuity and wages. The case in Punjab National Bank Ltd. v. K. L. Kharbanda, (1962) 1 Lab LJ 234 : (AIR 1963 SC 487 ), where it was held that monetary advantage or profit was not necessarily outside the word benefit as used in S. 33C of the Industrial Disputes Act, 1947, was also distinguished. In view of these cases the Division Bench did not follow the two rulings of the High Court cited earlier and another reported in Shri Amrasinghji Mills Ltd. v. M. N. Nagrashna, (1961) 1 Lab LJ 581 (Bom).8. It is contended before us that the judgment of the Divisional Bench is erroneous in its interpretation of S. 6-H (1) and (2). The question thus is how are the two sub-sections to be read? This section is analogous to S. 33C of the Industrial Disputes Act, 1947 and S. 20 of the Industrial Disputes (Appellate Tribunal) Act, 1950. It is significant that in all the three statutes the cognate section is divided into two parts and the first part deals with recovery of money due to a workman under an award and the seond deals with a benefit computable in terms of money. Under the first sub-section the State Government (or its delegate) if satisfied that any money is due, is enabled to issue a certificate to the collector who then proceeds to recover the amount as an arrear of land revenue. The second part then speaks of a benefit computable in terms of money which benefit after it is so computed by a Tribunal is again recoverable in the same way as money due under the first part. This scheme runs through Section 6-H, sub-ss. (1) and (2).9. That there is some difference between the two sub-sections is obvious enough. It arises from the fact that the benefit contemplated in the second sub-section is not "money due" but some advantage or perquisite which can be reckoned in terms of money. The Divisional Bench has given apt examples of benefits which are computable in terms of money, but till so computed are not "money due". For instance, loss of the benefit of free quarters is not loss of "money due" though such loss can be reckoned in terms of money by inquiry and equation. The contrast between "money due" on the one hand and a "benefit" which is not "money due" but which can become so after the money equivalent is determined on the other, marks out the areas of the operation of the two sub-sections. If the word "benefit" were taken to cover a case of mere arithmetical calculation of wages, the first sub-section would hardly have any play. Every case of calculation, however, simple, would have to go first before a Tribunal. In our judgment, a case such as the present, where the money due is back wages for the period of unemployment is covered by the first sub-section and not the second. No doubt some calculation enters the determination of the amount for which the certificate will eventually issue but this calculation is not of the type mentioned in the second sub-section and cannot be made to fit in the elaborate phrase "benefit which is capable of being computed in terms of money". The contrast in the two sub-section and the necessity of reckoning the benefit in terms of money before the benefit becomes "money due" under the second sub-section shows that mere arithmetical calculations of the amount due are not required to be dealt with under the elaborate procedure of the second sub-section. The appellant no doubt conjured up a number of obstructions in the way of this simple calculation. These objections dealt with the "amount due" and they are being investigated because State Government must first satisfy itself that the amount claimed is in fact due. But the antithesis between "money due" and a "benefit which must be computed in terms of money" still remains; for the inquiry being made is not of the kind contemplated by the second sub-section but is one for the satisfaction of the State Government under the first sub-section. It is verification of the claim to money within the first sub-section and not determination in terms of money of the value of a benefit. The judgment of the Division Bench was thus right. | 0[ds]This section is analogous to S. 33C ofthe Industrial Disputes Act, 1947 and S. 20 of the Industrial Disputes (Appellate Tribunal) Act, 1950. It is significant that in all the three statutes the cognate section is divided into two parts and the first part deals with recovery of money due to a workman under an award and the seond deals with a benefit computable in terms of money. Under the first sub-section the State Government (or its delegate) if satisfied that any money is due, is enabled to issue a certificate to the collector who then proceeds to recover the amount as an arrear of land revenue. The second part then speaks of a benefit computable in terms of money which benefit after it is so computed by a Tribunal is again recoverable in the same way as money due under the first part. This scheme runs through Section 6-H, sub-ss. (1) and (2).That there is some difference between the two sub-sections is obvious enough. It arises from the fact that the benefit contemplated in the second sub-section is not "money due" but some advantage or perquisite which can be reckoned in terms of money. The Divisional Bench has given apt examples of benefits which are computable in terms of money, but till so computed are not "money due". For instance, loss of the benefit of free quarters is not loss of "money due" though such loss can be reckoned in terms of money by inquiry and equation. The contrast between "money due" on the one hand and a "benefit" which is not "money due" but which can become so after the money equivalent is determined on the other, marks out the areas of the operation of the two sub-sections. If the word "benefit" were taken to cover a case of mere arithmetical calculation of wages, the first sub-section would hardly have any play. Every case of calculation, however, simple, would have to go first before a Tribunal. In our judgment, a case such as the present, where the money due is back wages for the period of unemployment is covered by the first sub-section and not the second. No doubt some calculation enters the determination of the amount for which the certificate will eventually issue but this calculation is not of the type mentioned in the second sub-section and cannot be made to fit in the elaborate phrase "benefit which is capable of being computed in terms of money". The contrast in the two sub-section and the necessity of reckoning the benefit in terms of money before the benefit becomes "money due" under the second sub-section shows that mere arithmetical calculations of the amount due are not required to be dealt with under the elaborate procedure of the second sub-section. The appellant no doubt conjured up a number of obstructions in the way of this simple calculation. These objections dealt with the "amount due" and they are being investigated because State Government must first satisfy itself that the amount claimed is in fact due. But the antithesis between "money due" and a "benefit which must be computed in terms of money" still remains; for the inquiry being made is not of the kind contemplated by the second sub-section but is one for the satisfaction of the State Government under the first sub-section. It is verification of the claim to money within the first sub-section and not determination in terms of money of the value of a benefit. The judgment of the Division Bench was thus right. | 0 | 2,427 | 659 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
be taken before the Labour Court under the second sub-section to determine the money equivalent of the "benefit" to which the workmen were entitled before the certificate could issue. In other words, Broome, J. was of opinion that the application of the first sub-section of S. 6-H was premature and thus erroneous.7. Against this decision an appeal was filed under the Letters Patent of the High Court and by the order, now under appeal, the judgment of Broome, J. was reversed. The Division Bench held that the words of the second sub-section "any benefit which is capable of being computed in terms of money" indicated benefits like free quarters or free electricity and not something which a workman earned through his labour. Reliance was placed upon a decision of this Court in S. S. Shetty v. Bharat Nidhi Ltd., 1958 SCR 442 : (AIR 1958 SC 12 ), where Bhagwati, J. has pointed out that if any benefit awarded by the Tribunal was not expressed in terms of money it was necessary to have it computed in terms of money before the appropriate Government could be asked to help in the recovery under S. 20 (2) of the Industrial Disputes (Appellate Tribunal), Act, 1950. In the opinion of the Division Bench this decision supported their conclusion that the computation in terms of money of a benefit was something different from mere arithmetical calculation of the amount of back wages. The Divisional Bench distinguished Kasturi and Sons (P) Ltd. v. N. Salivatesaran, AIR 1958 SC 507 , on the ground that S. 17 of the Working Journalists (Condition of Service and Miscellaneous Provisions) Act, 1955 referred expressly to money due by way of compensation, gratuity and wages. The case in Punjab National Bank Ltd. v. K. L. Kharbanda, (1962) 1 Lab LJ 234 : (AIR 1963 SC 487 ), where it was held that monetary advantage or profit was not necessarily outside the word benefit as used in S. 33C of the Industrial Disputes Act, 1947, was also distinguished. In view of these cases the Division Bench did not follow the two rulings of the High Court cited earlier and another reported in Shri Amrasinghji Mills Ltd. v. M. N. Nagrashna, (1961) 1 Lab LJ 581 (Bom).8. It is contended before us that the judgment of the Divisional Bench is erroneous in its interpretation of S. 6-H (1) and (2). The question thus is how are the two sub-sections to be read? This section is analogous to S. 33C of the Industrial Disputes Act, 1947 and S. 20 of the Industrial Disputes (Appellate Tribunal) Act, 1950. It is significant that in all the three statutes the cognate section is divided into two parts and the first part deals with recovery of money due to a workman under an award and the seond deals with a benefit computable in terms of money. Under the first sub-section the State Government (or its delegate) if satisfied that any money is due, is enabled to issue a certificate to the collector who then proceeds to recover the amount as an arrear of land revenue. The second part then speaks of a benefit computable in terms of money which benefit after it is so computed by a Tribunal is again recoverable in the same way as money due under the first part. This scheme runs through Section 6-H, sub-ss. (1) and (2).9. That there is some difference between the two sub-sections is obvious enough. It arises from the fact that the benefit contemplated in the second sub-section is not "money due" but some advantage or perquisite which can be reckoned in terms of money. The Divisional Bench has given apt examples of benefits which are computable in terms of money, but till so computed are not "money due". For instance, loss of the benefit of free quarters is not loss of "money due" though such loss can be reckoned in terms of money by inquiry and equation. The contrast between "money due" on the one hand and a "benefit" which is not "money due" but which can become so after the money equivalent is determined on the other, marks out the areas of the operation of the two sub-sections. If the word "benefit" were taken to cover a case of mere arithmetical calculation of wages, the first sub-section would hardly have any play. Every case of calculation, however, simple, would have to go first before a Tribunal. In our judgment, a case such as the present, where the money due is back wages for the period of unemployment is covered by the first sub-section and not the second. No doubt some calculation enters the determination of the amount for which the certificate will eventually issue but this calculation is not of the type mentioned in the second sub-section and cannot be made to fit in the elaborate phrase "benefit which is capable of being computed in terms of money". The contrast in the two sub-section and the necessity of reckoning the benefit in terms of money before the benefit becomes "money due" under the second sub-section shows that mere arithmetical calculations of the amount due are not required to be dealt with under the elaborate procedure of the second sub-section. The appellant no doubt conjured up a number of obstructions in the way of this simple calculation. These objections dealt with the "amount due" and they are being investigated because State Government must first satisfy itself that the amount claimed is in fact due. But the antithesis between "money due" and a "benefit which must be computed in terms of money" still remains; for the inquiry being made is not of the kind contemplated by the second sub-section but is one for the satisfaction of the State Government under the first sub-section. It is verification of the claim to money within the first sub-section and not determination in terms of money of the value of a benefit. The judgment of the Division Bench was thus right.
### Response:
0
### Explanation:
This section is analogous to S. 33C ofthe Industrial Disputes Act, 1947 and S. 20 of the Industrial Disputes (Appellate Tribunal) Act, 1950. It is significant that in all the three statutes the cognate section is divided into two parts and the first part deals with recovery of money due to a workman under an award and the seond deals with a benefit computable in terms of money. Under the first sub-section the State Government (or its delegate) if satisfied that any money is due, is enabled to issue a certificate to the collector who then proceeds to recover the amount as an arrear of land revenue. The second part then speaks of a benefit computable in terms of money which benefit after it is so computed by a Tribunal is again recoverable in the same way as money due under the first part. This scheme runs through Section 6-H, sub-ss. (1) and (2).That there is some difference between the two sub-sections is obvious enough. It arises from the fact that the benefit contemplated in the second sub-section is not "money due" but some advantage or perquisite which can be reckoned in terms of money. The Divisional Bench has given apt examples of benefits which are computable in terms of money, but till so computed are not "money due". For instance, loss of the benefit of free quarters is not loss of "money due" though such loss can be reckoned in terms of money by inquiry and equation. The contrast between "money due" on the one hand and a "benefit" which is not "money due" but which can become so after the money equivalent is determined on the other, marks out the areas of the operation of the two sub-sections. If the word "benefit" were taken to cover a case of mere arithmetical calculation of wages, the first sub-section would hardly have any play. Every case of calculation, however, simple, would have to go first before a Tribunal. In our judgment, a case such as the present, where the money due is back wages for the period of unemployment is covered by the first sub-section and not the second. No doubt some calculation enters the determination of the amount for which the certificate will eventually issue but this calculation is not of the type mentioned in the second sub-section and cannot be made to fit in the elaborate phrase "benefit which is capable of being computed in terms of money". The contrast in the two sub-section and the necessity of reckoning the benefit in terms of money before the benefit becomes "money due" under the second sub-section shows that mere arithmetical calculations of the amount due are not required to be dealt with under the elaborate procedure of the second sub-section. The appellant no doubt conjured up a number of obstructions in the way of this simple calculation. These objections dealt with the "amount due" and they are being investigated because State Government must first satisfy itself that the amount claimed is in fact due. But the antithesis between "money due" and a "benefit which must be computed in terms of money" still remains; for the inquiry being made is not of the kind contemplated by the second sub-section but is one for the satisfaction of the State Government under the first sub-section. It is verification of the claim to money within the first sub-section and not determination in terms of money of the value of a benefit. The judgment of the Division Bench was thus right.
|
Dondapani Sahu Vs. Arjuna Panda & Others | a joint Hindu family defendant No. 1 being the father of defendant Nos. 2 to 4. Out of them defendant No. 4 did not appear and contest the suit. Defendant Nos. 1 to 3 claimed to be the owners of properties shown in Lot 1 in the schedule. Defendant Nos. 5 and 6 claimed one item out of Lot I. Defendant No. 9 claimed the properties in Lots 2 and 3 in the schedule. Defendant Nos. 7 and 8 ultimately entered into a compromise. During the pendency of the suit the 4th defendant died on June 25, 1958. On August 25, 1958 the plaintiff filed a memorandum in the following terms :"Defendants 1 to 4 are members of a joint family. The 1st defendant is the father and defendants 2 to 4 are his sons. "Defendant No. 4 Kasinath Panda died and defendants 1 to 3 are his L. Rs." An application was filed on August 26, 1958 that Kasinath Panda defendant No. 4 who had died left two minor sons Surendra Panda and Janannath Panda and a widow Dossi Pandiani who were all members of a joint Hindu Family along with defendants 1 to 3. It was stated that as these legal representatives had not trespassed on the suit lands it was not necessary to implead them in the suit. Defendant Nos. 1 to 3 were the legal representatives who were already on the record. It was further averred that the provisions of the Hindu Succession Act did not apply and the suit could proceed in the absence of the widow and the minor sons of the deceased. The trial Judge passed an order striking off the name of defendant No. 4 on August 26, 1958. Defendant No. 1 also died on October 1, 1958. Defendant Nos. 2 and 3 filed a memorandum that they were his legal representatives. His name was consequently struck off. After framing the necessary issues and recording the evidence of the parties the Trial Judge believed the version of the plaintiff that the defendants had trespassed upon the suit lands and decreed the suit on May 5, 1959 against defendants 2, 3, 5 and 9 and dismissed the suit as against defendants 7 and 8 owing to a compromise having been entered into by them. 3. The contesting defendant preferred an appeal to the Additional Subordinate Judge in which one of the contentions raised was that the suit had abated as the legal representatives of the 4th defendant had not been impleaded in his place. This contention was negatived on the ground that the suit was for recovery of possession from the trespassers had died during the pendency of the suit, the plaintiff could be granted relief against the remaining trespassers. On the merits also the learned Additional Subordinate Judge affirmed the decision of the trial Judge. 4. The unsuccessful defendant Nos. 2, 3, 6 and 9 filed an appeal to the High Court. The sole point on which the appeal succeeded was of abatement of the suit owing to the death of defendant No. 4 and the non-impleadment of his legal representatives, namely, his widow and two minor sons. The view of the High Court was that where a suit was based upon a joint and indivisible act of trespassers there was no question of several liability. On the cause of action a joint and indivisible decree would follow and if the decree was a nullity as against one defendant it must be taken to be a nullity against all the defendants. Moreover it was essential under the law to join all the trespassers known to be in possession on the date of the suit as necessary parties. The argument that there would be no total abatement because the suit property was in three lots was not accepted. 5. With all respect due to the learned Judges of the High Court it is not possible to appreciate how the suit could be dismissed when defendant No. 4 was the son of defendant No. 1 and brother of defendant Nos. 2 and 3 and they constituted a joint Hindu family. Even if the widow and the sons of defendant No. 4 were not impleaded although their names were disclosed on the ground that defendants Nos. 1 to 3 represented defendant No. 4, the suit could not be dismissed for reasons which are quite obvious. Order XXII, Rule 5 provides that where a question arises as to whether any person is or is not a legal representative of deceased plaintiff or deceased defendant such question shall be determined by the court. As has been stated earlier, the plaintiff had made it quite clear that defendant No. 4 had left a widow and two minor sons whose names had been given in the application which was filed but since he was a member of the joint Hindu family he was represented by defendants Nos. 1 to 3 who were already on the record. No objection whatsoever was taken by the aforesaid defendants or any other defendant at that time to this averment. When the Trial Judge struck off the name of defendant No. 4 he accepted the position adopted by the plaintiff that defendants Nos. 1 to 3 were the legal representatives of defendant No. 4 for the purpose of the suit. As pointed out in Mullas Civil Procedure Code, Vol. II at p. 1258 if the defendants have not objected in the suit that a deceased co-defendant is not properly represented they will not be entitled to raise that objection in the appeal. In the present case it can well be said that it was almost by consent of the parties that the name of defendant No. 4 was struck off without impleading his widow and his two sons on the ground that the deceased was represented by defendant Nos. 1 to 3 who were already parties to the suit. It was not open to the defendants to have the matter reopened in an appeal. | 1[ds]5. With all respect due to the learned Judges of the High Court it is not possible to appreciate how the suit could be dismissed when defendant No. 4 was the son of defendant No. 1 and brother of defendant Nos. 2 and 3 and they constituted a joint Hindu family. Even if the widow and the sons of defendant No. 4 were not impleaded although their names were disclosed on the ground that defendants Nos. 1 to 3 represented defendant No. 4, the suit could not be dismissed for reasons which are quite obvious. Order XXII, Rule 5 provides that where a question arises as to whether any person is or is not a legal representative of deceased plaintiff or deceased defendant such question shall be determined by the court. As has been stated earlier, the plaintiff had made it quite clear that defendant No. 4 had left a widow and two minor sons whose names had been given in the application which was filed but since he was a member of the joint Hindu family he was represented by defendants Nos. 1 to 3 who were already on the record. No objection whatsoever was taken by the aforesaid defendants or any other defendant at that time to this averment. When the Trial Judge struck off the name of defendant No. 4 he accepted the position adopted by the plaintiff that defendants Nos. 1 to 3 were the legal representatives of defendant No. 4 for the purpose of the suit. As pointed out in Mullas Civil Procedure Code, Vol. II at p. 1258 if the defendants have not objected in the suit that a deceased co-defendant is not properly represented they will not be entitled to raise that objection in the appeal. In the present case it can well be said that it was almost by consent of the parties that the name of defendant No. 4 was struck off without impleading his widow and his two sons on the ground that the deceased was represented by defendant Nos. 1 to 3 who were already parties to the suit. It was not open to the defendants to have the matter reopened in an appeal. | 1 | 1,160 | 397 | ### Instruction:
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a joint Hindu family defendant No. 1 being the father of defendant Nos. 2 to 4. Out of them defendant No. 4 did not appear and contest the suit. Defendant Nos. 1 to 3 claimed to be the owners of properties shown in Lot 1 in the schedule. Defendant Nos. 5 and 6 claimed one item out of Lot I. Defendant No. 9 claimed the properties in Lots 2 and 3 in the schedule. Defendant Nos. 7 and 8 ultimately entered into a compromise. During the pendency of the suit the 4th defendant died on June 25, 1958. On August 25, 1958 the plaintiff filed a memorandum in the following terms :"Defendants 1 to 4 are members of a joint family. The 1st defendant is the father and defendants 2 to 4 are his sons. "Defendant No. 4 Kasinath Panda died and defendants 1 to 3 are his L. Rs." An application was filed on August 26, 1958 that Kasinath Panda defendant No. 4 who had died left two minor sons Surendra Panda and Janannath Panda and a widow Dossi Pandiani who were all members of a joint Hindu Family along with defendants 1 to 3. It was stated that as these legal representatives had not trespassed on the suit lands it was not necessary to implead them in the suit. Defendant Nos. 1 to 3 were the legal representatives who were already on the record. It was further averred that the provisions of the Hindu Succession Act did not apply and the suit could proceed in the absence of the widow and the minor sons of the deceased. The trial Judge passed an order striking off the name of defendant No. 4 on August 26, 1958. Defendant No. 1 also died on October 1, 1958. Defendant Nos. 2 and 3 filed a memorandum that they were his legal representatives. His name was consequently struck off. After framing the necessary issues and recording the evidence of the parties the Trial Judge believed the version of the plaintiff that the defendants had trespassed upon the suit lands and decreed the suit on May 5, 1959 against defendants 2, 3, 5 and 9 and dismissed the suit as against defendants 7 and 8 owing to a compromise having been entered into by them. 3. The contesting defendant preferred an appeal to the Additional Subordinate Judge in which one of the contentions raised was that the suit had abated as the legal representatives of the 4th defendant had not been impleaded in his place. This contention was negatived on the ground that the suit was for recovery of possession from the trespassers had died during the pendency of the suit, the plaintiff could be granted relief against the remaining trespassers. On the merits also the learned Additional Subordinate Judge affirmed the decision of the trial Judge. 4. The unsuccessful defendant Nos. 2, 3, 6 and 9 filed an appeal to the High Court. The sole point on which the appeal succeeded was of abatement of the suit owing to the death of defendant No. 4 and the non-impleadment of his legal representatives, namely, his widow and two minor sons. The view of the High Court was that where a suit was based upon a joint and indivisible act of trespassers there was no question of several liability. On the cause of action a joint and indivisible decree would follow and if the decree was a nullity as against one defendant it must be taken to be a nullity against all the defendants. Moreover it was essential under the law to join all the trespassers known to be in possession on the date of the suit as necessary parties. The argument that there would be no total abatement because the suit property was in three lots was not accepted. 5. With all respect due to the learned Judges of the High Court it is not possible to appreciate how the suit could be dismissed when defendant No. 4 was the son of defendant No. 1 and brother of defendant Nos. 2 and 3 and they constituted a joint Hindu family. Even if the widow and the sons of defendant No. 4 were not impleaded although their names were disclosed on the ground that defendants Nos. 1 to 3 represented defendant No. 4, the suit could not be dismissed for reasons which are quite obvious. Order XXII, Rule 5 provides that where a question arises as to whether any person is or is not a legal representative of deceased plaintiff or deceased defendant such question shall be determined by the court. As has been stated earlier, the plaintiff had made it quite clear that defendant No. 4 had left a widow and two minor sons whose names had been given in the application which was filed but since he was a member of the joint Hindu family he was represented by defendants Nos. 1 to 3 who were already on the record. No objection whatsoever was taken by the aforesaid defendants or any other defendant at that time to this averment. When the Trial Judge struck off the name of defendant No. 4 he accepted the position adopted by the plaintiff that defendants Nos. 1 to 3 were the legal representatives of defendant No. 4 for the purpose of the suit. As pointed out in Mullas Civil Procedure Code, Vol. II at p. 1258 if the defendants have not objected in the suit that a deceased co-defendant is not properly represented they will not be entitled to raise that objection in the appeal. In the present case it can well be said that it was almost by consent of the parties that the name of defendant No. 4 was struck off without impleading his widow and his two sons on the ground that the deceased was represented by defendant Nos. 1 to 3 who were already parties to the suit. It was not open to the defendants to have the matter reopened in an appeal.
### Response:
1
### Explanation:
5. With all respect due to the learned Judges of the High Court it is not possible to appreciate how the suit could be dismissed when defendant No. 4 was the son of defendant No. 1 and brother of defendant Nos. 2 and 3 and they constituted a joint Hindu family. Even if the widow and the sons of defendant No. 4 were not impleaded although their names were disclosed on the ground that defendants Nos. 1 to 3 represented defendant No. 4, the suit could not be dismissed for reasons which are quite obvious. Order XXII, Rule 5 provides that where a question arises as to whether any person is or is not a legal representative of deceased plaintiff or deceased defendant such question shall be determined by the court. As has been stated earlier, the plaintiff had made it quite clear that defendant No. 4 had left a widow and two minor sons whose names had been given in the application which was filed but since he was a member of the joint Hindu family he was represented by defendants Nos. 1 to 3 who were already on the record. No objection whatsoever was taken by the aforesaid defendants or any other defendant at that time to this averment. When the Trial Judge struck off the name of defendant No. 4 he accepted the position adopted by the plaintiff that defendants Nos. 1 to 3 were the legal representatives of defendant No. 4 for the purpose of the suit. As pointed out in Mullas Civil Procedure Code, Vol. II at p. 1258 if the defendants have not objected in the suit that a deceased co-defendant is not properly represented they will not be entitled to raise that objection in the appeal. In the present case it can well be said that it was almost by consent of the parties that the name of defendant No. 4 was struck off without impleading his widow and his two sons on the ground that the deceased was represented by defendant Nos. 1 to 3 who were already parties to the suit. It was not open to the defendants to have the matter reopened in an appeal.
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M/S. Centrotrade Minerals Vs. Hindustan Copper Ltd | New York Convention award should not be enforced because such enforcement would do substantial injustice and, therefore, was contrary to public policy in respect whereof the following had, normally, to be included amongst the relevant considerations: 114. The nature of the procedural injustice; Whether the party resisting enforcement had invoked the supervisory jurisdiction of the seat of the arbitration; Whether a remedy was available under that jurisdiction; Whether the courts of that jurisdiction had conclusively determined the complaint in favour of upholding the award; If the party resisting enforcement had failed to invoke that remedial jurisdiction, for what reason and, in particular, whether it was acting unreasonably in failing to do so. ANALYSIS: 115. It is not in dispute that the contention of HCL from the beginning was that the provision contained in the second part of the arbitration is void ab initio and of no effect. As noticed hereinbefore, it even filed a suit prior to entering into the reference by the Arbitrator. Even after the award was passed, proceedings before appropriate courts had been initiated. In its written statement filed before the arbitral tribunal, the question as regards the jurisdiction of the arbitrator was questioned by it. The learned arbitrator had, relying on or on the basis of the decisions, referred to hereinbefore, and also an opinion rendered by a former judge of this Court held that such an arbitration agreement is valid in law. In terms of Section 16 of the 1996 Act, the arbitrator, keeping in view the fact that the question as regard his jurisdiction had been raised was bound to decide the same before entering into the merit of the matter. Only in the event, it came to the conclusion that the arbitral tribunal had the requisite jurisdiction, it could have proceeded to determine the merit of the matter. We say so in view of the fact that in the event an arbitrator was of the opinion that he had no jurisdiction in the matter, the arbitration clause being invalid in law, Centrotrade could have preferred an appeal in terms of sub-section (2) of Section 37 of the 1996 Act. The question as regard lack of inherent jurisdiction on the part of the arbitrator in view of the second part of the arbitration clause being opposed to the public policy could have been raised by HCL in terms of Section 34 of the 1996 Act. 116. Even if it is held that two tier arbitration is permissible, under the 1996 Act it might lead to an incongruity. A two tier arbitration is invalid in law in the context of the 1996 Act having regard to Section 23 of the Contract Act as statutory jurisdiction cannot be waived by contract. It is, thus, amply clear that the very scheme of the 1996 Act does not contemplate a two tier arbitration agreement of this nature. 117. Conditions as regard non-existence or invalidity of an arbitration agreement can, in our opinion, be raised while resisting enforcement of a foreign award. Section 4 of the 1996 Act contemplates existence of an arbitration agreement which would mean a valid arbitration agreement. If the arbitration agreement is void and of no effect, it is non est in the eye of law and, thus, cannot be enforced. An arbitrator derives its jurisdiction from a reference which would mean a dispute and difference to be adjudicated upon in pursuance of or in furtherance of a valid arbitration agreement. It is not in dispute that the parties agreed that the Indian law shall apply. The validity or legality of a contract, thus, must be judged on the touch-stone of Section 23 of the Indian Contract Act. If a contract is opposed to a public policy, the same is void and of no effect. CONCLUSION: 118. It is doubtful whether the decisions of the Calcutta, Bombay and Madras High Court could have been held to be valid if a situation of the present nature had arisen therein, namely, both the 1940 and 1961 Acts are applicable in relation to two different awards made at two different point of time. The said decisions, therefore, might have been held to be good only in terms of the provisions of the 1940 Act or the 1961 Act but the ratio thereof cannot be extended to the cases falling under both the parts of the 1996 Act. 119. To bring clarity in the matter, we may notice the dichotomy arising herein. If the first award was to be enforced (although no occasion arose therefor), it could have been done only in terms of Part I of the Act. Despite invocation of second part of the arbitration agreement, it would not cease to be a decree in terms of Section 36 of the Act unless the operation thereof was directed to be stayed. In other words, the first award of the arbitral tribunal, on the expiry of the period specified for challenging the award, became a decree despite invocation of the second part thereof. It is difficult to comprehend that despite a part of the award becoming a decree of the court, the same would not be binding upon the arbitral tribunal. Section 34 of the 1996 Act provides for setting aside a domestic Indian award. It unlike the English Arbitration Act does not permit the parties to limit or avoid the operation of the statutory provisions. 120. Furthermore, the grounds for questioning a domestic award and a foreign award are different. In the context of the 1996 Act, an arbitration agreement which would otherwise be contrary to the provisions of the laws governing the contract between the parties would be void being opposed to public policy. 121. The High Courts judgment, therefore, in my considered view, cannot be sustained. 122. It is, thus, not necessary for us to advert to other questions raised at the Bar. Although we do not agree with the reasons assigned by the High Court, but we uphold the conclusion thereof on different grounds. | 0[ds]115. It is not in dispute that the contention of HCL from the beginning was that the provision contained in the second part of the arbitration is void ab initio and of no effect. As noticed hereinbefore, it even filed a suit prior to entering into the reference by the Arbitrator. Even after the award was passed, proceedings before appropriate courts had been initiated. In its written statement filed before the arbitral tribunal, the question as regards the jurisdiction of the arbitrator was questioned by it. The learned arbitrator had, relying on or on the basis of the decisions, referred to hereinbefore, and also an opinion rendered by a former judge of this Court held that such an arbitration agreement is valid in law. In terms of Section 16 of the 1996 Act, the arbitrator, keeping in view the fact that the question as regard his jurisdiction had been raised was bound to decide the same before entering into the merit of the matter. Only in the event, it came to the conclusion that the arbitral tribunal had the requisite jurisdiction, it could have proceeded to determine the merit of the matter. We say so in view of the fact that in the event an arbitrator was of the opinion that he had no jurisdiction in the matter, the arbitration clause being invalid in law, Centrotrade could have preferred an appeal in terms of sub-section (2) of Section 37 of the 1996 Act. The question as regard lack of inherent jurisdiction on the part of the arbitrator in view of the second part of the arbitration clause being opposed to the public policy could have been raised by HCL in terms of Section 34 of the 1996 Act116. Even if it is held that two tier arbitration is permissible, under the 1996 Act it might lead to an incongruity. A two tier arbitration is invalid in law in the context of the 1996 Act having regard to Section 23 of the Contract Act as statutory jurisdiction cannot be waived by contract. It is, thus, amply clear that the very scheme of the 1996 Act does not contemplate a two tier arbitration agreement of this nature118. It is doubtful whether the decisions of the Calcutta, Bombay and Madras High Court could have been held to be valid if a situation of the present nature had arisen therein, namely, both the 1940 and 1961 Acts are applicable in relation to two different awards made at two different point of time. The said decisions, therefore, might have been held to be good only in terms of the provisions of the 1940 Act or the 1961 Act but the ratio thereof cannot be extended to the cases falling under both the parts of the 1996 Act119. To bring clarity in the matter, we may notice the dichotomy arising herein. If the first award was to be enforced (although no occasion arose therefor), it could have been done only in terms of Part I of the Act. Despite invocation of second part of the arbitration agreement, it would not cease to be a decree in terms of Section 36 of the Act unless the operation thereof was directed to be stayed. In other words, the first award of the arbitral tribunal, on the expiry of the period specified for challenging the award, became a decree despite invocation of the second part thereof. It is difficult to comprehend that despite a part of the award becoming a decree of the court, the same would not be binding upon the arbitral tribunal. Section 34 of the 1996 Act provides for setting aside a domestic Indian award. It unlike the English Arbitration Act does not permit the parties to limit or avoid the operation of the statutory provisions120. Furthermore, the grounds for questioning a domestic award and a foreign award are different. In the context of the 1996 Act, an arbitration agreement which would otherwise be contrary to the provisions of the laws governing the contract between the parties would be void being opposed to public policy121. The High Courts judgment, therefore, in my considered view, cannot be sustained122. It is, thus, not necessary for us to advert to other questions raised at the Bar. Although we do not agree with the reasons assigned by the High Court, but we uphold the conclusion thereof on different grounds | 0 | 15,553 | 801 | ### 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:
New York Convention award should not be enforced because such enforcement would do substantial injustice and, therefore, was contrary to public policy in respect whereof the following had, normally, to be included amongst the relevant considerations: 114. The nature of the procedural injustice; Whether the party resisting enforcement had invoked the supervisory jurisdiction of the seat of the arbitration; Whether a remedy was available under that jurisdiction; Whether the courts of that jurisdiction had conclusively determined the complaint in favour of upholding the award; If the party resisting enforcement had failed to invoke that remedial jurisdiction, for what reason and, in particular, whether it was acting unreasonably in failing to do so. ANALYSIS: 115. It is not in dispute that the contention of HCL from the beginning was that the provision contained in the second part of the arbitration is void ab initio and of no effect. As noticed hereinbefore, it even filed a suit prior to entering into the reference by the Arbitrator. Even after the award was passed, proceedings before appropriate courts had been initiated. In its written statement filed before the arbitral tribunal, the question as regards the jurisdiction of the arbitrator was questioned by it. The learned arbitrator had, relying on or on the basis of the decisions, referred to hereinbefore, and also an opinion rendered by a former judge of this Court held that such an arbitration agreement is valid in law. In terms of Section 16 of the 1996 Act, the arbitrator, keeping in view the fact that the question as regard his jurisdiction had been raised was bound to decide the same before entering into the merit of the matter. Only in the event, it came to the conclusion that the arbitral tribunal had the requisite jurisdiction, it could have proceeded to determine the merit of the matter. We say so in view of the fact that in the event an arbitrator was of the opinion that he had no jurisdiction in the matter, the arbitration clause being invalid in law, Centrotrade could have preferred an appeal in terms of sub-section (2) of Section 37 of the 1996 Act. The question as regard lack of inherent jurisdiction on the part of the arbitrator in view of the second part of the arbitration clause being opposed to the public policy could have been raised by HCL in terms of Section 34 of the 1996 Act. 116. Even if it is held that two tier arbitration is permissible, under the 1996 Act it might lead to an incongruity. A two tier arbitration is invalid in law in the context of the 1996 Act having regard to Section 23 of the Contract Act as statutory jurisdiction cannot be waived by contract. It is, thus, amply clear that the very scheme of the 1996 Act does not contemplate a two tier arbitration agreement of this nature. 117. Conditions as regard non-existence or invalidity of an arbitration agreement can, in our opinion, be raised while resisting enforcement of a foreign award. Section 4 of the 1996 Act contemplates existence of an arbitration agreement which would mean a valid arbitration agreement. If the arbitration agreement is void and of no effect, it is non est in the eye of law and, thus, cannot be enforced. An arbitrator derives its jurisdiction from a reference which would mean a dispute and difference to be adjudicated upon in pursuance of or in furtherance of a valid arbitration agreement. It is not in dispute that the parties agreed that the Indian law shall apply. The validity or legality of a contract, thus, must be judged on the touch-stone of Section 23 of the Indian Contract Act. If a contract is opposed to a public policy, the same is void and of no effect. CONCLUSION: 118. It is doubtful whether the decisions of the Calcutta, Bombay and Madras High Court could have been held to be valid if a situation of the present nature had arisen therein, namely, both the 1940 and 1961 Acts are applicable in relation to two different awards made at two different point of time. The said decisions, therefore, might have been held to be good only in terms of the provisions of the 1940 Act or the 1961 Act but the ratio thereof cannot be extended to the cases falling under both the parts of the 1996 Act. 119. To bring clarity in the matter, we may notice the dichotomy arising herein. If the first award was to be enforced (although no occasion arose therefor), it could have been done only in terms of Part I of the Act. Despite invocation of second part of the arbitration agreement, it would not cease to be a decree in terms of Section 36 of the Act unless the operation thereof was directed to be stayed. In other words, the first award of the arbitral tribunal, on the expiry of the period specified for challenging the award, became a decree despite invocation of the second part thereof. It is difficult to comprehend that despite a part of the award becoming a decree of the court, the same would not be binding upon the arbitral tribunal. Section 34 of the 1996 Act provides for setting aside a domestic Indian award. It unlike the English Arbitration Act does not permit the parties to limit or avoid the operation of the statutory provisions. 120. Furthermore, the grounds for questioning a domestic award and a foreign award are different. In the context of the 1996 Act, an arbitration agreement which would otherwise be contrary to the provisions of the laws governing the contract between the parties would be void being opposed to public policy. 121. The High Courts judgment, therefore, in my considered view, cannot be sustained. 122. It is, thus, not necessary for us to advert to other questions raised at the Bar. Although we do not agree with the reasons assigned by the High Court, but we uphold the conclusion thereof on different grounds.
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0
### Explanation:
115. It is not in dispute that the contention of HCL from the beginning was that the provision contained in the second part of the arbitration is void ab initio and of no effect. As noticed hereinbefore, it even filed a suit prior to entering into the reference by the Arbitrator. Even after the award was passed, proceedings before appropriate courts had been initiated. In its written statement filed before the arbitral tribunal, the question as regards the jurisdiction of the arbitrator was questioned by it. The learned arbitrator had, relying on or on the basis of the decisions, referred to hereinbefore, and also an opinion rendered by a former judge of this Court held that such an arbitration agreement is valid in law. In terms of Section 16 of the 1996 Act, the arbitrator, keeping in view the fact that the question as regard his jurisdiction had been raised was bound to decide the same before entering into the merit of the matter. Only in the event, it came to the conclusion that the arbitral tribunal had the requisite jurisdiction, it could have proceeded to determine the merit of the matter. We say so in view of the fact that in the event an arbitrator was of the opinion that he had no jurisdiction in the matter, the arbitration clause being invalid in law, Centrotrade could have preferred an appeal in terms of sub-section (2) of Section 37 of the 1996 Act. The question as regard lack of inherent jurisdiction on the part of the arbitrator in view of the second part of the arbitration clause being opposed to the public policy could have been raised by HCL in terms of Section 34 of the 1996 Act116. Even if it is held that two tier arbitration is permissible, under the 1996 Act it might lead to an incongruity. A two tier arbitration is invalid in law in the context of the 1996 Act having regard to Section 23 of the Contract Act as statutory jurisdiction cannot be waived by contract. It is, thus, amply clear that the very scheme of the 1996 Act does not contemplate a two tier arbitration agreement of this nature118. It is doubtful whether the decisions of the Calcutta, Bombay and Madras High Court could have been held to be valid if a situation of the present nature had arisen therein, namely, both the 1940 and 1961 Acts are applicable in relation to two different awards made at two different point of time. The said decisions, therefore, might have been held to be good only in terms of the provisions of the 1940 Act or the 1961 Act but the ratio thereof cannot be extended to the cases falling under both the parts of the 1996 Act119. To bring clarity in the matter, we may notice the dichotomy arising herein. If the first award was to be enforced (although no occasion arose therefor), it could have been done only in terms of Part I of the Act. Despite invocation of second part of the arbitration agreement, it would not cease to be a decree in terms of Section 36 of the Act unless the operation thereof was directed to be stayed. In other words, the first award of the arbitral tribunal, on the expiry of the period specified for challenging the award, became a decree despite invocation of the second part thereof. It is difficult to comprehend that despite a part of the award becoming a decree of the court, the same would not be binding upon the arbitral tribunal. Section 34 of the 1996 Act provides for setting aside a domestic Indian award. It unlike the English Arbitration Act does not permit the parties to limit or avoid the operation of the statutory provisions120. Furthermore, the grounds for questioning a domestic award and a foreign award are different. In the context of the 1996 Act, an arbitration agreement which would otherwise be contrary to the provisions of the laws governing the contract between the parties would be void being opposed to public policy121. The High Courts judgment, therefore, in my considered view, cannot be sustained122. It is, thus, not necessary for us to advert to other questions raised at the Bar. Although we do not agree with the reasons assigned by the High Court, but we uphold the conclusion thereof on different grounds
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M. Jhangir Bhatusha and Ors Vs. Union of India (UOI) and Ors | liable to customs duty and we are referred to various consideration in support of that claim. It seems to us unnecessary to enter into that question because we have before us a situation where customs duty has in fact been imposed, even though at the rate of five per cent only. In accepting the imposition of customs duty, albeit at 5 per cent, neither the State Trading Corporation not the Central Government rest their case on any claim to immunity of the Central Government from the levy of customs duty. It is not necessary, therefore, to construe the amendment made in Section 12 of the Customs Duty Act, 1962, to which both learned counsel have made reference. 12. The limited question before us is whether there is justification for the differential treatment accorded between the State Trading Corporation and the private importers. Now it is significant to note that the import of the specified oils had been entrusted exclusively to the State Trading Corporation with effect from December 2, 1978, an because the private importers had already, prior to that date, entered into contracts for purchase of the edible oils with foreign sellers, they were permitted to make the imports in question in order to honour their commitment. In order words, contracts by private importers concluded before December 2, 1978 were allowed to be worked out after that date without affecting the principle that as from December 2, 1978, the business of importing such oils belonged exclusively to the State Trading Corporation. This the background in which the questions raised before us need to be considered. 13. First, as to the contention that both the reasons set forth in the exemption notifications under Section 25(2) of the Act are without foundation. It seems to us that the two reasons set forth in the exemption notification can constitute a reasonable basis for those notifications. It does appear from the material before us that international prices were fluctuating, and although they may have shown a perceptible fall there was the apprehension that because of the history of fluctuations there was a possibility of their rising in the future. The need to protect the domestic market is always present, and therefore encouragement had to be given to the imports effected by the State Trading Corporation by reducing the rate of customs duty levied on them. This involved a long term perspective, since the exclusive monopoly to import these edible oils was now entrusted to the State Trading Corporation. What appears to have dominated the policy of the government in issuing the exemption notifications was the consideration that the domestic prices of vanaspati should be maintained at reasonable levels. It cannot be doubted that the entire edible oil market is an integrated one, and that it is not reasonable to treat any one of the edible oils or vanaspati in isolation. 14. It is a well accepted fact that vanaspati manufacturers constitute a powerful organised sector in the edible oil market, and a high vanaspati price would encourage an unauthorised diversion of the edible oils to vanaspati manufacturing units, resulting in a scarcity in the edible oil market, giving rise to erratic prices and depriving consumers of access to edible oils. The need for preventing vanaspati prices ruling high was also to prevent people normally using vanaspati from switching over to other edible oils, thus leading to an imbalance in the oil market. An overall view made it necessary to ensure that domestic prices of vanaspati remained at reasonable levels. To all these considerations the learned Attorney General has drawn our attention, and we cannot say that they are not reasonably related to the policy underlying the exemption orders. So that the government would have sufficient supplies of edible at hand in order to feed the market, the learned Attorney General says, it was considered desirable and in the public interest to reduce the rate of customs duty to 5 per cent on the imports made by the State Trading Corporation. 15. Now it is the Central Government which has to be satisfied, as the authority appointed by Parliament under Section 25(2), that it is necessary in the public interest to make the special orders of exemption. It has set out the reasons which prompted it to pass the orders. In our opinion, the circumstances mentioned in those notifications cannot be said to be irrelevant or unreasonable. It is not for this Court to sit in judgment on the sufficiency of those reasons. The limitations on the jurisdiction of the court in cases where the satisfaction has been entrusted to executive authority to judge the necessity for passing orders is well defined and has been long accepted. 16. It is true that the State dons the robes of a trader when it enters the field of commercial activity, and ordinarily it can claim no favoured treatment. But there may be clear and good reason for making a departure. Viewed in the background of the reasons for granting a monopoly to the State Trading Corporation, acting as an agent or nominee of the Central Government in importing the specified oils, it will be evidence that policy considerations rendered it necessary to make consummation of that policy effective by imposing a concessional levy on the imports. No such concession is called for in the case of the private importers who, in any event, are merely working out contracts entered unto by them with foreign sellers before December 2, 1978. 17. We are also not satisfied that any of the private importers have made out that their business will be crippled or ruined in view of the rate of customs duty visited on their imports. The material before us is not sufficient to warrant any conclusion in their favour. 18. As, in our opinion, the private importers are not entitled to relief, no question arises of considering whether the exemption orders should be struck down or their benefit extended in favour of the private importers also. 19. | 0[ds]9. It is apparent that the power conferred on the Central Government under Section 25(2) of the Act is to be exercised by the it in its subjective satisfaction. It must be satisfied that it is necessary in the public interest to pass a special exemption order. The exercise of the power is controlled by the requirement in then that the exemption order must contain a statement stating the circumstances of an exceptional nature under which the special exemption order has been considered necessary. The requirement is intended by the statute to ensure that the satisfaction of the Central Government concerning the necessity of the order is not reached arbitrarily but flows from material relevant to the object for which the power has been conferred. The circumstances recited in the exemption ordersn view of high international prices of vegetable oils and in order to keep the domestic prices of vanaspati at reasonable levels, it has been felt that certain specified vegetablel oils imported by the STC would need to be exempted from part of the customs duty10. The reason set forth in this statement have been analysed by learned counsel for the private importers and an attempt has been made to establish that there is no justification for relying on the international prices of vegetable oils not the stated desirability of keeping the domestic prices of vanaspati at reasonable levels as grounds for making the impugned exemption orders in favour of the State Trading Corporation. In detailed argument, learned counsel for the private importers urges that the public interest which could be contemplated under Section 25(2) must be the reduction of the landed cost in order to reduce the domestic prices of the oils. That object, it is said, is not served by conferring an advantage upon a particular importer even if it be the State Trading Corporation, who is engaged in the same activity in respect of the same goods. It is pointed out that the concession must relate to the goods and not to the personality of the importer. Further, it is argued, the allegation that the international prices of edible oils were high is inconsistent with the reality of the situation; on the contrary, it is pointed out, there had been a fall in the international prices of various oils. In support of the latter submission, reference has been made before us to the pleadings of the parties and a PAC report. Elaborating his submission in regard to the stated need for maintaining the domestic prices of vanaspati at reasonable levels, learned counsel for the private importers urges that the oils which are being imported by private importers were intended for direct human consumption and could have been supplied to the vanaspati industry. Reference is made to the affidavits of the parties to show that the oils imported by the petitioners could not be utilised in the manufacture of vanaspati as permission to do so had not been grated. Accordingly, the private importers say, there is no basis for the differential duty set out in the exemption orders and no real or substantial nexus between the differentiation made and the object of Section 25(2). Then, it is also urged, there is no real or substantial distinction between the private importers and the State Trading Corporation having regard to the object of the statute, the nature of customs duty, the rationale of Section 25 and the professed object of the exemption orders under Section 25(2). The State Trading Corporation, it is contended, cannot be equated with the Central Government, and we are referred to STC v. CTO ((1964) 4 SCR 99 : AIR 1963 SC 1811 : (1963) 33 Com Cas 1057). It is a private limited company registered under the Companies Act, 1956 and liable to be wound up under that Act, and that although it functions under the supervision of the Government of India and its directors, it is not concerned with the performance of any governmental functions, its functions being entirely commercial and in the nature of a trading activity. Reliance is also placed on Heavy Engineering Mazdoor Union v. State of Bihar ((1969) 1 SCC 765 : (1969) 3 SCR 995 ); AP SRTC v. ITO ((1964) 7 SCR 17 : AIR 1964 SC 1486 : 52 ITR 524) and Vidarbha Housing Board v. ITO ((1973) 92 ITR 430 (Bom HC)). Assuming, the private importers contend, that the State Trading Corporation can be equated with the Central Government or that it is acting on behalf of the Central Government, once the government ventures into the commercial field it dons the robes of a trader, and it cannot thereafter claim any special attribute or preference for differentiation from other traders. Learned counsel has placed before us the observation of this Court in LIC v. Escorts Ltd. ((1986) 1 SCC 264 , 344) There is no rational basis, it is urged, for making a distinction in the imposition of customs duty in respect of the goods imported by the private importers and the State Trading Corporation as both purchased the same commodity in the open market for direct consumption, that the sales effected by them are on a commercial basis, and there is nothing to show that the State Trading Corporation sold these oils at a price lower than the market price or at subsidised prices. It is asserted that the Central Government, like any other importer, is liable to customs duty, and we are referred to Section 12 of the Customs Act. It is also complained that the differential proceeds on excessive classification, and that result in violating the doctrine of equality enshrined in Article 14 of the Constitution. Reliance is placed on State of J&K v. T. N. Khosa ((1974) 1 SCC 19 : 1974 SCC (L&S) 49 : (1974) 1 SCR 771 , 792), Mohammad Shujat Ali v. Union of India ((1975) 3 SCC 76 : 1974 SCC (L&S) 545 : (1975) 1 SCR 449 , 478) and In re the Special Courts Bill, 1978 ((1979) 1 SCC 380 : (1979) 2 SCR 449, 478). And, finally, the private importers claim that inasmuch as approximately 17 lakh tonnes of oil were imported by the State Trading Corporation as against a mere 1 lakh tonnes of oil imported by all the private importers together, and the exemption from duty has been granted in the public interest, namely, to control or reduce the price of edible oils, the relief which should be granted is to include the imports made by the private importers within the particular customs duty rate of 5 per cent already extended to the oils imported by the State Trading Corporation. In some cases, it is alleged that if the imports effected by the private importers has to bear the duty levied upon them, the impact of the total duty would be so impossible that it would cripple the business of those private importers13. First, as to the contention that both the reasons set forth in the exemption notifications under Section 25(2) of the Act are without foundation. It seems to us that the two reasons set forth in the exemption notification can constitute a reasonable basis for those notifications. It does appear from the material before us that international prices were fluctuating, and although they may have shown a perceptible fall there was the apprehension that because of the history of fluctuations there was a possibility of their rising in the future. The need to protect the domestic market is always present, and therefore encouragement had to be given to the imports effected by the State Trading Corporation by reducing the rate of customs duty levied on them. This involved a long term perspective, since the exclusive monopoly to import these edible oils was now entrusted to the State Trading Corporation. What appears to have dominated the policy of the government in issuing the exemption notifications was the consideration that the domestic prices of vanaspati should be maintained at reasonable levels. It cannot be doubted that the entire edible oil market is an integrated one, and that it is not reasonable to treat any one of the edible oils or vanaspati in isolation.It is a well accepted fact that vanaspati manufacturers constitute a powerful organised sector in the edible oil market, and a high vanaspati price would encourage an unauthorised diversion of the edible oils to vanaspati manufacturing units, resulting in a scarcity in the edible oil market, giving rise to erratic prices and depriving consumers of access to edible oils. The need for preventing vanaspati prices ruling high was also to prevent people normally using vanaspati from switching over to other edible oils, thus leading to an imbalance in the oil market. An overall view made it necessary to ensure that domestic prices of vanaspati remained at reasonable levels. To all these considerations the learned Attorney General has drawn our attention, and we cannot say that they are not reasonably related to the policy underlying the exemption orders. So that the government would have sufficient supplies of edible at hand in order to feed the market, the learned Attorney General says, it was considered desirable and in the public interest to reduce the rate of customs duty to 5 per cent on the imports made by the State Trading Corporation.Now it is the Central Government which has to be satisfied, as the authority appointed by Parliament under Section 25(2), that it is necessary in the public interest to make the special orders of exemption. It has set out the reasons which prompted it to pass the orders. In our opinion, the circumstances mentioned in those notifications cannot be said to be irrelevant or unreasonable. It is not for this Court to sit in judgment on the sufficiency of those reasons. The limitations on the jurisdiction of the court in cases where the satisfaction has been entrusted to executive authority to judge the necessity for passing orders is well defined and has been long acceptedIt is true that the State dons the robes of a trader when it enters the field of commercial activity, and ordinarily it can claim no favoured treatment. But there may be clear and good reason for making a departure. Viewed in the background of the reasons for granting a monopoly to the State Trading Corporation, acting as an agent or nominee of the Central Government in importing the specified oils, it will be evidence that policy considerations rendered it necessary to make consummation of that policy effective by imposing a concessional levy on the imports. No such concession is called for in the case of the private importers who, in any event, are merely working out contracts entered unto by them with foreign sellers before December 2, 1978We are also not satisfied that any of the private importers have made out that their business will be crippled or ruined in view of the rate of customs duty visited on their imports. The material before us is not sufficient to warrant any conclusion in their favourAs, in our opinion, the private importers are not entitled to relief, no question arises of considering whether the exemption orders should be struck down or their benefit extended in favour of the private importers also | 0 | 3,489 | 2,071 | ### 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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liable to customs duty and we are referred to various consideration in support of that claim. It seems to us unnecessary to enter into that question because we have before us a situation where customs duty has in fact been imposed, even though at the rate of five per cent only. In accepting the imposition of customs duty, albeit at 5 per cent, neither the State Trading Corporation not the Central Government rest their case on any claim to immunity of the Central Government from the levy of customs duty. It is not necessary, therefore, to construe the amendment made in Section 12 of the Customs Duty Act, 1962, to which both learned counsel have made reference. 12. The limited question before us is whether there is justification for the differential treatment accorded between the State Trading Corporation and the private importers. Now it is significant to note that the import of the specified oils had been entrusted exclusively to the State Trading Corporation with effect from December 2, 1978, an because the private importers had already, prior to that date, entered into contracts for purchase of the edible oils with foreign sellers, they were permitted to make the imports in question in order to honour their commitment. In order words, contracts by private importers concluded before December 2, 1978 were allowed to be worked out after that date without affecting the principle that as from December 2, 1978, the business of importing such oils belonged exclusively to the State Trading Corporation. This the background in which the questions raised before us need to be considered. 13. First, as to the contention that both the reasons set forth in the exemption notifications under Section 25(2) of the Act are without foundation. It seems to us that the two reasons set forth in the exemption notification can constitute a reasonable basis for those notifications. It does appear from the material before us that international prices were fluctuating, and although they may have shown a perceptible fall there was the apprehension that because of the history of fluctuations there was a possibility of their rising in the future. The need to protect the domestic market is always present, and therefore encouragement had to be given to the imports effected by the State Trading Corporation by reducing the rate of customs duty levied on them. This involved a long term perspective, since the exclusive monopoly to import these edible oils was now entrusted to the State Trading Corporation. What appears to have dominated the policy of the government in issuing the exemption notifications was the consideration that the domestic prices of vanaspati should be maintained at reasonable levels. It cannot be doubted that the entire edible oil market is an integrated one, and that it is not reasonable to treat any one of the edible oils or vanaspati in isolation. 14. It is a well accepted fact that vanaspati manufacturers constitute a powerful organised sector in the edible oil market, and a high vanaspati price would encourage an unauthorised diversion of the edible oils to vanaspati manufacturing units, resulting in a scarcity in the edible oil market, giving rise to erratic prices and depriving consumers of access to edible oils. The need for preventing vanaspati prices ruling high was also to prevent people normally using vanaspati from switching over to other edible oils, thus leading to an imbalance in the oil market. An overall view made it necessary to ensure that domestic prices of vanaspati remained at reasonable levels. To all these considerations the learned Attorney General has drawn our attention, and we cannot say that they are not reasonably related to the policy underlying the exemption orders. So that the government would have sufficient supplies of edible at hand in order to feed the market, the learned Attorney General says, it was considered desirable and in the public interest to reduce the rate of customs duty to 5 per cent on the imports made by the State Trading Corporation. 15. Now it is the Central Government which has to be satisfied, as the authority appointed by Parliament under Section 25(2), that it is necessary in the public interest to make the special orders of exemption. It has set out the reasons which prompted it to pass the orders. In our opinion, the circumstances mentioned in those notifications cannot be said to be irrelevant or unreasonable. It is not for this Court to sit in judgment on the sufficiency of those reasons. The limitations on the jurisdiction of the court in cases where the satisfaction has been entrusted to executive authority to judge the necessity for passing orders is well defined and has been long accepted. 16. It is true that the State dons the robes of a trader when it enters the field of commercial activity, and ordinarily it can claim no favoured treatment. But there may be clear and good reason for making a departure. Viewed in the background of the reasons for granting a monopoly to the State Trading Corporation, acting as an agent or nominee of the Central Government in importing the specified oils, it will be evidence that policy considerations rendered it necessary to make consummation of that policy effective by imposing a concessional levy on the imports. No such concession is called for in the case of the private importers who, in any event, are merely working out contracts entered unto by them with foreign sellers before December 2, 1978. 17. We are also not satisfied that any of the private importers have made out that their business will be crippled or ruined in view of the rate of customs duty visited on their imports. The material before us is not sufficient to warrant any conclusion in their favour. 18. As, in our opinion, the private importers are not entitled to relief, no question arises of considering whether the exemption orders should be struck down or their benefit extended in favour of the private importers also. 19.
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Corporation sold these oils at a price lower than the market price or at subsidised prices. It is asserted that the Central Government, like any other importer, is liable to customs duty, and we are referred to Section 12 of the Customs Act. It is also complained that the differential proceeds on excessive classification, and that result in violating the doctrine of equality enshrined in Article 14 of the Constitution. Reliance is placed on State of J&K v. T. N. Khosa ((1974) 1 SCC 19 : 1974 SCC (L&S) 49 : (1974) 1 SCR 771 , 792), Mohammad Shujat Ali v. Union of India ((1975) 3 SCC 76 : 1974 SCC (L&S) 545 : (1975) 1 SCR 449 , 478) and In re the Special Courts Bill, 1978 ((1979) 1 SCC 380 : (1979) 2 SCR 449, 478). And, finally, the private importers claim that inasmuch as approximately 17 lakh tonnes of oil were imported by the State Trading Corporation as against a mere 1 lakh tonnes of oil imported by all the private importers together, and the exemption from duty has been granted in the public interest, namely, to control or reduce the price of edible oils, the relief which should be granted is to include the imports made by the private importers within the particular customs duty rate of 5 per cent already extended to the oils imported by the State Trading Corporation. In some cases, it is alleged that if the imports effected by the private importers has to bear the duty levied upon them, the impact of the total duty would be so impossible that it would cripple the business of those private importers13. First, as to the contention that both the reasons set forth in the exemption notifications under Section 25(2) of the Act are without foundation. It seems to us that the two reasons set forth in the exemption notification can constitute a reasonable basis for those notifications. It does appear from the material before us that international prices were fluctuating, and although they may have shown a perceptible fall there was the apprehension that because of the history of fluctuations there was a possibility of their rising in the future. The need to protect the domestic market is always present, and therefore encouragement had to be given to the imports effected by the State Trading Corporation by reducing the rate of customs duty levied on them. This involved a long term perspective, since the exclusive monopoly to import these edible oils was now entrusted to the State Trading Corporation. What appears to have dominated the policy of the government in issuing the exemption notifications was the consideration that the domestic prices of vanaspati should be maintained at reasonable levels. It cannot be doubted that the entire edible oil market is an integrated one, and that it is not reasonable to treat any one of the edible oils or vanaspati in isolation.It is a well accepted fact that vanaspati manufacturers constitute a powerful organised sector in the edible oil market, and a high vanaspati price would encourage an unauthorised diversion of the edible oils to vanaspati manufacturing units, resulting in a scarcity in the edible oil market, giving rise to erratic prices and depriving consumers of access to edible oils. The need for preventing vanaspati prices ruling high was also to prevent people normally using vanaspati from switching over to other edible oils, thus leading to an imbalance in the oil market. An overall view made it necessary to ensure that domestic prices of vanaspati remained at reasonable levels. To all these considerations the learned Attorney General has drawn our attention, and we cannot say that they are not reasonably related to the policy underlying the exemption orders. So that the government would have sufficient supplies of edible at hand in order to feed the market, the learned Attorney General says, it was considered desirable and in the public interest to reduce the rate of customs duty to 5 per cent on the imports made by the State Trading Corporation.Now it is the Central Government which has to be satisfied, as the authority appointed by Parliament under Section 25(2), that it is necessary in the public interest to make the special orders of exemption. It has set out the reasons which prompted it to pass the orders. In our opinion, the circumstances mentioned in those notifications cannot be said to be irrelevant or unreasonable. It is not for this Court to sit in judgment on the sufficiency of those reasons. The limitations on the jurisdiction of the court in cases where the satisfaction has been entrusted to executive authority to judge the necessity for passing orders is well defined and has been long acceptedIt is true that the State dons the robes of a trader when it enters the field of commercial activity, and ordinarily it can claim no favoured treatment. But there may be clear and good reason for making a departure. Viewed in the background of the reasons for granting a monopoly to the State Trading Corporation, acting as an agent or nominee of the Central Government in importing the specified oils, it will be evidence that policy considerations rendered it necessary to make consummation of that policy effective by imposing a concessional levy on the imports. No such concession is called for in the case of the private importers who, in any event, are merely working out contracts entered unto by them with foreign sellers before December 2, 1978We are also not satisfied that any of the private importers have made out that their business will be crippled or ruined in view of the rate of customs duty visited on their imports. The material before us is not sufficient to warrant any conclusion in their favourAs, in our opinion, the private importers are not entitled to relief, no question arises of considering whether the exemption orders should be struck down or their benefit extended in favour of the private importers also
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Shahdara (Delhi) Saharanpur Light Railwayco. Ltd Vs. The Municipal Board, Saharanpur | Public Health Act, Lord Macnaghten observed, at p. 267:"Now it cannot be denied that the rails on which the tramcars run, with the embankment or foundation on which they rest, and everything that supports them, do form a road or way was constructed under parliamentary powers for public conveyance. Is it a railway? There is nothing in the Public Health Act, 1875, or in the earlier Acts, in which the same provision is found, to confine the word railway as used in those Acts to a particular kind of railway, or to limit the generality of the expression in any way."21. His Lordship, Further observed at p. 268:"It seems to me that if it is a railway in fact, not differing from other railways in any material particular, it is nonetheless a railway because the promoters in their special Act chose to call it a tramroad- a very convenient term to use for the title of their Act and the name under which they sought incorporation. Nor is it the less a railway because some only of the sections of the Railways Clauses Consolidation Act are incorporated in the special Act, or because, if one did not know what the thing really was, the language used for the purpose of applying the sections which are incorporated might seem to import that it was not, properly speaking, a railway at all. You must look at the special Act to see that it confers the appropriate powers of construction. Everything else in the Act is, I think, beside the question which this House has now to determine.22. In our opinion, the observations of the House of Lords, extracted above, are apposite, to the case on hand. We have already pointed out that neither the Municipal Act, nor the Terminal Tax Rules give any special definition of the expression railway; and, so far as we could see, there is nothing in the said Act or the Rules to indicate that the word railway, in Item of Sch. B, is used only to refer to A railway registered under the Railways Act or to limit the generality of the expression railway in any way. Under those circumstances, if the appellant is a railway in fact, as commonly understood there does not appear to be any serious controversy on that point-it will be a railway, notwithstanding the fact that it is registered as a tramway, under the Tramways Act. The legislature itself has applied the various provisions of the Railways Act to the appellant; and the appellant also satisfies the definition of a railway under the Government of India Act, 1935 and the Constitution. The provisions of the Indian Railway Companies Act, 1895, have also been applied to the tramways constructed, under the Tramways Act by the Indian Tramways Act of 1902. The second preamble to the last mentioned Act, clearly shows that the tramways to which the Indian Railway Companies Act was made applicable, do not differ in structure and working from railways.23. The object underlying the exemption under Item 2 of Sch. B to the Terminal Tax Rules. is also not far to seek. The railways pass through areas where it is not deriving the full benefit of all the amenities provided by the Municipal Boards. Therefore, in our opinion, the appellant satisfies the definition of a railway, so as to be entitled to the exemption provided under Item 2 of Sch. B.24. Before we close the discussion, we will also refer to the decision of the House of Lords in Tottenham Urban Council v. Metropolitan Electric Tramways, Ltd., 1913 AC 702. The same question, regarding the eligibility of a tramway for exemption, under S. 211 (1) (b) of the Public Health Act, 1875, came up for consideration in that case. From the judgment, it will be seen that the company were working, as, a connected system, a tramway and a light railway, which were constructed in and along certain public streets and roads, in the district of the Urban Council. The tramway, was constructed under the Tramway Acts and Orders and the railway, under the Light Railways Act, 1896. Both were identical as to the mode of construction and materials used. The claim of the company in respect of the railway, as such, for assessment at a lower rate, was accepted; but, so far as the tramway was concerned, the House of Lords held that it is not a railway, within the meaning of S. 211(1)(b) of the Public Health Act, 1875. The research given by the House of Lords, for not accepting the claim of the tramway, was that in the great bulk of public legislation, relating to railways, the legislation has universally been understood and interpreted by Courts as applying only to that which is popularly known as a railway, and not to that which is popularly known as a tramway. And special emphasis is laid by the House of Lords that the legislature has used the word railways and not railways and tramways, in S. 211 of the Public Health Act, 1875.25. We are only adverting to this decision to show that on the basis of an interpretation placed by the Courts, the House of Lords held that the word railways, in the Public Health Act, 1875, will not take in tramways. But, no such circumstances, as pointed out by the House of Lords, in the said decision, exist in the present case before us. On the other hand, the position is exactly the opposite, as will be seen from the Government of India Act, 1935, and the Constitution. Even applying the popular test, adopted by the House of Lords, in this case, the appellant is undoubtedly a railway.26. In our opinion, the principles laid down by the House of Lords in 1909 AC 264, apply to the particular matter on hand and, we hold that the appellant, being a railway, is entitled to the exemption under Item 2 of Sch. B to the Terminal Tax Rules, in question. | 1[ds]17. We are not impressed with the approach made by the learned Judges of the High Court, for Negativing the claim for exemption, made by the appellant. It must be borne in mind that the expression railway has not been defined either in the concerned Municipalities Act, or the Rules, if such is the case, the definition must hold the field. Going by the definition of the expression railway, contained in S. 311 (2) ofthe Government of India Act, 1935, and the corresponding provision in Art. 366 (20) of the Constitution, the appellants system is a railway. All the provisions of the Railways Act have been extended to the appellant, excepting S. 135. In our opinion, if the appellant is a railway, otherwise, the mere fact that the provisions of S. 135 of the Railways Act, have not been applied, is of no consequence. We have already referred to the fact, which is not in dispute, that the appellants railway passes through four districts in U. P. and Delhi, and that it has got all the features of a railway, as ordinarily understood.In our opinion, the observations of the House of Lords, extracted above, are apposite, to the case on hand. We have already pointed out that neither the Municipal Act, nor the Terminal Tax Rules give any special definition of the expression railway; and, so far as we could see, there is nothing in the said Act or the Rules to indicate that the word railway, in Item of Sch. B, is used only to refer to A railway registered under the Railways Act or to limit the generality of the expression railway in any way. Under those circumstances, if the appellant is a railway in fact, as commonly understood there does not appear to be any serious controversy on that point-it will be a railway, notwithstanding the fact that it is registered as a tramway, under the Tramways Act. The legislature itself has applied the various provisions of the Railways Act to the appellant; and the appellant also satisfies the definition of a railway underthe Government of India Act, 1935 and the Constitution. The provisions ofthe Indian Railway Companies Act, 1895, have also been applied to the tramways constructed, under the Tramways Act by the Indian Tramways Act of 1902. The second preamble to the last mentioned Act, clearly shows that the tramways to which the Indian Railway Companies Act was made applicable, do not differ in structure and working from railways.23. The object underlying the exemption under Item 2 of Sch. B to the Terminal Tax Rules. is also not far to seek. The railways pass through areas where it is not deriving the full benefit of all the amenities provided by the Municipal Boards. Therefore, in our opinion, the appellant satisfies the definition of a railway, so as to be entitled to the exemption provided under Item 2 of Sch. B.We are only adverting to this decision to show that on the basis of an interpretation placed by the Courts, the House of Lords held that the word railways, in the Public Health Act, 1875, will not take in tramways. But, no such circumstances, as pointed out by the House of Lords, in the said decision, exist in the present case before us. On the other hand, the position is exactly the opposite, as will be seen fromthe Government of India Act, 1935, and the Constitution. Even applying the popular test, adopted by the House of Lords, in this case, the appellant is undoubtedly a railway.26. In our opinion, the principles laid down by the House of Lords in 1909 AC 264, apply to the particular matter on hand and, we hold that the appellant, being a railway, is entitled to the exemption under Item 2 of Sch. B to the Terminal Tax Rules, in question. | 1 | 5,634 | 737 | ### 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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Public Health Act, Lord Macnaghten observed, at p. 267:"Now it cannot be denied that the rails on which the tramcars run, with the embankment or foundation on which they rest, and everything that supports them, do form a road or way was constructed under parliamentary powers for public conveyance. Is it a railway? There is nothing in the Public Health Act, 1875, or in the earlier Acts, in which the same provision is found, to confine the word railway as used in those Acts to a particular kind of railway, or to limit the generality of the expression in any way."21. His Lordship, Further observed at p. 268:"It seems to me that if it is a railway in fact, not differing from other railways in any material particular, it is nonetheless a railway because the promoters in their special Act chose to call it a tramroad- a very convenient term to use for the title of their Act and the name under which they sought incorporation. Nor is it the less a railway because some only of the sections of the Railways Clauses Consolidation Act are incorporated in the special Act, or because, if one did not know what the thing really was, the language used for the purpose of applying the sections which are incorporated might seem to import that it was not, properly speaking, a railway at all. You must look at the special Act to see that it confers the appropriate powers of construction. Everything else in the Act is, I think, beside the question which this House has now to determine.22. In our opinion, the observations of the House of Lords, extracted above, are apposite, to the case on hand. We have already pointed out that neither the Municipal Act, nor the Terminal Tax Rules give any special definition of the expression railway; and, so far as we could see, there is nothing in the said Act or the Rules to indicate that the word railway, in Item of Sch. B, is used only to refer to A railway registered under the Railways Act or to limit the generality of the expression railway in any way. Under those circumstances, if the appellant is a railway in fact, as commonly understood there does not appear to be any serious controversy on that point-it will be a railway, notwithstanding the fact that it is registered as a tramway, under the Tramways Act. The legislature itself has applied the various provisions of the Railways Act to the appellant; and the appellant also satisfies the definition of a railway under the Government of India Act, 1935 and the Constitution. The provisions of the Indian Railway Companies Act, 1895, have also been applied to the tramways constructed, under the Tramways Act by the Indian Tramways Act of 1902. The second preamble to the last mentioned Act, clearly shows that the tramways to which the Indian Railway Companies Act was made applicable, do not differ in structure and working from railways.23. The object underlying the exemption under Item 2 of Sch. B to the Terminal Tax Rules. is also not far to seek. The railways pass through areas where it is not deriving the full benefit of all the amenities provided by the Municipal Boards. Therefore, in our opinion, the appellant satisfies the definition of a railway, so as to be entitled to the exemption provided under Item 2 of Sch. B.24. Before we close the discussion, we will also refer to the decision of the House of Lords in Tottenham Urban Council v. Metropolitan Electric Tramways, Ltd., 1913 AC 702. The same question, regarding the eligibility of a tramway for exemption, under S. 211 (1) (b) of the Public Health Act, 1875, came up for consideration in that case. From the judgment, it will be seen that the company were working, as, a connected system, a tramway and a light railway, which were constructed in and along certain public streets and roads, in the district of the Urban Council. The tramway, was constructed under the Tramway Acts and Orders and the railway, under the Light Railways Act, 1896. Both were identical as to the mode of construction and materials used. The claim of the company in respect of the railway, as such, for assessment at a lower rate, was accepted; but, so far as the tramway was concerned, the House of Lords held that it is not a railway, within the meaning of S. 211(1)(b) of the Public Health Act, 1875. The research given by the House of Lords, for not accepting the claim of the tramway, was that in the great bulk of public legislation, relating to railways, the legislation has universally been understood and interpreted by Courts as applying only to that which is popularly known as a railway, and not to that which is popularly known as a tramway. And special emphasis is laid by the House of Lords that the legislature has used the word railways and not railways and tramways, in S. 211 of the Public Health Act, 1875.25. We are only adverting to this decision to show that on the basis of an interpretation placed by the Courts, the House of Lords held that the word railways, in the Public Health Act, 1875, will not take in tramways. But, no such circumstances, as pointed out by the House of Lords, in the said decision, exist in the present case before us. On the other hand, the position is exactly the opposite, as will be seen from the Government of India Act, 1935, and the Constitution. Even applying the popular test, adopted by the House of Lords, in this case, the appellant is undoubtedly a railway.26. In our opinion, the principles laid down by the House of Lords in 1909 AC 264, apply to the particular matter on hand and, we hold that the appellant, being a railway, is entitled to the exemption under Item 2 of Sch. B to the Terminal Tax Rules, in question.
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17. We are not impressed with the approach made by the learned Judges of the High Court, for Negativing the claim for exemption, made by the appellant. It must be borne in mind that the expression railway has not been defined either in the concerned Municipalities Act, or the Rules, if such is the case, the definition must hold the field. Going by the definition of the expression railway, contained in S. 311 (2) ofthe Government of India Act, 1935, and the corresponding provision in Art. 366 (20) of the Constitution, the appellants system is a railway. All the provisions of the Railways Act have been extended to the appellant, excepting S. 135. In our opinion, if the appellant is a railway, otherwise, the mere fact that the provisions of S. 135 of the Railways Act, have not been applied, is of no consequence. We have already referred to the fact, which is not in dispute, that the appellants railway passes through four districts in U. P. and Delhi, and that it has got all the features of a railway, as ordinarily understood.In our opinion, the observations of the House of Lords, extracted above, are apposite, to the case on hand. We have already pointed out that neither the Municipal Act, nor the Terminal Tax Rules give any special definition of the expression railway; and, so far as we could see, there is nothing in the said Act or the Rules to indicate that the word railway, in Item of Sch. B, is used only to refer to A railway registered under the Railways Act or to limit the generality of the expression railway in any way. Under those circumstances, if the appellant is a railway in fact, as commonly understood there does not appear to be any serious controversy on that point-it will be a railway, notwithstanding the fact that it is registered as a tramway, under the Tramways Act. The legislature itself has applied the various provisions of the Railways Act to the appellant; and the appellant also satisfies the definition of a railway underthe Government of India Act, 1935 and the Constitution. The provisions ofthe Indian Railway Companies Act, 1895, have also been applied to the tramways constructed, under the Tramways Act by the Indian Tramways Act of 1902. The second preamble to the last mentioned Act, clearly shows that the tramways to which the Indian Railway Companies Act was made applicable, do not differ in structure and working from railways.23. The object underlying the exemption under Item 2 of Sch. B to the Terminal Tax Rules. is also not far to seek. The railways pass through areas where it is not deriving the full benefit of all the amenities provided by the Municipal Boards. Therefore, in our opinion, the appellant satisfies the definition of a railway, so as to be entitled to the exemption provided under Item 2 of Sch. B.We are only adverting to this decision to show that on the basis of an interpretation placed by the Courts, the House of Lords held that the word railways, in the Public Health Act, 1875, will not take in tramways. But, no such circumstances, as pointed out by the House of Lords, in the said decision, exist in the present case before us. On the other hand, the position is exactly the opposite, as will be seen fromthe Government of India Act, 1935, and the Constitution. Even applying the popular test, adopted by the House of Lords, in this case, the appellant is undoubtedly a railway.26. In our opinion, the principles laid down by the House of Lords in 1909 AC 264, apply to the particular matter on hand and, we hold that the appellant, being a railway, is entitled to the exemption under Item 2 of Sch. B to the Terminal Tax Rules, in question.
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P.R. Subramania Vs. Lakshmi Ammal Lakshmi Ammal (Dead) By Her Legal Representatives | Hegde, J.1. This is an appeal by certificate under Article 133(1)(a) of the Constitution. The suit from which this appeal arises was brought on the foot of a promissory note executed by deceased. "Rs. 25,000/-. R. A. Krishnan and G. R. Harihara Iyer (10th defendant in the suit). But in the suit decree was claimed against defendants Nos. 1 to 10 personally against their assets and against the business assets of the deceased Veeraraghava Iyer. A decree against the assets of deceased R. A. Krishnan in the hands of defendants 1 to 9 was also claimed.2. The defendants resisted the suit on various grounds. The trial Court dismissed the suit but the High Court in appeal decreed the suit against the assets of R. A. Krishnan in the hands of his heirs and against the 10th defendant personally. Not being satisfied with that decree, the appellant has brought this appeal. The suit promissory note reads:"Rs. 25,000/-On demand we promise to pay THE ALATHUR BANK or order the sum of Rupees Twenty five Thousand only with interest at nine per cent per annum from the date hereof until payment in full, for value received in cash.R. A. Krishnan (Sd) 28-4-1950. Burmah Shell Agent, Trivandrum (son of Mr. A. Ramaswami Iyer) 4 one anna revenue stamps affixed and signed on it. G. R. Harihara Iyer (Sd) 28-4-1950 (son of G. M. Ramakrishna Iyer)Stanes Agent, Trivandrum.3. From the promissory note its appears that it was debt borrowed by the two executants. But the plaintiffs case is that the debt was borrowed to finance the business left by Veeraraghava Iyer grand-father of R. A. Krishnan. The said Veeraraghava Iyer died on August 5, 1937, leaving behind him his widow, a daughter (1st defendant) and her children. He had also left behind him a son but he was a congenital idiot. After the death of Veeraraghava Iyer the business which he was carrying on devolved on his widow. The widow died on January 19, 1945. The first defendant succeeded to that estate. She died during the pendency of this appeal.4. Defendant No. 10, Harihara Iyer has nothing to do with the family of Lekshmi. Defendants Nos. 2 to 6 are the sons of defendant No. 1. Defendants Nos. 7 to 9 are the children of R. A. Krishnan.5.The plaintiff cannot have a personal decree against defendants 1 to 9 as they were not parties to the suit promissory note. There is no privity of contract between the plaintiff and defendants 1 to 9. It is not shown how the plaintiff can get a personal decree against them.6. We are unable to find out any legal basis for granting a decree against the assets of defendants 1 to 9. The plaintiffs has been taking inconsistent positions. At one stage he contended that defendant No. 1 had put forward defendants 2 to 9 as the owners of the business left by Veeraraghava Iyer. Hence she must be deemed to have surrendered her right. This is an untenable contention. The mere fact that a mothers estate was managed by her sons does not indicate that the mother had surrendered her right. At another stage it appears to have been contended on behalf of the plaintiff that deceased Krishnan borrowed the loan in question as the agent of defendant No 1.There is no basis for this plea either in the pleadings or in the evidence. The trial Court as well as the High Court have rejected that contention.7. The next plea taken was that the first defendant having allowed R. A. Krishnan to manage her business, she cannot now be allowed to contend that she is not liable for the suit debt. Both the trial Court as well as the High Court have held that there is no satisfactory evidence to show that the suit debt was utilised for financing the business in question. We see no reason to differ from that conclusion. In this view, it is not necessary to go into the question whether even if the money borrowed had been used for those business, the first defendant would have been liable in law for that debt.8. The theory of joint family liability urged before the High Court has no substance. On the facts of this case, no question of joint family liability arises. The first defendant was the owner of the businesses in question in her own right and not as the representative of any family. We find no substance in any of the contentions advanced on behalf of the appellant. | 0[ds]5.The plaintiff cannot have a personal decree against defendants 1 to 9 as they were not parties to the suit promissory note. There is no privity of contract between the plaintiff and defendants 1 to 9. It is not shown how the plaintiff can get a personal decree against them.6. We are unable to find out any legal basis for granting a decree against the assets of defendants 1 to 9. The plaintiffs has been taking inconsistent positions. At one stage he contended that defendant No. 1 had put forward defendants 2 to 9 as the owners of the business left by Veeraraghava Iyer. Hence she must be deemed to have surrendered her right. This is an untenable contention. The mere fact that a mothers estate was managed by her sons does not indicate that the mother had surrendered her right. At another stage it appears to have been contended on behalf of the plaintiff that deceased Krishnan borrowed the loan in question as the agent of defendant No 1.There is no basis for this plea either in the pleadings or in the evidence. The trial Court as well as the High Court have rejected that contention.The next plea taken was that the first defendant having allowed R. A. Krishnan to manage her business, she cannot now be allowed to contend that she is not liable for the suit debt.Both the trial Court as well as the High Court have held that there is no satisfactory evidence to show that the suit debt was utilised for financing the business in question. We see no reason to differ from that conclusion. In this view, it is not necessary to go into the question whether even if the money borrowed had been used for those business, the first defendant would have been liable in law for that debt.8. The theory of joint family liability urged before the High Court has no substance. On the facts of this case, no question of joint family liability arises. The first defendant was the owner of the businesses in question in her own right and not as the representative of any family. We find no substance in any of the contentions advanced on behalf of the appellant. | 0 | 845 | 399 | ### 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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Hegde, J.1. This is an appeal by certificate under Article 133(1)(a) of the Constitution. The suit from which this appeal arises was brought on the foot of a promissory note executed by deceased. "Rs. 25,000/-. R. A. Krishnan and G. R. Harihara Iyer (10th defendant in the suit). But in the suit decree was claimed against defendants Nos. 1 to 10 personally against their assets and against the business assets of the deceased Veeraraghava Iyer. A decree against the assets of deceased R. A. Krishnan in the hands of defendants 1 to 9 was also claimed.2. The defendants resisted the suit on various grounds. The trial Court dismissed the suit but the High Court in appeal decreed the suit against the assets of R. A. Krishnan in the hands of his heirs and against the 10th defendant personally. Not being satisfied with that decree, the appellant has brought this appeal. The suit promissory note reads:"Rs. 25,000/-On demand we promise to pay THE ALATHUR BANK or order the sum of Rupees Twenty five Thousand only with interest at nine per cent per annum from the date hereof until payment in full, for value received in cash.R. A. Krishnan (Sd) 28-4-1950. Burmah Shell Agent, Trivandrum (son of Mr. A. Ramaswami Iyer) 4 one anna revenue stamps affixed and signed on it. G. R. Harihara Iyer (Sd) 28-4-1950 (son of G. M. Ramakrishna Iyer)Stanes Agent, Trivandrum.3. From the promissory note its appears that it was debt borrowed by the two executants. But the plaintiffs case is that the debt was borrowed to finance the business left by Veeraraghava Iyer grand-father of R. A. Krishnan. The said Veeraraghava Iyer died on August 5, 1937, leaving behind him his widow, a daughter (1st defendant) and her children. He had also left behind him a son but he was a congenital idiot. After the death of Veeraraghava Iyer the business which he was carrying on devolved on his widow. The widow died on January 19, 1945. The first defendant succeeded to that estate. She died during the pendency of this appeal.4. Defendant No. 10, Harihara Iyer has nothing to do with the family of Lekshmi. Defendants Nos. 2 to 6 are the sons of defendant No. 1. Defendants Nos. 7 to 9 are the children of R. A. Krishnan.5.The plaintiff cannot have a personal decree against defendants 1 to 9 as they were not parties to the suit promissory note. There is no privity of contract between the plaintiff and defendants 1 to 9. It is not shown how the plaintiff can get a personal decree against them.6. We are unable to find out any legal basis for granting a decree against the assets of defendants 1 to 9. The plaintiffs has been taking inconsistent positions. At one stage he contended that defendant No. 1 had put forward defendants 2 to 9 as the owners of the business left by Veeraraghava Iyer. Hence she must be deemed to have surrendered her right. This is an untenable contention. The mere fact that a mothers estate was managed by her sons does not indicate that the mother had surrendered her right. At another stage it appears to have been contended on behalf of the plaintiff that deceased Krishnan borrowed the loan in question as the agent of defendant No 1.There is no basis for this plea either in the pleadings or in the evidence. The trial Court as well as the High Court have rejected that contention.7. The next plea taken was that the first defendant having allowed R. A. Krishnan to manage her business, she cannot now be allowed to contend that she is not liable for the suit debt. Both the trial Court as well as the High Court have held that there is no satisfactory evidence to show that the suit debt was utilised for financing the business in question. We see no reason to differ from that conclusion. In this view, it is not necessary to go into the question whether even if the money borrowed had been used for those business, the first defendant would have been liable in law for that debt.8. The theory of joint family liability urged before the High Court has no substance. On the facts of this case, no question of joint family liability arises. The first defendant was the owner of the businesses in question in her own right and not as the representative of any family. We find no substance in any of the contentions advanced on behalf of the appellant.
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5.The plaintiff cannot have a personal decree against defendants 1 to 9 as they were not parties to the suit promissory note. There is no privity of contract between the plaintiff and defendants 1 to 9. It is not shown how the plaintiff can get a personal decree against them.6. We are unable to find out any legal basis for granting a decree against the assets of defendants 1 to 9. The plaintiffs has been taking inconsistent positions. At one stage he contended that defendant No. 1 had put forward defendants 2 to 9 as the owners of the business left by Veeraraghava Iyer. Hence she must be deemed to have surrendered her right. This is an untenable contention. The mere fact that a mothers estate was managed by her sons does not indicate that the mother had surrendered her right. At another stage it appears to have been contended on behalf of the plaintiff that deceased Krishnan borrowed the loan in question as the agent of defendant No 1.There is no basis for this plea either in the pleadings or in the evidence. The trial Court as well as the High Court have rejected that contention.The next plea taken was that the first defendant having allowed R. A. Krishnan to manage her business, she cannot now be allowed to contend that she is not liable for the suit debt.Both the trial Court as well as the High Court have held that there is no satisfactory evidence to show that the suit debt was utilised for financing the business in question. We see no reason to differ from that conclusion. In this view, it is not necessary to go into the question whether even if the money borrowed had been used for those business, the first defendant would have been liable in law for that debt.8. The theory of joint family liability urged before the High Court has no substance. On the facts of this case, no question of joint family liability arises. The first defendant was the owner of the businesses in question in her own right and not as the representative of any family. We find no substance in any of the contentions advanced on behalf of the appellant.
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M/S.Agri Gold Exims Ltd Vs. M/S.Sri Lakshmi Knits &Wovens | nine Thousand One Hundred and Forty Nine only) from the date of the suit till the date of realization. 14. Respondents in the said suit filed an application praying for reference of the dispute to the arbitral tribunal in terms of the arbitration clause contained in the said Memorandum of Understanding and contended that the suit filed by the appellant was not maintainable. By reason of a letter dated 23.08.2004, the said application was dismissed opining that no dispute existed between the parties for reference to an arbitration. 15. On a revision application filed by the respondents herein, the High Court, however, reversed the said order by the impugned judgment. 16. Mr. Annam D.N. Rao, learned counsel appearing on behalf of the appellant, would submit that keeping in view of the fact that the respondents herein had accepted their liabilities, it cannot be said that there existed a dispute or dispute by and between the parties within the meaning of Clause 20 of the Memorandum of Understanding dated 8.05.2002. According to the learned counsel, as the respondents accepted their liability, pursuant whereto and in furtherance whereof, they issued post dated cheques, a suit for realization of the amount under the said cheques would not attract the provisions of the 1996 Act. 17. Mr. Anupam Lal Das, learned counsel appearing on behalf of the respondents, on the other hand, submitted that in view of the fact that the respondents had paid the balance amount of Rs. 22,50,000/- by way of two demand drafts dated 18.08.2003 and 12.09.2003, on its own showing, the appellant has no subsisting cause of action and, thus, it should withdraw the suit. 18. Difference between Section 34 of the Arbitration Act, 1940 and Section 8 of the 1996 Act is distinct and apparent. Section 8 of the 1996 Act makes a radical departure from Section 34 of the 1940 Act. The 1996 Act was enacted in the light of UNCITRAL Model Rules. 19. We need not dilate on this issue as this aspect of the matter has been considered by this Court in Rashtriya Ispat Nigam Limited & Anr. v. M/s. Verma Transport Company [2006 (7) SCALE 565 ], wherein this Court noticed: Section 34 of the repealed 1940 Act employs the expression steps in the proceedings. Only in terms of Section 21 of the 1940 Act, the dispute could be referred to arbitration provided parties thereto agreed. Under the 1940 Act, the suit was not barred. The Court would not automatically refer the dispute to an arbitral tribunal. In the event, it having arrived at satisfaction that there is no sufficient reason that the dispute should not be referred and no step in relation thereto was taken by the applicant, it could stay the suit. Section 8 of the 1996 Act contemplates some departure from Section 34 of the 1940 Act. Whereas Section 34 of the 1940 Act contemplated stay of the suit; Section 8 of the 1996 Act mandates a reference. Exercise of discretion by the judicial authority, which was the hallmark of Section 34 of the 1940 Act, has been taken away under the 1996 Act. The direction to make reference is not only mandatory, but the arbitration proceedings to be commenced or continued and conclusion thereof by an arbitral award remain unhampered by such pendency. [See O.P. Malhotras The Law and Practice of Arbitration and Conciliation, 2nd Edition, pp. 346-347] 20. Respondents had not filed any written statement in the suit. They had not disclosed their defence. They indisputably had raised a dispute in regard to the claim of the appellant. We have noticed the arbitration agreement entered into by and between the parties. It is of wide amplitude. The arbitration agreement brings within its fold dispute of any nature whatsoever. It is in broadest term. Respondents had made payments without prejudice to their rights and contentions. Payments were made keeping in view the ongoing business relationship between the parties. Out of the five post dated cheques, two were dishonoured. But, despite pendency of the suit, payments had been made to satisfy the claim of the appellant in respect of the cheques which were dishonoured. Sufficient explanation has been offered by the respondents therefor. Certain contingencies of events, as indicated hereinbefore, are not in dispute. If the suit was confined to the amount in respect of those two cheques, the contention of Mr. Rao could have been accepted. But it is not so. 21. The term dispute must be given its general meaning under the 1996 Act. 22. In P. Ramanatha Aiyars Advanced Law Lexicon, 3rd edition, page 1431, it is stated: In the context of an arbitration the words disputes and differences should be given their ordinary meanings. Because one man could be said to be indisputably right and the other indisputably wrong, that did not necessarily mean that there had never been any dispute between them. 23. Admittedly, the appellants claim is not confined to the question regarding non-payment of the amount under the two dishonoured cheques. Thus, there existed a dispute between the parties. Had the dispute between the parties been confined thereto only, the same had come to an end. 24. Appellant evidently has taken before us an inconsistent stand. If he was satisfied with the payment of the said demand drafts, he need not pursue the suit. It could have said so explicitly before the High Court. It cannot, therefore, be permitted to approbate and reprobate. 25. Section 8 of the 1996 Act is peremptory in nature. In a case where there exists an arbitration agreement, the court is under obligation to refer the parties to arbitration in terms of the arbitration agreement. [See Hindustan Petroleum Corpn. Ltd. v. Pinkcity Midway Petroleums, (2003) 6 SCC 503 and Rashtriya Ispat Nigam Limited (supra)] No issue, therefore, would remain to be decided in a suit. Existence of arbitration agreement is not disputed. The High Court, therefore, in our opinion, was right in referring the dispute between the parties to arbitration. | 0[ds]19. We need not dilate on this issue as this aspect of the matter has been considered by this Court in Rashtriya Ispat Nigam Limited & Anr. v. M/s. Verma Transport Company [2006 (7) SCALE 565 ], wherein this Court noticed:Section 34 of the repealed 1940 Act employs the expression steps in the proceedings. Only in terms of Section 21 of the 1940 Act, the dispute could be referred to arbitration provided parties thereto agreed. Under the 1940 Act, the suit was not barred. The Court would not automatically refer the dispute to an arbitral tribunal. In the event, it having arrived at satisfaction that there is no sufficient reason that the dispute should not be referred and no step in relation thereto was taken by the applicant, it could stay the suitSection 8 of the 1996 Act contemplates some departure from Section 34 of the 1940 Act. Whereas Section 34 of the 1940 Act contemplated stay of the suit; Section 8 of the 1996 Act mandates a reference. Exercise of discretion by the judicial authority, which was the hallmark of Section 34 of the 1940 Act, has been taken away under the 1996 Act. The direction to make reference is not only mandatory, but the arbitration proceedings to be commenced or continued and conclusion thereof by an arbitral award remain unhampered by such pendency. [See O.P. Malhotras The Law and Practice of Arbitration and Conciliation, 2nd Edition, pp. 346-347]20. Respondents had not filed any written statement in the suit. They had not disclosed their defence. They indisputably had raised a dispute in regard to the claim of the appellant. We have noticed the arbitration agreement entered into by and between the parties. It is of wide amplitude. The arbitration agreement brings within its fold dispute of any nature whatsoever. It is in broadest term. Respondents had made payments without prejudice to their rights and contentions. Payments were made keeping in view the ongoing business relationship between the parties. Out of the five post dated cheques, two were dishonoured. But, despite pendency of the suit, payments had been made to satisfy the claim of the appellant in respect of the cheques which were dishonoured. Sufficient explanation has been offered by the respondents therefor. Certain contingencies of events, as indicated hereinbefore, are not in dispute. If the suit was confined to the amount in respect of those two cheques, the contention of Mr. Rao could have been accepted. But it is not so21. The term dispute must be given its general meaning under the 1996 Act22. In P. Ramanatha Aiyars Advanced Law Lexicon, 3rd edition, page 1431, it is stated:In the context of an arbitration the words disputes and differences should be given their ordinary meanings. Because one man could be said to be indisputably right and the other indisputably wrong, that did not necessarily mean that there had never been any dispute between them23. Admittedly, the appellants claim is not confined to the question regarding non-payment of the amount under the two dishonoured cheques. Thus, there existed a dispute between the parties. Had the dispute between the parties been confined thereto only, the same had come to an end24. Appellant evidently has taken before us an inconsistent stand. If he was satisfied with the payment of the said demand drafts, he need not pursue the suit. It could have said so explicitly before the High Court. It cannot, therefore, be permitted to approbate and reprobate25. Section 8 of the 1996 Act is peremptory in nature. In a case where there exists an arbitration agreement, the court is under obligation to refer the parties to arbitration in terms of the arbitration agreement. [See Hindustan Petroleum Corpn. Ltd. v. Pinkcity Midway Petroleums, (2003) 6 SCC 503 and Rashtriya Ispat Nigam Limited (supra)] No issue, therefore, would remain to be decided in a suit. Existence of arbitration agreement is not disputed. The High Court, therefore, in our opinion, was right in referring the dispute between the parties to arbitration | 0 | 2,014 | 765 | ### 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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nine Thousand One Hundred and Forty Nine only) from the date of the suit till the date of realization. 14. Respondents in the said suit filed an application praying for reference of the dispute to the arbitral tribunal in terms of the arbitration clause contained in the said Memorandum of Understanding and contended that the suit filed by the appellant was not maintainable. By reason of a letter dated 23.08.2004, the said application was dismissed opining that no dispute existed between the parties for reference to an arbitration. 15. On a revision application filed by the respondents herein, the High Court, however, reversed the said order by the impugned judgment. 16. Mr. Annam D.N. Rao, learned counsel appearing on behalf of the appellant, would submit that keeping in view of the fact that the respondents herein had accepted their liabilities, it cannot be said that there existed a dispute or dispute by and between the parties within the meaning of Clause 20 of the Memorandum of Understanding dated 8.05.2002. According to the learned counsel, as the respondents accepted their liability, pursuant whereto and in furtherance whereof, they issued post dated cheques, a suit for realization of the amount under the said cheques would not attract the provisions of the 1996 Act. 17. Mr. Anupam Lal Das, learned counsel appearing on behalf of the respondents, on the other hand, submitted that in view of the fact that the respondents had paid the balance amount of Rs. 22,50,000/- by way of two demand drafts dated 18.08.2003 and 12.09.2003, on its own showing, the appellant has no subsisting cause of action and, thus, it should withdraw the suit. 18. Difference between Section 34 of the Arbitration Act, 1940 and Section 8 of the 1996 Act is distinct and apparent. Section 8 of the 1996 Act makes a radical departure from Section 34 of the 1940 Act. The 1996 Act was enacted in the light of UNCITRAL Model Rules. 19. We need not dilate on this issue as this aspect of the matter has been considered by this Court in Rashtriya Ispat Nigam Limited & Anr. v. M/s. Verma Transport Company [2006 (7) SCALE 565 ], wherein this Court noticed: Section 34 of the repealed 1940 Act employs the expression steps in the proceedings. Only in terms of Section 21 of the 1940 Act, the dispute could be referred to arbitration provided parties thereto agreed. Under the 1940 Act, the suit was not barred. The Court would not automatically refer the dispute to an arbitral tribunal. In the event, it having arrived at satisfaction that there is no sufficient reason that the dispute should not be referred and no step in relation thereto was taken by the applicant, it could stay the suit. Section 8 of the 1996 Act contemplates some departure from Section 34 of the 1940 Act. Whereas Section 34 of the 1940 Act contemplated stay of the suit; Section 8 of the 1996 Act mandates a reference. Exercise of discretion by the judicial authority, which was the hallmark of Section 34 of the 1940 Act, has been taken away under the 1996 Act. The direction to make reference is not only mandatory, but the arbitration proceedings to be commenced or continued and conclusion thereof by an arbitral award remain unhampered by such pendency. [See O.P. Malhotras The Law and Practice of Arbitration and Conciliation, 2nd Edition, pp. 346-347] 20. Respondents had not filed any written statement in the suit. They had not disclosed their defence. They indisputably had raised a dispute in regard to the claim of the appellant. We have noticed the arbitration agreement entered into by and between the parties. It is of wide amplitude. The arbitration agreement brings within its fold dispute of any nature whatsoever. It is in broadest term. Respondents had made payments without prejudice to their rights and contentions. Payments were made keeping in view the ongoing business relationship between the parties. Out of the five post dated cheques, two were dishonoured. But, despite pendency of the suit, payments had been made to satisfy the claim of the appellant in respect of the cheques which were dishonoured. Sufficient explanation has been offered by the respondents therefor. Certain contingencies of events, as indicated hereinbefore, are not in dispute. If the suit was confined to the amount in respect of those two cheques, the contention of Mr. Rao could have been accepted. But it is not so. 21. The term dispute must be given its general meaning under the 1996 Act. 22. In P. Ramanatha Aiyars Advanced Law Lexicon, 3rd edition, page 1431, it is stated: In the context of an arbitration the words disputes and differences should be given their ordinary meanings. Because one man could be said to be indisputably right and the other indisputably wrong, that did not necessarily mean that there had never been any dispute between them. 23. Admittedly, the appellants claim is not confined to the question regarding non-payment of the amount under the two dishonoured cheques. Thus, there existed a dispute between the parties. Had the dispute between the parties been confined thereto only, the same had come to an end. 24. Appellant evidently has taken before us an inconsistent stand. If he was satisfied with the payment of the said demand drafts, he need not pursue the suit. It could have said so explicitly before the High Court. It cannot, therefore, be permitted to approbate and reprobate. 25. Section 8 of the 1996 Act is peremptory in nature. In a case where there exists an arbitration agreement, the court is under obligation to refer the parties to arbitration in terms of the arbitration agreement. [See Hindustan Petroleum Corpn. Ltd. v. Pinkcity Midway Petroleums, (2003) 6 SCC 503 and Rashtriya Ispat Nigam Limited (supra)] No issue, therefore, would remain to be decided in a suit. Existence of arbitration agreement is not disputed. The High Court, therefore, in our opinion, was right in referring the dispute between the parties to arbitration.
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19. We need not dilate on this issue as this aspect of the matter has been considered by this Court in Rashtriya Ispat Nigam Limited & Anr. v. M/s. Verma Transport Company [2006 (7) SCALE 565 ], wherein this Court noticed:Section 34 of the repealed 1940 Act employs the expression steps in the proceedings. Only in terms of Section 21 of the 1940 Act, the dispute could be referred to arbitration provided parties thereto agreed. Under the 1940 Act, the suit was not barred. The Court would not automatically refer the dispute to an arbitral tribunal. In the event, it having arrived at satisfaction that there is no sufficient reason that the dispute should not be referred and no step in relation thereto was taken by the applicant, it could stay the suitSection 8 of the 1996 Act contemplates some departure from Section 34 of the 1940 Act. Whereas Section 34 of the 1940 Act contemplated stay of the suit; Section 8 of the 1996 Act mandates a reference. Exercise of discretion by the judicial authority, which was the hallmark of Section 34 of the 1940 Act, has been taken away under the 1996 Act. The direction to make reference is not only mandatory, but the arbitration proceedings to be commenced or continued and conclusion thereof by an arbitral award remain unhampered by such pendency. [See O.P. Malhotras The Law and Practice of Arbitration and Conciliation, 2nd Edition, pp. 346-347]20. Respondents had not filed any written statement in the suit. They had not disclosed their defence. They indisputably had raised a dispute in regard to the claim of the appellant. We have noticed the arbitration agreement entered into by and between the parties. It is of wide amplitude. The arbitration agreement brings within its fold dispute of any nature whatsoever. It is in broadest term. Respondents had made payments without prejudice to their rights and contentions. Payments were made keeping in view the ongoing business relationship between the parties. Out of the five post dated cheques, two were dishonoured. But, despite pendency of the suit, payments had been made to satisfy the claim of the appellant in respect of the cheques which were dishonoured. Sufficient explanation has been offered by the respondents therefor. Certain contingencies of events, as indicated hereinbefore, are not in dispute. If the suit was confined to the amount in respect of those two cheques, the contention of Mr. Rao could have been accepted. But it is not so21. The term dispute must be given its general meaning under the 1996 Act22. In P. Ramanatha Aiyars Advanced Law Lexicon, 3rd edition, page 1431, it is stated:In the context of an arbitration the words disputes and differences should be given their ordinary meanings. Because one man could be said to be indisputably right and the other indisputably wrong, that did not necessarily mean that there had never been any dispute between them23. Admittedly, the appellants claim is not confined to the question regarding non-payment of the amount under the two dishonoured cheques. Thus, there existed a dispute between the parties. Had the dispute between the parties been confined thereto only, the same had come to an end24. Appellant evidently has taken before us an inconsistent stand. If he was satisfied with the payment of the said demand drafts, he need not pursue the suit. It could have said so explicitly before the High Court. It cannot, therefore, be permitted to approbate and reprobate25. Section 8 of the 1996 Act is peremptory in nature. In a case where there exists an arbitration agreement, the court is under obligation to refer the parties to arbitration in terms of the arbitration agreement. [See Hindustan Petroleum Corpn. Ltd. v. Pinkcity Midway Petroleums, (2003) 6 SCC 503 and Rashtriya Ispat Nigam Limited (supra)] No issue, therefore, would remain to be decided in a suit. Existence of arbitration agreement is not disputed. The High Court, therefore, in our opinion, was right in referring the dispute between the parties to arbitration
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Prakash Cotton Mills (P) Ltd Vs. B. Sen & Ors | dismissed by the aforesaid common impugned order dated January 16, 1969. They have therefore approached this Court for a redress of their grievance.3. The facts relating to Civil Appeal No. 2219 of 1969, are quite similar, except that the consignment in that case was of 63 cases of nylon yarn, which were stored in the warehouse on December, 14, 1965, and were cleared on May 25, 1967. In that case also the appellants paid the duty under the pr visions of the amended Sections under protest, and successfully applied for refund of the so-called excess duty. They failed in their appeals to the Appellate Collector of Customs and their application for revision was rejected by the Central Government on March 19, 1969.4. It will thus appear that the controversy in these two sets of cases relates to the short question whether the custom authorities were justified in applying the rate of duty (to the imported goods in question) according to the rate prevalent on the date of their actual removal from the warehouse.5. It will be recalled that the Customs (Amendment) Ordinance, 1966; was promulgated and came into force on July 7, 1966, and was replaced by the Customs (Amendment) Act, 1966. The amendment in question were by way of substitution of Sections 14 and 15 of the Act by the new Sections. It has been argued by Mr. Chitale for the appellants that the material change was that made in Sub section (1) of Section 15 of the Act by substituting the words “the rate of duty, rate of exchange” for the words “the rate of duty.” He has therefore argued that the customs authorities were not entitled to take the new “rate of exchange”, at the depreciated value of the currency, into consideration in respect of the consignment in question as they had been shipped to Bombay and stored in the warehouse before the amended Section 15 came into force. The learned counsel tried to argue that the order of assessment of the customs duty were also made before the amendment Ordinance was promulgated on July 7, 1966, but he did not pursue that line of argument because he was not in a position to produce the so-called assessment orders. But, as we shall show, even if it were assumed that any such order or orders had been made before July 7, 1966, that could not possibly affect the correct rate of duty applicable to the imported goods.6. A reference to Sections 14 and 15 of the Act will show that while Section 14 deals with the valuation of goods for purposes of assessment, it is Section 15 which specifies the date for determination of the rate of duty and tariff valuation of imported goods. The amended Section reads as follows:“15(1) The rate of duty, rate of exchange and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force:(a) in the case of goods entered for home consumption under Section 46, on the date on which a bill of entry in respect of such goods is presented under that Section;(b) in the case of goods cleared from a warehouse under Section 68, on the date on which the goods are actually removed from the warehouse;(c) in the case of any other goods, on the date of payment of duty;Provided that if a bill of entry has been presented before the date of entry inwards of the vessel by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards.(2) The provisions of this Section shall not apply to baggage and goods imported by post.(3) For the purpose of Section 14 and this Section(a) “rate of exchange” means the rate of exchange determined by the Central Government for the conversion of Indian currency into foreign currency or foreign currency into Indian currency;(b) “foreign currency” and “Indian currency” have the meanings respectively assigned to them in the Foreign Exchange Regulation Act, 1947.”7. It is thus clear requirement of clause (b) of Sub-section (1) of Section 15 of the Act that the rate of duty, rate of exchange and tariff valuation applicable to any imported goods shall be the rate and valuation in force on the date on which the warehoused goods are actually removed from the warehouse. A cross-reference to Section 49 of the Act shows that an importer May apply to the Assistant Collector of Customs for permission to store the imported goods in a warehouse pending their clearance, and he May be permitted to do so. The other relevant provisions in that contained in Section 68 of the Act which provides that the importer of any warehoused goods may clear them for “home consumption” if inter alia, the import duty leviable on them has been paid. That is why clause (b) of Sub-section (1) of Section 15 of the Act makes a reference to Section 68. It is therefore quite clear that the rate of duty, rate of exchange and tariff valuation shall be those in force on the date of actual removal of the warehoused goods from the warehouse. As it is not in dispute before us that the goods, which are the subject matter of the appeals before us, were removed from the warehouse after the amending Ordinance had come into force on July 7, 1966, the customs authorities and the Central Government were quite right in taking the view that the rate of duty applicable to the imported goods had to be determined according to the law which was prevalent on the date they were actually removed from the warehouse, namely, the amended Sections 14 and 15 of the Act. There is therefore no force in the argument that the requirement of the amended Section 15 should have been ignored simply because the goods, were imported before it came into force, or that their bills of lading or bills of entry were lodged before that date.8. | 0[ds]7. It is thus clear requirement of clause (b) of Sub-section (1) of Section 15 of the Act that therate of duty, rate ofexchange and tariff valuation applicable to any imported goods shall be the rate and valuation in force on the date on which the warehoused goods are actually removed from the warehouse. A cross-reference to Section 49 of the Act shows that an importer May apply to the Assistant Collector of Customs for permission to store the imported goods in a warehouse pending their clearance, and he May be permitted to do so. The other relevant provisions in that contained in Section 68 of the Act which provides that the importer of any warehoused goods may clear them forif inter alia, the import duty leviable on them has been paid. That is why clause (b) of Sub-section (1) of Section 15 of the Act makes a reference to Section 68. It is therefore quite clear that therate of duty, rate ofexchange and tariff valuation shall be those in force on the date of actual removal of the warehoused goods from the warehouse. As it is not in dispute before us that the goods, which are the subject matter of the appeals before us, were removed from the warehouse after the amending Ordinance had come into force on July 7, 1966, the customs authorities and the Central Government were quite right in taking the view that the rate of duty applicable to the imported goods had to be determined according to the law which was prevalent on the date they were actually removed from the warehouse, namely, the amended Sections 14 and 15 of the Act. There is therefore no force in the argument that the requirement of the amended Section 15 should have been ignored simply because the goods, were imported before it came into force, or that their bills of lading or bills of entry were lodged before that date. | 0 | 1,615 | 355 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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dismissed by the aforesaid common impugned order dated January 16, 1969. They have therefore approached this Court for a redress of their grievance.3. The facts relating to Civil Appeal No. 2219 of 1969, are quite similar, except that the consignment in that case was of 63 cases of nylon yarn, which were stored in the warehouse on December, 14, 1965, and were cleared on May 25, 1967. In that case also the appellants paid the duty under the pr visions of the amended Sections under protest, and successfully applied for refund of the so-called excess duty. They failed in their appeals to the Appellate Collector of Customs and their application for revision was rejected by the Central Government on March 19, 1969.4. It will thus appear that the controversy in these two sets of cases relates to the short question whether the custom authorities were justified in applying the rate of duty (to the imported goods in question) according to the rate prevalent on the date of their actual removal from the warehouse.5. It will be recalled that the Customs (Amendment) Ordinance, 1966; was promulgated and came into force on July 7, 1966, and was replaced by the Customs (Amendment) Act, 1966. The amendment in question were by way of substitution of Sections 14 and 15 of the Act by the new Sections. It has been argued by Mr. Chitale for the appellants that the material change was that made in Sub section (1) of Section 15 of the Act by substituting the words “the rate of duty, rate of exchange” for the words “the rate of duty.” He has therefore argued that the customs authorities were not entitled to take the new “rate of exchange”, at the depreciated value of the currency, into consideration in respect of the consignment in question as they had been shipped to Bombay and stored in the warehouse before the amended Section 15 came into force. The learned counsel tried to argue that the order of assessment of the customs duty were also made before the amendment Ordinance was promulgated on July 7, 1966, but he did not pursue that line of argument because he was not in a position to produce the so-called assessment orders. But, as we shall show, even if it were assumed that any such order or orders had been made before July 7, 1966, that could not possibly affect the correct rate of duty applicable to the imported goods.6. A reference to Sections 14 and 15 of the Act will show that while Section 14 deals with the valuation of goods for purposes of assessment, it is Section 15 which specifies the date for determination of the rate of duty and tariff valuation of imported goods. The amended Section reads as follows:“15(1) The rate of duty, rate of exchange and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force:(a) in the case of goods entered for home consumption under Section 46, on the date on which a bill of entry in respect of such goods is presented under that Section;(b) in the case of goods cleared from a warehouse under Section 68, on the date on which the goods are actually removed from the warehouse;(c) in the case of any other goods, on the date of payment of duty;Provided that if a bill of entry has been presented before the date of entry inwards of the vessel by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards.(2) The provisions of this Section shall not apply to baggage and goods imported by post.(3) For the purpose of Section 14 and this Section(a) “rate of exchange” means the rate of exchange determined by the Central Government for the conversion of Indian currency into foreign currency or foreign currency into Indian currency;(b) “foreign currency” and “Indian currency” have the meanings respectively assigned to them in the Foreign Exchange Regulation Act, 1947.”7. It is thus clear requirement of clause (b) of Sub-section (1) of Section 15 of the Act that the rate of duty, rate of exchange and tariff valuation applicable to any imported goods shall be the rate and valuation in force on the date on which the warehoused goods are actually removed from the warehouse. A cross-reference to Section 49 of the Act shows that an importer May apply to the Assistant Collector of Customs for permission to store the imported goods in a warehouse pending their clearance, and he May be permitted to do so. The other relevant provisions in that contained in Section 68 of the Act which provides that the importer of any warehoused goods may clear them for “home consumption” if inter alia, the import duty leviable on them has been paid. That is why clause (b) of Sub-section (1) of Section 15 of the Act makes a reference to Section 68. It is therefore quite clear that the rate of duty, rate of exchange and tariff valuation shall be those in force on the date of actual removal of the warehoused goods from the warehouse. As it is not in dispute before us that the goods, which are the subject matter of the appeals before us, were removed from the warehouse after the amending Ordinance had come into force on July 7, 1966, the customs authorities and the Central Government were quite right in taking the view that the rate of duty applicable to the imported goods had to be determined according to the law which was prevalent on the date they were actually removed from the warehouse, namely, the amended Sections 14 and 15 of the Act. There is therefore no force in the argument that the requirement of the amended Section 15 should have been ignored simply because the goods, were imported before it came into force, or that their bills of lading or bills of entry were lodged before that date.8.
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7. It is thus clear requirement of clause (b) of Sub-section (1) of Section 15 of the Act that therate of duty, rate ofexchange and tariff valuation applicable to any imported goods shall be the rate and valuation in force on the date on which the warehoused goods are actually removed from the warehouse. A cross-reference to Section 49 of the Act shows that an importer May apply to the Assistant Collector of Customs for permission to store the imported goods in a warehouse pending their clearance, and he May be permitted to do so. The other relevant provisions in that contained in Section 68 of the Act which provides that the importer of any warehoused goods may clear them forif inter alia, the import duty leviable on them has been paid. That is why clause (b) of Sub-section (1) of Section 15 of the Act makes a reference to Section 68. It is therefore quite clear that therate of duty, rate ofexchange and tariff valuation shall be those in force on the date of actual removal of the warehoused goods from the warehouse. As it is not in dispute before us that the goods, which are the subject matter of the appeals before us, were removed from the warehouse after the amending Ordinance had come into force on July 7, 1966, the customs authorities and the Central Government were quite right in taking the view that the rate of duty applicable to the imported goods had to be determined according to the law which was prevalent on the date they were actually removed from the warehouse, namely, the amended Sections 14 and 15 of the Act. There is therefore no force in the argument that the requirement of the amended Section 15 should have been ignored simply because the goods, were imported before it came into force, or that their bills of lading or bills of entry were lodged before that date.
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Neelakantan & Bros. Construction Vs. Superintending Engineer, National Highways,Salem & Ors | the Madurai-Kanyakumari Road and the work was divided into fourteen Reaches and fourteen separate agreements were entered into between the petitioner and the Superintending Engineer, National Highways, Tirunelveli, respondent 3 to the present petitions. There is not much dispute on this point. At the relevant time, according to the petitioner, the Superintending Engineer, National Highways, Salem was one Thiru Mohan. He entered into reference. He took up the matter for arbitration and called for statements from the parties. Statements were filed before him and evidence were also adduced before him. But before he could complete the adjudication he was transferred and was succeeded by one Thiru J. R. Cornelius, Superintending Engineer. The contention of the petitioner in this case was that he had no jurisdiction to proceed and complete the arbitration. It appears, however that he entered into the task of adjudication with the knowledge and consent of the petitioner and the petitioner had his active participation in the proceeding before him. From the notices served by Thiru Mohan previously and subsequently by Thiru Cornelius, it is apparent that the petitioner had knowledge of the change of the incumbent of the Superintending Engineer who was to arbitrate in the matter. This is evident from the documents appearing at pages 164 and 165 of the present paper book and both the parties had notice of the succession in office. The arbitrator could not complete the award within time and there was need for extension of time. He wrote a letter to the petitioner on May 1, 1977 stating "extension of time was necessary to pass orders on reference and hearing has been concluded". In reply to that letter on May 11, 1977 the petitioner agreed to such extension. The petitioner rested content with that situation and never asked for any further or fresh opportunity either to make any submission or to adduce any evidence. In that light the arbitrator has made the award. This was challenged before the learned District Judge by means of a suit under Sections 30 and 33 of the Arbitration Act, 1940 that the previous arbitrator Thiru Mohan having entered into reference Thiru Cornelius had no jurisdiction to conclude. It was violative of the principles of natural justice, it was submitted. But as mentioned hereinbefore, the petitioner had knowledge of the change of the incumbent. He did not protest and the proceedings went on before Thiru Cornelius. It is apparent from the terms of the agreement between the parties that the Superintending Engineer of the Circle for the time being was to the named arbitrator. the learned District Judge held that Thiru Cornelius was competent to pass the award. The High Court also upheld that and rejected the challenge to the award on this ground made by the petitioner. 2. Shri A. K. Sen learned counsel for the petitioner urged before us that once an arbitrator had entered into reference, the next incumbent could not conclude the said arbitration proceeding without a fresh agreement. In the facts of this case, as the petitioner had knowledge of the alleged defect and had acquiesced in the proceedings before the successor, namely, Thiru Cornelius, we are of the opinion, that this contention of Shri Sen cannot be entertained. It was contended that there was violation of the principles of natural justice. This objection cannot be entertained. It the parties to the reference either agree beforehand to the method of appointment, or afterwards acquires in the appointment made, with full knowledge of all the circumstances, they will be precluded from objecting to such appointment as invalidating subsequent proceedings. Attending and taking part in the proceedings with full knowledge of the relevant fact will amount to such acquiescence, explains Russell Arbitration, 18th edn. at page 105. This was stated by the Judicial Committee long ago in Chowdhury Murtaza Hossein v. Mussumat Bidi Bechunnissa [3 IA 209 : 3 Sar 663 : 3 Suther 342]. See also the observations of P. B. Mukharji, J. in the decision of the Calcutta High Court in Jupiter General Insurance Co. Ltd. v. Corporation of Calcutta [AIR 1956 Cal 470 , 472 : 1955 Cri LJ 1243]. This Court held in N. Challappan v. Secretary, Kerala State Electricity Board [(1975) 1 SCC 289] that acquiescence defeated the right of the appellant at later state. See also the observations of this Court in Prasun Roy v. Calcutta Metropolitan Development Authority [(1987) 4 SCC 217] . See also Russell on Arbitration, 20th edn., pages 432-435. Shri Sen contended that no notice was issued after the appointment of the new arbitrator. this was factually incorrect, as mentioned before. Then, it was said that the award was bad as it did not consider all the claims. This also cannot be entertained. It must be assumed that the arbitrator had considered all the evidence adduced before him. There was no disregard of any principle of law. There was nothing to indicate that the arbitrator had not considered all the evidence. Unless there was a patent mistake of law and gross misstatement of facts resulting in miscarriage of justice or of equity, the award remains unassailable. In this case the arbitrator gave no reason for the award. There is no legal proposition which is the basis of the award, far less a legal proposition which is erroneous. There is no appeal from the verdict of the arbitrator. The court cannot review, in such circumstances, the award and correct any mistake in the adjudication by the arbitrator - See Champsey Bhara & Company v. Jivray Balloo spinning and Weaving Company Ltd. [(50 IA 324 : AIR 1923 PC 66] and the observations of Bachawat, J. in Firm Madanlal Roshanlal Mahajan v. Hukumchand Mills Ltd., Indore [(1967) 1 SCR 105 : AIR 1967 SC 1030 ] of this Court. 3. In the facts and circumstances of the case, in our opinion this award is not assailable. The High Court was, therefore, right in upholding the District Judges dismissal of the challenge to the award. T | 0[ds]In the facts of this case, as the petitioner had knowledge of the alleged defect and had acquiesced in the proceedings before the successor, namely, Thiru Cornelius, we are of the opinion, that this contention of Shri Sen cannot be entertainedIt must be assumed that the arbitrator had considered all the evidence adduced before him. There was no disregard of any principle of law. There was nothing to indicate that the arbitrator had not considered all the evidence. Unless there was a patent mistake of law and gross misstatement of facts resulting in miscarriage of justice or of equity, the award remains unassailable. In this case the arbitrator gave no reason for the award. There is no legal proposition which is the basis of the award, far less a legal proposition which is erroneous. There is no appeal from the verdict of the arbitrator. The court cannot review, in such circumstances, the award and correct any mistake in the adjudication by the arbitratorSee Champsey Bhara & Company v. Jivray Balloo spinning and Weaving Company Ltd. [(50 IA 324 : AIR 1923 PC 66] and the observations of Bachawat, J. in Firm Madanlal Roshanlal Mahajan v. Hukumchand Mills Ltd., Indore [(1967) 1 SCR 105 : AIR 1967 SC 1030 ] of this Court3. In the facts and circumstances of the case, in our opinion this award is not assailable. The High Court was, therefore, right in upholding the District Judges dismissal of the challenge to the award. | 0 | 1,184 | 282 | ### Instruction:
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the Madurai-Kanyakumari Road and the work was divided into fourteen Reaches and fourteen separate agreements were entered into between the petitioner and the Superintending Engineer, National Highways, Tirunelveli, respondent 3 to the present petitions. There is not much dispute on this point. At the relevant time, according to the petitioner, the Superintending Engineer, National Highways, Salem was one Thiru Mohan. He entered into reference. He took up the matter for arbitration and called for statements from the parties. Statements were filed before him and evidence were also adduced before him. But before he could complete the adjudication he was transferred and was succeeded by one Thiru J. R. Cornelius, Superintending Engineer. The contention of the petitioner in this case was that he had no jurisdiction to proceed and complete the arbitration. It appears, however that he entered into the task of adjudication with the knowledge and consent of the petitioner and the petitioner had his active participation in the proceeding before him. From the notices served by Thiru Mohan previously and subsequently by Thiru Cornelius, it is apparent that the petitioner had knowledge of the change of the incumbent of the Superintending Engineer who was to arbitrate in the matter. This is evident from the documents appearing at pages 164 and 165 of the present paper book and both the parties had notice of the succession in office. The arbitrator could not complete the award within time and there was need for extension of time. He wrote a letter to the petitioner on May 1, 1977 stating "extension of time was necessary to pass orders on reference and hearing has been concluded". In reply to that letter on May 11, 1977 the petitioner agreed to such extension. The petitioner rested content with that situation and never asked for any further or fresh opportunity either to make any submission or to adduce any evidence. In that light the arbitrator has made the award. This was challenged before the learned District Judge by means of a suit under Sections 30 and 33 of the Arbitration Act, 1940 that the previous arbitrator Thiru Mohan having entered into reference Thiru Cornelius had no jurisdiction to conclude. It was violative of the principles of natural justice, it was submitted. But as mentioned hereinbefore, the petitioner had knowledge of the change of the incumbent. He did not protest and the proceedings went on before Thiru Cornelius. It is apparent from the terms of the agreement between the parties that the Superintending Engineer of the Circle for the time being was to the named arbitrator. the learned District Judge held that Thiru Cornelius was competent to pass the award. The High Court also upheld that and rejected the challenge to the award on this ground made by the petitioner. 2. Shri A. K. Sen learned counsel for the petitioner urged before us that once an arbitrator had entered into reference, the next incumbent could not conclude the said arbitration proceeding without a fresh agreement. In the facts of this case, as the petitioner had knowledge of the alleged defect and had acquiesced in the proceedings before the successor, namely, Thiru Cornelius, we are of the opinion, that this contention of Shri Sen cannot be entertained. It was contended that there was violation of the principles of natural justice. This objection cannot be entertained. It the parties to the reference either agree beforehand to the method of appointment, or afterwards acquires in the appointment made, with full knowledge of all the circumstances, they will be precluded from objecting to such appointment as invalidating subsequent proceedings. Attending and taking part in the proceedings with full knowledge of the relevant fact will amount to such acquiescence, explains Russell Arbitration, 18th edn. at page 105. This was stated by the Judicial Committee long ago in Chowdhury Murtaza Hossein v. Mussumat Bidi Bechunnissa [3 IA 209 : 3 Sar 663 : 3 Suther 342]. See also the observations of P. B. Mukharji, J. in the decision of the Calcutta High Court in Jupiter General Insurance Co. Ltd. v. Corporation of Calcutta [AIR 1956 Cal 470 , 472 : 1955 Cri LJ 1243]. This Court held in N. Challappan v. Secretary, Kerala State Electricity Board [(1975) 1 SCC 289] that acquiescence defeated the right of the appellant at later state. See also the observations of this Court in Prasun Roy v. Calcutta Metropolitan Development Authority [(1987) 4 SCC 217] . See also Russell on Arbitration, 20th edn., pages 432-435. Shri Sen contended that no notice was issued after the appointment of the new arbitrator. this was factually incorrect, as mentioned before. Then, it was said that the award was bad as it did not consider all the claims. This also cannot be entertained. It must be assumed that the arbitrator had considered all the evidence adduced before him. There was no disregard of any principle of law. There was nothing to indicate that the arbitrator had not considered all the evidence. Unless there was a patent mistake of law and gross misstatement of facts resulting in miscarriage of justice or of equity, the award remains unassailable. In this case the arbitrator gave no reason for the award. There is no legal proposition which is the basis of the award, far less a legal proposition which is erroneous. There is no appeal from the verdict of the arbitrator. The court cannot review, in such circumstances, the award and correct any mistake in the adjudication by the arbitrator - See Champsey Bhara & Company v. Jivray Balloo spinning and Weaving Company Ltd. [(50 IA 324 : AIR 1923 PC 66] and the observations of Bachawat, J. in Firm Madanlal Roshanlal Mahajan v. Hukumchand Mills Ltd., Indore [(1967) 1 SCR 105 : AIR 1967 SC 1030 ] of this Court. 3. In the facts and circumstances of the case, in our opinion this award is not assailable. The High Court was, therefore, right in upholding the District Judges dismissal of the challenge to the award. T
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In the facts of this case, as the petitioner had knowledge of the alleged defect and had acquiesced in the proceedings before the successor, namely, Thiru Cornelius, we are of the opinion, that this contention of Shri Sen cannot be entertainedIt must be assumed that the arbitrator had considered all the evidence adduced before him. There was no disregard of any principle of law. There was nothing to indicate that the arbitrator had not considered all the evidence. Unless there was a patent mistake of law and gross misstatement of facts resulting in miscarriage of justice or of equity, the award remains unassailable. In this case the arbitrator gave no reason for the award. There is no legal proposition which is the basis of the award, far less a legal proposition which is erroneous. There is no appeal from the verdict of the arbitrator. The court cannot review, in such circumstances, the award and correct any mistake in the adjudication by the arbitratorSee Champsey Bhara & Company v. Jivray Balloo spinning and Weaving Company Ltd. [(50 IA 324 : AIR 1923 PC 66] and the observations of Bachawat, J. in Firm Madanlal Roshanlal Mahajan v. Hukumchand Mills Ltd., Indore [(1967) 1 SCR 105 : AIR 1967 SC 1030 ] of this Court3. In the facts and circumstances of the case, in our opinion this award is not assailable. The High Court was, therefore, right in upholding the District Judges dismissal of the challenge to the award.
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Jaora Sugar Mills (P) Ltd Vs. State Of Madhya Pradesh And Others | case, it cannot validly be raised either. We must, therefore, hold that the High Court was right in rejecting the appellants case that the Act was invalid, and hence no demands could be made under its provisions either for a cess or for commission. 20. There is, however, one subsidiary question which still remains to be considered and that has relation to the demand for cess commission for the year 1959-60. The appellants case is that this demand is invalid. The material facts in relation to this point are not in dispute. We have already noticed that the sugarcane crushing season is usually between 1st October and the 30th June and that the Cane Development Council was constituted for the first time on August 26, 1960. In other words, the Council was not in existence throughout the period covered by the demand in question which relates to the year 1959-60. Section 21 of the Madhya Pradesh Act provides for the payment of commission on purchase of cane; and Rules 45 to 47 prescribe the manner in which the said payment has to be made. It is true that the functions of the Cane Development Council as prescribed by S. 6 of the said Act show that the Council is expected to render service to the mills like the appellant; and so, it can be safely assumed that the commission in question which was authorised to be recovered under S. 21 of the Madhya Pradesh Act initially, and which will now be taken to have been recovered under S. 3 of the Act is a "fee". Mr. Pathak contends that it is plainly illegal to recover such a fee for a period during which the Council did not exist at all and could have rendered no service whatever. 21. It is well settled that the imposition of a fee is generally supported on the basis of quid pro quo, and so it is urged that the impugned recovery for the year 1959-60 is plainly without any quid pro quo and as such, cannot be enforced. The High Court did not accept this argument because it held that the doctrine of quid pro quo did not require that actual service must be rendered first before a fee can be levied or demanded. In support of this view, the High Court has relied upon certain observations made by this Court in Sudhundra Tirtha Swamiar v. Commr. for Hindu Religious and Charitable Endowments. Mysore, 1963 Supp (2) SCR 302 at p. 323 (AIR 1963 SC 966 at p. 975). While rejecting the contention which was raised before this Court in that case that the levy prescribed by S. 76 (1) of the Madras Religious Endowments Act, 1951 (No.XIX of 1951) was invalid, Shah. J., who spoke for the Court observed:"A levy in the nature of a fee does not cease to be of that character merely because there is an element of compulsion or coerciveness present in it, nor is it a postulate of a fee that it must have direct relation to the actual services rendered by the authority to individual who obtains the benefit of the service. If with a view to provide a specific service, levy is imposed by law and expenses for maintaining the service are met out of the amounts collected, there being a reasonable relation between the levy and the expenses incurred for rendering the service, the levy would be in the nature of a fee and not in the nature of a tax". The High Court thought that these observations justified the view that a fee could be validly recovered from the appellant by way of commission to be paid to the Cane Development Council, even though the Council may not have come into existence during the whole of the period in question. In our opinion, the High Court has completely ignored the context in which the said observations were made and has misjudged their effect. It is not necessary for us to decide whether the service must be rendered for the whole of the period covered by the fee, or whether it is necessary that the service must by rendered first and the fee can be recovered thereafter. These fine and academic questions are not relevant in the present case, because it is not even suggested the during the whole of the period any service whatever was rendered by the Council at all. In this connection, it is necessary to bear in mind the fact that S 23(1) of the Madhya Pradesh Act required, inter alia, that the commission had to be paid to the Council at the rate in the proportion prescribed by it. Other statutory provisions including the Rules further provided that the failure to pay the said commission on the occasion of the purchase would entail the liability to pay interest and the said commission along with the interest was made recoverable as arrears of land revenue. Having regard to these provisions, it seems to us very difficult to accept the view that the commission which had to be paid to the Council fell to be paid even though the Council was not in existence at all throughout the sugar crushing season in question. On the special facts of this case, therefore, we are satisfied that no amount could be validly claimed by way of commission for the year 1959-60. The notice of demand (Annexure D) which has been issued in that behalf shows that the cane commission at 3 nP. per maund which has been demanded from the appellant by respondent No. 2 for the years 1959-60 and 1960-61, amounts to Rs. 1,26,152.86 nP. It is common ground that out of this amount, Rs. 54,037.57 nP. represents the commission for the year 1959-60. We must accordingly hold that the demand made by respondent No. 2 for the payment of cess commission for the year 1959-60 amounting to Rupees 54,037.57 nP. is invalid and the notice to that extent must be cancelled. 22. | 0[ds]In fact, if the invalid provision is severable from the rest of the Act, courts dealing with the question of its validity may strike down the invalid portion alone and uphold the validity of the remaining part of the State. But where an impugned Act passed by a State Legislature is invalid on the ground that the State Legislature did not have legislative competence to deal with the topic covered by it, then even Parliament cannot validate such an Act, because the effect of such attempted validation, in substance, would be to confer legislative competence on the State Legislature in regard to a filed or topic which, by the relevant provisions of the Schedules in the Constitution, is outside its jurisdiction. This position is not and cannot be disputed. If it is shown that the impugned Act purports to do nothing more than validate the invalid State Statutes, then of course, such a validating Act would be outside the legislative competence of Parliament itself. Where a topic is not included within the relevant List dealing with the legislative competence of the State Legislature, Parliament, by making a law, cannot attempt to confer such legislative competence on the State LegislaturesWe are, therefore, satisfied that the sole basis on which Mr. Pathaks argument rests is invalid, because the said basis is inconsistent with the plain and clear meaning of S. 3.As we have already indicated, Mr. Pathak does not dispute - and rightly that it is competent to Parliament to make a law in respect of the cesses in question, to apply the provisions of such a law to the different States, and to make them retrospective in operation. His whole contention is based on what he regards to be the true scope and effect of S. 3. If the construction which he places on S. 3 is rejected, the argument about the invalidity of the Act must likewise be rejectedThis observation succinctly and effectively brings out the true character of the contention that any legislation is colourable legislation. Where a challenge is made on this grounds, what has to be proved to the satisfaction of the Court is that though the Act ostensibly is within the legislative competence of the Legislature in question, in substance and in reality it covers a filed which is outside its legislative competence. It would be noticed that as soon as this aspect of the matter is borne in mind, the argument that the Act is a colourable piece of legislation takes us back again to the true scope and effect of the provisions of S. 3. If the true scope and effect of S. 3 is as Mr. Pathak assumes it to be, then, of course, the Act would be void on the ground that it is a colourable piece of legislation. But if the true scope and effect of S. 3 is as we have already held it to be, then in passing the Act, Parliament has exercised its undoubted legislative competence to provide for the recovery of the specified cesses and commissions in the respective State areas from the dates and in the manner indicated by it. When demands were made for the recovery of the said cesses, they will be deemed to have been made not in pursuance of the State Acts but in pursuance of the provisions of the Act itself. Therefore, we do not think there is any substance in the argument that the Act is invalid on the ground that it is a colourable piece of legislationNormally, it would be inappropriate and indeed illegitimate to hold an enquiry into the manner in which the funds raised by an Act would be dealt with when the Court is considering the question about the validity of the Act itself. As we have just indicated, if the taxes or cesses recovered under an Act are not dealt with in the manner prescribed by the Constitution, what remedy a citizen may have and how it can be enforced, are questions on which we express no opinion in this appeal. All we are considering at this stage iswhether even on the assumption made by Mr. Pathak, it would be permissible for him to contend that the Act which is otherwise valid, is rendered invalid because the funds in question will not go into the Consolidated Fund of India.In truth, this arguments again proceeds on the basis that Parliament has passed the Act not for the purpose of treating the recoveries made as those under its provisions retrospectively enacted, but for the purpose of validating the said recoveries as made under the invalid State Acts; and we have already pointed out that S. 3 completely negatives such an assumption. Therefore, we do not think that Mr. Pathak is right in contending that the provisions of the Act are invalid in any mannerIn our opinion, the answer to this question has to be in the affirmative, because to hold otherwise would be to cut down the width and amplitude of the legislative competence conferred on Parliament by Art. 248 read with Entry 97 in List I of the Seventh Schedule. Whether or not retrospective operation of such a law is reasonable, may fall to be considered in certain cases: but that consideration has not been raised before us and in the circumstances of this case, it cannot validly be raised either. We must, therefore, hold that the High Court was right in rejecting the appellants case that the Act was invalid, and hence no demands could be made under its provisions either for a cess or for commissionIn our opinion, the High Court has completely ignored the context in which the said observations were made and has misjudged their effect. It is not necessary for us to decide whether the service must be rendered for the whole of the period covered by the fee, or whether it is necessary that the service must by rendered first and the fee can be recovered thereafter. These fine and academic questions are not relevant in the present case, because it is not even suggested the during the whole of the period any service whatever was rendered by the Council at all. In this connection, it is necessary to bear in mind the fact that S 23(1) of the Madhya Pradesh Act required, inter alia, that the commission had to be paid to the Council at the rate in the proportion prescribed by it. Other statutory provisions including the Rules further provided that the failure to pay the said commission on the occasion of the purchase would entail the liability to pay interest and the said commission along with the interest was made recoverable as arrears of land revenue. Having regard to these provisions, it seems to us very difficult to accept the view that the commission which had to be paid to the Council fell to be paid even though the Council was not in existence at all throughout the sugar crushing season in question. On the special facts of this case, therefore, we are satisfied that no amount could be validly claimed by way of commission for the year 1959-60. The notice of demand (Annexure D) which has been issued in that behalf shows that the cane commission at 3 nP. per maund which has been demanded from the appellant by respondent No. 2 for the years 1959-60 and 1960-61, amounts to Rs. 1,26,152.86 nP. It is common ground that out of this amount, Rs. 54,037.57 nP. represents the commission for the year 1959-60. We must accordingly hold that the demand made by respondent No. 2 for the payment of cess commission for the year 1959-60 amounting to Rupees 54,037.57 nP. is invalid and the notice to that extent must be cancelled. | 0 | 6,478 | 1,401 | ### Instruction:
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case, it cannot validly be raised either. We must, therefore, hold that the High Court was right in rejecting the appellants case that the Act was invalid, and hence no demands could be made under its provisions either for a cess or for commission. 20. There is, however, one subsidiary question which still remains to be considered and that has relation to the demand for cess commission for the year 1959-60. The appellants case is that this demand is invalid. The material facts in relation to this point are not in dispute. We have already noticed that the sugarcane crushing season is usually between 1st October and the 30th June and that the Cane Development Council was constituted for the first time on August 26, 1960. In other words, the Council was not in existence throughout the period covered by the demand in question which relates to the year 1959-60. Section 21 of the Madhya Pradesh Act provides for the payment of commission on purchase of cane; and Rules 45 to 47 prescribe the manner in which the said payment has to be made. It is true that the functions of the Cane Development Council as prescribed by S. 6 of the said Act show that the Council is expected to render service to the mills like the appellant; and so, it can be safely assumed that the commission in question which was authorised to be recovered under S. 21 of the Madhya Pradesh Act initially, and which will now be taken to have been recovered under S. 3 of the Act is a "fee". Mr. Pathak contends that it is plainly illegal to recover such a fee for a period during which the Council did not exist at all and could have rendered no service whatever. 21. It is well settled that the imposition of a fee is generally supported on the basis of quid pro quo, and so it is urged that the impugned recovery for the year 1959-60 is plainly without any quid pro quo and as such, cannot be enforced. The High Court did not accept this argument because it held that the doctrine of quid pro quo did not require that actual service must be rendered first before a fee can be levied or demanded. In support of this view, the High Court has relied upon certain observations made by this Court in Sudhundra Tirtha Swamiar v. Commr. for Hindu Religious and Charitable Endowments. Mysore, 1963 Supp (2) SCR 302 at p. 323 (AIR 1963 SC 966 at p. 975). While rejecting the contention which was raised before this Court in that case that the levy prescribed by S. 76 (1) of the Madras Religious Endowments Act, 1951 (No.XIX of 1951) was invalid, Shah. J., who spoke for the Court observed:"A levy in the nature of a fee does not cease to be of that character merely because there is an element of compulsion or coerciveness present in it, nor is it a postulate of a fee that it must have direct relation to the actual services rendered by the authority to individual who obtains the benefit of the service. If with a view to provide a specific service, levy is imposed by law and expenses for maintaining the service are met out of the amounts collected, there being a reasonable relation between the levy and the expenses incurred for rendering the service, the levy would be in the nature of a fee and not in the nature of a tax". The High Court thought that these observations justified the view that a fee could be validly recovered from the appellant by way of commission to be paid to the Cane Development Council, even though the Council may not have come into existence during the whole of the period in question. In our opinion, the High Court has completely ignored the context in which the said observations were made and has misjudged their effect. It is not necessary for us to decide whether the service must be rendered for the whole of the period covered by the fee, or whether it is necessary that the service must by rendered first and the fee can be recovered thereafter. These fine and academic questions are not relevant in the present case, because it is not even suggested the during the whole of the period any service whatever was rendered by the Council at all. In this connection, it is necessary to bear in mind the fact that S 23(1) of the Madhya Pradesh Act required, inter alia, that the commission had to be paid to the Council at the rate in the proportion prescribed by it. Other statutory provisions including the Rules further provided that the failure to pay the said commission on the occasion of the purchase would entail the liability to pay interest and the said commission along with the interest was made recoverable as arrears of land revenue. Having regard to these provisions, it seems to us very difficult to accept the view that the commission which had to be paid to the Council fell to be paid even though the Council was not in existence at all throughout the sugar crushing season in question. On the special facts of this case, therefore, we are satisfied that no amount could be validly claimed by way of commission for the year 1959-60. The notice of demand (Annexure D) which has been issued in that behalf shows that the cane commission at 3 nP. per maund which has been demanded from the appellant by respondent No. 2 for the years 1959-60 and 1960-61, amounts to Rs. 1,26,152.86 nP. It is common ground that out of this amount, Rs. 54,037.57 nP. represents the commission for the year 1959-60. We must accordingly hold that the demand made by respondent No. 2 for the payment of cess commission for the year 1959-60 amounting to Rupees 54,037.57 nP. is invalid and the notice to that extent must be cancelled. 22.
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S. 3. If the construction which he places on S. 3 is rejected, the argument about the invalidity of the Act must likewise be rejectedThis observation succinctly and effectively brings out the true character of the contention that any legislation is colourable legislation. Where a challenge is made on this grounds, what has to be proved to the satisfaction of the Court is that though the Act ostensibly is within the legislative competence of the Legislature in question, in substance and in reality it covers a filed which is outside its legislative competence. It would be noticed that as soon as this aspect of the matter is borne in mind, the argument that the Act is a colourable piece of legislation takes us back again to the true scope and effect of the provisions of S. 3. If the true scope and effect of S. 3 is as Mr. Pathak assumes it to be, then, of course, the Act would be void on the ground that it is a colourable piece of legislation. But if the true scope and effect of S. 3 is as we have already held it to be, then in passing the Act, Parliament has exercised its undoubted legislative competence to provide for the recovery of the specified cesses and commissions in the respective State areas from the dates and in the manner indicated by it. When demands were made for the recovery of the said cesses, they will be deemed to have been made not in pursuance of the State Acts but in pursuance of the provisions of the Act itself. Therefore, we do not think there is any substance in the argument that the Act is invalid on the ground that it is a colourable piece of legislationNormally, it would be inappropriate and indeed illegitimate to hold an enquiry into the manner in which the funds raised by an Act would be dealt with when the Court is considering the question about the validity of the Act itself. As we have just indicated, if the taxes or cesses recovered under an Act are not dealt with in the manner prescribed by the Constitution, what remedy a citizen may have and how it can be enforced, are questions on which we express no opinion in this appeal. All we are considering at this stage iswhether even on the assumption made by Mr. Pathak, it would be permissible for him to contend that the Act which is otherwise valid, is rendered invalid because the funds in question will not go into the Consolidated Fund of India.In truth, this arguments again proceeds on the basis that Parliament has passed the Act not for the purpose of treating the recoveries made as those under its provisions retrospectively enacted, but for the purpose of validating the said recoveries as made under the invalid State Acts; and we have already pointed out that S. 3 completely negatives such an assumption. Therefore, we do not think that Mr. Pathak is right in contending that the provisions of the Act are invalid in any mannerIn our opinion, the answer to this question has to be in the affirmative, because to hold otherwise would be to cut down the width and amplitude of the legislative competence conferred on Parliament by Art. 248 read with Entry 97 in List I of the Seventh Schedule. Whether or not retrospective operation of such a law is reasonable, may fall to be considered in certain cases: but that consideration has not been raised before us and in the circumstances of this case, it cannot validly be raised either. We must, therefore, hold that the High Court was right in rejecting the appellants case that the Act was invalid, and hence no demands could be made under its provisions either for a cess or for commissionIn our opinion, the High Court has completely ignored the context in which the said observations were made and has misjudged their effect. It is not necessary for us to decide whether the service must be rendered for the whole of the period covered by the fee, or whether it is necessary that the service must by rendered first and the fee can be recovered thereafter. These fine and academic questions are not relevant in the present case, because it is not even suggested the during the whole of the period any service whatever was rendered by the Council at all. In this connection, it is necessary to bear in mind the fact that S 23(1) of the Madhya Pradesh Act required, inter alia, that the commission had to be paid to the Council at the rate in the proportion prescribed by it. Other statutory provisions including the Rules further provided that the failure to pay the said commission on the occasion of the purchase would entail the liability to pay interest and the said commission along with the interest was made recoverable as arrears of land revenue. Having regard to these provisions, it seems to us very difficult to accept the view that the commission which had to be paid to the Council fell to be paid even though the Council was not in existence at all throughout the sugar crushing season in question. On the special facts of this case, therefore, we are satisfied that no amount could be validly claimed by way of commission for the year 1959-60. The notice of demand (Annexure D) which has been issued in that behalf shows that the cane commission at 3 nP. per maund which has been demanded from the appellant by respondent No. 2 for the years 1959-60 and 1960-61, amounts to Rs. 1,26,152.86 nP. It is common ground that out of this amount, Rs. 54,037.57 nP. represents the commission for the year 1959-60. We must accordingly hold that the demand made by respondent No. 2 for the payment of cess commission for the year 1959-60 amounting to Rupees 54,037.57 nP. is invalid and the notice to that extent must be cancelled.
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Rt. Rev. Magr. Mark Netto Vs. Govt. Of Kerala & Ors | v. S. C. Dorairajan, (1951) SCR 525 : (AIR 1951 SC 226 ); In re the Kerala Education Bill 1957, (1959) SCR 995 : (AIR 1958 SC 956 ); Sidhrajbhai v. State of Gujarat, (1963) 3 SCR 837 : (AIR 1963 SC 540 ); Katra Education Society v. State of U. P., (1966) 3 SCR 328 : (AIR 1966 SC 1307 ) ; Gujarat University, Ahmedabad v. Krishna Ranganath, (1963) Suppl (1) SCR 112 : (AIR 1963 SC 703 ) and W. Proost v. State of Bihar, (1969) 2 SCR 73 : (AIR 1969 SC 465 ). In the last case it was said that the right need not be enlarged nor whittled down. The Constitution speaks of administration and that must fairly be left to the minority institutions and no. more".In the case of St. Xavires College, Ahmedabad (supra) the majority decision although by separate judgments, has converged to the view that the right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. This right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions, similarly regulatory measures are necessary for ensuring orderely, efficient and sound administration of the school in the matter of maintaing discipline, health, morality and so on and so forth. Even, the two learned Judges differing from the majority on some of the aspects of the matter under consideration before this Court in St. Xavires College case did not depart from this fundamental principle. The difference was mainly in the application of the principle in relation to some of the provisions of the impugned Statute. As summed up by Das C. J., in the Kerala Education Bill case (supra), the right to administer an educational institution of their choice by a minority cannot mean a right to maladminister. Of course in the application of the salient principles mentioned above opinions have differed from case to case and may differ.6. Let us examine the constitutionality of Rule 12 (iii) contained in Chapter VI of the Rules and the validity of the impugned orders contained in Exts. P-2 and P-4. The dominant object of the said Rule does not seem to be for the sake of discipline or morality. Any apprehension of deterioration in the moral standards of students if co-education is permitted in Secondary Schools does not seem to be the main basis of this Rule, although it may be a secondary one. The very fact that girls can be admitted into a boys school situated at a place where there are no. girls school in the town or the area leads to this conclusion. It is to be remembered that no. category of a school is specified in the Act or the Rules. Nor was our attention drawn to any provision enabling the educational authorities to force the school authorities to admit girls in a school where they dont want to admit them. The self imposed restriction by the management in vogue for a number of years restricting the admission for boys only, per se, is wholly insufficient to cast a legal ban on them not to admit girls. The ban provided in Rule 12 (iii) as already adverted to is of a very limited character and for a limited purpose. Perrmssion was granted to Dr. Pereira for opening the school in 1947 as a High School. No. resriction in terms was imposed for not admitting any girl students. If the successor school authorities wanted to depart from the self-imposed restriction, they could only be prevented from doing so on valid, legal and reasonable grounds and not otherwise. As is apparent from the impugned order dae 5-6-1973 of the Regional Deputy Director of Public Instruction as also from the passage of the High Court judgment which we have extracted above the permission sought for by the appellant for admission of girls in the St. Vincents School was refused not on the ground of any apprehended deterioration of morality or discipline but mainly, or perhaps, wholly in the interest of the existing Muslim girls school, respondent No. 4, in the locality. The basis of the Rule, as remarked by the High Court, seems to be "that it will be better for the girls to get instruction in girls schools as far as possible. If that be so, then clearly the Rule violates the freedom guaranteed to the minority to administer the school of its choice. But, as already stated, in our opinion this is not the dominant object of the rule. The Christian community in the locality, for various reasons which are not necessary to be alluded to here, wanted the girls also to receive their education in this school and specially of their community. They did not think it in their interest to send them to the Mulsim girls school which is an educational institution run by the other minority community. In that view of the matter the Rule in question in its wide amplitude sanctioning the withholding of permission for admission of girls students in the boys minority school is violative of Article 30. If so widely interpreted it crosses the barrier of regulatory measures and comes in the region of interference with the administration of the institution, a right which is guaranteed to the minority under Article 30. The Rule, therefore, must be interpreted narrowly and is held to be inapplicable to a minority educational institution in a situation of the kind with which we are concerned in this case. We do not think it necessary or advisable to strike down the Rule as a whole but do restrict its operation and make it inapplicable to a minority educational institution in a situation like the one which arose in this case. It follows, therefore, that the impugned orders dated 5-6-1973 and 2-5-1974 passed by the Regional Deputy Director and the District Education Officer respectively are bad and invalid and must be quashed. | 1[ds]In the case of St. Xavires College, Ahmedabad (supra) the majority decision although by separate judgments, has converged to the view that the right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. This right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions, similarly regulatory measures are necessary for ensuring orderely, efficient and sound administration of the school in the matter of maintaing discipline, health, morality and so on and so forth. Even, the two learned Judges differing from the majority on some of the aspects of the matter under consideration before this Court in St. Xavires College case did not depart from this fundamental principle. The difference was mainly in the application of the principle in relation to some of the provisions of the impugned Statute. As summed up by Das C. J., in the Kerala Education Bill case (supra), the right to administer an educational institution of their choice by a minority cannot mean a right to maladminister. Of course in the application of the salient principles mentioned above opinions have differed from case to case and maydominant object of the said Rule does not seem to be for the sake of discipline or morality. Any apprehension of deterioration in the moral standards of students if co-education is permitted in Secondary Schools does not seem to be the main basis of this Rule, although it may be a secondary one. The very fact that girls can be admitted into a boys school situated at a place where there are no. girls school in the town or the area leads to this conclusion. It is to be remembered that no. category of a school is specified in the Act or the Rules. Nor was our attention drawn to any provision enabling the educational authorities to force the school authorities to admit girls in a school where they dont want to admit them. The self imposed restriction by the management in vogue for a number of years restricting the admission for boys only, per se, is wholly insufficient to cast a legal ban on them not to admit girls. The ban provided in Rule 12 (iii) as already adverted to is of a very limited character and for a limited purpose. Perrmssion was granted to Dr. Pereira for opening the school in 1947 as a High School. No. resriction in terms was imposed for not admitting any girl students. If the successor school authorities wanted to depart from the self-imposed restriction, they could only be prevented from doing so on valid, legal and reasonable grounds and not otherwise. As is apparent from the impugned order dae 5-6-1973 of the Regional Deputy Director of Public Instruction as also from the passage of the High Court judgment which we have extracted above the permission sought for by the appellant for admission of girls in the St. Vincents School was refused not on the ground of any apprehended deterioration of morality or discipline but mainly, or perhaps, wholly in the interest of the existing Muslim girls school, respondent No. 4, in the locality. The basis of the Rule, as remarked by the High Court, seems to be "that it will be better for the girls to get instruction in girls schools as far as possible. If that be so, then clearly the Rule violates the freedom guaranteed to the minority to administer the school of its choice. But, as already stated, in our opinion this is not the dominant object of the rule. The Christian community in the locality, for various reasons which are not necessary to be alluded to here, wanted the girls also to receive their education in this school and specially of their community. They did not think it in their interest to send them to the Mulsim girls school which is an educational institution run by the other minority community. In that view of the matter the Rule in question in its wide amplitude sanctioning the withholding of permission for admission of girls students in the boys minority school is violative of Article 30. If so widely interpreted it crosses the barrier of regulatory measures and comes in the region of interference with the administration of the institution, a right which is guaranteed to the minority under Article 30. The Rule, therefore, must be interpreted narrowly and is held to be inapplicable to a minority educational institution in a situation of the kind with which we are concerned in this case. We do not think it necessary or advisable to strike down the Rule as a whole but do restrict its operation and make it inapplicable to a minority educational institution in a situation like the one which arose in this case. It follows, therefore, that the impugned orders dated 5-6-1973 and 2-5-1974 passed by the Regional Deputy Director and the District Education Officer respectively are bad and invalid and must be quashed. | 1 | 2,895 | 910 | ### Instruction:
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v. S. C. Dorairajan, (1951) SCR 525 : (AIR 1951 SC 226 ); In re the Kerala Education Bill 1957, (1959) SCR 995 : (AIR 1958 SC 956 ); Sidhrajbhai v. State of Gujarat, (1963) 3 SCR 837 : (AIR 1963 SC 540 ); Katra Education Society v. State of U. P., (1966) 3 SCR 328 : (AIR 1966 SC 1307 ) ; Gujarat University, Ahmedabad v. Krishna Ranganath, (1963) Suppl (1) SCR 112 : (AIR 1963 SC 703 ) and W. Proost v. State of Bihar, (1969) 2 SCR 73 : (AIR 1969 SC 465 ). In the last case it was said that the right need not be enlarged nor whittled down. The Constitution speaks of administration and that must fairly be left to the minority institutions and no. more".In the case of St. Xavires College, Ahmedabad (supra) the majority decision although by separate judgments, has converged to the view that the right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. This right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions, similarly regulatory measures are necessary for ensuring orderely, efficient and sound administration of the school in the matter of maintaing discipline, health, morality and so on and so forth. Even, the two learned Judges differing from the majority on some of the aspects of the matter under consideration before this Court in St. Xavires College case did not depart from this fundamental principle. The difference was mainly in the application of the principle in relation to some of the provisions of the impugned Statute. As summed up by Das C. J., in the Kerala Education Bill case (supra), the right to administer an educational institution of their choice by a minority cannot mean a right to maladminister. Of course in the application of the salient principles mentioned above opinions have differed from case to case and may differ.6. Let us examine the constitutionality of Rule 12 (iii) contained in Chapter VI of the Rules and the validity of the impugned orders contained in Exts. P-2 and P-4. The dominant object of the said Rule does not seem to be for the sake of discipline or morality. Any apprehension of deterioration in the moral standards of students if co-education is permitted in Secondary Schools does not seem to be the main basis of this Rule, although it may be a secondary one. The very fact that girls can be admitted into a boys school situated at a place where there are no. girls school in the town or the area leads to this conclusion. It is to be remembered that no. category of a school is specified in the Act or the Rules. Nor was our attention drawn to any provision enabling the educational authorities to force the school authorities to admit girls in a school where they dont want to admit them. The self imposed restriction by the management in vogue for a number of years restricting the admission for boys only, per se, is wholly insufficient to cast a legal ban on them not to admit girls. The ban provided in Rule 12 (iii) as already adverted to is of a very limited character and for a limited purpose. Perrmssion was granted to Dr. Pereira for opening the school in 1947 as a High School. No. resriction in terms was imposed for not admitting any girl students. If the successor school authorities wanted to depart from the self-imposed restriction, they could only be prevented from doing so on valid, legal and reasonable grounds and not otherwise. As is apparent from the impugned order dae 5-6-1973 of the Regional Deputy Director of Public Instruction as also from the passage of the High Court judgment which we have extracted above the permission sought for by the appellant for admission of girls in the St. Vincents School was refused not on the ground of any apprehended deterioration of morality or discipline but mainly, or perhaps, wholly in the interest of the existing Muslim girls school, respondent No. 4, in the locality. The basis of the Rule, as remarked by the High Court, seems to be "that it will be better for the girls to get instruction in girls schools as far as possible. If that be so, then clearly the Rule violates the freedom guaranteed to the minority to administer the school of its choice. But, as already stated, in our opinion this is not the dominant object of the rule. The Christian community in the locality, for various reasons which are not necessary to be alluded to here, wanted the girls also to receive their education in this school and specially of their community. They did not think it in their interest to send them to the Mulsim girls school which is an educational institution run by the other minority community. In that view of the matter the Rule in question in its wide amplitude sanctioning the withholding of permission for admission of girls students in the boys minority school is violative of Article 30. If so widely interpreted it crosses the barrier of regulatory measures and comes in the region of interference with the administration of the institution, a right which is guaranteed to the minority under Article 30. The Rule, therefore, must be interpreted narrowly and is held to be inapplicable to a minority educational institution in a situation of the kind with which we are concerned in this case. We do not think it necessary or advisable to strike down the Rule as a whole but do restrict its operation and make it inapplicable to a minority educational institution in a situation like the one which arose in this case. It follows, therefore, that the impugned orders dated 5-6-1973 and 2-5-1974 passed by the Regional Deputy Director and the District Education Officer respectively are bad and invalid and must be quashed.
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In the case of St. Xavires College, Ahmedabad (supra) the majority decision although by separate judgments, has converged to the view that the right conferred on the religious and linguistic minorities to administer educational institutions of their choice is not an absolute right. This right is not free from regulation. Just as regulatory measures are necessary for maintaining the educational character and content of minority institutions, similarly regulatory measures are necessary for ensuring orderely, efficient and sound administration of the school in the matter of maintaing discipline, health, morality and so on and so forth. Even, the two learned Judges differing from the majority on some of the aspects of the matter under consideration before this Court in St. Xavires College case did not depart from this fundamental principle. The difference was mainly in the application of the principle in relation to some of the provisions of the impugned Statute. As summed up by Das C. J., in the Kerala Education Bill case (supra), the right to administer an educational institution of their choice by a minority cannot mean a right to maladminister. Of course in the application of the salient principles mentioned above opinions have differed from case to case and maydominant object of the said Rule does not seem to be for the sake of discipline or morality. Any apprehension of deterioration in the moral standards of students if co-education is permitted in Secondary Schools does not seem to be the main basis of this Rule, although it may be a secondary one. The very fact that girls can be admitted into a boys school situated at a place where there are no. girls school in the town or the area leads to this conclusion. It is to be remembered that no. category of a school is specified in the Act or the Rules. Nor was our attention drawn to any provision enabling the educational authorities to force the school authorities to admit girls in a school where they dont want to admit them. The self imposed restriction by the management in vogue for a number of years restricting the admission for boys only, per se, is wholly insufficient to cast a legal ban on them not to admit girls. The ban provided in Rule 12 (iii) as already adverted to is of a very limited character and for a limited purpose. Perrmssion was granted to Dr. Pereira for opening the school in 1947 as a High School. No. resriction in terms was imposed for not admitting any girl students. If the successor school authorities wanted to depart from the self-imposed restriction, they could only be prevented from doing so on valid, legal and reasonable grounds and not otherwise. As is apparent from the impugned order dae 5-6-1973 of the Regional Deputy Director of Public Instruction as also from the passage of the High Court judgment which we have extracted above the permission sought for by the appellant for admission of girls in the St. Vincents School was refused not on the ground of any apprehended deterioration of morality or discipline but mainly, or perhaps, wholly in the interest of the existing Muslim girls school, respondent No. 4, in the locality. The basis of the Rule, as remarked by the High Court, seems to be "that it will be better for the girls to get instruction in girls schools as far as possible. If that be so, then clearly the Rule violates the freedom guaranteed to the minority to administer the school of its choice. But, as already stated, in our opinion this is not the dominant object of the rule. The Christian community in the locality, for various reasons which are not necessary to be alluded to here, wanted the girls also to receive their education in this school and specially of their community. They did not think it in their interest to send them to the Mulsim girls school which is an educational institution run by the other minority community. In that view of the matter the Rule in question in its wide amplitude sanctioning the withholding of permission for admission of girls students in the boys minority school is violative of Article 30. If so widely interpreted it crosses the barrier of regulatory measures and comes in the region of interference with the administration of the institution, a right which is guaranteed to the minority under Article 30. The Rule, therefore, must be interpreted narrowly and is held to be inapplicable to a minority educational institution in a situation of the kind with which we are concerned in this case. We do not think it necessary or advisable to strike down the Rule as a whole but do restrict its operation and make it inapplicable to a minority educational institution in a situation like the one which arose in this case. It follows, therefore, that the impugned orders dated 5-6-1973 and 2-5-1974 passed by the Regional Deputy Director and the District Education Officer respectively are bad and invalid and must be quashed.
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Surjit Lal Chhabda Vs. Commissioner Of Income Tax, Bombay | and even for some purposes of legal theory, ancestral property may perhaps be described, and usefully described, as family property; but it does not follow that in the eye of the Hindu law it belongs save in certain circumstances, to the family as distinct from the individual. By reason of its origin a mans property may be liable to be divested wholly or in part on the happening of a particular event, or may be answerable for particular obligations, or may pass at his death in a particular way; but if, in spite of all such facts, his personal law regards him as the owner, the property as his property and the income there from as his income, it is chargeable to income-tax as his, i.e., as the income of an individual. In their Lordships view it would not be in consonance with ordinary notions or with a correct interpretation of the law of the Mitakshara, to hold that property which a man has obtained from his father belongs to a Hindu undivided family by reason of having a wife and daughters."31. On the other hand, in Arunachalams case which falls within the rule in Gowli Buddannas case, the Privy Council observed:"But though it may be correct to speak of him (the sole surviving coparcener) as the owner, yet it is still correct to describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son it assumes a different quality: it is such too, that female members of the family (whose members may increase) have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. And these are incidents which arise, notwithstanding his so-called ownership, just because the property has been and has not ceased to be joint family property.... it would not appear reasonable to impart to the legislature the intention to discriminate, so long as the family itself subsists, between property in the hands of a single coparcener and that in the hands of two or more coparceners."Holding that it was an irrelevant consideration that a single coparcener could alienate the property in a manner not open to one of several coparceners, the Privy Council said:"Let it b e assumed that his power of alienation is unassailable: that means no more than that he has in the circumstances the power to alienate joint family property. That is what it is until he alienates it, and, if he does not alienate it, that is what it remains. The fatal flaw in the argument of the appellant appeared to be that, having labeled the surviving coparcener owner, he then attributed to his ownership such a congeries of rights that the property could no longer be called joint family property. The family, a body fluctuating in numbers and comprised of male and female members, may equally well be said to be owners of the property, but owners whose ownership is qualified by the powers of the coparceners. There is in fact nothing to be gained by the use of the word owner in this connection. It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as joint property of the undivided family."32. These two sets of tests, both evolved by the Privy Council govern two distinct sets of cases and there is no inconsistency between the two tests. The test evolved in Kalyanjis case, not in Arunachalams or Gowli Buddannas case, has to be applied to the instant case.33. Kathoke Lodge was not an asset of a pre-existing joint family of which the appellant was a member. It became an item of joint family property for the first time when the appellant threw what was his separate property into the family hotchpot. The appellant h as no son. His wife and unmarried daughter were entitled to be maintained by him from out of the income of Kathoke Lodge while it was his separate property. Their rights in that property are not enlarged for the reason that the property w as thrown into the family hotchpot. Not being coparceners of the appellant, they have neither a right by birth in the property nor the right to demand its partition nor indeed the right to restrain the appellant from alienating the property for a ny purpose whatsoever. Their prior right to be maintained out of the income of Kathoke Lodge remains what it was even after the property was thrown into the family hotchpot: the right of maintenance, neither more nor less. Thus, Kathoke Lodge may be usefully described as the property of the family after it was thrown into the common stock but it does not follow that in the eye of Hindu Law it belongs to the family, as it would have, if the property were to devolve on the appellant as a so le surviving coparcener.The property which the appellant has put into the common stock may change its legal incidents on the birth of a son but until that event happens the property, in the eye of Hindu Law, is really his. He can deal with it as a full owner, unrestrained by considerations of legal necessity or benefit of the estate. He may sell it, mortgage it or make a gift of it. Even a son born or adopted after the alienation shall have to take the family hotchpot as he finds it. A son born, begotten or adopted after the alienation has no right to challenge the alienation.34. Since the personal law of the appellant regards him as the owner of Kathoke Lodge and the income there from as his income even after the property was thrown into the family hotchpot, the income would be chargeable to income-tax as his individual income and not that of the family.35. | 0[ds]The appellant is governed by the Mitakshara school of Hindu law but that is not of any particular consequence for the purposes of thisis true that the appellant cannot constitute a coparcenary with his wife and unmarried daughter but under the Income-tax Act a Hindu undivided family, not a coparcenary, is a taxable unit. A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property and these are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, that is to say, the three generations next to the holder in unbroken male descent. Since under the Mitakshara Law, the right to joint family property by birth is vested i n the male issue only, females who come in only as heirs to obstructed heritage (sapratibandha days), cannot bethe contention of the Department that in the absence of a pre-existing joint family the appellant cannot constitute a Hindu undivided family with his wife and unmarried daughter must fail. The view of the High Court that the appellant h as "no son and therefore no undivided family" is plainly unsound and must also be rejected. Accordingly, the question whether the income of the Kathoke Lodge can be assessed in the hands of the appellant as a Karta or manager of the joint family must be decided on the basis that the appellant, his wife and unmarried daughter are members of a Hindu undividedapart from the merits of the point we ruled that the contention was not open to the Department. The statement of case framed by the Tribunal shows that such a contention was not raised before thewas not a concession on a question of law in the sense as to what the true legal position was. What the Departments counsel stated in the High Court was that he did not want to press the particular point. In our opinion, it is not open to the Department to take before us a contention which in the first place does not arise out of the reference and which the Departments counsel in the High Court raised but did not press.Having examined the true nature of an undivided family under the Hindu law and in view of the findings of the Tribunal and the High Court on the second aspect, two points emerge clear: Firstly that the appellant constituted a Hindu undivided family with his wife and unmarried daughter and secondly that Kathoke Lodge which was the appellants separate property was thrown by him in the familycontrasted with the cases of these four partners, Kathoke Lodge which was once the separate property of the appellant was thrown by him in the common stock, which raises the question whether that circumstance is sufficient to justify the assessment of the income from that property in the appellants status as the manager of the joint family. On this point the cases of Kanji and Sewdas furnish a near parallel. They did not have to throw their interest in the firm in the common stock because that interest was, on assumption, their ancestral property. But even though the property was ancestral, the income which they received from it was treated as their separate property as neither of them had a son who could take interest in the ancestral property by birth. Applying that analogy, even if Kathoke Lodge were to be an ancestral ass et, its income would still have to be treated as the appellants separate property as he has no son who could take interest in that property by birth. On this reasoning, the effect of the appellant throwing Kathoke Lodge into the family hotchpot could not be more telling than if that property was his ancestrale appellants counsel is thus right in his submission that the observations made by the Privy Council in Kalyanjis case as regards the correctness of the Bombay view in Lakshminarayans case is not good law. I n fact, the decision of the Privy Council in appeal from the judgment of the Bombay High Court in Lakshminarayans case has itself been disapproved by this Court. But that does not affect the correctness of the Privy Council decision in Kalyanjis case itself as regards the nature of the income received by the six partners from the firm. That part of the judgment in Kalyanjis case has never been doubted and is open to no exception. For the matter of that, the error of the Privy Councils decision in Lakshminarayans case consisted in overlooking the factual distinction between that case and Kalyanjis case, as a result of which the ratio of Kalyanjis case came to be wrongly applied to Lakshminarayansratio of Kalyanjis case would therefore apply to the instant case, the parallel being furnished by the cases of Kanji anddecision of the Privy Council in Attorney General of Ceylon v. A. R. Arunachalam Chettiar and Others(1), the decisions of this Court in the cases of Gowli Buddanna and Narendranath and the decision of the Bombay High Court in Lakshminarayans case fall within that class and are not to be confused with cases like the one on hand, which fall within the rule in Kalyanjisthis class of cases, the composition of the family is a matter of great relevance for, though a joint Hindu family may consist of a man, his wife and daughter, the mere existence of a wife and daughter will not justify the assessment of income from the joint family property in the status of the head as a manager of the joint family. The appellants case falls within the rule in Kalyanjis case since the property, before it came into his hands, was not impressed with the character of joint family property. It is of great relevance that he has no son and his joint family consists, for the time being, of himself, his wife andit is realised that there are two distinct classes of cases which require a different approach, there would be no difficulty in understanding the implications of the apparently conflicting tests evolved as guides for deciding the two classes ofLodge was not an asset of a pre-existing joint family of which the appellant was a member. It became an item of joint family property for the first time when the appellant threw what was his separate property into the family hotchpot. The appellant h as no son. His wife and unmarried daughter were entitled to be maintained by him from out of the income of Kathoke Lodge while it was his separate property. Their rights in that property are not enlarged for the reason that the property w as thrown into the family hotchpot. Not being coparceners of the appellant, they have neither a right by birth in the property nor the right to demand its partition nor indeed the right to restrain the appellant from alienating the property for a ny purpose whatsoever. Their prior right to be maintained out of the income of Kathoke Lodge remains what it was even after the property was thrown into the family hotchpot: the right of maintenance, neither more nor less. Thus, Kathoke Lodge may be usefully described as the property of the family after it was thrown into the common stock but it does not follow that in the eye of Hindu Law it belongs to the family, as it would have, if the property were to devolve on the appellant as a so le surviving coparcener.The property which the appellant has put into the common stock may change its legal incidents on the birth of a son but until that event happens the property, in the eye of Hindu Law, is really his. He can deal with it as a full owner, unrestrained by considerations of legal necessity or benefit of the estate. He may sell it, mortgage it or make a gift of it. Even a son born or adopted after the alienation shall have to take the family hotchpot as he finds it. A son born, begotten or adopted after the alienation has no right to challenge thethe personal law of the appellant regards him as the owner of Kathoke Lodge and the income there from as his income even after the property was thrown into the family hotchpot, the income would be chargeable to income-tax as his individual income and not that of the family. | 0 | 9,626 | 1,500 | ### 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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and even for some purposes of legal theory, ancestral property may perhaps be described, and usefully described, as family property; but it does not follow that in the eye of the Hindu law it belongs save in certain circumstances, to the family as distinct from the individual. By reason of its origin a mans property may be liable to be divested wholly or in part on the happening of a particular event, or may be answerable for particular obligations, or may pass at his death in a particular way; but if, in spite of all such facts, his personal law regards him as the owner, the property as his property and the income there from as his income, it is chargeable to income-tax as his, i.e., as the income of an individual. In their Lordships view it would not be in consonance with ordinary notions or with a correct interpretation of the law of the Mitakshara, to hold that property which a man has obtained from his father belongs to a Hindu undivided family by reason of having a wife and daughters."31. On the other hand, in Arunachalams case which falls within the rule in Gowli Buddannas case, the Privy Council observed:"But though it may be correct to speak of him (the sole surviving coparcener) as the owner, yet it is still correct to describe that which he owns as the joint family property. For his ownership is such that upon the adoption of a son it assumes a different quality: it is such too, that female members of the family (whose members may increase) have a right to maintenance out of it and in some circumstances to a charge for maintenance upon it. And these are incidents which arise, notwithstanding his so-called ownership, just because the property has been and has not ceased to be joint family property.... it would not appear reasonable to impart to the legislature the intention to discriminate, so long as the family itself subsists, between property in the hands of a single coparcener and that in the hands of two or more coparceners."Holding that it was an irrelevant consideration that a single coparcener could alienate the property in a manner not open to one of several coparceners, the Privy Council said:"Let it b e assumed that his power of alienation is unassailable: that means no more than that he has in the circumstances the power to alienate joint family property. That is what it is until he alienates it, and, if he does not alienate it, that is what it remains. The fatal flaw in the argument of the appellant appeared to be that, having labeled the surviving coparcener owner, he then attributed to his ownership such a congeries of rights that the property could no longer be called joint family property. The family, a body fluctuating in numbers and comprised of male and female members, may equally well be said to be owners of the property, but owners whose ownership is qualified by the powers of the coparceners. There is in fact nothing to be gained by the use of the word owner in this connection. It is only by analysing the nature of the rights of the members of the undivided family, both those in being and those yet to be born, that it can be determined whether the family property can properly be described as joint property of the undivided family."32. These two sets of tests, both evolved by the Privy Council govern two distinct sets of cases and there is no inconsistency between the two tests. The test evolved in Kalyanjis case, not in Arunachalams or Gowli Buddannas case, has to be applied to the instant case.33. Kathoke Lodge was not an asset of a pre-existing joint family of which the appellant was a member. It became an item of joint family property for the first time when the appellant threw what was his separate property into the family hotchpot. The appellant h as no son. His wife and unmarried daughter were entitled to be maintained by him from out of the income of Kathoke Lodge while it was his separate property. Their rights in that property are not enlarged for the reason that the property w as thrown into the family hotchpot. Not being coparceners of the appellant, they have neither a right by birth in the property nor the right to demand its partition nor indeed the right to restrain the appellant from alienating the property for a ny purpose whatsoever. Their prior right to be maintained out of the income of Kathoke Lodge remains what it was even after the property was thrown into the family hotchpot: the right of maintenance, neither more nor less. Thus, Kathoke Lodge may be usefully described as the property of the family after it was thrown into the common stock but it does not follow that in the eye of Hindu Law it belongs to the family, as it would have, if the property were to devolve on the appellant as a so le surviving coparcener.The property which the appellant has put into the common stock may change its legal incidents on the birth of a son but until that event happens the property, in the eye of Hindu Law, is really his. He can deal with it as a full owner, unrestrained by considerations of legal necessity or benefit of the estate. He may sell it, mortgage it or make a gift of it. Even a son born or adopted after the alienation shall have to take the family hotchpot as he finds it. A son born, begotten or adopted after the alienation has no right to challenge the alienation.34. Since the personal law of the appellant regards him as the owner of Kathoke Lodge and the income there from as his income even after the property was thrown into the family hotchpot, the income would be chargeable to income-tax as his individual income and not that of the family.35.
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the appellant constituted a Hindu undivided family with his wife and unmarried daughter and secondly that Kathoke Lodge which was the appellants separate property was thrown by him in the familycontrasted with the cases of these four partners, Kathoke Lodge which was once the separate property of the appellant was thrown by him in the common stock, which raises the question whether that circumstance is sufficient to justify the assessment of the income from that property in the appellants status as the manager of the joint family. On this point the cases of Kanji and Sewdas furnish a near parallel. They did not have to throw their interest in the firm in the common stock because that interest was, on assumption, their ancestral property. But even though the property was ancestral, the income which they received from it was treated as their separate property as neither of them had a son who could take interest in the ancestral property by birth. Applying that analogy, even if Kathoke Lodge were to be an ancestral ass et, its income would still have to be treated as the appellants separate property as he has no son who could take interest in that property by birth. On this reasoning, the effect of the appellant throwing Kathoke Lodge into the family hotchpot could not be more telling than if that property was his ancestrale appellants counsel is thus right in his submission that the observations made by the Privy Council in Kalyanjis case as regards the correctness of the Bombay view in Lakshminarayans case is not good law. I n fact, the decision of the Privy Council in appeal from the judgment of the Bombay High Court in Lakshminarayans case has itself been disapproved by this Court. But that does not affect the correctness of the Privy Council decision in Kalyanjis case itself as regards the nature of the income received by the six partners from the firm. That part of the judgment in Kalyanjis case has never been doubted and is open to no exception. For the matter of that, the error of the Privy Councils decision in Lakshminarayans case consisted in overlooking the factual distinction between that case and Kalyanjis case, as a result of which the ratio of Kalyanjis case came to be wrongly applied to Lakshminarayansratio of Kalyanjis case would therefore apply to the instant case, the parallel being furnished by the cases of Kanji anddecision of the Privy Council in Attorney General of Ceylon v. A. R. Arunachalam Chettiar and Others(1), the decisions of this Court in the cases of Gowli Buddanna and Narendranath and the decision of the Bombay High Court in Lakshminarayans case fall within that class and are not to be confused with cases like the one on hand, which fall within the rule in Kalyanjisthis class of cases, the composition of the family is a matter of great relevance for, though a joint Hindu family may consist of a man, his wife and daughter, the mere existence of a wife and daughter will not justify the assessment of income from the joint family property in the status of the head as a manager of the joint family. The appellants case falls within the rule in Kalyanjis case since the property, before it came into his hands, was not impressed with the character of joint family property. It is of great relevance that he has no son and his joint family consists, for the time being, of himself, his wife andit is realised that there are two distinct classes of cases which require a different approach, there would be no difficulty in understanding the implications of the apparently conflicting tests evolved as guides for deciding the two classes ofLodge was not an asset of a pre-existing joint family of which the appellant was a member. It became an item of joint family property for the first time when the appellant threw what was his separate property into the family hotchpot. The appellant h as no son. His wife and unmarried daughter were entitled to be maintained by him from out of the income of Kathoke Lodge while it was his separate property. Their rights in that property are not enlarged for the reason that the property w as thrown into the family hotchpot. Not being coparceners of the appellant, they have neither a right by birth in the property nor the right to demand its partition nor indeed the right to restrain the appellant from alienating the property for a ny purpose whatsoever. Their prior right to be maintained out of the income of Kathoke Lodge remains what it was even after the property was thrown into the family hotchpot: the right of maintenance, neither more nor less. Thus, Kathoke Lodge may be usefully described as the property of the family after it was thrown into the common stock but it does not follow that in the eye of Hindu Law it belongs to the family, as it would have, if the property were to devolve on the appellant as a so le surviving coparcener.The property which the appellant has put into the common stock may change its legal incidents on the birth of a son but until that event happens the property, in the eye of Hindu Law, is really his. He can deal with it as a full owner, unrestrained by considerations of legal necessity or benefit of the estate. He may sell it, mortgage it or make a gift of it. Even a son born or adopted after the alienation shall have to take the family hotchpot as he finds it. A son born, begotten or adopted after the alienation has no right to challenge thethe personal law of the appellant regards him as the owner of Kathoke Lodge and the income there from as his income even after the property was thrown into the family hotchpot, the income would be chargeable to income-tax as his individual income and not that of the family.
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Messrs J. K. Cotton Spinning and Weaving Mills Limited and Another Vs. Union of India and Others | the Collector, but the question is what has to be specified by the Collector. It is the contention of the appellants that the Collector has to specify the place of manufacture and also any premises appurtenant thereto. We are, however, unable to accept this contention. The place where the goods are to be manufactured by a manufacturer, that is to say, the site of the factory cannot be specified by the Collector. IT is for the manufacturer to choose the site or the place where the factory will be constructed and goods will be manufactured. Rule 9(1), in our opinion, does not produced, cured or manufactured. The words "which may be specified by the Collector in this behalf" occurring in Rule 9(1) of the Rules do not qualify the words "any place where they are produced, cured or manufactured", but relate to or qualify the words "any premises appurtenant thereto". In other words, if the place of removal is not the place where the goods are produced, cured or manufactured, but any premises appurtenant to such place, in that case, the Collector has to specify such premises for the purpose of collection of excise duty. Thus the contention of the appellants that the Collector has to specify the place of manufacture and also any premises appurtenant thereto under Rule 9(1) of the Rules, is without any substance. 44. Our attention has, however, been drawn to the impugned circular dated September 24, 1980 issued by the Central Board of Excise and Customs. In Clause 3 of the circular, it is stated as follows: "Mere approval of a the ground plan in a routine manner will not suffice for purposes of Rule 9 as under the said rule the place of production etc. or premises appurtenant thereto have also to be specified separately." 45. Under the circular, the Collector is required to specify under Rule 9(1) both the place of production and premises appurtenant thereto, if any. In view of this direction given in the circular, the learned counsel for the appellants submits that it is not only binding on the Collector and the other officers of the Central Excise Department, but also the circular is in the nature of contemporanea exposito rendering useful aid in the construction of the provision of Rule 9(1) of the Rules. This contention finds support from the decision of this Court in K. P. Varghese v. ITO [(1982) 1 SCR 629] relied on by the learned counsel of the appellants. Indeed, it has been observed in that case that the rule of construction by reference to contemporanea exposito is a well established rule for interpreting a statute by reference to the exposition it has received from contemporary authority, though it must give way where the language of the statute is plain and unambiguous. In our opinion, the language of Rule 9(1) admits of only one interpretation and that is that the specification that has to be made by the Collector is of any premises appurtenant to the place of manufacture or production of the excisable goods. The specification is not required to be made and, in our view, cannot be made of the place of manufacture or production of the excisable goods. Apart from that, as observed by Subba Rao, J., upon a review of all the decisions on the point, in an earlier decision of this Court in the Senior Electric Inspector v. Laxmi Narayan Chopra [(1962) 3 SCR 146] , the maxim contemporanea exposito as laid down by Coke was applied to construing ancient statutes but not to interpreting Acts which are comparatively modern. Further, it has been observed that in a modern progressive society it would be unreasonable to confine the intention of a legislature to the meaning attributable to the word used at the time the law was made and, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them. Most respectfully we agree with the said observation of Subba Rao, J. In the circumstances, we do not agree with the direction of the Board of Central Excise & Customs given in the impugned circular that both the place of manufacture and the premises appurtenant thereto must be specified by the Collector under Rule 9(1) of the Rules. Thus, there being no question of specification of the place of manufacture, the contention of the appellants that without such specification there cannot be any deemed removal, fails. 46. In view of the discussion made above, we hold that the amendments to Rules 9 and 49 are quite legal and valid. Further, Section 51 of the Finance Act, 1982 giving retrospective effect to the said amendments is also legal and valid. 47. In the instant case, the appellants are liable to pay excise duty on the yarn which is obtained at an intermediate stage and, thereafter, further processed in an integrated process for weaving the same into fabrics. Although it has been alleged that the yarn is obtained at an intermediate stage of an integrated process of manufacture of fabrics, it appears to be not so. After the yarn is produced it is sized and, thereafter, subjected to a process of weaving the same into fabrics. Be that as it may, as we have held that the commodity which is obtained at an intermediate stage of an integrated process of manufacture of another commodity, is liable to the payment of excise duty, the yarn that is produced by the appellants is also liable to payment of excise duty. In our view, the High Court by the impugned judgment has rightly held that the appellants are not liable to pay any excise duty on the yarn after it is sized for the purpose of weaving the same into fabrics. No distinction can be made between unsized yarn and sized yarn, for the unsized yarn when converted into sized yarn does not lose its character as yarn. | 0[ds]32. Under Section 11-A(1) the excise authorities cannot recover duties not levied or not paid or short-levied or short-paid or erroneously refunded beyond the period of six months, the proviso to Section 11-A not being applicable in the present case. Thus although Section 51 of the Finance Act, 1982 has given retrospective effect to the amendments of Rules 9 and 49, yet it must be subject to the provision of Section 11-A of the Act. We are unable to accept the contention of the learned Attorney General that as Section 51 has made the amendments retrospective in operation since February 28, 1944, it should be held that it overrides the provision of Section 11-A. If the intention of the legislature was to nullify the effect of Section 11-A, in that case, the legislature would have specifically provided for the same. Section 51 does not contain any non-obstinate clause, nor does it refer to the provision of Section 11-A. In the circumstances, it is difficult to hold that Section 51 overrides the provision of Section 11-AIn our view Section 51 does not, in any manner, affect the provision of Section 11-A of the Act. In the absence of any specific provision overriding Section 11-A, it will be consistent with rules of harmonious construction to hold that Section 51 of the Finance Act, 1982 insofar as it gives retrospective effect to the amendments made to Rules 9 and 49 of the Rules, is subject to the provision of Section 11-AThe legislature is quite competent to enact a deeming provision for the purpose of assuming the existence of a fact which does not really exist. It has been already noticed that the taxing event under Section 3 of the Act is the production or manufacture of goods and not removal. The explanations to Rules 9 and 49 contemplate the collection of duty levied on the production of a commodity at an intermediate stage of an integrated process of manufacture of another commodity by deeming such production or manufacture of the commodity at an intermediate stage to be removal from such place or premises of manufacture. The deeming provisions are quite consistent with Section 3 of the Act. As observed by the Federal Court in Boddu Paidanna case [AIR 1942 FC 33] there is in theory nothing to prevent the central legislature from imposing a duty of excise on a commodity as soon as it comes into existence, no matter what happens to it afterwards, whether it be sold, consumed or destroyed or given away. It is for the convenience of the taxing authority that duty is collected at the time of removal of the commodity. There is, therefore, nothing unreasonable in the deeming provision and, as discussed above, it is quite in conformity with the provision of Section 3 of the Act. The contention that the amendments to Rules 9 and 49 are ultra vires clause (b) of sub-section (4) of Section 4 of the Act, is without substance and is overruled47. In the instant case, the appellants are liable to pay excise duty on the yarn which is obtained at an intermediate stage and, thereafter, further processed in an integrated process for weaving the same into fabrics. Although it has been alleged that the yarn is obtained at an intermediate stage of an integrated process of manufacture of fabrics, it appears to be not so. After the yarn is produced it is sized and, thereafter, subjected to a process of weaving the same into fabrics. Be that as it may, as we have held that the commodity which is obtained at an intermediate stage of an integrated process of manufacture of another commodity, is liable to the payment of excise duty, the yarn that is produced by the appellants is also liable to payment of excise duty. In our view, the High Court by the impugned judgment has rightly held that the appellants are not liable to pay any excise duty on the yarn after it is sized for the purpose of weaving the same into fabrics. No distinction can be made between unsized yarn and sized yarn, for the unsized yarn when converted into sized yarn does not lose its character as yarn | 0 | 8,876 | 769 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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the Collector, but the question is what has to be specified by the Collector. It is the contention of the appellants that the Collector has to specify the place of manufacture and also any premises appurtenant thereto. We are, however, unable to accept this contention. The place where the goods are to be manufactured by a manufacturer, that is to say, the site of the factory cannot be specified by the Collector. IT is for the manufacturer to choose the site or the place where the factory will be constructed and goods will be manufactured. Rule 9(1), in our opinion, does not produced, cured or manufactured. The words "which may be specified by the Collector in this behalf" occurring in Rule 9(1) of the Rules do not qualify the words "any place where they are produced, cured or manufactured", but relate to or qualify the words "any premises appurtenant thereto". In other words, if the place of removal is not the place where the goods are produced, cured or manufactured, but any premises appurtenant to such place, in that case, the Collector has to specify such premises for the purpose of collection of excise duty. Thus the contention of the appellants that the Collector has to specify the place of manufacture and also any premises appurtenant thereto under Rule 9(1) of the Rules, is without any substance. 44. Our attention has, however, been drawn to the impugned circular dated September 24, 1980 issued by the Central Board of Excise and Customs. In Clause 3 of the circular, it is stated as follows: "Mere approval of a the ground plan in a routine manner will not suffice for purposes of Rule 9 as under the said rule the place of production etc. or premises appurtenant thereto have also to be specified separately." 45. Under the circular, the Collector is required to specify under Rule 9(1) both the place of production and premises appurtenant thereto, if any. In view of this direction given in the circular, the learned counsel for the appellants submits that it is not only binding on the Collector and the other officers of the Central Excise Department, but also the circular is in the nature of contemporanea exposito rendering useful aid in the construction of the provision of Rule 9(1) of the Rules. This contention finds support from the decision of this Court in K. P. Varghese v. ITO [(1982) 1 SCR 629] relied on by the learned counsel of the appellants. Indeed, it has been observed in that case that the rule of construction by reference to contemporanea exposito is a well established rule for interpreting a statute by reference to the exposition it has received from contemporary authority, though it must give way where the language of the statute is plain and unambiguous. In our opinion, the language of Rule 9(1) admits of only one interpretation and that is that the specification that has to be made by the Collector is of any premises appurtenant to the place of manufacture or production of the excisable goods. The specification is not required to be made and, in our view, cannot be made of the place of manufacture or production of the excisable goods. Apart from that, as observed by Subba Rao, J., upon a review of all the decisions on the point, in an earlier decision of this Court in the Senior Electric Inspector v. Laxmi Narayan Chopra [(1962) 3 SCR 146] , the maxim contemporanea exposito as laid down by Coke was applied to construing ancient statutes but not to interpreting Acts which are comparatively modern. Further, it has been observed that in a modern progressive society it would be unreasonable to confine the intention of a legislature to the meaning attributable to the word used at the time the law was made and, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them. Most respectfully we agree with the said observation of Subba Rao, J. In the circumstances, we do not agree with the direction of the Board of Central Excise & Customs given in the impugned circular that both the place of manufacture and the premises appurtenant thereto must be specified by the Collector under Rule 9(1) of the Rules. Thus, there being no question of specification of the place of manufacture, the contention of the appellants that without such specification there cannot be any deemed removal, fails. 46. In view of the discussion made above, we hold that the amendments to Rules 9 and 49 are quite legal and valid. Further, Section 51 of the Finance Act, 1982 giving retrospective effect to the said amendments is also legal and valid. 47. In the instant case, the appellants are liable to pay excise duty on the yarn which is obtained at an intermediate stage and, thereafter, further processed in an integrated process for weaving the same into fabrics. Although it has been alleged that the yarn is obtained at an intermediate stage of an integrated process of manufacture of fabrics, it appears to be not so. After the yarn is produced it is sized and, thereafter, subjected to a process of weaving the same into fabrics. Be that as it may, as we have held that the commodity which is obtained at an intermediate stage of an integrated process of manufacture of another commodity, is liable to the payment of excise duty, the yarn that is produced by the appellants is also liable to payment of excise duty. In our view, the High Court by the impugned judgment has rightly held that the appellants are not liable to pay any excise duty on the yarn after it is sized for the purpose of weaving the same into fabrics. No distinction can be made between unsized yarn and sized yarn, for the unsized yarn when converted into sized yarn does not lose its character as yarn.
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0
### Explanation:
32. Under Section 11-A(1) the excise authorities cannot recover duties not levied or not paid or short-levied or short-paid or erroneously refunded beyond the period of six months, the proviso to Section 11-A not being applicable in the present case. Thus although Section 51 of the Finance Act, 1982 has given retrospective effect to the amendments of Rules 9 and 49, yet it must be subject to the provision of Section 11-A of the Act. We are unable to accept the contention of the learned Attorney General that as Section 51 has made the amendments retrospective in operation since February 28, 1944, it should be held that it overrides the provision of Section 11-A. If the intention of the legislature was to nullify the effect of Section 11-A, in that case, the legislature would have specifically provided for the same. Section 51 does not contain any non-obstinate clause, nor does it refer to the provision of Section 11-A. In the circumstances, it is difficult to hold that Section 51 overrides the provision of Section 11-AIn our view Section 51 does not, in any manner, affect the provision of Section 11-A of the Act. In the absence of any specific provision overriding Section 11-A, it will be consistent with rules of harmonious construction to hold that Section 51 of the Finance Act, 1982 insofar as it gives retrospective effect to the amendments made to Rules 9 and 49 of the Rules, is subject to the provision of Section 11-AThe legislature is quite competent to enact a deeming provision for the purpose of assuming the existence of a fact which does not really exist. It has been already noticed that the taxing event under Section 3 of the Act is the production or manufacture of goods and not removal. The explanations to Rules 9 and 49 contemplate the collection of duty levied on the production of a commodity at an intermediate stage of an integrated process of manufacture of another commodity by deeming such production or manufacture of the commodity at an intermediate stage to be removal from such place or premises of manufacture. The deeming provisions are quite consistent with Section 3 of the Act. As observed by the Federal Court in Boddu Paidanna case [AIR 1942 FC 33] there is in theory nothing to prevent the central legislature from imposing a duty of excise on a commodity as soon as it comes into existence, no matter what happens to it afterwards, whether it be sold, consumed or destroyed or given away. It is for the convenience of the taxing authority that duty is collected at the time of removal of the commodity. There is, therefore, nothing unreasonable in the deeming provision and, as discussed above, it is quite in conformity with the provision of Section 3 of the Act. The contention that the amendments to Rules 9 and 49 are ultra vires clause (b) of sub-section (4) of Section 4 of the Act, is without substance and is overruled47. In the instant case, the appellants are liable to pay excise duty on the yarn which is obtained at an intermediate stage and, thereafter, further processed in an integrated process for weaving the same into fabrics. Although it has been alleged that the yarn is obtained at an intermediate stage of an integrated process of manufacture of fabrics, it appears to be not so. After the yarn is produced it is sized and, thereafter, subjected to a process of weaving the same into fabrics. Be that as it may, as we have held that the commodity which is obtained at an intermediate stage of an integrated process of manufacture of another commodity, is liable to the payment of excise duty, the yarn that is produced by the appellants is also liable to payment of excise duty. In our view, the High Court by the impugned judgment has rightly held that the appellants are not liable to pay any excise duty on the yarn after it is sized for the purpose of weaving the same into fabrics. No distinction can be made between unsized yarn and sized yarn, for the unsized yarn when converted into sized yarn does not lose its character as yarn
|
Bal Niketan Nursery School Vs. Kesari Prasad | was allowed and that was upheld by the Court of Appeal and it was pointed out that the fact that the original plaintiff had no cause of action would not take away the jurisdiction of the court to order the substitution of another person as plaintiff.In Krishna Bai v. The Collector and Government Agent, Tanjore &Others, (ILR 30 Madras 419) when it was found that a suit for ejectment of a defendant had been brought by the Collector and Government Agent due to a bona fide mistake instead of the beneficiaries of the estate, the court allowed an application for substitution of the correct plaintiff and it was further held that the fact that the Collector had no right to institute the suit would not stand in the way of the court ordering the substitution of the correct plaintiff. 11. In Sitla Bux Singh v. Mahabir Prasad, (AIR 1936 Oudh 275) it was held that where a person prohibited from dealing in actionable claim under Section 136 Transfer of Property Act obtained an assignment of a bond through a bona fide mistake and instituted a suit on the basis of the same, the provisions of Order 1 Rule 10 would apply and the assignor can be substituted in place of the assignee as plaintiff and allowed to continue the suit. 12. In Dinanath Kumar v. Nishi Kanta Kumar and Others, (A.I.R. 1952 Calcutta 102) the court allowed an application under Order 1 Rule 10 CPC and permitted a person who claimed that he was the real owner of the property and the original plaintiff was only a benamidar to be added as plaintiff in order to avoid multiplicity of proceedings and that he was a necessary party to the proceedings. 13. In Laxmikumar Srinivas Das v. Krishnaram Baldev Bank, Lashkar and another, (A.I.R. 1954 M .B. 156) it was held that the words "where a suit has been instituted in the name of the wrong person as plaintiff" must be construed to include those suits which the instituted by persons who had no right to do so and that the fact that the person instituting the suit had no cause of action would not take away the courts jurisdiction to order substitution of another as plaintiff.In Karri Somalu v. Thimmalapalli Venkataswamy and others, (1963 2 A.W.R. 138) it was held that the expression "wrong person" in Order 1 Rule 10 cannot be confined merely to a person wrongly described but would also extend to include a person whose name ought not to have figures as plaintiff for want of right to file the suit and that the object of the Rule is to save suits instituted honestly although in the name of the wrong person as plaintiff and to ensure that honest plaintiffs do not suffer. 14. In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, (A.I.R. 1963 SC 786) it was held that in proceedings for a writ of certiorari it is not only the Tribunal or Authority whose order is sought to be quashed but also the parties in whose favour the said order is issued who are necessary parties and that it is in the discretion of the court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the writ or on application filed at the instance of such proper party. 15. In Murari Mohan Deo v. Secretary to Government of India, [1985] 3 SCC 120 the dismissal of a petition under Article 226 of the Constitution by the Judicial Commissioner was challenged by the appellant therein. The Judicial Commissioner found that the appellant who was a forester in the employment of Tripura Government had been wrongly removed from service by an order of compulsory retirement but nevertheless refused to grant relief to the appellant because he had failed to implead the Government of India which was a necessary party to the proceedings. This Court disapproved the dismissal of the writ petition on the technical ground and observed as follows:- "Respondent 1 is shown to be the Secretary to the Government of India, Ministry of Home Affairs. If there was technical error in the draftsmanship of the petition by a lawyer, a Forester a Class IV low grade servant should not have been made to suffer. An oral request to correct the description of the first respondent would have satisfied the procedural requirement. By raising and accepting such a contention, after a lapse of six years, the law is brought into ridicule. The court could have conveniently read the cause title as Government of India which means Union of India through the Secretary, Ministry of Home Affairs instead of the description set out in the writ petition and this very petition would be competent by any standard. The contention is all the more objectionable for the additional reason that the appointing authority of the appellant, the Chief Commis- sioner of the Government of Tripura as well the Chief Forest Officer who passed the impugned order were impleaded and they represented the administration of Tripura Government as well as the concerned officers. Therefore, not only the petition as drawn up was competent but no bone of contention could be taken about its incompetence." Having regard to this settled position of law the High Court ought not to have sustained the objection raised by the tenants regarding the competency of the appellant to file the suits and quashed the orders of eviction concurrently passed by the Small Cause Court and the Appellate Judge and remitted the suits for fresh consideration with directions to consider the merits of the application under Order 1 Rule 10 CPC but should have itself allowed the petition and added the Registered Society represented by its Secretary Dr. Om Prakash who is already on record, also as a party and disposed of the writ petitions on their merits. 16. | 1[ds]It is not in dispute that the sale deed pertaining to the land and the super-structures has been obtained in the name of the school. Even as a benami owner of the property, the appellant is entitled in law to preserve and protect it and to institute actions in that behalf so long as they do not conflict with the rights of the society. As a corollary to this proposition it follows that the appellant constitutes the landlord of the tenants after the property was purchased in its name and rents from the tenants became to be collect- ed. Once a jural relationship of landlord and tenants was formed between the appellant and the tenants by operation of law the appellants rig ht to initiate actions against the tenants for recovery of arrears of rent or recovery of possession of the leased property cannot be questioned orif we are to close our eyes to the right of the appellant to file suits against the tenants in its capacity as a recognised institution or as the ostensible owner of the property or as the landlord of the tenants and are to judge the status of the appellant solely with reference to Clause (14) of the Constitution of t he Society it may be noticed that Dr. Om Prakash is not only the Manager of the School but also the Secretary of the Registered Society. The suits against the tenants have admittedly been filed by Dr. Om Prakash and even as per Clause (14) of the Constitution of the Society he is competent to file suits on behalf of the Society. The school as well as the Registered Society, being institutions, they can file suits or defend-suits only through a competent office-bearer managing the affairs of t he school or the Registered Society. Inasmuch as the suits have been instituted by Dr. Om Prakash albeit as Manager of the school he has not ceased to be the Secretary of the Society and it can, therefore, will be taken that the suits have not been instituted by an incompetent person who is not empowered under the Constitution of the Society to file suits on behalf of the Society. There is, therefore, no merit in the belated objection raised by the tenants that the suits are not maintainable in view of Clause (14) of the Constitution of the Society. The suits, even if not instituted in the name of the Registered Society, are nevertheless competent actions because they have been filed by Dr. Om Prakash who is competent to file suits on behalf of the Society also for recovering possession of the leased property to the school.The last and final ground which needs setting out in some detail is that even if a rigid view is taken and it is to be held that the suits have not been instituted in the name of the proper person viz. the Society, the High Court should have seen that Order 1 Rule 10-has been expressly provided in the Civil Procedure Code to meet with such situations so that the rendering of justice is not hampered. The Rule provides that if a suit has been instituted in the name of a wrong person as plaintiff or if there is a doubt as to whether the suit has been instituted in the name of the right plaintiff the court may, at any stage of the suit, if it is satisfied that the suit has been instituted due to a bona fide mistake and that is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the court thinks just. The scope and effect of Order 1 Rule 10 has been considered in numerous cases and there is a plethora of decisions laying down the ratio that if the court is satisfied that a bona fide mistake has occurred in the filing of the suit in the name of the wrong person then the court should set right matters in exercise of its powers under Order 1 Rule 10 and promote the cause of justice. The courts have gone so far as to hold that even if the suit had been instituted in the name of a person who had no competence to file the suit, the courts should set right matters by ordering the addition or substitution of the proper plaintiff for ensuring the due dispensation of justice. We may only refer to a few decisions in thisregard to this settled position of law the High Court ought not to have sustained the objection raised by the tenants regarding the competency of the appellant to file the suits and quashed the orders of eviction concurrently passed by the Small Cause Court and the Appellate Judge and remitted the suits for fresh consideration with directions to consider the merits of the application under Order 1 Rule 10but should have itself allowed the petition and added the Registered Society represented by its Secretary Dr. Om Prakash who is already on record, also as a party and disposed of the writ petitions on their merits. | 1 | 4,084 | 902 | ### 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:
was allowed and that was upheld by the Court of Appeal and it was pointed out that the fact that the original plaintiff had no cause of action would not take away the jurisdiction of the court to order the substitution of another person as plaintiff.In Krishna Bai v. The Collector and Government Agent, Tanjore &Others, (ILR 30 Madras 419) when it was found that a suit for ejectment of a defendant had been brought by the Collector and Government Agent due to a bona fide mistake instead of the beneficiaries of the estate, the court allowed an application for substitution of the correct plaintiff and it was further held that the fact that the Collector had no right to institute the suit would not stand in the way of the court ordering the substitution of the correct plaintiff. 11. In Sitla Bux Singh v. Mahabir Prasad, (AIR 1936 Oudh 275) it was held that where a person prohibited from dealing in actionable claim under Section 136 Transfer of Property Act obtained an assignment of a bond through a bona fide mistake and instituted a suit on the basis of the same, the provisions of Order 1 Rule 10 would apply and the assignor can be substituted in place of the assignee as plaintiff and allowed to continue the suit. 12. In Dinanath Kumar v. Nishi Kanta Kumar and Others, (A.I.R. 1952 Calcutta 102) the court allowed an application under Order 1 Rule 10 CPC and permitted a person who claimed that he was the real owner of the property and the original plaintiff was only a benamidar to be added as plaintiff in order to avoid multiplicity of proceedings and that he was a necessary party to the proceedings. 13. In Laxmikumar Srinivas Das v. Krishnaram Baldev Bank, Lashkar and another, (A.I.R. 1954 M .B. 156) it was held that the words "where a suit has been instituted in the name of the wrong person as plaintiff" must be construed to include those suits which the instituted by persons who had no right to do so and that the fact that the person instituting the suit had no cause of action would not take away the courts jurisdiction to order substitution of another as plaintiff.In Karri Somalu v. Thimmalapalli Venkataswamy and others, (1963 2 A.W.R. 138) it was held that the expression "wrong person" in Order 1 Rule 10 cannot be confined merely to a person wrongly described but would also extend to include a person whose name ought not to have figures as plaintiff for want of right to file the suit and that the object of the Rule is to save suits instituted honestly although in the name of the wrong person as plaintiff and to ensure that honest plaintiffs do not suffer. 14. In Udit Narain Singh Malpaharia v. Additional Member Board of Revenue, Bihar and another, (A.I.R. 1963 SC 786) it was held that in proceedings for a writ of certiorari it is not only the Tribunal or Authority whose order is sought to be quashed but also the parties in whose favour the said order is issued who are necessary parties and that it is in the discretion of the court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the writ or on application filed at the instance of such proper party. 15. In Murari Mohan Deo v. Secretary to Government of India, [1985] 3 SCC 120 the dismissal of a petition under Article 226 of the Constitution by the Judicial Commissioner was challenged by the appellant therein. The Judicial Commissioner found that the appellant who was a forester in the employment of Tripura Government had been wrongly removed from service by an order of compulsory retirement but nevertheless refused to grant relief to the appellant because he had failed to implead the Government of India which was a necessary party to the proceedings. This Court disapproved the dismissal of the writ petition on the technical ground and observed as follows:- "Respondent 1 is shown to be the Secretary to the Government of India, Ministry of Home Affairs. If there was technical error in the draftsmanship of the petition by a lawyer, a Forester a Class IV low grade servant should not have been made to suffer. An oral request to correct the description of the first respondent would have satisfied the procedural requirement. By raising and accepting such a contention, after a lapse of six years, the law is brought into ridicule. The court could have conveniently read the cause title as Government of India which means Union of India through the Secretary, Ministry of Home Affairs instead of the description set out in the writ petition and this very petition would be competent by any standard. The contention is all the more objectionable for the additional reason that the appointing authority of the appellant, the Chief Commis- sioner of the Government of Tripura as well the Chief Forest Officer who passed the impugned order were impleaded and they represented the administration of Tripura Government as well as the concerned officers. Therefore, not only the petition as drawn up was competent but no bone of contention could be taken about its incompetence." Having regard to this settled position of law the High Court ought not to have sustained the objection raised by the tenants regarding the competency of the appellant to file the suits and quashed the orders of eviction concurrently passed by the Small Cause Court and the Appellate Judge and remitted the suits for fresh consideration with directions to consider the merits of the application under Order 1 Rule 10 CPC but should have itself allowed the petition and added the Registered Society represented by its Secretary Dr. Om Prakash who is already on record, also as a party and disposed of the writ petitions on their merits. 16.
### Response:
1
### Explanation:
It is not in dispute that the sale deed pertaining to the land and the super-structures has been obtained in the name of the school. Even as a benami owner of the property, the appellant is entitled in law to preserve and protect it and to institute actions in that behalf so long as they do not conflict with the rights of the society. As a corollary to this proposition it follows that the appellant constitutes the landlord of the tenants after the property was purchased in its name and rents from the tenants became to be collect- ed. Once a jural relationship of landlord and tenants was formed between the appellant and the tenants by operation of law the appellants rig ht to initiate actions against the tenants for recovery of arrears of rent or recovery of possession of the leased property cannot be questioned orif we are to close our eyes to the right of the appellant to file suits against the tenants in its capacity as a recognised institution or as the ostensible owner of the property or as the landlord of the tenants and are to judge the status of the appellant solely with reference to Clause (14) of the Constitution of t he Society it may be noticed that Dr. Om Prakash is not only the Manager of the School but also the Secretary of the Registered Society. The suits against the tenants have admittedly been filed by Dr. Om Prakash and even as per Clause (14) of the Constitution of the Society he is competent to file suits on behalf of the Society. The school as well as the Registered Society, being institutions, they can file suits or defend-suits only through a competent office-bearer managing the affairs of t he school or the Registered Society. Inasmuch as the suits have been instituted by Dr. Om Prakash albeit as Manager of the school he has not ceased to be the Secretary of the Society and it can, therefore, will be taken that the suits have not been instituted by an incompetent person who is not empowered under the Constitution of the Society to file suits on behalf of the Society. There is, therefore, no merit in the belated objection raised by the tenants that the suits are not maintainable in view of Clause (14) of the Constitution of the Society. The suits, even if not instituted in the name of the Registered Society, are nevertheless competent actions because they have been filed by Dr. Om Prakash who is competent to file suits on behalf of the Society also for recovering possession of the leased property to the school.The last and final ground which needs setting out in some detail is that even if a rigid view is taken and it is to be held that the suits have not been instituted in the name of the proper person viz. the Society, the High Court should have seen that Order 1 Rule 10-has been expressly provided in the Civil Procedure Code to meet with such situations so that the rendering of justice is not hampered. The Rule provides that if a suit has been instituted in the name of a wrong person as plaintiff or if there is a doubt as to whether the suit has been instituted in the name of the right plaintiff the court may, at any stage of the suit, if it is satisfied that the suit has been instituted due to a bona fide mistake and that is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the court thinks just. The scope and effect of Order 1 Rule 10 has been considered in numerous cases and there is a plethora of decisions laying down the ratio that if the court is satisfied that a bona fide mistake has occurred in the filing of the suit in the name of the wrong person then the court should set right matters in exercise of its powers under Order 1 Rule 10 and promote the cause of justice. The courts have gone so far as to hold that even if the suit had been instituted in the name of a person who had no competence to file the suit, the courts should set right matters by ordering the addition or substitution of the proper plaintiff for ensuring the due dispensation of justice. We may only refer to a few decisions in thisregard to this settled position of law the High Court ought not to have sustained the objection raised by the tenants regarding the competency of the appellant to file the suits and quashed the orders of eviction concurrently passed by the Small Cause Court and the Appellate Judge and remitted the suits for fresh consideration with directions to consider the merits of the application under Order 1 Rule 10but should have itself allowed the petition and added the Registered Society represented by its Secretary Dr. Om Prakash who is already on record, also as a party and disposed of the writ petitions on their merits.
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Raj Kumar @ Raju Vs. State(Nct Of Delhi) | the High Court on the ground that the aforesaid discrepancy is on account of wrong recapitulation and confusion over the specific dates. 8. P.W. 15 – Raj Kumar, a TSR driver, also deposed that he had occasion to take the three persons including appellant Raj Kumar in his TSR at about 11.00 a.m. on 12th September, 1991 and in the course of their conversation he had overheard them discussing as to whether they should have killed her or not. P.W. was disbelieved by the High Court on the ground that the conversation attributed by him to the accused is opposed to normal human behavior and conduct. 9. This is the sum total of the evidence on record. From the above, it transpires that there are two material circumstances which have been proved by the prosecution. Firstly, that in the night prior to the incident i.e. on 11th September, 1991 the accused were present in the house; and secondly that on 16th September, 1991 from the possession of the accused persons recovery of gold ornaments was made which belonged to the deceased. Such possession has not been explained by the accused. Even if the court is to accept the evidence of P.W.12 that in the morning of the day of the incident the witness had seen the accused in the neighbourhood in a perplexed state, notwithstanding the contradictions and inconsistencies in the said evidence as already noticed, at the highest, another circumstance could be added to the above two, namely, that the accused persons were seen in the neighbourhood in the morning of the incident. The question that confronts the court is whether on the basis of the aforesaid circumstances the case of the prosecution can be taken to have been proved beyond all reasonable doubts. 10. Learned counsel for the appellant would contend that the aforesaid circumstances do not conclusively point to the involvement of the accused appellant in the crime. The chain leading to the sole conclusion that it is the accused persons and nobody else who had committed the crime is not established by the three circumstances set forth above, even if all of such circumstances are assumed to be proved against the accused. Reliance has also been placed on the decision of this Court in the case of Sanwat Khan and Anr. vs. State of Rajasthan (AIR 1956 SC 54 ), wherein this Court had taken the view that recovery of ornaments of the deceased from the accused or production of the same by the accused in the course of investigation, howsoever suspicious, cannot be conclusive of the question of the accused having committed the offence. As per Illustration (a) to Section 114 of the Evidence Act, 1872 though recovery of the ornaments can lead to presumption that the accused had committed robbery or received stolen property, unless there are circumstances to show that the theft/robbery and the murder took place in the same transaction, the accused would not be liable for the offence under Section 302 IPC. 11. The facts in Sanwant Khan (supra) bear a striking resemblance to the facts that confront us in the present appeal. If the evidence of P.W.12 is to be discarded on the ground that such evidence is vague, (there is no mention of the date on which P.W.12 had seen the accused person in the neighbourhood and also as the said testimony runs counter to the prosecution case about arrest of the accused on 16.09.1991) the last seen theory built up on the evidence of P.W.5 and P.W.7 leaves a significant margin of time during which the crime could have been committed by somebody other than the accused. The said fact must go to the benefit of the accused. In this regard, it may be recollected that P.W.5 and P.W.7 have deposed that they had last seen the accused person in the early morning of the date of the occurrence i.e. 12.09.1991 and that they were going away to some other place. Even if the evidence of P.W.12 is to be accepted, all it can be said is that the evidence of the said witness read with the evidence of P.W.5 and P.W.7 disclose that the accused persons were seen in the vicinity of the neighbourhood of the crime little before the same was committed. By itself, the said circumstance cannot lead to any conclusion consistent with the guilt of the accused. 12. The above circumstance, if coupled with the recovery of the ornaments of the deceased from the possession of the accused, at best, create a highly suspicious situation; but beyond a strong suspicion nothing else would follow in the absence of any other circumstance(s) which could suggest the involvement of the accused in the offence/offences alleged. Even with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murder occurred at the same time i.e. in the course of the same transaction. No such evidence is forthcoming. 13. In view of what has been found above, we do not see as to how the charge against the accused/appellant under Section 302 IPC can be held to be proved. The learned trial court as well as the High Court, therefore, seems to be erred in holding the accused guilty for the said offence. However, on the basis of the presumption permissible under Illustration (a) of Section 114 of the Evidence Act, it has to be held that the conviction of the accused appellant under Section 392 IPC is well founded. Consequently, we hold that the prosecution has failed to bring home the charge under Section 302 IPC against the accused and he is acquitted of the said offence. The conviction under Section 392 IPC is upheld. As the accused appellant, who is presently in custody, had already served the sentence awarded to him under Section 392 IPC, we direct that he be set at liberty forthwith. | 1[ds]11. The facts in Sanwant Khan (supra) bear a striking resemblance to the facts that confront us in the present appeal. If the evidence of P.W.12 is to be discarded on the ground that such evidence is vague, (there is no mention of the date on which P.W.12 had seen the accused person in the neighbourhood and also as the said testimony runs counter to the prosecution case about arrest of the accused on 16.09.1991) the last seen theory built up on the evidence of P.W.5 and P.W.7 leaves a significant margin of time during which the crime could have been committed by somebody other than the accused. The said fact must go to the benefit of the accused. In this regard, it may be recollected that P.W.5 and P.W.7 have deposed that they had last seen the accused person in the early morning of the date of the occurrence i.e. 12.09.1991 and that they were going away to some other place. Even if the evidence of P.W.12 is to be accepted, all it can be said is that the evidence of the said witness read with the evidence of P.W.5 and P.W.7 disclose that the accused persons were seen in the vicinity of the neighbourhood of the crime little before the same was committed. By itself, the said circumstance cannot lead to any conclusion consistent with the guilt of the accused12. The above circumstance, if coupled with the recovery of the ornaments of the deceased from the possession of the accused, at best, create a highly suspicious situation; but beyond a strong suspicion nothing else would follow in the absence of any other circumstance(s) which could suggest the involvement of the accused in the offence/offences alleged. Even with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murder occurred at the same time i.e. in the course of the same transaction. No such evidence is forthcoming13. In view of what has been found above, we do not see as to how the charge against the accused/appellant under Section 302 IPC can be held to be proved. The learned trial court as well as the High Court, therefore, seems to be erred in holding the accused guilty for the said offence. However, on the basis of the presumption permissible under Illustration (a) of Section 114 of the Evidence Act, it has to be held that the conviction of the accused appellant under Section 392 IPC is well founded. Consequently, we hold that the prosecution has failed to bring home the charge under Section 302 IPC against the accused and he is acquitted of the said offence. The conviction under Section 392 IPC is upheld. As the accused appellant, who is presently in custody, had already served the sentence awarded to him under Section 392 IPC, we direct that he be set at liberty forthwith. | 1 | 1,972 | 548 | ### 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 High Court on the ground that the aforesaid discrepancy is on account of wrong recapitulation and confusion over the specific dates. 8. P.W. 15 – Raj Kumar, a TSR driver, also deposed that he had occasion to take the three persons including appellant Raj Kumar in his TSR at about 11.00 a.m. on 12th September, 1991 and in the course of their conversation he had overheard them discussing as to whether they should have killed her or not. P.W. was disbelieved by the High Court on the ground that the conversation attributed by him to the accused is opposed to normal human behavior and conduct. 9. This is the sum total of the evidence on record. From the above, it transpires that there are two material circumstances which have been proved by the prosecution. Firstly, that in the night prior to the incident i.e. on 11th September, 1991 the accused were present in the house; and secondly that on 16th September, 1991 from the possession of the accused persons recovery of gold ornaments was made which belonged to the deceased. Such possession has not been explained by the accused. Even if the court is to accept the evidence of P.W.12 that in the morning of the day of the incident the witness had seen the accused in the neighbourhood in a perplexed state, notwithstanding the contradictions and inconsistencies in the said evidence as already noticed, at the highest, another circumstance could be added to the above two, namely, that the accused persons were seen in the neighbourhood in the morning of the incident. The question that confronts the court is whether on the basis of the aforesaid circumstances the case of the prosecution can be taken to have been proved beyond all reasonable doubts. 10. Learned counsel for the appellant would contend that the aforesaid circumstances do not conclusively point to the involvement of the accused appellant in the crime. The chain leading to the sole conclusion that it is the accused persons and nobody else who had committed the crime is not established by the three circumstances set forth above, even if all of such circumstances are assumed to be proved against the accused. Reliance has also been placed on the decision of this Court in the case of Sanwat Khan and Anr. vs. State of Rajasthan (AIR 1956 SC 54 ), wherein this Court had taken the view that recovery of ornaments of the deceased from the accused or production of the same by the accused in the course of investigation, howsoever suspicious, cannot be conclusive of the question of the accused having committed the offence. As per Illustration (a) to Section 114 of the Evidence Act, 1872 though recovery of the ornaments can lead to presumption that the accused had committed robbery or received stolen property, unless there are circumstances to show that the theft/robbery and the murder took place in the same transaction, the accused would not be liable for the offence under Section 302 IPC. 11. The facts in Sanwant Khan (supra) bear a striking resemblance to the facts that confront us in the present appeal. If the evidence of P.W.12 is to be discarded on the ground that such evidence is vague, (there is no mention of the date on which P.W.12 had seen the accused person in the neighbourhood and also as the said testimony runs counter to the prosecution case about arrest of the accused on 16.09.1991) the last seen theory built up on the evidence of P.W.5 and P.W.7 leaves a significant margin of time during which the crime could have been committed by somebody other than the accused. The said fact must go to the benefit of the accused. In this regard, it may be recollected that P.W.5 and P.W.7 have deposed that they had last seen the accused person in the early morning of the date of the occurrence i.e. 12.09.1991 and that they were going away to some other place. Even if the evidence of P.W.12 is to be accepted, all it can be said is that the evidence of the said witness read with the evidence of P.W.5 and P.W.7 disclose that the accused persons were seen in the vicinity of the neighbourhood of the crime little before the same was committed. By itself, the said circumstance cannot lead to any conclusion consistent with the guilt of the accused. 12. The above circumstance, if coupled with the recovery of the ornaments of the deceased from the possession of the accused, at best, create a highly suspicious situation; but beyond a strong suspicion nothing else would follow in the absence of any other circumstance(s) which could suggest the involvement of the accused in the offence/offences alleged. Even with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murder occurred at the same time i.e. in the course of the same transaction. No such evidence is forthcoming. 13. In view of what has been found above, we do not see as to how the charge against the accused/appellant under Section 302 IPC can be held to be proved. The learned trial court as well as the High Court, therefore, seems to be erred in holding the accused guilty for the said offence. However, on the basis of the presumption permissible under Illustration (a) of Section 114 of the Evidence Act, it has to be held that the conviction of the accused appellant under Section 392 IPC is well founded. Consequently, we hold that the prosecution has failed to bring home the charge under Section 302 IPC against the accused and he is acquitted of the said offence. The conviction under Section 392 IPC is upheld. As the accused appellant, who is presently in custody, had already served the sentence awarded to him under Section 392 IPC, we direct that he be set at liberty forthwith.
### Response:
1
### Explanation:
11. The facts in Sanwant Khan (supra) bear a striking resemblance to the facts that confront us in the present appeal. If the evidence of P.W.12 is to be discarded on the ground that such evidence is vague, (there is no mention of the date on which P.W.12 had seen the accused person in the neighbourhood and also as the said testimony runs counter to the prosecution case about arrest of the accused on 16.09.1991) the last seen theory built up on the evidence of P.W.5 and P.W.7 leaves a significant margin of time during which the crime could have been committed by somebody other than the accused. The said fact must go to the benefit of the accused. In this regard, it may be recollected that P.W.5 and P.W.7 have deposed that they had last seen the accused person in the early morning of the date of the occurrence i.e. 12.09.1991 and that they were going away to some other place. Even if the evidence of P.W.12 is to be accepted, all it can be said is that the evidence of the said witness read with the evidence of P.W.5 and P.W.7 disclose that the accused persons were seen in the vicinity of the neighbourhood of the crime little before the same was committed. By itself, the said circumstance cannot lead to any conclusion consistent with the guilt of the accused12. The above circumstance, if coupled with the recovery of the ornaments of the deceased from the possession of the accused, at best, create a highly suspicious situation; but beyond a strong suspicion nothing else would follow in the absence of any other circumstance(s) which could suggest the involvement of the accused in the offence/offences alleged. Even with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murder occurred at the same time i.e. in the course of the same transaction. No such evidence is forthcoming13. In view of what has been found above, we do not see as to how the charge against the accused/appellant under Section 302 IPC can be held to be proved. The learned trial court as well as the High Court, therefore, seems to be erred in holding the accused guilty for the said offence. However, on the basis of the presumption permissible under Illustration (a) of Section 114 of the Evidence Act, it has to be held that the conviction of the accused appellant under Section 392 IPC is well founded. Consequently, we hold that the prosecution has failed to bring home the charge under Section 302 IPC against the accused and he is acquitted of the said offence. The conviction under Section 392 IPC is upheld. As the accused appellant, who is presently in custody, had already served the sentence awarded to him under Section 392 IPC, we direct that he be set at liberty forthwith.
|
Union of India & Others Vs. N.C. Murali & Others | learned counsel for the appellants. Paragraph 5 of the judgment states as follows :"There is no statutory provision that the promotion to the post of Scientist B should take effect from July 1 of the year in which the promotion is granted. It may be that, rightly or wrongly, for some reason or other, the promotions were granted from July 1, but we do not find any justifying reason for the direction given by the Tribunal that the promotions of the respondents to the posts of Scientists B should be with effect from the date of the creation of these promotional posts. We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post. After a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. In the circumstances, it is difficult to sustain the judgment of the Tribunal." 11. With regard to the seniority the judgment which has been relied on is Ashok Kumar Srivastava reported in (2014) 14 SCC 720 (supra) in which this Court in paragraphs 24 and 25 laid down that the retrospective seniority cannot be conferred, which read as follows :"24. The learned Senior Counsel for the appellants has drawn inspiration from the recent authority in Pawan Pratap Singh v. Reevan Singh (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481 where the Court after referring to earlier authorities in the field has culled out certain principles out of which the following being the relevant are reproduced below: (SCC pp.281-82, para 45) "45.(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. xxx xxx xxx (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime." 25. In view of the aforesaid enunciation of law, the irresistible conclusion is that the claim of the first respondent for conferment of retrospective seniority is absolutely untenable and the High Court has fallen into error by granting him the said benefit and accordingly the impugned order deserves to be lancinated and we so do." 12. Learned counsel appearing for the appellants also placed reliance on the judgment of this Court in the case of Nirmal Chandra Sinha v. Union of India and others and connected matter reported in (2008) 14 SCC 29. Paragraph 7 of the judgment reads as follows :"7. It has been held in a series of decisions of this Court that a promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post vide Union of India v. K.K. Vadera 1989 supp.(2) SCC 625 : 1990 SCC (L&S) 127, State of Uttaranachal v. Dinesh Kumar Sharma (2007) 1 SCC 683 : (2007) 1 SCC (L&S) 594, K.V. Subba Rao v. Govt. of A.P. (1988) 2 SCC 201 : 1988 SCC (L&S)506:(1988) 7 ATC 94, Sanjay K. Sinha-II v. State of Bihar (2004) 10 SCC 734 : 2005 SCC (L&S) 169 etc." 13. In view of the law laid down in the above-mentioned cases, it is clear that unless there is specific rule entitling the applicants to receive promotion from the date of occurrence of vacancy, the right of promotion does not crystallize on the date of occurrence of vacancy and the promotion is to extended on the date when it is actually effected. 14. However, there may be cases when the promotions have to be retrospectively made with or without financial benefits. A well known example of giving retrospective promotion is cases of sealed cover procedure when the recommendations are kept in sealed cover procedure awaiting the outcome of disciplinary proceedings. There may be other circumstances in which a person is entitled to be given the benefit of retrospective promotion including a case where statutory rules mandates effecting promotion by particular time or on occurrence of vacancy. The present is a case where admittedly DPC was not held from 1984 till October, 2001, although various reasons have been given by the appellants for not holding DPC, it is not necessary for us for the purpose of this case to enter into such reasons to find out as to whether there is any justification for not holding the DPC for the relevant years. Suffice it to say the promotions having been effected after the DPC was held and those who were entitled have been given promotions, the litigation initiated by the respondents before the Tribunal should have been closed. The directions of the Tribunal to give retrospective pro forma promotion and retrospective seniority w.e.f the date of vacancy when they were eligible, ought not to have been issued. | 0[ds]9. From the materials brought on the record it is clear that there are no statutory rules governing the promotion at the relevant time. It is although desirable that the DPC should be convened at regular intervals to draw panels which could be utilized for making promotions against the vacancies. But neither any rules nor any circular have been referred to by which it can be held that the promotions whenever to be effected should be effected w.e.f. the date of the vacancy. The Circular dated 10.4.1989, paragraphs 3.1 and 6.4.1 as reproduced above also do not indicate that in case DPC is not held by any reason in a year, promotions on the basis of subsequent DPC has to be retrospectively13. In view of the law laid down in thed cases, it is clear that unless there is specific rule entitling the applicants to receive promotion from the date of occurrence of vacancy, the right of promotion does not crystallize on the date of occurrence of vacancy and the promotion is to extended on the date when it is actually effected14. However, there may be cases when the promotions have to be retrospectively made with or without financial benefits. A well known example of giving retrospective promotion is cases of sealed cover procedure when the recommendations are kept in sealed cover procedure awaiting the outcome of disciplinary proceedings. There may be other circumstances in which a person is entitled to be given the benefit of retrospective promotion including a case where statutory rules mandates effecting promotion by particular time or on occurrence of vacancy. The present is a case where admittedly DPC was not held from 1984 till October, 2001, although various reasons have been given by the appellants for not holding DPC, it is not necessary for us for the purpose of this case to enter into such reasons to find out as to whether there is any justification for not holding the DPC for the relevant years. Suffice it to say the promotions having been effected after the DPC was held and those who were entitled have been given promotions, the litigation initiated by the respondents before the Tribunal should have been closed. The directions of the Tribunal to give retrospective pro forma promotion and retrospective seniority w.e.f the date of vacancy when they were eligible, ought not to have been issued. | 0 | 2,986 | 422 | ### 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:
learned counsel for the appellants. Paragraph 5 of the judgment states as follows :"There is no statutory provision that the promotion to the post of Scientist B should take effect from July 1 of the year in which the promotion is granted. It may be that, rightly or wrongly, for some reason or other, the promotions were granted from July 1, but we do not find any justifying reason for the direction given by the Tribunal that the promotions of the respondents to the posts of Scientists B should be with effect from the date of the creation of these promotional posts. We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post. After a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. In the circumstances, it is difficult to sustain the judgment of the Tribunal." 11. With regard to the seniority the judgment which has been relied on is Ashok Kumar Srivastava reported in (2014) 14 SCC 720 (supra) in which this Court in paragraphs 24 and 25 laid down that the retrospective seniority cannot be conferred, which read as follows :"24. The learned Senior Counsel for the appellants has drawn inspiration from the recent authority in Pawan Pratap Singh v. Reevan Singh (2011) 3 SCC 267 : (2011) 1 SCC (L&S) 481 where the Court after referring to earlier authorities in the field has culled out certain principles out of which the following being the relevant are reproduced below: (SCC pp.281-82, para 45) "45.(ii) Inter se seniority in a particular service has to be determined as per the service rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. xxx xxx xxx (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant service rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime." 25. In view of the aforesaid enunciation of law, the irresistible conclusion is that the claim of the first respondent for conferment of retrospective seniority is absolutely untenable and the High Court has fallen into error by granting him the said benefit and accordingly the impugned order deserves to be lancinated and we so do." 12. Learned counsel appearing for the appellants also placed reliance on the judgment of this Court in the case of Nirmal Chandra Sinha v. Union of India and others and connected matter reported in (2008) 14 SCC 29. Paragraph 7 of the judgment reads as follows :"7. It has been held in a series of decisions of this Court that a promotion takes effect from the date of being granted and not from the date of occurrence of vacancy or creation of the post vide Union of India v. K.K. Vadera 1989 supp.(2) SCC 625 : 1990 SCC (L&S) 127, State of Uttaranachal v. Dinesh Kumar Sharma (2007) 1 SCC 683 : (2007) 1 SCC (L&S) 594, K.V. Subba Rao v. Govt. of A.P. (1988) 2 SCC 201 : 1988 SCC (L&S)506:(1988) 7 ATC 94, Sanjay K. Sinha-II v. State of Bihar (2004) 10 SCC 734 : 2005 SCC (L&S) 169 etc." 13. In view of the law laid down in the above-mentioned cases, it is clear that unless there is specific rule entitling the applicants to receive promotion from the date of occurrence of vacancy, the right of promotion does not crystallize on the date of occurrence of vacancy and the promotion is to extended on the date when it is actually effected. 14. However, there may be cases when the promotions have to be retrospectively made with or without financial benefits. A well known example of giving retrospective promotion is cases of sealed cover procedure when the recommendations are kept in sealed cover procedure awaiting the outcome of disciplinary proceedings. There may be other circumstances in which a person is entitled to be given the benefit of retrospective promotion including a case where statutory rules mandates effecting promotion by particular time or on occurrence of vacancy. The present is a case where admittedly DPC was not held from 1984 till October, 2001, although various reasons have been given by the appellants for not holding DPC, it is not necessary for us for the purpose of this case to enter into such reasons to find out as to whether there is any justification for not holding the DPC for the relevant years. Suffice it to say the promotions having been effected after the DPC was held and those who were entitled have been given promotions, the litigation initiated by the respondents before the Tribunal should have been closed. The directions of the Tribunal to give retrospective pro forma promotion and retrospective seniority w.e.f the date of vacancy when they were eligible, ought not to have been issued.
### Response:
0
### Explanation:
9. From the materials brought on the record it is clear that there are no statutory rules governing the promotion at the relevant time. It is although desirable that the DPC should be convened at regular intervals to draw panels which could be utilized for making promotions against the vacancies. But neither any rules nor any circular have been referred to by which it can be held that the promotions whenever to be effected should be effected w.e.f. the date of the vacancy. The Circular dated 10.4.1989, paragraphs 3.1 and 6.4.1 as reproduced above also do not indicate that in case DPC is not held by any reason in a year, promotions on the basis of subsequent DPC has to be retrospectively13. In view of the law laid down in thed cases, it is clear that unless there is specific rule entitling the applicants to receive promotion from the date of occurrence of vacancy, the right of promotion does not crystallize on the date of occurrence of vacancy and the promotion is to extended on the date when it is actually effected14. However, there may be cases when the promotions have to be retrospectively made with or without financial benefits. A well known example of giving retrospective promotion is cases of sealed cover procedure when the recommendations are kept in sealed cover procedure awaiting the outcome of disciplinary proceedings. There may be other circumstances in which a person is entitled to be given the benefit of retrospective promotion including a case where statutory rules mandates effecting promotion by particular time or on occurrence of vacancy. The present is a case where admittedly DPC was not held from 1984 till October, 2001, although various reasons have been given by the appellants for not holding DPC, it is not necessary for us for the purpose of this case to enter into such reasons to find out as to whether there is any justification for not holding the DPC for the relevant years. Suffice it to say the promotions having been effected after the DPC was held and those who were entitled have been given promotions, the litigation initiated by the respondents before the Tribunal should have been closed. The directions of the Tribunal to give retrospective pro forma promotion and retrospective seniority w.e.f the date of vacancy when they were eligible, ought not to have been issued.
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M. Gurumoorthy Vs. Accountant General Assam & Nagaland & Ors | Government has to approve of it.10. Dutta J. in his Judgment considered that there was no dispute on the following position. There were originally 7 sanctioned posts of stenographers in the High Court. The Court sent a proposal that the stenographers Service should be reorganised. This included the post of one selection grade stenographer. There was also a separate proposal to make the post of Secretary to Chief Justice permanent with a pay scale similar to that of a selection grade stenographer. The government accepted the proposal with regard to the reorganisation of the Stenographers Service. The pay scale of the selection grade stenographer was first fixed at Rs. 400-600 with effect from May 21, 1955. It was revised to Rs. 450-600 from October 1, 1956 but it was afterwards fixed at Rs. 600-900 with effect from September 1, 1959. The Government had made it clear that the person holding the post of selection grade stenographer should also work as Secretary to the Chief Justice and that the temporary post of the Secretary to the Chief Justice Should cease to exist. Dutta J. repelled the contention of the counsel for the State that no post of Secretary-cum-selection grade stenographer had been created by the Government or that such a post could not be created except by means of framing rules. It was pointed out by the learned judge that a number of posts had been created with different pay scales by the Government or the High Court and several of these posts and pay scales were never integrated in any rule. The Government never took up the position that all those posts did not legally. exist. When a post was created with the approval of the government in the High Court and the pay scale was sanctioned for it, its inclusion in the rules was a mere formality. It was also held by him that the conditions laid down while sanctioning the post of selection grade stenographer in the letter of the Government dated August 6, 1958 that the procedure of recruitment should be on the same or similar lines as laid down in the Government Resolution dated October 22, 1955 came into conflict with the powers of the, Chief Justice under Art. 229 and it was so accepted by the Government itself in the letter dated April 27, 1959.His view finally was that the government had the authority to sanction the post. But it could not interfere with the choice of the incumbent which undoubtedly was to be of the Chief Justice under Article 229 of the Constitution. We are inclined to concur with the reasoning and conclusion of Dutta J.11. It is unnecessary to refer to the decision of Nayudu J. who acceded to certain contentions raised on behalf of the state which were wholly untenable and have not been sought to be supported before us. By way of illustration, one of the arguments which was accepted was that the letter Annexure-R dated April 27, 1959 from the secretary to Government of Assam. Law Department, to the Registrar and which he was obviously writing on behalf of the Government, which meant, the Governor, did not satisfy the requirements of Article 166 of the Constitution. In view of the tenor and contents of that letter such a contention could never have been sustained.12. Goswami J., did not fall into the same errors as Nayudu J. and his comprehension of the true legal position was substantially correct. But he erred in coming to the conclusion that the Government had not accorded sanction for the post to which the appellant was appointed by the orders of Sinha C. J. dated May 7, 1959. His reasoning was that there were seven permanent stenographers holding seven posts. By the appointment of the appellant as selection grade stenographer-cum-Secretary the strength was raised to eight for which no sanction of the Government existed. Goswami J. further took into consideration the fact that the Government had made it clear that the selection grade post should be filled by promotion strictly on merits from among the stenographers grade I.13. It may be stated at once that any restrictions imposed by the Government of the above nature while communicating the sanction could not bind the Chief Justice in view of Article 229 of the Constitution. This was recoginsed by the Government itself in its letter dated April 27, 1959. Even as regards the strength of the cadre of stenographers which was seven there was evidence that at the relevant time all the posts were not filled up (see the affidavit filed by the appellant in the High Court dated August 7, 1967 together with annexure I). At any rate the Government had itself taken up the position in para 6 (vii) of the affidavit dated December 12, 1965 that as a result of the order of the Chief Justice of May 7, 1959 one post of grade I stenographer stood automatically retrenched. If that be the correct position there was no additional financial burden involved in the appointment of the appellant as Secretary cum-selection grade stenographer and it is difficult to understand how the government could interfere in the choice of the who was appointed or insist on his having certain type of qualifications, as seems to have been emphasized in some of the letters. It may also be pointed out that the post of selection grade stenographer-cum- Secretary to Chief Justice had been sanctioned vide the letter dated April 27, 1959. The appellant was appointed to that post by the Chief Justice who was competent to do so under Article 299. If there were any technical difficulties they could be easily sorted out by mutual co-operation which is essential between the Chief Justice of the High Court and the State Government in such matters. But instead of doing so the unusual step of the Accountant General withholding the pay slips under the directions of the government was taken for which there was no legal justification or warrant. | 1[ds]13. It may be stated at once that any restrictions imposed by the Government of the above nature while communicating the sanction could not bind the Chief Justice in view of Article 229 of the Constitution. This was recoginsed by the Government itself in its letter dated April 27, 1959. Even as regards the strength of the cadre of stenographers which was seven there was evidence that at the relevant time all the posts were not filled up (see the affidavit filed by the appellant in the High Court dated August 7, 1967 together with annexure I). At any rate the Government had itself taken up the position in para 6 (vii) of the affidavit dated December 12, 1965 that as a result of the order of the Chief Justice of May 7, 1959 one post of grade I stenographer stood automatically retrenched. If that be the correct position there was no additional financial burden involved in the appointment of the appellant as Secretary cum-selection grade stenographer and it is difficult to understand how the government could interfere in the choice of the who was appointed or insist on his having certain type of qualifications, as seems to have been emphasized in some of the letters. It may also be pointed out that the post of selection grade stenographer-cum- Secretary to Chief Justice had been sanctioned vide the letter dated April 27, 1959. The appellant was appointed to that post by the Chief Justice who was competent to do so under Article 299. If there were any technical difficulties they could be easily sorted out by mutual co-operation which is essential between the Chief Justice of the High Court and the State Government in such matters. But instead of doing so the unusual step of the Accountant General withholding the pay slips under the directions of the government was taken for which there was no legal justification or warrant. | 1 | 5,171 | 343 | ### 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:
Government has to approve of it.10. Dutta J. in his Judgment considered that there was no dispute on the following position. There were originally 7 sanctioned posts of stenographers in the High Court. The Court sent a proposal that the stenographers Service should be reorganised. This included the post of one selection grade stenographer. There was also a separate proposal to make the post of Secretary to Chief Justice permanent with a pay scale similar to that of a selection grade stenographer. The government accepted the proposal with regard to the reorganisation of the Stenographers Service. The pay scale of the selection grade stenographer was first fixed at Rs. 400-600 with effect from May 21, 1955. It was revised to Rs. 450-600 from October 1, 1956 but it was afterwards fixed at Rs. 600-900 with effect from September 1, 1959. The Government had made it clear that the person holding the post of selection grade stenographer should also work as Secretary to the Chief Justice and that the temporary post of the Secretary to the Chief Justice Should cease to exist. Dutta J. repelled the contention of the counsel for the State that no post of Secretary-cum-selection grade stenographer had been created by the Government or that such a post could not be created except by means of framing rules. It was pointed out by the learned judge that a number of posts had been created with different pay scales by the Government or the High Court and several of these posts and pay scales were never integrated in any rule. The Government never took up the position that all those posts did not legally. exist. When a post was created with the approval of the government in the High Court and the pay scale was sanctioned for it, its inclusion in the rules was a mere formality. It was also held by him that the conditions laid down while sanctioning the post of selection grade stenographer in the letter of the Government dated August 6, 1958 that the procedure of recruitment should be on the same or similar lines as laid down in the Government Resolution dated October 22, 1955 came into conflict with the powers of the, Chief Justice under Art. 229 and it was so accepted by the Government itself in the letter dated April 27, 1959.His view finally was that the government had the authority to sanction the post. But it could not interfere with the choice of the incumbent which undoubtedly was to be of the Chief Justice under Article 229 of the Constitution. We are inclined to concur with the reasoning and conclusion of Dutta J.11. It is unnecessary to refer to the decision of Nayudu J. who acceded to certain contentions raised on behalf of the state which were wholly untenable and have not been sought to be supported before us. By way of illustration, one of the arguments which was accepted was that the letter Annexure-R dated April 27, 1959 from the secretary to Government of Assam. Law Department, to the Registrar and which he was obviously writing on behalf of the Government, which meant, the Governor, did not satisfy the requirements of Article 166 of the Constitution. In view of the tenor and contents of that letter such a contention could never have been sustained.12. Goswami J., did not fall into the same errors as Nayudu J. and his comprehension of the true legal position was substantially correct. But he erred in coming to the conclusion that the Government had not accorded sanction for the post to which the appellant was appointed by the orders of Sinha C. J. dated May 7, 1959. His reasoning was that there were seven permanent stenographers holding seven posts. By the appointment of the appellant as selection grade stenographer-cum-Secretary the strength was raised to eight for which no sanction of the Government existed. Goswami J. further took into consideration the fact that the Government had made it clear that the selection grade post should be filled by promotion strictly on merits from among the stenographers grade I.13. It may be stated at once that any restrictions imposed by the Government of the above nature while communicating the sanction could not bind the Chief Justice in view of Article 229 of the Constitution. This was recoginsed by the Government itself in its letter dated April 27, 1959. Even as regards the strength of the cadre of stenographers which was seven there was evidence that at the relevant time all the posts were not filled up (see the affidavit filed by the appellant in the High Court dated August 7, 1967 together with annexure I). At any rate the Government had itself taken up the position in para 6 (vii) of the affidavit dated December 12, 1965 that as a result of the order of the Chief Justice of May 7, 1959 one post of grade I stenographer stood automatically retrenched. If that be the correct position there was no additional financial burden involved in the appointment of the appellant as Secretary cum-selection grade stenographer and it is difficult to understand how the government could interfere in the choice of the who was appointed or insist on his having certain type of qualifications, as seems to have been emphasized in some of the letters. It may also be pointed out that the post of selection grade stenographer-cum- Secretary to Chief Justice had been sanctioned vide the letter dated April 27, 1959. The appellant was appointed to that post by the Chief Justice who was competent to do so under Article 299. If there were any technical difficulties they could be easily sorted out by mutual co-operation which is essential between the Chief Justice of the High Court and the State Government in such matters. But instead of doing so the unusual step of the Accountant General withholding the pay slips under the directions of the government was taken for which there was no legal justification or warrant.
### Response:
1
### Explanation:
13. It may be stated at once that any restrictions imposed by the Government of the above nature while communicating the sanction could not bind the Chief Justice in view of Article 229 of the Constitution. This was recoginsed by the Government itself in its letter dated April 27, 1959. Even as regards the strength of the cadre of stenographers which was seven there was evidence that at the relevant time all the posts were not filled up (see the affidavit filed by the appellant in the High Court dated August 7, 1967 together with annexure I). At any rate the Government had itself taken up the position in para 6 (vii) of the affidavit dated December 12, 1965 that as a result of the order of the Chief Justice of May 7, 1959 one post of grade I stenographer stood automatically retrenched. If that be the correct position there was no additional financial burden involved in the appointment of the appellant as Secretary cum-selection grade stenographer and it is difficult to understand how the government could interfere in the choice of the who was appointed or insist on his having certain type of qualifications, as seems to have been emphasized in some of the letters. It may also be pointed out that the post of selection grade stenographer-cum- Secretary to Chief Justice had been sanctioned vide the letter dated April 27, 1959. The appellant was appointed to that post by the Chief Justice who was competent to do so under Article 299. If there were any technical difficulties they could be easily sorted out by mutual co-operation which is essential between the Chief Justice of the High Court and the State Government in such matters. But instead of doing so the unusual step of the Accountant General withholding the pay slips under the directions of the government was taken for which there was no legal justification or warrant.
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Municipal Committee, Amritsar & Anr Vs. State Of Punjab & Ors | is in lawful possession of a piece of land situated in village Hussainpur, Tahsil and Dist. Rupar Punjab) and that for the last ten years be holds a cattle market on that piece of land from the first to the fourth of every month. He also asserted that he had been holding cattle markets on the lands in his lawful possession at Kurali, Anandpur, Saheb, Marunda (District Rupar) within the State of Punjab. According to the petitioner, for the purpose of holding cattle markets on the lands in his occupation at Hussainpur, the petitioner had constructed a well for providing water to the cattle, with sheds, and mangers. He further claimed that he provides chaff-cutters, tents, charpais and all other amenities which are essential for the cattle and the merchants. It appears from the averments made by the petitioner that he is holding cattle fairs. No declaration was made defining any fair area which included the lands of the petitioner. The State, for reasons already set out, is not entitled to hold a cattle fair on the land in the occupation of the petitioner without providing for compensation as guaranteed under Art. 31 (2). But on that account the petitioner is not entitled to hold a cattle fair even on his own lands.Writ Petition No. 365 of 196823. The petitioner is Jagtar Singh. He claims that he has obtained for the period April 1, 1968 to March 31, 1969, from the Municipal Committee, Amritsar, a piece of land on lease called the Ahata near the "Butcher-Khana" known as "Adda Bakar Mandi." The land is used for an enclosure for sheep and goats brought for sale. The petitioner states that he has constructed near the Butcher-Khana ten kothas around a vacant piece of land for enclosure of goats and sheep brought by prospective sellers and has so constructed some rooms where he provides board and lodging to the merchants who come to the Adda Bakar Mandi in connection with their business. He has set out in his petition the manner in which the business is carried on and the charges made by him. It may be sufficient to mention that the petitioner claims that he conducts a cattle market and not a cattle fair.24. The Fair Officer issued a declaration under Section 4 (2) (i) read with Section 2 (d) of the Punjab Cattle Fairs (Regulation) Act, 1967, specifying "2 Kilometres from the main building situated in the Cattle Fair Ground at Bakar Mandi outside Lahori Gate" as a fair area for the purpose of controlling, managing, regulating and holding the Catte Fair, Amritsar, at Bakar Mandi outside Lahori Gate. The Fair Officer also addressed a letter to the petitioner dated October 25, 1968, informing him that the Punjab Government had exclusively undertaken the work of holding, managing, controlling and supervising the Cattle Fairs under Section 3 of the Punjab Cattle Fairs (Regulation) Act, 1967, and that the petitioner who was carrying on the business of holding cattle fair should stop running the Bakar Mandi. The Fair Officer informed the petitioner that the ground of the Bakar Mandi had already been specified as fair area by him and on that account the petitioner was prohibited to work as commission agent, unless he got a brokers licence under the Act.25. The land in respect of which the declaration has been made as fair area is the land of the Municipal Committee, of which under a licence or a lease the petitioner is in possession. For reasons which we have already set out, the Government of Punjab is not competent to declare the land of the Bakar Mandi a fair area. The notification declaring the Bakar Mandi as fair area is, therefore, invalid.26. By Section 3 of the Act the cattle fairs can be held in the State of Punjab only by the State and by no other person. But prima facie the business carried on by the petitioner is in the nature of a market for sale of sheep and goats brought by intending sellers for slaughter. Such a place cannot be called a fair.27. It was urged on behalf of the State that since the petitioner was collecting brokerage and carrying on the business of a broker, he was bound to take out a licence under Section 9 of the Act. But a person carrying on his business within the fair area lawfully declared is required to obtain a licence, but not in respect of his business in a cattle market.28. The petition filed by Jagtar Singh must, therefore, be allowed and the order declaring the petitioners land as fair area and the intimation calling upon him to stop his business of cattle market is unauthorised.Writ Petitions Nos. 443 and 444 of 196829. The petitioners in these petitions are Narain Singh and another. They claim that they are in "legal possession" of different pieces of land taken on lease within the State of Punjab at Khanna, Doraha (District Ludhiana), Sunam (District Sangrur) and also in other Districts where they have been holding cattle markets for the last many years. They claimed that they provide the prospective sellers and purchasers facilities like cots for resting, drinking water, sheds, mangers, chaff-cutters, tents, light, chowkidars, dry fodder and all other essential amenities. They further claimed that the intending vendors come to their lands with cattle and sell the cattle, bargains being struck through brokers in the market arranged by the petitioners on those pieces of land.30. It is not clear from the averments made in the petitions whether the so-called market is of the nature of a fair. The petitioners are prohibited from holding or conducting a cattle fair, since the enactment of Punjab Act 6 of 1968. The lands belonging to the petitioners have not been included in a cattle fair area under the notification issued by the Fair Officer. Without deciding the question whether the business carried on by the petitioners is in the nature of a fair or a market, we | 1[ds]The Courts in India have no authority to declare a statute invalid on the ground that it violates the "due process of law." Under our Constitution, the test of due process of law cannot be applied to the statutes enacted by the Parliament or the State legislatures. This Court has definitely ruled that the doctrine of "due process of law" has no place in our Constitutional system: A. K. Gopalan v. The State of Madras, 1950 SCR 88 =(AIR 1950 SC 27 ). Kania, C. J., observed (at p. 120 of SCR)=(at p. 42 ofe contention that the provisions of the Act, and especially the definition of cattle fair" in Section 2 (bb), impose unreasonable restrictions upon the fundamental rights guaranteed under Article 19 (1) (b) and. The land in respect of which the declaration has been made as fair area is the land of the Municipal Committee, of which under a licence or a lease the petitioner is in possession. For reasons which we have already set out, the Government of Punjab is not competent to declare the land of the Bakar Mandi a fair area. The notification declaring the Bakar Mandi as fair area is, therefore,a person carrying on his business within the fair area lawfully declared is required to obtain a licence, but not in respect of his business in a cattle market.28. The petition filed by Jagtar Singh must, therefore, be allowed and the order declaring the petitioners land as fair area and the intimation calling upon him to stop his business of cattle market ist that is not the effect of the order passed by the Deputy Commissioner. The Deputy Commissioner informed the Municipal Committee that possession of its land should be handed over so that the State may be able to hold the fair under the provisions of the Punjab Cattle Fairs (Regulation) Act, 1967. Section 3 (1) is intended only to provide for a monopoly in the State to hold cattle fairs and to control, manage and regulate such fairs. The demand made by the Fair Officer asking the Municipal Committee to supply water, electricity and to make sanitary arrangements and make the staff, articles and offices of the Municipal Committee available to the Fair Officer is not warranted by any provision of the Act. The notification issue by the Fair Officer defining the fair area inclusive of the land of Mal Mandi is, therefore, unauthorised. The demand made by the Fair Officer for assistance of the "staff, articles and offices of the Municipality" for holding the fair and the demand for supply of water and electricity and making suitable sanitary arrangements is also uncalled for and unauthorised. The directions must, therefore, be declared invalid. | 1 | 6,102 | 519 | ### 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:
is in lawful possession of a piece of land situated in village Hussainpur, Tahsil and Dist. Rupar Punjab) and that for the last ten years be holds a cattle market on that piece of land from the first to the fourth of every month. He also asserted that he had been holding cattle markets on the lands in his lawful possession at Kurali, Anandpur, Saheb, Marunda (District Rupar) within the State of Punjab. According to the petitioner, for the purpose of holding cattle markets on the lands in his occupation at Hussainpur, the petitioner had constructed a well for providing water to the cattle, with sheds, and mangers. He further claimed that he provides chaff-cutters, tents, charpais and all other amenities which are essential for the cattle and the merchants. It appears from the averments made by the petitioner that he is holding cattle fairs. No declaration was made defining any fair area which included the lands of the petitioner. The State, for reasons already set out, is not entitled to hold a cattle fair on the land in the occupation of the petitioner without providing for compensation as guaranteed under Art. 31 (2). But on that account the petitioner is not entitled to hold a cattle fair even on his own lands.Writ Petition No. 365 of 196823. The petitioner is Jagtar Singh. He claims that he has obtained for the period April 1, 1968 to March 31, 1969, from the Municipal Committee, Amritsar, a piece of land on lease called the Ahata near the "Butcher-Khana" known as "Adda Bakar Mandi." The land is used for an enclosure for sheep and goats brought for sale. The petitioner states that he has constructed near the Butcher-Khana ten kothas around a vacant piece of land for enclosure of goats and sheep brought by prospective sellers and has so constructed some rooms where he provides board and lodging to the merchants who come to the Adda Bakar Mandi in connection with their business. He has set out in his petition the manner in which the business is carried on and the charges made by him. It may be sufficient to mention that the petitioner claims that he conducts a cattle market and not a cattle fair.24. The Fair Officer issued a declaration under Section 4 (2) (i) read with Section 2 (d) of the Punjab Cattle Fairs (Regulation) Act, 1967, specifying "2 Kilometres from the main building situated in the Cattle Fair Ground at Bakar Mandi outside Lahori Gate" as a fair area for the purpose of controlling, managing, regulating and holding the Catte Fair, Amritsar, at Bakar Mandi outside Lahori Gate. The Fair Officer also addressed a letter to the petitioner dated October 25, 1968, informing him that the Punjab Government had exclusively undertaken the work of holding, managing, controlling and supervising the Cattle Fairs under Section 3 of the Punjab Cattle Fairs (Regulation) Act, 1967, and that the petitioner who was carrying on the business of holding cattle fair should stop running the Bakar Mandi. The Fair Officer informed the petitioner that the ground of the Bakar Mandi had already been specified as fair area by him and on that account the petitioner was prohibited to work as commission agent, unless he got a brokers licence under the Act.25. The land in respect of which the declaration has been made as fair area is the land of the Municipal Committee, of which under a licence or a lease the petitioner is in possession. For reasons which we have already set out, the Government of Punjab is not competent to declare the land of the Bakar Mandi a fair area. The notification declaring the Bakar Mandi as fair area is, therefore, invalid.26. By Section 3 of the Act the cattle fairs can be held in the State of Punjab only by the State and by no other person. But prima facie the business carried on by the petitioner is in the nature of a market for sale of sheep and goats brought by intending sellers for slaughter. Such a place cannot be called a fair.27. It was urged on behalf of the State that since the petitioner was collecting brokerage and carrying on the business of a broker, he was bound to take out a licence under Section 9 of the Act. But a person carrying on his business within the fair area lawfully declared is required to obtain a licence, but not in respect of his business in a cattle market.28. The petition filed by Jagtar Singh must, therefore, be allowed and the order declaring the petitioners land as fair area and the intimation calling upon him to stop his business of cattle market is unauthorised.Writ Petitions Nos. 443 and 444 of 196829. The petitioners in these petitions are Narain Singh and another. They claim that they are in "legal possession" of different pieces of land taken on lease within the State of Punjab at Khanna, Doraha (District Ludhiana), Sunam (District Sangrur) and also in other Districts where they have been holding cattle markets for the last many years. They claimed that they provide the prospective sellers and purchasers facilities like cots for resting, drinking water, sheds, mangers, chaff-cutters, tents, light, chowkidars, dry fodder and all other essential amenities. They further claimed that the intending vendors come to their lands with cattle and sell the cattle, bargains being struck through brokers in the market arranged by the petitioners on those pieces of land.30. It is not clear from the averments made in the petitions whether the so-called market is of the nature of a fair. The petitioners are prohibited from holding or conducting a cattle fair, since the enactment of Punjab Act 6 of 1968. The lands belonging to the petitioners have not been included in a cattle fair area under the notification issued by the Fair Officer. Without deciding the question whether the business carried on by the petitioners is in the nature of a fair or a market, we
### Response:
1
### Explanation:
The Courts in India have no authority to declare a statute invalid on the ground that it violates the "due process of law." Under our Constitution, the test of due process of law cannot be applied to the statutes enacted by the Parliament or the State legislatures. This Court has definitely ruled that the doctrine of "due process of law" has no place in our Constitutional system: A. K. Gopalan v. The State of Madras, 1950 SCR 88 =(AIR 1950 SC 27 ). Kania, C. J., observed (at p. 120 of SCR)=(at p. 42 ofe contention that the provisions of the Act, and especially the definition of cattle fair" in Section 2 (bb), impose unreasonable restrictions upon the fundamental rights guaranteed under Article 19 (1) (b) and. The land in respect of which the declaration has been made as fair area is the land of the Municipal Committee, of which under a licence or a lease the petitioner is in possession. For reasons which we have already set out, the Government of Punjab is not competent to declare the land of the Bakar Mandi a fair area. The notification declaring the Bakar Mandi as fair area is, therefore,a person carrying on his business within the fair area lawfully declared is required to obtain a licence, but not in respect of his business in a cattle market.28. The petition filed by Jagtar Singh must, therefore, be allowed and the order declaring the petitioners land as fair area and the intimation calling upon him to stop his business of cattle market ist that is not the effect of the order passed by the Deputy Commissioner. The Deputy Commissioner informed the Municipal Committee that possession of its land should be handed over so that the State may be able to hold the fair under the provisions of the Punjab Cattle Fairs (Regulation) Act, 1967. Section 3 (1) is intended only to provide for a monopoly in the State to hold cattle fairs and to control, manage and regulate such fairs. The demand made by the Fair Officer asking the Municipal Committee to supply water, electricity and to make sanitary arrangements and make the staff, articles and offices of the Municipal Committee available to the Fair Officer is not warranted by any provision of the Act. The notification issue by the Fair Officer defining the fair area inclusive of the land of Mal Mandi is, therefore, unauthorised. The demand made by the Fair Officer for assistance of the "staff, articles and offices of the Municipality" for holding the fair and the demand for supply of water and electricity and making suitable sanitary arrangements is also uncalled for and unauthorised. The directions must, therefore, be declared invalid.
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Lanco Infratech Limited Vs. Mormugao Port Trust | in domain of contractual matters is subject to judicial review on the touchstone of Article 14 of the Constitution where equality is denied or reasons stated are patently unsustainable. He also relied upon the judgment of the Supreme Court in the case of Air India Vs CIAL, (2000) 2 SCC 167), as well as Sterling Computers Ltd. Vs M/s. M&N Publication Ltd., (1993) 1 SCC 445 ), to further argue that an Authority or State is bound to adhere to the norms, standard and procedure laid down by them and cannot depart from such procedure arbitrarily. The Supreme Court in the case of Reliance Energy Limited Vs MSRDC Ltd., (2007) 8 SCC 1 , while holding that Article 14 of the Constitution embodies the principle of non-discrimination, clearly held that Level playing field is an important concept while construing Article 19(1)(g) of the Constitution. This doctrine provides space within which equally placed competitors are allowed to bid so as to subserve the larger public interest. The Supreme Court further held that where tenders are invited, the terms and conditions must indicate with legal certainty, norms and benchmarks. This legal certainty is an important aspect of the rule of law. In the case of Sterling Computers Limited (supra), the Supreme Court also stated that scope of judicial review in such cases the Court cannot act as an appellate authority to examine details of terms of contract. 21. The Respondent has also relied upon the judgment of the Supreme Court in the case of Raunaq International Ltd. Vs I.V. R. Construction Ltd and Others, (1999 AIR SCW 53), where the Supreme Court enunciated the principle in relation to scope of power of judicial review in relation to the matters of tenders where grant of contract challenged by unsuccessful tenderer, the Court should not interfere unless substantial public interest is involved or grant is mala fide, held as under: 11. When a writ petition is filed in the High Court challenging the award of a contract by a public authority or the State, the Court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the Court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by Court intervention, the proposed project may be considerably delayed thus escalating the cost for more than any saving which the Court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the Court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the Court should not intervene under Art. 226 in disputes between two rival tenderers. 22. In the case of Kanchi Fleet Movers Vs The Collector of Solapur & Ors., 1998(3)ALL MR 474, this Court also laid down the guidelines after considering Tata Cellulars case (supra) in such matters, as under:- 21. .......................... i) The modern trend points to judicial restraint in administrative action;ii) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made; iii) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision, without the necessary expertise which itself may be fallible.iv) The terms of the invitation to tender cannot be hope to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations, through several tiers. More often that not, such decisions are made qualitatively by experts. v) The government must have freedom of contract. I other words, a fair play in the joints, is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness but must be free from arbitrariness not affected by bias or actuated by mala fides; vi) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. 23. In the present case, examined in light of the above guidelines, we are unable to hold that the decision of the Respondents is illegal, irrational or arbitrary to invite application of Wednesbury principle of unreasonableness. There is no procedural impropriety in the decision making process. Clauses 2.2.1, 2.2.2, 2.2.9, 3.2.1, 3.2.3 and 3.2.4 have been understood by the Authority concerned in a particular manner keeping in view the interest of the project. This interpretation applied by the Authorities is based upon the advise of the Expert Body which was called as Technical Advisors. There is hardly any material before the Court to accept any other interpretation. Merely because it is possible to collectively read these clauses and give a meaning different than the one given by the Authorities per se would not be a ground justifying judicial intervention by this Court in exercise of its power under Article 226 of the Constitution of India. The challenge of the Petitioner falls in a narrow compass and the arguments raised do not have merit. Within the limited scope of judicial review of such administrative decision, we are unable to find that the approach of the Respondent manifestly suffers from arbitrariness or there is any attempt on the part of the said authority to exclude the Petitioner from participating in the tender process. The bid has been rejected being non eligible to the eligibility criteria clause being Clauses 2.2.2(A) in case of projects in Category 1 and/or 3. | 0[ds]This approach of the Respondent, in our view, can hardly be faulted with. Firstly, a group of Companies forming consortium can be an option and that is not disputed. The eligibility ofand shortlisting process contemplated eligibility in regard to technical capacity and five years experience preceding the application due date in relation to receiving payment for construction, development and collection and appropriation of revenue and from eligible project underThe application of this condition is hardly in dispute. In terms of Clause 3.2.1 eligible experience from Categories 1 and 3 both had to relate to `Port sector. Unless such experience of project and construction was in relation to eligible project in Port sector, the Applicant would not be able to claim benefit of such experience for satisfying eligibility criteria. Clause 3.2.3 which titles as `For a project to qualify as an Eligible Project under Categories 1 and 2, under Clause (b), the entity claiming experience should have held in the company owning the Eligible Project a minimum of 26% equity during the period for which Eligible experience is being claimed. On plain reading of this clause, the experience has to be directly in the company owning the Eligible Project and not through an indirect ownership. A minimum of 26% equity has to be claimed by the Applicant in the Company owning Eligible Project. This simply means that an indirect route of ownership would not satisfy the language of this clause. The purpose and nexus of the clauses with the eligibility therefore is that a Company claiming such benefit should directly own the eligible project and if not should at least directly have 26% shareholding in the Company owning eligible project of which experience is claimed. This condition is not satisfied in the present case. Admittedly, PRSB the Petitioner (Member of Consortium) claims experience on the basis that it has 42.9% equity shares in M/s. Westport Holding Sdn Bhd which owns 100% capital of the project company Westport Malaysia Sdn Bhd. Nothing was submitted along with the application by the Petitioner which could show that it is one and the same company or even that its management vested in the sameapproach of the Respondent that the intended members of the Consortium application to have a direct experience in eligible project relating to Port Sector cannot be termed as an absurd interpretation or a meaning which will be opposed to public policy or public interest. It is a settled rule of law that in commercial transactions, the Court would not substitute its view in preference to the meaning given to a clause inviting tenders unless it was absolutely essential to do so and the ends of justice would demand such substitution. It is at the very threshold that the Respondent has sought clarification expressing doubt in regard to the experience claimed by the Petitioner under Clauses 2.2.2, 2.2.9 read with Clauses 3.2.1 and 3.2.3 and the explanation was not found to be satisfactory and hence not accepted. We are unable to say that in the facts of the case, the Respondent has acted arbitrarily. Shortlisting was contemplated in terms of Clause 2.2.1 for participation in the bidthis regard, the Respondent relied upon the report of the Expert Committee which found that the stand taken by the Petitioner was not justifiable and it did not satisfy requirement of different clauses of the RFQthe action of the Respondent is reasonable and does not suffer from the element of arbitrariness, the Courts would be reluctant to interfere in tender process. It is also a settled principle of law that the Court at best could examine infirmities or legalities of the decision making process and not the decision itself.In the present case, examined in light of the above guidelines, we are unable to hold that the decision of the Respondents is illegal, irrational or arbitrary to invite application of Wednesbury principle of unreasonableness. There is no procedural impropriety in the decision making process. Clauses 2.2.1, 2.2.2, 2.2.9, 3.2.1, 3.2.3 and 3.2.4 have been understood by the Authority concerned in a particular manner keeping in view the interest of the project. This interpretation applied by the Authorities is based upon the advise of the Expert Body which was called as Technical Advisors. There is hardly any material before the Court to accept any other interpretation. Merely because it is possible to collectively read these clauses and give a meaning different than the one given by the Authorities per se would not be a ground justifying judicial intervention by this Court in exercise of its power under Article 226 of the Constitution of India. The challenge of the Petitioner falls in a narrow compass and the arguments raised do not have merit. Within the limited scope of judicial review of such administrative decision, we are unable to find that the approach of the Respondent manifestly suffers from arbitrariness or there is any attempt on the part of the said authority to exclude the Petitioner from participating in the tender process. The bid has been rejected being non eligible to the eligibility criteria clause being Clauses 2.2.2(A) in case of projects in Category 1 and/or 3. | 0 | 7,770 | 924 | ### 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:
in domain of contractual matters is subject to judicial review on the touchstone of Article 14 of the Constitution where equality is denied or reasons stated are patently unsustainable. He also relied upon the judgment of the Supreme Court in the case of Air India Vs CIAL, (2000) 2 SCC 167), as well as Sterling Computers Ltd. Vs M/s. M&N Publication Ltd., (1993) 1 SCC 445 ), to further argue that an Authority or State is bound to adhere to the norms, standard and procedure laid down by them and cannot depart from such procedure arbitrarily. The Supreme Court in the case of Reliance Energy Limited Vs MSRDC Ltd., (2007) 8 SCC 1 , while holding that Article 14 of the Constitution embodies the principle of non-discrimination, clearly held that Level playing field is an important concept while construing Article 19(1)(g) of the Constitution. This doctrine provides space within which equally placed competitors are allowed to bid so as to subserve the larger public interest. The Supreme Court further held that where tenders are invited, the terms and conditions must indicate with legal certainty, norms and benchmarks. This legal certainty is an important aspect of the rule of law. In the case of Sterling Computers Limited (supra), the Supreme Court also stated that scope of judicial review in such cases the Court cannot act as an appellate authority to examine details of terms of contract. 21. The Respondent has also relied upon the judgment of the Supreme Court in the case of Raunaq International Ltd. Vs I.V. R. Construction Ltd and Others, (1999 AIR SCW 53), where the Supreme Court enunciated the principle in relation to scope of power of judicial review in relation to the matters of tenders where grant of contract challenged by unsuccessful tenderer, the Court should not interfere unless substantial public interest is involved or grant is mala fide, held as under: 11. When a writ petition is filed in the High Court challenging the award of a contract by a public authority or the State, the Court must be satisfied that there is some element of public interest involved in entertaining such a petition. If, for example, the dispute is purely between two tenderers, the Court must be very careful to see if there is any element of public interest involved in the litigation. A mere difference in the prices offered by the two tenderers may or may not be decisive in deciding whether any public interest is involved in intervening in such a commercial transaction. It is important to bear in mind that by Court intervention, the proposed project may be considerably delayed thus escalating the cost for more than any saving which the Court would ultimately effect in public money by deciding the dispute in favour of one tenderer or the other tenderer. Therefore, unless the Court is satisfied that there is a substantial amount of public interest, or the transaction is entered into mala fide, the Court should not intervene under Art. 226 in disputes between two rival tenderers. 22. In the case of Kanchi Fleet Movers Vs The Collector of Solapur & Ors., 1998(3)ALL MR 474, this Court also laid down the guidelines after considering Tata Cellulars case (supra) in such matters, as under:- 21. .......................... i) The modern trend points to judicial restraint in administrative action;ii) The Court does not sit as a court of appeal but merely reviews the manner in which the decision was made; iii) The Court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted, it will be substituting its own decision, without the necessary expertise which itself may be fallible.iv) The terms of the invitation to tender cannot be hope to judicial scrutiny because the invitation to tender is in the realm of contract. Normally speaking, the decision to accept the tender or award the contract is reached by process of negotiations, through several tiers. More often that not, such decisions are made qualitatively by experts. v) The government must have freedom of contract. I other words, a fair play in the joints, is a necessary concomitant for an administrative body functioning in an administrative sphere or quasi administrative sphere. However, the decision must not only be tested by the application of Wednesbury principle of reasonableness but must be free from arbitrariness not affected by bias or actuated by mala fides; vi) Quashing decisions may impose heavy administrative burden on the administration and lead to increased and unbudgeted expenditure. 23. In the present case, examined in light of the above guidelines, we are unable to hold that the decision of the Respondents is illegal, irrational or arbitrary to invite application of Wednesbury principle of unreasonableness. There is no procedural impropriety in the decision making process. Clauses 2.2.1, 2.2.2, 2.2.9, 3.2.1, 3.2.3 and 3.2.4 have been understood by the Authority concerned in a particular manner keeping in view the interest of the project. This interpretation applied by the Authorities is based upon the advise of the Expert Body which was called as Technical Advisors. There is hardly any material before the Court to accept any other interpretation. Merely because it is possible to collectively read these clauses and give a meaning different than the one given by the Authorities per se would not be a ground justifying judicial intervention by this Court in exercise of its power under Article 226 of the Constitution of India. The challenge of the Petitioner falls in a narrow compass and the arguments raised do not have merit. Within the limited scope of judicial review of such administrative decision, we are unable to find that the approach of the Respondent manifestly suffers from arbitrariness or there is any attempt on the part of the said authority to exclude the Petitioner from participating in the tender process. The bid has been rejected being non eligible to the eligibility criteria clause being Clauses 2.2.2(A) in case of projects in Category 1 and/or 3.
### Response:
0
### Explanation:
This approach of the Respondent, in our view, can hardly be faulted with. Firstly, a group of Companies forming consortium can be an option and that is not disputed. The eligibility ofand shortlisting process contemplated eligibility in regard to technical capacity and five years experience preceding the application due date in relation to receiving payment for construction, development and collection and appropriation of revenue and from eligible project underThe application of this condition is hardly in dispute. In terms of Clause 3.2.1 eligible experience from Categories 1 and 3 both had to relate to `Port sector. Unless such experience of project and construction was in relation to eligible project in Port sector, the Applicant would not be able to claim benefit of such experience for satisfying eligibility criteria. Clause 3.2.3 which titles as `For a project to qualify as an Eligible Project under Categories 1 and 2, under Clause (b), the entity claiming experience should have held in the company owning the Eligible Project a minimum of 26% equity during the period for which Eligible experience is being claimed. On plain reading of this clause, the experience has to be directly in the company owning the Eligible Project and not through an indirect ownership. A minimum of 26% equity has to be claimed by the Applicant in the Company owning Eligible Project. This simply means that an indirect route of ownership would not satisfy the language of this clause. The purpose and nexus of the clauses with the eligibility therefore is that a Company claiming such benefit should directly own the eligible project and if not should at least directly have 26% shareholding in the Company owning eligible project of which experience is claimed. This condition is not satisfied in the present case. Admittedly, PRSB the Petitioner (Member of Consortium) claims experience on the basis that it has 42.9% equity shares in M/s. Westport Holding Sdn Bhd which owns 100% capital of the project company Westport Malaysia Sdn Bhd. Nothing was submitted along with the application by the Petitioner which could show that it is one and the same company or even that its management vested in the sameapproach of the Respondent that the intended members of the Consortium application to have a direct experience in eligible project relating to Port Sector cannot be termed as an absurd interpretation or a meaning which will be opposed to public policy or public interest. It is a settled rule of law that in commercial transactions, the Court would not substitute its view in preference to the meaning given to a clause inviting tenders unless it was absolutely essential to do so and the ends of justice would demand such substitution. It is at the very threshold that the Respondent has sought clarification expressing doubt in regard to the experience claimed by the Petitioner under Clauses 2.2.2, 2.2.9 read with Clauses 3.2.1 and 3.2.3 and the explanation was not found to be satisfactory and hence not accepted. We are unable to say that in the facts of the case, the Respondent has acted arbitrarily. Shortlisting was contemplated in terms of Clause 2.2.1 for participation in the bidthis regard, the Respondent relied upon the report of the Expert Committee which found that the stand taken by the Petitioner was not justifiable and it did not satisfy requirement of different clauses of the RFQthe action of the Respondent is reasonable and does not suffer from the element of arbitrariness, the Courts would be reluctant to interfere in tender process. It is also a settled principle of law that the Court at best could examine infirmities or legalities of the decision making process and not the decision itself.In the present case, examined in light of the above guidelines, we are unable to hold that the decision of the Respondents is illegal, irrational or arbitrary to invite application of Wednesbury principle of unreasonableness. There is no procedural impropriety in the decision making process. Clauses 2.2.1, 2.2.2, 2.2.9, 3.2.1, 3.2.3 and 3.2.4 have been understood by the Authority concerned in a particular manner keeping in view the interest of the project. This interpretation applied by the Authorities is based upon the advise of the Expert Body which was called as Technical Advisors. There is hardly any material before the Court to accept any other interpretation. Merely because it is possible to collectively read these clauses and give a meaning different than the one given by the Authorities per se would not be a ground justifying judicial intervention by this Court in exercise of its power under Article 226 of the Constitution of India. The challenge of the Petitioner falls in a narrow compass and the arguments raised do not have merit. Within the limited scope of judicial review of such administrative decision, we are unable to find that the approach of the Respondent manifestly suffers from arbitrariness or there is any attempt on the part of the said authority to exclude the Petitioner from participating in the tender process. The bid has been rejected being non eligible to the eligibility criteria clause being Clauses 2.2.2(A) in case of projects in Category 1 and/or 3.
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The Government Of Andhra Pradesh & Ors Vs. M. Krishnaveni & Ors | after the enforcement of the Act that they were the owners in possession of the lands to the extent of their respective shares. It is not in dispute that the competent authority has not considered the claim of the two declarants as no inquiry was conducted by the authority nor any notice was issued to them inviting their objections before final order concerning the vestment of land in excess of ceiling limit was recorded. 21. The respondents have filed plan and other additional documents along with I. A. Nos. 31-36/2006. No counter to the said interlocutory applications appears to have been filed by the appellants non-applicants. On a perusal of the said plan, it becomes clear that it is prepared by the Assistant Director (HQS) S & LRs, Hyderabad, consequent to the order of the High Court dated 10.11.1999 in W.A. Nos.438 to 443 of 1999, depicting the vacant land and the extent of the area occupied under constructions. The Plan would show that an area to the extent of Ac 41- 03 Gts. shown in blue colour is lying vacant on the spot. The Plan is signed by one G.P. for o/o Advocate General on 17.11.1999. It also reveals that an area of Sy. No. 208 and Sy. No. 209 given to Smt. P. Rukmini and Smt. M. Krishnaveni by their late father in family arrangement on 13.11.1970 is still lying vacant on the spot. Thus, the contention of the learned senior counsel for the appellants that Smt. P. Rukmini and Smt. M. Krishnaveni, for the first time, have raised the claim of their shares to the land on the basis of the alleged family settlement in the writ petitions filed by them, does not merit acceptance. Both these declarants had filed their declarations in the year 1976 immediately after enforcement of the Act and it was mandatory obligation and duty in law of the competent authority to have held inquiry in the matter and considered their objections, if any. 22. As the competent authority has failed to exercise its jurisdiction vested in it by law, in our view, therefore, the learned Judges of the High Court have rightly quashed the proceedings taken against the declarants Smt. P. Rukmini and Smt. M. Krishnaveni ordering the vestment of their respective shares of lands in the State Government. Hence, the judgment and order of Division Bench dismissing the Writ Appeals of the appellants and upholding the order of the learned Single Judge in Writ Petition No. 28157/1998 titled M. Krishnaveni v. The Govt. of A.P. & Anr. and Writ Petition No.28157/98 titled P. Rukmini v. The Govt. of A.P. & Anr. in no circumstances could be said to be infirm or faulty. 23. Consequently, C. A. Nos. 5309 and 5311 of 2000 filed by the appellants against Smt. M. Krishnaveni and Smt. P. Rukmini respectively shall stand dismissed. The appellants are directed to hold an independent inquiry in terms of the provisions of the Act and Rules framed thereunder into the claims of the declarants Smt. M. Krishnaveni and Smt. P. Rukmini. The inquiry shall be completed within two months from the date of receipt of this order. 24. Now, coming to the case of Smt. K. Pramila Rani, Mr. Uday U. Lalit, learned senior counsel representing her, has contended that T. Chinna Seetharamaiah, father of Smt. K. Pramila Rani had given some area of land to her on the basis of the family arrangement dated 13.11.1970. According to the learned senior counsel, the judgment and order of the Division Bench of the High Court impugned in the appeal upholding the judgment and order of the learned Single Judge directing the competent authority to receive fresh declaration of Smt. K. Pramila Rani in no circumstances is perverse or illegal calling for interference by this Court in exercise of the jurisdiction under Article 136 of the Constitution of India. He also submitted that K. Pramila Rani was married on 21.08.1964 and she is also entitled to get equal opportunity and treatment as was given to her other two sisters by the High Court. We are not persuaded to accept the submissions of the learned senior counsel on the ground of parity or equality principle. 25. Admittedly, Smt. K. Pramila Rani did not file statement at all before the competent authority in the prescribed form furnishing the details of land held by her as envisaged under Section 6 of the Act and the competent authority was not obliged to prepare draft statement of her share in the land and serve on her to enable her to file objections under Section 8 of the Act. Therefore, Smt. K. Pramila Rani could not be allowed to contend that no inquiry under Section 8 of the Act was conducted by the competent authority and that the vestment of her surplus land in the State Government was bad and illegal. The claim of Smt. K. Pramila Rani to afford an opportunity to her after about two decades from the date of the vestment of her surplus land in the State Government, could in no circumstances be equated and treated at par with her two sisters, who had filed their independent declarations immediately after the enforcement of the Act, requesting the competent authority to hold an inquiry as per the law regarding their ownership of lands which they received from their father in family arrangement dated 13.11.1970, i.e. much before the Act came into force. In these peculiar facts and circumstances of the case, Smt. K. Pramila Rani is not entitled to the grant of the same and similar relief as would be available to her two sisters. 26. For the foregoing reasons, the judgment and order of the Division Bench of the High Court, upholding the order of the learned Single Judge to the extent of granting relief to Smt. K. Pramila Rani, is not sustainable and it is accordingly set aside. Consequently, W. P. No. 28292/98 filed by Smt. K. Pramila Rani shall stand dismissed. 27. | 0[ds]Admittedly, Smt. K. Pramila Rani did not file statement at all before the competent authority in the prescribed form furnishing the details of land held by her as envisaged under Section 6 of the Act and the competent authority was not obliged to prepare draft statement of her share in the land and serve on her to enable her to file objections under Section 8 of the Act. Therefore, Smt. K. Pramila Rani could not be allowed to contend that no inquiry under Section 8 of the Act was conducted by the competent authority and that the vestment of her surplus land in the State Government was bad and illegal. The claim of Smt. K. Pramila Rani to afford an opportunity to her after about two decades from the date of the vestment of her surplus land in the State Government, could in no circumstances be equated and treated at par with her two sisters, who had filed their independent declarations immediately after the enforcement of the Act, requesting the competent authority to hold an inquiry as per the law regarding their ownership of lands which they received from their father in family arrangement dated 13.11.1970, i.e. much before the Act came into force. In these peculiar facts and circumstances of the case, Smt. K. Pramila Rani is not entitled to the grant of the same and similar relief as would be available to her two sistersFor the foregoing reasons, the judgment and order of the Division Bench of the High Court, upholding the order of the learned Single Judge to the extent of granting relief to Smt. K. Pramila Rani, is not sustainable and it is accordingly set aside. Consequently, W. P. No. 28292/98 filed by Smt. K. Pramila Rani shall stand dismissed | 0 | 5,669 | 321 | ### 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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after the enforcement of the Act that they were the owners in possession of the lands to the extent of their respective shares. It is not in dispute that the competent authority has not considered the claim of the two declarants as no inquiry was conducted by the authority nor any notice was issued to them inviting their objections before final order concerning the vestment of land in excess of ceiling limit was recorded. 21. The respondents have filed plan and other additional documents along with I. A. Nos. 31-36/2006. No counter to the said interlocutory applications appears to have been filed by the appellants non-applicants. On a perusal of the said plan, it becomes clear that it is prepared by the Assistant Director (HQS) S & LRs, Hyderabad, consequent to the order of the High Court dated 10.11.1999 in W.A. Nos.438 to 443 of 1999, depicting the vacant land and the extent of the area occupied under constructions. The Plan would show that an area to the extent of Ac 41- 03 Gts. shown in blue colour is lying vacant on the spot. The Plan is signed by one G.P. for o/o Advocate General on 17.11.1999. It also reveals that an area of Sy. No. 208 and Sy. No. 209 given to Smt. P. Rukmini and Smt. M. Krishnaveni by their late father in family arrangement on 13.11.1970 is still lying vacant on the spot. Thus, the contention of the learned senior counsel for the appellants that Smt. P. Rukmini and Smt. M. Krishnaveni, for the first time, have raised the claim of their shares to the land on the basis of the alleged family settlement in the writ petitions filed by them, does not merit acceptance. Both these declarants had filed their declarations in the year 1976 immediately after enforcement of the Act and it was mandatory obligation and duty in law of the competent authority to have held inquiry in the matter and considered their objections, if any. 22. As the competent authority has failed to exercise its jurisdiction vested in it by law, in our view, therefore, the learned Judges of the High Court have rightly quashed the proceedings taken against the declarants Smt. P. Rukmini and Smt. M. Krishnaveni ordering the vestment of their respective shares of lands in the State Government. Hence, the judgment and order of Division Bench dismissing the Writ Appeals of the appellants and upholding the order of the learned Single Judge in Writ Petition No. 28157/1998 titled M. Krishnaveni v. The Govt. of A.P. & Anr. and Writ Petition No.28157/98 titled P. Rukmini v. The Govt. of A.P. & Anr. in no circumstances could be said to be infirm or faulty. 23. Consequently, C. A. Nos. 5309 and 5311 of 2000 filed by the appellants against Smt. M. Krishnaveni and Smt. P. Rukmini respectively shall stand dismissed. The appellants are directed to hold an independent inquiry in terms of the provisions of the Act and Rules framed thereunder into the claims of the declarants Smt. M. Krishnaveni and Smt. P. Rukmini. The inquiry shall be completed within two months from the date of receipt of this order. 24. Now, coming to the case of Smt. K. Pramila Rani, Mr. Uday U. Lalit, learned senior counsel representing her, has contended that T. Chinna Seetharamaiah, father of Smt. K. Pramila Rani had given some area of land to her on the basis of the family arrangement dated 13.11.1970. According to the learned senior counsel, the judgment and order of the Division Bench of the High Court impugned in the appeal upholding the judgment and order of the learned Single Judge directing the competent authority to receive fresh declaration of Smt. K. Pramila Rani in no circumstances is perverse or illegal calling for interference by this Court in exercise of the jurisdiction under Article 136 of the Constitution of India. He also submitted that K. Pramila Rani was married on 21.08.1964 and she is also entitled to get equal opportunity and treatment as was given to her other two sisters by the High Court. We are not persuaded to accept the submissions of the learned senior counsel on the ground of parity or equality principle. 25. Admittedly, Smt. K. Pramila Rani did not file statement at all before the competent authority in the prescribed form furnishing the details of land held by her as envisaged under Section 6 of the Act and the competent authority was not obliged to prepare draft statement of her share in the land and serve on her to enable her to file objections under Section 8 of the Act. Therefore, Smt. K. Pramila Rani could not be allowed to contend that no inquiry under Section 8 of the Act was conducted by the competent authority and that the vestment of her surplus land in the State Government was bad and illegal. The claim of Smt. K. Pramila Rani to afford an opportunity to her after about two decades from the date of the vestment of her surplus land in the State Government, could in no circumstances be equated and treated at par with her two sisters, who had filed their independent declarations immediately after the enforcement of the Act, requesting the competent authority to hold an inquiry as per the law regarding their ownership of lands which they received from their father in family arrangement dated 13.11.1970, i.e. much before the Act came into force. In these peculiar facts and circumstances of the case, Smt. K. Pramila Rani is not entitled to the grant of the same and similar relief as would be available to her two sisters. 26. For the foregoing reasons, the judgment and order of the Division Bench of the High Court, upholding the order of the learned Single Judge to the extent of granting relief to Smt. K. Pramila Rani, is not sustainable and it is accordingly set aside. Consequently, W. P. No. 28292/98 filed by Smt. K. Pramila Rani shall stand dismissed. 27.
### Response:
0
### Explanation:
Admittedly, Smt. K. Pramila Rani did not file statement at all before the competent authority in the prescribed form furnishing the details of land held by her as envisaged under Section 6 of the Act and the competent authority was not obliged to prepare draft statement of her share in the land and serve on her to enable her to file objections under Section 8 of the Act. Therefore, Smt. K. Pramila Rani could not be allowed to contend that no inquiry under Section 8 of the Act was conducted by the competent authority and that the vestment of her surplus land in the State Government was bad and illegal. The claim of Smt. K. Pramila Rani to afford an opportunity to her after about two decades from the date of the vestment of her surplus land in the State Government, could in no circumstances be equated and treated at par with her two sisters, who had filed their independent declarations immediately after the enforcement of the Act, requesting the competent authority to hold an inquiry as per the law regarding their ownership of lands which they received from their father in family arrangement dated 13.11.1970, i.e. much before the Act came into force. In these peculiar facts and circumstances of the case, Smt. K. Pramila Rani is not entitled to the grant of the same and similar relief as would be available to her two sistersFor the foregoing reasons, the judgment and order of the Division Bench of the High Court, upholding the order of the learned Single Judge to the extent of granting relief to Smt. K. Pramila Rani, is not sustainable and it is accordingly set aside. Consequently, W. P. No. 28292/98 filed by Smt. K. Pramila Rani shall stand dismissed
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M/s. Silver Screen Enterprises Vs. Devki Nandan Nagpal | Hegde, J.1. This appeal by special leave arises from the decision of the High Court of Punjab and Haryana in Civil Revision No. 189 of 1966 on its file. (Reported in ILR (1968) 1 Punj 621). The respondent is the owner of a Cinema House. That Cinema House had been leased to the appellant. The respondent filed an application under Section 13 (2) (i) of the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act 3 of 1949) for the ejectment of the tenant on the ground of non-payment of rent. That application was dismissed by the Rent Controller. Against that order the respondent went up in appeal. At the same time there were several other litigations between the appellant and the respondent. By an agreement dated January 7, 1964, the appellant and the respondent settled all their pending disputes excepting one Regular First Appeal pending in the High Court of Punjab and Haryana. One of the disputes pending at that time was an application made by the appellant to the Rent Controller for fixing as fair rent for the Cinema House in question As per the agreement the respondent was required to withdraw the appeal filed by him against the order dismissing his application to eject the appellant from the premises in question. That agreement also provided that the appellant should withdraw his application for fixing a fair rent for the premises. The appellant accordingly withdraw his application but when the appeal in respect of the ejectment proceedings came up for hearing the respondent refused to withdraw the same. The appellant moved the court to dismiss the appeal on the strength of the compromise referred to earlier. The appellate Court accordingly dismissed the appeal. As against that order the respondent went up in revision to the High Court. The High Court allowed that revision petition and set aside the order of the Appellate Court holding that there was no provision in the Code of Civil Procedure under which an appellant can be compelled to withdraw his appeal.2. The High Court did not hold against the correctness of the compromise put forward or as to its validity. The only ground on which the appeal was allowed was as mentioned earlier that the appellate court was incompetent to compel the appellant to withdraw his appeal. This conclusion ignored the fact that the appellate court could always dismiss an appeal on the ground that it has been settled out of Court.3. The compromise in question specifically says that the parties thereto have compromised all their disputes mentioned therein including the two matters referred to earlier. On the basis of that compromise both the appellant and the respondent were required to withdraw all the pending proceedings excepting the one mentioned earlier. There is no dispute that one of the matters compromised is that relating to the appeal with which we are concerned herein.Once a dispute is validly settled out of Court, it is open to a party to a litigation to move the Court to pass a decree in accordance with the compromise. Rule 3 of Order 23, of Code of Civil Procedure provides that where it is proved to the satisfaction of the Court that a suit (which expression includes an appeal) has been settled wholly or in part by any lawful agreement, the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so far as it relates to that suit. This is a mandatory provision. It is somewhat surprising that the High Court should have felt itself helpless under the circumstances of the case to do justice between the parties.Clause 12 of the compromise provides that if the respondent does not carry out the terms of the compromise, he shall be held responsible for all the losses that the appellant may suffer because of its breach. This clause does not preclude the appellant from putting forward the compromise and asking the Court to dismiss the appeal in accordance with its terms. Both the factum and the validity of the compromise are not in dispute. Hence the appellate court was bound to accept the same. That Court acted in accordance with law in dismissing the appeal. Hence the High Court was clearly wrong in interfering with the judgment of the appellate court. | 1[ds]The only ground on which the appeal was allowed was as mentioned earlier that the appellate court was incompetent to compel the appellant to withdraw his appeal. This conclusion ignored the fact that the appellate court could always dismiss an appeal on the ground that it has been settled out of Court.3. The compromise in question specifically says that the parties thereto have compromised all their disputes mentioned therein including the two matters referred to earlier. On the basis of that compromise both the appellant and the respondent were required to withdraw all the pending proceedings excepting the one mentioned earlier. There is no dispute that one of the matters compromised is that relating to the appeal with which we are concerned herein.Once a dispute is validly settled out of Court, it is open to a party to a litigation to move the Court to pass a decree in accordance with the compromise. Rule 3 of Order 23, of Code of Civil Procedure provides that where it is proved to the satisfaction of the Court that a suit (which expression includes an appeal) has been settled wholly or in part by any lawful agreement, the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so far as it relates to that suit. This is a mandatory provision. It is somewhat surprising that the High Court should have felt itself helpless under the circumstances of the case to do justice between the parties.Clause 12 of the compromise provides that if the respondent does not carry out the terms of the compromise, he shall be held responsible for all the losses that the appellant may suffer because of its breach. This clause does not preclude the appellant from putting forward the compromise and asking the Court to dismiss the appeal in accordance with its terms. Both the factum and the validity of the compromise are not in dispute. Hence the appellate court was bound to accept the same. That Court acted in accordance with law in dismissing the appeal. Hence the High Court was clearly wrong in interfering with the judgment of the appellate court. | 1 | 774 | 387 | ### 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:
Hegde, J.1. This appeal by special leave arises from the decision of the High Court of Punjab and Haryana in Civil Revision No. 189 of 1966 on its file. (Reported in ILR (1968) 1 Punj 621). The respondent is the owner of a Cinema House. That Cinema House had been leased to the appellant. The respondent filed an application under Section 13 (2) (i) of the East Punjab Urban Rent Restriction Act, 1949 (East Punjab Act 3 of 1949) for the ejectment of the tenant on the ground of non-payment of rent. That application was dismissed by the Rent Controller. Against that order the respondent went up in appeal. At the same time there were several other litigations between the appellant and the respondent. By an agreement dated January 7, 1964, the appellant and the respondent settled all their pending disputes excepting one Regular First Appeal pending in the High Court of Punjab and Haryana. One of the disputes pending at that time was an application made by the appellant to the Rent Controller for fixing as fair rent for the Cinema House in question As per the agreement the respondent was required to withdraw the appeal filed by him against the order dismissing his application to eject the appellant from the premises in question. That agreement also provided that the appellant should withdraw his application for fixing a fair rent for the premises. The appellant accordingly withdraw his application but when the appeal in respect of the ejectment proceedings came up for hearing the respondent refused to withdraw the same. The appellant moved the court to dismiss the appeal on the strength of the compromise referred to earlier. The appellate Court accordingly dismissed the appeal. As against that order the respondent went up in revision to the High Court. The High Court allowed that revision petition and set aside the order of the Appellate Court holding that there was no provision in the Code of Civil Procedure under which an appellant can be compelled to withdraw his appeal.2. The High Court did not hold against the correctness of the compromise put forward or as to its validity. The only ground on which the appeal was allowed was as mentioned earlier that the appellate court was incompetent to compel the appellant to withdraw his appeal. This conclusion ignored the fact that the appellate court could always dismiss an appeal on the ground that it has been settled out of Court.3. The compromise in question specifically says that the parties thereto have compromised all their disputes mentioned therein including the two matters referred to earlier. On the basis of that compromise both the appellant and the respondent were required to withdraw all the pending proceedings excepting the one mentioned earlier. There is no dispute that one of the matters compromised is that relating to the appeal with which we are concerned herein.Once a dispute is validly settled out of Court, it is open to a party to a litigation to move the Court to pass a decree in accordance with the compromise. Rule 3 of Order 23, of Code of Civil Procedure provides that where it is proved to the satisfaction of the Court that a suit (which expression includes an appeal) has been settled wholly or in part by any lawful agreement, the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so far as it relates to that suit. This is a mandatory provision. It is somewhat surprising that the High Court should have felt itself helpless under the circumstances of the case to do justice between the parties.Clause 12 of the compromise provides that if the respondent does not carry out the terms of the compromise, he shall be held responsible for all the losses that the appellant may suffer because of its breach. This clause does not preclude the appellant from putting forward the compromise and asking the Court to dismiss the appeal in accordance with its terms. Both the factum and the validity of the compromise are not in dispute. Hence the appellate court was bound to accept the same. That Court acted in accordance with law in dismissing the appeal. Hence the High Court was clearly wrong in interfering with the judgment of the appellate court.
### Response:
1
### Explanation:
The only ground on which the appeal was allowed was as mentioned earlier that the appellate court was incompetent to compel the appellant to withdraw his appeal. This conclusion ignored the fact that the appellate court could always dismiss an appeal on the ground that it has been settled out of Court.3. The compromise in question specifically says that the parties thereto have compromised all their disputes mentioned therein including the two matters referred to earlier. On the basis of that compromise both the appellant and the respondent were required to withdraw all the pending proceedings excepting the one mentioned earlier. There is no dispute that one of the matters compromised is that relating to the appeal with which we are concerned herein.Once a dispute is validly settled out of Court, it is open to a party to a litigation to move the Court to pass a decree in accordance with the compromise. Rule 3 of Order 23, of Code of Civil Procedure provides that where it is proved to the satisfaction of the Court that a suit (which expression includes an appeal) has been settled wholly or in part by any lawful agreement, the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith so far as it relates to that suit. This is a mandatory provision. It is somewhat surprising that the High Court should have felt itself helpless under the circumstances of the case to do justice between the parties.Clause 12 of the compromise provides that if the respondent does not carry out the terms of the compromise, he shall be held responsible for all the losses that the appellant may suffer because of its breach. This clause does not preclude the appellant from putting forward the compromise and asking the Court to dismiss the appeal in accordance with its terms. Both the factum and the validity of the compromise are not in dispute. Hence the appellate court was bound to accept the same. That Court acted in accordance with law in dismissing the appeal. Hence the High Court was clearly wrong in interfering with the judgment of the appellate court.
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Tata Iron & Steel Co. Ltd. etc. Vs. UOI and others and Industrial Development Corporation Orissa Ltd. | of these contentions have been dealt with in the report. We find it difficult to accept the contention that the Rao Committee had not endorsed the concept of captive mining because, as we have already mentioned, it does in fact do so. Having studied the decision in the Indian Metals case we find that on the issue of the requirement of captive mining, this Court had expressly refrained from giving an opinion on the issue as it did not arise for its consideration; however, it did recommend that chromite ore be supplied to needy applicants in an equitable manner. It must be pointed out that nowhere in the Rao Report nor in the report of the Committee, has the requirement of captive mining been interpreted to mean that every industry within the State would, by reason of its existence, be entitled to a mining lease. The captive requirement of an industry is a factor that has to be kept in mind while granting leases but, it is to be done on a comparative scale. While the Central Government exercises its discretion in granting or renewing a lease, it is clear that the capacity of an industry to effectively exploit the ore, will be a predominant consideration. The submission of the learned counsel that none of the other parties before this Court required the mineral ore for captive consumption cannot be accepted. This aspect has been specifically examined by the Committee at pages 260-263 of its report. In order to properly appreciate the issue of captive consumption, the Committee examined the needs of the other parties before it. It stated that each of these parties had manufacturing industries which produce value-added products and earn considerable foreign exchange for the country, and it was therefore of the view that an analysis of their total requirement was necessary in the interests of mineral development as also that of the nation. Based on the information supplied to it, the Committee thereafter made an assessment, for a total period of 50 years, of the captive and net requirements of ICCL, IMFA, FACOR and JSL. At page 349 of its report, the Committee has also taken note of the projected captive and net requirements of Ispat Alloys. This being a finding of fact that has been recorded by the/Committee, we have to accept that the argument of captive consumption does have a basis in the facts of the present case. On the issue of the application of the principle of equitable distribution, we are of the view that the Committee had, after having taken note of the prevailing situation and the problems faced by needy manufacturers, taken the correct view in recommending its implementation. 58. We are, therefore, of the view that the Committee had correctly interpreted the relevant material available for appreciating the concept of mineral development and adopting the stance that it encompassed the concept of captive mining as well as the principle of equitable distribution. 5. Validity of the Central Governments order dated 17-8-1995 which declared that renewing TISCOs lease over an area of 406 hectares would satisfy its needs and requirements. 59. The Committee made an estimate of the captive mining requirement of each of the parties appearing before it after coming to the conclusion that this was a fundamental guideline to be kept in mind while renewing TISCOs lease. To complete this exercise, it relied upon the submissions of counsel, technical evidence submitted by them and the relevant technical information available. In the case of TISCO, after taking into account all the technical grounds and objections put forth by the learned counsel for TISCO, the Committee came to the conclusion that its lease should be granted renewal for a period of 20 years over a contiguous area of 461 hectares. 60. By its order dated 17-8-1995, the Central Government while endorsing the finding of the Committee recommended to the State Government that TISCOs lease be renewed for 20 years over a reduced area of 406 hectares. The reasons for the reduction were also provided. 61. The decision of the Committee and the consequent order of the Central Government have been assailed by the learned counsel for TISCO on a number of technical grounds. Many of these have already been dealt with by the Committee. 62. At this juncture, we think it fit to make a few observations about our general approach to the entire case. This is a case of the type where legal issues are intertwined with those involving determination of policy and a plethora of technical issues. In such a situation, courts of law have to be very wary and must exercise their jurisdiction with circumspection for they must not transgress into the realm of policy-making, unless the policy is inconsistent with the Constitution and the laws. In the present matter, in its impugned judgment, the High Court had directed the Central Government to set up a Committee to analyse the entire gamut of issues thrown up by the present controversy. The Central Government had consequently constituted a Committee comprising high-level functionaries drawn from various governmental/institutional agencies who were equipped to deal with the entire range of technical and long-term considerations involved. This Committee, in reaching its decision, consulted a number of policy documents and approached the issue from a holistic perspective. We have sought to give our opinion on the legal issues that arise for our consideration. From the scheme of the Act it is clear that the Central Government is vested with discretion to determine the policy regarding the grant or renewal of leases. On matters affecting policy and those that require technical expertise, we have shown deference to, and followed the recommendations of, the Committee which is more qualified to address these issues. 63. We are, therefore, of the view that the Central Government was justified in issuing its order dated 17-8-1995. 64. For the foregoing reasons, we are of the view that the High Court and the Committee were justified in the view they took. | 0[ds]30. We have studied the orders of the Central Government dated3 is a statement which declares the grant of a second renewal to TISCO. It does not profess to give any reasons for such a decision and, for that reason, falls foul of the requirement of Section 8(3), as has rightly been pointed out by the High Court. The order dated3 is more generous in terms of the reasons it offers; however, the High Court was of the view that, since it did not take into account the findings of the Rao Report, the decision of this Court in the Indian Metals case and the National Mineral Policy, it could not have justified its decision as having been made after a proper analysis of the interest of mineral development. This brings us to the consideration of the second issue before us2. Relevance of the Rao Report and the decision of this Court in the Indian Metals case to the renewal of TISCO s lease31. The submissions made before us by the learned counsel for TISCO on this issue are a replication of those put forth before the Committee, and need not be repeated. We may, therefore, proceed to analyse the decision in the Indian Metals case. In that case, this Court was faced with a situation where, through a series of writ petitions, the grant of rights for the mining of chromite ore in the State of Orissa was challenged. The central issue that arose for adjudication was whether, and to what extent, the parties before the Court were entitled to obtain leases for the mining of chromite ore in the State of Orissa. Though the learned counsel for TISCO sought to indicate that that case is distinguishable from the one on hand on account of the fact that, while the former dealt with the grant of fresh licences, the present deals with renewal of lease, which involves a fundamentally different assessment, we must, however, point out that, in essence, both cases deal with the larger issue of mining of chromite ore in the State of Orissa and, in view of this relation, it becomes necessary for us to consider the views expressed therein33. It is clear from a study of the Indian Metals case that in the opinion of this Court, the Rao Report had made such a comprehensive study of the issue that it merited treatment as a decision of the Central Government. In our view, once this has been clearly stated by this Court, the Central Government, though not bound to follow the recommendations of the Rao Report, was at the very least under an obligation to record reasons why it sought to depart from the recommendations of the Report; especially in matters such as these where leases of considerable commercial value are granted for long periods of time34. We are, therefore, of the view that the High Court and the Committee were justified in taking note of the findings of the Rao Report as well as the observations of this Court in the Indian Metals case in considering the issue of renewal of TISCO s lease35. Since the order dated3 did not make any reference to the Rao Report or the decision of this Court, we feel that the High Court was justified in striking it down for not having taken into account all the factors relating to a proper appreciation of the concept of mineral development3. Locus standi of prospective applicants in proceedings considering the renewal of TISCO S lease42. We are of the view that the High Court had taken the correct step in allowing the prospective applicants to put forth their points of view with regard to the renewal of TISCOs lease. As we have already pointed out, these issues involve considerably high stakes, both in terms of commercial value and the effect that such a decision will have on the concept of mineral development and the consequent national interest. To that extent, those likely to be affected and indeed, those who can legitimately have a stake in the proper formulation of such a vital policy, can be heard. No exception can be taken to the High Court treating them as proper parties and directing the Committee to hear them43. We, therefore, hold that both the High Court and the Committee were justified in hearing the prospective applicants while considering the issue of renewal of TISCO s lease54. Thereupon, the Committee analysed the provisions of Article 14 and Article 39(b) of the Constitution which, in its view, were relevant for the purpose of appreciating the issue under Section 8(3) of the Act. It then came to the conclusion that, to grant the renewal of mining lease over an area as large as that held by TISCO, in favour of a single applicant whose own needs are limited, while several needy manufacturers were deprived of adequate sources of raw material, would be to promote monopolistic tendencies which cannot be allowed55. For the foregoing reasons, the Committee was of the view that the concept of mineral development under Section 8(3) of the Act requires the assessment of the captive mining requirement of different industries as also the application of the principle of equitable distribution of mining leasesWe find it difficult to accept the contention that the Rao Committee had not endorsed the concept of captive mining because, as we have already mentioned, it does in fact do so. Having studied the decision in the Indian Metals case we find that on the issue of the requirement of captive mining, this Court had expressly refrained from giving an opinion on the issue as it did not arise for its consideration; however, it did recommend that chromite ore be supplied to needy applicants in an equitable manner. It must be pointed out that nowhere in the Rao Report nor in the report of the Committee, has the requirement of captive mining been interpreted to mean that every industry within the State would, by reason of its existence, be entitled to a mining lease. The captive requirement of an industry is a factor that has to be kept in mind while granting leases but, it is to be done on a comparative scale. While the Central Government exercises its discretion in granting or renewing a lease, it is clear that the capacity of an industry to effectively exploit the ore, will be a predominant consideration. The submission of the learned counsel that none of the other parties before this Court required the mineral ore for captive consumption cannot be accepted. This aspect has been specifically examined by the Committee at pages3 of its report. In order to properly appreciate the issue of captive consumption, the Committee examined the needs of the other parties before it. It stated that each of these parties had manufacturing industries which produced products and earn considerable foreign exchange for the country, and it was therefore of the view that an analysis of their total requirement was necessary in the interests of mineral development as also that of the nation. Based on the information supplied to it, the Committee thereafter made an assessment, for a total period of 50 years, of the captive and net requirements of ICCL, IMFA, FACOR and JSL. At page 349 of its report, the Committee has also taken note of the projected captive and net requirements of Ispat Alloys. This being a finding of fact that has been recorded by the/Committee, we have to accept that the argument of captive consumption does have a basis in the facts of the present case. On the issue of the application of the principle of equitable distribution, we are of the view that the Committee had, after having taken note of the prevailing situation and the problems faced by needy manufacturers, taken the correct view in recommending its implementation58. We are, therefore, of the view that the Committee had correctly interpreted the relevant material available for appreciating the concept of mineral development and adopting the stance that it encompassed the concept of captive mining as well as the principle of equitable distribution5. Validity of the Central Governments order dated62. At this juncture, we think it fit to make a few observations about our general approach to the entire case. This is a case of the type where legal issues are intertwined with those involving determination of policy and a plethora of technical issues. In such a situation, courts of law have to be very wary and must exercise their jurisdiction with circumspection for they must not transgress into the realm of, unless the policy is inconsistent with the Constitution and the laws. In the present matter, in its impugned judgment, the High Court had directed the Central Government to set up a Committee to analyse the entire gamut of issues thrown up by the present controversy. The Central Government had consequently constituted a Committee comprisingl functionaries drawn from various governmental/institutional agencies who were equipped to deal with the entire range of technical andm considerations involved. This Committee, in reaching its decision, consulted a number of policy documents and approached the issue from a holistic perspective. We have sought to give our opinion on the legal issues that arise for our consideration. From the scheme of the Act it is clear that the Central Government is vested with discretion to determine the policy regarding the grant or renewal of leases. On matters affecting policy and those that require technical expertise, we have shown deference to, and followed the recommendations of, the Committee which is more qualified to address these issues64. For the foregoing reasons, we are of the view that the High Court and the Committee were justified in the view they took. | 0 | 9,529 | 1,772 | ### Instruction:
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of these contentions have been dealt with in the report. We find it difficult to accept the contention that the Rao Committee had not endorsed the concept of captive mining because, as we have already mentioned, it does in fact do so. Having studied the decision in the Indian Metals case we find that on the issue of the requirement of captive mining, this Court had expressly refrained from giving an opinion on the issue as it did not arise for its consideration; however, it did recommend that chromite ore be supplied to needy applicants in an equitable manner. It must be pointed out that nowhere in the Rao Report nor in the report of the Committee, has the requirement of captive mining been interpreted to mean that every industry within the State would, by reason of its existence, be entitled to a mining lease. The captive requirement of an industry is a factor that has to be kept in mind while granting leases but, it is to be done on a comparative scale. While the Central Government exercises its discretion in granting or renewing a lease, it is clear that the capacity of an industry to effectively exploit the ore, will be a predominant consideration. The submission of the learned counsel that none of the other parties before this Court required the mineral ore for captive consumption cannot be accepted. This aspect has been specifically examined by the Committee at pages 260-263 of its report. In order to properly appreciate the issue of captive consumption, the Committee examined the needs of the other parties before it. It stated that each of these parties had manufacturing industries which produce value-added products and earn considerable foreign exchange for the country, and it was therefore of the view that an analysis of their total requirement was necessary in the interests of mineral development as also that of the nation. Based on the information supplied to it, the Committee thereafter made an assessment, for a total period of 50 years, of the captive and net requirements of ICCL, IMFA, FACOR and JSL. At page 349 of its report, the Committee has also taken note of the projected captive and net requirements of Ispat Alloys. This being a finding of fact that has been recorded by the/Committee, we have to accept that the argument of captive consumption does have a basis in the facts of the present case. On the issue of the application of the principle of equitable distribution, we are of the view that the Committee had, after having taken note of the prevailing situation and the problems faced by needy manufacturers, taken the correct view in recommending its implementation. 58. We are, therefore, of the view that the Committee had correctly interpreted the relevant material available for appreciating the concept of mineral development and adopting the stance that it encompassed the concept of captive mining as well as the principle of equitable distribution. 5. Validity of the Central Governments order dated 17-8-1995 which declared that renewing TISCOs lease over an area of 406 hectares would satisfy its needs and requirements. 59. The Committee made an estimate of the captive mining requirement of each of the parties appearing before it after coming to the conclusion that this was a fundamental guideline to be kept in mind while renewing TISCOs lease. To complete this exercise, it relied upon the submissions of counsel, technical evidence submitted by them and the relevant technical information available. In the case of TISCO, after taking into account all the technical grounds and objections put forth by the learned counsel for TISCO, the Committee came to the conclusion that its lease should be granted renewal for a period of 20 years over a contiguous area of 461 hectares. 60. By its order dated 17-8-1995, the Central Government while endorsing the finding of the Committee recommended to the State Government that TISCOs lease be renewed for 20 years over a reduced area of 406 hectares. The reasons for the reduction were also provided. 61. The decision of the Committee and the consequent order of the Central Government have been assailed by the learned counsel for TISCO on a number of technical grounds. Many of these have already been dealt with by the Committee. 62. At this juncture, we think it fit to make a few observations about our general approach to the entire case. This is a case of the type where legal issues are intertwined with those involving determination of policy and a plethora of technical issues. In such a situation, courts of law have to be very wary and must exercise their jurisdiction with circumspection for they must not transgress into the realm of policy-making, unless the policy is inconsistent with the Constitution and the laws. In the present matter, in its impugned judgment, the High Court had directed the Central Government to set up a Committee to analyse the entire gamut of issues thrown up by the present controversy. The Central Government had consequently constituted a Committee comprising high-level functionaries drawn from various governmental/institutional agencies who were equipped to deal with the entire range of technical and long-term considerations involved. This Committee, in reaching its decision, consulted a number of policy documents and approached the issue from a holistic perspective. We have sought to give our opinion on the legal issues that arise for our consideration. From the scheme of the Act it is clear that the Central Government is vested with discretion to determine the policy regarding the grant or renewal of leases. On matters affecting policy and those that require technical expertise, we have shown deference to, and followed the recommendations of, the Committee which is more qualified to address these issues. 63. We are, therefore, of the view that the Central Government was justified in issuing its order dated 17-8-1995. 64. For the foregoing reasons, we are of the view that the High Court and the Committee were justified in the view they took.
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we have already pointed out, these issues involve considerably high stakes, both in terms of commercial value and the effect that such a decision will have on the concept of mineral development and the consequent national interest. To that extent, those likely to be affected and indeed, those who can legitimately have a stake in the proper formulation of such a vital policy, can be heard. No exception can be taken to the High Court treating them as proper parties and directing the Committee to hear them43. We, therefore, hold that both the High Court and the Committee were justified in hearing the prospective applicants while considering the issue of renewal of TISCO s lease54. Thereupon, the Committee analysed the provisions of Article 14 and Article 39(b) of the Constitution which, in its view, were relevant for the purpose of appreciating the issue under Section 8(3) of the Act. It then came to the conclusion that, to grant the renewal of mining lease over an area as large as that held by TISCO, in favour of a single applicant whose own needs are limited, while several needy manufacturers were deprived of adequate sources of raw material, would be to promote monopolistic tendencies which cannot be allowed55. For the foregoing reasons, the Committee was of the view that the concept of mineral development under Section 8(3) of the Act requires the assessment of the captive mining requirement of different industries as also the application of the principle of equitable distribution of mining leasesWe find it difficult to accept the contention that the Rao Committee had not endorsed the concept of captive mining because, as we have already mentioned, it does in fact do so. Having studied the decision in the Indian Metals case we find that on the issue of the requirement of captive mining, this Court had expressly refrained from giving an opinion on the issue as it did not arise for its consideration; however, it did recommend that chromite ore be supplied to needy applicants in an equitable manner. It must be pointed out that nowhere in the Rao Report nor in the report of the Committee, has the requirement of captive mining been interpreted to mean that every industry within the State would, by reason of its existence, be entitled to a mining lease. The captive requirement of an industry is a factor that has to be kept in mind while granting leases but, it is to be done on a comparative scale. While the Central Government exercises its discretion in granting or renewing a lease, it is clear that the capacity of an industry to effectively exploit the ore, will be a predominant consideration. The submission of the learned counsel that none of the other parties before this Court required the mineral ore for captive consumption cannot be accepted. This aspect has been specifically examined by the Committee at pages3 of its report. In order to properly appreciate the issue of captive consumption, the Committee examined the needs of the other parties before it. It stated that each of these parties had manufacturing industries which produced products and earn considerable foreign exchange for the country, and it was therefore of the view that an analysis of their total requirement was necessary in the interests of mineral development as also that of the nation. Based on the information supplied to it, the Committee thereafter made an assessment, for a total period of 50 years, of the captive and net requirements of ICCL, IMFA, FACOR and JSL. At page 349 of its report, the Committee has also taken note of the projected captive and net requirements of Ispat Alloys. This being a finding of fact that has been recorded by the/Committee, we have to accept that the argument of captive consumption does have a basis in the facts of the present case. On the issue of the application of the principle of equitable distribution, we are of the view that the Committee had, after having taken note of the prevailing situation and the problems faced by needy manufacturers, taken the correct view in recommending its implementation58. We are, therefore, of the view that the Committee had correctly interpreted the relevant material available for appreciating the concept of mineral development and adopting the stance that it encompassed the concept of captive mining as well as the principle of equitable distribution5. Validity of the Central Governments order dated62. At this juncture, we think it fit to make a few observations about our general approach to the entire case. This is a case of the type where legal issues are intertwined with those involving determination of policy and a plethora of technical issues. In such a situation, courts of law have to be very wary and must exercise their jurisdiction with circumspection for they must not transgress into the realm of, unless the policy is inconsistent with the Constitution and the laws. In the present matter, in its impugned judgment, the High Court had directed the Central Government to set up a Committee to analyse the entire gamut of issues thrown up by the present controversy. The Central Government had consequently constituted a Committee comprisingl functionaries drawn from various governmental/institutional agencies who were equipped to deal with the entire range of technical andm considerations involved. This Committee, in reaching its decision, consulted a number of policy documents and approached the issue from a holistic perspective. We have sought to give our opinion on the legal issues that arise for our consideration. From the scheme of the Act it is clear that the Central Government is vested with discretion to determine the policy regarding the grant or renewal of leases. On matters affecting policy and those that require technical expertise, we have shown deference to, and followed the recommendations of, the Committee which is more qualified to address these issues64. For the foregoing reasons, we are of the view that the High Court and the Committee were justified in the view they took.
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P. Srinivasa Naicker Vs. Smt. Engammammal And Another | Subordinate Judge would have been right in interfering with the sale proposed by the official receiver. That matter has been considered by the District Judge and he has held that there is no reason to hold that the properties were being sold for a low price. The Subordinate Judge in dealing with the question of price has pointed out that the insolvent had valued the properties at Rs. 80,000/-, though he was conscious of the fact that this was probably an exaggeration. He therefore did not hold that the properties were worth Rs. 80,000/-. He came to the conclusion that the properties would be worth at least Rs. 40,000/- and the main reason why he said so was that the "properties had been mortgaged for over Rs. 20,000/- in 1946. According to him, there seems to be some infallible rule that one must double the mortgage money in order to arrive at the valuation of the properties mortgaged. The District Judge has pointed out -and we think, rightly-that there can be no such rule. Therefore, the main basis on which the Subordinate Judge held that the properties were worth Rs. 40,000/ and therefore the bid of the appellant was low, falls to the ground, as pointed out by the District Judge. The Subordinate Judge also pointed out that the insolvents were in possession of the properties during the pendency of the insolvency appeal and had been depositing Rs. 2,000 - annually on the order of the High Court in order to remain in possession. The Subordinate Judge however did not calculate the value of the properties on the basis that their annual income was Rs. 2,000/- and rightly so because the amount deposited by a litigant on the order of a court in order to retain possession of some property cannot necessarily lead to the inference that that way the annual income of the property. It seems therefore that the District Judge was right when he held that there was no evidence on the record which would justify the finding of the Subordinate Judge that the price fetched by the sale in this case was inadequate or unreasonable. We may add that it was open to the respondent to show to the Subordinate Judge by well-recognised methods of valuation as to what the value of the properties was. The Subordinate Judge should have then taken into account the total amount of the encumbrance on these properties. The mortgage deed is not on the record and we do not know what interest, if any, the mortgage money carried. Before the Subordinate Judge could come to the conclusion that the price offered by the appellant was low, he had first to find out the price of the properties by some recognised method. He had then to find what was the total amount of encumbrance on the properties. If on finding these things it appeared that the difference between the two was much larger than the price bid by the appellant, the Subordinate Judge would have been justified in interfering with the order of the official receiver, even if there was no question of fraud, collusion or irregularity in the present case. But no such findings have been given by the Suborinate Judge and the District Judge consequently was right when he said that the view of the Subordinate Judge that the price fetched was inadequate and unreasonable is incorrect. Unfortunately, the High Court did not address itself to the question whether the order of the District Judge was according to law or not. It seems to have been impressed by the offer made by the respondent, over-looking the fact that the offer of Rs. 9,000/- as the minimum bid and Rs. 1,000/- for the appellant was being made three years after the auction during which, for all that we know, the prices might have risen. Further, the High Court has remarked that the price offered by the appellant was not unconscionably low but it felt that it was still low on a comparison with the offer made by the respondent in 1956.As the High Court did not consider the question whether the order of the District Judge was according to law or not and did not come to the conclusion that that order was not according to law, the High Court would have no jurisdiction to interfere with that order.11. Learned counsel for the respondent urged that even though the High Court may not have considered the matter from this aspect, we should not interfere with the order of the High Court if we are satisfied that in fact the price offered by the appellant was low, in the circumstances prevailing in 1953. We agree that if it was possible for us to come to the conclusion that the price offered by the appellant was low there would be no reason to interfere with the order of the High Court, even though it might not have considered what was necessary for it to do for interfering under the proviso to S. 75; but as we have pointed earlier, there is no sufficient material on the record on which we can say that the price offered by the appellant is low. As we have already pointed out no attempt was made in the Subordinate Judges court to value the properties by any of the well recognised methods by which properties are valued. Further no attempt was made to show the total encumbrance on the property. Unless the valuation was properly made and the encumbrance was found out, it is not possible to say that the offer made by the appellant was low, for that would depend upon the difference between the value of the properties and the amount of encumbrance. In these circumstances, it is not possible for us to say that the order of the District Judge when he held that the Subordinate Judge was not right in holding that the price fetched was inadequate or unreasonable, is not according to law. | 1[ds]8. It may be accepted that the power of the court under S. 68 is not hedged in by those, considerations which apply in cases of auction sales in execution proceedings. Even so, the power under S. 68 is a judicial power and must be exercised on well recognised principles, justifying interference with an act of the receiver which he is empowered to do under S. 59 (a) of the Act. The fact that the act of the receiver in selling properties under S. 59(a) is subject to the control of the court under S. 68 does not mean that the court can arbitrarily set aside a sale decided upon by the official receiver. It is true that the court has to look in insolvency proceedings to the interest in the first place of the general body of creditors; in the second place to the interest of the insolvent, and lastly, where a sale has been decided upon by the official receiver to the interest of the intending purchaser in that order.10. Let us therefore turn first to the order of the Subordinate Judge and see if it is justified on the grounds mentioned above.Now both the subordinate Judge and the District Judge found that there was no reason to hold that there was any fraud or collusion on the part of the official receiver in this case. Further, the Subordinate Judge did not find that there was any irregularity committed by the official receiver in conducting the sale and the District Judge has definitely found that there was no such irregularity. The only ground on which the subordinate Judge held that the sale should be set aside was that the price fetched was low. Now if that ground is justified, the Subordinate Judge would have been right in interfering with the sale proposed by the official receiver. That matter has been considered by the District Judge and he has held that there is no reason to hold that the properties were being sold for a low price. The Subordinate Judge in dealing with the question of price has pointed out that the insolvent had valued the properties at Rs. 80,000/-, though he was conscious of the fact that this was probably an exaggeration. He therefore did not hold that the properties were worth Rs. 80,000/-. He came to the conclusion that the properties would be worth at least Rs. 40,000/- and the main reason why he said so was that the "properties had been mortgaged for over Rs. 20,000/- in 1946. According to him, there seems to be some infallible rule that one must double the mortgage money in order to arrive at the valuation of the properties mortgaged. The District Judge has pointed out -and we think, rightly-that there can be no such rule. Therefore, the main basis on which the Subordinate Judge held that the properties were worth Rs. 40,000/ and therefore the bid of the appellant was low, falls to the ground, as pointed out by the District Judge. The Subordinate Judge also pointed out that the insolvents were in possession of the properties during the pendency of the insolvency appeal and had been depositing Rs. 2,000 - annually on the order of the High Court in order to remain in possession. The Subordinate Judge however did not calculate the value of the properties on the basis that their annual income was Rs. 2,000/- and rightly so because the amount deposited by a litigant on the order of a court in order to retain possession of some property cannot necessarily lead to the inference that that way the annual income of the property. It seems therefore that the District Judge was right when he held that there was no evidence on the record which would justify the finding of the Subordinate Judge that the price fetched by the sale in this case was inadequate or unreasonable. We may add that it was open to the respondent to show to the Subordinate Judge by well-recognised methods of valuation as to what the value of the properties was. The Subordinate Judge should have then taken into account the total amount of the encumbrance on these properties. The mortgage deed is not on the record and we do not know what interest, if any, the mortgage money carried. Before the Subordinate Judge could come to the conclusion that the price offered by the appellant was low, he had first to find out the price of the properties by some recognised method. He had then to find what was the total amount of encumbrance on the properties. If on finding these things it appeared that the difference between the two was much larger than the price bid by the appellant, the Subordinate Judge would have been justified in interfering with the order of the official receiver, even if there was no question of fraud, collusion or irregularity in the present case. But no such findings have been given by the Suborinate Judge and the District Judge consequently was right when he said that the view of the Subordinate Judge that the price fetched was inadequate and unreasonable is incorrect. Unfortunately, the High Court did not address itself to the question whether the order of the District Judge was according to law or not. It seems to have been impressed by the offer made by the respondent, over-looking the fact that the offer of Rs. 9,000/- as the minimum bid and Rs. 1,000/- for the appellant was being made three years after the auction during which, for all that we know, the prices might have risen. Further, the High Court has remarked that the price offered by the appellant was not unconscionably low but it felt that it was still low on a comparison with the offer made by the respondent in 1956.As the High Court did not consider the question whether the order of the District Judge was according to law or not and did not come to the conclusion that that order was not according to law, the High Court would have no jurisdiction to interfere with that order.We agree that if it was possible for us to come to the conclusion that the price offered by the appellant was low there would be no reason to interfere with the order of the High Court, even though it might not have considered what was necessary for it to do for interfering under the proviso to S. 75; but as we have pointed earlier, there is no sufficient material on the record on which we can say that the price offered by the appellant is low. As we have already pointed out no attempt was made in the Subordinate Judges court to value the properties by any of the well recognised methods by which properties are valued. Further no attempt was made to show the total encumbrance on the property. Unless the valuation was properly made and the encumbrance was found out, it is not possible to say that the offer made by the appellant was low, for that would depend upon the difference between the value of the properties and the amount of encumbrance. In these circumstances, it is not possible for us to say that the order of the District Judge when he held that the Subordinate Judge was not right in holding that the price fetched was inadequate or unreasonable, is not according to law. | 1 | 3,072 | 1,324 | ### Instruction:
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Subordinate Judge would have been right in interfering with the sale proposed by the official receiver. That matter has been considered by the District Judge and he has held that there is no reason to hold that the properties were being sold for a low price. The Subordinate Judge in dealing with the question of price has pointed out that the insolvent had valued the properties at Rs. 80,000/-, though he was conscious of the fact that this was probably an exaggeration. He therefore did not hold that the properties were worth Rs. 80,000/-. He came to the conclusion that the properties would be worth at least Rs. 40,000/- and the main reason why he said so was that the "properties had been mortgaged for over Rs. 20,000/- in 1946. According to him, there seems to be some infallible rule that one must double the mortgage money in order to arrive at the valuation of the properties mortgaged. The District Judge has pointed out -and we think, rightly-that there can be no such rule. Therefore, the main basis on which the Subordinate Judge held that the properties were worth Rs. 40,000/ and therefore the bid of the appellant was low, falls to the ground, as pointed out by the District Judge. The Subordinate Judge also pointed out that the insolvents were in possession of the properties during the pendency of the insolvency appeal and had been depositing Rs. 2,000 - annually on the order of the High Court in order to remain in possession. The Subordinate Judge however did not calculate the value of the properties on the basis that their annual income was Rs. 2,000/- and rightly so because the amount deposited by a litigant on the order of a court in order to retain possession of some property cannot necessarily lead to the inference that that way the annual income of the property. It seems therefore that the District Judge was right when he held that there was no evidence on the record which would justify the finding of the Subordinate Judge that the price fetched by the sale in this case was inadequate or unreasonable. We may add that it was open to the respondent to show to the Subordinate Judge by well-recognised methods of valuation as to what the value of the properties was. The Subordinate Judge should have then taken into account the total amount of the encumbrance on these properties. The mortgage deed is not on the record and we do not know what interest, if any, the mortgage money carried. Before the Subordinate Judge could come to the conclusion that the price offered by the appellant was low, he had first to find out the price of the properties by some recognised method. He had then to find what was the total amount of encumbrance on the properties. If on finding these things it appeared that the difference between the two was much larger than the price bid by the appellant, the Subordinate Judge would have been justified in interfering with the order of the official receiver, even if there was no question of fraud, collusion or irregularity in the present case. But no such findings have been given by the Suborinate Judge and the District Judge consequently was right when he said that the view of the Subordinate Judge that the price fetched was inadequate and unreasonable is incorrect. Unfortunately, the High Court did not address itself to the question whether the order of the District Judge was according to law or not. It seems to have been impressed by the offer made by the respondent, over-looking the fact that the offer of Rs. 9,000/- as the minimum bid and Rs. 1,000/- for the appellant was being made three years after the auction during which, for all that we know, the prices might have risen. Further, the High Court has remarked that the price offered by the appellant was not unconscionably low but it felt that it was still low on a comparison with the offer made by the respondent in 1956.As the High Court did not consider the question whether the order of the District Judge was according to law or not and did not come to the conclusion that that order was not according to law, the High Court would have no jurisdiction to interfere with that order.11. Learned counsel for the respondent urged that even though the High Court may not have considered the matter from this aspect, we should not interfere with the order of the High Court if we are satisfied that in fact the price offered by the appellant was low, in the circumstances prevailing in 1953. We agree that if it was possible for us to come to the conclusion that the price offered by the appellant was low there would be no reason to interfere with the order of the High Court, even though it might not have considered what was necessary for it to do for interfering under the proviso to S. 75; but as we have pointed earlier, there is no sufficient material on the record on which we can say that the price offered by the appellant is low. As we have already pointed out no attempt was made in the Subordinate Judges court to value the properties by any of the well recognised methods by which properties are valued. Further no attempt was made to show the total encumbrance on the property. Unless the valuation was properly made and the encumbrance was found out, it is not possible to say that the offer made by the appellant was low, for that would depend upon the difference between the value of the properties and the amount of encumbrance. In these circumstances, it is not possible for us to say that the order of the District Judge when he held that the Subordinate Judge was not right in holding that the price fetched was inadequate or unreasonable, is not according to law.
### Response:
1
### Explanation:
any irregularity committed by the official receiver in conducting the sale and the District Judge has definitely found that there was no such irregularity. The only ground on which the subordinate Judge held that the sale should be set aside was that the price fetched was low. Now if that ground is justified, the Subordinate Judge would have been right in interfering with the sale proposed by the official receiver. That matter has been considered by the District Judge and he has held that there is no reason to hold that the properties were being sold for a low price. The Subordinate Judge in dealing with the question of price has pointed out that the insolvent had valued the properties at Rs. 80,000/-, though he was conscious of the fact that this was probably an exaggeration. He therefore did not hold that the properties were worth Rs. 80,000/-. He came to the conclusion that the properties would be worth at least Rs. 40,000/- and the main reason why he said so was that the "properties had been mortgaged for over Rs. 20,000/- in 1946. According to him, there seems to be some infallible rule that one must double the mortgage money in order to arrive at the valuation of the properties mortgaged. The District Judge has pointed out -and we think, rightly-that there can be no such rule. Therefore, the main basis on which the Subordinate Judge held that the properties were worth Rs. 40,000/ and therefore the bid of the appellant was low, falls to the ground, as pointed out by the District Judge. The Subordinate Judge also pointed out that the insolvents were in possession of the properties during the pendency of the insolvency appeal and had been depositing Rs. 2,000 - annually on the order of the High Court in order to remain in possession. The Subordinate Judge however did not calculate the value of the properties on the basis that their annual income was Rs. 2,000/- and rightly so because the amount deposited by a litigant on the order of a court in order to retain possession of some property cannot necessarily lead to the inference that that way the annual income of the property. It seems therefore that the District Judge was right when he held that there was no evidence on the record which would justify the finding of the Subordinate Judge that the price fetched by the sale in this case was inadequate or unreasonable. We may add that it was open to the respondent to show to the Subordinate Judge by well-recognised methods of valuation as to what the value of the properties was. The Subordinate Judge should have then taken into account the total amount of the encumbrance on these properties. The mortgage deed is not on the record and we do not know what interest, if any, the mortgage money carried. Before the Subordinate Judge could come to the conclusion that the price offered by the appellant was low, he had first to find out the price of the properties by some recognised method. He had then to find what was the total amount of encumbrance on the properties. If on finding these things it appeared that the difference between the two was much larger than the price bid by the appellant, the Subordinate Judge would have been justified in interfering with the order of the official receiver, even if there was no question of fraud, collusion or irregularity in the present case. But no such findings have been given by the Suborinate Judge and the District Judge consequently was right when he said that the view of the Subordinate Judge that the price fetched was inadequate and unreasonable is incorrect. Unfortunately, the High Court did not address itself to the question whether the order of the District Judge was according to law or not. It seems to have been impressed by the offer made by the respondent, over-looking the fact that the offer of Rs. 9,000/- as the minimum bid and Rs. 1,000/- for the appellant was being made three years after the auction during which, for all that we know, the prices might have risen. Further, the High Court has remarked that the price offered by the appellant was not unconscionably low but it felt that it was still low on a comparison with the offer made by the respondent in 1956.As the High Court did not consider the question whether the order of the District Judge was according to law or not and did not come to the conclusion that that order was not according to law, the High Court would have no jurisdiction to interfere with that order.We agree that if it was possible for us to come to the conclusion that the price offered by the appellant was low there would be no reason to interfere with the order of the High Court, even though it might not have considered what was necessary for it to do for interfering under the proviso to S. 75; but as we have pointed earlier, there is no sufficient material on the record on which we can say that the price offered by the appellant is low. As we have already pointed out no attempt was made in the Subordinate Judges court to value the properties by any of the well recognised methods by which properties are valued. Further no attempt was made to show the total encumbrance on the property. Unless the valuation was properly made and the encumbrance was found out, it is not possible to say that the offer made by the appellant was low, for that would depend upon the difference between the value of the properties and the amount of encumbrance. In these circumstances, it is not possible for us to say that the order of the District Judge when he held that the Subordinate Judge was not right in holding that the price fetched was inadequate or unreasonable, is not according to law.
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M/s Ballimal Naval Kishore and Another Vs. Commissioner of Income Tax | on "current repair s" to buildings, machinery, plant, furniture employed in the business. The assessee-appellant carries on the business of exhibiting films in a theatre called "Naval Talkies" at Panipat. He had purchased the said building in 1937. It was a ginning factory then. He ran the factory till 1940. In the year 1945, he converted it into a cinema theatre and was exhibiting films therein. During the period 1960 to March 1961, the assessee extensively repaired the theatre by expending substantial amounts. The amounts spent by him are: on machinery Rs.16, 002/-, new furniture Rs.27, 889/- sanitary fittings Rs.5, 225/- and replacement of electrical wiring Rs.13, 604/-. In addition thereto, a total amount of Rs.62, 977/- was spent on extensive repairs to walls, to the hall, to the flooring and roofing, to doors and windows and to the stage sides etc. Actually the theatre had to be closed during the aforesaid period for effecting the repairs. 2. In the assessment proceedings relating to the relevant assessment year, the assessee claimed deduction of the aforesaid amount of Rs.62, 977/-. The Income Tax Office disallowed the same. According to him it was capital expenditure. On Appeal, Appellate Assistant Commissioner affirmed the view taken by the Income tax Officer. On further appeal, however, the Tribunal upheld the assessees case whereupon the following question was referred to the Bombay High Court under Section 66(1) of the Indian In come Tax Act, 1922, at the instance of the Revenue: "Whether on the facts and circumstances of the case, in computing the Income of the assessee for the material year a sum of Rs.62977/- or any portion thereof is deductible?" The High Court answered the question in favour of the Revenue and against the assessee following the earlier decision of the said court in New Shorrock Spinning and Manufacturing Company Ltd. vs Commissioner of Income Tax.The expression used in Section 10(2)(v) is "current repairs" and not mere "repairs". The same expression occurs in Section 30(a)(ii) and in Section 31(i) of the Income Tax Act, 1961. The question is what is the meaning of the expression in the context of Section 10(2). In New Shorrock Spinning and Manufacturing Company Ltd., Chagla, C.J., speaking for the Division Bench, observed that the expression "current repairs" means expenditure on buildings, machinery, plant or furniture which is not for the purpose of renewal or restoration but which is only for the purpose of preserving or maintaining an already existing asset and which does not bring a new asset into existence or does not give to the assessee a new or different advantage. The learned Chief Justice observed that they are such repairs as are attended to as and when need arises and that the question when a building, machinery etc. requires repairs and when the need arises must be decided not by any academic or theoretical test but by the test of commercial expediency. The Learned Chief Justice observed: "The simple test that must be constantly borne in mind is that as a result of the expenditure which is claimed as an expenditure or repairs what is really being done is to preserve and maintain an already existing asset. The object of the expenditure is not to bring a new asset into existence, nor is its object the obtaining of a new or fresh advantage. This can be the only definition of `repairs because it is only by reason of this definition of repairs that the expenditure is a revenue expenditure. If the amount spent was for the purpose of bringing into existence a new asset or obtaining a new advantage, then obviously such an expenditure would not be an expenditure of a revenue nature but it would be a capital expenditure, and it is clear that the deduction which, the Legislature has permitted under Section 10(2)(v) is a deduction where the expenditure is a revenue expenditure and not a capital expenditure." * 3. In taking the above view, the Bombay High Court dissented from the view taken by the Allahabad High Court in Ramkrishan Sunderlal vs. Commissioner of Income Tax, U.P. where it was held that the expression "current repairs" in Section 10(2)(v) was restricted to petty repairs only which are carried out periodically. The Learned Judge agreed with the view taken by the Patna High Court in Commissioner of Income Tax vs. Darbhanga Sugar Co. Ltd. [(1956) 29 I.T.T.21] and by the Madras High Court in Commissioner of Income Tax vs. Sri Rama Sugar Mills Ltd. [ 1951 (21) ITR 191] 4. In Liberty Cinema vs. Commissioner of Income-Tax, Calcutta, P.B. Mukharji, J., speaking for a Division Bench of the Calcutta High Court, held that an expenditure incurred with a view to bring into existence a new asset or an advantage of enduring nature cannot qualify for deduction under Section 10(2)(v). 5. In our opinion the test involved by Chagla C.J. in New shorrock Spinning &Manufacturing Company Limited is the most appropriate one having regard to the context in which the said expression occurs. It has also been followed by a majority of the High Courts in India. We respectfully accept and adopt the test. 6. Applying he aforesaid test, if we look at the facts of this case, it will be evident that what the assessee did was not mere repairs but a total renovation of the theatre. New machinery, new furniture, new sanitary fittings and new electrical wiring were installed besides extensively repairing the structure of the building. By no stretch of imagination, can it be said that the said repairs qualify as "current repairs" within the meaning of Section 10(2)(v). It was a case of total renovation and has rightly been held by the High Court to be capital in nature. Indeed, the finding of the high Court is that as against the sum of Rs.17, 000/- for which the assessee had purchased the factory in 1937, the expenditure incurred in the relevant ac counting year was in the region of Rs.1, 20, 000/-. 7. | 0[ds]"The simple test that must be constantly borne in mind is that as a result of the expenditure which is claimed as an expenditure or repairs what is really being done is to preserve and maintain an already existing asset. The object of the expenditure is not to bring a new asset into existence, nor is its object the obtaining of a new or fresh advantage. This can be the only definition of `repairs because it is only by reason of this definition of repairs that the expenditure is a revenue expenditureIf the amount spent was for the purpose of bringing into existence a new asset or obtaining a new advantage, then obviously such an expenditure would not be an expenditure of a revenue nature but it would be a capital expenditure, and it is clear that the deduction which, the Legislature has permitted under Section 10(2)(v) is a deduction where the expenditure is a revenue expenditure and not a capital expenditure." *Applying he aforesaid test, if we look at the facts of this case, it will be evident that what the assessee did was not mere repairs but a total renovation of the theatre. New machinery, new furniture, new sanitary fittings and new electrical wiring were installed besides extensively repairing the structure of the building. By no stretch of imagination, can it be said that the said repairs qualify as "current repairs" within the meaning of Section 10(2)(v). It was a case of total renovation and has rightly been held by the High Court to be capital in nature. Indeed, the finding of the high Court is that as against the sum of Rs.17, 000/- for which the assessee had purchased the factory in 1937, the expenditure incurred in the relevant ac counting year was in the region of Rs.1, 20, 000/- | 0 | 1,200 | 346 | ### 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:
on "current repair s" to buildings, machinery, plant, furniture employed in the business. The assessee-appellant carries on the business of exhibiting films in a theatre called "Naval Talkies" at Panipat. He had purchased the said building in 1937. It was a ginning factory then. He ran the factory till 1940. In the year 1945, he converted it into a cinema theatre and was exhibiting films therein. During the period 1960 to March 1961, the assessee extensively repaired the theatre by expending substantial amounts. The amounts spent by him are: on machinery Rs.16, 002/-, new furniture Rs.27, 889/- sanitary fittings Rs.5, 225/- and replacement of electrical wiring Rs.13, 604/-. In addition thereto, a total amount of Rs.62, 977/- was spent on extensive repairs to walls, to the hall, to the flooring and roofing, to doors and windows and to the stage sides etc. Actually the theatre had to be closed during the aforesaid period for effecting the repairs. 2. In the assessment proceedings relating to the relevant assessment year, the assessee claimed deduction of the aforesaid amount of Rs.62, 977/-. The Income Tax Office disallowed the same. According to him it was capital expenditure. On Appeal, Appellate Assistant Commissioner affirmed the view taken by the Income tax Officer. On further appeal, however, the Tribunal upheld the assessees case whereupon the following question was referred to the Bombay High Court under Section 66(1) of the Indian In come Tax Act, 1922, at the instance of the Revenue: "Whether on the facts and circumstances of the case, in computing the Income of the assessee for the material year a sum of Rs.62977/- or any portion thereof is deductible?" The High Court answered the question in favour of the Revenue and against the assessee following the earlier decision of the said court in New Shorrock Spinning and Manufacturing Company Ltd. vs Commissioner of Income Tax.The expression used in Section 10(2)(v) is "current repairs" and not mere "repairs". The same expression occurs in Section 30(a)(ii) and in Section 31(i) of the Income Tax Act, 1961. The question is what is the meaning of the expression in the context of Section 10(2). In New Shorrock Spinning and Manufacturing Company Ltd., Chagla, C.J., speaking for the Division Bench, observed that the expression "current repairs" means expenditure on buildings, machinery, plant or furniture which is not for the purpose of renewal or restoration but which is only for the purpose of preserving or maintaining an already existing asset and which does not bring a new asset into existence or does not give to the assessee a new or different advantage. The learned Chief Justice observed that they are such repairs as are attended to as and when need arises and that the question when a building, machinery etc. requires repairs and when the need arises must be decided not by any academic or theoretical test but by the test of commercial expediency. The Learned Chief Justice observed: "The simple test that must be constantly borne in mind is that as a result of the expenditure which is claimed as an expenditure or repairs what is really being done is to preserve and maintain an already existing asset. The object of the expenditure is not to bring a new asset into existence, nor is its object the obtaining of a new or fresh advantage. This can be the only definition of `repairs because it is only by reason of this definition of repairs that the expenditure is a revenue expenditure. If the amount spent was for the purpose of bringing into existence a new asset or obtaining a new advantage, then obviously such an expenditure would not be an expenditure of a revenue nature but it would be a capital expenditure, and it is clear that the deduction which, the Legislature has permitted under Section 10(2)(v) is a deduction where the expenditure is a revenue expenditure and not a capital expenditure." * 3. In taking the above view, the Bombay High Court dissented from the view taken by the Allahabad High Court in Ramkrishan Sunderlal vs. Commissioner of Income Tax, U.P. where it was held that the expression "current repairs" in Section 10(2)(v) was restricted to petty repairs only which are carried out periodically. The Learned Judge agreed with the view taken by the Patna High Court in Commissioner of Income Tax vs. Darbhanga Sugar Co. Ltd. [(1956) 29 I.T.T.21] and by the Madras High Court in Commissioner of Income Tax vs. Sri Rama Sugar Mills Ltd. [ 1951 (21) ITR 191] 4. In Liberty Cinema vs. Commissioner of Income-Tax, Calcutta, P.B. Mukharji, J., speaking for a Division Bench of the Calcutta High Court, held that an expenditure incurred with a view to bring into existence a new asset or an advantage of enduring nature cannot qualify for deduction under Section 10(2)(v). 5. In our opinion the test involved by Chagla C.J. in New shorrock Spinning &Manufacturing Company Limited is the most appropriate one having regard to the context in which the said expression occurs. It has also been followed by a majority of the High Courts in India. We respectfully accept and adopt the test. 6. Applying he aforesaid test, if we look at the facts of this case, it will be evident that what the assessee did was not mere repairs but a total renovation of the theatre. New machinery, new furniture, new sanitary fittings and new electrical wiring were installed besides extensively repairing the structure of the building. By no stretch of imagination, can it be said that the said repairs qualify as "current repairs" within the meaning of Section 10(2)(v). It was a case of total renovation and has rightly been held by the High Court to be capital in nature. Indeed, the finding of the high Court is that as against the sum of Rs.17, 000/- for which the assessee had purchased the factory in 1937, the expenditure incurred in the relevant ac counting year was in the region of Rs.1, 20, 000/-. 7.
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0
### Explanation:
"The simple test that must be constantly borne in mind is that as a result of the expenditure which is claimed as an expenditure or repairs what is really being done is to preserve and maintain an already existing asset. The object of the expenditure is not to bring a new asset into existence, nor is its object the obtaining of a new or fresh advantage. This can be the only definition of `repairs because it is only by reason of this definition of repairs that the expenditure is a revenue expenditureIf the amount spent was for the purpose of bringing into existence a new asset or obtaining a new advantage, then obviously such an expenditure would not be an expenditure of a revenue nature but it would be a capital expenditure, and it is clear that the deduction which, the Legislature has permitted under Section 10(2)(v) is a deduction where the expenditure is a revenue expenditure and not a capital expenditure." *Applying he aforesaid test, if we look at the facts of this case, it will be evident that what the assessee did was not mere repairs but a total renovation of the theatre. New machinery, new furniture, new sanitary fittings and new electrical wiring were installed besides extensively repairing the structure of the building. By no stretch of imagination, can it be said that the said repairs qualify as "current repairs" within the meaning of Section 10(2)(v). It was a case of total renovation and has rightly been held by the High Court to be capital in nature. Indeed, the finding of the high Court is that as against the sum of Rs.17, 000/- for which the assessee had purchased the factory in 1937, the expenditure incurred in the relevant ac counting year was in the region of Rs.1, 20, 000/-
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UNION OF INDIA & ANR Vs. MANPREET SINGH POONAM ETC | light of our finding that we are dealing with a case of promotion simpliciter as against upgradation of any nature. 17. On facts, there is no dispute that Respondent in Civil Appeal No.518 of 2017 was given promotion after the successful consideration by the DPC. On such clearance the appellant has rightly fixed the promotion with the year of actual vacancy, as per rules. Thus, the Respondent neither on facts nor on law can claim retrospective promotion, and that too from the year 2009 being the year in which he was placed in the select list against a notional vacancy, especially when the then existing vacancy accrued only in the year 2011, when the JAG-I officers were actually inducted into IAS, against which he was promoted. As such, the promotion cannot be granted retrospectively and extended to give benefit and seniority from the date of notional vacancy, causing violence to Rule 4 and 7 of the 2003 Rules. 18. A mere existence of vacancy per se will not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post is specifically prescribed under the rules, which also mandate the clearance through a selection process. It is also to be borne in mind that when we deal with a case of promotion, there can never be a parity between two separate sets of rules. In other words, a right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules. In the present case, the authority acting within the rules has rightly granted promotion after clearance of DPC on 17.04.2012 with effect from 01.07.2011, when the actual vacancies arose, which in any case is a benefit granted to the Respondent in Civil Appeal No.518 of 2017. In our view, this exercise of power by the authority of granting retrospective promotion with effect from the date on which actual vacancies arose is based on objective considerations and a valid classification. 19. This Court in the case of Union of India v. KK Vadhera and Ors., 1989 Supp (2) SCC 625 has clearly laid down that the promotion to a post should only be granted from the date of promotion and not from the date on which vacancy has arisen, and has observed that: 5….We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post After a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. In the circumstances, it is difficult to sustain the judgment of the Tribunal. 20. Similarly, this Court in the case of Ganga Vishan Gujrati and Ors. v. State of Rajasthan, (2019) 16 SCC 28 has held that: 45. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engg. Officers Assn. v. State of Maharashtra, (1990) 2 SCC 715 . The principle was reiterated by this Court in State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 and State of Uttaranchal v. Dinesh Kumar Sharma, (2007) 1 SCC 683 . In Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267, this Court revisited the precedents on the subject and observed: (SCC pp. 281-82, para 45) 45. … (i) The effective date of selection has to be understood in the context of the Service Rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be. (ii) Inter se seniority in a particular service has to be determined as per the Service Rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. (iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules. (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant Service Rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime. This view has been re-affirmed by a Bench of three Judges of this Court in P. Sudhakar Rao v. U. Govinda Rao, (2013) 8 SCC 693 . | 1[ds]11. There is no dispute, at least to the effect, that the aforesaid rules and the schedules govern the service condition, including the officers promotion from JAG-II to JAG-I. Rule 4 fixes the cap of the sanctioned strength to the post to the maximum of 10%. The schedules to the aforesaid rules clearly indicate the different pay scales for JAG-I and JAG-II.13. As there is no ambiguity in the aforesaid rules, we are not able to approve the views of the CAT and the High Court that JAG-I is a mere upgradation of JAGII. Differential pay scale along with a process of selection qua suitability fixing eligibility criteria are the factors to determine whether a particular post is the same as the other or a promotional one. We feel that such an exercise is not required since the rules themselves are specific. When the rules are specific and clear, there is no need for interpretation which may lead to a case of judicial legislation. We are also in agreement with the submission of the learned counsel for the appellant that the reasoning of the CAT, though not challenged is unsustainable, since there is no occasion to challenge it with the dismissal of the applications filed.14. The High Court also fell in error in taking note of the delay in considering the case of the respondents to the promotional post of JAG-I. No officer has a vested right to a promotional post, which is restricted to that of consideration according to law. The law on this aspect is settled by this Court in the case of Ajay Kumar Shukla and Ors. v. Arvind Rai and Ors., 2021 SCC OnLine SC 1195:37. This Court, time and again, has laid emphasis on right to be considered for promotion to be a fundamental right, as was held by K. Ramaswamy, J., in the case of Director, Lift Irrigation Corporation Ltd. v. Pravat Kiran Mohanty [(1991) 2 SCC 295] in paragraph 4 of the report which is reproduced below:4… There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of respondent/writ petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the respondent/writ petitioner was unjustly denied of the same is obviously unjustified.38. A Constitution Bench in case of Ajit Singh v. State of Punjab [(1999) 7 SCC 209] , laying emphasis on Article 14 and Article 16(1) of the Constitution of India held that if a person who satisfies the eligibility and the criteria for promotion but still is not considered for promotion, then there will be clear violation of his/hers fundamental right. Jagannadha Rao, J. speaking for himself and Anand, CJI., Venkataswami, Pattanaik, Kurdukar, JJ., observed the same as follows in paragraphs 21 and 22 and 27:21 : Articles 14 and 16(1) : is right to be considered for promotion a fundamental right22 : Article 14 and Article 16(1) are closely connected. They deal with individual rights of the person. Article 14 demands that the State shall not deny to any person equality before the law or the equal protection of the laws. Article 16(1) issues a positive command that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.It has been held repeatedly by this Court that clause (1) of Article 16 is a facet of Article 14 and that it takes its roots from Article 14. The said clause particularises the generality in Article 14 and identifies, in a constitutional sense equality of opportunity in matters of employment and appointment to any office under the State. The word employment being wider, there is no dispute that it takes within its fold, the aspect of promotions to posts above the stage of initial level of recruitment. Article 16(1) provides to every employee otherwise eligible for promotion or who comes within the zone of consideration, a fundamental right to be considered for promotion. Equal opportunity here means the right to be considered for promotion. If a person satisfies the eligibility and zone criteria but is not considered for promotion, then there will be a clear infraction of his fundamental right to be considered for promotion, which is his personal right.Promotion based on equal opportunity and seniority attached to such promotion are facets of fundamental right under Article 16(1)27. In our opinion, the above view expressed in Ashok Kumar Gupta and followed in Jagdish Lal and other cases, if it is intended to lay down that the right guarantee to employees for being considered for promotion according to relevant rules of recruitment by promotion (i.e. whether on the basis of seniority or merit) is only a statutory right and not a fundamental right, we cannot accept the proposition. We have already stated earlier that the right to equal opportunity in the matter of promotion in the sense of a right to be considered for promotion is indeed a fundamental right guaranteed under Article 16(1) and this has never been doubted in any other case before Ashok Kumar Gupta right from 1950.15. On facts, we find that promotions could be given for the reason that the migration of the then incumbent in the post of JAG-I, despite being in the select list to the cadre of IAS, did not take place and thus, they were working in the said post till the date of notification paving way. The aforesaid factual position not disputed, the rigor of Rule 4 would certainly come into play. We do not find the proviso to Rule 4 helping the case of the respondents. The post of JAG-I is certainly a promotional post from the feeder cadre of the JAG-II.16. It is trite law that once an officer retires voluntarily, there is cessation of jural relationship resorting to a golden handshake between the employer and employee. Such a former employee cannot seek to agitate his past, as well as future rights, if any, sans the prescription of rules. This would include the enhanced pay scale. The Respondent in Civil Appeal No.517 of 2017 was rightly not considered in the DPC in 2012 since he was no longer in service at the relevant point of time. The High Court has committed an error in relying upon a circular, which has got no application at all, particularly in the light of our finding that we are dealing with a case of promotion simpliciter as against upgradation of any nature.17. On facts, there is no dispute that Respondent in Civil Appeal No.518 of 2017 was given promotion after the successful consideration by the DPC. On such clearance the appellant has rightly fixed the promotion with the year of actual vacancy, as per rules. Thus, the Respondent neither on facts nor on law can claim retrospective promotion, and that too from the year 2009 being the year in which he was placed in the select list against a notional vacancy, especially when the then existing vacancy accrued only in the year 2011, when the JAG-I officers were actually inducted into IAS, against which he was promoted. As such, the promotion cannot be granted retrospectively and extended to give benefit and seniority from the date of notional vacancy, causing violence to Rule 4 and 7 of the 2003 Rules.In the present case, the authority acting within the rules has rightly granted promotion after clearance of DPC on 17.04.2012 with effect from 01.07.2011, when the actual vacancies arose, which in any case is a benefit granted to the Respondent in Civil Appeal No.518 of 2017. In our view, this exercise of power by the authority of granting retrospective promotion with effect from the date on which actual vacancies arose is based on objective considerations and a valid classification.19. This Court in the case of Union of India v. KK Vadhera and Ors., 1989 Supp (2) SCC 625 has clearly laid down that the promotion to a post should only be granted from the date of promotion and not from the date on which vacancy has arisen, and has observed that:5….We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post After a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. In the circumstances, it is difficult to sustain the judgment of the Tribunal.20. Similarly, this Court in the case of Ganga Vishan Gujrati and Ors. v. State of Rajasthan, (2019) 16 SCC 28 has held that:45. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engg. Officers Assn. v. State of Maharashtra, (1990) 2 SCC 715 . The principle was reiterated by this Court in State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 and State of Uttaranchal v. Dinesh Kumar Sharma, (2007) 1 SCC 683 . In Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267, this Court revisited the precedents on the subject and observed: (SCC pp. 281-82, para 45)45. … (i) The effective date of selection has to be understood in the context of the Service Rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.(ii) Inter se seniority in a particular service has to be determined as per the Service Rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant Service Rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.This view has been re-affirmed by a Bench of three Judges of this Court in P. Sudhakar Rao v. U. Govinda Rao, (2013) 8 SCC 693 . | 1 | 4,108 | 2,178 | ### 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:
light of our finding that we are dealing with a case of promotion simpliciter as against upgradation of any nature. 17. On facts, there is no dispute that Respondent in Civil Appeal No.518 of 2017 was given promotion after the successful consideration by the DPC. On such clearance the appellant has rightly fixed the promotion with the year of actual vacancy, as per rules. Thus, the Respondent neither on facts nor on law can claim retrospective promotion, and that too from the year 2009 being the year in which he was placed in the select list against a notional vacancy, especially when the then existing vacancy accrued only in the year 2011, when the JAG-I officers were actually inducted into IAS, against which he was promoted. As such, the promotion cannot be granted retrospectively and extended to give benefit and seniority from the date of notional vacancy, causing violence to Rule 4 and 7 of the 2003 Rules. 18. A mere existence of vacancy per se will not create a right in favour of an employee for retrospective promotion when the vacancies in the promotional post is specifically prescribed under the rules, which also mandate the clearance through a selection process. It is also to be borne in mind that when we deal with a case of promotion, there can never be a parity between two separate sets of rules. In other words, a right to promotion and subsequent benefits and seniority would arise only with respect to the rules governing the said promotion, and not a different set of rules which might apply to a promoted post facilitating further promotion which is governed by a different set of rules. In the present case, the authority acting within the rules has rightly granted promotion after clearance of DPC on 17.04.2012 with effect from 01.07.2011, when the actual vacancies arose, which in any case is a benefit granted to the Respondent in Civil Appeal No.518 of 2017. In our view, this exercise of power by the authority of granting retrospective promotion with effect from the date on which actual vacancies arose is based on objective considerations and a valid classification. 19. This Court in the case of Union of India v. KK Vadhera and Ors., 1989 Supp (2) SCC 625 has clearly laid down that the promotion to a post should only be granted from the date of promotion and not from the date on which vacancy has arisen, and has observed that: 5….We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post After a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. In the circumstances, it is difficult to sustain the judgment of the Tribunal. 20. Similarly, this Court in the case of Ganga Vishan Gujrati and Ors. v. State of Rajasthan, (2019) 16 SCC 28 has held that: 45. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engg. Officers Assn. v. State of Maharashtra, (1990) 2 SCC 715 . The principle was reiterated by this Court in State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 and State of Uttaranchal v. Dinesh Kumar Sharma, (2007) 1 SCC 683 . In Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267, this Court revisited the precedents on the subject and observed: (SCC pp. 281-82, para 45) 45. … (i) The effective date of selection has to be understood in the context of the Service Rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be. (ii) Inter se seniority in a particular service has to be determined as per the Service Rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution. (iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules. (iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant Service Rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime. This view has been re-affirmed by a Bench of three Judges of this Court in P. Sudhakar Rao v. U. Govinda Rao, (2013) 8 SCC 693 .
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the case of the respondents. The post of JAG-I is certainly a promotional post from the feeder cadre of the JAG-II.16. It is trite law that once an officer retires voluntarily, there is cessation of jural relationship resorting to a golden handshake between the employer and employee. Such a former employee cannot seek to agitate his past, as well as future rights, if any, sans the prescription of rules. This would include the enhanced pay scale. The Respondent in Civil Appeal No.517 of 2017 was rightly not considered in the DPC in 2012 since he was no longer in service at the relevant point of time. The High Court has committed an error in relying upon a circular, which has got no application at all, particularly in the light of our finding that we are dealing with a case of promotion simpliciter as against upgradation of any nature.17. On facts, there is no dispute that Respondent in Civil Appeal No.518 of 2017 was given promotion after the successful consideration by the DPC. On such clearance the appellant has rightly fixed the promotion with the year of actual vacancy, as per rules. Thus, the Respondent neither on facts nor on law can claim retrospective promotion, and that too from the year 2009 being the year in which he was placed in the select list against a notional vacancy, especially when the then existing vacancy accrued only in the year 2011, when the JAG-I officers were actually inducted into IAS, against which he was promoted. As such, the promotion cannot be granted retrospectively and extended to give benefit and seniority from the date of notional vacancy, causing violence to Rule 4 and 7 of the 2003 Rules.In the present case, the authority acting within the rules has rightly granted promotion after clearance of DPC on 17.04.2012 with effect from 01.07.2011, when the actual vacancies arose, which in any case is a benefit granted to the Respondent in Civil Appeal No.518 of 2017. In our view, this exercise of power by the authority of granting retrospective promotion with effect from the date on which actual vacancies arose is based on objective considerations and a valid classification.19. This Court in the case of Union of India v. KK Vadhera and Ors., 1989 Supp (2) SCC 625 has clearly laid down that the promotion to a post should only be granted from the date of promotion and not from the date on which vacancy has arisen, and has observed that:5….We do not know of any law or any rule under which a promotion is to be effective from the date of creation of the promotional post After a post falls vacant for any reason whatsoever, a promotion to that post should be from the date the promotion is granted and not from the date on which such post falls vacant. In the same way when additional posts are created, promotions to those posts can be granted only after the Assessment Board has met and made its recommendations for promotions being granted. If on the contrary, promotions are directed to become effective from the date of the creation of additional posts, then it would have the effect of giving promotions even before the Assessment Board has met and assessed the suitability of the candidates for promotion. In the circumstances, it is difficult to sustain the judgment of the Tribunal.20. Similarly, this Court in the case of Ganga Vishan Gujrati and Ors. v. State of Rajasthan, (2019) 16 SCC 28 has held that:45. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engg. Officers Assn. v. State of Maharashtra, (1990) 2 SCC 715 . The principle was reiterated by this Court in State of Bihar v. Akhouri Sachindra Nath, 1991 Supp (1) SCC 334 and State of Uttaranchal v. Dinesh Kumar Sharma, (2007) 1 SCC 683 . In Pawan Pratap Singh v. Reevan Singh, (2011) 3 SCC 267, this Court revisited the precedents on the subject and observed: (SCC pp. 281-82, para 45)45. … (i) The effective date of selection has to be understood in the context of the Service Rules under which the appointment is made. It may mean the date on which the process of selection starts with the issuance of advertisement or the factum of preparation of the select list, as the case may be.(ii) Inter se seniority in a particular service has to be determined as per the Service Rules. The date of entry in a particular service or the date of substantive appointment is the safest criterion for fixing seniority inter se between one officer or the other or between one group of officers and the other recruited from different sources. Any departure therefrom in the statutory rules, executive instructions or otherwise must be consistent with the requirements of Articles 14 and 16 of the Constitution.(iii) Ordinarily, notional seniority may not be granted from the backdate and if it is done, it must be based on objective considerations and on a valid classification and must be traceable to the statutory rules.(iv) The seniority cannot be reckoned from the date of occurrence of the vacancy and cannot be given retrospectively unless it is so expressly provided by the relevant Service Rules. It is so because seniority cannot be given on retrospective basis when an employee has not even been borne in the cadre and by doing so it may adversely affect the employees who have been appointed validly in the meantime.This view has been re-affirmed by a Bench of three Judges of this Court in P. Sudhakar Rao v. U. Govinda Rao, (2013) 8 SCC 693 .
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Jalaja Shedthi & Ors Vs. Lakshmi Shedthi & Ors | Succession Act refers to kavaru in relation to its undivided interest. it is the kavaru under the custom or the Madras Act and not a deemed kavaru for the purposes of partition. If Chandayya Shetty is not a kavaru, there is no property of a kavaru which can be disposed of under Section 30 of the Succession Act. Even under the Explanation to that section, the life interest which Chandayya Shetty had on severance of status is not property capable of being disposed of by a will. As we said, he is no longer a kavaru and had, therefore, no interest in the property of the kavaru.13. A Full Bench of the Mysore High Court in Sundara Adapa v. Girija, ILR (1962) Mys 225 = (AIR 1962 Mys 225 FB) has given a similar answer on facts analogous to the one raised before us. In that case the first defendant who was a nissanthathi kavaru had claimed in his written statement a partition of his own share and was granted 75/360th share in the preliminary decree. By a will he left to his wife and children all his rights in the properties due to him on account of his share. There was also likewise a santhathi kavaru. Under the Aliyasantana Act on the cessation of the first defendants life interest the property would devolve upon the nearest santhathi kavaru according to sub-s (5) of Section 36. But it was contended as is contended in this case that by virtue of Explanation to sub-s. (1) of Section 30 of the Succession Act, the rights of the first defendant in his 75/360th share of his properties became capable of being disposed of by will and, therefore, the children of the first defendant could be entitled to the share in accordance with the terms thereof Hegde, J. as he then was, delivering the judgment of that Court observed at op. 238-239 :"The object of Section 30 is clear. That section neither directly nor by necessary implication deals with the devolution of divided interest. As mentioned earlier, its purpose is limited. The language employed is plain and therefore no question of interpretation arises. It is not correct to contend, as done by Sri Bhat, that if the Explanation to Section 3a (l) is understood in the manner the respondents want us to understand, a coparcener who dies undivided would leave a more valuable estate to his heirs than one who dies divided. In most cases, the share taken by a nissanthathi kavaru though limited to the duration of the life of the kavaru would be larger in extent than one as provided under S. 7 (2) of the "Act". In the case of a share under the Aliyasanthana Act the kavaru takes his share on the basis of half-per capita, half-per-stirpes. Under Section 7 (2) the share is determined on per capita basis. Quite clearly the object of bounty under Section 7 (2) read with Sec. 30 is the donee under the will of a deceased coparcener. The fact that divided members also do not get corresponding benefits under the "Act" is no relevant test. If Parliament wanted to enlarge the interest of divided male members nothing would have been easier than to enact a provision on the lines of S. 14 (1) of the "Act", provided Parliament had competence to do so. Further, the Explanation to Section 30 (1) speaks of The interest of a Male Hindu" in his "kutumba" or "kavaru" property. The definite article the evidently refers to the interest specified or quantified in some other provision of the "Act"; it could not refer to the unascertained interest of a coparcener in a kutumba Obviously "the interest" referred to is the interest quantified under Section 7 of the "Act" to which reference will be made in greater detail at a later stage.Quite clearly, on the date of his death, the first defendant was not a member of his kutumba or kavaru. As noticed earlier, he was already divided from the family. Further, his will did not relate to his interest in the kutumba or kavaru property. The will purported to bequeath the property obtained by him as his share as per the preliminary decree. Therefore, the contention that interest obtained by the first defendant under the preliminary decree stood enlarged as a result of Section 30 (1) of the "Act" must fail."The above statement of the law which meets the several contentions raised before us is in consonance with our own reading of the provisions of the Madras Act and the Succession Act. The learned Advocate for the appellants, however, has tried to distinguish this case on the ground that the effect of S. 17 of the Succession Act was not considered in that case. In our view, that question was not relevant either in that case or in this case, because Section 17 of the Succession Act applies the provisions of Sections 8, 10, 15 and 23 which deal with intestacy, to persons who would have been governed by the Marumakkattayam Law or Aliyasantana Law if the Succession Act had not been passed with the modifications provided therein. In this case also, as already stated, there is no kavaru of Chandayya Shetty and on separation he had only a life interest which is not a heritable property and cannot be disposed of by a will, nor could it devolve as on intestacy. Even the argument that under S. 7 (2) Chandayya Shettys life interest has been enlarged into an absolute interest is equally untenable, because a male with a life interest under the Aliyasantana Law being in the same position as a female limited owner under the Hindu Law, the Succession Act while enlarging the right of the latter under S. 14 into an absolute interest did not specifically provide for the enlarging of the right of the former. In the absence of any such specific provision we can only hold that Chandayya Shettys interest enured till his lifetime only. | 0[ds]6. It is apparent from a reading of these provisions that in this case there were only two kavarus and that one of them was santhathi kavaru and the other a nissanthathi kavaru.The kavaru of Chandayya Shetty was a branch which was liable to extinction as he had no femalewhen there are two kavarus, if one is santhathi kavaru and the other a nissanthathi kavaru, at a partition the nissanthathi kavaru would take only aattempt to establish that the respondents kavaru was a nissanthathi kavaru having failed, as both the Courts held that the first respondent was below 50 years, the learned Advocate for the appellants made strenuous attempts to persuade us, that in fact the giving of a notice by the first respondent does not effect a partition of the kutumba or between the two kavarus, and that even if this be not established, S. 7 (2) of the Succession Act read with its Explanation has the effect of enlarging a lifeinterest into an absoluteargument that though a claim may be made, no partition may ever take place, and consequently there is no partition of the Kavarus, is a speculation which cannot affect the principle applicable for determining whether or not a partition takes place, and if so when. It may be thateven though a notice had been given for partition of the properties, the parties may later choose to live together and the notice withdrawn. But that is neither here nor there. What we have to ascertain is whether there has been a partition in the family or whether the family is still undivided for the purposes of Section 7 (2) of the Successioncontention of the appellants no doubt finds support from the District Judge who observed that Section 7 (2) does not speak about a division in status, but only speaks about a division in property and that it would be wrong to import the Provisions of the Aliyasantana Act in interpreting the Hindu Succession Act which prevails in spite of any provisions under the Aliyasantana Law. There was, according to the District Judge, nothing in Section 7 (2) of the Act which states that the person who dies after the commencement of the Act should not only have an undivided interest but he should also have been an undivided member of the kutumba, and it would be wrong to introduce words which are not in the Act. According to him under Section 7 (2) of the Act if the kutumba properties had not been divided and the deceased had not been allotted any portion of the kutumba properties, then he continued to have an undivided interest in the properties at the time of his death, and on his death his share is inherited by his legal heirs under theto the District Judge, S. 36 (3) of the Madras Act comes into operation only when there has been a partition and allotment of a definite share, the share to be ascertained as at the time the partition was claimed. But, when there has been no partition and no allotment of a share, then S. 36 (3) has no operation and the person who formed a nissanthathi kavaru, if he dies without getting allotted his share in the kutumba properties, dies with an undivided interest in the kutumba properties, and, therefore, S. 7 (2) of the Succession Act comes into play. This view of the District Judge has been held to be erroneous by the High Court. To ascertain which view is correct, we will have to examine the relevant provisions of the Succession Act and ascertain whether on Chandayya Shettys death, he had an undivided interest which he could dispose of by will and if he had a life interest whether it had been enlarged into an absolute interest. The Succession Act defines "aliyasantana law" by S. 3 (a) as meaning "the system of law applicable to persons who, if this Act had not been passed, would have been governed bythe Madras Aliyasantana Act, 1949, or by the customary aliyasantana law with respect to the matters for which provision is made in thisour view also, the word partition in(3) of Section 36 should be given the same meaning as in S. 36 (2) (h) of the Madras Act, if so on a demand for partition a severance of status takes place and the share to which each is entitled in the undivided properties is ascertained.11. Even in the case of an aliyasantana kutumba this Court had held per Hegde and Grover, JJ., in Padmaraja v. Dhanavanthi, (1972) 2 SCC 100 (104) = (AIR 1972 SC 2219 ) that if the jointness of the kutumba had been disrupted there is no question of claiming any partition as there is no kutumba in existence as in the instant case before us.Similarly, on the same parity of reasoning, when there are two kavarus, a demand for partition would disrupt them and Chandayya Shetty could no longer claim that he had an undivided interest within the meaning of Section 7 (2) of the Succession Act, and if he ha, no undivided interest in the property, his interest cannot be enlarged into an absolute estate, nor can his interest in the property devolve upon his heirs by intestate succession. What S. 7 is dealing with is a situation similar to that dealt with in S. 6, namely, that when a member of joint Hindu family dies undivided, instead of his undivided interest devolving upon the other members of the family by survivorship, it is provided that on the death of an undivided member of the joint Hindu family his share in the joint family properties shall devolve on his heirs as if there had been partition in the family. The Explanation to S. 7 (2) makes this position clear. Prior to the Succession Act neither under the customary law. nor under the Madras Act, nor under the Indian Succession Act the interest of a coparcener in an aliyasantana kutumba could have been disposed of by testamentary disposition. But Section 30 of the Succession Act made a definite change in the law by enrolling a member of an undivided aliyasantana kutumba or of a kavaru to dispose of his interest in the kutumba or kavaru properties by aargument ignores the basic concepts of the aliyasantana law. As pointed out earlier there is neither a kutumba, nor can Chandayya Shetty be a kavaru. The two kavarus after the division in status, become only one kavaru, namely that of respondent 1. Chandayya Shetty will not be a kavaru within the meaning of S. 3 (b) of the Madras Act, because under S. 3 (b) (ii) there being no female line, it is only the mother of Chandayya Shetty who can be a kavaru but not Chandayya Shetty. In fact a male can never be a kavaru either under the customary law or under the Madras Act. When the Succession Act refers to kavaru in relation to its undivided interest. it is the kavaru under the custom or the Madras Act and not a deemed kavaru for the purposes of partition. If Chandayya Shetty is not a kavaru, there is no property of a kavaru which can be disposed of under Section 30 of the Succession Act. Even under the Explanation to that section, the life interest which Chandayya Shetty had on severance of status is not property capable of being disposed of by a will. As we said, he is no longer a kavaru and had, therefore, no interest in the property of theclearly, on the date of his death, the first defendant was not a member of his kutumba or kavaru. As noticed earlier, he was already divided from the family. Further, his will did not relate to his interest in the kutumba or kavaru property. The will purported to bequeath the property obtained by him as his share as per the preliminary decree. Therefore, the contention that interest obtained by the first defendant under the preliminary decree stood enlarged as a result of Section 30 (1) of the "Act" mustour view, that question was not relevant either in that case or in this case, because Section 17 of the Succession Act applies the provisions of Sections 8, 10, 15 and 23 which deal with intestacy, to persons who would have been governed by the Marumakkattayam Law or Aliyasantana Law if the Succession Act had not been passed with the modifications provided therein. In this case also, as already stated, there is no kavaru of Chandayya Shetty and on separation he had only a life interest which is not a heritable property and cannot be disposed of by a will, nor could it devolve as on intestacy. Even the argument that under S. 7 (2) Chandayya Shettys life interest has been enlarged into an absolute interest is equally untenable, because a male with a life interest under the Aliyasantana Law being in the same position as a female limited owner under the Hindu Law, the Succession Act while enlarging the right of the latter under S. 14 into an absolute interest did not specifically provide for the enlarging of the right of the former. In the absence of any such specific provision we can only hold that Chandayya Shettys interest enured till his lifetime only. | 0 | 6,930 | 1,715 | ### 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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Succession Act refers to kavaru in relation to its undivided interest. it is the kavaru under the custom or the Madras Act and not a deemed kavaru for the purposes of partition. If Chandayya Shetty is not a kavaru, there is no property of a kavaru which can be disposed of under Section 30 of the Succession Act. Even under the Explanation to that section, the life interest which Chandayya Shetty had on severance of status is not property capable of being disposed of by a will. As we said, he is no longer a kavaru and had, therefore, no interest in the property of the kavaru.13. A Full Bench of the Mysore High Court in Sundara Adapa v. Girija, ILR (1962) Mys 225 = (AIR 1962 Mys 225 FB) has given a similar answer on facts analogous to the one raised before us. In that case the first defendant who was a nissanthathi kavaru had claimed in his written statement a partition of his own share and was granted 75/360th share in the preliminary decree. By a will he left to his wife and children all his rights in the properties due to him on account of his share. There was also likewise a santhathi kavaru. Under the Aliyasantana Act on the cessation of the first defendants life interest the property would devolve upon the nearest santhathi kavaru according to sub-s (5) of Section 36. But it was contended as is contended in this case that by virtue of Explanation to sub-s. (1) of Section 30 of the Succession Act, the rights of the first defendant in his 75/360th share of his properties became capable of being disposed of by will and, therefore, the children of the first defendant could be entitled to the share in accordance with the terms thereof Hegde, J. as he then was, delivering the judgment of that Court observed at op. 238-239 :"The object of Section 30 is clear. That section neither directly nor by necessary implication deals with the devolution of divided interest. As mentioned earlier, its purpose is limited. The language employed is plain and therefore no question of interpretation arises. It is not correct to contend, as done by Sri Bhat, that if the Explanation to Section 3a (l) is understood in the manner the respondents want us to understand, a coparcener who dies undivided would leave a more valuable estate to his heirs than one who dies divided. In most cases, the share taken by a nissanthathi kavaru though limited to the duration of the life of the kavaru would be larger in extent than one as provided under S. 7 (2) of the "Act". In the case of a share under the Aliyasanthana Act the kavaru takes his share on the basis of half-per capita, half-per-stirpes. Under Section 7 (2) the share is determined on per capita basis. Quite clearly the object of bounty under Section 7 (2) read with Sec. 30 is the donee under the will of a deceased coparcener. The fact that divided members also do not get corresponding benefits under the "Act" is no relevant test. If Parliament wanted to enlarge the interest of divided male members nothing would have been easier than to enact a provision on the lines of S. 14 (1) of the "Act", provided Parliament had competence to do so. Further, the Explanation to Section 30 (1) speaks of The interest of a Male Hindu" in his "kutumba" or "kavaru" property. The definite article the evidently refers to the interest specified or quantified in some other provision of the "Act"; it could not refer to the unascertained interest of a coparcener in a kutumba Obviously "the interest" referred to is the interest quantified under Section 7 of the "Act" to which reference will be made in greater detail at a later stage.Quite clearly, on the date of his death, the first defendant was not a member of his kutumba or kavaru. As noticed earlier, he was already divided from the family. Further, his will did not relate to his interest in the kutumba or kavaru property. The will purported to bequeath the property obtained by him as his share as per the preliminary decree. Therefore, the contention that interest obtained by the first defendant under the preliminary decree stood enlarged as a result of Section 30 (1) of the "Act" must fail."The above statement of the law which meets the several contentions raised before us is in consonance with our own reading of the provisions of the Madras Act and the Succession Act. The learned Advocate for the appellants, however, has tried to distinguish this case on the ground that the effect of S. 17 of the Succession Act was not considered in that case. In our view, that question was not relevant either in that case or in this case, because Section 17 of the Succession Act applies the provisions of Sections 8, 10, 15 and 23 which deal with intestacy, to persons who would have been governed by the Marumakkattayam Law or Aliyasantana Law if the Succession Act had not been passed with the modifications provided therein. In this case also, as already stated, there is no kavaru of Chandayya Shetty and on separation he had only a life interest which is not a heritable property and cannot be disposed of by a will, nor could it devolve as on intestacy. Even the argument that under S. 7 (2) Chandayya Shettys life interest has been enlarged into an absolute interest is equally untenable, because a male with a life interest under the Aliyasantana Law being in the same position as a female limited owner under the Hindu Law, the Succession Act while enlarging the right of the latter under S. 14 into an absolute interest did not specifically provide for the enlarging of the right of the former. In the absence of any such specific provision we can only hold that Chandayya Shettys interest enured till his lifetime only.
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therefore, S. 7 (2) of the Succession Act comes into play. This view of the District Judge has been held to be erroneous by the High Court. To ascertain which view is correct, we will have to examine the relevant provisions of the Succession Act and ascertain whether on Chandayya Shettys death, he had an undivided interest which he could dispose of by will and if he had a life interest whether it had been enlarged into an absolute interest. The Succession Act defines "aliyasantana law" by S. 3 (a) as meaning "the system of law applicable to persons who, if this Act had not been passed, would have been governed bythe Madras Aliyasantana Act, 1949, or by the customary aliyasantana law with respect to the matters for which provision is made in thisour view also, the word partition in(3) of Section 36 should be given the same meaning as in S. 36 (2) (h) of the Madras Act, if so on a demand for partition a severance of status takes place and the share to which each is entitled in the undivided properties is ascertained.11. Even in the case of an aliyasantana kutumba this Court had held per Hegde and Grover, JJ., in Padmaraja v. Dhanavanthi, (1972) 2 SCC 100 (104) = (AIR 1972 SC 2219 ) that if the jointness of the kutumba had been disrupted there is no question of claiming any partition as there is no kutumba in existence as in the instant case before us.Similarly, on the same parity of reasoning, when there are two kavarus, a demand for partition would disrupt them and Chandayya Shetty could no longer claim that he had an undivided interest within the meaning of Section 7 (2) of the Succession Act, and if he ha, no undivided interest in the property, his interest cannot be enlarged into an absolute estate, nor can his interest in the property devolve upon his heirs by intestate succession. What S. 7 is dealing with is a situation similar to that dealt with in S. 6, namely, that when a member of joint Hindu family dies undivided, instead of his undivided interest devolving upon the other members of the family by survivorship, it is provided that on the death of an undivided member of the joint Hindu family his share in the joint family properties shall devolve on his heirs as if there had been partition in the family. The Explanation to S. 7 (2) makes this position clear. Prior to the Succession Act neither under the customary law. nor under the Madras Act, nor under the Indian Succession Act the interest of a coparcener in an aliyasantana kutumba could have been disposed of by testamentary disposition. But Section 30 of the Succession Act made a definite change in the law by enrolling a member of an undivided aliyasantana kutumba or of a kavaru to dispose of his interest in the kutumba or kavaru properties by aargument ignores the basic concepts of the aliyasantana law. As pointed out earlier there is neither a kutumba, nor can Chandayya Shetty be a kavaru. The two kavarus after the division in status, become only one kavaru, namely that of respondent 1. Chandayya Shetty will not be a kavaru within the meaning of S. 3 (b) of the Madras Act, because under S. 3 (b) (ii) there being no female line, it is only the mother of Chandayya Shetty who can be a kavaru but not Chandayya Shetty. In fact a male can never be a kavaru either under the customary law or under the Madras Act. When the Succession Act refers to kavaru in relation to its undivided interest. it is the kavaru under the custom or the Madras Act and not a deemed kavaru for the purposes of partition. If Chandayya Shetty is not a kavaru, there is no property of a kavaru which can be disposed of under Section 30 of the Succession Act. Even under the Explanation to that section, the life interest which Chandayya Shetty had on severance of status is not property capable of being disposed of by a will. As we said, he is no longer a kavaru and had, therefore, no interest in the property of theclearly, on the date of his death, the first defendant was not a member of his kutumba or kavaru. As noticed earlier, he was already divided from the family. Further, his will did not relate to his interest in the kutumba or kavaru property. The will purported to bequeath the property obtained by him as his share as per the preliminary decree. Therefore, the contention that interest obtained by the first defendant under the preliminary decree stood enlarged as a result of Section 30 (1) of the "Act" mustour view, that question was not relevant either in that case or in this case, because Section 17 of the Succession Act applies the provisions of Sections 8, 10, 15 and 23 which deal with intestacy, to persons who would have been governed by the Marumakkattayam Law or Aliyasantana Law if the Succession Act had not been passed with the modifications provided therein. In this case also, as already stated, there is no kavaru of Chandayya Shetty and on separation he had only a life interest which is not a heritable property and cannot be disposed of by a will, nor could it devolve as on intestacy. Even the argument that under S. 7 (2) Chandayya Shettys life interest has been enlarged into an absolute interest is equally untenable, because a male with a life interest under the Aliyasantana Law being in the same position as a female limited owner under the Hindu Law, the Succession Act while enlarging the right of the latter under S. 14 into an absolute interest did not specifically provide for the enlarging of the right of the former. In the absence of any such specific provision we can only hold that Chandayya Shettys interest enured till his lifetime only.
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Madamsetty Satyanarayana Vs. G. Yellogi Rao And Two Others | as would cause prejudice to the defendant does not empower a Court to refuse such a relief. But as in England so in India, proof of abandonment or waiver of a right is not a pre-condition necessary to disentitle the plaintiff to the said relief, for if abandonment or waiver is established, no question of discretion on the part of the Court would arise. We have used the expression "waiver" in its legally accepted sense, namely, "waiver is contractual and may constitute a cause of action; it is an agreement to release or not to assert a right"; see Dawsons Bank Ltd. v. Nippou Menkwa Kabushiki Kaisha, 62 Ind App 100 at p. 108 : (AIR 1935 PC 79 at p. 82). It is not possible or desirable to lay down the circumstances under which a Court can exercise its discretion against the plaintiff. But they must be such that the representation by or the conduct or neglect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief.12. Bearing these principles in mind let us now look at the facts of the case. Both the lower Courts found that the appellant repudiated the contract even on the next day of the auction, i.e. August 24, 1954. The 1st respondent issued a notice to the appellant on August 30, 1954, asking him to obtain from him one fourth of the auction price as earnest money at any time within 24 hours and the balance within a period of one week thereafter and execute a sale deed in his favour. The appellant did not reply to this notice. The 1st respondent in his evidence says that he could not take effective steps to enforce the contract for a period of 7 months as his wife was ill and as the Hyderabad Municipal Corporation had demolished one of his houses. The High Court accepted the explanation given by the 1st respondent for the delay in his taking steps in enforcing the contract. In the affidavit filed by the 1st respondent in the Trial Court on October 18, 1955, he stated that his house had been demolished by the Municipal Corporation before a year and a half and his wife was also seriously ill for the "last two years" and that, therefore, he was worried. From this statement it is argued that both the circumstances which are said to have been the reasons for the delay were in existence even before the auction and, therefore, the High Court went wrong in accepting the explanation of the 1st respondent for the delay. It is true that the lst respondents wife was ill even before the auction, but she continued to be ill even after the auction and there is clear evidence that she was being treated in a hospital. This continual illness of the 1st respondents wife must have unnerved him and when the High Court accepted his evidence we cannot say that it went wrong. It is also true that the notice by the Municipal Corporation to demolish the house was given two months prior to the auction, but there is nothing on the record to show when the house was actually demolished. Some time must have elapsed between the notice and the actual demolition. The only evidence in regard to the demolition of the house is that of the 1st respondent; and it is not suggested in the cross-examination that the demolition of the house was before the auction. On the uncontradicted evidence of the 1st respondent, we must hold, agreeing with the High Court, that the 1st respondent was in a worried state of mind because of the said two circumstances which might have been responsible, to some extent, for his not taking immediate active and effective steps to enforce his right. The most important circumstance in the case is, when did the 1st respondent come to know of the commencement of the building operations by the appellant on the suit site? The 1st respondent says in his evidence that 7 or 8 months after the auction he passed by the suit site and saw foundations had been dug therein and a few days thereafter he filed the suit. The appellant, on the other hand, says in his evidence that he started the construction after the disputed auction and that it was completed in 5 or 6 months. Though he says in the cross-examination that he applied to the Municipality for permission to build, he did not produce either a copy of that application or the sanction issued to him by the Municipality. He is not even prepared to deny that he got the sanction only in March 1955. The Trial Court surmised without any evidence that at the tie the lst respondent saw the foundations the stage of the construction indicated that the building operations must have commenced two months earlier. The High Court rightly pointed out that it was a pure surmise and accepted the evidence of the 1st respondent that a few days after he saw the foundations being dug in the suit site he filed the suit. But all these are beside the point, for it is not the case of the appellant that because of the 1st respondents conduct he was induced to put up the building at a heavy cost; his case throughout was that there was no contract at all. If so, there was no question of his being induced to act to his detriment because of the conduct of the 1st respondent. Therefore, except for some delay, there are no circumstances within the meaning of the aforesaid decisions which should induce a Court to refuse in its discretion to give a relief of specific performance. The High Court rightly held that it was a fit case where the plaintiff should have been given a relief of specific performance. | 0[ds]5. We cannot allow the learned counsel for the appellant to raise before us the first question, namely, but the 1st respondent did not accept the repudiation but kept the contract alive and committed a breach thereof, with the result that he disqualified himself to file the suit for specific relief, for the said plea was not raised in the pleadings, no issue was raised in respect thereof and no arguments were addressed either in the Trial Court or in the High Court. As the question is a mixed question of fact and law, we cannot permit the appellant to raise it for the first time before us.It is clear from these decisions that the conduct of a party which puts the other party in a disadvantageous position, though it does not amount to waiver, may in certain circumstances preclude him from obtaining a decree for specificdo not think, though the observations of Sadasiva Aiyar, J., are rather wide, that the learned Judges intended to lay down of that unless there is a waiver or abandonment by the plaintiff of his rights to sue for specific performance, he should befor if that was the law, as we have pointed out earlier, the substantive part of S. 22 of the Specific Relief Act would become nugatory. A Division Bench of the Calcutta High Court in Jadu Nath Gupta v. Chandra Bhusan, AIR 1932 Cal 493 , again emphasized the fact that the English doctrine of delay and laches showing negligence in seeking relief in a Court of equity cannot be imported into the Indian law in view of Art. 113 of the Limitation Act. But it pointed out that where the conduct of the plaintiff was such that it did not amount to abandonment but showed waiver or acquiescence especially when inaction on his part induced the defendant to change his position, the plaintiff ought not to be allowed any relief. This case brings out not only the distinction between English and Indian law but also that waiver or abandonment of a right is not afor refusing relief of specific performance.11. The result of the aforesaid discussion of the case law may be briefly stated thus : While in English mere delay or laches may be a ground for refusing to give a relief of Specific performance, in India mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant does not empower a Court to refuse such a relief. But as in England so in India, proof of abandonment or waiver of a right is not anecessary to disentitle the plaintiff to the said relief, for if abandonment or waiver is established, no question of discretion on the part of the Court would arise. We have used the expression "waiver" in its legally accepted sense, namely, "waiver is contractual and may constitute a cause of action; it is an agreement to release or not to assert a right"; see Dawsons Bank Ltd. v. Nippou Menkwa Kabushiki Kaisha, 62 Ind App 100 at p. 108 : (AIR 1935 PC 79 at p. 82). It is not possible or desirable to lay down the circumstances under which a Court can exercise its discretion against the plaintiff. But they must be such that the representation by or the conduct or neglect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such ais true that the lst respondents wife was ill even before the auction, but she continued to be ill even after the auction and there is clear evidence that she was being treated in a hospital. This continual illness of the 1st respondents wife must have unnerved him and when the High Court accepted his evidence we cannot say that it went wrong. It is also true that the notice by the Municipal Corporation to demolish the house was given two months prior to the auction, but there is nothing on the record to show when the house was actually demolished. Some time must have elapsed between the notice and the actual demolition. The only evidence in regard to the demolition of the house is that of the 1st respondent; and it is not suggested in thethat the demolition of the house was before the auction. On the uncontradicted evidence of the 1st respondent, we must hold, agreeing with the High Court, that the 1st respondent was in a worried state of mind because of the said two circumstances which might have been responsible, to some extent, for his not taking immediate active and effective steps to enforce his right. The most important circumstance in the case is, when did the 1st respondent come to know of the commencement of the building operations by the appellant on the suitTrial Court surmised without any evidence that at the tie the lst respondent saw the foundations the stage of the construction indicated that the building operations must have commenced two months earlier. The High Court rightly pointed out that it was a pure surmise and accepted the evidence of the 1st respondent that a few days after he saw the foundations being dug in the suit site he filed the suit. But all these are beside the point, for it is not the case of the appellant that because of the 1st respondents conduct he was induced to put up the building at a heavy cost; his case throughout was that there was no contract at all. If so, there was no question of his being induced to act to his detriment because of the conduct of the 1st respondent. Therefore, except for some delay, there are no circumstances within the meaning of the aforesaid decisions which should induce a Court to refuse in its discretion to give a relief of specific performance. The High Court rightly held that it was a fit case where the plaintiff should have been given a relief of specific performance. | 0 | 4,769 | 1,090 | ### Instruction:
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as would cause prejudice to the defendant does not empower a Court to refuse such a relief. But as in England so in India, proof of abandonment or waiver of a right is not a pre-condition necessary to disentitle the plaintiff to the said relief, for if abandonment or waiver is established, no question of discretion on the part of the Court would arise. We have used the expression "waiver" in its legally accepted sense, namely, "waiver is contractual and may constitute a cause of action; it is an agreement to release or not to assert a right"; see Dawsons Bank Ltd. v. Nippou Menkwa Kabushiki Kaisha, 62 Ind App 100 at p. 108 : (AIR 1935 PC 79 at p. 82). It is not possible or desirable to lay down the circumstances under which a Court can exercise its discretion against the plaintiff. But they must be such that the representation by or the conduct or neglect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief.12. Bearing these principles in mind let us now look at the facts of the case. Both the lower Courts found that the appellant repudiated the contract even on the next day of the auction, i.e. August 24, 1954. The 1st respondent issued a notice to the appellant on August 30, 1954, asking him to obtain from him one fourth of the auction price as earnest money at any time within 24 hours and the balance within a period of one week thereafter and execute a sale deed in his favour. The appellant did not reply to this notice. The 1st respondent in his evidence says that he could not take effective steps to enforce the contract for a period of 7 months as his wife was ill and as the Hyderabad Municipal Corporation had demolished one of his houses. The High Court accepted the explanation given by the 1st respondent for the delay in his taking steps in enforcing the contract. In the affidavit filed by the 1st respondent in the Trial Court on October 18, 1955, he stated that his house had been demolished by the Municipal Corporation before a year and a half and his wife was also seriously ill for the "last two years" and that, therefore, he was worried. From this statement it is argued that both the circumstances which are said to have been the reasons for the delay were in existence even before the auction and, therefore, the High Court went wrong in accepting the explanation of the 1st respondent for the delay. It is true that the lst respondents wife was ill even before the auction, but she continued to be ill even after the auction and there is clear evidence that she was being treated in a hospital. This continual illness of the 1st respondents wife must have unnerved him and when the High Court accepted his evidence we cannot say that it went wrong. It is also true that the notice by the Municipal Corporation to demolish the house was given two months prior to the auction, but there is nothing on the record to show when the house was actually demolished. Some time must have elapsed between the notice and the actual demolition. The only evidence in regard to the demolition of the house is that of the 1st respondent; and it is not suggested in the cross-examination that the demolition of the house was before the auction. On the uncontradicted evidence of the 1st respondent, we must hold, agreeing with the High Court, that the 1st respondent was in a worried state of mind because of the said two circumstances which might have been responsible, to some extent, for his not taking immediate active and effective steps to enforce his right. The most important circumstance in the case is, when did the 1st respondent come to know of the commencement of the building operations by the appellant on the suit site? The 1st respondent says in his evidence that 7 or 8 months after the auction he passed by the suit site and saw foundations had been dug therein and a few days thereafter he filed the suit. The appellant, on the other hand, says in his evidence that he started the construction after the disputed auction and that it was completed in 5 or 6 months. Though he says in the cross-examination that he applied to the Municipality for permission to build, he did not produce either a copy of that application or the sanction issued to him by the Municipality. He is not even prepared to deny that he got the sanction only in March 1955. The Trial Court surmised without any evidence that at the tie the lst respondent saw the foundations the stage of the construction indicated that the building operations must have commenced two months earlier. The High Court rightly pointed out that it was a pure surmise and accepted the evidence of the 1st respondent that a few days after he saw the foundations being dug in the suit site he filed the suit. But all these are beside the point, for it is not the case of the appellant that because of the 1st respondents conduct he was induced to put up the building at a heavy cost; his case throughout was that there was no contract at all. If so, there was no question of his being induced to act to his detriment because of the conduct of the 1st respondent. Therefore, except for some delay, there are no circumstances within the meaning of the aforesaid decisions which should induce a Court to refuse in its discretion to give a relief of specific performance. The High Court rightly held that it was a fit case where the plaintiff should have been given a relief of specific performance.
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question, namely, but the 1st respondent did not accept the repudiation but kept the contract alive and committed a breach thereof, with the result that he disqualified himself to file the suit for specific relief, for the said plea was not raised in the pleadings, no issue was raised in respect thereof and no arguments were addressed either in the Trial Court or in the High Court. As the question is a mixed question of fact and law, we cannot permit the appellant to raise it for the first time before us.It is clear from these decisions that the conduct of a party which puts the other party in a disadvantageous position, though it does not amount to waiver, may in certain circumstances preclude him from obtaining a decree for specificdo not think, though the observations of Sadasiva Aiyar, J., are rather wide, that the learned Judges intended to lay down of that unless there is a waiver or abandonment by the plaintiff of his rights to sue for specific performance, he should befor if that was the law, as we have pointed out earlier, the substantive part of S. 22 of the Specific Relief Act would become nugatory. A Division Bench of the Calcutta High Court in Jadu Nath Gupta v. Chandra Bhusan, AIR 1932 Cal 493 , again emphasized the fact that the English doctrine of delay and laches showing negligence in seeking relief in a Court of equity cannot be imported into the Indian law in view of Art. 113 of the Limitation Act. But it pointed out that where the conduct of the plaintiff was such that it did not amount to abandonment but showed waiver or acquiescence especially when inaction on his part induced the defendant to change his position, the plaintiff ought not to be allowed any relief. This case brings out not only the distinction between English and Indian law but also that waiver or abandonment of a right is not afor refusing relief of specific performance.11. The result of the aforesaid discussion of the case law may be briefly stated thus : While in English mere delay or laches may be a ground for refusing to give a relief of Specific performance, in India mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant does not empower a Court to refuse such a relief. But as in England so in India, proof of abandonment or waiver of a right is not anecessary to disentitle the plaintiff to the said relief, for if abandonment or waiver is established, no question of discretion on the part of the Court would arise. We have used the expression "waiver" in its legally accepted sense, namely, "waiver is contractual and may constitute a cause of action; it is an agreement to release or not to assert a right"; see Dawsons Bank Ltd. v. Nippou Menkwa Kabushiki Kaisha, 62 Ind App 100 at p. 108 : (AIR 1935 PC 79 at p. 82). It is not possible or desirable to lay down the circumstances under which a Court can exercise its discretion against the plaintiff. But they must be such that the representation by or the conduct or neglect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such ais true that the lst respondents wife was ill even before the auction, but she continued to be ill even after the auction and there is clear evidence that she was being treated in a hospital. This continual illness of the 1st respondents wife must have unnerved him and when the High Court accepted his evidence we cannot say that it went wrong. It is also true that the notice by the Municipal Corporation to demolish the house was given two months prior to the auction, but there is nothing on the record to show when the house was actually demolished. Some time must have elapsed between the notice and the actual demolition. The only evidence in regard to the demolition of the house is that of the 1st respondent; and it is not suggested in thethat the demolition of the house was before the auction. On the uncontradicted evidence of the 1st respondent, we must hold, agreeing with the High Court, that the 1st respondent was in a worried state of mind because of the said two circumstances which might have been responsible, to some extent, for his not taking immediate active and effective steps to enforce his right. The most important circumstance in the case is, when did the 1st respondent come to know of the commencement of the building operations by the appellant on the suitTrial Court surmised without any evidence that at the tie the lst respondent saw the foundations the stage of the construction indicated that the building operations must have commenced two months earlier. The High Court rightly pointed out that it was a pure surmise and accepted the evidence of the 1st respondent that a few days after he saw the foundations being dug in the suit site he filed the suit. But all these are beside the point, for it is not the case of the appellant that because of the 1st respondents conduct he was induced to put up the building at a heavy cost; his case throughout was that there was no contract at all. If so, there was no question of his being induced to act to his detriment because of the conduct of the 1st respondent. Therefore, except for some delay, there are no circumstances within the meaning of the aforesaid decisions which should induce a Court to refuse in its discretion to give a relief of specific performance. The High Court rightly held that it was a fit case where the plaintiff should have been given a relief of specific performance.
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RAJESHBHAI MULJIBHAI PATEL Vs. THE STATE OF GUJARAT | 471 and 114 IPC. It was submitted that since there is a prima facie case of forgery and cheating made out against the appellants, the High Court rightly declined to quash the FIR and the impugned order warrants no interference. 15. We have carefully considered the submissions and perused the impugned order and other materials on record. 16. The issue relates to the alleged forgery of four receipts dated 21.08.2010, 22.08.2010, 26.08.2010 and 28.08.2010 each for a sum of Rs.30,00,000/- totalling to Rs.1,20,00,000/- issued by respondent No.2-Mahendrakumar. For the recovery of the amount of Rs.1,20,00,000/-, appellant No.3-Hasmukhbhai filed Special Summary Suit No.105/2015 in October, 2015. After receiving summons in Summary Suit No.105/2015, respondent No.2- Mahendrakumar entered appearance and filed application seeking leave to defend and the said application was allowed on 19.04.2016. On application filed by appellant No.3-Hasmukhbhai in the Summary Suit No.105/2015, four receipts were sent to Forensic Science Laboratory for obtaining the opinion of handwriting expert. The handwriting experts report was received in the Court on 15.12.2016 to the effect that all the four receipts were not signed by respondent No.2-Mahendrakumar. It was thereafter on the complaint filed by respondent No.2, FIR No.I-194/2016 dated 28.12.2016 was registered against the appellants for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. 17. In C.C.No.367/2016, case of appellant No.3-Hasmukhbhai is that Yogeshbhai issued four cheques each for a sum of Rs.30,00,000/-, details of which are as under:- table On presentation, the above cheques were dishonoured on the ground Payment stopped by the Drawer. After issuing the legal notice, appellant No.3-Hasmukhbhai filed criminal case in C.C.No.367/2016 on 08.12.2015 pertaining to two cheques bearing Nos.20801 and 20802. It was only thereafter, respondent No.2- Mahendrakumar had filed the criminal complaint dated 20.03.2016 and also filed another criminal complaint dated 14.04.2016 against appellant No.1-Rajeshbhai and appellant No.2-Vipulkumar. Since the police had not registered the FIR, respondent No.2 filed SCRA No.5945/2016 and SCRA No.6349/2016 before the High Court for seeking directions for lodging FIR. The High Court vide orders dated 04.10.2016 and 06.09.2016 disposed of those petitions directing the police to investigate into the matter. 18. Be that as it may, in the Summary Suit No.105/2015, leave to defend was granted to respondent No.2-Mahendrakumar on 19.04.2016. On the application filed by appellant No.3 in the said Summary Suit No.105/2015, four receipts filed in the suit were sent to the handwriting expert. The handwriting expert has opined that signatures in all the four receipts did not tally with the sample signatures which were of respondent No.2-Mahendrakumar. It was only thereafter, complaint was filed by Mahendrakumar, based on which, FIR No.I-194/2016 was registered on 28.12.2016 against the appellants for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. As rightly contended by the learned counsel for the appellants, in the Summary Suit No.105/2015, issue No.5 has been framed by the Court whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts . When the issue as to the genuineness of the receipts is pending consideration in the civil suit, in our view, the FIR ought not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit. 19. It is also to be pointed out that in terms of Section 45 of the Indian Evidence Act, the opinion of handwriting expert is a relevant piece of evidence; but it is not a conclusive evidence. It is always open to the plaintiff-appellant No.3 to adduce appropriate evidence to disprove the opinion of the handwriting expert. That apart, Section 73 of the Indian Evidence Act empowers the Court to compare the admitted and disputed writings for the purpose of forming its own opinion. Based on the sole opinion of the handwriting expert, the FIR ought not to have been registered. Continuation of FIR No.I-194/2016, in our view, would amount to abuse of the process of Court and the petition filed by the appellants under Section 482 Crl.P.C. in Criminal Misc. Application No.2735/2017 to quash the FIR I-194/2016 is to be allowed. 20. The High Court, in our view, erred in quashing the criminal case in C.C.No.367/2016 filed by appellant No.3-Hasmukhbhai under Section 138 of N.I. Act. As pointed out earlier, Yogeshbhai has admitted the issuance of cheques. When once the issuance of cheque is admitted/established, the presumption would arise under Section 139 of the N.I. Act in favour of the holder of cheque that is the complainant-appellant No.3. The nature of presumptions under Section139 of the N.I. Act and Section 118(a) of the Indian Evidence Act are rebuttable. Yogeshbhai has of course, raised the defence that there is no illegally enforceable debt and he issued the cheques to help appellant No.3-Hasmukhbhai for purchase of lands. The burden lies upon the accused to rebut the presumption by adducing evidence. The High Court did not keep in view that until the accused discharges his burden, the presumption under Section 139 of N.I. Act will continue to remain. It is for Yogeshbhai to adduce evidence to rebut the statutory presumption. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C. Though, the Court has the power to quash the criminal complaint filed under Section 138 of the N.I. Act on the legal issues like limitation, etc. Criminal complaint filed under Section 138 of the N.I. Act against Yogeshbhai ought not have been quashed merely on the ground that there are inter se dispute between appellant No.3 and respondent No.2. Without keeping in view the statutory presumption raised under Section 139 of the N.I. Act, the High Court, in our view, committed a serious error in quashing the criminal complaint in C.C.No.367/2016 filed under Section 138 of N.I. Act. | 1[ds]16. The issue relates to the alleged forgery of four receipts dated 21.08.2010, 22.08.2010, 26.08.2010 and 28.08.2010 each for a sum of Rs.30,00,000/- totalling to Rs.1,20,00,000/- issued by respondent No.2-MahendrakumarAs rightly contended by the learned counsel for the appellants, in the Summary Suit No.105/2015, issue No.5 has been framed by the Court whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts .When the issue as to the genuineness of the receipts is pending consideration in the civil suit, in our view, the FIR ought not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit19. It is also to be pointed out that in terms of Section 45 of the Indian Evidence Act, the opinion of handwriting expert is a relevant piece of evidence; but it is not a conclusive evidence. It is always open to the plaintiff-appellant No.3 to adduce appropriate evidence to disprove the opinion of the handwriting expert. That apart, Section 73 of the Indian Evidence Act empowers the Court to compare the admitted and disputed writings for the purpose of forming its own opinion. Based on the sole opinion of the handwriting expert, the FIR ought not to have been registered. Continuation of FIR No.I-194/2016, in our view, would amount to abuse of the process of Court and the petition filed by the appellants under Section 482 Crl.P.C. in Criminal Misc. Application No.2735/2017 to quash the FIR I-194/2016 is to be allowed20. The High Court, in our view, erred in quashing the criminal case in C.C.No.367/2016 filed by appellant No.3-Hasmukhbhai under Section 138 of N.I. Act. As pointed out earlier, Yogeshbhai has admitted the issuance of cheques. When once the issuance of cheque is admitted/established, the presumption would arise under Section 139 of the N.I. Act in favour of the holder of cheque that is the complainant-appellant No.3. The nature of presumptions under Section139 of the N.I. Act and Section 118(a) of the Indian Evidence Act are rebuttable. Yogeshbhai has of course, raised the defence that there is no illegally enforceable debt and he issued the cheques to help appellant No.3-Hasmukhbhai for purchase of lands. The burden lies upon the accused to rebut the presumption by adducing evidence. The High Court did not keep in view that until the accused discharges his burden, the presumption under Section 139 of N.I. Act will continue to remain. It is for Yogeshbhai to adduce evidence to rebut the statutory presumption. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C. Though, the Court has the power to quash the criminal complaint filed under Section 138 of the N.I. Act on the legal issues like limitation, etc. Criminal complaint filed under Section 138 of the N.I. Act against Yogeshbhai ought not have been quashed merely on the ground that there are inter se dispute between appellant No.3 and respondent No.2. Without keeping in view the statutory presumption raised under Section 139 of the N.I. Act, the High Court, in our view, committed a serious error in quashing the criminal complaint in C.C.No.367/2016 filed under Section 138 of N.I. Act. | 1 | 3,351 | 626 | ### 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:
471 and 114 IPC. It was submitted that since there is a prima facie case of forgery and cheating made out against the appellants, the High Court rightly declined to quash the FIR and the impugned order warrants no interference. 15. We have carefully considered the submissions and perused the impugned order and other materials on record. 16. The issue relates to the alleged forgery of four receipts dated 21.08.2010, 22.08.2010, 26.08.2010 and 28.08.2010 each for a sum of Rs.30,00,000/- totalling to Rs.1,20,00,000/- issued by respondent No.2-Mahendrakumar. For the recovery of the amount of Rs.1,20,00,000/-, appellant No.3-Hasmukhbhai filed Special Summary Suit No.105/2015 in October, 2015. After receiving summons in Summary Suit No.105/2015, respondent No.2- Mahendrakumar entered appearance and filed application seeking leave to defend and the said application was allowed on 19.04.2016. On application filed by appellant No.3-Hasmukhbhai in the Summary Suit No.105/2015, four receipts were sent to Forensic Science Laboratory for obtaining the opinion of handwriting expert. The handwriting experts report was received in the Court on 15.12.2016 to the effect that all the four receipts were not signed by respondent No.2-Mahendrakumar. It was thereafter on the complaint filed by respondent No.2, FIR No.I-194/2016 dated 28.12.2016 was registered against the appellants for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. 17. In C.C.No.367/2016, case of appellant No.3-Hasmukhbhai is that Yogeshbhai issued four cheques each for a sum of Rs.30,00,000/-, details of which are as under:- table On presentation, the above cheques were dishonoured on the ground Payment stopped by the Drawer. After issuing the legal notice, appellant No.3-Hasmukhbhai filed criminal case in C.C.No.367/2016 on 08.12.2015 pertaining to two cheques bearing Nos.20801 and 20802. It was only thereafter, respondent No.2- Mahendrakumar had filed the criminal complaint dated 20.03.2016 and also filed another criminal complaint dated 14.04.2016 against appellant No.1-Rajeshbhai and appellant No.2-Vipulkumar. Since the police had not registered the FIR, respondent No.2 filed SCRA No.5945/2016 and SCRA No.6349/2016 before the High Court for seeking directions for lodging FIR. The High Court vide orders dated 04.10.2016 and 06.09.2016 disposed of those petitions directing the police to investigate into the matter. 18. Be that as it may, in the Summary Suit No.105/2015, leave to defend was granted to respondent No.2-Mahendrakumar on 19.04.2016. On the application filed by appellant No.3 in the said Summary Suit No.105/2015, four receipts filed in the suit were sent to the handwriting expert. The handwriting expert has opined that signatures in all the four receipts did not tally with the sample signatures which were of respondent No.2-Mahendrakumar. It was only thereafter, complaint was filed by Mahendrakumar, based on which, FIR No.I-194/2016 was registered on 28.12.2016 against the appellants for the offences punishable under Sections 406, 420, 465, 467, 468, 471 and 114 IPC. As rightly contended by the learned counsel for the appellants, in the Summary Suit No.105/2015, issue No.5 has been framed by the Court whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts . When the issue as to the genuineness of the receipts is pending consideration in the civil suit, in our view, the FIR ought not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit. 19. It is also to be pointed out that in terms of Section 45 of the Indian Evidence Act, the opinion of handwriting expert is a relevant piece of evidence; but it is not a conclusive evidence. It is always open to the plaintiff-appellant No.3 to adduce appropriate evidence to disprove the opinion of the handwriting expert. That apart, Section 73 of the Indian Evidence Act empowers the Court to compare the admitted and disputed writings for the purpose of forming its own opinion. Based on the sole opinion of the handwriting expert, the FIR ought not to have been registered. Continuation of FIR No.I-194/2016, in our view, would amount to abuse of the process of Court and the petition filed by the appellants under Section 482 Crl.P.C. in Criminal Misc. Application No.2735/2017 to quash the FIR I-194/2016 is to be allowed. 20. The High Court, in our view, erred in quashing the criminal case in C.C.No.367/2016 filed by appellant No.3-Hasmukhbhai under Section 138 of N.I. Act. As pointed out earlier, Yogeshbhai has admitted the issuance of cheques. When once the issuance of cheque is admitted/established, the presumption would arise under Section 139 of the N.I. Act in favour of the holder of cheque that is the complainant-appellant No.3. The nature of presumptions under Section139 of the N.I. Act and Section 118(a) of the Indian Evidence Act are rebuttable. Yogeshbhai has of course, raised the defence that there is no illegally enforceable debt and he issued the cheques to help appellant No.3-Hasmukhbhai for purchase of lands. The burden lies upon the accused to rebut the presumption by adducing evidence. The High Court did not keep in view that until the accused discharges his burden, the presumption under Section 139 of N.I. Act will continue to remain. It is for Yogeshbhai to adduce evidence to rebut the statutory presumption. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C. Though, the Court has the power to quash the criminal complaint filed under Section 138 of the N.I. Act on the legal issues like limitation, etc. Criminal complaint filed under Section 138 of the N.I. Act against Yogeshbhai ought not have been quashed merely on the ground that there are inter se dispute between appellant No.3 and respondent No.2. Without keeping in view the statutory presumption raised under Section 139 of the N.I. Act, the High Court, in our view, committed a serious error in quashing the criminal complaint in C.C.No.367/2016 filed under Section 138 of N.I. Act.
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1
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16. The issue relates to the alleged forgery of four receipts dated 21.08.2010, 22.08.2010, 26.08.2010 and 28.08.2010 each for a sum of Rs.30,00,000/- totalling to Rs.1,20,00,000/- issued by respondent No.2-MahendrakumarAs rightly contended by the learned counsel for the appellants, in the Summary Suit No.105/2015, issue No.5 has been framed by the Court whether the defendant proved that the plaintiff has fabricated the forged signature illegally and created forged receipts .When the issue as to the genuineness of the receipts is pending consideration in the civil suit, in our view, the FIR ought not to have been allowed to continue as it would prejudice the interest of the parties and the stand taken by them in the civil suit19. It is also to be pointed out that in terms of Section 45 of the Indian Evidence Act, the opinion of handwriting expert is a relevant piece of evidence; but it is not a conclusive evidence. It is always open to the plaintiff-appellant No.3 to adduce appropriate evidence to disprove the opinion of the handwriting expert. That apart, Section 73 of the Indian Evidence Act empowers the Court to compare the admitted and disputed writings for the purpose of forming its own opinion. Based on the sole opinion of the handwriting expert, the FIR ought not to have been registered. Continuation of FIR No.I-194/2016, in our view, would amount to abuse of the process of Court and the petition filed by the appellants under Section 482 Crl.P.C. in Criminal Misc. Application No.2735/2017 to quash the FIR I-194/2016 is to be allowed20. The High Court, in our view, erred in quashing the criminal case in C.C.No.367/2016 filed by appellant No.3-Hasmukhbhai under Section 138 of N.I. Act. As pointed out earlier, Yogeshbhai has admitted the issuance of cheques. When once the issuance of cheque is admitted/established, the presumption would arise under Section 139 of the N.I. Act in favour of the holder of cheque that is the complainant-appellant No.3. The nature of presumptions under Section139 of the N.I. Act and Section 118(a) of the Indian Evidence Act are rebuttable. Yogeshbhai has of course, raised the defence that there is no illegally enforceable debt and he issued the cheques to help appellant No.3-Hasmukhbhai for purchase of lands. The burden lies upon the accused to rebut the presumption by adducing evidence. The High Court did not keep in view that until the accused discharges his burden, the presumption under Section 139 of N.I. Act will continue to remain. It is for Yogeshbhai to adduce evidence to rebut the statutory presumption. When disputed questions of facts are involved which need to be adjudicated after the parties adduce evidence, the complaint under Section 138 of the N.I. Act ought not to have been quashed by the High Court by taking recourse to Section 482 Cr.P.C. Though, the Court has the power to quash the criminal complaint filed under Section 138 of the N.I. Act on the legal issues like limitation, etc. Criminal complaint filed under Section 138 of the N.I. Act against Yogeshbhai ought not have been quashed merely on the ground that there are inter se dispute between appellant No.3 and respondent No.2. Without keeping in view the statutory presumption raised under Section 139 of the N.I. Act, the High Court, in our view, committed a serious error in quashing the criminal complaint in C.C.No.367/2016 filed under Section 138 of N.I. Act.
|
M/S Speedline Agencies Vs. M/S T.Stanes & Co.Ltd | the Transferor Company or of anything contained in the scheme but the proceedings may be continued, prosecuted and enforced by or against the transferee company in the same manner and to the same extent as it would be or might have been continued prosecuted and enforced by or against the Transferor company as if the scheme has not been made. In view of the same, by virtue of the provisions in the Scheme of Amalgamation and operation of Order 21 rule 16 of C.P.C., the decree holder is deemed to execute the decree. Section 18 of the Act provides that the order of eviction shall be executed by the Controller as if such order is an order of a civil court and for this purpose, the Controller shall have all the powers of the civil court. For the purpose of execution of the order, all the powers of civil court have been invested in the Rent Controller. Therefore, the principle of Order 21 Rule 16 of the C.P.C. will apply. In any event, as rightly pointed out by learned senior counsel for the respondent that the C.P.C. provisions to the extent advance public interest or ensure a just, fair and reasonable procedure and does not conflict with the Act will apply to execution of the order of eviction.29) The landlords entitlement to evict the tenant had merged with the decree. Further, the amalgamation took place long after the decree for eviction and rights had crystallized under the decree for eviction and merged into it. The tenant has been in possession of vast extent of property which comprises of a big building with built up area of 5,274 sq. ft. together with appurtenant space i.e. vacant land total measuring 61,872 sq. ft. from the year 1965 for a period of over 45 years. The appellant was initially paying rent of Rs. 400/- for the building and Rs. 300/- for the furniture and fixtures which was raised to Rs. 400/- and Rs. 475/- respectively in 1970s. The Rent Controller fixed the fair rent as Rs. 6,465/- by order dated 18.10.1994 which was enhanced by the appellate authority in an appeal filed by the appellants to Rs. 7,852/- by order dated 19.12.2001.30) The assets of the erstwhile company had vested in the amalgamated company. A decree constitutes an asset. The said asset of erstwhile company has devolved on the amalgamated company. The eviction was on the ground of its own requirement of the erstwhile company. The said business will be continued to be carried by the amalgamated company. If the amalgamated company is deprived of the said benefit, it will frustrate the very purpose of amalgamation and defeat the order of amalgamation passed by the High Court exercising jurisdiction under the Companies Act.31) Further, the vacant land which was leased along with the building is the subject matter of the proceedings under the Ceiling Act. The landlord has obtained an order of exemption under Section 21 of the Act vide G.O. Rt. No. 2900 dated 04.11.1981 and the order G.O. Rt. No. 852 dated 25.06.1986. The exemption was expressly for the extension of the industry which is a public purpose. It is relevant to mention that under Section 21, only when the requirement of public interest is satisfied, the Government has power to grant exemption. It is also pointed out the conduct of the tenant when the landlord obtained an order of exemption under Section 21 of the Ceiling Act, the tenant moved the Government for cancellation of exemption and to assign the land in its favour. It also challenged the order of exemption before the High Court in Writ Petition No. 6434 of 1987 which was dismissed by the High Court by order dated 18.04.1991 and Writ Appeal No. 1177 of 1992 which was dismissed by the Division Bench of the High Court by order dated 12.07.1993.32) The reliance placed on behalf of the tenant, Section 10, sub-clause 3, first proviso, is a new plea. The said proviso reads as under:- "Provided that a person who becomes a landlord after the commencement of the tenancy by an instrument inter vivos shall not be entitled to apply under this clause before the expiry of three months from the date on which the instrument was registered." It has no application to pending revisions. On the other hand, it applies only to an application made before the Rent Controller. The proviso enjoins that the landlord "is not occupying" the building. Even if the landlord owns other properties but is not in occupation thereof, the proviso will not be attracted. The Rent Act does not deal with the ownership or title, but only with regard to the entitlement to occupation. Even otherwise, this Court will not permit this new plea to be raised for the first time. In any event, it is pointed out that the plea taken in the application for permission to place on record additional facts and documents that the amalgamated company owns other land, it is not pleaded that it is in occupation of such land, therefore, the proviso to Section 10(3)(iii) is not attracted. 33) The object of the Act is to prevent unreasonable eviction of the tenant in occupation and to control rents. Similarly, when landlord wants the property for its own purpose, it takes into account the fact of the landlords occupation of other properties and not its ownership of other properties which does not in occupation. The Act permits eviction on reasonable grounds as provided for in the Act. It may be that there may be cases where it would be reasonable to evict the tenant, but that requirement may not strictly fall in any one of the provisions of Section 10 of the Act to entitle the landlord to evict the tenant. Section 29 of the Act therefore, enables the Government to grant exemption of the building in such cases so that the landlord may be entitled to evict the tenant under the ordinary remedy of suit. | 1[ds]18) We agree with Mr. Parasaran that, in normal circumstances, after passing of the decree by the trial Court, the landlord would have obtained possession of the premises, but for the tenant continuing in occupation of the premises only on account of stay order from the appellate court. In such circumstances, the well known principle that "an act of the court shall prejudice no man" shall come into operation. Therefore, the heirs of the landlord will be fully entitled to defend the appeal preferred by the tenant. When a company stands dissolved (with or without winding up) due to amalgamation, its rights under the decree for eviction devolves on the amalgamatedIn the present case, subsequent event of amalgamation of a company took place during the pendency of the revision in the High Court. Though, subsequent events which have occurred during the pendency of a revision petition in the High Court or the matter was pending before this Court, have been taken into consideration by this Court in some cases, the question as to the difference between the exercise of jurisdiction in appeal and revision was not argued or decided in those cases.25) In a revision under Section 25 of the Act, the Court is exercising a restricted jurisdiction and not wide powers of the appellateMr. Parasaran reiterated that the High Court having only the power of limited jurisdiction and not powers of appellate court, the subsequent event which occurred during the pendency of the revision petition is not to be taken into account, the High Court will decide only as to the legality of the order under revision.27) Coming to the expression "for its own use/occupation", it has to be construed widely and given wide and liberal meaning. When a company wants to expand its business and amalgamates with another company, this would also be a case of "for its own use". If a landlord which is a company cannot advance its interest in the business by amalgamating with another company by putting to use its own property, it would be unjust, unfair and unreasonable. Further, the provisions of Rent Control Act should not be so construed as to frustrate and defeat the legislation. If in a case of landlord requiring the premises for its own use, to amalgamate with another company and expands its business, the rent control legislation may clash with the provisions of the Companies Act. The Companies Act and the Rent Control Act have to be harmoniously interpreted and not to be so interpreted as to result in the one Act destroying a right under the other Act.28) As stated earlier, death of a landlord after passing the order of eviction does not ipso facto destroy the accrued right under the decree. The cases which have taken into account the subsequent event in favour of the tenant are cases where during the pendency of the appeal or revision, the requirement of the landlord had been fully satisfied and met or ceased to exist. In the case on hand, the landlord required it for its own business and for residential purposes of its employees. That requirement continues to exist also for the transferee company since the entire business of the transferor company stood transferred to the transferee company. The requirement of the company has neither been satisfied nor extinguished. The right to evict has already crystallized into a decree to which the company after amalgamation has succeeded by involuntary assignment. As the decree for eviction was under stay, the decree could not be executed. Once the stay is vacated or dissolved, the respondent would be entitled to execute the decree. In the present case, the amalgamation order has also preserved the said right. As per Clause 1.7 of the Scheme, all assets vest in the transferee company. As per Clause 6, any suit, petition, appeal or other proceedings in respect of any matter shall not abate or be discontinued and shall not be prejudicially affected by reason of the transfer of the said assets/liabilities of the Transferor Company or of anything contained in the scheme but the proceedings may be continued, prosecuted and enforced by or against the transferee company in the same manner and to the same extent as it would be or might have been continued prosecuted and enforced by or against the Transferor company as if the scheme has not been made. In view of the same, by virtue of the provisions in the Scheme of Amalgamation and operation of Order 21 rule 16 of C.P.C., the decree holder is deemed to execute the decree. Section 18 of the Act provides that the order of eviction shall be executed by the Controller as if such order is an order of a civil court and for this purpose, the Controller shall have all the powers of the civil court. For the purpose of execution of the order, all the powers of civil court have been invested in the Rent Controller. Therefore, the principle of Order 21 Rule 16 of the C.P.C. will apply. In any event, as rightly pointed out by learned senior counsel for the respondent that the C.P.C. provisions to the extent advance public interest or ensure a just, fair and reasonable procedure and does not conflict with the Act will apply to execution of the order of eviction.29) The landlords entitlement to evict the tenant had merged with the decree. Further, the amalgamation took place long after the decree for eviction and rights had crystallized under the decree for eviction and merged into it. The tenant has been in possession of vast extent of property which comprises of a big building with built up area of 5,274 sq. ft. together with appurtenant space i.e. vacant land total measuring 61,872 sq. ft. from the year 1965 for a period of over 45 years. The appellant was initially paying rent of Rs. 400/for the building and Rs. 300/for the furniture and fixtures which was raised to Rs. 400/and Rs. 475/respectively in 1970s. The Rent Controller fixed the fair rent as Rs. 6,465/by order dated 18.10.1994 which was enhanced by the appellate authority in an appeal filed by the appellants to Rs. 7,852/by order dated 19.12.2001.30) The assets of the erstwhile company had vested in the amalgamated company. A decree constitutes an asset. The said asset of erstwhile company has devolved on the amalgamated company. The eviction was on the ground of its own requirement of the erstwhile company. The said business will be continued to be carried by the amalgamated company. If the amalgamated company is deprived of the said benefit, it will frustrate the very purpose of amalgamation and defeat the order of amalgamation passed by the High Court exercising jurisdiction under the Companies Act.31) Further, the vacant land which was leased along with the building is the subject matter of the proceedings under the Ceiling Act. The landlord has obtained an order of exemption under Section 21 of the Act vide G.O. Rt. No. 2900 dated 04.11.1981 and the order G.O. Rt. No. 852 dated 25.06.1986. The exemption was expressly for the extension of the industry which is a public purpose. It is relevant to mention that under Section 21, only when the requirement of public interest is satisfied, the Government has power to grant exemption. It is also pointed out the conduct of the tenant when the landlord obtained an order of exemption under Section 21 of the Ceiling Act, the tenant moved the Government for cancellation of exemption and to assign the land in its favour. It also challenged the order of exemption before the High Court in Writ Petition No. 6434 of 1987 which was dismissed by the High Court by order dated 18.04.1991 and Writ Appeal No. 1177 of 1992 which was dismissed by the Division Bench of the High Court by order dated 12.07.1993.32) The reliance placed on behalf of the tenant, Section 10,3, first proviso, is a new plea. The said proviso reads asthat a person who becomes a landlord after the commencement of the tenancy by an instrument inter vivos shall not be entitled to apply under this clause before the expiry of three months from the date on which the instrument washas no application to pending revisions. On the other hand, it applies only to an application made before the Rent Controller. The proviso enjoins that the landlord "is not occupying" the building. Even if the landlord owns other properties but is not in occupation thereof, the proviso will not be attracted. The Rent Act does not deal with the ownership or title, but only with regard to the entitlement to occupation. Even otherwise, this Court will not permit this new plea to be raised for the first time. In any event, it is pointed out that the plea taken in the application for permission to place on record additional facts and documents that the amalgamated company owns other land, it is not pleaded that it is in occupation of such land, therefore, the proviso to Section 10(3)(iii) is notThe object of the Act is to prevent unreasonable eviction of the tenant in occupation and to control rents. Similarly, when landlord wants the property for its own purpose, it takes into account the fact of the landlords occupation of other properties and not its ownership of other properties which does not in occupation. The Act permits eviction on reasonable grounds as provided for in the Act. It may be that there may be cases where it would be reasonable to evict the tenant, but that requirement may not strictly fall in any one of the provisions of Section 10 of the Act to entitle the landlord to evict the tenant. Section 29 of the Act therefore, enables the Government to grant exemption of the building in such cases so that the landlord may be entitled to evict the tenant under the ordinary remedy of suit. | 1 | 8,774 | 1,810 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
the Transferor Company or of anything contained in the scheme but the proceedings may be continued, prosecuted and enforced by or against the transferee company in the same manner and to the same extent as it would be or might have been continued prosecuted and enforced by or against the Transferor company as if the scheme has not been made. In view of the same, by virtue of the provisions in the Scheme of Amalgamation and operation of Order 21 rule 16 of C.P.C., the decree holder is deemed to execute the decree. Section 18 of the Act provides that the order of eviction shall be executed by the Controller as if such order is an order of a civil court and for this purpose, the Controller shall have all the powers of the civil court. For the purpose of execution of the order, all the powers of civil court have been invested in the Rent Controller. Therefore, the principle of Order 21 Rule 16 of the C.P.C. will apply. In any event, as rightly pointed out by learned senior counsel for the respondent that the C.P.C. provisions to the extent advance public interest or ensure a just, fair and reasonable procedure and does not conflict with the Act will apply to execution of the order of eviction.29) The landlords entitlement to evict the tenant had merged with the decree. Further, the amalgamation took place long after the decree for eviction and rights had crystallized under the decree for eviction and merged into it. The tenant has been in possession of vast extent of property which comprises of a big building with built up area of 5,274 sq. ft. together with appurtenant space i.e. vacant land total measuring 61,872 sq. ft. from the year 1965 for a period of over 45 years. The appellant was initially paying rent of Rs. 400/- for the building and Rs. 300/- for the furniture and fixtures which was raised to Rs. 400/- and Rs. 475/- respectively in 1970s. The Rent Controller fixed the fair rent as Rs. 6,465/- by order dated 18.10.1994 which was enhanced by the appellate authority in an appeal filed by the appellants to Rs. 7,852/- by order dated 19.12.2001.30) The assets of the erstwhile company had vested in the amalgamated company. A decree constitutes an asset. The said asset of erstwhile company has devolved on the amalgamated company. The eviction was on the ground of its own requirement of the erstwhile company. The said business will be continued to be carried by the amalgamated company. If the amalgamated company is deprived of the said benefit, it will frustrate the very purpose of amalgamation and defeat the order of amalgamation passed by the High Court exercising jurisdiction under the Companies Act.31) Further, the vacant land which was leased along with the building is the subject matter of the proceedings under the Ceiling Act. The landlord has obtained an order of exemption under Section 21 of the Act vide G.O. Rt. No. 2900 dated 04.11.1981 and the order G.O. Rt. No. 852 dated 25.06.1986. The exemption was expressly for the extension of the industry which is a public purpose. It is relevant to mention that under Section 21, only when the requirement of public interest is satisfied, the Government has power to grant exemption. It is also pointed out the conduct of the tenant when the landlord obtained an order of exemption under Section 21 of the Ceiling Act, the tenant moved the Government for cancellation of exemption and to assign the land in its favour. It also challenged the order of exemption before the High Court in Writ Petition No. 6434 of 1987 which was dismissed by the High Court by order dated 18.04.1991 and Writ Appeal No. 1177 of 1992 which was dismissed by the Division Bench of the High Court by order dated 12.07.1993.32) The reliance placed on behalf of the tenant, Section 10, sub-clause 3, first proviso, is a new plea. The said proviso reads as under:- "Provided that a person who becomes a landlord after the commencement of the tenancy by an instrument inter vivos shall not be entitled to apply under this clause before the expiry of three months from the date on which the instrument was registered." It has no application to pending revisions. On the other hand, it applies only to an application made before the Rent Controller. The proviso enjoins that the landlord "is not occupying" the building. Even if the landlord owns other properties but is not in occupation thereof, the proviso will not be attracted. The Rent Act does not deal with the ownership or title, but only with regard to the entitlement to occupation. Even otherwise, this Court will not permit this new plea to be raised for the first time. In any event, it is pointed out that the plea taken in the application for permission to place on record additional facts and documents that the amalgamated company owns other land, it is not pleaded that it is in occupation of such land, therefore, the proviso to Section 10(3)(iii) is not attracted. 33) The object of the Act is to prevent unreasonable eviction of the tenant in occupation and to control rents. Similarly, when landlord wants the property for its own purpose, it takes into account the fact of the landlords occupation of other properties and not its ownership of other properties which does not in occupation. The Act permits eviction on reasonable grounds as provided for in the Act. It may be that there may be cases where it would be reasonable to evict the tenant, but that requirement may not strictly fall in any one of the provisions of Section 10 of the Act to entitle the landlord to evict the tenant. Section 29 of the Act therefore, enables the Government to grant exemption of the building in such cases so that the landlord may be entitled to evict the tenant under the ordinary remedy of suit.
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discontinued and shall not be prejudicially affected by reason of the transfer of the said assets/liabilities of the Transferor Company or of anything contained in the scheme but the proceedings may be continued, prosecuted and enforced by or against the transferee company in the same manner and to the same extent as it would be or might have been continued prosecuted and enforced by or against the Transferor company as if the scheme has not been made. In view of the same, by virtue of the provisions in the Scheme of Amalgamation and operation of Order 21 rule 16 of C.P.C., the decree holder is deemed to execute the decree. Section 18 of the Act provides that the order of eviction shall be executed by the Controller as if such order is an order of a civil court and for this purpose, the Controller shall have all the powers of the civil court. For the purpose of execution of the order, all the powers of civil court have been invested in the Rent Controller. Therefore, the principle of Order 21 Rule 16 of the C.P.C. will apply. In any event, as rightly pointed out by learned senior counsel for the respondent that the C.P.C. provisions to the extent advance public interest or ensure a just, fair and reasonable procedure and does not conflict with the Act will apply to execution of the order of eviction.29) The landlords entitlement to evict the tenant had merged with the decree. Further, the amalgamation took place long after the decree for eviction and rights had crystallized under the decree for eviction and merged into it. The tenant has been in possession of vast extent of property which comprises of a big building with built up area of 5,274 sq. ft. together with appurtenant space i.e. vacant land total measuring 61,872 sq. ft. from the year 1965 for a period of over 45 years. The appellant was initially paying rent of Rs. 400/for the building and Rs. 300/for the furniture and fixtures which was raised to Rs. 400/and Rs. 475/respectively in 1970s. The Rent Controller fixed the fair rent as Rs. 6,465/by order dated 18.10.1994 which was enhanced by the appellate authority in an appeal filed by the appellants to Rs. 7,852/by order dated 19.12.2001.30) The assets of the erstwhile company had vested in the amalgamated company. A decree constitutes an asset. The said asset of erstwhile company has devolved on the amalgamated company. The eviction was on the ground of its own requirement of the erstwhile company. The said business will be continued to be carried by the amalgamated company. If the amalgamated company is deprived of the said benefit, it will frustrate the very purpose of amalgamation and defeat the order of amalgamation passed by the High Court exercising jurisdiction under the Companies Act.31) Further, the vacant land which was leased along with the building is the subject matter of the proceedings under the Ceiling Act. The landlord has obtained an order of exemption under Section 21 of the Act vide G.O. Rt. No. 2900 dated 04.11.1981 and the order G.O. Rt. No. 852 dated 25.06.1986. The exemption was expressly for the extension of the industry which is a public purpose. It is relevant to mention that under Section 21, only when the requirement of public interest is satisfied, the Government has power to grant exemption. It is also pointed out the conduct of the tenant when the landlord obtained an order of exemption under Section 21 of the Ceiling Act, the tenant moved the Government for cancellation of exemption and to assign the land in its favour. It also challenged the order of exemption before the High Court in Writ Petition No. 6434 of 1987 which was dismissed by the High Court by order dated 18.04.1991 and Writ Appeal No. 1177 of 1992 which was dismissed by the Division Bench of the High Court by order dated 12.07.1993.32) The reliance placed on behalf of the tenant, Section 10,3, first proviso, is a new plea. The said proviso reads asthat a person who becomes a landlord after the commencement of the tenancy by an instrument inter vivos shall not be entitled to apply under this clause before the expiry of three months from the date on which the instrument washas no application to pending revisions. On the other hand, it applies only to an application made before the Rent Controller. The proviso enjoins that the landlord "is not occupying" the building. Even if the landlord owns other properties but is not in occupation thereof, the proviso will not be attracted. The Rent Act does not deal with the ownership or title, but only with regard to the entitlement to occupation. Even otherwise, this Court will not permit this new plea to be raised for the first time. In any event, it is pointed out that the plea taken in the application for permission to place on record additional facts and documents that the amalgamated company owns other land, it is not pleaded that it is in occupation of such land, therefore, the proviso to Section 10(3)(iii) is notThe object of the Act is to prevent unreasonable eviction of the tenant in occupation and to control rents. Similarly, when landlord wants the property for its own purpose, it takes into account the fact of the landlords occupation of other properties and not its ownership of other properties which does not in occupation. The Act permits eviction on reasonable grounds as provided for in the Act. It may be that there may be cases where it would be reasonable to evict the tenant, but that requirement may not strictly fall in any one of the provisions of Section 10 of the Act to entitle the landlord to evict the tenant. Section 29 of the Act therefore, enables the Government to grant exemption of the building in such cases so that the landlord may be entitled to evict the tenant under the ordinary remedy of suit.
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Orient Paper Mills Ltd Vs. Union Of India | process. It is true that law can regulate the exercise of judicial powers. It may indicate by specific provisions on what matters the tribunals constituted by it should adjudicate. It may by specific provisions lay down the principles which have to be followed by the tribunals in dealing with the said matters. The scope of the jurisdiction of the tribunals constituted by statute can well be regulated by the statute and principles for guidance of the said tribunals may also be prescribed subject of course to the inevitable requirement that these provisions do not contravene the fundamental rights guaranteed by the Constitution. But what law and the provisions of law may legitimately do cannot be permitted to be done by administrative or executive orders. This position is so well established that we are reluctant to hold that in enacting Section 43-A the Madras Legislature intended to confer power on the State Government to invade the domain of the exercise of judicial power. In fact, if such had been the intention of the Madras Legislature and had been the true effect of the provisions of Section 43-A, Section 43-A itself would amount to an unreasonable contravention of fundamental rights of citizens and may have to be struck down as unconstitutional. That is why the Madras High Court dealing with the validity of Section 43-A had expressly observed that what Section 43-A purposed to do was to clothe the Government with authority to issue directions of an administrative character and nothing more. It is somewhat unfortunate that though judicial decisions have always emphasised this aspect of the matter, occasion did not arise so long to consider the validity of the Government order which on the construction suggested by the respondent would clearly invade the domain of quasi judicial administration." 11. The rule laid down in the above decisions is fully applicable to the facts of this case. It is obvious as well as admitted that both the Collector and the Central Government proceeded on the basis that the direction given by the Board was decisive of the matter, The revision applications filed before the Government were heard and decided by one of the members of the Board. He appears to have proceeded on the basis that in view of the directions given by the Board nothing more need be said as to the point in dispute. It is regrettable that when administrative officers are entrusted with quasi judicial functions, oftentimes they are unable to keep aside administrative considerations while discharging quasi judicial functions. This Court as well as the High Courts have repeatedly tried to impress upon them that their two functions are separate; while functioning as quasi judicial officers they should not allow their judgments to be influenced by administrative considerations or by the instructions or directions given by their superiors. In this case both the Collector as well as the Central Government have ignored the line that demarcates their administrative duties and their judicial functions. 12. Dr. Syed Mohammed did not try to justify the directions given by the Board nor did he contend that that direction has any force of law. On the other hand, his main contention was that the grounds urged before this Court were not at all taken before the Collector and the Central Government and therefore the appellant should not be permitted to take those grounds in this Court. We do not think that Dr. Syed Mohammed is right in his contention. Before the Central Government the appellant had definitely contended that no copy of the report relating to chemical examination of "M. G. Poster paper" had been given to the appellant and therefore the same could not have been taken into consideration. At that stage the appellant could not have known that the statement of the Collector relating to chemical examination of "M. G. Poster paper" was incorrect. As, regards the validity of the direction given by the Board, it is clear from the notes of argument maintained by the member of the Board who heard the revision applications that that contention had been taken before him, though not in the form in which it was presented before this Court. This, what we get from the notes maintained by him:-"The matter (as to whether M. G. Poster paper is printing and writing paper or packing and wrapping paper) was re-examined in detail, in consultation with all the concerned authorities, viz., the Ministry of Commerce and Industries, the Indian Standards Institution and the Chief Chemist. The views of Collectors of Central Excise as well as those of Collectors were also invited. Ultimately it was re-affirmed vide the Boards letter No. F. No. 21/36/ 61/CXIV dated November 6, 1961, that poster paper was correctly assessable as packing and wrapping paper and should continue to be assessed as such. F. M.s approval was also secured before confirming this position. This therefore should settle the main issue regarding the classification of the poster paper." From these notes it is clear that at any rate the correctness of the direction issued by the Board was put in issue during the hearing of the revision applications.That apart, we are clearly of the opinion that even if the question of the legality of the directions issued by the Board had not been taken before the authorities under the Act, as that direction completely vitiates the proceedings and makes a mockery of the judicial process, we think we ought to consider the legality of that direction. For the reasons already mentioned, we hold that that direction was invalid and the same has vitiated the proceedings before the Collector as well as the Government. 13. Both the appellant as well as the Revenue invited us to decide the case on the basis of the material on record. Ordinarily this Court does not go into questions of fact. That is the duty of the authorities under the Act. We see no exceptional circumstances in this case requiring us to deviate from the ordinary rule. | 1[ds]8. If the power exercised by the Collector was a quasi judicial power-as we hold it to be-that power cannot be controlled by the directions issued by the Board. No authority however high placed can control the decision of a judicial or a quasi judicial authority. That is the essence of our judicial system. There is no provision in the Act empowering the Board to issue directions to the assessing authorities or the appellate authorities in the matter of deciding disputes between the persons who are called upon to pay duty and the department. It is true that the assessing authorities as well as the appellate authorities are judges in their own cause; yet when they are called upon to decide disputes arising under the Act they must act independently and impartially. They cannot be said to act independently if their judgment is controlled by the directions given by others. Then it is a misnomer to call their orders as their judgments; they would essentially be the judgments of the authority that gave the directions and which authority had given those judgments without hearing the aggrieved party. The only provision under which the Board can issue directions is Rule 233 of the Rules framed under the Act. That rule says that the Board and the Collectors may issue written instructions providing for any supplemental matters arising out of these Rules. Under this rule the only instruction that the Board can issue is that relating to administrative matters; otherwise that rule will have to be considered as ultra vires Section 35 of the Act11. The rule laid down in the above decisions is fully applicable to the facts of this case. It is obvious as well as admitted that both the Collector and the Central Government proceeded on the basis that the direction given by the Board was decisive of the matter, The revision applications filed before the Government were heard and decided by one of the members of the Board. He appears to have proceeded on the basis that in view of the directions given by the Board nothing more need be said as to the point in dispute. It is regrettable that when administrative officers are entrusted with quasi judicial functions, oftentimes they are unable to keep aside administrative considerations while discharging quasi judicial functions. This Court as well as the High Courts have repeatedly tried to impress upon them that their two functions are separate; while functioning as quasi judicial officers they should not allow their judgments to be influenced by administrative considerations or by the instructions or directions given by their superiors. In this case both the Collector as well as the Central Government have ignored the line that demarcates their administrative duties and their judicial functions12. Dr. Syed Mohammed did not try to justify the directions given by the Board nor did he contend that that direction has any force of law. On the other hand, his main contention was that the grounds urged before this Court were not at all taken before the Collector and the Central Government and therefore the appellant should not be permitted to take those grounds in this Court. We do not think that Dr. Syed Mohammed is right in his contention. Before the Central Government the appellant had definitely contended that no copy of the report relating to chemical examination of "M. G. Poster paper" had been given to the appellant and therefore the same could not have been taken into consideration. At that stage the appellant could not have known that the statement of the Collector relating to chemical examination of "M. G. Poster paper" was incorrectFrom these notes it is clear that at any rate the correctness of the direction issued by the Board was put in issue during the hearing of the revision applications.That apart, we are clearly of the opinion that even if the question of the legality of the directions issued by the Board had not been taken before the authorities under the Act, as that direction completely vitiates the proceedings and makes a mockery of the judicial process, we think we ought to consider the legality of that direction. For the reasons already mentioned, we hold that that direction was invalid and the same has vitiated the proceedings before the Collector as well as the Government13. Both the appellant as well as the Revenue invited us to decide the case on the basis of the material on recordOrdinarily this Court does not go into questions of fact. That is the duty of the authorities under the Act. We see no exceptional circumstances in this case requiring us to deviate from the ordinary rule. | 1 | 3,405 | 826 | ### 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.
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process. It is true that law can regulate the exercise of judicial powers. It may indicate by specific provisions on what matters the tribunals constituted by it should adjudicate. It may by specific provisions lay down the principles which have to be followed by the tribunals in dealing with the said matters. The scope of the jurisdiction of the tribunals constituted by statute can well be regulated by the statute and principles for guidance of the said tribunals may also be prescribed subject of course to the inevitable requirement that these provisions do not contravene the fundamental rights guaranteed by the Constitution. But what law and the provisions of law may legitimately do cannot be permitted to be done by administrative or executive orders. This position is so well established that we are reluctant to hold that in enacting Section 43-A the Madras Legislature intended to confer power on the State Government to invade the domain of the exercise of judicial power. In fact, if such had been the intention of the Madras Legislature and had been the true effect of the provisions of Section 43-A, Section 43-A itself would amount to an unreasonable contravention of fundamental rights of citizens and may have to be struck down as unconstitutional. That is why the Madras High Court dealing with the validity of Section 43-A had expressly observed that what Section 43-A purposed to do was to clothe the Government with authority to issue directions of an administrative character and nothing more. It is somewhat unfortunate that though judicial decisions have always emphasised this aspect of the matter, occasion did not arise so long to consider the validity of the Government order which on the construction suggested by the respondent would clearly invade the domain of quasi judicial administration." 11. The rule laid down in the above decisions is fully applicable to the facts of this case. It is obvious as well as admitted that both the Collector and the Central Government proceeded on the basis that the direction given by the Board was decisive of the matter, The revision applications filed before the Government were heard and decided by one of the members of the Board. He appears to have proceeded on the basis that in view of the directions given by the Board nothing more need be said as to the point in dispute. It is regrettable that when administrative officers are entrusted with quasi judicial functions, oftentimes they are unable to keep aside administrative considerations while discharging quasi judicial functions. This Court as well as the High Courts have repeatedly tried to impress upon them that their two functions are separate; while functioning as quasi judicial officers they should not allow their judgments to be influenced by administrative considerations or by the instructions or directions given by their superiors. In this case both the Collector as well as the Central Government have ignored the line that demarcates their administrative duties and their judicial functions. 12. Dr. Syed Mohammed did not try to justify the directions given by the Board nor did he contend that that direction has any force of law. On the other hand, his main contention was that the grounds urged before this Court were not at all taken before the Collector and the Central Government and therefore the appellant should not be permitted to take those grounds in this Court. We do not think that Dr. Syed Mohammed is right in his contention. Before the Central Government the appellant had definitely contended that no copy of the report relating to chemical examination of "M. G. Poster paper" had been given to the appellant and therefore the same could not have been taken into consideration. At that stage the appellant could not have known that the statement of the Collector relating to chemical examination of "M. G. Poster paper" was incorrect. As, regards the validity of the direction given by the Board, it is clear from the notes of argument maintained by the member of the Board who heard the revision applications that that contention had been taken before him, though not in the form in which it was presented before this Court. This, what we get from the notes maintained by him:-"The matter (as to whether M. G. Poster paper is printing and writing paper or packing and wrapping paper) was re-examined in detail, in consultation with all the concerned authorities, viz., the Ministry of Commerce and Industries, the Indian Standards Institution and the Chief Chemist. The views of Collectors of Central Excise as well as those of Collectors were also invited. Ultimately it was re-affirmed vide the Boards letter No. F. No. 21/36/ 61/CXIV dated November 6, 1961, that poster paper was correctly assessable as packing and wrapping paper and should continue to be assessed as such. F. M.s approval was also secured before confirming this position. This therefore should settle the main issue regarding the classification of the poster paper." From these notes it is clear that at any rate the correctness of the direction issued by the Board was put in issue during the hearing of the revision applications.That apart, we are clearly of the opinion that even if the question of the legality of the directions issued by the Board had not been taken before the authorities under the Act, as that direction completely vitiates the proceedings and makes a mockery of the judicial process, we think we ought to consider the legality of that direction. For the reasons already mentioned, we hold that that direction was invalid and the same has vitiated the proceedings before the Collector as well as the Government. 13. Both the appellant as well as the Revenue invited us to decide the case on the basis of the material on record. Ordinarily this Court does not go into questions of fact. That is the duty of the authorities under the Act. We see no exceptional circumstances in this case requiring us to deviate from the ordinary rule.
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8. If the power exercised by the Collector was a quasi judicial power-as we hold it to be-that power cannot be controlled by the directions issued by the Board. No authority however high placed can control the decision of a judicial or a quasi judicial authority. That is the essence of our judicial system. There is no provision in the Act empowering the Board to issue directions to the assessing authorities or the appellate authorities in the matter of deciding disputes between the persons who are called upon to pay duty and the department. It is true that the assessing authorities as well as the appellate authorities are judges in their own cause; yet when they are called upon to decide disputes arising under the Act they must act independently and impartially. They cannot be said to act independently if their judgment is controlled by the directions given by others. Then it is a misnomer to call their orders as their judgments; they would essentially be the judgments of the authority that gave the directions and which authority had given those judgments without hearing the aggrieved party. The only provision under which the Board can issue directions is Rule 233 of the Rules framed under the Act. That rule says that the Board and the Collectors may issue written instructions providing for any supplemental matters arising out of these Rules. Under this rule the only instruction that the Board can issue is that relating to administrative matters; otherwise that rule will have to be considered as ultra vires Section 35 of the Act11. The rule laid down in the above decisions is fully applicable to the facts of this case. It is obvious as well as admitted that both the Collector and the Central Government proceeded on the basis that the direction given by the Board was decisive of the matter, The revision applications filed before the Government were heard and decided by one of the members of the Board. He appears to have proceeded on the basis that in view of the directions given by the Board nothing more need be said as to the point in dispute. It is regrettable that when administrative officers are entrusted with quasi judicial functions, oftentimes they are unable to keep aside administrative considerations while discharging quasi judicial functions. This Court as well as the High Courts have repeatedly tried to impress upon them that their two functions are separate; while functioning as quasi judicial officers they should not allow their judgments to be influenced by administrative considerations or by the instructions or directions given by their superiors. In this case both the Collector as well as the Central Government have ignored the line that demarcates their administrative duties and their judicial functions12. Dr. Syed Mohammed did not try to justify the directions given by the Board nor did he contend that that direction has any force of law. On the other hand, his main contention was that the grounds urged before this Court were not at all taken before the Collector and the Central Government and therefore the appellant should not be permitted to take those grounds in this Court. We do not think that Dr. Syed Mohammed is right in his contention. Before the Central Government the appellant had definitely contended that no copy of the report relating to chemical examination of "M. G. Poster paper" had been given to the appellant and therefore the same could not have been taken into consideration. At that stage the appellant could not have known that the statement of the Collector relating to chemical examination of "M. G. Poster paper" was incorrectFrom these notes it is clear that at any rate the correctness of the direction issued by the Board was put in issue during the hearing of the revision applications.That apart, we are clearly of the opinion that even if the question of the legality of the directions issued by the Board had not been taken before the authorities under the Act, as that direction completely vitiates the proceedings and makes a mockery of the judicial process, we think we ought to consider the legality of that direction. For the reasons already mentioned, we hold that that direction was invalid and the same has vitiated the proceedings before the Collector as well as the Government13. Both the appellant as well as the Revenue invited us to decide the case on the basis of the material on recordOrdinarily this Court does not go into questions of fact. That is the duty of the authorities under the Act. We see no exceptional circumstances in this case requiring us to deviate from the ordinary rule.
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M/S. Bundelkhand Motor Transport Company, Nowgaon Vs. Behari Lal Chiaurasia And Another | in R. 61 and shall, subject to the provisions of sub-r. (b), be accompanied by Part A of the permit. The application shall set forth the period for which the renewal of the counter-signature is required." Rule 63, by Cl. (a), provided:"The authority by which a permit is renewed may, unless any authority by which the permit has been counter-signed (with effect not terminating before the date of expiry of the permit) has by general or special order otherwise directed, likewise renew any counter-signature of the permit (by endorsement of the permit in the manner set forth in the appropriate Form) and shall, in such case, intimate the renewal to such authority." 7. Rule 61 substantially incorporates the provisions of sub-s. (2) of S. 58, and the proviso thereto, and makes certain incidental provisions. By Cl. (a) of R. 62 it is provided that the application for renewal of counter-signature has to be made within the period prescribed in R. 61, i.e., it has to be made not less than two months before the expiry of a stage carriage permit or a public carriers permit. 8. By R. 63, power is conferred upon the Authority which grants an inter-regional permit under the first proviso to S. 45, (unless by any general or special order the other Authority has directed otherwise)to counter-sign the permit so as to make it valid for the other region covered by the route. Therefore, even though by S. 63 the power to counter-sign the permit is entrusted to the Regional Transport Authority of the region in which the remaining part of the route is situate, by R. 63 the power to counter-sign may also be exercised by the Authority who grants the original permit. The Regional Transport Authority, Jabalpur, was, therefore, competent to grant renewal of the permit and was also competent by virtue of R. 63 to counter-sign the permit so as to make it valid even for that part of the route which lay in the Rewa region. 9. The Legislature has by providing in the opening part of sub-s. (1) "Except as may by otherwise prescribed" made the provision subject to the rules framed under S. 68, and a rule conferring authority to counter-sign the permit in so far as it relates to another region upon the Authority who issues the permit is made. The validity of a section which is made subject to the provisions of the rules to be framed by a piece of delegated legislation is not challenged before us. Rule 63 must, therefore prevail over the direction of the statute. There is no substance in the contention raised by counsel for the appellant that the State Government had no power to frame R. 63. Power to frame rules for carrying into effect the provisions of Ch. IV is expressly granted to the State Government by S. 66, and the exercise of that power, if it be utilised for the purpose of carrying into effect the provisions of the Act, is not subject to any other implied limitations. 10. In the present case an application for counter-signature of renewal of the permit was made to the Regional Transport Authority, Jabalpur, and it was rejected. It is unfortunate that the application and the reasons in support of the order of the Authority are not on the record of the case. But it appears clear from the following recital in the order of the Regional Transport Authority, Rewa, that the application for countersignature was made to the Authority at Jabalpur and it was rejected:"Need for moving this authority for getting the counter-signature renewed certainly arose when the R. T. A., Jabalpur, declined to sanction the renewal of counter-signature." 11. Truth of this recital is accepted by counsel at the Bar.The result, therefore, is that an application was made under S. 63 read with S. 58 (2) to the Regional Transport Authority, Jabalpur, for renewal of the permit and also for counter-signature of the renewal of the permit. The Regional Transport Authority, Jabalpur, granted renewal of the permit, but declined to grant countersignature of the permit, insofar as it related to the Rewa region. Under S. 63 a permit granted by the Regional Transport Authority of one region is not valid in any other region, unless the permit has been counter-signed by the Regional Transport Authority of that other region. The clearest implication of this provision is that even an inter-regional permit when granted is valid for the region over which the Authority granting the permit has jurisdiction, and when it is countersigned by the Regional Transport Authority of the other region, the permit becomes valid for the entire route. We are unable to agree with counsel for the respondent that the permit has no validity whatever until it is counter-signed by the Regional Transport Authority of the other region. 12. The Regional Transport Authority. Jabalpur, renewed the permit for the Jabalpur region, but declined to counter-sign the permit in exercise of the power conferred by R. 63 framed under S. 68 of the Motor Vehicles Act in respect of the route within the Rewa region. The conclusion is inevitable that the Authority granted the permit only operative between Jabalpur and the point at which the route entered the Rewa region: in substance, he merely granted a regional permit limited to the route within the Jabalpur region. The permit being a regional permit and not an inter-regional permit, there was no part of the route for which the Regional Transport Authority, Rewa, could be counter-signing the permit extend it so as to make it operative within the Rewa region. In any event as one Regional Transport Authority is not competent to sit in judgment over the discretion exercised by any other Regional Transport Authority upon whom the power is conferred in regard to a particular matter under the statute, the order of the Regional Transport Authority, Rewa, granting counter-signature in the teeth of the earlier order of the Jabalpur Authority was invalid. 13. | 1[ds]6. We do not think it necessary to express any opinion on the contentions advanced by the parties on this part of the case, for, we are of the view that this appeal may be decided on the interpretation of the rules made by the State Government in regard to grant of permits and counter-signature of inter-regional permitsIn the present case an application for counter-signature of renewal of the permit was made to the Regional Transport Authority, Jabalpur, and it was rejected. It is unfortunate that the application and the reasons in support of the order of the Authority are not on the record of the case. But it appears clear from the following recital in the order of the Regional Transport Authority, Rewa, that the application for countersignature was made to the Authority at Jabalpur and it was rejected:"Need for moving this authority for getting the counter-signature renewed certainly arose when the R. T. A., Jabalpur, declined to sanction the renewal of counter-signature."Truth of this recital is accepted by counsel at the Bar.The result, therefore, is that an application was made under S. 63 read with S. 58 (2) to the Regional Transport Authority, Jabalpur, for renewal of the permit and also for counter-signature of the renewal of the permit. The Regional Transport Authority, Jabalpur, granted renewal of the permit, but declined to grant countersignature of the permit, insofar as it related to the Rewa region. Under S. 63 a permit granted by the Regional Transport Authority of one region is not valid in any other region, unless the permit has been counter-signed by the Regional Transport Authority of that other region. The clearest implication of this provision is that even an inter-regional permit when granted is valid for the region over which the Authority granting the permit has jurisdiction, and when it is countersigned by the Regional Transport Authority of the other region, the permit becomes valid for the entire route. We are unable to agree with counsel for the respondent that the permit has no validity whatever until it is counter-signed by the Regional Transport Authority of the other regionThe conclusion is inevitable that the Authority granted the permit only operative between Jabalpur and the point at which the route entered the Rewa region: in substance, he merely granted a regional permit limited to the route within the Jabalpur region. The permit being a regional permit and not an inter-regional permit, there was no part of the route for which the Regional Transport Authority, Rewa, could be counter-signing the permit extend it so as to make it operative within the Rewa region. In any event as one Regional Transport Authority is not competent to sit in judgment over the discretion exercised by any other Regional Transport Authority upon whom the power is conferred in regard to a particular matter under the statute, the order of the Regional Transport Authority, Rewa, granting counter-signature in the teeth of the earlier order of the Jabalpur Authority was invalid. | 1 | 3,101 | 547 | ### 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:
in R. 61 and shall, subject to the provisions of sub-r. (b), be accompanied by Part A of the permit. The application shall set forth the period for which the renewal of the counter-signature is required." Rule 63, by Cl. (a), provided:"The authority by which a permit is renewed may, unless any authority by which the permit has been counter-signed (with effect not terminating before the date of expiry of the permit) has by general or special order otherwise directed, likewise renew any counter-signature of the permit (by endorsement of the permit in the manner set forth in the appropriate Form) and shall, in such case, intimate the renewal to such authority." 7. Rule 61 substantially incorporates the provisions of sub-s. (2) of S. 58, and the proviso thereto, and makes certain incidental provisions. By Cl. (a) of R. 62 it is provided that the application for renewal of counter-signature has to be made within the period prescribed in R. 61, i.e., it has to be made not less than two months before the expiry of a stage carriage permit or a public carriers permit. 8. By R. 63, power is conferred upon the Authority which grants an inter-regional permit under the first proviso to S. 45, (unless by any general or special order the other Authority has directed otherwise)to counter-sign the permit so as to make it valid for the other region covered by the route. Therefore, even though by S. 63 the power to counter-sign the permit is entrusted to the Regional Transport Authority of the region in which the remaining part of the route is situate, by R. 63 the power to counter-sign may also be exercised by the Authority who grants the original permit. The Regional Transport Authority, Jabalpur, was, therefore, competent to grant renewal of the permit and was also competent by virtue of R. 63 to counter-sign the permit so as to make it valid even for that part of the route which lay in the Rewa region. 9. The Legislature has by providing in the opening part of sub-s. (1) "Except as may by otherwise prescribed" made the provision subject to the rules framed under S. 68, and a rule conferring authority to counter-sign the permit in so far as it relates to another region upon the Authority who issues the permit is made. The validity of a section which is made subject to the provisions of the rules to be framed by a piece of delegated legislation is not challenged before us. Rule 63 must, therefore prevail over the direction of the statute. There is no substance in the contention raised by counsel for the appellant that the State Government had no power to frame R. 63. Power to frame rules for carrying into effect the provisions of Ch. IV is expressly granted to the State Government by S. 66, and the exercise of that power, if it be utilised for the purpose of carrying into effect the provisions of the Act, is not subject to any other implied limitations. 10. In the present case an application for counter-signature of renewal of the permit was made to the Regional Transport Authority, Jabalpur, and it was rejected. It is unfortunate that the application and the reasons in support of the order of the Authority are not on the record of the case. But it appears clear from the following recital in the order of the Regional Transport Authority, Rewa, that the application for countersignature was made to the Authority at Jabalpur and it was rejected:"Need for moving this authority for getting the counter-signature renewed certainly arose when the R. T. A., Jabalpur, declined to sanction the renewal of counter-signature." 11. Truth of this recital is accepted by counsel at the Bar.The result, therefore, is that an application was made under S. 63 read with S. 58 (2) to the Regional Transport Authority, Jabalpur, for renewal of the permit and also for counter-signature of the renewal of the permit. The Regional Transport Authority, Jabalpur, granted renewal of the permit, but declined to grant countersignature of the permit, insofar as it related to the Rewa region. Under S. 63 a permit granted by the Regional Transport Authority of one region is not valid in any other region, unless the permit has been counter-signed by the Regional Transport Authority of that other region. The clearest implication of this provision is that even an inter-regional permit when granted is valid for the region over which the Authority granting the permit has jurisdiction, and when it is countersigned by the Regional Transport Authority of the other region, the permit becomes valid for the entire route. We are unable to agree with counsel for the respondent that the permit has no validity whatever until it is counter-signed by the Regional Transport Authority of the other region. 12. The Regional Transport Authority. Jabalpur, renewed the permit for the Jabalpur region, but declined to counter-sign the permit in exercise of the power conferred by R. 63 framed under S. 68 of the Motor Vehicles Act in respect of the route within the Rewa region. The conclusion is inevitable that the Authority granted the permit only operative between Jabalpur and the point at which the route entered the Rewa region: in substance, he merely granted a regional permit limited to the route within the Jabalpur region. The permit being a regional permit and not an inter-regional permit, there was no part of the route for which the Regional Transport Authority, Rewa, could be counter-signing the permit extend it so as to make it operative within the Rewa region. In any event as one Regional Transport Authority is not competent to sit in judgment over the discretion exercised by any other Regional Transport Authority upon whom the power is conferred in regard to a particular matter under the statute, the order of the Regional Transport Authority, Rewa, granting counter-signature in the teeth of the earlier order of the Jabalpur Authority was invalid. 13.
### Response:
1
### Explanation:
6. We do not think it necessary to express any opinion on the contentions advanced by the parties on this part of the case, for, we are of the view that this appeal may be decided on the interpretation of the rules made by the State Government in regard to grant of permits and counter-signature of inter-regional permitsIn the present case an application for counter-signature of renewal of the permit was made to the Regional Transport Authority, Jabalpur, and it was rejected. It is unfortunate that the application and the reasons in support of the order of the Authority are not on the record of the case. But it appears clear from the following recital in the order of the Regional Transport Authority, Rewa, that the application for countersignature was made to the Authority at Jabalpur and it was rejected:"Need for moving this authority for getting the counter-signature renewed certainly arose when the R. T. A., Jabalpur, declined to sanction the renewal of counter-signature."Truth of this recital is accepted by counsel at the Bar.The result, therefore, is that an application was made under S. 63 read with S. 58 (2) to the Regional Transport Authority, Jabalpur, for renewal of the permit and also for counter-signature of the renewal of the permit. The Regional Transport Authority, Jabalpur, granted renewal of the permit, but declined to grant countersignature of the permit, insofar as it related to the Rewa region. Under S. 63 a permit granted by the Regional Transport Authority of one region is not valid in any other region, unless the permit has been counter-signed by the Regional Transport Authority of that other region. The clearest implication of this provision is that even an inter-regional permit when granted is valid for the region over which the Authority granting the permit has jurisdiction, and when it is countersigned by the Regional Transport Authority of the other region, the permit becomes valid for the entire route. We are unable to agree with counsel for the respondent that the permit has no validity whatever until it is counter-signed by the Regional Transport Authority of the other regionThe conclusion is inevitable that the Authority granted the permit only operative between Jabalpur and the point at which the route entered the Rewa region: in substance, he merely granted a regional permit limited to the route within the Jabalpur region. The permit being a regional permit and not an inter-regional permit, there was no part of the route for which the Regional Transport Authority, Rewa, could be counter-signing the permit extend it so as to make it operative within the Rewa region. In any event as one Regional Transport Authority is not competent to sit in judgment over the discretion exercised by any other Regional Transport Authority upon whom the power is conferred in regard to a particular matter under the statute, the order of the Regional Transport Authority, Rewa, granting counter-signature in the teeth of the earlier order of the Jabalpur Authority was invalid.
|
Sant Ram Sharma Vs. State Of Rajasthan & Anr | breach of the provisions of Arts. 14 and 16 of the Constitution because everyone who was eligible in view of the conditions of service and was entitled to consideration was actually considered before promotion to those selection posts were actually made. It was said by Mr. C. B. Agarwala on behalf of the respondents that an objective evaluation of the merit of the officers is made each year and promotion is made on scrutiny of the record sheets dealing with the competence, efficiency and experience of the officers concerned. In the present case, there is no specific allegation by the petitioner in the writ petition that his case was not considered alongwith respondents 3 and 4 at the time of promotion to the posts of Deputy Inspector General of Police in 1955 or to the rank of Inspector General of Police or Additional Inspector General of Police in 1966. There was, however, a vague suggestion made by the petitioner in paragraph 68 of his rejoinder petition dated July 17, 1967 that:"the State Government could not have possibly considered my case, as they considered and even in this counter-affidavit consider Shri Hanuman Sharma and Shri Sultan Singh senior to me by the new type of seniority they have invented for their benefit". Even though there is no specific allegation by the petitioner that there was no consideration of his case, respondent No. 1 has definitely asserted in paragraphs 23, 25, 40 and 44 of the counter-affidavit that at the time of promotion of respondents 3 and 4 to the selection posts of Deputy Inspector General of Police and of Inspector General of Police the case of the petitioner was considered. We are therefore of the opinion that the petitioner is unable to substantiate his argument that there was no consideration of his case at the time of promotion of respondents 3 and 4 to the selection posts. We must therefore proceed on the footing that respondent No. 1 had considered the case of the petitioner and taken into account the record, experience and merit of the petitioner at the time of the promotion of respondents 3 and 4 to the selection grade-posts. It is therefore not possible to accept the argument of Mr. N. C. Chatterjee that there was any violation of the constitutional guarantee under Arts. 14 and 16 of the Constitution in the present case. Mr. N. C. Chatterjee argued that the introduction of the idea of merit into the procedure of promotion brings in an element of personal evaluation, and that personal evaluation, opens the door to the abuses of nepotism and favouritism, and so, there was a violation of the constitutional guarantee under Arts. 14 and 16 of the Constitution. We are unable to accept this argument as well founded. The question of a proper promotion policy depends on various conflicting factors. It is obvious that the only method in which absolute objectivity can be ensured is for all promotions to be made entirely on grounds of seniority. That means that if a post falls vacant it is filled by the person who has served longest in the post immediately below. But the trouble with the seniority system is that it is so objective that it fails to take any account of personal merit. As a system it is fair to every official except the best ones, an official has nothing to win or lose provided he does not actually become so inefficient that disciplinary action has to be taken against him. But, though the system is fair to the officials concerned, it is a heavy burden on the public and a great strain on the efficient handling of public business. The problem, therefore is how to ensure reasonable prospect of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able man? In other words, the question is how to find a correct balance between seniority and merit in a proper promotion-policy. In this connection Leonard D. White has stated as follows :"The principal object of a promotion system is to secure the best possible incomebents for the higher positions, while maintaining the morale of the whole organization. The main interest to be served is the public interest, not the personal interest of members of the official group concerned the public interest is best secured when reasonable opportunities for promotion exist for all qualified employees, when really superior civil servants are enabled to move as rapidly up the promotion ladder as their merits deserve and as vacancies occur, and when selection for promotion is made on the sole basis of merit. For the merit system ought to apply as specifically in making promotions as in original recruitment............Employees often prefer the rule of seniority, by which the eligible longest in service is automatically awarded the promotion within limits, seniority is entitled to consideration as one criterion of selection. It tends to eliminate favouritism or the suspicion thereof; and experience is certainly a factor in the making of a successful employee. Seniority is given most weight in promotions from the lowest to other subordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. When seniority is made the sole determining factor, at any level, it is a dangerous guide. It does not follow that the employee longest in service in a particular grade is best suited for promotion to a higher grade; the very opposite may be true." (Introduction to the Study of Public Administration, 4th Edn., pp. 380, 383). As a matter of long administrative practice promotion to selection grade posts in the Indian Police Service has been based on merit and seniority has been taken into consideration only when merit of the candidates is otherwise equal and we are unable to accept the argument of Mr. N. C. Chatterjee that this procedure violates, in any way, the guarantee under Arts. 14 and 16 of the Constitution. 13. | 1[ds]In our opinion, the respondents are right in their contention that the ranking or position in the Gradation List does not confer any right on the petitioner to be promoted to selection post and that it is a well-established rule that promotion to selection grades or selection posts is to be based primarily on merit and not on seniority alone. The principle is that when the claims of officers to selection posts is under consideration, seniority should not be regarded except where the merit of the officers is judged to be equal and no other criterion is, therefore, availableWe are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framedIn our view, there is no substance in this contention of the petitioner. If the State of Rajasthan had considered the case of the petitioner alongwith the other eligible candidates before appointments to the selection posts there would be no breach of the provisions of Arts. 14 and 16 of the Constitution because everyone who was eligible in view of the conditions of service and was entitled to consideration was actually considered before promotion to those selection posts were actually made. It was said by Mr. C. B. Agarwala on behalf of the respondents that an objective evaluation of the merit of the officers is made each year and promotion is made on scrutiny of the record sheets dealing with the competence, efficiency and experience of the officers concerned. In the present case, there is no specific allegation by the petitioner in the writ petition that his case was not considered alongwith respondents 3 and 4 at the time of promotion to the posts of Deputy Inspector General of Police in 1955 or to the rank of Inspector General of Police or Additional Inspector General of Police in 1966. There was, however, a vague suggestion made by the petitioner in paragraph 68 of his rejoinder petition dated July 17, 1967 that"the State Government could not have possibly considered my case, as they considered and even in this counter-affidavit consider Shri Hanuman Sharma and Shri Sultan Singh senior to me by the new type of seniority they have invented for their benefit".Even though there is no specific allegation by the petitioner that there was no consideration of his case, respondent No. 1 has definitely asserted in paragraphs 23, 25, 40 and 44 of the counter-affidavit that at the time of promotion of respondents 3 and 4 to the selection posts of Deputy Inspector General of Police and of Inspector General of Police the case of the petitioner was considered. We are therefore of the opinion that the petitioner is unable to substantiate his argument that there was no consideration of his case at the time of promotion of respondents 3 and 4 to the selection posts. We must therefore proceed on the footing that respondent No. 1 had considered the case of the petitioner and taken into account the record, experience and merit of the petitioner at the time of the promotion of respondents 3 and 4 to the selection grade-posts. It is therefore not possible to accept the argument of Mr. N. C. Chatterjee that there was any violation of the constitutional guarantee under Arts. 14 and 16 of the Constitution in the present caseWe are unable to accept this argument as well founded. The question of a proper promotion policy depends on various conflicting factors. It is obvious that the only method in which absolute objectivity can be ensured is for all promotions to be made entirely on grounds of seniority. That means that if a post falls vacant it is filled by the person who has served longest in the post immediately below. But the trouble with the seniority system is that it is so objective that it fails to take any account of personal merit. As a system it is fair to every official except the best ones, an official has nothing to win or lose provided he does not actually become so inefficient that disciplinary action has to be taken against him. But, though the system is fair to the officials concerned, it is a heavy burden on the public and a great strain on the efficient handling of public business. The problem, therefore is how to ensure reasonable prospect of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able man? In other words, the question is how to find a correct balance between seniority and merit in a proper promotion-policyAs a matter of long administrative practice promotion to selection grade posts in the Indian Police Service has been based on merit and seniority has been taken into consideration only when merit of the candidates is otherwise equal and we are unable to accept the argument of Mr. N. C. Chatterjee that this procedure violates, in any way, the guarantee under Arts. 14 and 16 of the Constitution. | 1 | 5,840 | 986 | ### 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:
breach of the provisions of Arts. 14 and 16 of the Constitution because everyone who was eligible in view of the conditions of service and was entitled to consideration was actually considered before promotion to those selection posts were actually made. It was said by Mr. C. B. Agarwala on behalf of the respondents that an objective evaluation of the merit of the officers is made each year and promotion is made on scrutiny of the record sheets dealing with the competence, efficiency and experience of the officers concerned. In the present case, there is no specific allegation by the petitioner in the writ petition that his case was not considered alongwith respondents 3 and 4 at the time of promotion to the posts of Deputy Inspector General of Police in 1955 or to the rank of Inspector General of Police or Additional Inspector General of Police in 1966. There was, however, a vague suggestion made by the petitioner in paragraph 68 of his rejoinder petition dated July 17, 1967 that:"the State Government could not have possibly considered my case, as they considered and even in this counter-affidavit consider Shri Hanuman Sharma and Shri Sultan Singh senior to me by the new type of seniority they have invented for their benefit". Even though there is no specific allegation by the petitioner that there was no consideration of his case, respondent No. 1 has definitely asserted in paragraphs 23, 25, 40 and 44 of the counter-affidavit that at the time of promotion of respondents 3 and 4 to the selection posts of Deputy Inspector General of Police and of Inspector General of Police the case of the petitioner was considered. We are therefore of the opinion that the petitioner is unable to substantiate his argument that there was no consideration of his case at the time of promotion of respondents 3 and 4 to the selection posts. We must therefore proceed on the footing that respondent No. 1 had considered the case of the petitioner and taken into account the record, experience and merit of the petitioner at the time of the promotion of respondents 3 and 4 to the selection grade-posts. It is therefore not possible to accept the argument of Mr. N. C. Chatterjee that there was any violation of the constitutional guarantee under Arts. 14 and 16 of the Constitution in the present case. Mr. N. C. Chatterjee argued that the introduction of the idea of merit into the procedure of promotion brings in an element of personal evaluation, and that personal evaluation, opens the door to the abuses of nepotism and favouritism, and so, there was a violation of the constitutional guarantee under Arts. 14 and 16 of the Constitution. We are unable to accept this argument as well founded. The question of a proper promotion policy depends on various conflicting factors. It is obvious that the only method in which absolute objectivity can be ensured is for all promotions to be made entirely on grounds of seniority. That means that if a post falls vacant it is filled by the person who has served longest in the post immediately below. But the trouble with the seniority system is that it is so objective that it fails to take any account of personal merit. As a system it is fair to every official except the best ones, an official has nothing to win or lose provided he does not actually become so inefficient that disciplinary action has to be taken against him. But, though the system is fair to the officials concerned, it is a heavy burden on the public and a great strain on the efficient handling of public business. The problem, therefore is how to ensure reasonable prospect of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able man? In other words, the question is how to find a correct balance between seniority and merit in a proper promotion-policy. In this connection Leonard D. White has stated as follows :"The principal object of a promotion system is to secure the best possible incomebents for the higher positions, while maintaining the morale of the whole organization. The main interest to be served is the public interest, not the personal interest of members of the official group concerned the public interest is best secured when reasonable opportunities for promotion exist for all qualified employees, when really superior civil servants are enabled to move as rapidly up the promotion ladder as their merits deserve and as vacancies occur, and when selection for promotion is made on the sole basis of merit. For the merit system ought to apply as specifically in making promotions as in original recruitment............Employees often prefer the rule of seniority, by which the eligible longest in service is automatically awarded the promotion within limits, seniority is entitled to consideration as one criterion of selection. It tends to eliminate favouritism or the suspicion thereof; and experience is certainly a factor in the making of a successful employee. Seniority is given most weight in promotions from the lowest to other subordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. When seniority is made the sole determining factor, at any level, it is a dangerous guide. It does not follow that the employee longest in service in a particular grade is best suited for promotion to a higher grade; the very opposite may be true." (Introduction to the Study of Public Administration, 4th Edn., pp. 380, 383). As a matter of long administrative practice promotion to selection grade posts in the Indian Police Service has been based on merit and seniority has been taken into consideration only when merit of the candidates is otherwise equal and we are unable to accept the argument of Mr. N. C. Chatterjee that this procedure violates, in any way, the guarantee under Arts. 14 and 16 of the Constitution. 13.
### Response:
1
### Explanation:
In our opinion, the respondents are right in their contention that the ranking or position in the Gradation List does not confer any right on the petitioner to be promoted to selection post and that it is a well-established rule that promotion to selection grades or selection posts is to be based primarily on merit and not on seniority alone. The principle is that when the claims of officers to selection posts is under consideration, seniority should not be regarded except where the merit of the officers is judged to be equal and no other criterion is, therefore, availableWe are unable to accept this argument as correct. It is true that there is no specific provision in the Rules laying down the principle of promotion of junior or senior grade officers to selection grade posts. But that does not mean that till statutory rules are framed in this behalf the Government cannot issue administrative instructions regarding the principle to be followed in promotions of the officers concerned to selection grade posts. It is true that Government cannot amend or supersede statutory Rules by administrative instructions but if the rules are silent on any particular point Government can fill up the gaps and supplement the rules and issue instructions not inconsistent with the rules already framedIn our view, there is no substance in this contention of the petitioner. If the State of Rajasthan had considered the case of the petitioner alongwith the other eligible candidates before appointments to the selection posts there would be no breach of the provisions of Arts. 14 and 16 of the Constitution because everyone who was eligible in view of the conditions of service and was entitled to consideration was actually considered before promotion to those selection posts were actually made. It was said by Mr. C. B. Agarwala on behalf of the respondents that an objective evaluation of the merit of the officers is made each year and promotion is made on scrutiny of the record sheets dealing with the competence, efficiency and experience of the officers concerned. In the present case, there is no specific allegation by the petitioner in the writ petition that his case was not considered alongwith respondents 3 and 4 at the time of promotion to the posts of Deputy Inspector General of Police in 1955 or to the rank of Inspector General of Police or Additional Inspector General of Police in 1966. There was, however, a vague suggestion made by the petitioner in paragraph 68 of his rejoinder petition dated July 17, 1967 that"the State Government could not have possibly considered my case, as they considered and even in this counter-affidavit consider Shri Hanuman Sharma and Shri Sultan Singh senior to me by the new type of seniority they have invented for their benefit".Even though there is no specific allegation by the petitioner that there was no consideration of his case, respondent No. 1 has definitely asserted in paragraphs 23, 25, 40 and 44 of the counter-affidavit that at the time of promotion of respondents 3 and 4 to the selection posts of Deputy Inspector General of Police and of Inspector General of Police the case of the petitioner was considered. We are therefore of the opinion that the petitioner is unable to substantiate his argument that there was no consideration of his case at the time of promotion of respondents 3 and 4 to the selection posts. We must therefore proceed on the footing that respondent No. 1 had considered the case of the petitioner and taken into account the record, experience and merit of the petitioner at the time of the promotion of respondents 3 and 4 to the selection grade-posts. It is therefore not possible to accept the argument of Mr. N. C. Chatterjee that there was any violation of the constitutional guarantee under Arts. 14 and 16 of the Constitution in the present caseWe are unable to accept this argument as well founded. The question of a proper promotion policy depends on various conflicting factors. It is obvious that the only method in which absolute objectivity can be ensured is for all promotions to be made entirely on grounds of seniority. That means that if a post falls vacant it is filled by the person who has served longest in the post immediately below. But the trouble with the seniority system is that it is so objective that it fails to take any account of personal merit. As a system it is fair to every official except the best ones, an official has nothing to win or lose provided he does not actually become so inefficient that disciplinary action has to be taken against him. But, though the system is fair to the officials concerned, it is a heavy burden on the public and a great strain on the efficient handling of public business. The problem, therefore is how to ensure reasonable prospect of advancement to all officials and at the same time to protect the public interest in having posts filled by the most able man? In other words, the question is how to find a correct balance between seniority and merit in a proper promotion-policyAs a matter of long administrative practice promotion to selection grade posts in the Indian Police Service has been based on merit and seniority has been taken into consideration only when merit of the candidates is otherwise equal and we are unable to accept the argument of Mr. N. C. Chatterjee that this procedure violates, in any way, the guarantee under Arts. 14 and 16 of the Constitution.
|
Ganga Prasad & Others Vs. State of Bihar | over-writing not only on these but on several other figures as well. It was their further case that two bags of rice had been wrongly recorded under the column for "peas" and that the correct figure with regard to the arrival of bags of rice in the godown on 9th August was 1209. The learned Magistrate accepted the prosecution case which was based on the copies of Exs. 1 and 1/1 attested by a Magistrate and marked as Exs. 15/3 and 15/2. The Magistrate does not appear to have looked at the other documents including the stock book and the cart register to see whether there were any discrepancies between the figures as recorded therein and those made out by the appellant in Exs. 1 and 1/1 under the instructions of the District Supply Officer. He held that the prosecution had proved its case with regard to the 72 bags and convicted the appellants as stated above.5. As the High Court dismissed the revision petition summarily we have not had the benefit of its judgment or the reasons which impelled the High Court to turn down the contention of the appellants. Before us counsel for the appellants contended that although Ex. 1 and the attested copy thereof Ex. 15/2 appear to contain manipulations these could not have been done by the appellants or for their benefit. Ex. 1/1 which shows the total stock of food grains in the godown contains various figures in three columns under the head "rice". The figures in these three columns add upto 1330. There is no suggestion of any interpolation, so far as these figures are concerned. Ex. 10 the cart register which records the different quantities of food grains received at the godown by truck or cart on 9-8-1965 contains 16 items, the total whereof comes to 1207. There is no dispute that on 8th August there were in stock 121 bags of rice. If the appellants case with regard to two bags of rice wrongly recorded as peas be accepted, the total number of bags of rice in the godown on 9th August when the inspection was made by the Supply Officer comes to 1330. This fits in with appellants case as made in the petition presented to the Sub-Divisional Officer, Sadar, Arrah on 21st September 1965 showing that there were 1330 bags of rice in the godown on 9th August and that 309 bags of rice had been sold in between 9th August and 12th August when a stock of 1021 bags was seized. The appellants prayed for release of the entire stock of food grains with the exception of 72 bags of rice i.e., the subject-matter of the complaint. They expressly stated that 949 bags (1021-72) of rice should be released. Before us there was no challenge with regard to these figures and counsel for the respondent was unable to point out any flaw in the argument advanced on behalf of the appellants that the books of accounts of the appellants disclosed that all the bags of rice stored in the godown had been duly accounted for and that the total of 1137 bags as recorded in Ex. 1 was only due to an error in adding up the different figures. The figures culled from the stock register, the cart register and the evidence adduced in the case leave no room for doubt that the appellants version was the correct one and that they had not failed to account for the presence of any bags of rice in their godown on 9th August. It did however appear to us by a look at the original of Ex. 1 as compared with the attested copy of Ex. 15/2 that there was some over-writing on the first four figures in the column headed "rice". The appellants could not explain how the figure 1137 was arrived at and counsel suggested that it had crept in through an error. The first four figures under the column "rice" in Ex. 1 excite suspicion and afford room for the contention that there was some interpolation or overwriting. But assuming that the document has been tampered with, it is not possible to hold the appellants responsible for it. The stock register and the cart register taken possession of by the District Supply Officer on August 9, about the genuineness of which no question was raised falsifies the document Ex. 1if the first and the fourth figures be taken as 10 and 81. The appellants did not stand to benefit by over-writing or interpolation in Ex. 1 unless they could also make similar interpolations or over-writing in the stock register and the cart register.6. We accept the case of the appellants that the stock of rice in the godown on August 8 was 121 bags and that 1209 bags were received by trucks or carts on 9th August including two bags of rice which were wrongly recorded as peas. We also accept the appellants case that there were 1330 bags of rice in stock on 9th August and that 1021 bags constituted all the stock of rice in the godown when the seizure of the food grains took place on 12th August. These being the correct figures there was no need for the appellants to make any interpolations in Ex. 1. In our opinion, the evidence points to the manipulations having been made while the document was in the custody of the Supply Officer or his department and the filing of a copy of Ex. 1 as interpolated before attestation by a Magistrate was with a sinister motive. We cannot also fail to record that the withholding of the books of account of the appellants for a space of more than two months was not justified on the facts of the case. It appears to us that a false case was deliberately launched against the appellants and that the manipulation in Ex. 1 accounts for the delay in the filing of the complaint after the seizure of the stock. | 1[ds]5. As the High Court dismissed the revision petition summarily we have not had the benefit of its judgment or the reasons which impelled the High Court to turn down the contention of the appellants.Before us counsel for the appellants contended that although Ex. 1 and the attested copy thereof Ex. 15/2 appear to contain manipulations these could not have been done by the appellants or for their benefit. Ex. 1/1 which shows the total stock of food grains in the godown contains various figures in three columns under the head "rice". The figures in these three columns add upto 1330.There is no suggestion of any interpolation, so far as these figures are concerned. Ex. 10 the cart register which records the different quantities of food grains received at the godown by truck or cart oncontains 16 items, the total whereof comes to 1207. There is no dispute that on 8th August there were in stock 121 bags of rice. If the appellants case with regard to two bags of rice wrongly recorded as peas be accepted, the total number of bags of rice in the godown on 9th August when the inspection was made by the Supply Officer comes to 1330. This fits in with appellants case as made in the petition presented to theOfficer, Sadar, Arrah on 21st September 1965 showing that there were 1330 bags of rice in the godown on 9th August and that 309 bags of rice had been sold in between 9th August and 12th August when a stock of 1021 bags was seized. The appellants prayed for release of the entire stock of food grains with the exception of 72 bags of rice i.e., theof the complaint. They expressly stated that 949 bagsof rice should be released. Before us there was no challenge with regard to these figures and counsel for the respondent was unable to point out any flaw in the argument advanced on behalf of the appellants that the books of accounts of the appellants disclosed that all the bags of rice stored in the godown had been duly accounted for and that the total of 1137 bags as recorded in Ex. 1 was only due to an error in adding up the different figures. The figures culled from the stock register, the cart register and the evidence adduced in the case leave no room for doubt that the appellants version was the correct one and that they had not failed to account for the presence of any bags of rice in their godown on 9th August. It did however appear to us by a look at the original of Ex. 1 as compared with the attested copy of Ex. 15/2 that there was someon the first four figures in the column headed "rice". The appellants could not explain how the figure 1137 was arrived at and counsel suggested that it had crept in through an error. The first four figures under the column "rice" in Ex. 1 excite suspicion and afford room for the contention that there was some interpolation or overwriting. But assuming that the document has been tampered with, it is not possible to hold the appellants responsible for it. The stock register and the cart register taken possession of by the District Supply Officer on August 9, about the genuineness of which no question was raised falsifies the document Ex. 1if the first and the fourth figures be taken as 10 and 81. The appellants did not stand to benefit byor interpolation in Ex. 1 unless they could also make similar interpolations orin the stock register and the cart register.6. We accept the case of the appellants that the stock of rice in the godown on August 8 was 121 bags and that 1209 bags were received by trucks or carts on 9th August including two bags of rice which were wrongly recorded as peas. We also accept the appellants case that there were 1330 bags of rice in stock on 9th August and that 1021 bags constituted all the stock of rice in the godown when the seizure of the food grains took place on 12th August. These being the correct figures there was no need for the appellants to make any interpolations in Ex. 1. In our opinion, the evidence points to the manipulations having been made while the document was in the custody of the Supply Officer or his department and the filing of a copy of Ex. 1 as interpolated before attestation by a Magistrate was with a sinister motive. We cannot also fail to record that the withholding of the books of account of the appellants for a space of more than two months was not justified on the facts of the case. It appears to us that a false case was deliberately launched against the appellants and that the manipulation in Ex. 1 accounts for the delay in the filing of the complaint after the seizure of the stock. | 1 | 1,920 | 886 | ### Instruction:
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over-writing not only on these but on several other figures as well. It was their further case that two bags of rice had been wrongly recorded under the column for "peas" and that the correct figure with regard to the arrival of bags of rice in the godown on 9th August was 1209. The learned Magistrate accepted the prosecution case which was based on the copies of Exs. 1 and 1/1 attested by a Magistrate and marked as Exs. 15/3 and 15/2. The Magistrate does not appear to have looked at the other documents including the stock book and the cart register to see whether there were any discrepancies between the figures as recorded therein and those made out by the appellant in Exs. 1 and 1/1 under the instructions of the District Supply Officer. He held that the prosecution had proved its case with regard to the 72 bags and convicted the appellants as stated above.5. As the High Court dismissed the revision petition summarily we have not had the benefit of its judgment or the reasons which impelled the High Court to turn down the contention of the appellants. Before us counsel for the appellants contended that although Ex. 1 and the attested copy thereof Ex. 15/2 appear to contain manipulations these could not have been done by the appellants or for their benefit. Ex. 1/1 which shows the total stock of food grains in the godown contains various figures in three columns under the head "rice". The figures in these three columns add upto 1330. There is no suggestion of any interpolation, so far as these figures are concerned. Ex. 10 the cart register which records the different quantities of food grains received at the godown by truck or cart on 9-8-1965 contains 16 items, the total whereof comes to 1207. There is no dispute that on 8th August there were in stock 121 bags of rice. If the appellants case with regard to two bags of rice wrongly recorded as peas be accepted, the total number of bags of rice in the godown on 9th August when the inspection was made by the Supply Officer comes to 1330. This fits in with appellants case as made in the petition presented to the Sub-Divisional Officer, Sadar, Arrah on 21st September 1965 showing that there were 1330 bags of rice in the godown on 9th August and that 309 bags of rice had been sold in between 9th August and 12th August when a stock of 1021 bags was seized. The appellants prayed for release of the entire stock of food grains with the exception of 72 bags of rice i.e., the subject-matter of the complaint. They expressly stated that 949 bags (1021-72) of rice should be released. Before us there was no challenge with regard to these figures and counsel for the respondent was unable to point out any flaw in the argument advanced on behalf of the appellants that the books of accounts of the appellants disclosed that all the bags of rice stored in the godown had been duly accounted for and that the total of 1137 bags as recorded in Ex. 1 was only due to an error in adding up the different figures. The figures culled from the stock register, the cart register and the evidence adduced in the case leave no room for doubt that the appellants version was the correct one and that they had not failed to account for the presence of any bags of rice in their godown on 9th August. It did however appear to us by a look at the original of Ex. 1 as compared with the attested copy of Ex. 15/2 that there was some over-writing on the first four figures in the column headed "rice". The appellants could not explain how the figure 1137 was arrived at and counsel suggested that it had crept in through an error. The first four figures under the column "rice" in Ex. 1 excite suspicion and afford room for the contention that there was some interpolation or overwriting. But assuming that the document has been tampered with, it is not possible to hold the appellants responsible for it. The stock register and the cart register taken possession of by the District Supply Officer on August 9, about the genuineness of which no question was raised falsifies the document Ex. 1if the first and the fourth figures be taken as 10 and 81. The appellants did not stand to benefit by over-writing or interpolation in Ex. 1 unless they could also make similar interpolations or over-writing in the stock register and the cart register.6. We accept the case of the appellants that the stock of rice in the godown on August 8 was 121 bags and that 1209 bags were received by trucks or carts on 9th August including two bags of rice which were wrongly recorded as peas. We also accept the appellants case that there were 1330 bags of rice in stock on 9th August and that 1021 bags constituted all the stock of rice in the godown when the seizure of the food grains took place on 12th August. These being the correct figures there was no need for the appellants to make any interpolations in Ex. 1. In our opinion, the evidence points to the manipulations having been made while the document was in the custody of the Supply Officer or his department and the filing of a copy of Ex. 1 as interpolated before attestation by a Magistrate was with a sinister motive. We cannot also fail to record that the withholding of the books of account of the appellants for a space of more than two months was not justified on the facts of the case. It appears to us that a false case was deliberately launched against the appellants and that the manipulation in Ex. 1 accounts for the delay in the filing of the complaint after the seizure of the stock.
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5. As the High Court dismissed the revision petition summarily we have not had the benefit of its judgment or the reasons which impelled the High Court to turn down the contention of the appellants.Before us counsel for the appellants contended that although Ex. 1 and the attested copy thereof Ex. 15/2 appear to contain manipulations these could not have been done by the appellants or for their benefit. Ex. 1/1 which shows the total stock of food grains in the godown contains various figures in three columns under the head "rice". The figures in these three columns add upto 1330.There is no suggestion of any interpolation, so far as these figures are concerned. Ex. 10 the cart register which records the different quantities of food grains received at the godown by truck or cart oncontains 16 items, the total whereof comes to 1207. There is no dispute that on 8th August there were in stock 121 bags of rice. If the appellants case with regard to two bags of rice wrongly recorded as peas be accepted, the total number of bags of rice in the godown on 9th August when the inspection was made by the Supply Officer comes to 1330. This fits in with appellants case as made in the petition presented to theOfficer, Sadar, Arrah on 21st September 1965 showing that there were 1330 bags of rice in the godown on 9th August and that 309 bags of rice had been sold in between 9th August and 12th August when a stock of 1021 bags was seized. The appellants prayed for release of the entire stock of food grains with the exception of 72 bags of rice i.e., theof the complaint. They expressly stated that 949 bagsof rice should be released. Before us there was no challenge with regard to these figures and counsel for the respondent was unable to point out any flaw in the argument advanced on behalf of the appellants that the books of accounts of the appellants disclosed that all the bags of rice stored in the godown had been duly accounted for and that the total of 1137 bags as recorded in Ex. 1 was only due to an error in adding up the different figures. The figures culled from the stock register, the cart register and the evidence adduced in the case leave no room for doubt that the appellants version was the correct one and that they had not failed to account for the presence of any bags of rice in their godown on 9th August. It did however appear to us by a look at the original of Ex. 1 as compared with the attested copy of Ex. 15/2 that there was someon the first four figures in the column headed "rice". The appellants could not explain how the figure 1137 was arrived at and counsel suggested that it had crept in through an error. The first four figures under the column "rice" in Ex. 1 excite suspicion and afford room for the contention that there was some interpolation or overwriting. But assuming that the document has been tampered with, it is not possible to hold the appellants responsible for it. The stock register and the cart register taken possession of by the District Supply Officer on August 9, about the genuineness of which no question was raised falsifies the document Ex. 1if the first and the fourth figures be taken as 10 and 81. The appellants did not stand to benefit byor interpolation in Ex. 1 unless they could also make similar interpolations orin the stock register and the cart register.6. We accept the case of the appellants that the stock of rice in the godown on August 8 was 121 bags and that 1209 bags were received by trucks or carts on 9th August including two bags of rice which were wrongly recorded as peas. We also accept the appellants case that there were 1330 bags of rice in stock on 9th August and that 1021 bags constituted all the stock of rice in the godown when the seizure of the food grains took place on 12th August. These being the correct figures there was no need for the appellants to make any interpolations in Ex. 1. In our opinion, the evidence points to the manipulations having been made while the document was in the custody of the Supply Officer or his department and the filing of a copy of Ex. 1 as interpolated before attestation by a Magistrate was with a sinister motive. We cannot also fail to record that the withholding of the books of account of the appellants for a space of more than two months was not justified on the facts of the case. It appears to us that a false case was deliberately launched against the appellants and that the manipulation in Ex. 1 accounts for the delay in the filing of the complaint after the seizure of the stock.
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STATE OF CHHATTISGARH & ANR Vs. M/S SAL UDYOG PRIVATE LIMITED | of the respondent-Company seeking deduction of supervision charges, for which it relied on Clause 6(b) of the Agreement and the Circular dated 27th July, 1987 to assert that recovery of supervision charges along with expenses was a part and parcel of the contract executed with the respondent- Company, the said objection was turned down by the learned Sole Arbitrator by giving a complete go by to the terms and conditions of the Agreement governing the parties and observing that there is no basis to admit any such indirect expenses. The Circular dated 27th July, 1987 issued by the Government of Madhya Pradesh that provides for imposition of 10% supervision charges on the amounts calculated towards the cost of the Sal seeds in the expenditure incurred, was also ignored. Pertinently, the respondent-Company has not denied the fact that supervision charges were being levied by the appellant-State and being paid by it without any demur as a part of the advance payment made on an annual basis, right from the date the parties had entered into the first agreement, i.e., from 30th August, 1979. This fact is also borne out from the specimen copies of the orders filed by the appellant-State with the appeal that amply demonstrate that the cost of the Sal seeds required to be paid by the respondent-company included supervision charges described as Paryavekshan vyay in vernacular language. It was only after the appellant-State had terminated the second contract on 21st December, 1998, that the respondent-company raised a dispute and for the first time, claimed refund of the excess amount purportedly paid by it to the appellant-State towards supervision charges incurred for supply of Sal seeds. In our opinion, this is the patent illegality that is manifest on the face of the Arbitral Award inasmuch as the express terms and conditions of the Agreement governing the parties as also the Circular dated 27th July, 1987 issued by the Government of Madhya Pradesh have been completely ignored. 23. We are afraid, the plea of waiver taken against the appellant-State on the ground that it did not raise such an objection in the grounds spelt out in the Section 34 petition and is, therefore, estopped from taking the same in the appeal preferred under Section 37 or before this Court, would also not be available to the respondent-Company having regard to the language used in Section 34(2A) of the 1996 Act that empowers the Court to set aside an award if it finds that the same is vitiated by patent illegality appearing on the face of the same. Once the appellant-State had taken such a ground in the Section 37 petition and it was duly noted in the impugned judgment, the High Court ought to have interfered by resorting to Section 34(2A) of the 1996 Act, a provision which would be equally available for application to an appealable order under Section 37 as it is to a petition filed under Section 34 of the 1996 Act. In other words, the respondent-Company cannot be heard to state that the grounds available for setting aside an award under sub-section (2A) of Section 34 of the 1996 Act could not have been invoked by the Court on its own, in exercise of the jurisdiction vested in it under Section 37 of the 1996 Act. Notably, the expression used in the sub-rule is the Court finds that. Therefore, it does not stand to reason that a provision that enables a Court acting on its own in deciding a petition under Section 34 for setting aside an Award, would not be available in an appeal preferred under Section 37 of the 1996 Act. 24. Reliance placed by learned counsel for the respondent-Company on the ruling in the case of Hindustan Construction Company Limited(Supra) is found to be misplaced. In the aforesaid case, the Court was required to examine whether in an appeal preferred under Section 37 of the 1996 Act against an order refusing to set aside an Award, permission could be granted to amend the Memo of Appeal to raise additional/new grounds. Answering the said question, it was held that though an application for setting aside the Arbitral Award under Section 34 of the 1996 Act had to be moved within the time prescribed in the Statute, it cannot be held that incorporation of additional grounds by way of amendment in the Section 34 petition would amount to filing a fresh application in all situations and circumstances, thereby barring any amendment, however material or relevant it may be for the consideration of a Court, after expiry of the prescribed period of limitation. In fact, laying emphasis on the very expression the Courts find that applied in Section 34(2)(b) of the 1996 Act, it has been held that the said provision empowers the Court to grant leave to amend the Section 34 application if the circumstances of the case so warrant and it is required in the interest of justice. This is what has been observed in the preceding paragraph with reference to Section 34(2A) of the 1996 Act. 25. To sum up, existence of Clause 6(b) in the Agreement governing the parties, has not been disputed, nor has the application of Circular dated 27th July, 1987 issued by the Government of Madhya Pradesh regarding imposition of 10% supervision charges and adding the same to cost of the Sal seeds, after deducting the actual expenditure been questioned by the respondent- Company. We are, therefore, of the view that failure on the part of the learned Sole Arbitrator to decide in accordance with the terms of the contract governing the parties, would certainly attract the patent illegality ground, as the said oversight amounts to gross contravention of Section 28(3) of the 1996 Act, that enjoins the Arbitral Tribunal to take into account the terms of the contract while making an Award. The said patent illegality is not only apparent on the face of the Award, it goes to the very root of the matter and deserves interference. | 1[ds]13. The law on interference in matters of Awards under the 1996 Act has been circumscribed with the object of minimising interference by courts in arbitration matters. One of the grounds on which an Award may be set aside is patent illegality. What would constitute patent illegality has been elaborated in Associate Builders v. Delhi Development Authority [2015] 3 SCC 49, where patent illegality that broadly falls under the head of Public Policy, has been divided into three sub-heads in the following words:-42. In the 1996 Act, this principle is substituted by the patent illegality principle which, in turn, contains three subheads:42.1. (a) A contravention of the substantive law of India would result in the death knell of an Arbitral Award. This must be understood in the sense that such illegality must go to the root of the matter and cannot be of a trivial nature. This again is really a contravention of Section 28(1)(a) of the Act, which reads as under:28. Rules applicable to substance of dispute. – (1) Where the place of arbitration is situated in India-(a) In an arbitration other than an international commercial arbitration, the Arbitral Tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India;42.2. (b) A contravention of the Arbitration Act itself would be regarded as a patent illegality – for example if an arbitrator gives no reasons for an award in contravention of Section 31(3) of the Act, such award will be liable to be set aside.42.3. (c) Equally, the third subhead of patent illegality is really a contravention of Section 28(3) of the Arbitration Act, which reads as under:28. Rules applicable to substance of dispute. – (1) – (2) ***(3) In all cases, the Arbitral Tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.This last contravention must be understood with a caveat. An Arbitral Tribunal must decide in accordance with the terms of the contract, but if an arbitrator construes a term of the contract in a reasonable manner, it will not mean that the award can be set aside on this ground. Construction of the terms of a contract is primarily for an arbitrator to decide unless the arbitrator construes the contract in such a way that it could be said to be something that no fair-minded or reasonable person could do.14. In Ssangyong Engineering and Construction Company Limited v. National Highways Authority of India (NHAI) [2019] 15 SCC 131, speaking for the Bench, Justice R.F. Nariman has spelt out the contours of the limited scope of judicial interference in reviewing the Arbitral Awards under the 1996 Act and observed thus :34. What is clear, therefore, is that the expression public policy of India, whether contained in Section 34 or in Section 48, would now mean the fundamental policy of Indian law as explained in paras 18 and 27 of Associate Builders [Associate Builders v. DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204] i.e. the fundamental policy of In- dian law would be relegated to Renusagar understanding of this ex- pression. This would necessarily mean that Western Geco [ONGC v. Western Geco International Ltd., (2014) 9 SCC 263 : (2014) 5 SCC (Civ) 12] expansion has been done away with. In short, Western Geco [ONGC v. Western Geco International Ltd.,(2014) 9 SCC 263 : (2014) 5 SCC (Civ) 12], as explained in paras 28 and 29 of Associate Builders [Associate Builders v. DDA,(2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], would no longer obtain, as under the guise of interfering with an award on the ground that the arbitrator has not adopted a ju- dicial approach, the Courts intervention would be on the merits of the award, which cannot be permitted post amendment. However, insofar as principles of natural justice are concerned, as contained in Sec- tions 18 and 34(2) (a)(iii) of the 1996 Act, these continue to be grounds of challenge of an award, as is contained in para 30 of Asso - ciate Builders [Associate Builders v. DDA(2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204].35. It is important to notice that the ground for interference insofar as it concerns interest of India has since been deleted, and therefore, no longer obtains. Equally, the ground for interference on the basis that the award is in conflict with justice or morality is now to be under- stood as a conflict with the most basic notions of morality or justice. This again would be in line with paras 36 to 39 of Associate Builders [Associate Builders v. DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], as it is only such Arbitral Awards that shock the conscience of the court that can be set aside on this ground.36. Thus, it is clear that public policy of India is now constricted to mean firstly, that a domestic award is contrary to the fundamental policy of Indian law, as understood in paras 18 and 27 of Associate Builders [Associate Builders v. DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], or secondly, that such award is against basic notions of justice or morality as understood in paras 36 to 39 of Associate Builders [Associate Builders v. DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204]. Explanation 2 to Section 34(2)(b)(ii) and Explanation 2 to Section 48(2)(b)(ii) was added by the Amendment Act only so that Western Geco [ONGC v. Western Geco International Ltd., (2014) 9 SCC 263 : (2014) 5 SCC (Civ) 12], as understood in Associate Builders [Associate Builders v. DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], and paras 28 and 29 in particular, is now done away with.37. Insofar as domestic awards made in India are concerned, an additional ground is now available under sub-section (2-A), added by the Amendment Act, 2015, to Section 34. Here, there must be patent illegality appearing on the face of the award, which refers to such illegality as goes to the root of the matter but which does not amount to mere erroneous application of the law. In short, what is not subsumed within the fundamental pol- icy of Indian law, namely, the contravention of a statute not linked to public policy or public interest, cannot be brought in by the backdoor when it comes to setting aside an award on the ground of patent illegality.38. Secondly, it is also made clear that reappreciation of evidence, which is what an appellate court is permitted to do, cannot be per- mitted under the ground of patent illegality appearing on the face of the award.39. To elucidate, para 42.1 of Associate Builders [Associate Builders v DDA(2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], namely, a mere contravention of the substantive law of India, by itself, is no longer a ground available to set aside an Arbitral Award. Para 42.2 of Asso- ciate Builders [Associate Builders v DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], however, would remain, for if an arbitrator gives no reasons for an award and contravenes Section 31(3) of the 1996 Act, that would certainly amount to a patent illegality on the face of the award.40. The change made in Section 28(3) by the Amendment Act really follows what is stated in paras 42.3 to 45 in Associate Builders [Associate Builders v. DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], namely, that the construction of the terms of a contract is primarily for an arbitrator to decide, unless the ar- bitrator construes the contract in a manner that no fair-minded or reasonable person would; in short, that the arbitrators view is not even a possible view to take. Also, if the arbitrator wan- ders outside the contract and deals with matters not allotted to him, he commits an error of jurisdiction. This ground of challenge will now fall within the new ground added under Sec- tion 34(2-A).41. What is important to note is that a decision which is perverse, as understood in paras 31 and 32 of Associate Builders [Associate Builders v. DDA (2015) 3 SCC 49 : (2015) 2 SCC (Civ) 204], while no longer being a ground for challenge under public policy of In- dia, would certainly amount to a patent illegality appearing on the face of the award. Thus, a finding based on no evidence at all or an award which ignores vital evidence in arriving at its decision would be perverse and liable to be set aside on the ground of patent ille- gality. Additionally, a finding based on documents taken behind the back of the parties by the arbitrator would also qualify as a decision based on no evidence inasmuch as such decision is not based on evidence led by the parties, and therefore, would also have to be charcterised as perverse.18. It is an admitted position that both, the Original Agreement dated 30th August, 1979 and the renewed Agreement dated 30th April, 1992 included a clause relating to levy of supervision charges. Most of the terms and conditions of the Original Agreement dated 30th August, 1979 and the Renewed Agreement dated 30th April, 1992 are materially the same. Clause 6(b) of the Agreement dated 30th August, 1979 is identical to Clause 5(b) of the Agreement dated 30th April, 1992. The said clauses stipulate that expenses incurred by the State Government towards supply of Sal seeds were to include amongst others, supervision charges. Clause 8 of the first Agreement is identical to Clause 7 of the second Agreement which stipulates that supply of Sal seeds to the respondent-Company would be against advance payment. There is also a similarity between Clause 9(ii) of the Agreement dated 30th July, 1979 and Clause 8(ii) of the Agreement dated 30th April, 1992, that require the respondent-Company to take delivery of the collected Sal seeds within a stipulated time and prescribe that in case of failure to do so, supervision charges and godown rent shall be payable at a fixed price of 0.05p. [five paise] per quintal per day.22. On a conspectus of the facts of the case, it remains undisputed that though the appellant-State did raise an objection before the Arbitral Tribunal on the claim of the respondent-Company seeking deduction of supervision charges, for which it relied on Clause 6(b) of the Agreement and the Circular dated 27th July, 1987 to assert that recovery of supervision charges along with expenses was a part and parcel of the contract executed with the respondent- Company, the said objection was turned down by the learned Sole Arbitrator by giving a complete go by to the terms and conditions of the Agreement governing the parties and observing that there is no basis to admit any such indirect expenses. The Circular dated 27th July, 1987 issued by the Government of Madhya Pradesh that provides for imposition of 10% supervision charges on the amounts calculated towards the cost of the Sal seeds in the expenditure incurred, was also ignored. Pertinently, the respondent-Company has not denied the fact that supervision charges were being levied by the appellant-State and being paid by it without any demur as a part of the advance payment made on an annual basis, right from the date the parties had entered into the first agreement, i.e., from 30th August, 1979. This fact is also borne out from the specimen copies of the orders filed by the appellant-State with the appeal that amply demonstrate that the cost of the Sal seeds required to be paid by the respondent-company included supervision charges described as Paryavekshan vyay in vernacular language. It was only after the appellant-State had terminated the second contract on 21st December, 1998, that the respondent-company raised a dispute and for the first time, claimed refund of the excess amount purportedly paid by it to the appellant-State towards supervision charges incurred for supply of Sal seeds. In our opinion, this is the patent illegality that is manifest on the face of the Arbitral Award inasmuch as the express terms and conditions of the Agreement governing the parties as also the Circular dated 27th July, 1987 issued by the Government of Madhya Pradesh have been completely ignored.23. We are afraid, the plea of waiver taken against the appellant-State on the ground that it did not raise such an objection in the grounds spelt out in the Section 34 petition and is, therefore, estopped from taking the same in the appeal preferred under Section 37 or before this Court, would also not be available to the respondent-Company having regard to the language used in Section 34(2A) of the 1996 Act that empowers the Court to set aside an award if it finds that the same is vitiated by patent illegality appearing on the face of the same. Once the appellant-State had taken such a ground in the Section 37 petition and it was duly noted in the impugned judgment, the High Court ought to have interfered by resorting to Section 34(2A) of the 1996 Act, a provision which would be equally available for application to an appealable order under Section 37 as it is to a petition filed under Section 34 of the 1996 Act. In other words, the respondent-Company cannot be heard to state that the grounds available for setting aside an award under sub-section (2A) of Section 34 of the 1996 Act could not have been invoked by the Court on its own, in exercise of the jurisdiction vested in it under Section 37 of the 1996 Act. Notably, the expression used in the sub-rule is the Court finds that. Therefore, it does not stand to reason that a provision that enables a Court acting on its own in deciding a petition under Section 34 for setting aside an Award, would not be available in an appeal preferred under Section 37 of the 1996 Act.24. Reliance placed by learned counsel for the respondent-Company on the ruling in the case of Hindustan Construction Company Limited(Supra) is found to be misplaced. In the aforesaid case, the Court was required to examine whether in an appeal preferred under Section 37 of the 1996 Act against an order refusing to set aside an Award, permission could be granted to amend the Memo of Appeal to raise additional/new grounds. Answering the said question, it was held that though an application for setting aside the Arbitral Award under Section 34 of the 1996 Act had to be moved within the time prescribed in the Statute, it cannot be held that incorporation of additional grounds by way of amendment in the Section 34 petition would amount to filing a fresh application in all situations and circumstances, thereby barring any amendment, however material or relevant it may be for the consideration of a Court, after expiry of the prescribed period of limitation. In fact, laying emphasis on the very expression the Courts find that applied in Section 34(2)(b) of the 1996 Act, it has been held that the said provision empowers the Court to grant leave to amend the Section 34 application if the circumstances of the case so warrant and it is required in the interest of justice. This is what has been observed in the preceding paragraph with reference to Section 34(2A) of the 1996 Act.25. To sum up, existence of Clause 6(b) in the Agreement governing the parties, has not been disputed, nor has the application of Circular dated 27th July, 1987 issued by the Government of Madhya Pradesh regarding imposition of 10% supervision charges and adding the same to cost of the Sal seeds, after deducting the actual expenditure been questioned by the respondent- Company. We are, therefore, of the view that failure on the part of the learned Sole Arbitrator to decide in accordance with the terms of the contract governing the parties, would certainly attract the patent illegality ground, as the said oversight amounts to gross contravention of Section 28(3) of the 1996 Act, that enjoins the Arbitral Tribunal to take into account the terms of the contract while making an Award. The said patent illegality is not only apparent on the face of the Award, it goes to the very root of the matter and deserves interference. | 1 | 7,052 | 3,179 | ### Instruction:
Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding.
### Input:
of the respondent-Company seeking deduction of supervision charges, for which it relied on Clause 6(b) of the Agreement and the Circular dated 27th July, 1987 to assert that recovery of supervision charges along with expenses was a part and parcel of the contract executed with the respondent- Company, the said objection was turned down by the learned Sole Arbitrator by giving a complete go by to the terms and conditions of the Agreement governing the parties and observing that there is no basis to admit any such indirect expenses. The Circular dated 27th July, 1987 issued by the Government of Madhya Pradesh that provides for imposition of 10% supervision charges on the amounts calculated towards the cost of the Sal seeds in the expenditure incurred, was also ignored. Pertinently, the respondent-Company has not denied the fact that supervision charges were being levied by the appellant-State and being paid by it without any demur as a part of the advance payment made on an annual basis, right from the date the parties had entered into the first agreement, i.e., from 30th August, 1979. This fact is also borne out from the specimen copies of the orders filed by the appellant-State with the appeal that amply demonstrate that the cost of the Sal seeds required to be paid by the respondent-company included supervision charges described as Paryavekshan vyay in vernacular language. It was only after the appellant-State had terminated the second contract on 21st December, 1998, that the respondent-company raised a dispute and for the first time, claimed refund of the excess amount purportedly paid by it to the appellant-State towards supervision charges incurred for supply of Sal seeds. In our opinion, this is the patent illegality that is manifest on the face of the Arbitral Award inasmuch as the express terms and conditions of the Agreement governing the parties as also the Circular dated 27th July, 1987 issued by the Government of Madhya Pradesh have been completely ignored. 23. We are afraid, the plea of waiver taken against the appellant-State on the ground that it did not raise such an objection in the grounds spelt out in the Section 34 petition and is, therefore, estopped from taking the same in the appeal preferred under Section 37 or before this Court, would also not be available to the respondent-Company having regard to the language used in Section 34(2A) of the 1996 Act that empowers the Court to set aside an award if it finds that the same is vitiated by patent illegality appearing on the face of the same. Once the appellant-State had taken such a ground in the Section 37 petition and it was duly noted in the impugned judgment, the High Court ought to have interfered by resorting to Section 34(2A) of the 1996 Act, a provision which would be equally available for application to an appealable order under Section 37 as it is to a petition filed under Section 34 of the 1996 Act. In other words, the respondent-Company cannot be heard to state that the grounds available for setting aside an award under sub-section (2A) of Section 34 of the 1996 Act could not have been invoked by the Court on its own, in exercise of the jurisdiction vested in it under Section 37 of the 1996 Act. Notably, the expression used in the sub-rule is the Court finds that. Therefore, it does not stand to reason that a provision that enables a Court acting on its own in deciding a petition under Section 34 for setting aside an Award, would not be available in an appeal preferred under Section 37 of the 1996 Act. 24. Reliance placed by learned counsel for the respondent-Company on the ruling in the case of Hindustan Construction Company Limited(Supra) is found to be misplaced. In the aforesaid case, the Court was required to examine whether in an appeal preferred under Section 37 of the 1996 Act against an order refusing to set aside an Award, permission could be granted to amend the Memo of Appeal to raise additional/new grounds. Answering the said question, it was held that though an application for setting aside the Arbitral Award under Section 34 of the 1996 Act had to be moved within the time prescribed in the Statute, it cannot be held that incorporation of additional grounds by way of amendment in the Section 34 petition would amount to filing a fresh application in all situations and circumstances, thereby barring any amendment, however material or relevant it may be for the consideration of a Court, after expiry of the prescribed period of limitation. In fact, laying emphasis on the very expression the Courts find that applied in Section 34(2)(b) of the 1996 Act, it has been held that the said provision empowers the Court to grant leave to amend the Section 34 application if the circumstances of the case so warrant and it is required in the interest of justice. This is what has been observed in the preceding paragraph with reference to Section 34(2A) of the 1996 Act. 25. To sum up, existence of Clause 6(b) in the Agreement governing the parties, has not been disputed, nor has the application of Circular dated 27th July, 1987 issued by the Government of Madhya Pradesh regarding imposition of 10% supervision charges and adding the same to cost of the Sal seeds, after deducting the actual expenditure been questioned by the respondent- Company. We are, therefore, of the view that failure on the part of the learned Sole Arbitrator to decide in accordance with the terms of the contract governing the parties, would certainly attract the patent illegality ground, as the said oversight amounts to gross contravention of Section 28(3) of the 1996 Act, that enjoins the Arbitral Tribunal to take into account the terms of the contract while making an Award. The said patent illegality is not only apparent on the face of the Award, it goes to the very root of the matter and deserves interference.
### Response:
1
### Explanation:
on the claim of the respondent-Company seeking deduction of supervision charges, for which it relied on Clause 6(b) of the Agreement and the Circular dated 27th July, 1987 to assert that recovery of supervision charges along with expenses was a part and parcel of the contract executed with the respondent- Company, the said objection was turned down by the learned Sole Arbitrator by giving a complete go by to the terms and conditions of the Agreement governing the parties and observing that there is no basis to admit any such indirect expenses. The Circular dated 27th July, 1987 issued by the Government of Madhya Pradesh that provides for imposition of 10% supervision charges on the amounts calculated towards the cost of the Sal seeds in the expenditure incurred, was also ignored. Pertinently, the respondent-Company has not denied the fact that supervision charges were being levied by the appellant-State and being paid by it without any demur as a part of the advance payment made on an annual basis, right from the date the parties had entered into the first agreement, i.e., from 30th August, 1979. This fact is also borne out from the specimen copies of the orders filed by the appellant-State with the appeal that amply demonstrate that the cost of the Sal seeds required to be paid by the respondent-company included supervision charges described as Paryavekshan vyay in vernacular language. It was only after the appellant-State had terminated the second contract on 21st December, 1998, that the respondent-company raised a dispute and for the first time, claimed refund of the excess amount purportedly paid by it to the appellant-State towards supervision charges incurred for supply of Sal seeds. In our opinion, this is the patent illegality that is manifest on the face of the Arbitral Award inasmuch as the express terms and conditions of the Agreement governing the parties as also the Circular dated 27th July, 1987 issued by the Government of Madhya Pradesh have been completely ignored.23. We are afraid, the plea of waiver taken against the appellant-State on the ground that it did not raise such an objection in the grounds spelt out in the Section 34 petition and is, therefore, estopped from taking the same in the appeal preferred under Section 37 or before this Court, would also not be available to the respondent-Company having regard to the language used in Section 34(2A) of the 1996 Act that empowers the Court to set aside an award if it finds that the same is vitiated by patent illegality appearing on the face of the same. Once the appellant-State had taken such a ground in the Section 37 petition and it was duly noted in the impugned judgment, the High Court ought to have interfered by resorting to Section 34(2A) of the 1996 Act, a provision which would be equally available for application to an appealable order under Section 37 as it is to a petition filed under Section 34 of the 1996 Act. In other words, the respondent-Company cannot be heard to state that the grounds available for setting aside an award under sub-section (2A) of Section 34 of the 1996 Act could not have been invoked by the Court on its own, in exercise of the jurisdiction vested in it under Section 37 of the 1996 Act. Notably, the expression used in the sub-rule is the Court finds that. Therefore, it does not stand to reason that a provision that enables a Court acting on its own in deciding a petition under Section 34 for setting aside an Award, would not be available in an appeal preferred under Section 37 of the 1996 Act.24. Reliance placed by learned counsel for the respondent-Company on the ruling in the case of Hindustan Construction Company Limited(Supra) is found to be misplaced. In the aforesaid case, the Court was required to examine whether in an appeal preferred under Section 37 of the 1996 Act against an order refusing to set aside an Award, permission could be granted to amend the Memo of Appeal to raise additional/new grounds. Answering the said question, it was held that though an application for setting aside the Arbitral Award under Section 34 of the 1996 Act had to be moved within the time prescribed in the Statute, it cannot be held that incorporation of additional grounds by way of amendment in the Section 34 petition would amount to filing a fresh application in all situations and circumstances, thereby barring any amendment, however material or relevant it may be for the consideration of a Court, after expiry of the prescribed period of limitation. In fact, laying emphasis on the very expression the Courts find that applied in Section 34(2)(b) of the 1996 Act, it has been held that the said provision empowers the Court to grant leave to amend the Section 34 application if the circumstances of the case so warrant and it is required in the interest of justice. This is what has been observed in the preceding paragraph with reference to Section 34(2A) of the 1996 Act.25. To sum up, existence of Clause 6(b) in the Agreement governing the parties, has not been disputed, nor has the application of Circular dated 27th July, 1987 issued by the Government of Madhya Pradesh regarding imposition of 10% supervision charges and adding the same to cost of the Sal seeds, after deducting the actual expenditure been questioned by the respondent- Company. We are, therefore, of the view that failure on the part of the learned Sole Arbitrator to decide in accordance with the terms of the contract governing the parties, would certainly attract the patent illegality ground, as the said oversight amounts to gross contravention of Section 28(3) of the 1996 Act, that enjoins the Arbitral Tribunal to take into account the terms of the contract while making an Award. The said patent illegality is not only apparent on the face of the Award, it goes to the very root of the matter and deserves interference.
|
Commnr. Of Central Excise, Hyderabad Vs. M/S. Detergents India Ltd. | Limited and Crescent Dyes and Chemicals Limited and not the price at which the latter sold the dyes to the dealers or the consumers, represented the true measure of the value of the dyes for the purpose of chargeability to excise duty. This conclusion reached by the High Court was assailed before us by the learned Attorney-General appearing on behalf of the Revenue. He fairly conceded that the only part of the definition of “related person” in clause (c) of sub-section (4) of Section 4 on which he could rely was the first part which defines “related person” to mean “a person who is so associated with the assessee that they have interest directly or indirectly in the business of each other”.The second part of the definition which adds an inclusive clause was admittedly not applicable, because neither Atul Products Limited nor Crescent Dyes and Chemicals Limited was a holding company or a subsidiary company nor was either of them a relative of the assessee, so as to fall within the second part of the definition.” 25. It is clear therefore that the Bombay High Court judgment does not lay down the law correctly insofar as the correct construction of Section 4(4)(c) of the Act is concerned. 26. Section 4(4)(c) is in two parts. The first part requires the department to apply a de facto test, whereas the second part requires the application of a de jure test. “Relative” in the Companies Act, 1956 is defined as follows:- “6. Meaning of “relative”.—A person shall be deemed to be a relative of another if, and only if,—(a) they are members of a Hindu undivided family; or(b) they are husband and wife; or(c) the one is related to the other in the manner indicated in Schedule I-A.”“Schedule I-A.[See Section 6(c)]LIST OF RELATIVES1. Father.2. Mother (including step-mother).3. Son (including step-son).4. Sons wife.5. Daughter (including step-daughter).6. Fathers father.7. Fathers mother.8. Mothers mother.9. Mothers father.10. Sons son.11. Sons sons wife.12. Sons daughter.13. Sons daughters husband.14. Daughters husband.15. Daughter’s son16. Daughters sons wife.17. Daughters daughter.18. Daughters daughters husband.19. Brother (including step-brother).20. Brothers wife.21. Sister (including step-sister).22. Sisters husband.” A reading of the definition of “relative” would show that the relative need not be a person who is so associated with the assessee that they have mutual interest in each other’s businesses. If that were the case, the expression “relative” in the second part would be otiose inasmuch as a relative would be subsumed within “person” in the first part. Thus, “relatives” would also be “persons” who are so associated with the assessee that they have a mutual interest in each other’s businesses. The legislature by application of a de jure test has extended the meaning of “related persons” to include the entire list of relatives per se without more as related persons. Similarly, holding companies and subsidiary companies by virtue of the exercise of control by a holding company over a subsidiary company are similarly included by application of a de jure test. 27. We have indicated that the assessee argued that the price paid by Shaw Wallace and Company for the same/similar products as was sold by unrelated entities to it was even lower than the price paid by Shaw Wallace to Detergents India Ltd. This being the case, it is clear that on facts here there is no “arrangement” between Shaw Wallace and Detergents India Limited to depress a price which is otherwise at arm’s length. Though this fact is pleaded expressly before the Commissioner as pointed out above, the Commissioner’s order does not contain any finding based on this fact. On the other hand, there are copious findings as to how Shaw Wallace and Detergents India Limited are related persons because of a multitude of factors pointed out in the Commissioner’s order.28. That Shaw Wallace and Detergents India Limited are “related persons” is made out by their holding/subsidiary relationship. However, from this, it does not follow that there is any arrangement of tax avoidance or tax evasion on the facts of this case. This being the case, proviso (iii) to Section 4(1)(a) would not be applicable. Further, it would also not be applicable for the reason that there is no predominance of sales by Detergents India Limited to Shaw Wallace. As has been pointed out above, only 10% of its manufacturing capacity has been sold to Shaw Wallace, 90% being sold to Hindustan Lever Limited. For this reason also, proviso (iii) does not get attracted. This being the case, on facts here Section 4(1)(a) and not proviso (iii) is attracted inasmuch as on facts the presumption of a transaction not being at arm’s length has been rebutted. Revenue’s comparison of price paid by Hindustan Lever to DIL with price paid by Shaw Wallace to DIL is unwarranted as the products sold and processing charges are wholly different. The basis of the Commissioner’s orders thus goes. Further, the single most relevant fact, namely, that Shaw Wallace paid for the same/similar goods to unrelated suppliers at a price lower than the price paid by Shaw Wallace to DIL, has not been adverted to at all by the Commissioner. 29. Mr. Bagaria, learned counsel appearing on behalf of Shaw Wallace, is aggrieved by penalties levied upon Shaw Wallace by the orders of the Commissioner. These penalties have been set aside by CEGAT. He pointed out to us that the ingredients necessary to attract Rule 209A were not mentioned in any show cause notice against Shaw Wallace and that the Commissioner’s finding as a result thereof would have to be held to be beyond the show cause notice. He cited a number of judgments in support of this proposition. In view of the judgment delivered by us on merits, we do not think it necessary to go into the contention raised by Shri Bagaria. Suffice it to say that we are dismissing Revenue’s appeals. CEGAT’s judgment itself set aside all penalties imposed on Shaw Wallace as well as DIL. That part of CEGAT’s judgment will remain undisturbed. | 0[ds]15. On a reading of the aforesaid judgment, it becomes clear that the object of enacting Section 4 is that transactions atlength between manufacturer and wholesale purchaser which yield the price which is the sole consideration for the sale alone is contemplated. Any concessional or manipulative considerations which depress price below the normal price are, therefore, not to be taken into consideration. Judged at from this premise, it is clear that arrangements with related persons which yield a price below the normal price because of concessional or manipulative considerations cannot ever be equated to normal price. But at the same time, it must be remembered that absent concessional or manipulative considerations, where a sale is between a manufacturer and a related person in the course of wholesale trade, the transaction being a transaction where it is proved by evidence that price is the sole consideration for the sale, then such price must form the basis for valuation as theof the goods. A literal reading of the Section would otherwise lead to an absurdity. Where it is proved that the same price is paid by related persons as well aslength purchasers (who are unrelated) for the same goods, in the case of the former the higher price paid by purchasers from the related person would be the price on which excise duty would be calculated which would be more than theer Section 4(1)(a). Such a result is not contemplated by the amended Section 4(1) (a), which must therefore be read in the manner indicated above.16. So far asOn a reading of the aforesaid paragraphs, it is clear that proviso (iii) would be referable only to tainted transactions. Only such cases would raise an irrebuttable presumption which will then be governed by the said proviso. It is also interesting to note that the definition ofas read down by this Court to make the distributor covered by it to be a relative of the assessee. Whenwas spoken of, the Court held again that the idea of including these two types of companies within the definition of related person is only so that the corporate veil of such companies can be lifted so that economic realities behind the legal façade can be looked at so that tax is not evaded or avoided.We find it difficult to agree with some of the conclusions reached in the aforesaid paragraph. As has been stated by us above,is a legislative device by which thepart brings by way of extension various persons, categories, or things which would not otherwise have been included in thepart. If this is so, obviously both parts cannot be read conjunctively. What is in thepart is relatable only to the subject that is to be defined and takes within its sweep persons, objects, or things which are not included in the first part. We have already pointed out that the reason for including holding and subsidiary companies in thepart is so that the authorities may look behind the corporate veil. To say that the holding and subsidiary companies must in addition have a mutual interest in the business of each other is wholly incorrect. Further, the wordwhich joins the two parts of the definition is not rendered meaningless. It is necessary because it precedes the wordand brings in to the definition clause persons, objects, or things that would not otherwise be included within the. It is clear therefore that the Bombay High Court judgment does not lay down the law correctly insofar as the correct construction of Section 4(4)(c) of the Act is concerned.We have indicated that the assessee argued that the price paid by Shaw Wallace and Company for the same/similar products as was sold by unrelated entities to it was even lower than the price paid by Shaw Wallace to Detergents India Ltd. This being the case, it is clear that on facts here there is nobetween Shaw Wallace and Detergents India Limited to depress a price which is otherwise atlength. Though this fact is pleaded expressly before the Commissioner as pointed out above, theorder does not contain any finding based on this fact. On the other hand, there are copious findings as to how Shaw Wallace and Detergents India Limited are related persons because of a multitude of factors pointed out in theorder.28. That Shaw Wallace and Detergents India Limited areis made out by their holding/subsidiary relationship. However, from this, it does not follow that there is any arrangement of tax avoidance or tax evasion on the facts of this case. This being the case, proviso (iii) to Section 4(1)(a) would not be applicable. Further, it would also not be applicable for the reason that there is no predominance of sales by Detergents India Limited to Shaw Wallace. As has been pointed out above, only 10% of its manufacturing capacity has been sold to Shaw Wallace, 90% being sold to Hindustan Lever Limited. For this reason also, proviso (iii) does not get attracted. This being the case, on facts here Section 4(1)(a) and not proviso (iii) is attracted inasmuch as on facts the presumption of a transaction not being atlength has been rebutted.comparison of price paid by Hindustan Lever to DIL with price paid by Shaw Wallace to DIL is unwarranted as the products sold and processing charges are wholly different. The basis of theorders thus goes. Further, the single most relevant fact, namely, that Shaw Wallace paid for the same/similar goods to unrelated suppliers at a price lower than the price paid by Shaw Wallace to DIL, has not been adverted to at all by the Commissioner. | 0 | 10,383 | 1,042 | ### 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:
Limited and Crescent Dyes and Chemicals Limited and not the price at which the latter sold the dyes to the dealers or the consumers, represented the true measure of the value of the dyes for the purpose of chargeability to excise duty. This conclusion reached by the High Court was assailed before us by the learned Attorney-General appearing on behalf of the Revenue. He fairly conceded that the only part of the definition of “related person” in clause (c) of sub-section (4) of Section 4 on which he could rely was the first part which defines “related person” to mean “a person who is so associated with the assessee that they have interest directly or indirectly in the business of each other”.The second part of the definition which adds an inclusive clause was admittedly not applicable, because neither Atul Products Limited nor Crescent Dyes and Chemicals Limited was a holding company or a subsidiary company nor was either of them a relative of the assessee, so as to fall within the second part of the definition.” 25. It is clear therefore that the Bombay High Court judgment does not lay down the law correctly insofar as the correct construction of Section 4(4)(c) of the Act is concerned. 26. Section 4(4)(c) is in two parts. The first part requires the department to apply a de facto test, whereas the second part requires the application of a de jure test. “Relative” in the Companies Act, 1956 is defined as follows:- “6. Meaning of “relative”.—A person shall be deemed to be a relative of another if, and only if,—(a) they are members of a Hindu undivided family; or(b) they are husband and wife; or(c) the one is related to the other in the manner indicated in Schedule I-A.”“Schedule I-A.[See Section 6(c)]LIST OF RELATIVES1. Father.2. Mother (including step-mother).3. Son (including step-son).4. Sons wife.5. Daughter (including step-daughter).6. Fathers father.7. Fathers mother.8. Mothers mother.9. Mothers father.10. Sons son.11. Sons sons wife.12. Sons daughter.13. Sons daughters husband.14. Daughters husband.15. Daughter’s son16. Daughters sons wife.17. Daughters daughter.18. Daughters daughters husband.19. Brother (including step-brother).20. Brothers wife.21. Sister (including step-sister).22. Sisters husband.” A reading of the definition of “relative” would show that the relative need not be a person who is so associated with the assessee that they have mutual interest in each other’s businesses. If that were the case, the expression “relative” in the second part would be otiose inasmuch as a relative would be subsumed within “person” in the first part. Thus, “relatives” would also be “persons” who are so associated with the assessee that they have a mutual interest in each other’s businesses. The legislature by application of a de jure test has extended the meaning of “related persons” to include the entire list of relatives per se without more as related persons. Similarly, holding companies and subsidiary companies by virtue of the exercise of control by a holding company over a subsidiary company are similarly included by application of a de jure test. 27. We have indicated that the assessee argued that the price paid by Shaw Wallace and Company for the same/similar products as was sold by unrelated entities to it was even lower than the price paid by Shaw Wallace to Detergents India Ltd. This being the case, it is clear that on facts here there is no “arrangement” between Shaw Wallace and Detergents India Limited to depress a price which is otherwise at arm’s length. Though this fact is pleaded expressly before the Commissioner as pointed out above, the Commissioner’s order does not contain any finding based on this fact. On the other hand, there are copious findings as to how Shaw Wallace and Detergents India Limited are related persons because of a multitude of factors pointed out in the Commissioner’s order.28. That Shaw Wallace and Detergents India Limited are “related persons” is made out by their holding/subsidiary relationship. However, from this, it does not follow that there is any arrangement of tax avoidance or tax evasion on the facts of this case. This being the case, proviso (iii) to Section 4(1)(a) would not be applicable. Further, it would also not be applicable for the reason that there is no predominance of sales by Detergents India Limited to Shaw Wallace. As has been pointed out above, only 10% of its manufacturing capacity has been sold to Shaw Wallace, 90% being sold to Hindustan Lever Limited. For this reason also, proviso (iii) does not get attracted. This being the case, on facts here Section 4(1)(a) and not proviso (iii) is attracted inasmuch as on facts the presumption of a transaction not being at arm’s length has been rebutted. Revenue’s comparison of price paid by Hindustan Lever to DIL with price paid by Shaw Wallace to DIL is unwarranted as the products sold and processing charges are wholly different. The basis of the Commissioner’s orders thus goes. Further, the single most relevant fact, namely, that Shaw Wallace paid for the same/similar goods to unrelated suppliers at a price lower than the price paid by Shaw Wallace to DIL, has not been adverted to at all by the Commissioner. 29. Mr. Bagaria, learned counsel appearing on behalf of Shaw Wallace, is aggrieved by penalties levied upon Shaw Wallace by the orders of the Commissioner. These penalties have been set aside by CEGAT. He pointed out to us that the ingredients necessary to attract Rule 209A were not mentioned in any show cause notice against Shaw Wallace and that the Commissioner’s finding as a result thereof would have to be held to be beyond the show cause notice. He cited a number of judgments in support of this proposition. In view of the judgment delivered by us on merits, we do not think it necessary to go into the contention raised by Shri Bagaria. Suffice it to say that we are dismissing Revenue’s appeals. CEGAT’s judgment itself set aside all penalties imposed on Shaw Wallace as well as DIL. That part of CEGAT’s judgment will remain undisturbed.
### Response:
0
### Explanation:
15. On a reading of the aforesaid judgment, it becomes clear that the object of enacting Section 4 is that transactions atlength between manufacturer and wholesale purchaser which yield the price which is the sole consideration for the sale alone is contemplated. Any concessional or manipulative considerations which depress price below the normal price are, therefore, not to be taken into consideration. Judged at from this premise, it is clear that arrangements with related persons which yield a price below the normal price because of concessional or manipulative considerations cannot ever be equated to normal price. But at the same time, it must be remembered that absent concessional or manipulative considerations, where a sale is between a manufacturer and a related person in the course of wholesale trade, the transaction being a transaction where it is proved by evidence that price is the sole consideration for the sale, then such price must form the basis for valuation as theof the goods. A literal reading of the Section would otherwise lead to an absurdity. Where it is proved that the same price is paid by related persons as well aslength purchasers (who are unrelated) for the same goods, in the case of the former the higher price paid by purchasers from the related person would be the price on which excise duty would be calculated which would be more than theer Section 4(1)(a). Such a result is not contemplated by the amended Section 4(1) (a), which must therefore be read in the manner indicated above.16. So far asOn a reading of the aforesaid paragraphs, it is clear that proviso (iii) would be referable only to tainted transactions. Only such cases would raise an irrebuttable presumption which will then be governed by the said proviso. It is also interesting to note that the definition ofas read down by this Court to make the distributor covered by it to be a relative of the assessee. Whenwas spoken of, the Court held again that the idea of including these two types of companies within the definition of related person is only so that the corporate veil of such companies can be lifted so that economic realities behind the legal façade can be looked at so that tax is not evaded or avoided.We find it difficult to agree with some of the conclusions reached in the aforesaid paragraph. As has been stated by us above,is a legislative device by which thepart brings by way of extension various persons, categories, or things which would not otherwise have been included in thepart. If this is so, obviously both parts cannot be read conjunctively. What is in thepart is relatable only to the subject that is to be defined and takes within its sweep persons, objects, or things which are not included in the first part. We have already pointed out that the reason for including holding and subsidiary companies in thepart is so that the authorities may look behind the corporate veil. To say that the holding and subsidiary companies must in addition have a mutual interest in the business of each other is wholly incorrect. Further, the wordwhich joins the two parts of the definition is not rendered meaningless. It is necessary because it precedes the wordand brings in to the definition clause persons, objects, or things that would not otherwise be included within the. It is clear therefore that the Bombay High Court judgment does not lay down the law correctly insofar as the correct construction of Section 4(4)(c) of the Act is concerned.We have indicated that the assessee argued that the price paid by Shaw Wallace and Company for the same/similar products as was sold by unrelated entities to it was even lower than the price paid by Shaw Wallace to Detergents India Ltd. This being the case, it is clear that on facts here there is nobetween Shaw Wallace and Detergents India Limited to depress a price which is otherwise atlength. Though this fact is pleaded expressly before the Commissioner as pointed out above, theorder does not contain any finding based on this fact. On the other hand, there are copious findings as to how Shaw Wallace and Detergents India Limited are related persons because of a multitude of factors pointed out in theorder.28. That Shaw Wallace and Detergents India Limited areis made out by their holding/subsidiary relationship. However, from this, it does not follow that there is any arrangement of tax avoidance or tax evasion on the facts of this case. This being the case, proviso (iii) to Section 4(1)(a) would not be applicable. Further, it would also not be applicable for the reason that there is no predominance of sales by Detergents India Limited to Shaw Wallace. As has been pointed out above, only 10% of its manufacturing capacity has been sold to Shaw Wallace, 90% being sold to Hindustan Lever Limited. For this reason also, proviso (iii) does not get attracted. This being the case, on facts here Section 4(1)(a) and not proviso (iii) is attracted inasmuch as on facts the presumption of a transaction not being atlength has been rebutted.comparison of price paid by Hindustan Lever to DIL with price paid by Shaw Wallace to DIL is unwarranted as the products sold and processing charges are wholly different. The basis of theorders thus goes. Further, the single most relevant fact, namely, that Shaw Wallace paid for the same/similar goods to unrelated suppliers at a price lower than the price paid by Shaw Wallace to DIL, has not been adverted to at all by the Commissioner.
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KANWAL TANUJ Vs. THE STATE OF BIHAR & ORS | which reason seeking consent of the State to investigate the same would not arise. In our opinion, the stated proviso will have no application to the offence in question and thus the Delhi special police force/DSPE (CBI) must be held to be competent to register the FIR at Delhi and also to investigate the same without the consent of the State. 23. Even otherwise, the proviso has the effect of differentiating and classifying offenders differently for treatment thereunder, including investigation of offences and prosecution for offences on the basis of being public servant employed in connection with the affairs of the Government of Bihar. The power bestowed on special police force in terms of Sections 2 and 3 of the 1946 Act cannot be undermined by an executive instruction in the form of proviso. Dealing with a similar challenge to a statutory provision - Section 6A of the Act, the Constitution Bench of this Court in Subramanian Swamy (supra) held that sub-Section (1) thereof was invalid and violative of Article 14 of the Constitution. In paragraphs 61 and 68 of the said decision, the Court noted thus:- 61. The essence of police investigation is skillful inquiry and collection of material and evidence in a manner by which the potential culpable individuals are not forewarned. The previous approval from the Government necessarily required under Section 6-A would result in indirectly putting to notice the officers to be investigated before the commencement of investigation. Moreover, if CBI is not even allowed to verify complaints by preliminary enquiry, how can the case move forward? A preliminary enquiry is intended to ascertain whether a prima facie case for investigation is made out or not. If CBI is prevented from holding a preliminary enquiry, at the very threshold, a fetter is put to enable CBI to gather relevant material. As a matter of fact, CBI is not able to collect the material even to move the Government for the purpose of obtaining previous approval from the Central Government. xxx xxx xxx 68. Can it be said that the classification is based on intelligible differentia when one set of bureaucrats of Joint Secretary level and above who are working with the Central Government are offered protection under Section 6-A while the same level of officers who are working in the States do not get protection though both classes of these officers are accused of an offence under the PC Act, 1988 and inquiry/investigation into such allegations is to be carried out. Our answer is in the negative. The provision in Section 6-A, thus, impedes tracking down the corrupt senior bureaucrats as without previous approval of the Central Government, CBI cannot even hold preliminary inquiry much less an investigation into the allegations. The protection in Section 6-A has propensity of shielding the corrupt. The object of Section 6-A, that senior public servants of the level of Joint Secretary and above who take policy decision must not be put to any harassment, sidetracks the fundamental objective of the PC Act, 1988 to deal with corruption and act against senior public servants. CBI is not able to proceed even to collect the material to unearth prima facie substance into the merits of allegations. Thus, the object of Section 6-A itself is discriminatory. That being the position, the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved. (emphasis supplied) The thrust of this exposition is that every person committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The discrimination or differentiation must be founded on pertinent and real differences as distinguished from irrelevant and artificial ones. In paragraph 70, the Court went on to observe that every public servant against whom there is a reasonable suspicion of commission of a crime or there are allegations of an offence under the PC Act has to be treated equally and similarly under law. 24. Suffice it to observe that the proviso contained in the stated notification dated 19.2.1996 cannot be the basis to disempower the special police force/DSPE (CBI) from registering the offence committed at Delhi to defraud the Government of India undertaking (BRBCL) and siphoning of its funds and having its registered office at Delhi. Allegedly, the stated offence has been committed at Delhi. If so, the Delhi Courts will have jurisdiction to take cognizance thereof. The State police (State of Bihar) cannot investigate the specified offences committed and accomplished at Delhi, being outside the territory of the State of Bihar. It must follow that the consent of the State of Bihar to investigate such offence is not required in law and for which reason, the special police force would be competent to carry on the investigation thereof even if one of the accused allegedly involved in the commission of stated offence happens to be resident of the State of Bihar or employed in connection with the affairs of the Government of Bihar and allegedly committed associated offences in that capacity. In other words, consent of the State under Section 6 cannot come in the way or constrict the jurisdiction of the special police force constituted under Section 2 to investigate specified offences under Section 3 of the 1946 Act committed within the Union Territories. Indeed, when the Court of competent jurisdiction proceeds to take cognizance of offence and particularly against the appellant, it may consider the question of necessity of a prior sanction of the State of Bihar qua its official(s) as may be required by law. That question can be considered on its own merits in accordance with law. 25. For the view that we have taken, it may not be necessary for us to analyse the decisions relied upon by the parties, which in our opinion, do not pertain to the question under consideration regarding the effect of the proviso contained in the notification dated 19.2.1996. | 0[ds]18. The High Court, in the present case, after analysing the material on record clearly found that BRBCL was a Government undertaking and the project undertaken by it was funded by the Central Government and that it had its registered office in the Union Territory of Delhi (National Capital Territory of Delhi), where the offence of defrauding the undertaking (BRBCL) and siphoning of its funds was allegedly committed. We see no reason to deviate from the opinion so recorded by the High CourtThis submission overlooks the substratum of the allegations in the FIR, as registered by the CBI against the CEO of BRBCL – Shri C. Sivakumar and the appellant being co- accused (party to the conspiracy) regarding defrauding the Government of India undertaking (BRBCL) having its registered office at Delhi (Union Territory) and siphoning of its funds. The alleged role played by the appellant may be a means to facilitate the commission of crime of defrauding and siphoning of funds. The FIR in that sense is not limited to an offence of manipulation of official records of the State of Bihar as such, but is about the means used by the different actors who were party to the conspiracy in defrauding the Government of India undertaking (BRBCL) and siphoning of its funds20. Indisputably, the registered office of BRBCL is within the jurisdiction of Union Territory of Delhi (National Capital Territory of Delhi) and allegedly the offence has been committed at Delhi, for which reason the Delhi Court will have jurisdiction to take cognizance thereof. To put it differently, the offence in question has been committed outside the State of Bihar. The investigation of the stated offence may incidentally transcend to the territory of State of Bihar because of the acts of commission and omission of the appellant who is resident of that State and employed in connection with the affairs of the State of Bihar. That, however, cannot come in the way of special police force (DSPE) from investigating the offence committed at Delhi and has been so registered by it and is being investigated. Had it been an offence limited to manipulation of official record of the State and involvement of officials of the State of Bihar, it would have been a different matter. It is not the case of the appellant or the State of Bihar that even an offence accomplished at Delhi of defrauding of the Government of India undertaking (having registered office at Delhi) and siphoning of the funds thereof at Delhi can be investigated by the State of Bihar. If the State police has had no jurisdiction to investigate the offence in question, as registered, then, seeking consent of the State in respect of such offence does not arise. Any other approach would render the special provisions of the 1946 Act otiose21. In any case, the respondent-State having granted general consent in terms of Section 6 of the 1946 Act vide notification dated 19.2.1996, it is not open to it to argue to the contrary. The respondent-State cannot be allowed to approbate and reprobate22. Indeed, the said notification contains a proviso, which predicates that if any public servant employed in connection with the affairs of the Government of Bihar is concerned in offences being investigated by the special police force pursuant to the notification, prior consent of the State Government qua him shall be obtained. This proviso must operate limited to cases or offences which have been committed within the territory of the State of Bihar. If the specified offence is committed outside the State of Bihar, as in this case in Delhi, the State police will have no jurisdiction to investigate such offence and for which reason seeking consent of the State to investigate the same would not arise. In our opinion, the stated proviso will have no application to the offence in question and thus the Delhi special police force/DSPE (CBI) must be held to be competent to register the FIR at Delhi and also to investigate the same without the consent of the State23. Even otherwise, the proviso has the effect of differentiating and classifying offenders differently for treatment thereunder, including investigation of offences and prosecution for offences on the basis of being public servant employed in connection with the affairs of the Government of Bihar. The power bestowed on special police force in terms of Sections 2 and 3 of the 1946 Act cannot be undermined by an executive instruction in the form of provisoThe thrust of this exposition is that every person committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The discrimination or differentiation must be founded on pertinent and real differences as distinguished from irrelevant and artificial ones. In paragraph 70, the Court went on to observe that every public servant against whom there is a reasonable suspicion of commission of a crime or there are allegations of an offence under the PC Act has to be treated equally and similarly under law24. Suffice it to observe that the proviso contained in the stated notification dated 19.2.1996 cannot be the basis to disempower the special police force/DSPE (CBI) from registering the offence committed at Delhi to defraud the Government of India undertaking (BRBCL) and siphoning of its funds and having its registered office at Delhi. Allegedly, the stated offence has been committed at Delhi. If so, the Delhi Courts will have jurisdiction to take cognizance thereof. The State police (State of Bihar) cannot investigate the specified offences committed and accomplished at Delhi, being outside the territory of the State of Bihar. It must follow that the consent of the State of Bihar to investigate such offence is not required in law and for which reason, the special police force would be competent to carry on the investigation thereof even if one of the accused allegedly involved in the commission of stated offence happens to be resident of the State of Bihar or employed in connection with the affairs of the Government of Bihar and allegedly committed associated offences in that capacity. In other words, consent of the State under Section 6 cannot come in the way or constrict the jurisdiction of the special police force constituted under Section 2 to investigate specified offences under Section 3 of the 1946 Act committed within the Union Territories. Indeed, when the Court of competent jurisdiction proceeds to take cognizance of offence and particularly against the appellant, it may consider the question of necessity of a prior sanction of the State of Bihar qua its official(s) as may be required by law. That question can be considered on its own merits in accordance with law25. For the view that we have taken, it may not be necessary for us to analyse the decisions relied upon by the parties, which in our opinion, do not pertain to the question under consideration regarding the effect of the proviso contained in the notification dated 19.2.1996. | 0 | 8,559 | 1,274 | ### 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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which reason seeking consent of the State to investigate the same would not arise. In our opinion, the stated proviso will have no application to the offence in question and thus the Delhi special police force/DSPE (CBI) must be held to be competent to register the FIR at Delhi and also to investigate the same without the consent of the State. 23. Even otherwise, the proviso has the effect of differentiating and classifying offenders differently for treatment thereunder, including investigation of offences and prosecution for offences on the basis of being public servant employed in connection with the affairs of the Government of Bihar. The power bestowed on special police force in terms of Sections 2 and 3 of the 1946 Act cannot be undermined by an executive instruction in the form of proviso. Dealing with a similar challenge to a statutory provision - Section 6A of the Act, the Constitution Bench of this Court in Subramanian Swamy (supra) held that sub-Section (1) thereof was invalid and violative of Article 14 of the Constitution. In paragraphs 61 and 68 of the said decision, the Court noted thus:- 61. The essence of police investigation is skillful inquiry and collection of material and evidence in a manner by which the potential culpable individuals are not forewarned. The previous approval from the Government necessarily required under Section 6-A would result in indirectly putting to notice the officers to be investigated before the commencement of investigation. Moreover, if CBI is not even allowed to verify complaints by preliminary enquiry, how can the case move forward? A preliminary enquiry is intended to ascertain whether a prima facie case for investigation is made out or not. If CBI is prevented from holding a preliminary enquiry, at the very threshold, a fetter is put to enable CBI to gather relevant material. As a matter of fact, CBI is not able to collect the material even to move the Government for the purpose of obtaining previous approval from the Central Government. xxx xxx xxx 68. Can it be said that the classification is based on intelligible differentia when one set of bureaucrats of Joint Secretary level and above who are working with the Central Government are offered protection under Section 6-A while the same level of officers who are working in the States do not get protection though both classes of these officers are accused of an offence under the PC Act, 1988 and inquiry/investigation into such allegations is to be carried out. Our answer is in the negative. The provision in Section 6-A, thus, impedes tracking down the corrupt senior bureaucrats as without previous approval of the Central Government, CBI cannot even hold preliminary inquiry much less an investigation into the allegations. The protection in Section 6-A has propensity of shielding the corrupt. The object of Section 6-A, that senior public servants of the level of Joint Secretary and above who take policy decision must not be put to any harassment, sidetracks the fundamental objective of the PC Act, 1988 to deal with corruption and act against senior public servants. CBI is not able to proceed even to collect the material to unearth prima facie substance into the merits of allegations. Thus, the object of Section 6-A itself is discriminatory. That being the position, the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved. (emphasis supplied) The thrust of this exposition is that every person committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The discrimination or differentiation must be founded on pertinent and real differences as distinguished from irrelevant and artificial ones. In paragraph 70, the Court went on to observe that every public servant against whom there is a reasonable suspicion of commission of a crime or there are allegations of an offence under the PC Act has to be treated equally and similarly under law. 24. Suffice it to observe that the proviso contained in the stated notification dated 19.2.1996 cannot be the basis to disempower the special police force/DSPE (CBI) from registering the offence committed at Delhi to defraud the Government of India undertaking (BRBCL) and siphoning of its funds and having its registered office at Delhi. Allegedly, the stated offence has been committed at Delhi. If so, the Delhi Courts will have jurisdiction to take cognizance thereof. The State police (State of Bihar) cannot investigate the specified offences committed and accomplished at Delhi, being outside the territory of the State of Bihar. It must follow that the consent of the State of Bihar to investigate such offence is not required in law and for which reason, the special police force would be competent to carry on the investigation thereof even if one of the accused allegedly involved in the commission of stated offence happens to be resident of the State of Bihar or employed in connection with the affairs of the Government of Bihar and allegedly committed associated offences in that capacity. In other words, consent of the State under Section 6 cannot come in the way or constrict the jurisdiction of the special police force constituted under Section 2 to investigate specified offences under Section 3 of the 1946 Act committed within the Union Territories. Indeed, when the Court of competent jurisdiction proceeds to take cognizance of offence and particularly against the appellant, it may consider the question of necessity of a prior sanction of the State of Bihar qua its official(s) as may be required by law. That question can be considered on its own merits in accordance with law. 25. For the view that we have taken, it may not be necessary for us to analyse the decisions relied upon by the parties, which in our opinion, do not pertain to the question under consideration regarding the effect of the proviso contained in the notification dated 19.2.1996.
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not limited to an offence of manipulation of official records of the State of Bihar as such, but is about the means used by the different actors who were party to the conspiracy in defrauding the Government of India undertaking (BRBCL) and siphoning of its funds20. Indisputably, the registered office of BRBCL is within the jurisdiction of Union Territory of Delhi (National Capital Territory of Delhi) and allegedly the offence has been committed at Delhi, for which reason the Delhi Court will have jurisdiction to take cognizance thereof. To put it differently, the offence in question has been committed outside the State of Bihar. The investigation of the stated offence may incidentally transcend to the territory of State of Bihar because of the acts of commission and omission of the appellant who is resident of that State and employed in connection with the affairs of the State of Bihar. That, however, cannot come in the way of special police force (DSPE) from investigating the offence committed at Delhi and has been so registered by it and is being investigated. Had it been an offence limited to manipulation of official record of the State and involvement of officials of the State of Bihar, it would have been a different matter. It is not the case of the appellant or the State of Bihar that even an offence accomplished at Delhi of defrauding of the Government of India undertaking (having registered office at Delhi) and siphoning of the funds thereof at Delhi can be investigated by the State of Bihar. If the State police has had no jurisdiction to investigate the offence in question, as registered, then, seeking consent of the State in respect of such offence does not arise. Any other approach would render the special provisions of the 1946 Act otiose21. In any case, the respondent-State having granted general consent in terms of Section 6 of the 1946 Act vide notification dated 19.2.1996, it is not open to it to argue to the contrary. The respondent-State cannot be allowed to approbate and reprobate22. Indeed, the said notification contains a proviso, which predicates that if any public servant employed in connection with the affairs of the Government of Bihar is concerned in offences being investigated by the special police force pursuant to the notification, prior consent of the State Government qua him shall be obtained. This proviso must operate limited to cases or offences which have been committed within the territory of the State of Bihar. If the specified offence is committed outside the State of Bihar, as in this case in Delhi, the State police will have no jurisdiction to investigate such offence and for which reason seeking consent of the State to investigate the same would not arise. In our opinion, the stated proviso will have no application to the offence in question and thus the Delhi special police force/DSPE (CBI) must be held to be competent to register the FIR at Delhi and also to investigate the same without the consent of the State23. Even otherwise, the proviso has the effect of differentiating and classifying offenders differently for treatment thereunder, including investigation of offences and prosecution for offences on the basis of being public servant employed in connection with the affairs of the Government of Bihar. The power bestowed on special police force in terms of Sections 2 and 3 of the 1946 Act cannot be undermined by an executive instruction in the form of provisoThe thrust of this exposition is that every person committing the same offence is to be dealt with in the same manner in accordance with law, which is equal in its application to everyone. The discrimination or differentiation must be founded on pertinent and real differences as distinguished from irrelevant and artificial ones. In paragraph 70, the Court went on to observe that every public servant against whom there is a reasonable suspicion of commission of a crime or there are allegations of an offence under the PC Act has to be treated equally and similarly under law24. Suffice it to observe that the proviso contained in the stated notification dated 19.2.1996 cannot be the basis to disempower the special police force/DSPE (CBI) from registering the offence committed at Delhi to defraud the Government of India undertaking (BRBCL) and siphoning of its funds and having its registered office at Delhi. Allegedly, the stated offence has been committed at Delhi. If so, the Delhi Courts will have jurisdiction to take cognizance thereof. The State police (State of Bihar) cannot investigate the specified offences committed and accomplished at Delhi, being outside the territory of the State of Bihar. It must follow that the consent of the State of Bihar to investigate such offence is not required in law and for which reason, the special police force would be competent to carry on the investigation thereof even if one of the accused allegedly involved in the commission of stated offence happens to be resident of the State of Bihar or employed in connection with the affairs of the Government of Bihar and allegedly committed associated offences in that capacity. In other words, consent of the State under Section 6 cannot come in the way or constrict the jurisdiction of the special police force constituted under Section 2 to investigate specified offences under Section 3 of the 1946 Act committed within the Union Territories. Indeed, when the Court of competent jurisdiction proceeds to take cognizance of offence and particularly against the appellant, it may consider the question of necessity of a prior sanction of the State of Bihar qua its official(s) as may be required by law. That question can be considered on its own merits in accordance with law25. For the view that we have taken, it may not be necessary for us to analyse the decisions relied upon by the parties, which in our opinion, do not pertain to the question under consideration regarding the effect of the proviso contained in the notification dated 19.2.1996.
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Chittaranjan Maity Vs. Union Of India | under:“31(7)(a) - Unless otherwise agreed by the parties, where and insofar as an arbitral award is for the payment of money, the arbitral tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made.”In this Section, a specific provision has been created, whereby if the agreement prohibits award of interest for the pre-award period (i.e. pre-reference and pendente lite period), the Arbitrator cannot award interest for the said period.16. Admittedly, the GCC, governing the contract between the parties, contains a clause which bars the payment of interest, which is as under:“16(2) – No interest will be payable upon the earnest money or the security deposit or amounts payable to the contractor under the contract, but government securities deposit in terms of sub-clause (1) of this clause will be repayable (with) interest accrued thereon.”17. Relying on a decision of this Court in M/s. Ambica Construction vs. Union of India (2017) SCC OnLine SC 678, (C.A.No.410 of 2008, disposed of on 26.04.2017) learned senior counsel for the appellant submits that mere bar to award interest on the amounts payable under the contract would not be sufficient to deny payment on pendente lite interest. Therefore, the Arbitrator was justified in awarding the pendente lite interest. However, it is not clear from M/s. Ambica Construction (supra) as to whether it was decided under The Arbitration Act, 1940 (for short ‘the 1940 Act’) or under the 1996 Act. It has relied on a judgment of Constitution Bench in Secretary, Irrigation Department, Government of Orissa and Others. vs. G.C. Roy (1992) 1 SCC 508. This judgment was with reference to the 1940 Act. In the 1940 Act, there was no provision which prohibited the Arbitrator from awarding interest for the pre-reference, pendente lite or post award period, whereas the 1996 Act contains a specific provision which says that if the agreement prohibits award of interest for the pre-award period, the Arbitrator cannot award interest for the said period. Therefore, the decision in M/s. Ambica Construction (supra) cannot be made applicable to the instant case.18. Learned Additional Solicitor General appearing for the respondent submits that the position of law for cases covered under the 1996 Act, i.e. if agreement prohibits award of interest then the grant of pre-award interest is impermissible for the Arbitrator, has been reiterated by this Court in various judgments.19. In Sayeed Ahmed and Company vs. State of Uttar Pradesh and Others (2009) 12 SCC 26 , this Court noted that the 1940 Act did not contain any provision relating to the power of the Arbitrator to award interest. However, now a specific provision has been created under Section 31(7)(a) of the 1996 Act. As per this Section, if the agreement bars payment of interest, the Arbitrator cannot award interest from the date of cause of action till the date of award. The Court has observed that in regard to the provision in the 1996 Act, the difference between pre-reference period and the pendente lite interest has disappeared insofar as award of interest by the Arbitrator is concerned. Section 31(7)(a) recognizes only two periods, i.e. pre-award and post-award period.20. In Sree Kamatchi Amman Constructions vs. Divisional Railway Manager (Works), Palghat and Others (2010) 8 SCC 767 , this Court was dealing with an identical case wherein Clause 16 of the GCC of Railways had required interpretation. This is the same Clause 16(2) of the GCC prohibiting grant of interest which is also applicable in the facts of the present case. The Court held that where the parties had agreed that the interest shall not be payable, the Arbitral Tribunal cannot award interest between the date on which the cause of action arose to the date of the award.21. In Union of India vs. Bright Power Projects (India) Private Limited (2015) 9 SCC 695 , a three-Judge Bench of this Court, after referring to the provisions of Section 31(7)(a) of the 1996 Act, held that when the terms of the agreement had prohibited award of interest, the Arbitrator could not award interest for the pendente lite period. It has been held thus:“10. Thus, it had been specifically understood between the parties that no interest was to be paid on the earnest money, security deposit and the amount payable to the contractor under the contract. So far as payment of interest on government securities, which had been deposited by the respondent contractor with the appellant is concerned, it was specifically stated that the said amount was to be returned to the contractor along with interest accrued thereon, but so far as payment of interest on the amount payable to the contractor under the contract was concerned, there was a specific term that no interest was to be paid thereon.11. When parties to the contract had agreed to the fact that interest would not be awarded on the amount payable to the contractor under the contract, in our opinion, they were bound by their understanding. Having once agreed that the contractor would not claim any interest on the amount to be paid under the contract, he could not have claimed interest either before a civil court or before an Arbitral Tribunal.”Therefore, it is clear that the appellant is not entitled for any interest on the amount awarded by the Arbitral Tribunal.22. The Arbitral Tribunal had determined the amount payable to the appellant in a sum of Rs.11,13,136/- and interest of Rs.12,44,546/-. A sum of Rs.38,82,150/- was deposited by the respondent which includes the award amount, interest for the pre-reference period, pendente lite and post-award interest. We have held that the appellant is not entitled for any interest. The appellant has already withdrawn 50% of the amount deposited by the respondent, which is in excess of the award amount exclusive of interest. | 1[ds]is evident from the materials on record that the dispute had arisen between the parties in relation to the contract in question. Therefore, the appellant filed an application before the Chief Justice of the High Court of Calcutta under Section 11(6) of the 1996 Act, for appointment of an Arbitrator in terms of the contract which was allowed and an Arbitral Tribunal was constituted for adjudication of the dispute. The Arbitrator after giving the parties opportunities of hearing and after considering the materials placed on record made and published the award.It is also necessary to observe that intervention of the court is envisaged only in few circumstances like fraud or bias by the Arbitrators, violation of natural justice. The court cannot correct the errors of the Arbitrators.Therefore, the Division Bench was not justified while considering the arbitrability of the disputes for the first time, particularly, when the respondent has not urged the issue relating to ‘No Claimsbefore the Chief Justice, Arbitral Tribunal or before the learned Singleit is not clear from M/s. Ambica Construction (supra) as to whether it was decided under The Arbitration Act, 1940 (for short ‘the 1940or under the 1996 Act. It has relied on a judgment of Constitution Bench in Secretary, Irrigation Department, Government of Orissa and Others. vs. G.C. Roy (1992) 1 SCC 508. This judgment was with reference to the 1940 Act. In the 1940 Act, there was no provision which prohibited the Arbitrator from awarding interest for thependente lite or post award period, whereas the 1996 Act contains a specific provision which says that if the agreement prohibits award of interest for theperiod, the Arbitrator cannot award interest for the said period. Therefore, the decision in M/s. Ambica Construction (supra) cannot be made applicable to the instantit is clear that the appellant is not entitled for any interest on the amount awarded by the Arbitral Tribunal.22. The Arbitral Tribunal had determined the amount payable to the appellant in a sum of Rs.11,13,136/and interest of Rs.A sum of Rs.38,82,150/was deposited by the respondent which includes the award amount, interest for theperiod, pendente lite andinterest. We have held that the appellant is not entitled for any interest. The appellant has already withdrawn 50% of the amount deposited by the respondent, which is in excess of the award amount exclusive of interest. | 1 | 2,960 | 438 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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under:“31(7)(a) - Unless otherwise agreed by the parties, where and insofar as an arbitral award is for the payment of money, the arbitral tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made.”In this Section, a specific provision has been created, whereby if the agreement prohibits award of interest for the pre-award period (i.e. pre-reference and pendente lite period), the Arbitrator cannot award interest for the said period.16. Admittedly, the GCC, governing the contract between the parties, contains a clause which bars the payment of interest, which is as under:“16(2) – No interest will be payable upon the earnest money or the security deposit or amounts payable to the contractor under the contract, but government securities deposit in terms of sub-clause (1) of this clause will be repayable (with) interest accrued thereon.”17. Relying on a decision of this Court in M/s. Ambica Construction vs. Union of India (2017) SCC OnLine SC 678, (C.A.No.410 of 2008, disposed of on 26.04.2017) learned senior counsel for the appellant submits that mere bar to award interest on the amounts payable under the contract would not be sufficient to deny payment on pendente lite interest. Therefore, the Arbitrator was justified in awarding the pendente lite interest. However, it is not clear from M/s. Ambica Construction (supra) as to whether it was decided under The Arbitration Act, 1940 (for short ‘the 1940 Act’) or under the 1996 Act. It has relied on a judgment of Constitution Bench in Secretary, Irrigation Department, Government of Orissa and Others. vs. G.C. Roy (1992) 1 SCC 508. This judgment was with reference to the 1940 Act. In the 1940 Act, there was no provision which prohibited the Arbitrator from awarding interest for the pre-reference, pendente lite or post award period, whereas the 1996 Act contains a specific provision which says that if the agreement prohibits award of interest for the pre-award period, the Arbitrator cannot award interest for the said period. Therefore, the decision in M/s. Ambica Construction (supra) cannot be made applicable to the instant case.18. Learned Additional Solicitor General appearing for the respondent submits that the position of law for cases covered under the 1996 Act, i.e. if agreement prohibits award of interest then the grant of pre-award interest is impermissible for the Arbitrator, has been reiterated by this Court in various judgments.19. In Sayeed Ahmed and Company vs. State of Uttar Pradesh and Others (2009) 12 SCC 26 , this Court noted that the 1940 Act did not contain any provision relating to the power of the Arbitrator to award interest. However, now a specific provision has been created under Section 31(7)(a) of the 1996 Act. As per this Section, if the agreement bars payment of interest, the Arbitrator cannot award interest from the date of cause of action till the date of award. The Court has observed that in regard to the provision in the 1996 Act, the difference between pre-reference period and the pendente lite interest has disappeared insofar as award of interest by the Arbitrator is concerned. Section 31(7)(a) recognizes only two periods, i.e. pre-award and post-award period.20. In Sree Kamatchi Amman Constructions vs. Divisional Railway Manager (Works), Palghat and Others (2010) 8 SCC 767 , this Court was dealing with an identical case wherein Clause 16 of the GCC of Railways had required interpretation. This is the same Clause 16(2) of the GCC prohibiting grant of interest which is also applicable in the facts of the present case. The Court held that where the parties had agreed that the interest shall not be payable, the Arbitral Tribunal cannot award interest between the date on which the cause of action arose to the date of the award.21. In Union of India vs. Bright Power Projects (India) Private Limited (2015) 9 SCC 695 , a three-Judge Bench of this Court, after referring to the provisions of Section 31(7)(a) of the 1996 Act, held that when the terms of the agreement had prohibited award of interest, the Arbitrator could not award interest for the pendente lite period. It has been held thus:“10. Thus, it had been specifically understood between the parties that no interest was to be paid on the earnest money, security deposit and the amount payable to the contractor under the contract. So far as payment of interest on government securities, which had been deposited by the respondent contractor with the appellant is concerned, it was specifically stated that the said amount was to be returned to the contractor along with interest accrued thereon, but so far as payment of interest on the amount payable to the contractor under the contract was concerned, there was a specific term that no interest was to be paid thereon.11. When parties to the contract had agreed to the fact that interest would not be awarded on the amount payable to the contractor under the contract, in our opinion, they were bound by their understanding. Having once agreed that the contractor would not claim any interest on the amount to be paid under the contract, he could not have claimed interest either before a civil court or before an Arbitral Tribunal.”Therefore, it is clear that the appellant is not entitled for any interest on the amount awarded by the Arbitral Tribunal.22. The Arbitral Tribunal had determined the amount payable to the appellant in a sum of Rs.11,13,136/- and interest of Rs.12,44,546/-. A sum of Rs.38,82,150/- was deposited by the respondent which includes the award amount, interest for the pre-reference period, pendente lite and post-award interest. We have held that the appellant is not entitled for any interest. The appellant has already withdrawn 50% of the amount deposited by the respondent, which is in excess of the award amount exclusive of interest.
### Response:
1
### Explanation:
is evident from the materials on record that the dispute had arisen between the parties in relation to the contract in question. Therefore, the appellant filed an application before the Chief Justice of the High Court of Calcutta under Section 11(6) of the 1996 Act, for appointment of an Arbitrator in terms of the contract which was allowed and an Arbitral Tribunal was constituted for adjudication of the dispute. The Arbitrator after giving the parties opportunities of hearing and after considering the materials placed on record made and published the award.It is also necessary to observe that intervention of the court is envisaged only in few circumstances like fraud or bias by the Arbitrators, violation of natural justice. The court cannot correct the errors of the Arbitrators.Therefore, the Division Bench was not justified while considering the arbitrability of the disputes for the first time, particularly, when the respondent has not urged the issue relating to ‘No Claimsbefore the Chief Justice, Arbitral Tribunal or before the learned Singleit is not clear from M/s. Ambica Construction (supra) as to whether it was decided under The Arbitration Act, 1940 (for short ‘the 1940or under the 1996 Act. It has relied on a judgment of Constitution Bench in Secretary, Irrigation Department, Government of Orissa and Others. vs. G.C. Roy (1992) 1 SCC 508. This judgment was with reference to the 1940 Act. In the 1940 Act, there was no provision which prohibited the Arbitrator from awarding interest for thependente lite or post award period, whereas the 1996 Act contains a specific provision which says that if the agreement prohibits award of interest for theperiod, the Arbitrator cannot award interest for the said period. Therefore, the decision in M/s. Ambica Construction (supra) cannot be made applicable to the instantit is clear that the appellant is not entitled for any interest on the amount awarded by the Arbitral Tribunal.22. The Arbitral Tribunal had determined the amount payable to the appellant in a sum of Rs.11,13,136/and interest of Rs.A sum of Rs.38,82,150/was deposited by the respondent which includes the award amount, interest for theperiod, pendente lite andinterest. We have held that the appellant is not entitled for any interest. The appellant has already withdrawn 50% of the amount deposited by the respondent, which is in excess of the award amount exclusive of interest.
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Jayantilal Vashrambhai Modia & Another Vs. M/s. Orient Bell Ltd. & Others | Leave granted. We have heard learned counsel appearing for the parties.2. The High Court dismissed the applications of the appellants filed under Section 482 of Cr.P.C. praying for quashing of the summoning order in Criminal Complaint No. 408/1 of 2012 on the ground that the appellant is a mere Director of accused Company, who cannot be prosecuted as no vicarious liability can be fastened with the appellant.3. It is submitted that the High Court passed the said order, without referring to the Agreement dated 13.08.2010 annexed to the petition disclosing that the affairs of the Company was managed by one Mr. Anil D. Kaneria, respondent accused No. 2 in the matter in question. 4. Mr. Huzefa Ahmadi, learned senior counsel appearing for the appellants has drawn our attention to the judgment of this Court reported in National Small Industries Corporation Limited v. Harmeet Singh Paintal and Another, (2010) 3 SCC 330 , wherein this Court, while dealing with an almost similar fact situation had held in paras 12 & 13 as follows:"12. It is very clear from the above provision that what is required is that the persons who are sought to be made vicariously liable for a criminal offence under Section 141 should be, 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. Every person connected with the company shall not fall within the ambit of the provision. Only those persons who were in-charge of and responsible for the conduct of the business of the company at the time of commission of an offence will be liable for criminal action. It follows from the fact that if a Director of a Company who was not in-charge of and was not responsible for the conduct of the business of the company at the relevant time, will not be liable for a criminal offence under the provisions. The liability arises from being in-charge of and responsible for the conduct of the business of the company at the relevant time when the offence was committed and not on the basis of merely holding a designation or office in a company.12) Section 141 is a penal provision creating vicarious liability, and which, as per settled law, must be strictly construed. It is therefore, not sufficient to make a bald cursory statement in a complaint that the Director (arrayed as an accused) is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the complaint should spell out as to how and in what manner Respondent No.1 was in-charge of or was responsible to the accused company for the conduct of its business. This is in consonance with strict interpretation of penal statutes, especially, where such statutes create vicarious liability." 5. We find that in the complaint, the appellant has not made a specific statement that the appellant as a Director and arrayed as an accused was in-charge and was responsible to the Company for the conduct of the business of the Company in its day-to-day affairs.6. In view of that, we do not find that the complaint which has been lodged is in consonance with the requirements made under Section 141 of the Negotiable Instruments Act and the law laid down by this court in the above judgment. 7. The order so passed by the High Court is thus set aside and we quash the order passed by the High Court vis-a-vis the appellant issuing the summons dated 03.08.2013. | 1[ds]5. We find that in the complaint, the appellant has not made a specific statement that the appellant as a Director and arrayed as an accused wasand was responsible to the Company for the conduct of the business of the Company in itsaffairs.6. In view of that, we do not find that the complaint which has been lodged is in consonance with the requirements made under Section 141 of the Negotiable Instruments Act and the law laid down by this court in the above judgment. | 1 | 650 | 94 | ### 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:
Leave granted. We have heard learned counsel appearing for the parties.2. The High Court dismissed the applications of the appellants filed under Section 482 of Cr.P.C. praying for quashing of the summoning order in Criminal Complaint No. 408/1 of 2012 on the ground that the appellant is a mere Director of accused Company, who cannot be prosecuted as no vicarious liability can be fastened with the appellant.3. It is submitted that the High Court passed the said order, without referring to the Agreement dated 13.08.2010 annexed to the petition disclosing that the affairs of the Company was managed by one Mr. Anil D. Kaneria, respondent accused No. 2 in the matter in question. 4. Mr. Huzefa Ahmadi, learned senior counsel appearing for the appellants has drawn our attention to the judgment of this Court reported in National Small Industries Corporation Limited v. Harmeet Singh Paintal and Another, (2010) 3 SCC 330 , wherein this Court, while dealing with an almost similar fact situation had held in paras 12 & 13 as follows:"12. It is very clear from the above provision that what is required is that the persons who are sought to be made vicariously liable for a criminal offence under Section 141 should be, 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. Every person connected with the company shall not fall within the ambit of the provision. Only those persons who were in-charge of and responsible for the conduct of the business of the company at the time of commission of an offence will be liable for criminal action. It follows from the fact that if a Director of a Company who was not in-charge of and was not responsible for the conduct of the business of the company at the relevant time, will not be liable for a criminal offence under the provisions. The liability arises from being in-charge of and responsible for the conduct of the business of the company at the relevant time when the offence was committed and not on the basis of merely holding a designation or office in a company.12) Section 141 is a penal provision creating vicarious liability, and which, as per settled law, must be strictly construed. It is therefore, not sufficient to make a bald cursory statement in a complaint that the Director (arrayed as an accused) is in charge of and responsible to the company for the conduct of the business of the company without anything more as to the role of the Director. But the complaint should spell out as to how and in what manner Respondent No.1 was in-charge of or was responsible to the accused company for the conduct of its business. This is in consonance with strict interpretation of penal statutes, especially, where such statutes create vicarious liability." 5. We find that in the complaint, the appellant has not made a specific statement that the appellant as a Director and arrayed as an accused was in-charge and was responsible to the Company for the conduct of the business of the Company in its day-to-day affairs.6. In view of that, we do not find that the complaint which has been lodged is in consonance with the requirements made under Section 141 of the Negotiable Instruments Act and the law laid down by this court in the above judgment. 7. The order so passed by the High Court is thus set aside and we quash the order passed by the High Court vis-a-vis the appellant issuing the summons dated 03.08.2013.
### Response:
1
### Explanation:
5. We find that in the complaint, the appellant has not made a specific statement that the appellant as a Director and arrayed as an accused wasand was responsible to the Company for the conduct of the business of the Company in itsaffairs.6. In view of that, we do not find that the complaint which has been lodged is in consonance with the requirements made under Section 141 of the Negotiable Instruments Act and the law laid down by this court in the above judgment.
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ASHISH SETH Vs. SUMIT MITTAL & ORS. | Seth Group agreed to pay Rs.1,46,58,000/- to TFIPL towards license renewal fees in respect of license nos. 34, 35 and 36 of 2007 which included not only the liability of the Seth Group, but also that of PAL Infrastructure Pvt. Ltd., ORS Infrastructure Pvt. Ltd. and Heritage Cottage Pvt. Ltd. to the extent of Rs.53,11,000/- towards license renewal fees liability. 7.3 As mentioned in clauses1.3 and 2 of MOS dated 4.5.2015, the Mittal Group is also required to borne part of the liability of PAL Infrastructure Pvt. Ltd., ORS Infrastructure Pvt. Ltd. and Heritage Cottage Pvt. Ltd. As mentioned in clause 2, as and when, PAL, ORS and Heritage contribute their share of the license fee and furnish their Bank Guarantee for the IDW amount, the Seth Group and Mittal Group will be entitled to the refund of the excess license fee paid by them and also for restriction of the IDW Bank Guarantee to the amounts actually due by them, by substituting/replacing the Bank Guarantees of Seth Group and Mittal Group by the Bank Guarantees of PAL, ORS and Heritage. As provided in clause 2, in the event of PAL, ORS and Heritage fail or neglect to pay the amounts due by them within 120 days from the date of deposit by the Seth Group, the Seth Group is authorized in its own name, to initiate appropriate legal proceedings against the defaulter/s, to the extent of the amount advanced by the Seth Group along with interest, and/or in respect of Bank Guarantees so furnished. Even as per clause 1.3.1, the Seth Group was required to pay the aforesaid amount of Rs.1,46,58,000/- to TFIPL in the form of demand draft drawn in favour of Directorate of Town and Country Planning, Haryana, together with the balance licensee fee made available by the Mittal Group in terms of clause 5.4. Clause 5.4 is reproduced hereinabove and as per the said clause, the Mittal Group shall pay/cause to be paid the balance license fee as well as the balance IDW Bank Guarantee (i.e. total amount payable on account of TFIPL less the Seth Group share as stated in clauses 1.3 and 1.4) to DTCP, Haryana for renewal of license nos. 34, 35, and 36 of 2007 in the name of TFIPL. 7.4 Even as per Clause G – Renewal of License, the Seth Group is required to provide documents/undertakings with respect to the lands falling to share of the Seth Group under agreement dated 15.06.2007, i.e. (i) status of construction/allotment of EWS flats, and (ii) service plan status, its drawing, estimates and its approval from HUDA, Chandigarh annexed as Annexure-16 to MOS dated 4.5.2015 to enable Mittal Group to apply for renewal of license. Even as per clause 18, on application made for renewal of license in terms of clause 17, Mittal Group will secure renewal of license within 90 days and all administrative and miscellaneous charges, compounding fee, penalties and other charges levied and payable by PAL, ORS and Heritage for renewal of license shall be paid by the Mittal Group and all such charges in respect of FIPL agreement shall be exclusively paid/borne by Seth Group by similarly paying to TFIPL immediately on being demanded. 7.5 Therefore, on conjoint reading of the relevant clauses of MOS dated 4.5.2015, the liability of the Seth Group towards the license renewal fees would be with respect to the lands falling to the share of the Seth Group, i.e., 14.80 acres, and additionally, the Seth Group is also required to pay ½ of the liability of PAL, ORS and Heritage towards the license renewal fees and the Mittal Group is liable to pay the balance license renewal fees, i.e., total amount payable on account of TFIPL less the Seth Group share, including ½ of the total liability of PAL, ORS and Heritage towards the license renewal fees. The payment of the license renewal fees payable by PAL, ORS and Heritage paid by the Seth Group and the Mittal Group, as stated hereinabove, would be as advance and as and when PAL, ORS and Heritage contribute their share of the license fee, the Seth Group and the Mittal Group will be entitled to the refund of the excess license fee paid by them. As provided in clause 2, in the event of PAL, ORS and Heritage fail or neglect to pay the amounts due by them, as aforesaid, within 120 days from the date of deposit by the Seth Group, the Seth Group is authorized in its own name to initiate appropriate legal proceedings against the defaulter/s, to the extent of the amount advanced by the Seth Group along with interest. 8. Now so far as the requisite documents to be supplied by the Seth Group and the prayer on behalf of the Mittal Group in I.A. No. 96206 of 2020 directing the Seth Group to comply with the other formalities as contained in para 17 of the order dated 5.5.2015 and to furnish the requisite documents to the Maximal Infrastructure Pvt. Ltd. as entailed in the Check-List formulated by DTCP, Haryana for renewal of license, in a time bound manner, is concerned, as such, the Seth Group is required to provide documents/undertakings with respect to the lands falling to share of the Seth Group under agreement dated 15.06.2007, i.e. (i) status of construction/allotment of EWS flats, and (ii) service plan status, its drawing, estimates and its approval from HUDA, Chandigarh annexed as Annexure-16 to MOS dated 4.5.2015 to enable Mittal Group to apply for renewal of license. It is specifically mentioned in clause G (titled Renewal of License), para 17, that Seth Group does not have any further documents in this regard. It is further clarified that in case any indemnity, undertaking, letter and/or similar document is required to be executed after filing of the application for renewal of license, pertaining to the lands falling in the share of the Seth Group under agreement dated 15.06.2007, Seth Group shall do the needful at the earliest. | 0[ds]7. Having heard the learned counsel for the respective parties and considering the earlier order passed by this Court dated 24.04.2020, it cannot be disputed that as directed by this Court the Mittal Group is to renew license numbers 34, 35, and 36 of 2007 and for which the application is to be submitted by the Mittal Group – TFIPL. For the licensees to be renewed, the license renewal fee is required to be paid and only thereafter on payment of EDC by the respective groups – Seth Group and Mittal Group, as determined in the order dated 24.04.2020 and on payment of other charges due and payable under the law, the aforesaid license numbers 34, 35 and 36 of 2007 can be bifurcated. So, first of all, the renewal license fee is required to be paid.7.2 It is required to be noted that as noted in order dated 24.04.2020, the Seth Group earlier deposited a sum of Rs.1.47 crores towards the license renewal fees to DTCP, Haryana. It is also required to be noted that the aforesaid three license numbers 34, 35 and 36 of 2007 are with respect to the entire 48.03 acres of Sector 89 land, out of which the development rights of only 14.80 acres have been given to the Seth Group. Even, bifurcation of licensees shall be with respect to 14.80 acres in favour of the Seth Group and the remaining 33.23 acres in favour of the Mittal Group and othersTherefore, the liability of the Seth Group towards the license renewal fees would be to the extent of 14.80 acres of Sector 89 land only. However, it is required to be noted that as per clause 1.3 of MOS dated 4.5.2015, the Seth Group agreed to pay Rs.1,46,58,000/- to TFIPL towards license renewal fees in respect of license nos. 34, 35 and 36 of 2007 which included not only the liability of the Seth Group, but also that of PAL Infrastructure Pvt. Ltd., ORS Infrastructure Pvt. Ltd. and Heritage Cottage Pvt. Ltd. to the extent of Rs.53,11,000/- towards license renewal fees liability.7.5 Therefore, on conjoint reading of the relevant clauses of MOS dated 4.5.2015, the liability of the Seth Group towards the license renewal fees would be with respect to the lands falling to the share of the Seth Group, i.e., 14.80 acres, and additionally, the Seth Group is also required to pay ½ of the liability of PAL, ORS and Heritage towards the license renewal fees and the Mittal Group is liable to pay the balance license renewal fees, i.e., total amount payable on account of TFIPL less the Seth Group share, including ½ of the total liability of PAL, ORS and Heritage towards the license renewal fees. The payment of the license renewal fees payable by PAL, ORS and Heritage paid by the Seth Group and the Mittal Group, as stated hereinabove, would be as advance and as and when PAL, ORS and Heritage contribute their share of the license fee, the Seth Group and the Mittal Group will be entitled to the refund of the excess license fee paid by them. As provided in clause 2, in the event of PAL, ORS and Heritage fail or neglect to pay the amounts due by them, as aforesaid, within 120 days from the date of deposit by the Seth Group, the Seth Group is authorized in its own name to initiate appropriate legal proceedings against the defaulter/s, to the extent of the amount advanced by the Seth Group along with interest.8. Now so far as the requisite documents to be supplied by the Seth Group and the prayer on behalf of the Mittal Group in I.A. No. 96206 of 2020 directing the Seth Group to comply with the other formalities as contained in para 17 of the order dated 5.5.2015 and to furnish the requisite documents to the Maximal Infrastructure Pvt. Ltd. as entailed in the Check-List formulated by DTCP, Haryana for renewal of license, in a time bound manner, is concerned, as such, the Seth Group is required to provide documents/undertakings with respect to the lands falling to share of the Seth Group under agreement dated 15.06.2007, i.e. (i) status of construction/allotment of EWS flats, and (ii) service plan status, its drawing, estimates and its approval from HUDA, Chandigarh annexed as Annexure-16 to MOS dated 4.5.2015 to enable Mittal Group to apply for renewal of license. It is specifically mentioned in clause G (titled Renewal of License), para 17, that Seth Group does not have any further documents in this regard. It is further clarified that in case any indemnity, undertaking, letter and/or similar document is required to be executed after filing of the application for renewal of license, pertaining to the lands falling in the share of the Seth Group under agreement dated 15.06.2007, Seth Group shall do the needful at the earliest.. However, it is reported that the earlier EDC Relief Policy has expired by the efflux of time and the same has been replaced by the subsequent policy dated 6.7.2020/10.08.2020,Learned counsel appearing on behalf of both the parties – Seth Group and Mittal Group have stated at the bar that they want to avail the benefit of the aforesaid one time settlement scheme, Samadhan Se Vikas, as per option 1(a) under which their liability would be to deposit 100% of the outstanding principal amount against EDC as well as 25% of the accumulated interest and penal interest, within a period of six months from the date of notification of this scheme and the balance 75% of the accumulated interest and penal interest shall be waived off. The liability of the Seth Group as well as Mittal Group (TFIPL) under the new scheme under option 1(a), as per communication dated 17.09.2020 from the office of the Directorate of Town and Country Planning, Haryana, is as under:To avail One Time Settlement Scheme, if both groups submits mutual consent and opt under option 1(a), then the payable amount is an under:-(Rs.In Lacs)Therefore, the liability of the Seth Group towards the license renewal fees would be to the extent of 14.80 acres of Sector 89 land only. However, it is required to be noted that as per clause 1.3 of MOS dated 4.5.2015, the Seth Group agreed to pay Rs.1,46,58,000/- to TFIPL towards license renewal fees in respect of license nos. 34, 35 and 36 of 2007 which included not only the liability of the Seth Group, but also that of PAL Infrastructure Pvt. Ltd., ORS Infrastructure Pvt. Ltd. and Heritage Cottage Pvt. Ltd. to the extent of Rs.53,11,000/- towards license renewal fees liability.7.3 As mentioned in clauses1.3 and 2 of MOS dated 4.5.2015, the Mittal Group is also required to borne part of the liability of PAL Infrastructure Pvt. Ltd., ORS Infrastructure Pvt. Ltd. and Heritage Cottage Pvt. Ltd. As mentioned in clause 2, as and when, PAL, ORS and Heritage contribute their share of the license fee and furnish their Bank Guarantee for the IDW amount, the Seth Group and Mittal Group will be entitled to the refund of the excess license fee paid by them and also for restriction of the IDW Bank Guarantee to the amounts actually due by them, by substituting/replacing the Bank Guarantees of Seth Group and Mittal Group by the Bank Guarantees of PAL, ORS and Heritage. As provided in clause 2, in the event of PAL, ORS and Heritage fail or neglect to pay the amounts due by them within 120 days from the date of deposit by the Seth Group, the Seth Group is authorized in its own name, to initiate appropriate legal proceedings against the defaulter/s, to the extent of the amount advanced by the Seth Group along with interest, and/or in respect of Bank Guarantees so furnished.Even as per clause 1.3.1, the Seth Group was required to pay the aforesaid amount of Rs.1,46,58,000/- to TFIPL in the form of demand draft drawn in favour of Directorate of Town and Country Planning, Haryana, together with the balance licensee fee made available by the Mittal Group in terms of clause 5.4. Clause 5.4 is reproduced hereinabove and as per the said clause, the Mittal Group shall pay/cause to be paid the balance license fee as well as the balance IDW Bank Guarantee (i.e. total amount payable on account of TFIPL less the Seth Group share as stated in clauses 1.3 and 1.4) to DTCP, Haryana for renewal of license nos. 34, 35, and 36 of 2007 in the name of TFIPL.7.4 Even as per Clause G – Renewal of License, the Seth Group is required to provide documents/undertakings with respect to the lands falling to share of the Seth Group under agreement dated 15.06.2007, i.e. (i) status of construction/allotment of EWS flats, and (ii) service plan status, its drawing, estimates and its approval from HUDA, Chandigarh annexed as Annexure-16 to MOS dated 4.5.2015 to enable Mittal Group to apply for renewal of license. Even as per clause 18, on application made for renewal of license in terms of clause 17, Mittal Group will secure renewal of license within 90 days and all administrative and miscellaneous charges, compounding fee, penalties and other charges levied and payable by PAL, ORS and Heritage for renewal of license shall be paid by the Mittal Group and all such charges in respect of FIPL agreement shall be exclusively paid/borne by Seth Group by similarly paying to TFIPL immediately on being demanded.The liability of the Seth Group as well as Mittal Group (TFIPL) under the new scheme under option 1(a), as per communication dated 17.09.2020 from the office of the Directorate of Town and Country Planning, Haryana, is as under:To avail One Time Settlement Scheme, if both groups submits mutual consent and opt under option 1(a), then the payable amount is an under:-(Rs.In Lacs) | 0 | 3,755 | 1,834 | ### 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:
Seth Group agreed to pay Rs.1,46,58,000/- to TFIPL towards license renewal fees in respect of license nos. 34, 35 and 36 of 2007 which included not only the liability of the Seth Group, but also that of PAL Infrastructure Pvt. Ltd., ORS Infrastructure Pvt. Ltd. and Heritage Cottage Pvt. Ltd. to the extent of Rs.53,11,000/- towards license renewal fees liability. 7.3 As mentioned in clauses1.3 and 2 of MOS dated 4.5.2015, the Mittal Group is also required to borne part of the liability of PAL Infrastructure Pvt. Ltd., ORS Infrastructure Pvt. Ltd. and Heritage Cottage Pvt. Ltd. As mentioned in clause 2, as and when, PAL, ORS and Heritage contribute their share of the license fee and furnish their Bank Guarantee for the IDW amount, the Seth Group and Mittal Group will be entitled to the refund of the excess license fee paid by them and also for restriction of the IDW Bank Guarantee to the amounts actually due by them, by substituting/replacing the Bank Guarantees of Seth Group and Mittal Group by the Bank Guarantees of PAL, ORS and Heritage. As provided in clause 2, in the event of PAL, ORS and Heritage fail or neglect to pay the amounts due by them within 120 days from the date of deposit by the Seth Group, the Seth Group is authorized in its own name, to initiate appropriate legal proceedings against the defaulter/s, to the extent of the amount advanced by the Seth Group along with interest, and/or in respect of Bank Guarantees so furnished. Even as per clause 1.3.1, the Seth Group was required to pay the aforesaid amount of Rs.1,46,58,000/- to TFIPL in the form of demand draft drawn in favour of Directorate of Town and Country Planning, Haryana, together with the balance licensee fee made available by the Mittal Group in terms of clause 5.4. Clause 5.4 is reproduced hereinabove and as per the said clause, the Mittal Group shall pay/cause to be paid the balance license fee as well as the balance IDW Bank Guarantee (i.e. total amount payable on account of TFIPL less the Seth Group share as stated in clauses 1.3 and 1.4) to DTCP, Haryana for renewal of license nos. 34, 35, and 36 of 2007 in the name of TFIPL. 7.4 Even as per Clause G – Renewal of License, the Seth Group is required to provide documents/undertakings with respect to the lands falling to share of the Seth Group under agreement dated 15.06.2007, i.e. (i) status of construction/allotment of EWS flats, and (ii) service plan status, its drawing, estimates and its approval from HUDA, Chandigarh annexed as Annexure-16 to MOS dated 4.5.2015 to enable Mittal Group to apply for renewal of license. Even as per clause 18, on application made for renewal of license in terms of clause 17, Mittal Group will secure renewal of license within 90 days and all administrative and miscellaneous charges, compounding fee, penalties and other charges levied and payable by PAL, ORS and Heritage for renewal of license shall be paid by the Mittal Group and all such charges in respect of FIPL agreement shall be exclusively paid/borne by Seth Group by similarly paying to TFIPL immediately on being demanded. 7.5 Therefore, on conjoint reading of the relevant clauses of MOS dated 4.5.2015, the liability of the Seth Group towards the license renewal fees would be with respect to the lands falling to the share of the Seth Group, i.e., 14.80 acres, and additionally, the Seth Group is also required to pay ½ of the liability of PAL, ORS and Heritage towards the license renewal fees and the Mittal Group is liable to pay the balance license renewal fees, i.e., total amount payable on account of TFIPL less the Seth Group share, including ½ of the total liability of PAL, ORS and Heritage towards the license renewal fees. The payment of the license renewal fees payable by PAL, ORS and Heritage paid by the Seth Group and the Mittal Group, as stated hereinabove, would be as advance and as and when PAL, ORS and Heritage contribute their share of the license fee, the Seth Group and the Mittal Group will be entitled to the refund of the excess license fee paid by them. As provided in clause 2, in the event of PAL, ORS and Heritage fail or neglect to pay the amounts due by them, as aforesaid, within 120 days from the date of deposit by the Seth Group, the Seth Group is authorized in its own name to initiate appropriate legal proceedings against the defaulter/s, to the extent of the amount advanced by the Seth Group along with interest. 8. Now so far as the requisite documents to be supplied by the Seth Group and the prayer on behalf of the Mittal Group in I.A. No. 96206 of 2020 directing the Seth Group to comply with the other formalities as contained in para 17 of the order dated 5.5.2015 and to furnish the requisite documents to the Maximal Infrastructure Pvt. Ltd. as entailed in the Check-List formulated by DTCP, Haryana for renewal of license, in a time bound manner, is concerned, as such, the Seth Group is required to provide documents/undertakings with respect to the lands falling to share of the Seth Group under agreement dated 15.06.2007, i.e. (i) status of construction/allotment of EWS flats, and (ii) service plan status, its drawing, estimates and its approval from HUDA, Chandigarh annexed as Annexure-16 to MOS dated 4.5.2015 to enable Mittal Group to apply for renewal of license. It is specifically mentioned in clause G (titled Renewal of License), para 17, that Seth Group does not have any further documents in this regard. It is further clarified that in case any indemnity, undertaking, letter and/or similar document is required to be executed after filing of the application for renewal of license, pertaining to the lands falling in the share of the Seth Group under agreement dated 15.06.2007, Seth Group shall do the needful at the earliest.
### Response:
0
### Explanation:
order dated 5.5.2015 and to furnish the requisite documents to the Maximal Infrastructure Pvt. Ltd. as entailed in the Check-List formulated by DTCP, Haryana for renewal of license, in a time bound manner, is concerned, as such, the Seth Group is required to provide documents/undertakings with respect to the lands falling to share of the Seth Group under agreement dated 15.06.2007, i.e. (i) status of construction/allotment of EWS flats, and (ii) service plan status, its drawing, estimates and its approval from HUDA, Chandigarh annexed as Annexure-16 to MOS dated 4.5.2015 to enable Mittal Group to apply for renewal of license. It is specifically mentioned in clause G (titled Renewal of License), para 17, that Seth Group does not have any further documents in this regard. It is further clarified that in case any indemnity, undertaking, letter and/or similar document is required to be executed after filing of the application for renewal of license, pertaining to the lands falling in the share of the Seth Group under agreement dated 15.06.2007, Seth Group shall do the needful at the earliest.. However, it is reported that the earlier EDC Relief Policy has expired by the efflux of time and the same has been replaced by the subsequent policy dated 6.7.2020/10.08.2020,Learned counsel appearing on behalf of both the parties – Seth Group and Mittal Group have stated at the bar that they want to avail the benefit of the aforesaid one time settlement scheme, Samadhan Se Vikas, as per option 1(a) under which their liability would be to deposit 100% of the outstanding principal amount against EDC as well as 25% of the accumulated interest and penal interest, within a period of six months from the date of notification of this scheme and the balance 75% of the accumulated interest and penal interest shall be waived off. The liability of the Seth Group as well as Mittal Group (TFIPL) under the new scheme under option 1(a), as per communication dated 17.09.2020 from the office of the Directorate of Town and Country Planning, Haryana, is as under:To avail One Time Settlement Scheme, if both groups submits mutual consent and opt under option 1(a), then the payable amount is an under:-(Rs.In Lacs)Therefore, the liability of the Seth Group towards the license renewal fees would be to the extent of 14.80 acres of Sector 89 land only. However, it is required to be noted that as per clause 1.3 of MOS dated 4.5.2015, the Seth Group agreed to pay Rs.1,46,58,000/- to TFIPL towards license renewal fees in respect of license nos. 34, 35 and 36 of 2007 which included not only the liability of the Seth Group, but also that of PAL Infrastructure Pvt. Ltd., ORS Infrastructure Pvt. Ltd. and Heritage Cottage Pvt. Ltd. to the extent of Rs.53,11,000/- towards license renewal fees liability.7.3 As mentioned in clauses1.3 and 2 of MOS dated 4.5.2015, the Mittal Group is also required to borne part of the liability of PAL Infrastructure Pvt. Ltd., ORS Infrastructure Pvt. Ltd. and Heritage Cottage Pvt. Ltd. As mentioned in clause 2, as and when, PAL, ORS and Heritage contribute their share of the license fee and furnish their Bank Guarantee for the IDW amount, the Seth Group and Mittal Group will be entitled to the refund of the excess license fee paid by them and also for restriction of the IDW Bank Guarantee to the amounts actually due by them, by substituting/replacing the Bank Guarantees of Seth Group and Mittal Group by the Bank Guarantees of PAL, ORS and Heritage. As provided in clause 2, in the event of PAL, ORS and Heritage fail or neglect to pay the amounts due by them within 120 days from the date of deposit by the Seth Group, the Seth Group is authorized in its own name, to initiate appropriate legal proceedings against the defaulter/s, to the extent of the amount advanced by the Seth Group along with interest, and/or in respect of Bank Guarantees so furnished.Even as per clause 1.3.1, the Seth Group was required to pay the aforesaid amount of Rs.1,46,58,000/- to TFIPL in the form of demand draft drawn in favour of Directorate of Town and Country Planning, Haryana, together with the balance licensee fee made available by the Mittal Group in terms of clause 5.4. Clause 5.4 is reproduced hereinabove and as per the said clause, the Mittal Group shall pay/cause to be paid the balance license fee as well as the balance IDW Bank Guarantee (i.e. total amount payable on account of TFIPL less the Seth Group share as stated in clauses 1.3 and 1.4) to DTCP, Haryana for renewal of license nos. 34, 35, and 36 of 2007 in the name of TFIPL.7.4 Even as per Clause G – Renewal of License, the Seth Group is required to provide documents/undertakings with respect to the lands falling to share of the Seth Group under agreement dated 15.06.2007, i.e. (i) status of construction/allotment of EWS flats, and (ii) service plan status, its drawing, estimates and its approval from HUDA, Chandigarh annexed as Annexure-16 to MOS dated 4.5.2015 to enable Mittal Group to apply for renewal of license. Even as per clause 18, on application made for renewal of license in terms of clause 17, Mittal Group will secure renewal of license within 90 days and all administrative and miscellaneous charges, compounding fee, penalties and other charges levied and payable by PAL, ORS and Heritage for renewal of license shall be paid by the Mittal Group and all such charges in respect of FIPL agreement shall be exclusively paid/borne by Seth Group by similarly paying to TFIPL immediately on being demanded.The liability of the Seth Group as well as Mittal Group (TFIPL) under the new scheme under option 1(a), as per communication dated 17.09.2020 from the office of the Directorate of Town and Country Planning, Haryana, is as under:To avail One Time Settlement Scheme, if both groups submits mutual consent and opt under option 1(a), then the payable amount is an under:-(Rs.In Lacs)
|
Om Prakash And Others Vs. State Of Utter Pradesh | had existed. 21. To us, the apprehension expressed by Mr. Mehta appears to be unfounded. 22. The Proviso in question created only a disability. The effect of the repeal is to remove that disability or restriction on the landowners right to receive 15 per cent solatium u/S. 23(2) of the Land Acquisition Act. Further, the assessment of compensation is not a matter past and closed. It is still pending in reference before the Tribunal. The repeal is final and unconditional. There is nothing in the repealing Act which saves such pending references from its operation. The Tribunal, therefore, will have to take cognizance of the repeal and for the purpose of disposing of the reference treat the Proviso as having never existed. Thus, the validity or otherwise of modification (i) has become, more or less, academic. 23. The last contention of Mr. Mehta is that by virtue of Section 577 of the Adhiniyam, the provisions of Section 364 (4) which peremptorily requires a Scheme to be completed up to the date of the award, within a period of five years, had become applicable to the Mumfordganj Housing Scheme, also. Since this Scheme - proceeds the argument - has not been completed within the requisite time-limit it has come to an end by operation of law, with consequent release of the appellants property. 24. Mr. Dikshit contends that section 365 (4) cannot apply to this Scheme, because the U. P. Town Improvement Act, 1919 under which it was initiated had no such provision. The point pressed into argument is that so long as this Scheme is not superseded by any notification or order under clause (a) to Section 577, it will continue to be in force without any time-limit. 25. Mr. Ganpule, appearing for the Mahapalika has, in the alternative chosen to steer a middle course. His stand is that even if Section 365 (4), applies to this Scheme then also the time-limit of five years will start running from the date of the commencement of the Adhiniyam i.e. February 1, 1960. 26. In order to appreciate the contentions canvassed, it will be profitable to set out the material parts of Section 365 (4) and Section 577, as they stood at the relevant time hereunder:"365 (1) ... ... ... (2) ... ... ... (3) ... ... ... (4) All acquisition of land and interest in land for an improvement scheme authorised under this Chapter shall be completed at least up to the stage of making of awards within a period of five years from the date of the notification of the scheme under Section 363 any land in respect of which the acquisition is not so completed and the owner and occupier thereof shall cease to be subject to any liabilities under this Chapter; Provided that the State Government may in any particular case before the expiry of such period and for reasons to be recorded in writing extend the period by one year.... x x x." Section 577: "Continuation of appointments taxes, budget, estimate, assessment etc. - Save as expressly provided by the provisions of this Chapter or by a notification issued under Section 579 - (a) any appointment, delegation notification, notice tax, order, direction scheme licence permission, registration, rule, bye-law, regulation form made, issued, imposed or granted under...the U. P. Town Improvement Act, 1919...in so far as it is not inconsistent with the provisions of this Act continue in force until it is superseded by any appointment, delegation, notification, notice, tax, order, direction. Scheme, licence, permission, registration rule, bye-law or form made, issued imposed or granted under this Act or any other law as aforesaid, as the case may be; (b) any notice or notification or sanction of any improvement scheme for the area included in the City issued under the U. P. Town Improvement Act, 1919....shall be deemed to have been issued under this Act, and all further proceedings in furtherance of such scheme may be taken accordingly; (c) all proceedings for acquisition of land whether in pursuance of any scheme of improvement or otherwise initiated under the U. P. Town Improvement Act, 1919....may be continued as if they had been initiated under this Act; (d) to (g) .... ... ..." 27. The interpretation suggested by Mr. Dikshit is possible, only if we read clause (a) of Section 577 in isolation and do not give full effect to the words "in so far as it is not inconsistent with the provisions of this Act" occurring in that clause. Such an interpretation, we think, with respect, will lead to manifest contradiction and absurdity. It will mean that while fresh Scheme initiated under the Adhiniyam must be completed with speed within the prescribed time-limit, far older schemes commenced under the repealed Act, - where the need for expeditious disposal is the greatest - can continue indefinitely for any length of time. The whimsical construction can be avoided if we read clause (a) along with clauses (b) and (c) of the same section, and give it a reasonable meaning with the aid of the legal fiction implicit in those clauses. Thus construed, the Scheme in the instant case, though notified under S. 42 of the repealed Act in 1944, would, in view of the deeming provision in clause (b) of S. 577, be deemed to have been notified under Section 363 of the Adhiniyam, on the date on which the Adhiniyam came into force i.e. on February 1, 1960. The five-year period specified in S. 365 (4) therefore, will be deemed to have commenced from February 1, 1960. The Collector had made his award on April 13, 1961 much within the time-limit prescribed by S. 365 (4). 28. In the above view of the matter, we negative the contention of Mr. Mehta. 29. For the foregoing reasons, we hold that the impugned modifications (i), (ii) and (iii) suffer from the vice of discrimination and as such, contravene the guarantee of equal protection of laws enshrined in Art. 14 of the Constitution. | 1[ds]The mere fact that where the land is to be compulsorily acquired for a Scheme costing less than Rupees 10/- lakhs under Chapter XIV, no prior permission of the State is required for issuing the necessary notifications under Sections 357 and 363 of the Adhiniyam (which take the place of notifications under Sections 4 and 6 of the Land Acquisition Act), it does not mean that in such cases, the acquiring authority is the Mahapalika and not the State Government15. The caption of this para read along with its contents shows that the land has first to be acquired by the Collector for the Government and thereafter it is transferred by the Government to the Mahapalika only on payment of its costs. In this connection it is important to recall the provisions of Section 16 of the Land Acquisition Act, 1894, which has not in any way been modified by the Adhiniyam. According to Section 16 "when the Collector has made his award under Section 11, he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrances". Thus, it is clear beyond all manner of doubt that whenever land is to be compulsorily acquired for the Mahapalika - be it for a purpose of the Scheme under Chapter XIV or for any other purpose under Section 130 - the acquiring authority is the Government. There is no material difference between the impugned provisions of the Adhiniyam and those which were in question before this Court in Nagpur Improvement Trusts case, (1973) 1 SCC 500 = (AIR 1973 SC 689 ) (supra). The ratio of the aforesaid case therefore will apply fully to the impugned provisions mentioned at (i), (ii) and (iii)16.There can be no dispute that the Government can acquire land for a public purpose including that of the Mahapalika or other local body, either under the unmodified Land Acquisition act, 1894, or under that Act as modified by the Adhiniyam. If it chooses the first course, then the land-owners concerned will be entitled to better compensation, including 15% solatium; the potential value of the land etc; nor will there be any impediment or hurdle - such as that enacted by Section 372 (1) of the Adhiniyam - in the way of such land-owners, dissatisfied by the Collectors award, to approach the Court under Section 18 of that Act. If the Government, for the same purpose, resorts to the land Acquisition Act as modified by the Adhiniyam, the land-owner (s) concerned will suffer from all the disabilities or restrictions envisaged by the modifications. In this way, the impugned legislation enables the Government to discriminate in the matter of acquiring land between similarly situated landowners17. The impugned modifications do not satisfy the well-known tests of reasonable classification which is permissible for the purpose of legislation. It is not founded on any intelligible differentia, nor has this differentia a rational nexus with the object sought to be achieved, namely, compulsory acquisition of land for a public purpose. It is not necessary to dilate further on this point as this matter stands concluded by this Courts decision in Nagpur Improvement Trusts case by the ratio of which we are bound27. The interpretation suggested by Mr. Dikshit is possible, only if we read clause (a) of Section 577 in isolation and do not give full effect to the words "in so far as it is not inconsistent with the provisions of this Act" occurring in that clause. Such an interpretation, we think, with respect, will lead to manifest contradiction and absurdity. It will mean that while fresh Scheme initiated under the Adhiniyam must be completed with speed within the prescribed time-limit, far older schemes commenced under the repealed Act, - where the need for expeditious disposal is the greatest - can continue indefinitely for any length of time. The whimsical construction can be avoided if we read clause (a) along with clauses (b) and (c) of the same section, and give it a reasonable meaning with the aid of the legal fiction implicit in those clauses. Thus construed, the Scheme in the instant case, though notified under S. 42 of the repealed Act in 1944, would, in view of the deeming provision in clause (b) of S. 577, be deemed to have been notified under Section 363 of the Adhiniyam, on the date on which the Adhiniyam came into force i.e. on February 1, 1960. The five-year period specified in S. 365 (4) therefore, will be deemed to have commenced from February 1, 1960. The Collector had made his award on April 13, 1961 much within the time-limit prescribed by S. 365 (4)29. For the foregoing reasons, we hold that the impugned modifications (i), (ii) and (iii) suffer from the vice of discrimination and as such, contravene the guarantee of equal protection of laws enshrined in Art. 14 of the Constitution. | 1 | 3,925 | 931 | ### 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:
had existed. 21. To us, the apprehension expressed by Mr. Mehta appears to be unfounded. 22. The Proviso in question created only a disability. The effect of the repeal is to remove that disability or restriction on the landowners right to receive 15 per cent solatium u/S. 23(2) of the Land Acquisition Act. Further, the assessment of compensation is not a matter past and closed. It is still pending in reference before the Tribunal. The repeal is final and unconditional. There is nothing in the repealing Act which saves such pending references from its operation. The Tribunal, therefore, will have to take cognizance of the repeal and for the purpose of disposing of the reference treat the Proviso as having never existed. Thus, the validity or otherwise of modification (i) has become, more or less, academic. 23. The last contention of Mr. Mehta is that by virtue of Section 577 of the Adhiniyam, the provisions of Section 364 (4) which peremptorily requires a Scheme to be completed up to the date of the award, within a period of five years, had become applicable to the Mumfordganj Housing Scheme, also. Since this Scheme - proceeds the argument - has not been completed within the requisite time-limit it has come to an end by operation of law, with consequent release of the appellants property. 24. Mr. Dikshit contends that section 365 (4) cannot apply to this Scheme, because the U. P. Town Improvement Act, 1919 under which it was initiated had no such provision. The point pressed into argument is that so long as this Scheme is not superseded by any notification or order under clause (a) to Section 577, it will continue to be in force without any time-limit. 25. Mr. Ganpule, appearing for the Mahapalika has, in the alternative chosen to steer a middle course. His stand is that even if Section 365 (4), applies to this Scheme then also the time-limit of five years will start running from the date of the commencement of the Adhiniyam i.e. February 1, 1960. 26. In order to appreciate the contentions canvassed, it will be profitable to set out the material parts of Section 365 (4) and Section 577, as they stood at the relevant time hereunder:"365 (1) ... ... ... (2) ... ... ... (3) ... ... ... (4) All acquisition of land and interest in land for an improvement scheme authorised under this Chapter shall be completed at least up to the stage of making of awards within a period of five years from the date of the notification of the scheme under Section 363 any land in respect of which the acquisition is not so completed and the owner and occupier thereof shall cease to be subject to any liabilities under this Chapter; Provided that the State Government may in any particular case before the expiry of such period and for reasons to be recorded in writing extend the period by one year.... x x x." Section 577: "Continuation of appointments taxes, budget, estimate, assessment etc. - Save as expressly provided by the provisions of this Chapter or by a notification issued under Section 579 - (a) any appointment, delegation notification, notice tax, order, direction scheme licence permission, registration, rule, bye-law, regulation form made, issued, imposed or granted under...the U. P. Town Improvement Act, 1919...in so far as it is not inconsistent with the provisions of this Act continue in force until it is superseded by any appointment, delegation, notification, notice, tax, order, direction. Scheme, licence, permission, registration rule, bye-law or form made, issued imposed or granted under this Act or any other law as aforesaid, as the case may be; (b) any notice or notification or sanction of any improvement scheme for the area included in the City issued under the U. P. Town Improvement Act, 1919....shall be deemed to have been issued under this Act, and all further proceedings in furtherance of such scheme may be taken accordingly; (c) all proceedings for acquisition of land whether in pursuance of any scheme of improvement or otherwise initiated under the U. P. Town Improvement Act, 1919....may be continued as if they had been initiated under this Act; (d) to (g) .... ... ..." 27. The interpretation suggested by Mr. Dikshit is possible, only if we read clause (a) of Section 577 in isolation and do not give full effect to the words "in so far as it is not inconsistent with the provisions of this Act" occurring in that clause. Such an interpretation, we think, with respect, will lead to manifest contradiction and absurdity. It will mean that while fresh Scheme initiated under the Adhiniyam must be completed with speed within the prescribed time-limit, far older schemes commenced under the repealed Act, - where the need for expeditious disposal is the greatest - can continue indefinitely for any length of time. The whimsical construction can be avoided if we read clause (a) along with clauses (b) and (c) of the same section, and give it a reasonable meaning with the aid of the legal fiction implicit in those clauses. Thus construed, the Scheme in the instant case, though notified under S. 42 of the repealed Act in 1944, would, in view of the deeming provision in clause (b) of S. 577, be deemed to have been notified under Section 363 of the Adhiniyam, on the date on which the Adhiniyam came into force i.e. on February 1, 1960. The five-year period specified in S. 365 (4) therefore, will be deemed to have commenced from February 1, 1960. The Collector had made his award on April 13, 1961 much within the time-limit prescribed by S. 365 (4). 28. In the above view of the matter, we negative the contention of Mr. Mehta. 29. For the foregoing reasons, we hold that the impugned modifications (i), (ii) and (iii) suffer from the vice of discrimination and as such, contravene the guarantee of equal protection of laws enshrined in Art. 14 of the Constitution.
### Response:
1
### Explanation:
The mere fact that where the land is to be compulsorily acquired for a Scheme costing less than Rupees 10/- lakhs under Chapter XIV, no prior permission of the State is required for issuing the necessary notifications under Sections 357 and 363 of the Adhiniyam (which take the place of notifications under Sections 4 and 6 of the Land Acquisition Act), it does not mean that in such cases, the acquiring authority is the Mahapalika and not the State Government15. The caption of this para read along with its contents shows that the land has first to be acquired by the Collector for the Government and thereafter it is transferred by the Government to the Mahapalika only on payment of its costs. In this connection it is important to recall the provisions of Section 16 of the Land Acquisition Act, 1894, which has not in any way been modified by the Adhiniyam. According to Section 16 "when the Collector has made his award under Section 11, he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrances". Thus, it is clear beyond all manner of doubt that whenever land is to be compulsorily acquired for the Mahapalika - be it for a purpose of the Scheme under Chapter XIV or for any other purpose under Section 130 - the acquiring authority is the Government. There is no material difference between the impugned provisions of the Adhiniyam and those which were in question before this Court in Nagpur Improvement Trusts case, (1973) 1 SCC 500 = (AIR 1973 SC 689 ) (supra). The ratio of the aforesaid case therefore will apply fully to the impugned provisions mentioned at (i), (ii) and (iii)16.There can be no dispute that the Government can acquire land for a public purpose including that of the Mahapalika or other local body, either under the unmodified Land Acquisition act, 1894, or under that Act as modified by the Adhiniyam. If it chooses the first course, then the land-owners concerned will be entitled to better compensation, including 15% solatium; the potential value of the land etc; nor will there be any impediment or hurdle - such as that enacted by Section 372 (1) of the Adhiniyam - in the way of such land-owners, dissatisfied by the Collectors award, to approach the Court under Section 18 of that Act. If the Government, for the same purpose, resorts to the land Acquisition Act as modified by the Adhiniyam, the land-owner (s) concerned will suffer from all the disabilities or restrictions envisaged by the modifications. In this way, the impugned legislation enables the Government to discriminate in the matter of acquiring land between similarly situated landowners17. The impugned modifications do not satisfy the well-known tests of reasonable classification which is permissible for the purpose of legislation. It is not founded on any intelligible differentia, nor has this differentia a rational nexus with the object sought to be achieved, namely, compulsory acquisition of land for a public purpose. It is not necessary to dilate further on this point as this matter stands concluded by this Courts decision in Nagpur Improvement Trusts case by the ratio of which we are bound27. The interpretation suggested by Mr. Dikshit is possible, only if we read clause (a) of Section 577 in isolation and do not give full effect to the words "in so far as it is not inconsistent with the provisions of this Act" occurring in that clause. Such an interpretation, we think, with respect, will lead to manifest contradiction and absurdity. It will mean that while fresh Scheme initiated under the Adhiniyam must be completed with speed within the prescribed time-limit, far older schemes commenced under the repealed Act, - where the need for expeditious disposal is the greatest - can continue indefinitely for any length of time. The whimsical construction can be avoided if we read clause (a) along with clauses (b) and (c) of the same section, and give it a reasonable meaning with the aid of the legal fiction implicit in those clauses. Thus construed, the Scheme in the instant case, though notified under S. 42 of the repealed Act in 1944, would, in view of the deeming provision in clause (b) of S. 577, be deemed to have been notified under Section 363 of the Adhiniyam, on the date on which the Adhiniyam came into force i.e. on February 1, 1960. The five-year period specified in S. 365 (4) therefore, will be deemed to have commenced from February 1, 1960. The Collector had made his award on April 13, 1961 much within the time-limit prescribed by S. 365 (4)29. For the foregoing reasons, we hold that the impugned modifications (i), (ii) and (iii) suffer from the vice of discrimination and as such, contravene the guarantee of equal protection of laws enshrined in Art. 14 of the Constitution.
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Haryana State Industrial Development Corporation Ltd Vs. Mawasi & Others | has to be followed and practised.” 17. In Haridas Das v. Usha Rani Banik (2006) 4 SCC 78 , the Court observed: “The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing “on account of some mistake or error apparent on the face of the records or for any other sufficient reason”. The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict.” 18. In State of West Bengal v. Kamal Sengupta (2008) 8 SCC 612 , the Court considered the question whether a Tribunal established under the Administrative Tribunals Act, 1985 can review its decision, referred to Section 22(3) of that Act, some of the judicial precedents and observed: “At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier.The term “mistake or error apparent” by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment / decision.” 19. In the light of the propositions laid down in the aforementioned judgments, we shall now examine whether the petitioner has succeeded in making out a case for exercise of power by this Court under Article 137 of the Constitution read with Order 47 Rule 1 CPC. This consideration needs to be prefaced with an observation that the petitioner has not offered any explanation as to why it did not lead any evidence before the Reference Court to show that sale deed Exhibit P1 was not a bona fide transaction and the vendee had paid unusually high price for extraneous reasons. The parties had produced several sale deeds, majority of which revealed that the price of similar parcels of land varied from Rs. 6 to 7 lakhs per acre. A reading of the sale deeds would have prompted any person of ordinary prudence to make an enquiry as to why M/s. Duracell India Pvt. Ltd. (vendee) had paid more than Rs.2,42,00,000/- for 12 acres land, which have been purchased by the vendor only a year back at an average price of Rs.6 lakhs per acre. However, the fact of the matter is that neither the advocate for the petitioner nor its officers/officials, who were dealing with the cases made any attempt to lead such evidence. This may be because they were aware of the fact that at least in two other cases such parcels of land had been sold in 1993 for more than Rs.13 lakhs and Rs.15 lakhs per acre and in 1996, a sale deed was executed in respect of the land of village Naharpur Kasan at the rate of Rs.25 lakhs per acre. This omission coupled with the fact that the petitioner’s assertion about commonality of the management of two companies is ex-facie incorrect leads to an irresistible inference that judgment dated 17.8.2010 does not suffer from any error apparent on the face of the record warranting its review. Surely, in guise of seeking review, the petitioner cannot ask for de novo hearing of the appeals.20. The petitioner’s plea that the documents produced along with the review petitions could not be brought to the notice of the Reference Court and the High Court despite exercise of due diligence by its officers does not commend acceptance because it had not explained as to why the concerned officers/officials, who were very much aware of other sale transactions produced by themselves and the landowners did not try to find out the reasons for wide difference in the price of land sold by Exhibit P1 and other parcels of land sold by Exhibits P2 to P13 and Exhibits R1 to R15.21. Before concluding, we would like to add that while deciding the review petitions, this Court cannot make roving inquiries into the validity of the transaction involving the sale of land by M/s. Heritage Furniture Pvt. Ltd. to M/s. Duracell India Pvt. Ltd. or declare the same to be invalid by assuming that the vendee had paid higher price to take benefit of an anticipated joint venture agreement with a foreign company. Of course, the petitioner has not controverted the statement made by the respondents that the vendee had sold the land to M/s. Lattu Finance and Investments Ltd. in 2004 for a sum of Rs.13,62,00,000/- i.e. at the rate of Rs.1,13,00,000/- per acre. | 0[ds]This consideration needs to be prefaced with an observation that the petitioner has not offered any explanation as to why it did not lead any evidence before the Reference Court to show that sale deed Exhibit P1 was not a bona fide transaction and the vendee had paid unusually high price for extraneous reasons. The parties had produced several sale deeds, majority of which revealed that the price of similar parcels of land varied from Rs. 6 to 7 lakhs per acre. A reading of the sale deeds would have prompted any person of ordinary prudence to make an enquiry as to why M/s. Duracell India Pvt. Ltd. (vendee) had paid more than Rs.2,42,00,000/- for 12 acres land, which have been purchased by the vendor only a year back at an average price of Rs.6 lakhs per acre. However, the fact of the matter is that neither the advocate for the petitioner nor its officers/officials, who were dealing with the cases made any attempt to lead such evidence. This may be because they were aware of the fact that at least in two other cases such parcels of land had been sold in 1993 for more than Rs.13 lakhs and Rs.15 lakhs per acre and in 1996, a sale deed was executed in respect of the land of village Naharpur Kasan at the rate of Rs.25 lakhs per acre. This omission coupled with the fact that theassertion about commonality of the management of two companies is ex-facie incorrect leads to an irresistible inference that judgment dated 17.8.2010 does not suffer from any error apparent on the face of the record warranting its review. Surely, in guise of seeking review, the petitioner cannot ask for de novo hearing of the appeals.20. Theplea that the documents produced along with the review petitions could not be brought to the notice of the Reference Court and the High Court despite exercise of due diligence by its officers does not commend acceptance because it had not explained as to why the concerned officers/officials, who were very much aware of other sale transactions produced by themselves and the landowners did not try to find out the reasons for wide difference in the price of land sold by Exhibit P1 and other parcels of land sold by Exhibits P2 to P13 and Exhibits R1 to R15.21. Before concluding, we would like to add that while deciding the review petitions, this Court cannot make roving inquiries into the validity of the transaction involving the sale of land by M/s. Heritage Furniture Pvt. Ltd. to M/s. Duracell India Pvt. Ltd. or declare the same to be invalid by assuming that the vendee had paid higher price to take benefit of an anticipated joint venture agreement with a foreign company. Of course, the petitioner has not controverted the statement made by the respondents that the vendee had sold the land to M/s. Lattu Finance and Investments Ltd. in 2004 for a sum of Rs.13,62,00,000/- i.e. at the rate of Rs.1,13,00,000/- per acre. | 0 | 10,294 | 540 | ### Instruction:
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has to be followed and practised.” 17. In Haridas Das v. Usha Rani Banik (2006) 4 SCC 78 , the Court observed: “The parameters are prescribed in Order 47 CPC and for the purposes of this lis, permit the defendant to press for a rehearing “on account of some mistake or error apparent on the face of the records or for any other sufficient reason”. The former part of the rule deals with a situation attributable to the applicant, and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible. Neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhaps have argued them more forcefully and/or cited binding precedents to the court and thereby enjoyed a favourable verdict.” 18. In State of West Bengal v. Kamal Sengupta (2008) 8 SCC 612 , the Court considered the question whether a Tribunal established under the Administrative Tribunals Act, 1985 can review its decision, referred to Section 22(3) of that Act, some of the judicial precedents and observed: “At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court earlier.The term “mistake or error apparent” by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law. In any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment / decision.” 19. In the light of the propositions laid down in the aforementioned judgments, we shall now examine whether the petitioner has succeeded in making out a case for exercise of power by this Court under Article 137 of the Constitution read with Order 47 Rule 1 CPC. This consideration needs to be prefaced with an observation that the petitioner has not offered any explanation as to why it did not lead any evidence before the Reference Court to show that sale deed Exhibit P1 was not a bona fide transaction and the vendee had paid unusually high price for extraneous reasons. The parties had produced several sale deeds, majority of which revealed that the price of similar parcels of land varied from Rs. 6 to 7 lakhs per acre. A reading of the sale deeds would have prompted any person of ordinary prudence to make an enquiry as to why M/s. Duracell India Pvt. Ltd. (vendee) had paid more than Rs.2,42,00,000/- for 12 acres land, which have been purchased by the vendor only a year back at an average price of Rs.6 lakhs per acre. However, the fact of the matter is that neither the advocate for the petitioner nor its officers/officials, who were dealing with the cases made any attempt to lead such evidence. This may be because they were aware of the fact that at least in two other cases such parcels of land had been sold in 1993 for more than Rs.13 lakhs and Rs.15 lakhs per acre and in 1996, a sale deed was executed in respect of the land of village Naharpur Kasan at the rate of Rs.25 lakhs per acre. This omission coupled with the fact that the petitioner’s assertion about commonality of the management of two companies is ex-facie incorrect leads to an irresistible inference that judgment dated 17.8.2010 does not suffer from any error apparent on the face of the record warranting its review. Surely, in guise of seeking review, the petitioner cannot ask for de novo hearing of the appeals.20. The petitioner’s plea that the documents produced along with the review petitions could not be brought to the notice of the Reference Court and the High Court despite exercise of due diligence by its officers does not commend acceptance because it had not explained as to why the concerned officers/officials, who were very much aware of other sale transactions produced by themselves and the landowners did not try to find out the reasons for wide difference in the price of land sold by Exhibit P1 and other parcels of land sold by Exhibits P2 to P13 and Exhibits R1 to R15.21. Before concluding, we would like to add that while deciding the review petitions, this Court cannot make roving inquiries into the validity of the transaction involving the sale of land by M/s. Heritage Furniture Pvt. Ltd. to M/s. Duracell India Pvt. Ltd. or declare the same to be invalid by assuming that the vendee had paid higher price to take benefit of an anticipated joint venture agreement with a foreign company. Of course, the petitioner has not controverted the statement made by the respondents that the vendee had sold the land to M/s. Lattu Finance and Investments Ltd. in 2004 for a sum of Rs.13,62,00,000/- i.e. at the rate of Rs.1,13,00,000/- per acre.
### Response:
0
### Explanation:
This consideration needs to be prefaced with an observation that the petitioner has not offered any explanation as to why it did not lead any evidence before the Reference Court to show that sale deed Exhibit P1 was not a bona fide transaction and the vendee had paid unusually high price for extraneous reasons. The parties had produced several sale deeds, majority of which revealed that the price of similar parcels of land varied from Rs. 6 to 7 lakhs per acre. A reading of the sale deeds would have prompted any person of ordinary prudence to make an enquiry as to why M/s. Duracell India Pvt. Ltd. (vendee) had paid more than Rs.2,42,00,000/- for 12 acres land, which have been purchased by the vendor only a year back at an average price of Rs.6 lakhs per acre. However, the fact of the matter is that neither the advocate for the petitioner nor its officers/officials, who were dealing with the cases made any attempt to lead such evidence. This may be because they were aware of the fact that at least in two other cases such parcels of land had been sold in 1993 for more than Rs.13 lakhs and Rs.15 lakhs per acre and in 1996, a sale deed was executed in respect of the land of village Naharpur Kasan at the rate of Rs.25 lakhs per acre. This omission coupled with the fact that theassertion about commonality of the management of two companies is ex-facie incorrect leads to an irresistible inference that judgment dated 17.8.2010 does not suffer from any error apparent on the face of the record warranting its review. Surely, in guise of seeking review, the petitioner cannot ask for de novo hearing of the appeals.20. Theplea that the documents produced along with the review petitions could not be brought to the notice of the Reference Court and the High Court despite exercise of due diligence by its officers does not commend acceptance because it had not explained as to why the concerned officers/officials, who were very much aware of other sale transactions produced by themselves and the landowners did not try to find out the reasons for wide difference in the price of land sold by Exhibit P1 and other parcels of land sold by Exhibits P2 to P13 and Exhibits R1 to R15.21. Before concluding, we would like to add that while deciding the review petitions, this Court cannot make roving inquiries into the validity of the transaction involving the sale of land by M/s. Heritage Furniture Pvt. Ltd. to M/s. Duracell India Pvt. Ltd. or declare the same to be invalid by assuming that the vendee had paid higher price to take benefit of an anticipated joint venture agreement with a foreign company. Of course, the petitioner has not controverted the statement made by the respondents that the vendee had sold the land to M/s. Lattu Finance and Investments Ltd. in 2004 for a sum of Rs.13,62,00,000/- i.e. at the rate of Rs.1,13,00,000/- per acre.
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Sajeesh Babu K Vs. N.K.Santhosh | the High Court has criticized the report made by the Board and rejecting the criticism of the High Court in such academic matters, held as under: “…….We are unable to see the point of criticism of the High Court in such academic matters. Boards of Appointments are nominated by the Universities and when recommendations made by them and the appointments following on them, are challenged before courts, normally the courts should be slow to interfere with the opinions expressed by the experts. There is no allegation about mala fides against the experts who constituted the present Board; and so, we think it would normally be wise and safe for the courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than the courts generally can be………….” 17) In a recent decision of this Court in Basavaiah (Dr.) vs. Dr. H.L. Ramesh & Ors., (2010) 8 SCC 372 wherein similar issue, namely, recommendations of Expert Committee and evaluation as well as judicial review under Art. 226 of the Constitution was considered by this Court. A short question involved in that case was that whether the appellants therein (Dr. Basavaiah and Dr. Manjunath) were qualified to be appointed as Readers in Sericulture? One Dr. H.L. Ramesh, respondent in both the appeals therein challenged the appointments of both the appellants on the ground that they were not qualified for the post of Readers in Sericulture. Learned single Judge, on 11.10.2004, after examining the pleadings and scrutinizing the arguments of the parties dismissed the writ petition filed by Dr. H.L. Ramesh – respondent in W.P. No. 24300 of 1999. Dr. H.L. Ramesh, aggrieved by the said judgment, preferred a writ appeal before the Division Bench of the High Court. The writ appeal was allowed and the appointments of the appellants therein were set aside leaving it open to the University of Mysore to make fresh selection in accordance with the law. The appellants, aggrieved by the said judgment, filed special leave petitions before this Court. In the High Court as well as in this Court, the University filed affidavit stating that the Expert Committee consisting of highly qualified 5 distinguished experts evaluated the qualification, experience and the published works of the appellants and found them eligible and suitable. In such circumstance, this Court observed in paragraph Nos. 20 & 21 as under: “20. It is abundantly clear from the affidavit filed by the University that the Expert Committee had carefully examined and scrutinised the qualification, experience and published work of the appellants before selecting them for the posts of Readers in Sericulture. In our considered opinion, the Division Bench was not justified in sitting in appeal over the unanimous recommendations of the Expert Committee consisting of five experts. The Expert Committee had in fact scrutinised the merits and demerits of each candidate including qualification and the equivalent published work and its recommendations were sent to the University for appointment which were accepted by the University.21. It is the settled legal position that the courts have to show deference and consideration to the recommendation of an Expert Committee consisting of distinguished experts in the field. In the instant case, the experts had evaluated the qualification, experience and published work of the appellants and thereafter recommendations for their appointments were made. The Division Bench of the High Court ought not to have sat as an appellate court on the recommendations made by the countrys leading experts in the field of Sericulture.” 18) It is clear that in a matter of appointment/selection by an Expert Committee/Board consisting of qualified persons in the particular field, normally, the Courts should be slow to interfere with the opinions expressed by the experts, unless there is any allegation of mala fides against the experts who had constituted the Selection Committee. Admittedly, in the case on hand, there is no allegation of mala fides against the 3 experts in the Selection Committee. In such circumstances, we are of the view that it would normally be wise and safe for the courts to leave the decision of selection of this nature to the experts who are more familiar with the technicalities/nature of the work. In the case on hand, the Expert Committee evaluated the experience certificates produced by the appellant herein, interviewed him by putting specific questions as to direct sale, home delivered products, hospitality/service industry etc. and awarded marks. In such circumstances, we hold that the High Court ought not to have sat as an appellate Court on the recommendations made by the Expert Committee.19) In addition to the same, it is also asserted by the Corporation and informed to the High Court as well as to this Court that in order to ascertain the genuineness of the contents of experience certificates Exh. Nos. P2 and P3, the Corporation deputed responsible persons for verification and, in fact, they met the issuing authority and satisfied with the correctness of their statement. In view of this aspect, we are satisfied that the learned single Judge as well as the Division Bench committed an error in interfering with the decision of the Selection Committee. We have already noted that there is no allegation of mala fides against the members of the Selection Committee. Even on equity, the appellant is an unemployed M.Tech post-Graduate and the contesting respondent No.1 is working as an Assistant Engineer in the Kerala State Electricity Board, in other words, he is fully employed on the date of the selection of LPG distributorship. Looking at from any angle, the High Court was not justified in upsetting the decision of the Selection Committee, particularly, in the absence of any mala fides against them and there is no warrant for direction to re-assess the marks of the appellant afresh by excluding the marks for certificates (Exh. Nos. P2 and P3), particularly, in the light of the detailed explanation offered by the Corporation about the mode of selection.20) In the light of the above discussion, we | 1[ds]18) It is clear that in a matter of appointment/selection by an Expert Committee/Board consisting of qualified persons in the particular field, normally, the Courts should be slow to interfere with the opinions expressed by the experts, unless there is any allegation of mala fides against the experts who had constituted the Selection Committee. Admittedly, in the case on hand, there is no allegation of mala fides against the 3 experts in the Selection Committee. In such circumstances, we are of the view that it would normally be wise and safe for the courts to leave the decision of selection of this nature to the experts who are more familiar with the technicalities/nature of the work. In the case on hand, the Expert Committee evaluated the experience certificates produced by the appellant herein, interviewed him by putting specific questions as to direct sale, home delivered products, hospitality/service industry etc. and awarded marks. In such circumstances, we hold that the High Court ought not to have sat as an appellate Court on the recommendations made by the Expert Committee.19) In addition to the same, it is also asserted by the Corporation and informed to the High Court as well as to this Court that in order to ascertain the genuineness of the contents of experience certificates Exh. Nos. P2 and P3, the Corporation deputed responsible persons for verification and, in fact, they met the issuing authority and satisfied with the correctness of their statement. In view of this aspect, we are satisfied that the learned single Judge as well as the Division Bench committed an error in interfering with the decision of the Selection Committee. We have already noted that there is no allegation of mala fides against the members of the Selection Committee. Even on equity, the appellant is an unemployed M.Tech post-Graduate and the contesting respondent No.1 is working as an Assistant Engineer in the Kerala State Electricity Board, in other words, he is fully employed on the date of the selection of LPG distributorship. Looking at from any angle, the High Court was not justified in upsetting the decision of the Selection Committee, particularly, in the absence of any mala fides against them and there is no warrant for direction to re-assess the marks of the appellant afresh by excluding the marks for certificates (Exh. Nos. P2 and P3), particularly, in the light of the detailed explanation offered by the Corporation about the mode of selection. | 1 | 3,499 | 454 | ### Instruction:
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the High Court has criticized the report made by the Board and rejecting the criticism of the High Court in such academic matters, held as under: “…….We are unable to see the point of criticism of the High Court in such academic matters. Boards of Appointments are nominated by the Universities and when recommendations made by them and the appointments following on them, are challenged before courts, normally the courts should be slow to interfere with the opinions expressed by the experts. There is no allegation about mala fides against the experts who constituted the present Board; and so, we think it would normally be wise and safe for the courts to leave the decisions of academic matters to experts who are more familiar with the problems they face than the courts generally can be………….” 17) In a recent decision of this Court in Basavaiah (Dr.) vs. Dr. H.L. Ramesh & Ors., (2010) 8 SCC 372 wherein similar issue, namely, recommendations of Expert Committee and evaluation as well as judicial review under Art. 226 of the Constitution was considered by this Court. A short question involved in that case was that whether the appellants therein (Dr. Basavaiah and Dr. Manjunath) were qualified to be appointed as Readers in Sericulture? One Dr. H.L. Ramesh, respondent in both the appeals therein challenged the appointments of both the appellants on the ground that they were not qualified for the post of Readers in Sericulture. Learned single Judge, on 11.10.2004, after examining the pleadings and scrutinizing the arguments of the parties dismissed the writ petition filed by Dr. H.L. Ramesh – respondent in W.P. No. 24300 of 1999. Dr. H.L. Ramesh, aggrieved by the said judgment, preferred a writ appeal before the Division Bench of the High Court. The writ appeal was allowed and the appointments of the appellants therein were set aside leaving it open to the University of Mysore to make fresh selection in accordance with the law. The appellants, aggrieved by the said judgment, filed special leave petitions before this Court. In the High Court as well as in this Court, the University filed affidavit stating that the Expert Committee consisting of highly qualified 5 distinguished experts evaluated the qualification, experience and the published works of the appellants and found them eligible and suitable. In such circumstance, this Court observed in paragraph Nos. 20 & 21 as under: “20. It is abundantly clear from the affidavit filed by the University that the Expert Committee had carefully examined and scrutinised the qualification, experience and published work of the appellants before selecting them for the posts of Readers in Sericulture. In our considered opinion, the Division Bench was not justified in sitting in appeal over the unanimous recommendations of the Expert Committee consisting of five experts. The Expert Committee had in fact scrutinised the merits and demerits of each candidate including qualification and the equivalent published work and its recommendations were sent to the University for appointment which were accepted by the University.21. It is the settled legal position that the courts have to show deference and consideration to the recommendation of an Expert Committee consisting of distinguished experts in the field. In the instant case, the experts had evaluated the qualification, experience and published work of the appellants and thereafter recommendations for their appointments were made. The Division Bench of the High Court ought not to have sat as an appellate court on the recommendations made by the countrys leading experts in the field of Sericulture.” 18) It is clear that in a matter of appointment/selection by an Expert Committee/Board consisting of qualified persons in the particular field, normally, the Courts should be slow to interfere with the opinions expressed by the experts, unless there is any allegation of mala fides against the experts who had constituted the Selection Committee. Admittedly, in the case on hand, there is no allegation of mala fides against the 3 experts in the Selection Committee. In such circumstances, we are of the view that it would normally be wise and safe for the courts to leave the decision of selection of this nature to the experts who are more familiar with the technicalities/nature of the work. In the case on hand, the Expert Committee evaluated the experience certificates produced by the appellant herein, interviewed him by putting specific questions as to direct sale, home delivered products, hospitality/service industry etc. and awarded marks. In such circumstances, we hold that the High Court ought not to have sat as an appellate Court on the recommendations made by the Expert Committee.19) In addition to the same, it is also asserted by the Corporation and informed to the High Court as well as to this Court that in order to ascertain the genuineness of the contents of experience certificates Exh. Nos. P2 and P3, the Corporation deputed responsible persons for verification and, in fact, they met the issuing authority and satisfied with the correctness of their statement. In view of this aspect, we are satisfied that the learned single Judge as well as the Division Bench committed an error in interfering with the decision of the Selection Committee. We have already noted that there is no allegation of mala fides against the members of the Selection Committee. Even on equity, the appellant is an unemployed M.Tech post-Graduate and the contesting respondent No.1 is working as an Assistant Engineer in the Kerala State Electricity Board, in other words, he is fully employed on the date of the selection of LPG distributorship. Looking at from any angle, the High Court was not justified in upsetting the decision of the Selection Committee, particularly, in the absence of any mala fides against them and there is no warrant for direction to re-assess the marks of the appellant afresh by excluding the marks for certificates (Exh. Nos. P2 and P3), particularly, in the light of the detailed explanation offered by the Corporation about the mode of selection.20) In the light of the above discussion, we
### Response:
1
### Explanation:
18) It is clear that in a matter of appointment/selection by an Expert Committee/Board consisting of qualified persons in the particular field, normally, the Courts should be slow to interfere with the opinions expressed by the experts, unless there is any allegation of mala fides against the experts who had constituted the Selection Committee. Admittedly, in the case on hand, there is no allegation of mala fides against the 3 experts in the Selection Committee. In such circumstances, we are of the view that it would normally be wise and safe for the courts to leave the decision of selection of this nature to the experts who are more familiar with the technicalities/nature of the work. In the case on hand, the Expert Committee evaluated the experience certificates produced by the appellant herein, interviewed him by putting specific questions as to direct sale, home delivered products, hospitality/service industry etc. and awarded marks. In such circumstances, we hold that the High Court ought not to have sat as an appellate Court on the recommendations made by the Expert Committee.19) In addition to the same, it is also asserted by the Corporation and informed to the High Court as well as to this Court that in order to ascertain the genuineness of the contents of experience certificates Exh. Nos. P2 and P3, the Corporation deputed responsible persons for verification and, in fact, they met the issuing authority and satisfied with the correctness of their statement. In view of this aspect, we are satisfied that the learned single Judge as well as the Division Bench committed an error in interfering with the decision of the Selection Committee. We have already noted that there is no allegation of mala fides against the members of the Selection Committee. Even on equity, the appellant is an unemployed M.Tech post-Graduate and the contesting respondent No.1 is working as an Assistant Engineer in the Kerala State Electricity Board, in other words, he is fully employed on the date of the selection of LPG distributorship. Looking at from any angle, the High Court was not justified in upsetting the decision of the Selection Committee, particularly, in the absence of any mala fides against them and there is no warrant for direction to re-assess the marks of the appellant afresh by excluding the marks for certificates (Exh. Nos. P2 and P3), particularly, in the light of the detailed explanation offered by the Corporation about the mode of selection.
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J.P. Srivastava & Sons Pvt. Ltd. Vs. M/S. Gwalior Sugar Co. Ltd. | rested his concurrence with the view on the affidavit filed by Rajeshwari subsequent to the filing of the petition. He said: "... As Smt. Rajeshwari made her position clear in the affidavit filed in the High Court, I do think she had authorized her father to act on her behalf in the matter at hand, and the application under Section 397/398 of the Companies Act, 1956 as filed in the Court, ought to be taken as one to which she had consented." 43. The finding of the CLB and the High Court to the effect that the petition of the appellant deserved to be rejected only because the letters of consent had not been annexed to the petition was therefore, incorrect. What the CLB and the High Court should have done was to have satisfied themselves that the consent had in fact been given prior to the filing of the petition. There is nothing either in the orders of CLB or the High Court which could even remotely be construed as a rejection of the affidavits, resolution, etc. filed by Nini Srivastava to show that prior consent had in fact been obtained. We may also note the unrebutted specific averment by the petitioners to the effect that V.K. Srivastava was personally present throughout the litigation. 44. Having decided that Nini Srivastava could have been and was authorized to act on behalf of the trust, the next question is, did Nini Srivastava file the petition on behalf of the Trust? The CLB has noted that the cause title to the petition showed that she had filed the petition for herself and as Trustee of the Trust. According to the respondents, this was again an interpolation. But the CLB has given no such finding nor has the High Court. Besides the petitioners had said the petitioners are holding some preference shares also. It is admitted that Nini Srivastava holds 50 preference shares in her personal name. However, the use of the plural is significant. It is not the case of the respondents that any other individual petitioner holds preference shares except for the trust. Then again in paragraph 2, even if one were to ignore the phrase plus 1029 preferential shares, it has been specifically averred that the petitioners form the group headed by J.K. Srivastava. There is no dispute that the group of J.K. Srivastava holds the requisite percentage of shares for maintaining proceedings under Sections 397, 398 and that the Trust falls within that group. Again in paragraph 6.2 of the petition there is a categoric reference to the 1029 redeemable preference shares held by the Trust as being held by the petitioners. This was also how the respondents understood the petition. In an application filed by them on 19th March, 1988 under Reg. 44 they said: "That shareholding of the respondent company is divided mainly between two groups namely, H.K. Srivastava Group in the Management holding about 30% Equity Shares and 1029 Redeemable Cumulative Preference Shares and the J.K. Srivastava group holding about 12% Equity Shares and 1029 Redeemable Cumulative Preference shares."That it is apprehended that J.K. Srivastava group i.e the Petitioners holding about 12% Equity Shares and 1029 Redeemable Cumulative Preference Shares may obstruct the Resolution for enhancement of Authorised Shares Capital.." 45. It appears to us that the intention of the petitioners undoubtedly was to represent the J.K. Group which admittedly has the qualifying number of shares, although the expression of such intention was not as clear as it should have been. 46. All the fora below have not proceeded on the basis that the pleading in the petition did not reflect the petition. They have rested their findings on the law as perceived by them that the Trust could not have been represented by one co-trustee. The perception as we have held was erroneous. 47. The other ground on which the fora dismissed the petition was that the beneficial interest in 551 shares of the 1029 held by the Trust had already vested in the beneficiaries prior to the filing of the petition complaining of mismanagement and oppression. This is again an incorrect legal proposition. An equitable or beneficial interest in shares does not make the owner of the interest a member of the company. (See M/s. Howrah Trading Co. vs. Commissioner of Income Tax AIR 1959 SC 775 : Killick Nixon Ltd. vs. Bank of India 1985 (57) Com. Cases 832) Therefore, even assuming that in terms of the Trust Deed the shares had devolved on the beneficiary of the Trust, this would not mean that the owner of the shares as registered with the company would not be competent to file the petition under Sections 397 and 398. 48. The object of prescribing a qualifying percentage of shares in petitioners and their supporters to file petitions under Sections 397 and 398 is clearly to ensure that frivolous litigation is not indulged in by persons who have no real stake in the company. However it is of interest that the English Companies Act contains no such limitation. What is required in these matters is a broad commonsense approach. If the Court is satisfied that the petitioners represent a body of shareholders holding the requisite percentage, it can assume that the involvement of the company in litigation is not lightly done and that it should pass orders to bring to an end the matters complained of and not reject it on a technical requirement Substance must take precedence over form. Of course, there are some rules which are vital and go to the root of the matter which cannot be broken. There are others where non-compliance may be condoned or dispensed with. In the latter case, the rule is merely directory provided there is substantial compliance with the rules read as a whole and no prejudice is caused. (See Pratap Singh vs. Shri Krishna Gupta (AIR 1956 SC 140 ) in our judgment, Section 399(3) and Regulation 18 have been substantially complied with in this case. | 0[ds]29. Therefore although as a rule, trustees must execute their duties of their office jointly, this general principle is subject to the following exceptions when one trustee may act for all (1) where the Trust Deed allows the trusts to be executed by one or more or by majority of trustees (2) where there is express sanction or approval of the act by the co-trustees; (3) where the delegation of power is necessary; (4) where the beneficiaries competent to contract consent to the delegation; (5) where the delegation to a co-trustee is in the regular course of the business; (6) where the co-trustee merely gives effect to a decision taken by the trustees jointly.The conclusion is inescapable that the Trustees had expressly authorized Nini Srivastava to file the petition. Additionally, the affidavit of Vijay Srivastava, who is alleged to be the registered owner of the 1029 preference shares, clearly shows that he had expressly consented and authorized Nini Srivastava in his capacity as such trustee to file the proceedings. If the respondents had fairly and squarely raised the issue as to the petition not being consented by by Vijay Srivastava as the registered shareholder of the 1029 shares, it would have been open to the appellants to have relied on this affidavit and if necessary amended the petition. The power to allow such amendments has been expressly granted to the CLB under RegulationIt is true that criminal proceedings have been instituted by the respondents on the allegation that the stamp paper on which the affidavits have been affirmed were purchased subsequently. But we are not prepared to reject the documents as forged ones not only because the executants have hotly contested the allegations but also because there is no finding to that effect by any of the three courts below or by the criminal court. Indeed as matters now stand the criminal proceedings have been stayed by the High Court. Furthermore, Vijay Srivastava and Raj Mohinis continuous support is also apparent from the fact that both of them are parties to the appeal before us albeit in the capacity of heirs of Late J.K. Srivastava.The reasoning in this decision would no longer be apposite having regard to the change in the language in Section 399(3) and the shifting of the requirement from the Act to Regulation 18 of the Company Law Board Regulations 1991 (hereinafter refer to as the Regulation 18 also does not itself contain the requirement for filing the consent letters [(18) Documents to accompany the petition - (1) A petition shall be accompanied by documents as prescribed in Annexure III and shall be accompanied by an Index of Documents.] The requirement has been prescribed in Annexure III, which is referred to in Regulation 18. Serial No. 27 of Annexure III contains a list of several documents required to be annexed to petitions relating to the exercise of powers in connection with prevention of oppression or mismanagement under Sections 397, 398, 399(4), 400, 401, 402, 403, 404 and 405. The documents required to be annexed to such petition include where the petition is prescribed on behalf of members, the letter of consent given by them". Other documents required to be filed include documents or other evidence in support of the statement made in the petition, as are reasonably open to the petitioner (s)", as also "three spare copies of the petition". These requirements can hardly be said to be mandatory in the sense that non-compliance with any of them would ipso facto result in the dismissal of the petition. Apart from this, Regulation 18 itself is subject to the powers of CLB under Regulations 44 and 48.The finding of the CLB and the High Court to the effect that the petition of the appellant deserved to be rejected only because the letters of consent had not been annexed to the petition was therefore, incorrect. What the CLB and the High Court should have done was to have satisfied themselves that the consent had in fact been given prior to the filing of the petition. There is nothing either in the orders of CLB or the High Court which could even remotely be construed as a rejection of the affidavits, resolution, etc. filed by Nini Srivastava to show that prior consent had in fact been obtained. We may also note the unrebutted specific averment by the petitioners to the effect that V.K. Srivastava was personally present throughout the litigation. | 0 | 8,289 | 821 | ### Instruction:
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rested his concurrence with the view on the affidavit filed by Rajeshwari subsequent to the filing of the petition. He said: "... As Smt. Rajeshwari made her position clear in the affidavit filed in the High Court, I do think she had authorized her father to act on her behalf in the matter at hand, and the application under Section 397/398 of the Companies Act, 1956 as filed in the Court, ought to be taken as one to which she had consented." 43. The finding of the CLB and the High Court to the effect that the petition of the appellant deserved to be rejected only because the letters of consent had not been annexed to the petition was therefore, incorrect. What the CLB and the High Court should have done was to have satisfied themselves that the consent had in fact been given prior to the filing of the petition. There is nothing either in the orders of CLB or the High Court which could even remotely be construed as a rejection of the affidavits, resolution, etc. filed by Nini Srivastava to show that prior consent had in fact been obtained. We may also note the unrebutted specific averment by the petitioners to the effect that V.K. Srivastava was personally present throughout the litigation. 44. Having decided that Nini Srivastava could have been and was authorized to act on behalf of the trust, the next question is, did Nini Srivastava file the petition on behalf of the Trust? The CLB has noted that the cause title to the petition showed that she had filed the petition for herself and as Trustee of the Trust. According to the respondents, this was again an interpolation. But the CLB has given no such finding nor has the High Court. Besides the petitioners had said the petitioners are holding some preference shares also. It is admitted that Nini Srivastava holds 50 preference shares in her personal name. However, the use of the plural is significant. It is not the case of the respondents that any other individual petitioner holds preference shares except for the trust. Then again in paragraph 2, even if one were to ignore the phrase plus 1029 preferential shares, it has been specifically averred that the petitioners form the group headed by J.K. Srivastava. There is no dispute that the group of J.K. Srivastava holds the requisite percentage of shares for maintaining proceedings under Sections 397, 398 and that the Trust falls within that group. Again in paragraph 6.2 of the petition there is a categoric reference to the 1029 redeemable preference shares held by the Trust as being held by the petitioners. This was also how the respondents understood the petition. In an application filed by them on 19th March, 1988 under Reg. 44 they said: "That shareholding of the respondent company is divided mainly between two groups namely, H.K. Srivastava Group in the Management holding about 30% Equity Shares and 1029 Redeemable Cumulative Preference Shares and the J.K. Srivastava group holding about 12% Equity Shares and 1029 Redeemable Cumulative Preference shares."That it is apprehended that J.K. Srivastava group i.e the Petitioners holding about 12% Equity Shares and 1029 Redeemable Cumulative Preference Shares may obstruct the Resolution for enhancement of Authorised Shares Capital.." 45. It appears to us that the intention of the petitioners undoubtedly was to represent the J.K. Group which admittedly has the qualifying number of shares, although the expression of such intention was not as clear as it should have been. 46. All the fora below have not proceeded on the basis that the pleading in the petition did not reflect the petition. They have rested their findings on the law as perceived by them that the Trust could not have been represented by one co-trustee. The perception as we have held was erroneous. 47. The other ground on which the fora dismissed the petition was that the beneficial interest in 551 shares of the 1029 held by the Trust had already vested in the beneficiaries prior to the filing of the petition complaining of mismanagement and oppression. This is again an incorrect legal proposition. An equitable or beneficial interest in shares does not make the owner of the interest a member of the company. (See M/s. Howrah Trading Co. vs. Commissioner of Income Tax AIR 1959 SC 775 : Killick Nixon Ltd. vs. Bank of India 1985 (57) Com. Cases 832) Therefore, even assuming that in terms of the Trust Deed the shares had devolved on the beneficiary of the Trust, this would not mean that the owner of the shares as registered with the company would not be competent to file the petition under Sections 397 and 398. 48. The object of prescribing a qualifying percentage of shares in petitioners and their supporters to file petitions under Sections 397 and 398 is clearly to ensure that frivolous litigation is not indulged in by persons who have no real stake in the company. However it is of interest that the English Companies Act contains no such limitation. What is required in these matters is a broad commonsense approach. If the Court is satisfied that the petitioners represent a body of shareholders holding the requisite percentage, it can assume that the involvement of the company in litigation is not lightly done and that it should pass orders to bring to an end the matters complained of and not reject it on a technical requirement Substance must take precedence over form. Of course, there are some rules which are vital and go to the root of the matter which cannot be broken. There are others where non-compliance may be condoned or dispensed with. In the latter case, the rule is merely directory provided there is substantial compliance with the rules read as a whole and no prejudice is caused. (See Pratap Singh vs. Shri Krishna Gupta (AIR 1956 SC 140 ) in our judgment, Section 399(3) and Regulation 18 have been substantially complied with in this case.
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29. Therefore although as a rule, trustees must execute their duties of their office jointly, this general principle is subject to the following exceptions when one trustee may act for all (1) where the Trust Deed allows the trusts to be executed by one or more or by majority of trustees (2) where there is express sanction or approval of the act by the co-trustees; (3) where the delegation of power is necessary; (4) where the beneficiaries competent to contract consent to the delegation; (5) where the delegation to a co-trustee is in the regular course of the business; (6) where the co-trustee merely gives effect to a decision taken by the trustees jointly.The conclusion is inescapable that the Trustees had expressly authorized Nini Srivastava to file the petition. Additionally, the affidavit of Vijay Srivastava, who is alleged to be the registered owner of the 1029 preference shares, clearly shows that he had expressly consented and authorized Nini Srivastava in his capacity as such trustee to file the proceedings. If the respondents had fairly and squarely raised the issue as to the petition not being consented by by Vijay Srivastava as the registered shareholder of the 1029 shares, it would have been open to the appellants to have relied on this affidavit and if necessary amended the petition. The power to allow such amendments has been expressly granted to the CLB under RegulationIt is true that criminal proceedings have been instituted by the respondents on the allegation that the stamp paper on which the affidavits have been affirmed were purchased subsequently. But we are not prepared to reject the documents as forged ones not only because the executants have hotly contested the allegations but also because there is no finding to that effect by any of the three courts below or by the criminal court. Indeed as matters now stand the criminal proceedings have been stayed by the High Court. Furthermore, Vijay Srivastava and Raj Mohinis continuous support is also apparent from the fact that both of them are parties to the appeal before us albeit in the capacity of heirs of Late J.K. Srivastava.The reasoning in this decision would no longer be apposite having regard to the change in the language in Section 399(3) and the shifting of the requirement from the Act to Regulation 18 of the Company Law Board Regulations 1991 (hereinafter refer to as the Regulation 18 also does not itself contain the requirement for filing the consent letters [(18) Documents to accompany the petition - (1) A petition shall be accompanied by documents as prescribed in Annexure III and shall be accompanied by an Index of Documents.] The requirement has been prescribed in Annexure III, which is referred to in Regulation 18. Serial No. 27 of Annexure III contains a list of several documents required to be annexed to petitions relating to the exercise of powers in connection with prevention of oppression or mismanagement under Sections 397, 398, 399(4), 400, 401, 402, 403, 404 and 405. The documents required to be annexed to such petition include where the petition is prescribed on behalf of members, the letter of consent given by them". Other documents required to be filed include documents or other evidence in support of the statement made in the petition, as are reasonably open to the petitioner (s)", as also "three spare copies of the petition". These requirements can hardly be said to be mandatory in the sense that non-compliance with any of them would ipso facto result in the dismissal of the petition. Apart from this, Regulation 18 itself is subject to the powers of CLB under Regulations 44 and 48.The finding of the CLB and the High Court to the effect that the petition of the appellant deserved to be rejected only because the letters of consent had not been annexed to the petition was therefore, incorrect. What the CLB and the High Court should have done was to have satisfied themselves that the consent had in fact been given prior to the filing of the petition. There is nothing either in the orders of CLB or the High Court which could even remotely be construed as a rejection of the affidavits, resolution, etc. filed by Nini Srivastava to show that prior consent had in fact been obtained. We may also note the unrebutted specific averment by the petitioners to the effect that V.K. Srivastava was personally present throughout the litigation.
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Howrah Mills Co. Ltd. Vs. Md. Shamin | 24.12.2004 till date. Counsel submitted that the State would be willing to give necessary protection provided the charges are paid and they are continued to be paid as demanded by the State. 8. We do not see much force in the submission for counsel for respondents 1 to 3 that since they are raising some claim over a fraction of the property, no relief can be granted to the appellants herein. At best, respondents 1 to 3 herein are assignees of undivided shares from a co-owner, and prima facie, their right, if any, is to sue for partition. Prima facie, they are not entitled to enter the property or to interfere with the possession of the appellants. If the property is protected from trespassers meanwhile, it will only be to their advantage. Then, they can work out their rights without obstruction. 9. It appears to us that this is a case where the State should be equally interested in seeing to it that the property was fully protected, until the scheme proposed by the BIFR is implemented and the revival of the industry is ensured. It is said that six thousand workers are involved and their welfare, along with the welfare of the creditors and of the management, depends upon the scheme being put through. One would have expected the State of West Bengal to readily respond to a request for protecting the property from trespassers so as to ensure that the revival of a sinking industry is achieved and its workers are protected. Even otherwise, in a situation like the present, it is the duty of the police of the State to give necessary protection to the struggling industry to tide over the crises and protect its property from interference by law less elements and unauthorized persons. Going by the Police Regulations, Bengal 1943, Regulations 666 and 669, it may even be possible to say that the protection in such circumstances should be afforded even without insisting on payment by the private party seeking protection. But in this case, the appellants have approached the Court praying for protection expressing their readiness to meet the charges for such protection on the basis that they are liable to pay such charges. In fact, the order for protection was extended to the appellants from the filing of the writ petition till this date only on that basis. Therefore, we are of the view that it would not be appropriate to hold, on the facts of this case that the appellants have no obligation at all to meet the costs of the protection given to them by the police. 10. At the same time, we think that only a reasonable amount should be fixed so that the endeavour made to revamp the industry is not frustrated by too heavy a slice of the price of the land to be sold under the supervision of the BIFR for the resurrection of the industry being spent on this score. It is no doubt true that the appellants had agreed to pay a sum of Rs. 16,413/- per day for the protection. It is seen from I.A. No. 4 of 2006 filed by respondents 4 to 7 in the appeal that they have now computed the amount payable at Rs. 9,195/- per day from 1.10.2005 till this date and for the earlier period between 31.1.2005 to 30.9.2005 they had proposed to claim a sum of Rs. 15,678/- per day though for an earlier period between 24.12.2004 and 30.01.2005 they have proposed to claim @ Rs. 41,520/- per day. Since the protection for the property from trespassers is also to ensure to the benefit of the industry as a whole including its workforce of about six thousand, we think that a sum of Rs. 10,000/- per day for the entire period for which the appellants have not paid would be adequate compensation to the State. We, therefore, direct the appellants to pay the entire arrears calculated at the rate of Rs. 10,000/- per day for the entire period set out in I.A. No. 4 of 2006 within a period of two months from this date. The appellants would also be liable to pay at the rate of Rs. 10,000/- per day from the last date referred to in I.A. No. 4 of 2006 till this date within that period and will continue to pay the said sum per day from today till the plot to be sold is separately demarcated and bounded and boundary of the balance property repaired or rebuilt. The current payments have to be made by the appellants at the rate of Rs. 10,000/- per day, once in 15 days, starting from today. 11. Respondents 4 to 7 are directed to continue to give the requisite protection to the appellants in respect of the property of the first appellant - company and also to give necessary protection to enable the company to repair or renovate its boundary walls as also for construction of separate boundary walls for the plot of land proposed to be sold under the supervision of the BIFR. 12. Mr. Roy, learned Counsel for the State has categorically submitted before us that the State would perform its duties in the matter of maintenance of law and order and it shall provide protection to the property of the first appellant - Company in discharge of the statutory duties of the State and the Police. In this context, the Authorities may consider whether it is necessary to engage a large force of policemen at this stage and consider posting only such number of personnel as may be found necessary for the protection of the property. That would enable a reduction in the cost of protection to be paid by the appellants and the State would be free to reduce the charges payable by the appellants for protection of the properties. In the light of the directions as above and the observations, I.A. Nos. 4 and 5 of 2006 will stand disposed of. 13. | 1[ds]It appears to us that this is a case where the State should be equally interested in seeing to it that the property was fully protected, until the scheme proposed by the BIFR is implemented and the revival of the industry is ensured. It is said that six thousand workers are involved and their welfare, along with the welfare of the creditors and of the management, depends upon the scheme being put through. One would have expected the State of West Bengal to readily respond to a request for protecting the property from trespassers so as to ensure that the revival of a sinking industry is achieved and its workers are protected. Even otherwise, in a situation like the present, it is the duty of the police of the State to give necessary protection to the struggling industry to tide over the crises and protect its property from interference by law less elements and unauthorized persons. Going by the Police Regulations, Bengal 1943, Regulations 666 and 669, it may even be possible to say that the protection in such circumstances should be afforded even without insisting on payment by the private party seeking protection. But in this case, the appellants have approached the Court praying for protection expressing their readiness to meet the charges for such protection on the basis that they are liable to pay such charges. In fact, the order for protection was extended to the appellants from the filing of the writ petition till this date only on that basis. Therefore, we are of the view that it would not be appropriate to hold, on the facts of this case that the appellants have no obligation at all to meet the costs of the protection given to them by the policeMr. Roy, learned Counsel for the State has categorically submitted before us that the State would perform its duties in the matter of maintenance of law and order and it shall provide protection to the property of the first appellant - Company in discharge of the statutory duties of the State and the Police. In this context, the Authorities may consider whether it is necessary to engage a large force of policemen at this stage and consider posting only such number of personnel as may be found necessary for the protection of the property. That would enable a reduction in the cost of protection to be paid by the appellants and the State would be free to reduce the charges payable by the appellants for protection of the properties. In the light of the directions as above and the observations, I.A. Nos. 4 and 5 of 2006 will stand disposed of. | 1 | 2,737 | 477 | ### 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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24.12.2004 till date. Counsel submitted that the State would be willing to give necessary protection provided the charges are paid and they are continued to be paid as demanded by the State. 8. We do not see much force in the submission for counsel for respondents 1 to 3 that since they are raising some claim over a fraction of the property, no relief can be granted to the appellants herein. At best, respondents 1 to 3 herein are assignees of undivided shares from a co-owner, and prima facie, their right, if any, is to sue for partition. Prima facie, they are not entitled to enter the property or to interfere with the possession of the appellants. If the property is protected from trespassers meanwhile, it will only be to their advantage. Then, they can work out their rights without obstruction. 9. It appears to us that this is a case where the State should be equally interested in seeing to it that the property was fully protected, until the scheme proposed by the BIFR is implemented and the revival of the industry is ensured. It is said that six thousand workers are involved and their welfare, along with the welfare of the creditors and of the management, depends upon the scheme being put through. One would have expected the State of West Bengal to readily respond to a request for protecting the property from trespassers so as to ensure that the revival of a sinking industry is achieved and its workers are protected. Even otherwise, in a situation like the present, it is the duty of the police of the State to give necessary protection to the struggling industry to tide over the crises and protect its property from interference by law less elements and unauthorized persons. Going by the Police Regulations, Bengal 1943, Regulations 666 and 669, it may even be possible to say that the protection in such circumstances should be afforded even without insisting on payment by the private party seeking protection. But in this case, the appellants have approached the Court praying for protection expressing their readiness to meet the charges for such protection on the basis that they are liable to pay such charges. In fact, the order for protection was extended to the appellants from the filing of the writ petition till this date only on that basis. Therefore, we are of the view that it would not be appropriate to hold, on the facts of this case that the appellants have no obligation at all to meet the costs of the protection given to them by the police. 10. At the same time, we think that only a reasonable amount should be fixed so that the endeavour made to revamp the industry is not frustrated by too heavy a slice of the price of the land to be sold under the supervision of the BIFR for the resurrection of the industry being spent on this score. It is no doubt true that the appellants had agreed to pay a sum of Rs. 16,413/- per day for the protection. It is seen from I.A. No. 4 of 2006 filed by respondents 4 to 7 in the appeal that they have now computed the amount payable at Rs. 9,195/- per day from 1.10.2005 till this date and for the earlier period between 31.1.2005 to 30.9.2005 they had proposed to claim a sum of Rs. 15,678/- per day though for an earlier period between 24.12.2004 and 30.01.2005 they have proposed to claim @ Rs. 41,520/- per day. Since the protection for the property from trespassers is also to ensure to the benefit of the industry as a whole including its workforce of about six thousand, we think that a sum of Rs. 10,000/- per day for the entire period for which the appellants have not paid would be adequate compensation to the State. We, therefore, direct the appellants to pay the entire arrears calculated at the rate of Rs. 10,000/- per day for the entire period set out in I.A. No. 4 of 2006 within a period of two months from this date. The appellants would also be liable to pay at the rate of Rs. 10,000/- per day from the last date referred to in I.A. No. 4 of 2006 till this date within that period and will continue to pay the said sum per day from today till the plot to be sold is separately demarcated and bounded and boundary of the balance property repaired or rebuilt. The current payments have to be made by the appellants at the rate of Rs. 10,000/- per day, once in 15 days, starting from today. 11. Respondents 4 to 7 are directed to continue to give the requisite protection to the appellants in respect of the property of the first appellant - company and also to give necessary protection to enable the company to repair or renovate its boundary walls as also for construction of separate boundary walls for the plot of land proposed to be sold under the supervision of the BIFR. 12. Mr. Roy, learned Counsel for the State has categorically submitted before us that the State would perform its duties in the matter of maintenance of law and order and it shall provide protection to the property of the first appellant - Company in discharge of the statutory duties of the State and the Police. In this context, the Authorities may consider whether it is necessary to engage a large force of policemen at this stage and consider posting only such number of personnel as may be found necessary for the protection of the property. That would enable a reduction in the cost of protection to be paid by the appellants and the State would be free to reduce the charges payable by the appellants for protection of the properties. In the light of the directions as above and the observations, I.A. Nos. 4 and 5 of 2006 will stand disposed of. 13.
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### Explanation:
It appears to us that this is a case where the State should be equally interested in seeing to it that the property was fully protected, until the scheme proposed by the BIFR is implemented and the revival of the industry is ensured. It is said that six thousand workers are involved and their welfare, along with the welfare of the creditors and of the management, depends upon the scheme being put through. One would have expected the State of West Bengal to readily respond to a request for protecting the property from trespassers so as to ensure that the revival of a sinking industry is achieved and its workers are protected. Even otherwise, in a situation like the present, it is the duty of the police of the State to give necessary protection to the struggling industry to tide over the crises and protect its property from interference by law less elements and unauthorized persons. Going by the Police Regulations, Bengal 1943, Regulations 666 and 669, it may even be possible to say that the protection in such circumstances should be afforded even without insisting on payment by the private party seeking protection. But in this case, the appellants have approached the Court praying for protection expressing their readiness to meet the charges for such protection on the basis that they are liable to pay such charges. In fact, the order for protection was extended to the appellants from the filing of the writ petition till this date only on that basis. Therefore, we are of the view that it would not be appropriate to hold, on the facts of this case that the appellants have no obligation at all to meet the costs of the protection given to them by the policeMr. Roy, learned Counsel for the State has categorically submitted before us that the State would perform its duties in the matter of maintenance of law and order and it shall provide protection to the property of the first appellant - Company in discharge of the statutory duties of the State and the Police. In this context, the Authorities may consider whether it is necessary to engage a large force of policemen at this stage and consider posting only such number of personnel as may be found necessary for the protection of the property. That would enable a reduction in the cost of protection to be paid by the appellants and the State would be free to reduce the charges payable by the appellants for protection of the properties. In the light of the directions as above and the observations, I.A. Nos. 4 and 5 of 2006 will stand disposed of.
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Dr. Gajendra Singh Vs. Union of India & Ors | M. R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned Judgment and Order 14.02.2017 passed by the High Court of Judicature at Allahabad in Writ Appeal No.64492 of 2008 by which the High Court has dismissed the said appeal and has not interfered with the judgment and order passed by the learned Single Judge in which the petitioner challenged the penalty imposed by the disciplinary authority of removal from service which would not be disqualification for future employment, the original petitioner has preferred the present appeal. 2. The appellant herein was a Branch Manager of the United Insurance Company during the period 1995-96. He issued an Insurance Cover Note No.543675 on 20.03.1996 with respect to the vehicle bearing no.DL 1P 7143 belonging to one Chander Singh for the period 20.03.1996 to 19.03.1997. On that very day, he issued another cover note. It was found that for the first cover note No.543675, he had not taken any premium and for the second Cover Note No.543680 a cheque given by the insured had bounced. The vehicle insured met with an accident on 20.04.1996 relating to which a claim was filed on the basis of the first insurance Cover Note No.543675. An award of Rs.3,24,400/- came to be passed by the Motor Vehicle Accident Tribunal. The Insurance Company accepted the same. However, the disciplinary authority issued a charge-sheet to the appellant on 18.10.2001 alleging that the appellant had issued a Cover Note No.543675 without collecting any premium, he had thus caused a financial loss to the insurance company. Therefore, it was alleged that the appellant had failed to maintain integrity, devotion to duty and acted in a manner prejudicial to the interest of company. The charges were replied to by the appellant. He explained the circumstances under which he had issued the first cover note as at the relevant time when the cover note was issued, he had relied upon the assurance given by the insured that he will send the amount through his person, but he did not send the premium amount. Instead, the insured applied for another insurance policy for which a cheque was given, however the cheque bounced. Therefore, it was the case on behalf of the appellant that having long standing relations between the insured and the insurance company, he relied upon the assurance given by the insured that he will send the amount and, on that assurance, he issued the first cover note. In the departmental enquiry the charge levelled against the appellant came to be proved. The enquiry report was accepted by the disciplinary authority. Therefore, the appellant came to be removed from service however without any disqualification of a future employment. The appellant challenged the order of removal before the learned Single Judge. The learned Single Judge dismissed the writ petition. The judgment and order passed by the learned Single Judge dismissing the writ petition has been confirmed by the impugned judgment and order passed by the Division Bench. 3. Having heard learned counsel for the respective parties and considering the reply to the charge-sheet and the plausible explanation given by the appellant – delinquent officer, we are of the opinion that the order of removal passed by the disciplinary authority against the appellant who had rendered approximately over twenty years of service and the fact that the appellant had an unblemished service record throughout, we are of the opinion that the punishment of removal from service is disproportionate to the charge and the misconduct held to be proved. It appears that the insured was an old customer and the insured and the insurer company had a long-standing relationship with him. The petitioner relied upon the assurance given by the insured that he will send the money and on that assurance the appellant issued the first cover note. However, at the same time when the second cover was issued with respect to the very vehicle, the appellant was required to cancel the earlier cover note which the appellant did not cancel, which has resulted in loss to the insurance company. However, at the same time it cannot be said that the appellant failed to maintain integrity. Therefore, this is a fit case to impose any other punishment lesser/other than the removal from service. | 1[ds]3. Having heard learned counsel for the respective parties and considering the reply to the charge-sheet and the plausible explanation given by the appellant – delinquent officer, we are of the opinion that the order of removal passed by the disciplinary authority against the appellant who had rendered approximately over twenty years of service and the fact that the appellant had an unblemished service record throughout, we are of the opinion that the punishment of removal from service is disproportionate to the charge and the misconduct held to be proved. It appears that the insured was an old customer and the insured and the insurer company had a long-standing relationship with him. The petitioner relied upon the assurance given by the insured that he will send the money and on that assurance the appellant issued the first cover note. However, at the same time when the second cover was issued with respect to the very vehicle, the appellant was required to cancel the earlier cover note which the appellant did not cancel, which has resulted in loss to the insurance company. However, at the same time it cannot be said that the appellant failed to maintain integrity. Therefore, this is a fit case to impose any other punishment lesser/other than the removal from service. | 1 | 764 | 233 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
M. R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned Judgment and Order 14.02.2017 passed by the High Court of Judicature at Allahabad in Writ Appeal No.64492 of 2008 by which the High Court has dismissed the said appeal and has not interfered with the judgment and order passed by the learned Single Judge in which the petitioner challenged the penalty imposed by the disciplinary authority of removal from service which would not be disqualification for future employment, the original petitioner has preferred the present appeal. 2. The appellant herein was a Branch Manager of the United Insurance Company during the period 1995-96. He issued an Insurance Cover Note No.543675 on 20.03.1996 with respect to the vehicle bearing no.DL 1P 7143 belonging to one Chander Singh for the period 20.03.1996 to 19.03.1997. On that very day, he issued another cover note. It was found that for the first cover note No.543675, he had not taken any premium and for the second Cover Note No.543680 a cheque given by the insured had bounced. The vehicle insured met with an accident on 20.04.1996 relating to which a claim was filed on the basis of the first insurance Cover Note No.543675. An award of Rs.3,24,400/- came to be passed by the Motor Vehicle Accident Tribunal. The Insurance Company accepted the same. However, the disciplinary authority issued a charge-sheet to the appellant on 18.10.2001 alleging that the appellant had issued a Cover Note No.543675 without collecting any premium, he had thus caused a financial loss to the insurance company. Therefore, it was alleged that the appellant had failed to maintain integrity, devotion to duty and acted in a manner prejudicial to the interest of company. The charges were replied to by the appellant. He explained the circumstances under which he had issued the first cover note as at the relevant time when the cover note was issued, he had relied upon the assurance given by the insured that he will send the amount through his person, but he did not send the premium amount. Instead, the insured applied for another insurance policy for which a cheque was given, however the cheque bounced. Therefore, it was the case on behalf of the appellant that having long standing relations between the insured and the insurance company, he relied upon the assurance given by the insured that he will send the amount and, on that assurance, he issued the first cover note. In the departmental enquiry the charge levelled against the appellant came to be proved. The enquiry report was accepted by the disciplinary authority. Therefore, the appellant came to be removed from service however without any disqualification of a future employment. The appellant challenged the order of removal before the learned Single Judge. The learned Single Judge dismissed the writ petition. The judgment and order passed by the learned Single Judge dismissing the writ petition has been confirmed by the impugned judgment and order passed by the Division Bench. 3. Having heard learned counsel for the respective parties and considering the reply to the charge-sheet and the plausible explanation given by the appellant – delinquent officer, we are of the opinion that the order of removal passed by the disciplinary authority against the appellant who had rendered approximately over twenty years of service and the fact that the appellant had an unblemished service record throughout, we are of the opinion that the punishment of removal from service is disproportionate to the charge and the misconduct held to be proved. It appears that the insured was an old customer and the insured and the insurer company had a long-standing relationship with him. The petitioner relied upon the assurance given by the insured that he will send the money and on that assurance the appellant issued the first cover note. However, at the same time when the second cover was issued with respect to the very vehicle, the appellant was required to cancel the earlier cover note which the appellant did not cancel, which has resulted in loss to the insurance company. However, at the same time it cannot be said that the appellant failed to maintain integrity. Therefore, this is a fit case to impose any other punishment lesser/other than the removal from service.
### Response:
1
### Explanation:
3. Having heard learned counsel for the respective parties and considering the reply to the charge-sheet and the plausible explanation given by the appellant – delinquent officer, we are of the opinion that the order of removal passed by the disciplinary authority against the appellant who had rendered approximately over twenty years of service and the fact that the appellant had an unblemished service record throughout, we are of the opinion that the punishment of removal from service is disproportionate to the charge and the misconduct held to be proved. It appears that the insured was an old customer and the insured and the insurer company had a long-standing relationship with him. The petitioner relied upon the assurance given by the insured that he will send the money and on that assurance the appellant issued the first cover note. However, at the same time when the second cover was issued with respect to the very vehicle, the appellant was required to cancel the earlier cover note which the appellant did not cancel, which has resulted in loss to the insurance company. However, at the same time it cannot be said that the appellant failed to maintain integrity. Therefore, this is a fit case to impose any other punishment lesser/other than the removal from service.
|
STATE ELECTION COMMISSIONER, BIHAR PATNA Vs. JANAKDHARI PRASAD | of the State of U.P. had terminated by a general order the appointments of all Government Counsel (Civil, Criminal, Revenue) in all the districts of the State of U.P. The High Court had upheld the circular by which the order was passed. In appeal, by special leave, the Court dealt with two contentions, namely, the nature of appointments and the minimum basis of status attached to those appointments. For the purpose of examination whether the ground of arbitrariness was available to vitiate the circular, the Court referred to the Legal Remembrancers Manual and especially paragraphs 7.06 to 7.09 which deals with appointment and renewal of local practitioners finally selected by the government. The said paragraph deals with the term, tenure, bar on political activity, renewal of term and character roll. 31. Relying on the same and other aspects, the Court held: The above provisions in the L.R. Manual clearly show that the Government Counsel in the districts are treated as Law Officers of the State who are holders of an office or post. The aforesaid provisions in Chapter VII relating to appointment and conditions of engagement of District Government Counsel show that the appointments are to be made and ordinarily renewed on objective assessment of suitability of the person based on the opinion of the District Officer and the District Judge; and character roll is maintained for keeping a record of the suitability of the appointee to enable an objective assessment for the purpose of his continuance as a Law Officer in the district. There are provisions to bar private practice and participation in political activity by D.G. Cs. Apart from Clause 3 of para 7.06 to which we shall advert a little later, these provisions clearly indicate that the appointment and engagement of District Government Counsel is not the same as that by a private litigant of his counsel and there is obviously an element of continuity of the appointment unless the appointee is found to be unsuitable either by his own work, conduct or age or in comparison to any more suitable candidate available at the place of appointment. Suitability of the appointee being the prime criterion for any such appointment, it is obvious that appointment of the best amongst those available, is the object sought to be achieved by these provisions, which, even otherwise, should be the paramount consideration in discharge of this governmental function aimed at promoting public interest. All Govt. Counsel are paid remuneration out of the public exchequer and there is a clear public element attaching to the office or post. After so stating, the Court referred to Sections 24 and 321 of the Code of Criminal Procedure and further analyzed the ratio in Mundrika Prasad Singh v. State of Bihar (1979) 4 SCC 701 and Mukul Dalal and Ors. v. Union of India and Ors. (1988) 3 SCC 144 and came to hold that the office of the Public Prosecutor is a public one and the primacy given to the Public Prosecutor under the scheme of Code has a social purpose. 32. In this regard, we may reproduce a passage from the said authority which is as follows: We are, therefore, unable to accept the argument of the learned Additional Advocate General that the appointment of District Government Counsel by the State Government is only a professional engagement like that between a private client and his lawyer, or that it is purely contractual with no public element attaching to it, which may be terminated at any time at the sweet will of the Government excluding judicial review. We have already indicated the presence of public element attached to the office or post of District Government Counsel of every category covered by the impugned circular. This is sufficient to attract Article 14 of the Constitution and bring the question of validity of the impugned circular within the scope of judicial review. 33. Eventually, the Court analyzing the test of Article 14, opined: In our opinion, the wide sweep of Article 14 undoubtedly takes within its fold the impugned circular issued by the State of U.P. in exercise of its executive power, irrespective of the precise nature of appointment of the Government Counsel in the districts and the other rights, contractual or statutory, which the appointees may have. It is for this reason that we base our decision on the ground that independent of any statutory right, available to the appointees, and assuming for the purpose of this case that the rights flow only from the contract of appointment, the impugned circular, issued in exercise of the executive power of the State, must satisfy Article 14 of the Constitution and if it is shown to be arbitrary, it must be struck down. However, we have referred to certain provisions relating to initial appointment, termination or renewal of tenure to indicate that the action is controlled at least by settled guidelines, followed by the State of U.P., for a long time. This too is relevant for deciding the question of arbitrariness alleged in the present case. The aforesaid passages clearly show that the Court went by the concept of public element attached to the office or post of Government Pleader. It has not expressed the opinion that they are under the Government service. Be that as it may, as has been held by the learned Single Judge and rightly so, there is no master-servant relationship and the Respondent was not amenable to any disciplinary proceeding. He has correctly expressed the view that the conduct of the advocate is subject to the discipline of the Bar Council. As we notice, there is nothing on record to show that he was getting any remuneration. Even if some remuneration is attached to the office, he cannot be treated to be under the service of the State Government. The aspects which are essential for establishing a relationship of master and servant are absent. Therefore, the returned candidate could not have been treated to be in service under the State Government. | 0[ds]11. As has been stated earlier, the learned single Judge has drawn a distinction between office of profit and service under the Government. We think it apposite to restate the legal position, the distinction between the two facets as above and thereafter x-ray the provision, the legislative purpose behind the same and the nature of appointment, we agree, but the distinction, though delicate, is real. An office of insurance medical practitioner can be conjured up if it exists even where no doctor sits in the saddle and has duties attached to it qua office. We cannot equate it with the post of a peon or security gunman who too has duties to perform or a workshop where government vehicles are repaired, or a milk vendor from an approved list who supplies milk to government hospitals. A panel of lawyers for legal aid to the poor or a body of doctors enlisted for emergency service in an epidemic outbreak charged with responsibilities and paid by the Government cannot be a pile of offices of profit. If this perspective be correct, Kanta and Mahadeo fit into a legal scheme. In the former, an ad hoc Assistant Government Pleader with duties and remuneration was held to fall outside office of profit. It was a casual engagement, not exalted to a permanent position, occupied pro tempore by A or B. In Mahadeo, a permanent panel of lawyers maintained by the Railway Administration with special duties of a lasting nature constituted the offices of profitmore like standing counsel.We may hasten to say that we concur with the said harmonization as we find that it is founded on apposite reasoning and also in accord with the precedents holding the view as regardsBe it noted, eventually, the Court ruled that thet therein a doctor functioning under the ESI Scheme was not holding an office of profit25. In the case at hand, the firstt was treated as disqualified on the foundation that he was in service of the Government. In this context, we may usefully refer to the letter of appointment issued by the Government of Bihar, Legal (Justice) Department to the District Magistrate, Nalanda. It reads asGovernment of Bihar Legal (Justice)Joint Secretary to the Government, BiharSub.: In relation to appointment of Assistant Government Advocate for the Court at Nalanda and HilsaIn reference to your letter No. 6224 dated20.7.99 on above mentioned subject and law Department Letter No. 2413 dated 6.7.2000 as per direction I have to inform that the State Government has been kind to appoint Sri Janakdhari Prasad, Advocate on the post of Assistant Government Advocate in the panel of Assistant Government Advocates constituted for the Court at Nalanda and Hilsa.After this appointment the total number of Assistant Government Advocates in the Court of Nalanda would be 19 (Nineteen) and the total number of Assistant Government Advocates in the Court of Hilsa would be 4 (four).Joint Secretary to the Govt., BiharAnalyzing the letter, the Election Commission has held that the elected candidate was holding a post under the State Government and, therefore, he was disqualified) of Section 139 of the Act26. On a careful scrutiny of the communication, it is quite vivid that theappointed to the post of Assistant Government Advocate in the panel of Assistant Government Advocates constituted for the courts at Nalanda and Hilsa. There is no mention of any fixed remuneration27. In the obtaining factual score, would it be appropriate to accept the submission of thes that the elected candidate was in the service of the government. The legislature has, in exercise of its legislative power and wisdom, not used the words office ofTherefore, whether such a letter of appointment can be construed to determine if the person is holding an office of profit is not necessary to be addressed although we have referred to certain authorities to appreciate the context and its fundamental purpose. In the instant case, the election pertains to a Panchayat Samiti which basically relates to the concept at the grass root level. The legislature, as it seems to us, has not thought of office of profit because had it thought so it would have provided in that manner. In Sakhawant Ali (supra), the legislature had provided a disqualification keeping in view the conflict of interest. The absence of such a provision possibly is to include persons from different fields as long as they are not in service under the government or a service in an institution receiving aids from the Central or State Government or any local authority. The legislature, as the postulate stands today, has confined to categories of service mentioned hereinbefore. It depends on the legislative wisdom. It further needs to be stated that the nature of disqualification has to be strictly construed keeping in mind that right to contest an election is not a fundamental right but the said right may be curtailed under valid statutory provision28. The aforesaid being the position, we may presently focus on what constitutes a service. In State of Assam andv. Kanak Chandra Dutta, Bachawat, J., speaking for the Constitution Bench, held that a person holding a post under a State is a person serving or employed under the State. There is a relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the States right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post29. In this regard, reference to another Constitution Bench decision in Roshan Lal Tandon v. Union of Indiawould be apposite. In the said case, it has been opined that the legal position of a Government servant is more one of status than aAIR 1967 SC 884 AIR 1967 SC 1889 31. Relying on the same and other aspects, the CourtThe above provisions in the L.R. Manual clearly show that the Government Counsel in the districts are treated as Law Officers of the State who are holders of an office orpost. The aforesaid provisions in Chapter VII relating to appointment and conditions of engagement of District Government Counsel show that the appointments are to be made and ordinarily renewed on objective assessment of suitability of the person based on the opinion of the District Officer and the District Judge; and character roll is maintained for keeping a record of the suitability of the appointee to enable an objective assessment for the purpose of his continuance as a Law Officer in the district. There are provisions to bar private practice and participation in political activity by D.G.e 3 of para 7.06 to which we shall advert a little later, these provisions clearly indicate that the appointment and engagement of District Government Counsel is not the same as that by a private litigant of his counsel and there is obviously an element of continuity of the appointment unless the appointee is found to be unsuitable either by his own work, conduct or age or in comparison to any more suitable candidate available at the place of appointment. Suitability of the appointee being the prime criterion for any such appointment, it is obvious that appointment of the best amongst those available, is the object sought to be achieved by these provisions, which, even otherwise, should be the paramount consideration in discharge of this governmental function aimed at promoting public interest. All Govt. Counsel are paid remuneration out of the public exchequer and there is a clear public element attaching to the office or post.After so stating, the Court referred to Sections 24 and 321 of the Code of Criminal Procedure and further analyzed the ratio in Mundrika Prasad Singh v. State of Biharand Mukul Dalal andv. Union of India andnd came to hold that the office of the Public Prosecutor is a public one and the primacy given to the Public Prosecutor under the scheme of Code has a social purpose.(1979) 4 SCC 701 (1988) 3 SCC 144 We are, therefore, unable to accept the argument of the learned Additional Advocate General that the appointment of District Government Counsel by the State Government is only a professional engagement like that between a private client and his lawyer, or that it is purely contractual with no public element attaching to it, which may be terminated at any time at the sweet will of the Government excluding judicial review. We have already indicated the presence of public element attached to the of District Government Counsel of every category covered by the impugned circular. This is sufficient to attract Article 14 of the Constitution and bring the question of validity of the impugned circular within the scope of judicial reviewIn our opinion, the wide sweep of Article 14 undoubtedly takes within its fold the impugned circular issued by the State of U.P. in exercise of its executive power, irrespective of the precise nature of appointment of the Government Counsel in the districts and the other rights, contractual or statutory, which the appointees may have. It is for this reason that we base our decision on the ground that independent of any statutory right, available to the appointees, and assuming for the purpose of this case that the rights flow only from the contract of appointment, the impugned circular, issued in exercise of the executive power of the State, must satisfy Article 14 of the Constitution and if it is shown to be arbitrary, it must be struck down. However, we have referred to certain provisions relating to initial appointment, termination or renewal of tenure to indicate that the action is controlled at least by settled guidelines, followed by the State of U.P., for a long time. This too is relevant for deciding the question of arbitrariness alleged in the present caseThe aforesaid passages clearly show that the Court went by the concept of public element attached to the office or post of Government Pleader. It has not expressed the opinion that they are under the Government service. Be that as it may, as has been held by the learned Single Judge and rightly so, there is no master-servant relationship and thet was not amenable to any disciplinary proceeding. He has correctly expressed the view that the conduct of the advocate is subject to the discipline of the Bar Council. As we notice, there is nothing on record to show that he was getting any remuneration. Even if some remuneration is attached to the office, he cannot be treated to be under the service of the State Government. The aspects which are essential for establishing a relationship of master and servant are absent. Therefore, the returned candidate could not have been treated to be in service under the State Government. | 0 | 9,264 | 2,012 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
of the State of U.P. had terminated by a general order the appointments of all Government Counsel (Civil, Criminal, Revenue) in all the districts of the State of U.P. The High Court had upheld the circular by which the order was passed. In appeal, by special leave, the Court dealt with two contentions, namely, the nature of appointments and the minimum basis of status attached to those appointments. For the purpose of examination whether the ground of arbitrariness was available to vitiate the circular, the Court referred to the Legal Remembrancers Manual and especially paragraphs 7.06 to 7.09 which deals with appointment and renewal of local practitioners finally selected by the government. The said paragraph deals with the term, tenure, bar on political activity, renewal of term and character roll. 31. Relying on the same and other aspects, the Court held: The above provisions in the L.R. Manual clearly show that the Government Counsel in the districts are treated as Law Officers of the State who are holders of an office or post. The aforesaid provisions in Chapter VII relating to appointment and conditions of engagement of District Government Counsel show that the appointments are to be made and ordinarily renewed on objective assessment of suitability of the person based on the opinion of the District Officer and the District Judge; and character roll is maintained for keeping a record of the suitability of the appointee to enable an objective assessment for the purpose of his continuance as a Law Officer in the district. There are provisions to bar private practice and participation in political activity by D.G. Cs. Apart from Clause 3 of para 7.06 to which we shall advert a little later, these provisions clearly indicate that the appointment and engagement of District Government Counsel is not the same as that by a private litigant of his counsel and there is obviously an element of continuity of the appointment unless the appointee is found to be unsuitable either by his own work, conduct or age or in comparison to any more suitable candidate available at the place of appointment. Suitability of the appointee being the prime criterion for any such appointment, it is obvious that appointment of the best amongst those available, is the object sought to be achieved by these provisions, which, even otherwise, should be the paramount consideration in discharge of this governmental function aimed at promoting public interest. All Govt. Counsel are paid remuneration out of the public exchequer and there is a clear public element attaching to the office or post. After so stating, the Court referred to Sections 24 and 321 of the Code of Criminal Procedure and further analyzed the ratio in Mundrika Prasad Singh v. State of Bihar (1979) 4 SCC 701 and Mukul Dalal and Ors. v. Union of India and Ors. (1988) 3 SCC 144 and came to hold that the office of the Public Prosecutor is a public one and the primacy given to the Public Prosecutor under the scheme of Code has a social purpose. 32. In this regard, we may reproduce a passage from the said authority which is as follows: We are, therefore, unable to accept the argument of the learned Additional Advocate General that the appointment of District Government Counsel by the State Government is only a professional engagement like that between a private client and his lawyer, or that it is purely contractual with no public element attaching to it, which may be terminated at any time at the sweet will of the Government excluding judicial review. We have already indicated the presence of public element attached to the office or post of District Government Counsel of every category covered by the impugned circular. This is sufficient to attract Article 14 of the Constitution and bring the question of validity of the impugned circular within the scope of judicial review. 33. Eventually, the Court analyzing the test of Article 14, opined: In our opinion, the wide sweep of Article 14 undoubtedly takes within its fold the impugned circular issued by the State of U.P. in exercise of its executive power, irrespective of the precise nature of appointment of the Government Counsel in the districts and the other rights, contractual or statutory, which the appointees may have. It is for this reason that we base our decision on the ground that independent of any statutory right, available to the appointees, and assuming for the purpose of this case that the rights flow only from the contract of appointment, the impugned circular, issued in exercise of the executive power of the State, must satisfy Article 14 of the Constitution and if it is shown to be arbitrary, it must be struck down. However, we have referred to certain provisions relating to initial appointment, termination or renewal of tenure to indicate that the action is controlled at least by settled guidelines, followed by the State of U.P., for a long time. This too is relevant for deciding the question of arbitrariness alleged in the present case. The aforesaid passages clearly show that the Court went by the concept of public element attached to the office or post of Government Pleader. It has not expressed the opinion that they are under the Government service. Be that as it may, as has been held by the learned Single Judge and rightly so, there is no master-servant relationship and the Respondent was not amenable to any disciplinary proceeding. He has correctly expressed the view that the conduct of the advocate is subject to the discipline of the Bar Council. As we notice, there is nothing on record to show that he was getting any remuneration. Even if some remuneration is attached to the office, he cannot be treated to be under the service of the State Government. The aspects which are essential for establishing a relationship of master and servant are absent. Therefore, the returned candidate could not have been treated to be in service under the State Government.
### Response:
0
### Explanation:
State is a person serving or employed under the State. There is a relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the States right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post29. In this regard, reference to another Constitution Bench decision in Roshan Lal Tandon v. Union of Indiawould be apposite. In the said case, it has been opined that the legal position of a Government servant is more one of status than aAIR 1967 SC 884 AIR 1967 SC 1889 31. Relying on the same and other aspects, the CourtThe above provisions in the L.R. Manual clearly show that the Government Counsel in the districts are treated as Law Officers of the State who are holders of an office orpost. The aforesaid provisions in Chapter VII relating to appointment and conditions of engagement of District Government Counsel show that the appointments are to be made and ordinarily renewed on objective assessment of suitability of the person based on the opinion of the District Officer and the District Judge; and character roll is maintained for keeping a record of the suitability of the appointee to enable an objective assessment for the purpose of his continuance as a Law Officer in the district. There are provisions to bar private practice and participation in political activity by D.G.e 3 of para 7.06 to which we shall advert a little later, these provisions clearly indicate that the appointment and engagement of District Government Counsel is not the same as that by a private litigant of his counsel and there is obviously an element of continuity of the appointment unless the appointee is found to be unsuitable either by his own work, conduct or age or in comparison to any more suitable candidate available at the place of appointment. Suitability of the appointee being the prime criterion for any such appointment, it is obvious that appointment of the best amongst those available, is the object sought to be achieved by these provisions, which, even otherwise, should be the paramount consideration in discharge of this governmental function aimed at promoting public interest. All Govt. Counsel are paid remuneration out of the public exchequer and there is a clear public element attaching to the office or post.After so stating, the Court referred to Sections 24 and 321 of the Code of Criminal Procedure and further analyzed the ratio in Mundrika Prasad Singh v. State of Biharand Mukul Dalal andv. Union of India andnd came to hold that the office of the Public Prosecutor is a public one and the primacy given to the Public Prosecutor under the scheme of Code has a social purpose.(1979) 4 SCC 701 (1988) 3 SCC 144 We are, therefore, unable to accept the argument of the learned Additional Advocate General that the appointment of District Government Counsel by the State Government is only a professional engagement like that between a private client and his lawyer, or that it is purely contractual with no public element attaching to it, which may be terminated at any time at the sweet will of the Government excluding judicial review. We have already indicated the presence of public element attached to the of District Government Counsel of every category covered by the impugned circular. This is sufficient to attract Article 14 of the Constitution and bring the question of validity of the impugned circular within the scope of judicial reviewIn our opinion, the wide sweep of Article 14 undoubtedly takes within its fold the impugned circular issued by the State of U.P. in exercise of its executive power, irrespective of the precise nature of appointment of the Government Counsel in the districts and the other rights, contractual or statutory, which the appointees may have. It is for this reason that we base our decision on the ground that independent of any statutory right, available to the appointees, and assuming for the purpose of this case that the rights flow only from the contract of appointment, the impugned circular, issued in exercise of the executive power of the State, must satisfy Article 14 of the Constitution and if it is shown to be arbitrary, it must be struck down. However, we have referred to certain provisions relating to initial appointment, termination or renewal of tenure to indicate that the action is controlled at least by settled guidelines, followed by the State of U.P., for a long time. This too is relevant for deciding the question of arbitrariness alleged in the present caseThe aforesaid passages clearly show that the Court went by the concept of public element attached to the office or post of Government Pleader. It has not expressed the opinion that they are under the Government service. Be that as it may, as has been held by the learned Single Judge and rightly so, there is no master-servant relationship and thet was not amenable to any disciplinary proceeding. He has correctly expressed the view that the conduct of the advocate is subject to the discipline of the Bar Council. As we notice, there is nothing on record to show that he was getting any remuneration. Even if some remuneration is attached to the office, he cannot be treated to be under the service of the State Government. The aspects which are essential for establishing a relationship of master and servant are absent. Therefore, the returned candidate could not have been treated to be in service under the State Government.
|
Talib Hussain Vs. State of J. & K | the grounds of detention could not be disclosed to him and this was long after the expiry of ten days from his arrest. The petitioner was tortured at the interrogation centre, Jammu, and his signatures were forcibly obtained on a piece of blank paper. The petitioner claimed to be a permanent resident of village Azamabad, police station Thana Darhal, Tahsil and District Rajouri. His arrest was alleged to be mainly due to personal grudges of Fazal Hasan and Nazir Hasan.2. According to the return the petitioner was detained on September 11, 1968 pursuant to the order dated September 10, 1968. The petitioner was informed that it was against public interest to disclose to him the grounds on which the order of his detention had been made. The Government approved the order of detention on September 30, l968. The order of detention was read out to the petitioner and its contents explained to him in Urdu and the petitioner at the time of detention affixed his signature on the order as a token of having understood the same. The order under Section 8 read with Section 13-A of the J and K Preventive Detention Act to the effect that it was against public interest to disclose to the petitioner the grounds of detention was made on September 10, 1968 and not on December 10, 1968 as suggested by the Petitioner. The date December 10, 1968 on the copy attached to the reply of the Government was due to a typing error.3. On behalf of the petitioner it was argued that the petitioners detention started prior to the order of detention and that his detention must on that account be held to be illegal from its inception and therefore wholly void justifying his release. It was further submitted that there was no material showing that the orders made against the petitioner were explained to him in his own language.4. I had a look at the original records produced by the respondent. It is clear that the order of detention dated September 10, 1968 was explained to the petitioner on September 11, 1968. The order of detention is as under:"Whereas I, C. B. Budgujar, I. A. S. District Magistrate, Rajouri, am satisfied that with a view to preventing Shri Talib Hussain @ Abdul Rehman s/o Feroz Din r/o Azamabad p/s Darhal now Guiran Wala, West Pakistan from acting in a manner prejudicial to the security of the State it is necessary so to do.Now, therefore, in exercise of the powers conferred by Section 3 (2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964, I, C. B. Budgujar, I. A. S. District Magistrate, Rajouri hereby direct that the said Talib Hussain @ Abdul Rehman s/o Feroz Din be detained in Additional Police Lock up p/s Saddar, Jammu, subject to such conditions as to maintenance, discipline and punishment for breaches of discipline as have been specified in the Jammu and Kashmir Detenus General Order of 1968."The order under Sec. 8 read with Section 13-A of the Jammu and Kashmir Preventive Detention Act dated September 10, 1968 reads thus:"Whereas Shri Talib Hussain @ Abdul Rehman s/o Feroz Din r/o Azamabad p/s Darhal now Gujranwala, West Pakistan, has been detained in pursuance of order No. DIR/27/68 dated 10-9-1968 made by me under Sec. 3 (2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964 with a view to preventing him from acting in any manner prejudicial to the security of the State andWhereas, I consider it against the public interest to disclose the grounds of detention to the said Talib Hussain Abdul Rehman s/o Feroz Din.Now, therefore, in pursuance of Section 8 read with Section 13-A of the said Act I hereby direct that the said Talib Hussain @ Abdul Rehman be informed that it is against the public interest to disclose to him the grounds on which his detention order was made."At the back of this order there is an endorsement dated September 13,1968 by Shri B. M. Dhar that the contents of the order had been explained to the detenu in the language understood by him. It is thus clear that the petitioner was informed that it was against public interest to disclose to the petitioner the grounds of his detention.5. Now, the petitioner having been detained with a view to preventing him from acting in a manner prejudicial to the security of the State and it having been considered against public interest to disclose to him the grounds of his detention, it is clear that by virtue of the provisions of Sec. 13-A (2) (b) (ii) of the Jammu and Kashmir Preventive Detention Act, Section 8 (1) of that Act, and by virtue of Section 13-A (2) (c), Sec. 10 of that Act, were both inapplicable to this case. These provisions merely serve to demonstrate that the question of security of the State is of paramount importance and is placed above the right to personal liberty of an individual whose activities are a danger to such security. Activities prejudicial to the security of the State always pose a threat to the public peace and safety and in the event of a crisis arising out of such activities, the rights of individuals have to be postponed to the larger considerations of State.6. In regard to the submission that the petitioner was arrested and deprived of his personal liberty long before the order of his arrest and this invalidated his detention, it is sufficient to point out that in habeas corpus proceedings the Court has to consider the legality of the detention on the date of hearing. If on the date of hearing it cannot be said that the aggrieved party has been wrongfully deprived of his personal liberty and his detention is contrary to law, a writ of habeas corpus cannot issue.7. I am expressing no opinion in this case on the question of the effect of the withdrawal of the earlier petition by the petitioner. | 0[ds]4. I had a look at the original records produced by the respondent. It is clear that the order of detention dated September 10, 1968 was explained to the petitioner on September 11, 1968. The order of detention is as under:"Whereas I, C. B. Budgujar, I. A. S. District Magistrate, Rajouri, am satisfied that with a view to preventing Shri Talib Hussain @ Abdul Rehman s/o Feroz Din r/o Azamabad p/s Darhal now Guiran Wala, West Pakistan from acting in a manner prejudicial to the security of the State it is necessary so to do.Now, therefore, in exercise of the powers conferred by Section 3 (2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964, I, C. B. Budgujar, I. A. S. District Magistrate, Rajouri hereby direct that the said Talib Hussain @ Abdul Rehman s/o Feroz Din be detained in Additional Police Lock up p/s Saddar, Jammu, subject to such conditions as to maintenance, discipline and punishment for breaches of discipline as have been specified in the Jammu and Kashmir Detenus General Order of 1968."The order under Sec. 8 read with Sectionof the Jammu and Kashmir Preventive Detention Act dated September 10, 1968 reads thus:"Whereas Shri Talib Hussain @ Abdul Rehman s/o Feroz Din r/o Azamabad p/s Darhal now Gujranwala, West Pakistan, has been detained in pursuance of order No. DIR/27/68 datedmade by me under Sec. 3 (2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964 with a view to preventing him from acting in any manner prejudicial to the security of the State andWhereas, I consider it against the public interest to disclose the grounds of detention to the said Talib Hussain Abdul Rehman s/o Feroz Din.Now, therefore, in pursuance of Section 8 read with Sectionof the said Act I hereby direct that the said Talib Hussain @ Abdul Rehman be informed that it is against the public interest to disclose to him the grounds on which his detention order was made."At the back of this order there is an endorsement dated September 13,1968 by Shri B. M. Dhar that the contents of the order had been explained to the detenu in the language understood by him. It is thus clear that the petitioner was informed that it was against public interest to disclose to the petitioner the grounds of his detention.5. Now, the petitioner having been detained with a view to preventing him from acting in a manner prejudicial to the security of the State and it having been considered against public interest to disclose to him the grounds of his detention, it is clear that by virtue of the provisions of Sec.(2) (b) (ii) of the Jammu and Kashmir Preventive Detention Act, Section 8 (1) of that Act, and by virtue of Section(2) (c), Sec. 10 of that Act, were both inapplicable to this case. These provisions merely serve to demonstrate that the question of security of the State is of paramount importance and is placed above the right to personal liberty of an individual whose activities are a danger to such security. Activities prejudicial to the security of the State always pose a threat to the public peace and safety and in the event of a crisis arising out of such activities, the rights of individuals have to be postponed to the larger considerations of State.6. In regard to the submission that the petitioner was arrested and deprived of his personal liberty long before the order of his arrest and this invalidated his detention, it is sufficient to point out that in habeas corpus proceedings the Court has to consider the legality of the detention on the date of hearing. If on the date of hearing it cannot be said that the aggrieved party has been wrongfully deprived of his personal liberty and his detention is contrary to law, a writ of habeas corpus cannot issue.7. I am expressing no opinion in this case on the question of the effect of the withdrawal of the earlier petition by the petitioner. | 0 | 1,258 | 761 | ### Instruction:
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the grounds of detention could not be disclosed to him and this was long after the expiry of ten days from his arrest. The petitioner was tortured at the interrogation centre, Jammu, and his signatures were forcibly obtained on a piece of blank paper. The petitioner claimed to be a permanent resident of village Azamabad, police station Thana Darhal, Tahsil and District Rajouri. His arrest was alleged to be mainly due to personal grudges of Fazal Hasan and Nazir Hasan.2. According to the return the petitioner was detained on September 11, 1968 pursuant to the order dated September 10, 1968. The petitioner was informed that it was against public interest to disclose to him the grounds on which the order of his detention had been made. The Government approved the order of detention on September 30, l968. The order of detention was read out to the petitioner and its contents explained to him in Urdu and the petitioner at the time of detention affixed his signature on the order as a token of having understood the same. The order under Section 8 read with Section 13-A of the J and K Preventive Detention Act to the effect that it was against public interest to disclose to the petitioner the grounds of detention was made on September 10, 1968 and not on December 10, 1968 as suggested by the Petitioner. The date December 10, 1968 on the copy attached to the reply of the Government was due to a typing error.3. On behalf of the petitioner it was argued that the petitioners detention started prior to the order of detention and that his detention must on that account be held to be illegal from its inception and therefore wholly void justifying his release. It was further submitted that there was no material showing that the orders made against the petitioner were explained to him in his own language.4. I had a look at the original records produced by the respondent. It is clear that the order of detention dated September 10, 1968 was explained to the petitioner on September 11, 1968. The order of detention is as under:"Whereas I, C. B. Budgujar, I. A. S. District Magistrate, Rajouri, am satisfied that with a view to preventing Shri Talib Hussain @ Abdul Rehman s/o Feroz Din r/o Azamabad p/s Darhal now Guiran Wala, West Pakistan from acting in a manner prejudicial to the security of the State it is necessary so to do.Now, therefore, in exercise of the powers conferred by Section 3 (2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964, I, C. B. Budgujar, I. A. S. District Magistrate, Rajouri hereby direct that the said Talib Hussain @ Abdul Rehman s/o Feroz Din be detained in Additional Police Lock up p/s Saddar, Jammu, subject to such conditions as to maintenance, discipline and punishment for breaches of discipline as have been specified in the Jammu and Kashmir Detenus General Order of 1968."The order under Sec. 8 read with Section 13-A of the Jammu and Kashmir Preventive Detention Act dated September 10, 1968 reads thus:"Whereas Shri Talib Hussain @ Abdul Rehman s/o Feroz Din r/o Azamabad p/s Darhal now Gujranwala, West Pakistan, has been detained in pursuance of order No. DIR/27/68 dated 10-9-1968 made by me under Sec. 3 (2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964 with a view to preventing him from acting in any manner prejudicial to the security of the State andWhereas, I consider it against the public interest to disclose the grounds of detention to the said Talib Hussain Abdul Rehman s/o Feroz Din.Now, therefore, in pursuance of Section 8 read with Section 13-A of the said Act I hereby direct that the said Talib Hussain @ Abdul Rehman be informed that it is against the public interest to disclose to him the grounds on which his detention order was made."At the back of this order there is an endorsement dated September 13,1968 by Shri B. M. Dhar that the contents of the order had been explained to the detenu in the language understood by him. It is thus clear that the petitioner was informed that it was against public interest to disclose to the petitioner the grounds of his detention.5. Now, the petitioner having been detained with a view to preventing him from acting in a manner prejudicial to the security of the State and it having been considered against public interest to disclose to him the grounds of his detention, it is clear that by virtue of the provisions of Sec. 13-A (2) (b) (ii) of the Jammu and Kashmir Preventive Detention Act, Section 8 (1) of that Act, and by virtue of Section 13-A (2) (c), Sec. 10 of that Act, were both inapplicable to this case. These provisions merely serve to demonstrate that the question of security of the State is of paramount importance and is placed above the right to personal liberty of an individual whose activities are a danger to such security. Activities prejudicial to the security of the State always pose a threat to the public peace and safety and in the event of a crisis arising out of such activities, the rights of individuals have to be postponed to the larger considerations of State.6. In regard to the submission that the petitioner was arrested and deprived of his personal liberty long before the order of his arrest and this invalidated his detention, it is sufficient to point out that in habeas corpus proceedings the Court has to consider the legality of the detention on the date of hearing. If on the date of hearing it cannot be said that the aggrieved party has been wrongfully deprived of his personal liberty and his detention is contrary to law, a writ of habeas corpus cannot issue.7. I am expressing no opinion in this case on the question of the effect of the withdrawal of the earlier petition by the petitioner.
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4. I had a look at the original records produced by the respondent. It is clear that the order of detention dated September 10, 1968 was explained to the petitioner on September 11, 1968. The order of detention is as under:"Whereas I, C. B. Budgujar, I. A. S. District Magistrate, Rajouri, am satisfied that with a view to preventing Shri Talib Hussain @ Abdul Rehman s/o Feroz Din r/o Azamabad p/s Darhal now Guiran Wala, West Pakistan from acting in a manner prejudicial to the security of the State it is necessary so to do.Now, therefore, in exercise of the powers conferred by Section 3 (2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964, I, C. B. Budgujar, I. A. S. District Magistrate, Rajouri hereby direct that the said Talib Hussain @ Abdul Rehman s/o Feroz Din be detained in Additional Police Lock up p/s Saddar, Jammu, subject to such conditions as to maintenance, discipline and punishment for breaches of discipline as have been specified in the Jammu and Kashmir Detenus General Order of 1968."The order under Sec. 8 read with Sectionof the Jammu and Kashmir Preventive Detention Act dated September 10, 1968 reads thus:"Whereas Shri Talib Hussain @ Abdul Rehman s/o Feroz Din r/o Azamabad p/s Darhal now Gujranwala, West Pakistan, has been detained in pursuance of order No. DIR/27/68 datedmade by me under Sec. 3 (2) read with Section 5 of the Jammu and Kashmir Preventive Detention Act, 1964 with a view to preventing him from acting in any manner prejudicial to the security of the State andWhereas, I consider it against the public interest to disclose the grounds of detention to the said Talib Hussain Abdul Rehman s/o Feroz Din.Now, therefore, in pursuance of Section 8 read with Sectionof the said Act I hereby direct that the said Talib Hussain @ Abdul Rehman be informed that it is against the public interest to disclose to him the grounds on which his detention order was made."At the back of this order there is an endorsement dated September 13,1968 by Shri B. M. Dhar that the contents of the order had been explained to the detenu in the language understood by him. It is thus clear that the petitioner was informed that it was against public interest to disclose to the petitioner the grounds of his detention.5. Now, the petitioner having been detained with a view to preventing him from acting in a manner prejudicial to the security of the State and it having been considered against public interest to disclose to him the grounds of his detention, it is clear that by virtue of the provisions of Sec.(2) (b) (ii) of the Jammu and Kashmir Preventive Detention Act, Section 8 (1) of that Act, and by virtue of Section(2) (c), Sec. 10 of that Act, were both inapplicable to this case. These provisions merely serve to demonstrate that the question of security of the State is of paramount importance and is placed above the right to personal liberty of an individual whose activities are a danger to such security. Activities prejudicial to the security of the State always pose a threat to the public peace and safety and in the event of a crisis arising out of such activities, the rights of individuals have to be postponed to the larger considerations of State.6. In regard to the submission that the petitioner was arrested and deprived of his personal liberty long before the order of his arrest and this invalidated his detention, it is sufficient to point out that in habeas corpus proceedings the Court has to consider the legality of the detention on the date of hearing. If on the date of hearing it cannot be said that the aggrieved party has been wrongfully deprived of his personal liberty and his detention is contrary to law, a writ of habeas corpus cannot issue.7. I am expressing no opinion in this case on the question of the effect of the withdrawal of the earlier petition by the petitioner.
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Charity Commissioner, Maharashtra State Vs. S.L.C.Foundation Trust | to imagine the Civil Court undertaking the work of inviting tenders, scrutinising the same and then selecting the best in order to protect the interest or benefit of the trust. The provisions of Ss. 36 and 50 of the Act will have to be understood and interpreted harmoniously in such a way as to see that none is rendered redundant and both become operative. Maxwell on the Interpretation of Statutes, Twelfth Edition, in Chap. 9 at page 187 deals with construction to avoid collision with other provisions. It is stated :-"if two sections of the same statute "are repugnant, the known rule is that the last must prevail. " But, on the general principal that an author must be supposed not to have intended to contradict himself, the court will endeavour to construe the language of the legislature in such a way as to avoid having to apply the rule, leges posteriores prioress contraries abrogant. . . . . . . . . . . . . . . . . . . . . . . . . . . . ""one way in which repugnancy can be avoided is by regarding two apparently conflicting provisions as dealing with distinct matters or situations. " taking into considerations the various provisions of the Act which make the Charity Commissioner as the main protector of the public trusts and the guardian custodian of the properties of the public trusts, we feel that the Charity Commissioner under the provisions of S. 36 has the exclusive jurisdiction to deal with the matters provided therein. Cl. (iii) or Cls. (i) and (q) of S. 50 will not give jurisdiction to the Civil Court to sanction sale, exchange or gift of any immovable property or lease for a period exceeding ten years in the case of agricultural land or for a. period exceeding three years in the case of non-agricultural land or a building belonging to the public trust. The said jurisdiction exclusively vests with the Charity Commissioner. So far as sub-clause (i) of S. 50 is concerned, no doubt the same refers to a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged or in any manner alienated on such terms and conditions as the court may deem necessary. However, in our opinion, read in the context of other provisions of the act in general and in the context of the provisions of S. 36 of the Act in particular, it must be held that the provisions of sub-cl. (i) of S. 50 gives jurisdiction to the Civil Court only to authorise the trustees to alienate the trust property when either the instrument of trust prohibits the same and/or does not authorise the trustees. Only in such cases the Civil Court can give directions authorising the trustees to alienate the trust property on such terms and conditions as the Court may deem necessary. However, after such authorisation, if the alienation is of the nature mentioned in S. 36 of the Act, for such each specific or particular transaction the sanction of the Charity Commissioner will be necessary. In this context, it cannot be forgotten that S. 36 is a special provision whereas S. 50 is general in nature. Hence, so far as specific transactions are concerned, the special provision must prevail over the general provisions. It is well settled principle of interpretation that what is prohibited directly cannot be permitted to be achieved indirectly. ( 19 ) IN the facts of the case, there is no dispute that under the trust deed, the trustees are having power to alienate the trust property. Under the circumstances, there was no question of the trustees approaching the Court by way of suit under the provisions of S. 50 (iii) or sub-clause (i) or (q) for any such direction or authorisation. The Civil Court also had no jurisdiction to authorise or sanction the particular development agreement Exh. J or the lease deed Exh. K. The development agreement Exh. J and the lease deed as per the draft lease deed Exh. K will be valid only with the previous sanction of the Charity Commissioner by virtue of the provisions of S. 36 of the Act. ( 20 ) MR. Desai submitted that the trustees had shown their bona fides by revealing all the facts to the Asstt. Charity Commissioner under S. 51 of the Act to file the present suit. Mr. Desai further submitted that in view of the fact that in response to the advertisement issued during the pendency of this appeal, not a single person came forward to give better terms than the proposed development agreement with the said Shatrunjaya Darshan Construction Co. Pvt. Ltd. , goes to show beyond doubt that the said development agreement and the terms thereof are the best. On the other hand, it is contended by Mr. Kadam that the transaction was not for the benefit of the trust but is for the benefit of the trustees and their relatives. Further, there was no necessity for disposing of the trust property. We do not propose to go into this aspect of the matter as, in our opinion, the City Civil Court at Bombay had no jurisdiction to authorise or sanction the development agreement and/or the draft lease deed Exh. J and Exh. K to the plaint. It is the Charity Commissioner who has the exclusive jurisdiction to deal with the same as and when he is moved in the matter. ( 21 ) WE are also not impressed by the submission that in view of the fact that the Asstt. Charity Commissioner granted permission to file the suit, the Charity Commissioner cannot oppose granting of the decree in favour of the plaintiffs by the Civil Court. Granting permission to file the suit under the provisions of S. 51 will not do away with the mandatory requirement of the previous sanction of the Charity Commissioner under the provisions of S. 36 of the Act. | 1[ds]( 8 ) WITH the assistance of the learned counsel on both the sides, we have gone through the pleadings and various exhibits produced by the respective parties. We have also gone through the judgment of the learned Judge in the light of the rival contentions and on consideration of the entire material, we are of the opinion that the present appeal by the Charity Commissioner has to be allowed9 ) NOW, so far as the suit related to the relief of amendment of the trust deed, undoubtedly, theis within the jurisdiction of the Civil Court. In the lower Court, the Advocate on behalf of thehad conceded that the clause of the amendment empowering the trustees to transact the business will have to be deleted. Otherwise, the amendments have been sought with a view to enhancing the objects and purpose of trust to suit the modern requirement. The learned Judge of the lower Court has, therefore, observed that there is no reason as to why the said amendment should not be allowed save and except the fact that the agreement of joint development which the respondents have sought to include as part of the amendment is not to be included in the amendment but will be independent of the trust deed and cannot and will not form part of the trust deed. The Advocate for the respondents at the time of arguments before the lower Court tendered Schedule I which was marked as Exh. A by the learned Judge and the learned Judge granted amendment to that extent only for the purpose of implementing the objects of the trust. Thus, so far as this relief is concerned, no fault could be found with the order of the learned Judge permitting the amendment of the trust deed to the limited extent of adding certain more objects to the list of objects in the truston proper reading and understanding of these two documents, it is impossible to separate them. The development agreement is meaningless without the sale of flats, shops and premises and sale of shops, flats and premises is meaningless without the lease for 99 years of the trust property or the portion thereof. In fact, Cl. 17 of the development agreement pointedly makes reference to the trust being required to execute lease or lease deeds for 99 years. Thus, the development agreement and the proposed lease deeds are integral part of one transaction and either is incapable of implementation without the other. Thus, reading those two documents in their proper perspective, in substance they are one transaction contemplating lease of the trust property for 99 years and would squarely fall within the provisions of S. 36 (1) (b) of the Act. It is also to be noticed that in para 22 of the plaint, the plaintiffs (respondents herein) have averred that in the facts and circumstances mentioned above, the trust is entitled to directions under S. 50 (i) of the Act for development and consequential alienation of the property by way of lease in terms of the draft agreement attached at Exh., the said rule expects certain information to be provided to the Charity Commissioner and also empowers to Charity Commissioner to make such inquiry as he deems necessary. It also empowers the Charity Commissioner to impose such conditions or give such direction as he may deem fit. It is an admitted position that as a matter of practice, the Charity Commissioner invites offers or tenders and upon the scrutiny, sanctions such alienation which will result into the maximum benefit to theis not disputed that the suit, if at all, can fall under(iii) of S. 50 and reliefs can fall, if at all, under Cls. (i) and (q) of the saida proper reading of the judgment, it is clear to us that the said authority lays down that the sale prohibited without sanction of the Charity Commissioner does not include Court sale in execution of a decree. It is also pertinent to note that after the said judgment, by Maharashtra Act 20 of 1971, Chapterdealing with powers and duties of, and restrictions on, trustees came to be inserted. S. 36 was also amended and Ss. 36a and 36b came to be18 ) ON consideration of the provisions of S. 36 and S. 50 of the Act, we are of the opinion that S. 36 of the Act as applicable to the State of Maharashtra is a complete Code by itself and though the order of the Charity Commissioner is not made expressly final, no appeal, or revision having been provided against any order passed by the Charity Commissioner under S. 36 of the Act, the same is in fact final and conclusive. Therefore, by virtue of the provisions of S. 80 of the Act, once the matter falls properly within the provisions of S. 36, the Civil Court will have no jurisdiction to deal and decide theIt is also not possible to accept the submission of Mr. Desai for thethat power to sanction alienation in the matter of sale, exchange or gift of any immovable property or grant lease is vested in both the authorities, viz. , the Charity Commissioner under S. 36 of the Act and the Civil Court under S. 50, Cl. (iii) and(i) and (q ). In the very nature of things, the Charity Commissioner is in a better position to scrutinise specific transactions, consider all the terms and conditions, consider the interest, benefit and protection of the trust and he is also in a better position to invite tenders or offers, scrutinise the same and put necessary conditions as he may think fit to impose. He is an officer who is well conversant with problems of public trust. On the other hand, it is difficult to imagine the Civil Court undertaking the work of inviting tenders, scrutinising the same and then selecting the best in order to protect the interest or benefit of the19 ) IN the facts of the case, there is no dispute that under the trust deed, the trustees are having power to alienate the trust property. Under the circumstances, there was no question of the trustees approaching the Court by way of suit under the provisions of S. 50 (iii) or(i) or (q) for any such direction or authorisation. The Civil Court also had no jurisdiction to authorise or sanction the particular development agreement Exh. J or the lease deed Exh. K. The development agreement Exh. J and the lease deed as per the draft lease deed Exh. K will be valid only with the previous sanction of the Charity Commissioner by virtue of the provisions of S. 36 of thedo not propose to go into this aspect of the matter as, in our opinion, the City Civil Court at Bombay had no jurisdiction to authorise or sanction the development agreement and/or the draft lease deed Exh. J and Exh. K to the plaint. It is the Charity Commissioner who has the exclusive jurisdiction to deal with the same as and when he is moved in the21 ) WE are also not impressed by the submission that in view of the fact that the Asstt. Charity Commissioner granted permission to file the suit, the Charity Commissioner cannot oppose granting of the decree in favour of the plaintiffs by the Civil Court. Granting permission to file the suit under the provisions of S. 51 will not do away with the mandatory requirement of the previous sanction of the Charity Commissioner under the provisions of S. 36 of the Act. | 1 | 8,761 | 1,382 | ### Instruction:
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to imagine the Civil Court undertaking the work of inviting tenders, scrutinising the same and then selecting the best in order to protect the interest or benefit of the trust. The provisions of Ss. 36 and 50 of the Act will have to be understood and interpreted harmoniously in such a way as to see that none is rendered redundant and both become operative. Maxwell on the Interpretation of Statutes, Twelfth Edition, in Chap. 9 at page 187 deals with construction to avoid collision with other provisions. It is stated :-"if two sections of the same statute "are repugnant, the known rule is that the last must prevail. " But, on the general principal that an author must be supposed not to have intended to contradict himself, the court will endeavour to construe the language of the legislature in such a way as to avoid having to apply the rule, leges posteriores prioress contraries abrogant. . . . . . . . . . . . . . . . . . . . . . . . . . . . ""one way in which repugnancy can be avoided is by regarding two apparently conflicting provisions as dealing with distinct matters or situations. " taking into considerations the various provisions of the Act which make the Charity Commissioner as the main protector of the public trusts and the guardian custodian of the properties of the public trusts, we feel that the Charity Commissioner under the provisions of S. 36 has the exclusive jurisdiction to deal with the matters provided therein. Cl. (iii) or Cls. (i) and (q) of S. 50 will not give jurisdiction to the Civil Court to sanction sale, exchange or gift of any immovable property or lease for a period exceeding ten years in the case of agricultural land or for a. period exceeding three years in the case of non-agricultural land or a building belonging to the public trust. The said jurisdiction exclusively vests with the Charity Commissioner. So far as sub-clause (i) of S. 50 is concerned, no doubt the same refers to a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged or in any manner alienated on such terms and conditions as the court may deem necessary. However, in our opinion, read in the context of other provisions of the act in general and in the context of the provisions of S. 36 of the Act in particular, it must be held that the provisions of sub-cl. (i) of S. 50 gives jurisdiction to the Civil Court only to authorise the trustees to alienate the trust property when either the instrument of trust prohibits the same and/or does not authorise the trustees. Only in such cases the Civil Court can give directions authorising the trustees to alienate the trust property on such terms and conditions as the Court may deem necessary. However, after such authorisation, if the alienation is of the nature mentioned in S. 36 of the Act, for such each specific or particular transaction the sanction of the Charity Commissioner will be necessary. In this context, it cannot be forgotten that S. 36 is a special provision whereas S. 50 is general in nature. Hence, so far as specific transactions are concerned, the special provision must prevail over the general provisions. It is well settled principle of interpretation that what is prohibited directly cannot be permitted to be achieved indirectly. ( 19 ) IN the facts of the case, there is no dispute that under the trust deed, the trustees are having power to alienate the trust property. Under the circumstances, there was no question of the trustees approaching the Court by way of suit under the provisions of S. 50 (iii) or sub-clause (i) or (q) for any such direction or authorisation. The Civil Court also had no jurisdiction to authorise or sanction the particular development agreement Exh. J or the lease deed Exh. K. The development agreement Exh. J and the lease deed as per the draft lease deed Exh. K will be valid only with the previous sanction of the Charity Commissioner by virtue of the provisions of S. 36 of the Act. ( 20 ) MR. Desai submitted that the trustees had shown their bona fides by revealing all the facts to the Asstt. Charity Commissioner under S. 51 of the Act to file the present suit. Mr. Desai further submitted that in view of the fact that in response to the advertisement issued during the pendency of this appeal, not a single person came forward to give better terms than the proposed development agreement with the said Shatrunjaya Darshan Construction Co. Pvt. Ltd. , goes to show beyond doubt that the said development agreement and the terms thereof are the best. On the other hand, it is contended by Mr. Kadam that the transaction was not for the benefit of the trust but is for the benefit of the trustees and their relatives. Further, there was no necessity for disposing of the trust property. We do not propose to go into this aspect of the matter as, in our opinion, the City Civil Court at Bombay had no jurisdiction to authorise or sanction the development agreement and/or the draft lease deed Exh. J and Exh. K to the plaint. It is the Charity Commissioner who has the exclusive jurisdiction to deal with the same as and when he is moved in the matter. ( 21 ) WE are also not impressed by the submission that in view of the fact that the Asstt. Charity Commissioner granted permission to file the suit, the Charity Commissioner cannot oppose granting of the decree in favour of the plaintiffs by the Civil Court. Granting permission to file the suit under the provisions of S. 51 will not do away with the mandatory requirement of the previous sanction of the Charity Commissioner under the provisions of S. 36 of the Act.
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that extent only for the purpose of implementing the objects of the trust. Thus, so far as this relief is concerned, no fault could be found with the order of the learned Judge permitting the amendment of the trust deed to the limited extent of adding certain more objects to the list of objects in the truston proper reading and understanding of these two documents, it is impossible to separate them. The development agreement is meaningless without the sale of flats, shops and premises and sale of shops, flats and premises is meaningless without the lease for 99 years of the trust property or the portion thereof. In fact, Cl. 17 of the development agreement pointedly makes reference to the trust being required to execute lease or lease deeds for 99 years. Thus, the development agreement and the proposed lease deeds are integral part of one transaction and either is incapable of implementation without the other. Thus, reading those two documents in their proper perspective, in substance they are one transaction contemplating lease of the trust property for 99 years and would squarely fall within the provisions of S. 36 (1) (b) of the Act. It is also to be noticed that in para 22 of the plaint, the plaintiffs (respondents herein) have averred that in the facts and circumstances mentioned above, the trust is entitled to directions under S. 50 (i) of the Act for development and consequential alienation of the property by way of lease in terms of the draft agreement attached at Exh., the said rule expects certain information to be provided to the Charity Commissioner and also empowers to Charity Commissioner to make such inquiry as he deems necessary. It also empowers the Charity Commissioner to impose such conditions or give such direction as he may deem fit. It is an admitted position that as a matter of practice, the Charity Commissioner invites offers or tenders and upon the scrutiny, sanctions such alienation which will result into the maximum benefit to theis not disputed that the suit, if at all, can fall under(iii) of S. 50 and reliefs can fall, if at all, under Cls. (i) and (q) of the saida proper reading of the judgment, it is clear to us that the said authority lays down that the sale prohibited without sanction of the Charity Commissioner does not include Court sale in execution of a decree. It is also pertinent to note that after the said judgment, by Maharashtra Act 20 of 1971, Chapterdealing with powers and duties of, and restrictions on, trustees came to be inserted. S. 36 was also amended and Ss. 36a and 36b came to be18 ) ON consideration of the provisions of S. 36 and S. 50 of the Act, we are of the opinion that S. 36 of the Act as applicable to the State of Maharashtra is a complete Code by itself and though the order of the Charity Commissioner is not made expressly final, no appeal, or revision having been provided against any order passed by the Charity Commissioner under S. 36 of the Act, the same is in fact final and conclusive. Therefore, by virtue of the provisions of S. 80 of the Act, once the matter falls properly within the provisions of S. 36, the Civil Court will have no jurisdiction to deal and decide theIt is also not possible to accept the submission of Mr. Desai for thethat power to sanction alienation in the matter of sale, exchange or gift of any immovable property or grant lease is vested in both the authorities, viz. , the Charity Commissioner under S. 36 of the Act and the Civil Court under S. 50, Cl. (iii) and(i) and (q ). In the very nature of things, the Charity Commissioner is in a better position to scrutinise specific transactions, consider all the terms and conditions, consider the interest, benefit and protection of the trust and he is also in a better position to invite tenders or offers, scrutinise the same and put necessary conditions as he may think fit to impose. He is an officer who is well conversant with problems of public trust. On the other hand, it is difficult to imagine the Civil Court undertaking the work of inviting tenders, scrutinising the same and then selecting the best in order to protect the interest or benefit of the19 ) IN the facts of the case, there is no dispute that under the trust deed, the trustees are having power to alienate the trust property. Under the circumstances, there was no question of the trustees approaching the Court by way of suit under the provisions of S. 50 (iii) or(i) or (q) for any such direction or authorisation. The Civil Court also had no jurisdiction to authorise or sanction the particular development agreement Exh. J or the lease deed Exh. K. The development agreement Exh. J and the lease deed as per the draft lease deed Exh. K will be valid only with the previous sanction of the Charity Commissioner by virtue of the provisions of S. 36 of thedo not propose to go into this aspect of the matter as, in our opinion, the City Civil Court at Bombay had no jurisdiction to authorise or sanction the development agreement and/or the draft lease deed Exh. J and Exh. K to the plaint. It is the Charity Commissioner who has the exclusive jurisdiction to deal with the same as and when he is moved in the21 ) WE are also not impressed by the submission that in view of the fact that the Asstt. Charity Commissioner granted permission to file the suit, the Charity Commissioner cannot oppose granting of the decree in favour of the plaintiffs by the Civil Court. Granting permission to file the suit under the provisions of S. 51 will not do away with the mandatory requirement of the previous sanction of the Charity Commissioner under the provisions of S. 36 of the Act.
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Masta Singh Vs. Union Territory, Chandigarh | Fazal Ali, J. 1. In this appeal by special leave the appellant had been convicted under Section 16(1)(a)(i) read with Section 7(i) of the Prevention of Food Adulteration Act, 1954 and sentenced to six months rigorous imprisonment and a fine of Rs. 1000. The prosecution case was that on September 28, 1971, PW 1 the Food Inspector found the appellant Masta Singh having in his possession about 10 kgs. of cows milk carried for a sale in a drum. He demanded a sample and after purchasing 24 ounces of milk and making the usual parts he sent the same to the Public Analyst for examination. There is absolutely no evidence on the record to show as to whether or not the sample of milk taken by the Food Inspector was meant for sale that it was cows milk. PW 1 has no doubt stated in his evidence that the milk was carried in a drum and was cows milk but he does not explain from what source he came to have this knowledge. In fact the Food Inspector in his report to the Public Analyst (Item No. 23) has clearly stated that in the container from which the sample was taken, nothing was mentioned as to the nature of the milk. Furthermore, PW 2 has admitted in his cross-examination that the appellant had told the Food Inspector that the milk was seprata. Apart from this there was nothing to show that the milk alleged to have been sold was cows milk. The evidence positively indicates that it was not cows milk, but seprata. Even on the question whether the milk was meant for sale, there is absolutely no evidence on the record except the ipse dixit of PW 1 which is also so vague that no court can rely on such a statement. PW 1 does not say on what basis or on what material he formed the opinion that it was cows milk. Secondly, the evidence of PW 1 is contradicted by PW 2. In this state of the evidence it cannot be held that the charge framed against the appellant was proved. The case appears to have been very badly conducted by the prosecution and presumably an innocent person has been subjected to prosecution which lasted for quite a long time including five years in this Court. We should have expected the prosecution to produce proper evidence in the court before launching the prosecution against the appellant. 2. In these circumstances, therefore, we find that there is absolutely no evidence to prove the charge framed against the appellant. 3. | 1[ds]The case appears to have been very badly conducted by the prosecution and presumably an innocent person has been subjected to prosecution which lasted for quite a long time including five years in this Court. We should have expected the prosecution to produce proper evidence in the court before launching the prosecution against the appellant.In these circumstances, therefore, we find that there is absolutely no evidence to prove the charge framed against the appellant. | 1 | 480 | 82 | ### 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:
Fazal Ali, J. 1. In this appeal by special leave the appellant had been convicted under Section 16(1)(a)(i) read with Section 7(i) of the Prevention of Food Adulteration Act, 1954 and sentenced to six months rigorous imprisonment and a fine of Rs. 1000. The prosecution case was that on September 28, 1971, PW 1 the Food Inspector found the appellant Masta Singh having in his possession about 10 kgs. of cows milk carried for a sale in a drum. He demanded a sample and after purchasing 24 ounces of milk and making the usual parts he sent the same to the Public Analyst for examination. There is absolutely no evidence on the record to show as to whether or not the sample of milk taken by the Food Inspector was meant for sale that it was cows milk. PW 1 has no doubt stated in his evidence that the milk was carried in a drum and was cows milk but he does not explain from what source he came to have this knowledge. In fact the Food Inspector in his report to the Public Analyst (Item No. 23) has clearly stated that in the container from which the sample was taken, nothing was mentioned as to the nature of the milk. Furthermore, PW 2 has admitted in his cross-examination that the appellant had told the Food Inspector that the milk was seprata. Apart from this there was nothing to show that the milk alleged to have been sold was cows milk. The evidence positively indicates that it was not cows milk, but seprata. Even on the question whether the milk was meant for sale, there is absolutely no evidence on the record except the ipse dixit of PW 1 which is also so vague that no court can rely on such a statement. PW 1 does not say on what basis or on what material he formed the opinion that it was cows milk. Secondly, the evidence of PW 1 is contradicted by PW 2. In this state of the evidence it cannot be held that the charge framed against the appellant was proved. The case appears to have been very badly conducted by the prosecution and presumably an innocent person has been subjected to prosecution which lasted for quite a long time including five years in this Court. We should have expected the prosecution to produce proper evidence in the court before launching the prosecution against the appellant. 2. In these circumstances, therefore, we find that there is absolutely no evidence to prove the charge framed against the appellant. 3.
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The case appears to have been very badly conducted by the prosecution and presumably an innocent person has been subjected to prosecution which lasted for quite a long time including five years in this Court. We should have expected the prosecution to produce proper evidence in the court before launching the prosecution against the appellant.In these circumstances, therefore, we find that there is absolutely no evidence to prove the charge framed against the appellant.
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A.P. Aggarwal Vs. Govt.Of N.C.T. Of Delhi | Tribunal or before this Court to place any valid reason for ignoring the appellant and launching a fresh process of selection.12. It is well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us (vide Shrilekha Vidyarthi v. State of U.P., 1991(1) SCC 212.13. Learned Additional Solicitor General referred to the judgment of this Court in Madan Lal and others v. State of J & K and others, 1995(3) SCC 486 and placed reliance on Paragraph 23 of the judgment at Page 502. That ruling has no relevance in the present case. The advertisement was for applications to the post of Munsif. According to the advertisement, there were 11 vacancies to be filled up and the requisition to the Public Service Commission was to select 11 persons for filling up the said seven vacancies. While sending the list of selected candidates, the Public Service Commission sent a list containing more names than 11. That was obviously with a view to fill up the vacancies, if any of the 11 candidates according to their merit did not join, from among the 11 candidates in the waiting list according to their merit. The Bench held that once the 11 candidates who were selected joined the post, the list got exhausted and the waiting list could not be used for any purpose thereafter. That principle will not apply in the present case in view of the facts already set out by us.14. In R.S. Mittal v. Union of India, 1995 Supp.(2) SCC 230 the question arose with regard to selection of candidates to the post of Judicial Member, Income-tax Appellate Tribunal. The selection was made by a Selection Board consisting of a sitting Judge of this Court. The Selection Board prepared a panel of selected candidates which included the name of the appellant before this Court and sent its recommendations. The candidates who were at numbers 1 and 2 in the panel did not accept the appointment. The Bench observed that though a person on the select panel has no vested right to be appointed to the post for which he has been selected has a right to be considered for appointment and at the same time the appointing authority cannot ignore the select panel or decline to make an appointment on its whims. The Court said that when a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, ordinarily there i s no justification to ignore him for appointment and that there has to be a justifiable reason to decline to appoint a person who is on the select panel. However, on the facts of the case, the Bench did not give any relief to the appellant as he was only No. 4 and no information was available about the stand of the person who was at No. 3 of the select panel. While reversing the findings given by the Central Administrative Tribunal to the extent indicated in the judgment, the Bench dismissed the appeal but directed the Government to pay cost of the proceedings to the appellant which was quantified at Rs. 30,000/-. 15. In Virender S. Hooda and others v. State of Haryana and another, 1999(3) SCC 696. The Haryana Service Commission advertised 12 posts of Haryana Civil Service (Executive Branch). On completion of selection final list was published. Some of the selected candidates did not join and the appellant that they should have been considered against the vacancies so arising, depending upon the ranking obtained by the appellants in the competitive examination. They relied on Government Circulars dated 22.3.1957 and 26.5.1972 according to which the vacancies which arose within six months from receipt of recommendations of the Commission, should be filled up from the waiting list maintained by the Commission. The writ petition filed by the appellants was dismissed by the High Court in the view that the administrative instructions contained in the Circulars could not be enforced. Reversing the decision of the High Court, the Division Bench of this Court observed that the Government ought to have considered the case of the appellants as per the rank obtained by them and the appellants had to be appointed if they came within the range of selection. The Bench pointed out that when those vacancies arose within a period of six months from the date of previous selection, the Government circulars were attracted and the view of the High Court that the vacancies arose after selection process commenced had no relevance and they are contrary to the declared policy of the Government. The Bench observed that the view taken by the High Court that the administrative instructions could not be enforced by the appellants would be looking at the matter from a narrow and wrong angle. The Bench said, "when a policy has been declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instructions are not contrary to the rules, the respondents ought to follow the same". The ruling will apply on all fours in the present case.16. In the circumstances we have no hesitation in allowing the appeal and directing the respondents to appoint the appellant as Member, Sales-tax Appellate Tribunal as he is the only other person in the panel of names selected by the Select Committee and as nothing has been brought out against him by the Government.17. On the facts, we find that all the conditions set out in the office memorandum issued by the Central Government dated 14.5.1987 are fulfilled in the present case and the rejection of the appellants name without any reason therefor is arbitrary and unconstitutional. | 1[ds]11. In our opinion, this is a case of conferment of power together with a discretion which goes with it to enable proper exercise of the power and therefore it is coupled with a duty to shun arbitrariness in its exercise and to promote the object for which the power is conferred which undoubtedly is public interest and not individual or private gain, whim or caprice of any individual. Even if it is to be said, that the instructions contained in the Offence Memorandum dated 14.5.1987 are discretionary and not mandatory, such discretion is coupled with the duty to act in a manner which will promote the object for which the power is conferred and also satisfy the mandatory requirement of the Statute. It is not therefore open to the Government to ignore the panel which was already approved and accepted by it and resort to a fresh selection process without giving any proper reason for resorting to the same. It is not the case of the Government at any stage that the appellant is not fit to occupy the post. No attempt was made before the Tribunal or before this Court to place any valid reason for ignoring the appellant and launching a fresh process of selection.12. It is well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us (vide Shrilekha Vidyarthi v. State of U.P., 1991(1) SCC 212.13. Learned Additional Solicitor General referred to the judgment of this Court in Madan Lal and others v. State of J & K and others, 1995(3) SCC 486 and placed reliance on Paragraph 23 of the judgment at Page 502. That ruling has no relevance in the present case. The advertisement was for applications to the post of Munsif. According to the advertisement, there were 11 vacancies to be filled up and the requisition to the Public Service Commission was to select 11 persons for filling up the said seven vacancies. While sending the list of selected candidates, the Public Service Commission sent a list containing more names than 11. That was obviously with a view to fill up the vacancies, if any of the 11 candidates according to their merit did not join, from among the 11 candidates in the waiting list according to their merit. The Bench held that once the 11 candidates who were selected joined the post, the list got exhausted and the waiting list could not be used for any purpose thereafter. That principle will not apply in the present case in view of the facts already set out by us.14. In R.S. Mittal v. Union of India, 1995 Supp.(2) SCC 230 the question arose with regard to selection of candidates to the post of Judicial Member,In Virender S. Hooda and others v. State of Haryana and another, 1999(3) SCC 696. The Haryana Service Commission advertised 12 posts of Haryana Civil Service (Executive Branch). On completion of selection final list was published. Some of the selected candidates did not join and the appellant that they should have been considered against the vacancies so arising, depending upon the ranking obtained by the appellants in the competitive examination. They relied on Government Circulars dated 22.3.1957 and 26.5.1972 according to which the vacancies which arose within six months from receipt of recommendations of the Commission, should be filled up from the waiting list maintained by the Commission. The writ petition filed by the appellants was dismissed by the High Court in the view that the administrative instructions contained in the Circulars could not be enforced. Reversing the decision of the High Court, the Division Bench of this Court observed that the Government ought to have considered the case of the appellants as per the rank obtained by them and the appellants had to be appointed if they came within the range of selection. The Bench pointed out that when those vacancies arose within a period of six months from the date of previous selection, the Government circulars were attracted and the view of the High Court that the vacancies arose after selection process commenced had no relevance and they are contrary to the declared policy of the Government. The Bench observed that the view taken by the High Court that the administrative instructions could not be enforced by the appellants would be looking at the matter from a narrow and wrong angle. The Bench said, "when a policy has been declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instructions are not contrary to the rules, the respondents ought to follow the same". The ruling will apply on all fours in the present case.16. In the circumstances we have no hesitation in allowing the appeal and directing the respondents to appoint the appellant as Member,Appellate Tribunal as he is the only other person in the panel of names selected by the Select Committee and as nothing has been brought out against him by the Government.17. On the facts, we find that all the conditions set out in the office memorandum issued by the Central Government dated 14.5.1987 are fulfilled in the present case and the rejection of the appellants name without any reason therefor is arbitrary and unconstitutional. | 1 | 2,958 | 998 | ### 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:
Tribunal or before this Court to place any valid reason for ignoring the appellant and launching a fresh process of selection.12. It is well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us (vide Shrilekha Vidyarthi v. State of U.P., 1991(1) SCC 212.13. Learned Additional Solicitor General referred to the judgment of this Court in Madan Lal and others v. State of J & K and others, 1995(3) SCC 486 and placed reliance on Paragraph 23 of the judgment at Page 502. That ruling has no relevance in the present case. The advertisement was for applications to the post of Munsif. According to the advertisement, there were 11 vacancies to be filled up and the requisition to the Public Service Commission was to select 11 persons for filling up the said seven vacancies. While sending the list of selected candidates, the Public Service Commission sent a list containing more names than 11. That was obviously with a view to fill up the vacancies, if any of the 11 candidates according to their merit did not join, from among the 11 candidates in the waiting list according to their merit. The Bench held that once the 11 candidates who were selected joined the post, the list got exhausted and the waiting list could not be used for any purpose thereafter. That principle will not apply in the present case in view of the facts already set out by us.14. In R.S. Mittal v. Union of India, 1995 Supp.(2) SCC 230 the question arose with regard to selection of candidates to the post of Judicial Member, Income-tax Appellate Tribunal. The selection was made by a Selection Board consisting of a sitting Judge of this Court. The Selection Board prepared a panel of selected candidates which included the name of the appellant before this Court and sent its recommendations. The candidates who were at numbers 1 and 2 in the panel did not accept the appointment. The Bench observed that though a person on the select panel has no vested right to be appointed to the post for which he has been selected has a right to be considered for appointment and at the same time the appointing authority cannot ignore the select panel or decline to make an appointment on its whims. The Court said that when a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, ordinarily there i s no justification to ignore him for appointment and that there has to be a justifiable reason to decline to appoint a person who is on the select panel. However, on the facts of the case, the Bench did not give any relief to the appellant as he was only No. 4 and no information was available about the stand of the person who was at No. 3 of the select panel. While reversing the findings given by the Central Administrative Tribunal to the extent indicated in the judgment, the Bench dismissed the appeal but directed the Government to pay cost of the proceedings to the appellant which was quantified at Rs. 30,000/-. 15. In Virender S. Hooda and others v. State of Haryana and another, 1999(3) SCC 696. The Haryana Service Commission advertised 12 posts of Haryana Civil Service (Executive Branch). On completion of selection final list was published. Some of the selected candidates did not join and the appellant that they should have been considered against the vacancies so arising, depending upon the ranking obtained by the appellants in the competitive examination. They relied on Government Circulars dated 22.3.1957 and 26.5.1972 according to which the vacancies which arose within six months from receipt of recommendations of the Commission, should be filled up from the waiting list maintained by the Commission. The writ petition filed by the appellants was dismissed by the High Court in the view that the administrative instructions contained in the Circulars could not be enforced. Reversing the decision of the High Court, the Division Bench of this Court observed that the Government ought to have considered the case of the appellants as per the rank obtained by them and the appellants had to be appointed if they came within the range of selection. The Bench pointed out that when those vacancies arose within a period of six months from the date of previous selection, the Government circulars were attracted and the view of the High Court that the vacancies arose after selection process commenced had no relevance and they are contrary to the declared policy of the Government. The Bench observed that the view taken by the High Court that the administrative instructions could not be enforced by the appellants would be looking at the matter from a narrow and wrong angle. The Bench said, "when a policy has been declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instructions are not contrary to the rules, the respondents ought to follow the same". The ruling will apply on all fours in the present case.16. In the circumstances we have no hesitation in allowing the appeal and directing the respondents to appoint the appellant as Member, Sales-tax Appellate Tribunal as he is the only other person in the panel of names selected by the Select Committee and as nothing has been brought out against him by the Government.17. On the facts, we find that all the conditions set out in the office memorandum issued by the Central Government dated 14.5.1987 are fulfilled in the present case and the rejection of the appellants name without any reason therefor is arbitrary and unconstitutional.
### Response:
1
### Explanation:
11. In our opinion, this is a case of conferment of power together with a discretion which goes with it to enable proper exercise of the power and therefore it is coupled with a duty to shun arbitrariness in its exercise and to promote the object for which the power is conferred which undoubtedly is public interest and not individual or private gain, whim or caprice of any individual. Even if it is to be said, that the instructions contained in the Offence Memorandum dated 14.5.1987 are discretionary and not mandatory, such discretion is coupled with the duty to act in a manner which will promote the object for which the power is conferred and also satisfy the mandatory requirement of the Statute. It is not therefore open to the Government to ignore the panel which was already approved and accepted by it and resort to a fresh selection process without giving any proper reason for resorting to the same. It is not the case of the Government at any stage that the appellant is not fit to occupy the post. No attempt was made before the Tribunal or before this Court to place any valid reason for ignoring the appellant and launching a fresh process of selection.12. It is well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us (vide Shrilekha Vidyarthi v. State of U.P., 1991(1) SCC 212.13. Learned Additional Solicitor General referred to the judgment of this Court in Madan Lal and others v. State of J & K and others, 1995(3) SCC 486 and placed reliance on Paragraph 23 of the judgment at Page 502. That ruling has no relevance in the present case. The advertisement was for applications to the post of Munsif. According to the advertisement, there were 11 vacancies to be filled up and the requisition to the Public Service Commission was to select 11 persons for filling up the said seven vacancies. While sending the list of selected candidates, the Public Service Commission sent a list containing more names than 11. That was obviously with a view to fill up the vacancies, if any of the 11 candidates according to their merit did not join, from among the 11 candidates in the waiting list according to their merit. The Bench held that once the 11 candidates who were selected joined the post, the list got exhausted and the waiting list could not be used for any purpose thereafter. That principle will not apply in the present case in view of the facts already set out by us.14. In R.S. Mittal v. Union of India, 1995 Supp.(2) SCC 230 the question arose with regard to selection of candidates to the post of Judicial Member,In Virender S. Hooda and others v. State of Haryana and another, 1999(3) SCC 696. The Haryana Service Commission advertised 12 posts of Haryana Civil Service (Executive Branch). On completion of selection final list was published. Some of the selected candidates did not join and the appellant that they should have been considered against the vacancies so arising, depending upon the ranking obtained by the appellants in the competitive examination. They relied on Government Circulars dated 22.3.1957 and 26.5.1972 according to which the vacancies which arose within six months from receipt of recommendations of the Commission, should be filled up from the waiting list maintained by the Commission. The writ petition filed by the appellants was dismissed by the High Court in the view that the administrative instructions contained in the Circulars could not be enforced. Reversing the decision of the High Court, the Division Bench of this Court observed that the Government ought to have considered the case of the appellants as per the rank obtained by them and the appellants had to be appointed if they came within the range of selection. The Bench pointed out that when those vacancies arose within a period of six months from the date of previous selection, the Government circulars were attracted and the view of the High Court that the vacancies arose after selection process commenced had no relevance and they are contrary to the declared policy of the Government. The Bench observed that the view taken by the High Court that the administrative instructions could not be enforced by the appellants would be looking at the matter from a narrow and wrong angle. The Bench said, "when a policy has been declared by the State as to the manner of filling up the post and that policy is declared in terms of rules and instructions issued to the Public Service Commission from time to time and so long as these instructions are not contrary to the rules, the respondents ought to follow the same". The ruling will apply on all fours in the present case.16. In the circumstances we have no hesitation in allowing the appeal and directing the respondents to appoint the appellant as Member,Appellate Tribunal as he is the only other person in the panel of names selected by the Select Committee and as nothing has been brought out against him by the Government.17. On the facts, we find that all the conditions set out in the office memorandum issued by the Central Government dated 14.5.1987 are fulfilled in the present case and the rejection of the appellants name without any reason therefor is arbitrary and unconstitutional.
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M.C. MEHTA IN RE REPORT NO. 72 FILED BY EPCA AND ALLOCATION OF NATURAL GAS TO IGL Vs. UNION OF INDIA | 1. We have considered the above Report filed by EPCA. 2. On 2nd May, 2017, learned amicus curiae had briefed us on the Report. It was pointed out on that day that use of Furnace Oil and Pet-Coke is prohibited in Delhi. It was further stated that the States of U.P., Haryana and Rajasthan had no objection if the ban is placed on the use of Furnace Oil and Pet-Coke. These State Governments were, therefore, permitted to place such a ban. 3. Almost four months have gone by and we are told that none of these three State Governments have taken any action in this matter. To make the situation worse, there is no representation on behalf of the State of U.P. nor is there any representation from the State of Rajasthan. Learned counsel appearing for the State of Haryana wants us to wait for two minutes so that he can get instructions from the State Government. We are not inclined to wait for two minutes so as to enable learned counsel to get instructions. Instructions should have been obtained well before the date of hearing. | 1[ds]3. Almost four months have gone by and we are told that none of these three State Governments have taken any action in this matter. To make the situation worse, there is no representation on behalf of the State of U.P. nor is there any representation from the State of Rajasthan. Learned counsel appearing for the State of Haryana wants us to wait for two minutes so that he can get instructions from the State Government. We are not inclined to wait for two minutes so as to enable learned counsel to get instructions. Instructions should have been obtained well before the date of hearing.16. We are quite distressed that the Ministry of Environment, Forest and Climate Change has been sitting over 16 recommendations at least since 27.06.2017, that is, almost about three months without apparently showing any concern whatsoever for the pollution in Delhi and in NCR.18. In any event, since the draft notifications have been issued and since the industry had assured us on 20.07.2017 that they would abide by the standards fixed by the CPCB, we expect the industries to live up to the assurance given to us by the industry even though the Ministry of Environment, Forest and Climate Change does not seem to be concerned about the entire issue.19. With regard to two remaining industries, i.e., nitric acid industry and fertilizer industry, we are told that the standards in this regard were sent to the Ministry of Environment, Forest and Climate Change by the CPCB on 14th February, 2014. Three and half years have gone by, but the Ministry of Environment, Forest and Climate Change has not done anything about it.20. This is a completely disgusting state of affairs and this is hardly the way in which the Ministry ought to function if it is expected to perform its duties sincerely, honestly and with dedication. | 1 | 206 | 341 | ### 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:
1. We have considered the above Report filed by EPCA. 2. On 2nd May, 2017, learned amicus curiae had briefed us on the Report. It was pointed out on that day that use of Furnace Oil and Pet-Coke is prohibited in Delhi. It was further stated that the States of U.P., Haryana and Rajasthan had no objection if the ban is placed on the use of Furnace Oil and Pet-Coke. These State Governments were, therefore, permitted to place such a ban. 3. Almost four months have gone by and we are told that none of these three State Governments have taken any action in this matter. To make the situation worse, there is no representation on behalf of the State of U.P. nor is there any representation from the State of Rajasthan. Learned counsel appearing for the State of Haryana wants us to wait for two minutes so that he can get instructions from the State Government. We are not inclined to wait for two minutes so as to enable learned counsel to get instructions. Instructions should have been obtained well before the date of hearing.
### Response:
1
### Explanation:
3. Almost four months have gone by and we are told that none of these three State Governments have taken any action in this matter. To make the situation worse, there is no representation on behalf of the State of U.P. nor is there any representation from the State of Rajasthan. Learned counsel appearing for the State of Haryana wants us to wait for two minutes so that he can get instructions from the State Government. We are not inclined to wait for two minutes so as to enable learned counsel to get instructions. Instructions should have been obtained well before the date of hearing.16. We are quite distressed that the Ministry of Environment, Forest and Climate Change has been sitting over 16 recommendations at least since 27.06.2017, that is, almost about three months without apparently showing any concern whatsoever for the pollution in Delhi and in NCR.18. In any event, since the draft notifications have been issued and since the industry had assured us on 20.07.2017 that they would abide by the standards fixed by the CPCB, we expect the industries to live up to the assurance given to us by the industry even though the Ministry of Environment, Forest and Climate Change does not seem to be concerned about the entire issue.19. With regard to two remaining industries, i.e., nitric acid industry and fertilizer industry, we are told that the standards in this regard were sent to the Ministry of Environment, Forest and Climate Change by the CPCB on 14th February, 2014. Three and half years have gone by, but the Ministry of Environment, Forest and Climate Change has not done anything about it.20. This is a completely disgusting state of affairs and this is hardly the way in which the Ministry ought to function if it is expected to perform its duties sincerely, honestly and with dedication.
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The Commissioner Of Income Tax, Punjab Vs. The Lahore Electric Supply Co | to invest in stocks, shares, investments or securities of all classes and descriptions and to hold, sell, exchange or otherwise dispose of, deal with them from time to time. A company may of course own shares and make investments, and still not carry on any business; but in this case there is nothing to show that its investments are not to be regarded as part of its business activities. The main business of generating and supplying electricity had stopped and the company, therefore, invested its funds in deposits and stocks and shares. The activity of investment and getting a return for its capital is a part of its legitimate business activities. In Commissioners of Inland Revenue v. Dale Steamship Co. Ltd., (1924) 12 Tax Cas 712, the objects of the company were, inter alia, to acquire steamships and other vessels, to build, charter, let out on hire and trade with ships, to carry on business as ship-owners, merchants, etc., and to invest and deal with the money not immediately required. At the outbreak of the war, the company owned and traded with five ships. Of these, one was detained by the enemy at Hamburg, one was sold and the remaining three (all insured) were sunk during the war. The proceeds of sale and the insurance moneys received were all placed on deposit or invested in easily realisable investments in order to facilitate the resumption of trading or winding up. In an assessment of the company to Corporation Profits Tax, it was held on the authority of (1924) 12 Tax Cas 657 that the company was carrying on a trade or business, and that it was liable to assessment to Corporation Profits Tax. The wording of S. 52 of the Finance Act, 1920 made no difference, for as pointed out by Viscount Cave, L. C. in the South Behar Railway Companys case, (1924) 12 Tax Cas 657, at p. 705, the words "including the holding of investments" in the statute referred not to all cases in which the company had money invested but to cases where the holding of investment was the business or part of the business of the company. The activity of investment of its available funds may be regarded as a business activity of the company even though the company for the time being may not be carrying on its main business. The companys main business may be quiescent, but, nevertheless, it may still carry on business.17. It has been specifically found that the company was dealing in investments during the accounting year, 1947-48 and that a surplus of Rs. 2,447 realised by the company from sale of its investments during the year was a business income of the assessee. See paragraph 6 of the statement of case dated March 6, 1959, paragraph 4 of the order of the Appellate Assistant Commissioner dated April 18, 1951 and the last part of the order of the Income-tax Officer for the assessment year, 1948-49, dated August 21, 1949. The order of the Income-tax Officer specifically stated that even the balance-sheet for the period ending March 31, 1947 showed that the difference on realisation of assets stood at Rs. 1,25,783, and it thus appeared that the company was dealing in securities. The Revenue thus claimed to assess the surplus on the realisation of the investments as the profits of a business under S. 10, and its claim has been upheld. I fail to see how the Revenue can take an inconsistent stand and claim that the activity of investment was not a business activity of the company.18. The Tribunal also found that the entire business of the company was not sold to the Punjab Government as a going concern and the company continued to own and hold considerable assets not appertaining to the Lahore license. The company sold and disposed of only its undertaking relating to the Lahore license, on September 5, 1946. Even then, the Punjab Government did not take up all the business debts and liabilities of the undertaking. The company continued to remain liable to the old consumers in respect of their deposits. The company continued to pay interest on these deposits to the consumers. In paragraph 12 of its order dated December 8, 1951 the Tribunal observed. and, in my opinion rightly:"If payment of interest on consumers deposits was a proper business expense in the preceding years, we do not see why or how its character changed in the years under view"19. The Tribunal rightly pointed out that the activity of makings lists and valuing the assets of the company for the purpose of ascertaining the price of Lahore undertaking from the Punjab Government is not a business activity of the company .But looking at the other facts and circumstances of the case and the relevant authorities on the point, the Tribunal came to the clear conclusion that the company had not ceased to carry on its business. There is enough material on the record to support this finding.20. There is no set formula for determining whether in a given case a company is carrying on business. For the right understanding of the matter, one must import a little commonsense. From the shareholders and the directors point of view, the company was undoubtedly carrying on business during the relevant accounting periods. From the popular point of view, what the company did during these years was a business activity. Again, if the question arose whether the company was carrying on business during these years for the purpose of S. 20 of the Code of Civil Procedure, I have no doubt in my mind that the answer would be in the affirmative. From whatever point of view the matter is looked at the conclusion is irresistible that the company was carrying on business during the relevant accounting years. There is ample material on which the Tribunal could come to this finding, and I see no reason for disturbing its finding.21. In the result, the appeals are dismissed with costs. | 1[ds]In our opinion, none of the grounds mentioned in the preceding paragraph leads to the conclusion that the Company intended to carry on business. The facts found make it abundantly clear since 1942 the only business of the Company was to work the Lahore electric supply licence. It stopped that business on September 5, 1946 when the undertaking was taken over by the Government. Thereafter, during the accounting years concerned namely, 1947-48 and 1948-49 it had not started any other business. The mere fact that the Company had not gone into liquidation would not establish that it had the intention to do business. If it were not so, then in the case of all trading companies it had to be held that they were always doing business. There is neither authority nor principle to support such a proposition. There was further no question of the Companys going into liquidation in the accounting years, for during that time it had not received from the Government the entire amount due to it as compensation for the acquisition of its Lahore electric supply undertaking. At the relevant time the Company was not possessed of any commercial undertaking. What we have quoted earlier from the Directors report would show that what was in the contemplation of the Directors was the purchase of a new concern. The Directors however had not stated that they did intend to do so. What they said was that they were considering whether they would do so or not. That does not express an intention to resume business. It is unnecessary to go into the question whether an expression of an intention to resume business in vacuo would amount to carrying on business. It is sufficient for the purpose of this case to state that even an intention to resume business has not been established.7. It would, therefore, appear that the business was closed and the Company had not established an intention to resume it. That would he enough to show that no business was carried on and it would be irrelevant to enquire whether the business was permanently closed. We may add that we do not understand what was meant by saying that the Company did not sell its undertaking as a going concern. The only going trading concern that it possessed was the Labour electric supply undertaking and that it sold; it had no other commercial undertaking. After the sale of the Lahore electric supply concern all it did was to invest its moneys and the Tribunal has not found this activity to be a business.8. The facts that the Company had to pay the Government half share of the profits between November, 27, 1942 and September 5, 1946 and that it had to return the consumers the deposits made by them would not indicate that it was carrying on a business. It would be laying down strange law to hold that where a business has in fact ceased to be run, it must be deemed as continuing because the outstanding liabilities of that business had not been liquidated. The question whether the Company was carrying on business arises only because if it was, it would be entitled under S. 10 to deductions from its business income in regard to certain expenses incurred by it for the purpose of that business. Business as contemplated by that section is an activity capable of producing a profit which can be taxed. Payment of outstanding liabilities is not an activity which can ever produce such a result. It cannot be said therefore, that because liabilities of a closed business were outstanding, it has to be held that either the business was continuing or that an intention to resume business must be inferred: see Commissioners of Indian Revenue v. Anglo Brewing Co. Ltd., (1925) 12 Tax Cas 803are unable to hold that Lord Sumner intended to lay down that a business which is closed down is deemed to be carried on so long as its outstandings are being collected. South Behar Railways case, (1924) 12 Tax Cas 657 (712), was concerned with a financing company whose only activity after the finances had been furnished was to receive from the Government by way of profits of the financing activity, earlier a certain proportion of the net earnings of the undertaking financed which was being managed by the government and later a fixed sum and to receive from the Government the finance supplied when the Government acquired the undertaking as it intended to do. All that Lord Sumner intended to say was that the receipt of the moneys was the business of the company and its only business after the financing had been completed. He was not concerned with the case of a closed business whose outstandings were being collected.10. The Tribunal did not hold that the Company was in fact doing business or that anything that it did amounted to carrying on business. The onus of showing this was clearly on the Company. All that it did was to refer to the sale of its Lahore electric supply undertaking to the Government and the listing of the assets of that undertaking and valuing it as the carrying on of business. This contention was rightly rejected by the Tribunal on the ground that the sale of the undertaking though within its memorandum was not its business which was really the working of that undertaking. It also seems to us that the condition of the country immediately following the partition is by itself irrelevant for deciding whether the Company was doing business.Learned counsel for the respondent contended that the Income-tax Officers order showed that in one of the assessment years, the Company had received a certain amount as a result of a business of dealing in investments.The Tribunal however did not find this as a fact. Neither does it seem to us that the Income-tax Officer considered this income as business income though it described it as such, for he held that the company was not doing any business at all. | 1 | 4,592 | 1,075 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
to invest in stocks, shares, investments or securities of all classes and descriptions and to hold, sell, exchange or otherwise dispose of, deal with them from time to time. A company may of course own shares and make investments, and still not carry on any business; but in this case there is nothing to show that its investments are not to be regarded as part of its business activities. The main business of generating and supplying electricity had stopped and the company, therefore, invested its funds in deposits and stocks and shares. The activity of investment and getting a return for its capital is a part of its legitimate business activities. In Commissioners of Inland Revenue v. Dale Steamship Co. Ltd., (1924) 12 Tax Cas 712, the objects of the company were, inter alia, to acquire steamships and other vessels, to build, charter, let out on hire and trade with ships, to carry on business as ship-owners, merchants, etc., and to invest and deal with the money not immediately required. At the outbreak of the war, the company owned and traded with five ships. Of these, one was detained by the enemy at Hamburg, one was sold and the remaining three (all insured) were sunk during the war. The proceeds of sale and the insurance moneys received were all placed on deposit or invested in easily realisable investments in order to facilitate the resumption of trading or winding up. In an assessment of the company to Corporation Profits Tax, it was held on the authority of (1924) 12 Tax Cas 657 that the company was carrying on a trade or business, and that it was liable to assessment to Corporation Profits Tax. The wording of S. 52 of the Finance Act, 1920 made no difference, for as pointed out by Viscount Cave, L. C. in the South Behar Railway Companys case, (1924) 12 Tax Cas 657, at p. 705, the words "including the holding of investments" in the statute referred not to all cases in which the company had money invested but to cases where the holding of investment was the business or part of the business of the company. The activity of investment of its available funds may be regarded as a business activity of the company even though the company for the time being may not be carrying on its main business. The companys main business may be quiescent, but, nevertheless, it may still carry on business.17. It has been specifically found that the company was dealing in investments during the accounting year, 1947-48 and that a surplus of Rs. 2,447 realised by the company from sale of its investments during the year was a business income of the assessee. See paragraph 6 of the statement of case dated March 6, 1959, paragraph 4 of the order of the Appellate Assistant Commissioner dated April 18, 1951 and the last part of the order of the Income-tax Officer for the assessment year, 1948-49, dated August 21, 1949. The order of the Income-tax Officer specifically stated that even the balance-sheet for the period ending March 31, 1947 showed that the difference on realisation of assets stood at Rs. 1,25,783, and it thus appeared that the company was dealing in securities. The Revenue thus claimed to assess the surplus on the realisation of the investments as the profits of a business under S. 10, and its claim has been upheld. I fail to see how the Revenue can take an inconsistent stand and claim that the activity of investment was not a business activity of the company.18. The Tribunal also found that the entire business of the company was not sold to the Punjab Government as a going concern and the company continued to own and hold considerable assets not appertaining to the Lahore license. The company sold and disposed of only its undertaking relating to the Lahore license, on September 5, 1946. Even then, the Punjab Government did not take up all the business debts and liabilities of the undertaking. The company continued to remain liable to the old consumers in respect of their deposits. The company continued to pay interest on these deposits to the consumers. In paragraph 12 of its order dated December 8, 1951 the Tribunal observed. and, in my opinion rightly:"If payment of interest on consumers deposits was a proper business expense in the preceding years, we do not see why or how its character changed in the years under view"19. The Tribunal rightly pointed out that the activity of makings lists and valuing the assets of the company for the purpose of ascertaining the price of Lahore undertaking from the Punjab Government is not a business activity of the company .But looking at the other facts and circumstances of the case and the relevant authorities on the point, the Tribunal came to the clear conclusion that the company had not ceased to carry on its business. There is enough material on the record to support this finding.20. There is no set formula for determining whether in a given case a company is carrying on business. For the right understanding of the matter, one must import a little commonsense. From the shareholders and the directors point of view, the company was undoubtedly carrying on business during the relevant accounting periods. From the popular point of view, what the company did during these years was a business activity. Again, if the question arose whether the company was carrying on business during these years for the purpose of S. 20 of the Code of Civil Procedure, I have no doubt in my mind that the answer would be in the affirmative. From whatever point of view the matter is looked at the conclusion is irresistible that the company was carrying on business during the relevant accounting years. There is ample material on which the Tribunal could come to this finding, and I see no reason for disturbing its finding.21. In the result, the appeals are dismissed with costs.
### Response:
1
### Explanation:
grounds mentioned in the preceding paragraph leads to the conclusion that the Company intended to carry on business. The facts found make it abundantly clear since 1942 the only business of the Company was to work the Lahore electric supply licence. It stopped that business on September 5, 1946 when the undertaking was taken over by the Government. Thereafter, during the accounting years concerned namely, 1947-48 and 1948-49 it had not started any other business. The mere fact that the Company had not gone into liquidation would not establish that it had the intention to do business. If it were not so, then in the case of all trading companies it had to be held that they were always doing business. There is neither authority nor principle to support such a proposition. There was further no question of the Companys going into liquidation in the accounting years, for during that time it had not received from the Government the entire amount due to it as compensation for the acquisition of its Lahore electric supply undertaking. At the relevant time the Company was not possessed of any commercial undertaking. What we have quoted earlier from the Directors report would show that what was in the contemplation of the Directors was the purchase of a new concern. The Directors however had not stated that they did intend to do so. What they said was that they were considering whether they would do so or not. That does not express an intention to resume business. It is unnecessary to go into the question whether an expression of an intention to resume business in vacuo would amount to carrying on business. It is sufficient for the purpose of this case to state that even an intention to resume business has not been established.7. It would, therefore, appear that the business was closed and the Company had not established an intention to resume it. That would he enough to show that no business was carried on and it would be irrelevant to enquire whether the business was permanently closed. We may add that we do not understand what was meant by saying that the Company did not sell its undertaking as a going concern. The only going trading concern that it possessed was the Labour electric supply undertaking and that it sold; it had no other commercial undertaking. After the sale of the Lahore electric supply concern all it did was to invest its moneys and the Tribunal has not found this activity to be a business.8. The facts that the Company had to pay the Government half share of the profits between November, 27, 1942 and September 5, 1946 and that it had to return the consumers the deposits made by them would not indicate that it was carrying on a business. It would be laying down strange law to hold that where a business has in fact ceased to be run, it must be deemed as continuing because the outstanding liabilities of that business had not been liquidated. The question whether the Company was carrying on business arises only because if it was, it would be entitled under S. 10 to deductions from its business income in regard to certain expenses incurred by it for the purpose of that business. Business as contemplated by that section is an activity capable of producing a profit which can be taxed. Payment of outstanding liabilities is not an activity which can ever produce such a result. It cannot be said therefore, that because liabilities of a closed business were outstanding, it has to be held that either the business was continuing or that an intention to resume business must be inferred: see Commissioners of Indian Revenue v. Anglo Brewing Co. Ltd., (1925) 12 Tax Cas 803are unable to hold that Lord Sumner intended to lay down that a business which is closed down is deemed to be carried on so long as its outstandings are being collected. South Behar Railways case, (1924) 12 Tax Cas 657 (712), was concerned with a financing company whose only activity after the finances had been furnished was to receive from the Government by way of profits of the financing activity, earlier a certain proportion of the net earnings of the undertaking financed which was being managed by the government and later a fixed sum and to receive from the Government the finance supplied when the Government acquired the undertaking as it intended to do. All that Lord Sumner intended to say was that the receipt of the moneys was the business of the company and its only business after the financing had been completed. He was not concerned with the case of a closed business whose outstandings were being collected.10. The Tribunal did not hold that the Company was in fact doing business or that anything that it did amounted to carrying on business. The onus of showing this was clearly on the Company. All that it did was to refer to the sale of its Lahore electric supply undertaking to the Government and the listing of the assets of that undertaking and valuing it as the carrying on of business. This contention was rightly rejected by the Tribunal on the ground that the sale of the undertaking though within its memorandum was not its business which was really the working of that undertaking. It also seems to us that the condition of the country immediately following the partition is by itself irrelevant for deciding whether the Company was doing business.Learned counsel for the respondent contended that the Income-tax Officers order showed that in one of the assessment years, the Company had received a certain amount as a result of a business of dealing in investments.The Tribunal however did not find this as a fact. Neither does it seem to us that the Income-tax Officer considered this income as business income though it described it as such, for he held that the company was not doing any business at all.
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THE NEW INDIA ASSURANCE COMPANY LIMITED Vs. SOMWATI & ORS. | law Dictionary, 10th edition. The Blacks law dictionary also simultaneously notices the filial consortium, parental consortium and spousal consortium in following manner:- Consortium 1. The benefits that one person, esp. A spouse, is entitled to receive from another, including companionship, cooperation, affection, aid, financial support, and (between spouses) sexual relations a claim for loss of consortium. Filial consortium A childs society, affection, and companionship given to a parent. Parental consortium A parents society, affection and companionship given to a child. Spousal consortium A spouses society, affection and companionship given to the other spouse. 37. The Magma General Insurance Company Ltd. (Supra) as well as United India Insurance Company ltd.(Supra), Three-Judge Bench laid down that the consortium is not limited to spousal consortium and it also includes parental consortium as well as filial consortium. In paragraph 87 of United India Insurance Company Ltd. (supra), consortium to all the three claimants was thus awarded. Paragraph 87 is quoted below:- 87. Insofar as the conventional heads are concerned, the deceased Satpal Singh left behind a widow and three children as his dependants. On the basis of the judgments in Pranay Sethi (supra) and Magma General (supra), the following amounts are awarded under the conventional heads:- i) Loss of Estate: Rs. 15,000 ii) Loss of Consortium: a) Spousal Consortium: Rs. 40,000 b) Parental Consortium: 40,000 x 3 = Rs. 1,20,000 iii) Funeral Expenses: Rs. 15,000 38. Learned counsel for the appellant has submitted that Pranay Sethi has only referred to spousal consortium and no other consortium was referred to in the judgment of Pranay Sethi, hence, there is no justification for allowing the parental consortium and filial consortium. The Constitution Bench in Pranay Sethi has referred to amount of Rs.40,000/- to the loss of consortium but the Constitution Bench had not addressed the issue as to whether consortium of Rs.40,000/- is only payable as spousal consortium. The judgment of Pranay Sethi cannot be read to mean that it lays down the proposition that the consortium is payable only to the wife. 39. The Three-Judge Bench in United India Insurance Company Ltd. (Supra) has categorically laid down that apart from spousal consortium, parental and filial consortium is payable. We feel ourselves bound by the above judgment of Three Judge Bench. We, thus, cannot accept the submission of the learned counsel for the appellant that the amount of consortium awarded to each of the claimants is not sustainable. 40. We, thus, found the impugned judgments of the High Court awarding consortium to each of the claimants in accordance with law which does not warrant any interference in this appeal. We, however, accept the submissions of learned counsel for the appellant that there is no justification for award of compensation under separate head loss of love and affection. The appeal filed by the appellant deserves to be allowed insofar as the award of compensation under the head loss of love and affection. 41. We may also notice Three-Judge Bench judgment of this Court relied by learned counsel for the appellant i.e. Sangita Arya and others versus Oriental Insurance Company ltd. and others, (2020) SCC Online 513. Counsel for the appellant submits that this Court has granted only Rs.40,000/- towards loss of consortium which is an indication that consortium cannot be granted to children. In the above case, Motor Accident Claims Tribunal has awarded Rs.20,000/- to the widow towards loss of consortium and Rs.10,000/- to the minor daughter towards loss of love and affection. The High Court has reduced the amount of consortium from Rs.20,000/- to Rs.10,000/-. Paragraph 16 of the judgment is to the following effect: - 16. The consortium payable to the widow was reduced by the High Court from Rs. 20,000 (as awarded by the MACT) to Rs.10,000; the amount awarded towards loss of love and affection to the minor daughters was reduced from Rs.10,000 to Rs. 5,000. However, the amount of Rs. 5,000 awarded by the MACT towards funeral expenses was maintained. 42. This Court in the above case confined its consideration towards the income of the deceased and there was neither any claim nor any consideration that the consortium should have been paid to other legal heirs also. There being no claim for payment of consortium to other legal heirs, this Court awarded Rs.40,000/- towards consortium. No such ratio can be deciphered from the above judgment that this Court held that consortium is only payable as a spousal consortium and consortium is not payable to children and parents. 43. It is relevant to notice the judgment of this Court in United India Insurance Ltd. which was delivered shortly after the above Three-Judge Bench judgment of Sangeeta Arya specifically laid down that both spousal and parental consortium are payable which judgment we have already noticed above. 44. We may also notice one more Three-Judge Bench judgment of this Court in Civil Appeal No.2885 of 2020, M.H.Uma Maheshwari and others versus United India Insurance Company Ltd. decided on 12.06.2020. In the above case, the Tribunal had granted the amount of Rs.One Lakh towards loss of consortium to the wife and Rs.Three Lakhs for all the appellants towards loss of love and affection. The High Court in the above case had reduced the amount of compensation in the appeal filed by the Insurance Company. The High Court held that by awarding the amount of Rs.One Lakh towards loss of consortium to the wife, Tribunal had committed error while awarding Rs.One Lakh to the first appellant towards the head of loss of love and affection. Allowing the appeal filed by the claimant, this Court maintained the order of MACT. 45. In the above judgment although rendered by Three-Judge Bench, there was no challenge to award of compensation of Rs.One Lakh towards the consortium and Rs.Three Lakhs towards the loss of love and affection. The appeal was filed only by the claimants and not by the Insurance Company. The Court did not pronounce on the correctness of the amount awarded under the head loss of love and affection. | 1[ds]The Constitution Bench in Pranay Sethi has referred to amount of Rs.40,000/- to the loss of consortium but the Constitution Bench had not addressed the issue as to whether consortium of Rs.40,000/- is only payable as spousal consortium. The judgment of Pranay Sethi cannot be read to mean that it lays down the proposition that the consortium is payable only to the wife.39. The Three-Judge Bench in United India Insurance Company Ltd. (Supra) has categorically laid down that apart from spousal consortium, parental and filial consortium is payable. We feel ourselves bound by the above judgment of Three Judge Bench. We, thus, cannot accept the submission of the learned counsel for the appellant that the amount of consortium awarded to each of the claimants is not sustainable.40. We, thus, found the impugned judgments of the High Court awarding consortium to each of the claimants in accordance with law which does not warrant any interference in this appeal. We, however, accept the submissions of learned counsel for the appellant that there is no justification for award of compensation under separate head loss of love and affection. The appeal filed by the appellant deserves to be allowed insofar as the award of compensation under the head loss of love and affection.41. We may also notice Three-Judge Bench judgment of this Court relied by learned counsel for the appellant i.e. Sangita Arya and others versus Oriental Insurance Company ltd. and others, (2020) SCC Online 513. Counsel for the appellant submits that this Court has granted only Rs.40,000/- towards loss of consortium which is an indication that consortium cannot be granted to children. In the above case, Motor Accident Claims Tribunal has awarded Rs.20,000/- to the widow towards loss of consortium and Rs.10,000/- to the minor daughter towards loss of love and affection. The High Court has reduced the amount of consortium from Rs.20,000/- to Rs.10,000/-. Paragraph 16 of the judgment is to the following effect: -16. The consortium payable to the widow was reduced by the High Court from Rs. 20,000 (as awarded by the MACT) to Rs.10,000; the amount awarded towards loss of love and affection to the minor daughters was reduced from Rs.10,000 to Rs. 5,000. However, the amount of Rs. 5,000 awarded by the MACT towards funeral expenses was maintained.42. This Court in the above case confined its consideration towards the income of the deceased and there was neither any claim nor any consideration that the consortium should have been paid to other legal heirs also. There being no claim for payment of consortium to other legal heirs, this Court awarded Rs.40,000/- towards consortium. No such ratio can be deciphered from the above judgment that this Court held that consortium is only payable as a spousal consortium and consortium is not payable to children and parents.43. It is relevant to notice the judgment of this Court in United India Insurance Ltd. which was delivered shortly after the above Three-Judge Bench judgment of Sangeeta Arya specifically laid down that both spousal and parental consortium are payable which judgment we have already noticed above.44. We may also notice one more Three-Judge Bench judgment of this Court in Civil Appeal No.2885 of 2020, M.H.Uma Maheshwari and others versus United India Insurance Company Ltd. decided on 12.06.2020. In the above case, the Tribunal had granted the amount of Rs.One Lakh towards loss of consortium to the wife and Rs.Three Lakhs for all the appellants towards loss of love and affection. The High Court in the above case had reduced the amount of compensation in the appeal filed by the Insurance Company. The High Court held that by awarding the amount of Rs.One Lakh towards loss of consortium to the wife, Tribunal had committed error while awarding Rs.One Lakh to the first appellant towards the head of loss of love and affection. Allowing the appeal filed by the claimant, this Court maintained the order of MACT.45. In the above judgment although rendered by Three-Judge Bench, there was no challenge to award of compensation of Rs.One Lakh towards the consortium and Rs.Three Lakhs towards the loss of love and affection. The appeal was filed only by the claimants and not by the Insurance Company. The Court did not pronounce on the correctness of the amount awarded under the head loss of love and affection.22. The expression compensation is a comprehensive term which includes a claim for the damages. Compensation is by way of atonement for the injury caused.23. The claimant in a claim for award of compensation under Section 166 of Motor Vehicles Act, 1988, is entitled for just compensation. The just compensation has to be equitable and fair. The loss of life and limb can never be compensated in an equal measure but the statutory provisions under Motor Vehicles Act is a social piece of legislation which has been enacted with intent and object to facilitate the claimants to get redress for the loss of the member of family, compensate the loss in some measure and to compensate the claimant to a reasonable extent.33. A three-Judge Bench in United India Insurance Company Ltd. versus Satinder Kaur alias Satvinder Kaur and others, (2020) SCC Online 410, had reaffirmed the view of two-Judge Bench in Magma General insurance Company Ltd. Three-Judge Bench from paragraph 53 to 65, dealt with three conventional heads. The entire discussion on three conventional heads of three-Judge Bench is as follows: -53. In Pranay Sethi (supra), the Constitution Bench held that in death cases, compensation would be awarded only under three conventional heads viz. loss of estate, loss of consortium and funeral expenses.54. The Court held that the conventional and traditional heads, cannot be determined on percentage basis, because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified, which has to be based on a reasonable foundation. It was observed that factors such as price index, fall in bank interest, escalation of rates, are aspects which have to be taken into consideration.The Court held that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The Court was of the view that the amounts to be awarded under these conventional heads should be enhanced by 10% every three years, which will bring consistency in respect of these heads.a) Loss of Estate – Rs. 15,000 to be awardedb) Loss of Consortium55. Loss of Consortium, in legal parlance, was historically given a narrow meaning to be awarded only to the spouse i.e. the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of nonpecuniary damage for loss of consortium is one of the major heads for awarding compensation in various jurisdictions such as the United States of America, Australia, etc. English courts have recognised the right of a spouse to get compensation even during the period of temporary disablement.56. In Magma General Insurance Co. Ltd. v. Nanu Ram & Ors., 12 this Court interpreted consortium to be a compendious term, which encompasses spousal consortium, parental consortium, as well as filial consortium. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.57. Parental consortium is granted to the child upon the premature death of a parent, for loss of parental aid, protection, affection, society, discipline, guidance and training.58. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love and affection, and their role in the family unit.59. Modern jurisdictions world-over have recognized that the value of a childs consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is the compensation for loss of love and affection, care and companionship of the deceased child.60. The Motor Vehicles Act, 1988 is a beneficial legislation which has been framed with the object of providing relief to the victims, or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.61. Parental Consortium is awarded to the children who lose the care and protection of their parents in motor vehicle accidents.62. The amount to be awarded for loss consortium will be as per the amount fixed in Pranay Sethi (supra).63. At this stage, we consider it necessary to provide uniformity with respect to the grant of consortium, and loss of love and affection. Several Tribunals and High Courts have been awarding compensation for both loss of consortium and loss of love and affection. The Constitution Bench in Pranay Sethi (supra), has recognized only three conventional heads under which compensation can be awarded viz. loss of estate, loss of consortium and funeral expenses.64. In Magma General (supra), this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of love and affection is comprehended in loss of consortium.65. The Tribunals and High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head. There is no justification to award compensation towards loss of love and affection as a separate head.c) Funeral Expenses – Rs. 15,000 to be awarded34. The Three-Judge Bench in the above case approved the comprehensive interpretation given to the expression consortium to include spousal consortium, parental consortium as well as filial consortium. Three-Judge Bench however further laid down that loss of love and affection is comprehended in loss of consortium, hence, there is no justification to award compensation towards loss of love and affection as a separate head.35. The Constitution Bench in Pranay Sethi has also not under conventional head included any compensation towards loss of love and affection which have been now further reiterated by three- Judge Bench in United India Insurance Company Ltd. (supra). It is thus now authoritatively well settled that no compensation can be awarded under the head loss of love and affection.37. The Magma General Insurance Company Ltd. (Supra) as well as United India Insurance Company ltd.(Supra), Three-Judge Bench laid down that the consortium is not limited to spousal consortium and it also includes parental consortium as well as filial consortium. In paragraph 87 of United India Insurance Company Ltd. (supra), consortium to all the three claimants was thus awarded. Paragraph 87 is quoted below:-87. Insofar as the conventional heads are concerned, the deceased Satpal Singh left behind a widow and three children as his dependants. On the basis of the judgments in Pranay Sethi (supra) and Magma General (supra), the following amounts are awarded under the conventional heads:-i) Loss of Estate: Rs. 15,000ii) Loss of Consortium:a) Spousal Consortium: Rs. 40,000b) Parental Consortium: 40,000 x 3 = Rs. 1,20,000iii) Funeral Expenses: Rs. 15,00028. We need to notice the Constitution Bench judgment in National Insurance Company Ltd.(supra) which case notices the earlier judgments of this Court where compensation was awarded towards loss of consortium. In paragraph 46, the following was laid down: -46. Another aspect which has created confusion pertains to grant of loss of estate, loss of consortium and funeral expenses. In Santosh Devi, the two-Judge Bench followed the traditional method and granted Rs.5000/- for transportation of the body, Rs.10,000/- as funeral expenses and Rs.10,000/- as regards the loss of consortium. In Sarla Verma, the Court granted Rs.5000/- under the head of loss of estate, Rs.5000/- towards funeral expenses and Rs.10,000/- towards loss of consortium. In Rajesh (2013) 9 SCC 54 , the Court granted Rs.1,00,000/- towards loss of consortium and Rs.25,000/- towards funeral expenses. It also granted Rs.1,00,000/- towards loss of care and guidance for minor children. The Court enhanced the same on the principle that a formula framed to achieve uniformity and consistency on a socio-economic issue has to be contrasted from a legal principle and ought to be periodically revisited as has been held in Santosh Devi (2012) 6 SCC 421 . On the principle of revisit, it fixed different amount on conventional heads. What weighed with the Court is factum of inflation and the price index. It has also been moved by the concept of loss of consortium. We are inclined to think so, for what it states in that regard. We quote: (Rajesh case):-17...In legal parlance, consortium is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognised the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouses affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.29. In paragraph 52, the Constitution Bench opined that reasonable figures on conventional head namely loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. In paragraph 52, following has been laid down: -52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh. It has granted Rs. 25,000/- towards funeral expenses, Rs. 1,00,000/- loss of consortium and Rs. 1,00,000/- towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh refers to Santosh Devi, it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.. In paragraph 59.8, the Court further held that the amount of conventional head should be enhanced at the rate of 10% every three year. In paragraph 59.8, following was held:-59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years. | 1 | 6,408 | 3,182 | ### 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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law Dictionary, 10th edition. The Blacks law dictionary also simultaneously notices the filial consortium, parental consortium and spousal consortium in following manner:- Consortium 1. The benefits that one person, esp. A spouse, is entitled to receive from another, including companionship, cooperation, affection, aid, financial support, and (between spouses) sexual relations a claim for loss of consortium. Filial consortium A childs society, affection, and companionship given to a parent. Parental consortium A parents society, affection and companionship given to a child. Spousal consortium A spouses society, affection and companionship given to the other spouse. 37. The Magma General Insurance Company Ltd. (Supra) as well as United India Insurance Company ltd.(Supra), Three-Judge Bench laid down that the consortium is not limited to spousal consortium and it also includes parental consortium as well as filial consortium. In paragraph 87 of United India Insurance Company Ltd. (supra), consortium to all the three claimants was thus awarded. Paragraph 87 is quoted below:- 87. Insofar as the conventional heads are concerned, the deceased Satpal Singh left behind a widow and three children as his dependants. On the basis of the judgments in Pranay Sethi (supra) and Magma General (supra), the following amounts are awarded under the conventional heads:- i) Loss of Estate: Rs. 15,000 ii) Loss of Consortium: a) Spousal Consortium: Rs. 40,000 b) Parental Consortium: 40,000 x 3 = Rs. 1,20,000 iii) Funeral Expenses: Rs. 15,000 38. Learned counsel for the appellant has submitted that Pranay Sethi has only referred to spousal consortium and no other consortium was referred to in the judgment of Pranay Sethi, hence, there is no justification for allowing the parental consortium and filial consortium. The Constitution Bench in Pranay Sethi has referred to amount of Rs.40,000/- to the loss of consortium but the Constitution Bench had not addressed the issue as to whether consortium of Rs.40,000/- is only payable as spousal consortium. The judgment of Pranay Sethi cannot be read to mean that it lays down the proposition that the consortium is payable only to the wife. 39. The Three-Judge Bench in United India Insurance Company Ltd. (Supra) has categorically laid down that apart from spousal consortium, parental and filial consortium is payable. We feel ourselves bound by the above judgment of Three Judge Bench. We, thus, cannot accept the submission of the learned counsel for the appellant that the amount of consortium awarded to each of the claimants is not sustainable. 40. We, thus, found the impugned judgments of the High Court awarding consortium to each of the claimants in accordance with law which does not warrant any interference in this appeal. We, however, accept the submissions of learned counsel for the appellant that there is no justification for award of compensation under separate head loss of love and affection. The appeal filed by the appellant deserves to be allowed insofar as the award of compensation under the head loss of love and affection. 41. We may also notice Three-Judge Bench judgment of this Court relied by learned counsel for the appellant i.e. Sangita Arya and others versus Oriental Insurance Company ltd. and others, (2020) SCC Online 513. Counsel for the appellant submits that this Court has granted only Rs.40,000/- towards loss of consortium which is an indication that consortium cannot be granted to children. In the above case, Motor Accident Claims Tribunal has awarded Rs.20,000/- to the widow towards loss of consortium and Rs.10,000/- to the minor daughter towards loss of love and affection. The High Court has reduced the amount of consortium from Rs.20,000/- to Rs.10,000/-. Paragraph 16 of the judgment is to the following effect: - 16. The consortium payable to the widow was reduced by the High Court from Rs. 20,000 (as awarded by the MACT) to Rs.10,000; the amount awarded towards loss of love and affection to the minor daughters was reduced from Rs.10,000 to Rs. 5,000. However, the amount of Rs. 5,000 awarded by the MACT towards funeral expenses was maintained. 42. This Court in the above case confined its consideration towards the income of the deceased and there was neither any claim nor any consideration that the consortium should have been paid to other legal heirs also. There being no claim for payment of consortium to other legal heirs, this Court awarded Rs.40,000/- towards consortium. No such ratio can be deciphered from the above judgment that this Court held that consortium is only payable as a spousal consortium and consortium is not payable to children and parents. 43. It is relevant to notice the judgment of this Court in United India Insurance Ltd. which was delivered shortly after the above Three-Judge Bench judgment of Sangeeta Arya specifically laid down that both spousal and parental consortium are payable which judgment we have already noticed above. 44. We may also notice one more Three-Judge Bench judgment of this Court in Civil Appeal No.2885 of 2020, M.H.Uma Maheshwari and others versus United India Insurance Company Ltd. decided on 12.06.2020. In the above case, the Tribunal had granted the amount of Rs.One Lakh towards loss of consortium to the wife and Rs.Three Lakhs for all the appellants towards loss of love and affection. The High Court in the above case had reduced the amount of compensation in the appeal filed by the Insurance Company. The High Court held that by awarding the amount of Rs.One Lakh towards loss of consortium to the wife, Tribunal had committed error while awarding Rs.One Lakh to the first appellant towards the head of loss of love and affection. Allowing the appeal filed by the claimant, this Court maintained the order of MACT. 45. In the above judgment although rendered by Three-Judge Bench, there was no challenge to award of compensation of Rs.One Lakh towards the consortium and Rs.Three Lakhs towards the loss of love and affection. The appeal was filed only by the claimants and not by the Insurance Company. The Court did not pronounce on the correctness of the amount awarded under the head loss of love and affection.
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Company ltd.(Supra), Three-Judge Bench laid down that the consortium is not limited to spousal consortium and it also includes parental consortium as well as filial consortium. In paragraph 87 of United India Insurance Company Ltd. (supra), consortium to all the three claimants was thus awarded. Paragraph 87 is quoted below:-87. Insofar as the conventional heads are concerned, the deceased Satpal Singh left behind a widow and three children as his dependants. On the basis of the judgments in Pranay Sethi (supra) and Magma General (supra), the following amounts are awarded under the conventional heads:-i) Loss of Estate: Rs. 15,000ii) Loss of Consortium:a) Spousal Consortium: Rs. 40,000b) Parental Consortium: 40,000 x 3 = Rs. 1,20,000iii) Funeral Expenses: Rs. 15,00028. We need to notice the Constitution Bench judgment in National Insurance Company Ltd.(supra) which case notices the earlier judgments of this Court where compensation was awarded towards loss of consortium. In paragraph 46, the following was laid down: -46. Another aspect which has created confusion pertains to grant of loss of estate, loss of consortium and funeral expenses. In Santosh Devi, the two-Judge Bench followed the traditional method and granted Rs.5000/- for transportation of the body, Rs.10,000/- as funeral expenses and Rs.10,000/- as regards the loss of consortium. In Sarla Verma, the Court granted Rs.5000/- under the head of loss of estate, Rs.5000/- towards funeral expenses and Rs.10,000/- towards loss of consortium. In Rajesh (2013) 9 SCC 54 , the Court granted Rs.1,00,000/- towards loss of consortium and Rs.25,000/- towards funeral expenses. It also granted Rs.1,00,000/- towards loss of care and guidance for minor children. The Court enhanced the same on the principle that a formula framed to achieve uniformity and consistency on a socio-economic issue has to be contrasted from a legal principle and ought to be periodically revisited as has been held in Santosh Devi (2012) 6 SCC 421 . On the principle of revisit, it fixed different amount on conventional heads. What weighed with the Court is factum of inflation and the price index. It has also been moved by the concept of loss of consortium. We are inclined to think so, for what it states in that regard. We quote: (Rajesh case):-17...In legal parlance, consortium is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognised the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouses affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.29. In paragraph 52, the Constitution Bench opined that reasonable figures on conventional head namely loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. In paragraph 52, following has been laid down: -52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh. It has granted Rs. 25,000/- towards funeral expenses, Rs. 1,00,000/- loss of consortium and Rs. 1,00,000/- towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh refers to Santosh Devi, it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.. In paragraph 59.8, the Court further held that the amount of conventional head should be enhanced at the rate of 10% every three year. In paragraph 59.8, following was held:-59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.
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Municipal Board, Hapur Vs. Raghuvendra Kripal And Others | a delegation which may be called excessive such excessive delegation may be struck down. I may in this connection refer to two decisions of this Court, namely, In re The Delhi Laws Act, 1912, (1951) SCR 747 : (AIR 1951 SC 332 ) and Rajnarain Singh v. The Chairman, Patna Administration Committee (1955) 1 SCR 290 : (AIR 1954 SC 569 ). It has been held in these cases that an essential legislative function cannot be delegated by the legislature. Exactly what constitutes essential function cannot be enunciated in general terms. But the essential legislative function consists in the determination of the legislative policy and its formulation as a binding rule of conduct. It cannot be said that an unlimited right of delegation is inherent in the legislative power itself. This is not warranted by the provisions of the Constitution and the legitimacy of delegation depends entirely upon its being used as an ancillary measure which the legislature considers to be necessary for the purpose of exercising its legislative powers effectively and completely. The legislature must retain its own hands the essential legislative functions which consists in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law and what can be delegated is the task of subordinate legislation which by its very nature is ancillary to the statute which delegates the power to make it. Provided the legislative policy is enunciated with sufficient clearness or a standard is laid down, the Courts should not interfere with the discretion that undoubtedly rests with the legislature itself in determining the extent of delegation necessary in it particular case. 32. In these two cases the question arose whether certain laws could be applied to certain areas with such modification as the executive authority deemed fit to make. It was held that where the executive authority was permitted, at its discretion, to apply without modification (save incidental changes such as name and place), the whole of any law already in existence in any part of India that would be good. Further the executive authority could even be authorised to select further laws in a similar way and to apply them to certain areas. But where the authorisation was to repeat laws already in force in the area and either substitute other laws with or without modification, this was held to be excessive delegation and ultra vires. Further where the modification in a law to be applied did not affect any essential change in the law and alter its policy it could be modified to that extent and applied by the executive authority under delegated authority. But where a modification effects a radical change in the policy of the law to be applied such an authority could not be delegated and would be ultra vires. 33. It is on the basis of these principles that I have to see whether S. 135 (3) can be upheld. There is no doubt that the legislature delegated its power of imposing taxes, including the power to fix the rate, to the municipal board by S. 128 with respect to taxes specified therein. I have already said that generally speaking the fixation of rate of tax is one of the essential legislative functions but there may be situations where it may not be considered to be an essential legislative function and may be delegated by the legislature to subordinate authorities with proper safeguards. I have also said that in the field of local taxation relating to municipal boards and district boards and similar other bodies there are reasons for delegating fixation of the rate to such bodies subject to proper safeguards. This is exactly what has been done under the Act subject to the safeguards, contained in Ss. 131 to 135 (1). If those safeguards are followed, the delegation in my opinion would be a proper delegation and could not be challenged as ultra vires on the ground of excessive delegation. But if the legislature after laying down with great care safeguards as to the imposition of tax including its rate makes a blanket provision like S. 135 (3), which at one stroke does away with all those safeguards-and this is what in my opinion S. 135 (3) has done in the present case- the position that results after such provision is that there is delegation of even the essential function of fixing the rate to the subordinate authority without any safeguard. Such a delegation would in my opinion be excessive delegation and would be ultra vires. 34. The question then is whether in the present case I should save the delegation contained in S. 128 read with the safeguards provided in S. 131 to S. 135 (1) for the imposition of various taxes mentioned therein or uphold S. 135 (3) which in one sweep does away with all the safeguards. In my opinion S. 135 (3) is severable and the legislature would have provided for various safeguards contained in S. 131 to S 135 (1) when it delegated the power to impose a tax including the fixation of rate to municipal boards. It would, therefore, in my opinion be right to hold that Ss. 128 to 135 (2) indicate proper delegation of the authority of the legislature to impose taxes specified in S. 128 and that it is sub-s. (3) of S. 135 which should be struck down because it is the only provision which makes the delegation excessive. I would, therefore, hold that S. 135 (3) inasmuch as it makes the delegation contained in Ss. 128 to 135 (2) excessive must be served from the rest of the sections which are otherwise a proper exercise of delegation of legislative authority and should be struck down on the ground of excessive delegation. 35. I would, therefore, dismiss the appeal with costs and uphold the order of the High Court holding that the tax imposed by the appellant had not been validly imposed though on a different ground. ORDER 36. | 1[ds]There is at the very start the fundamental fact that the power to tax in a State can only be exercised by the State Legislature, the extent of the power being fixed by the Constitution. The taxes which the State Legislatures are allowed to raise are enumerated in the Seventh Schedule to the Constitution. The State Legislature can impose all these taxes itself but it is usual to authorise the levy of some of them by local authorities for their own purpose Taxes so raised by a local authority are not imposed by it as a legislature but as a delegate of the legislature. What is done is binding by the authority of the legislature and the tax is valid only if it is one of the taxes the delegate can raise and the delegate imposes it in accordance with the conditions laid down by the legislature8. Itis thus that we find an elaborate procedure prescribed by all the Municipal Acts. In the U.P. Municipalities Act also, as we have seen, a Board must first pass a special Resolution framing a proposal and the draft rules, invite objections, consider them, and then get them approved by Government. After this approval there must be a final special resolution imposing the tax from a particular date and the Government then notifies the imposition of the tax. It is the duty of Government to see that the various steps laid down for the imposition of the tax are followed. Before it notifies the resolution Government satisfies itself about the requirements. The notification is made conclusive proof that the tax is imposed in accordance with the provisions of the Act. The question arises: Is this rule of conclusive evidence such as to shut out all enquiry by Courts? We have no hesitation in answering the question in the negative. There are certain matters which, of course, cannot be established conclusively by a notification under S. 135 (3). For example, no notification can issue unless there is a special resolution. The special resolution is the sine qua non of the notification. The State Government cannot impose a tax all by itself by notifying the imposition of the tax, without a resolution by the Board. Again, the notification cannot authorise the imposition of a tax not included in S. 128 of the Municipalities Act. Neither a Municipal Board nor a State Government can exercise such a power. A tax can only be said to be imposed in accordance with the provisions of the Municipalities Act, if it is contemplated by the Act. There is a difference between the tax and the imposition of the tax. The former is the levy itself and the latter the method by which the levy is imposed and collected. What the sub-section does is to put beyond question the procedure by which the tax is imposed, that is to say, the various steps taken to impose it. A tax not authorised can never be within the protection afforded to the procedure for imposing taxes. Such a tax may be challenged, not with reference to the manner of the imposition but as an illegal impost9. Itwould thus appear that at the very start the selection of the tax must be with reference to the delegated powers. The Municipal Board or the State Government cannot select a tax which the legislature has not mentioned in S. 128 of the Municipalities Act. As the State Government cannot itself impose the tax it must have before it, the special resolution of the Board before notifying the imposition. Between the special resolution selecting a tax for imposition and the special resolution imposing it sundry procedure is gone through and section 135 (8) says that the notification by Government is conclusive proof that the procedure was correctly followedAs observed already some of the provisions controlling the imposition of a tax must be fully complied with because they are vital and therefore mandatory, and the others may be complied with substantially but not literally, because they are directory. In either case the agency for seeing to this compliance is the State Government. It is hardly to be expected that the State Government would not do its duty or that it would allow breaches of the provision to go uncertified One can hardly imagine that an omission to comply with the fundamental provisions would ever be condoned. The law reports show that even before the addition of the provision making the notification conclusive evidence of the proper imposition of the tax, complaints brought before the courts concerned provisions dealing with publicity or requiring ministerial fulfillment. Even in the two earlier cases which reached this Court and also the present case, the complaint is of a breach of one of the provisions which can only be regarded as directory. In cases of minor departures from the letter of the law especially in matters not fundamental, it is for the Government to see whether there has been substantial or reasonable compliance. Once Government condones the departure, the decision of Government is rightly made final by making the notification conclusive evidence of the compliance with the requirements of the Act.It is not necessary to investigate whether a complete lack of observance of the provisions would be afforded the same protection. It is most unlikely that this would ever happen and before we pronounce our opinion we should like to see such a caseIt is impossible for the Legislature to pass statutes for the imposition of such taxes in local areas. The power must be delegated. Regard being had to the democratic set up of the municipalities which need the proceeds of these taxes for their own administration, it is proper to leave to these municipalities the power to impose and collect these taxes. The taxes are, however, predetermined and a procedure for consulting the wishes of the people is devised. But the matter is not left entirely in the hands of the Municipal Boards. As the State Legislature cannot supervise the due observance of its laws by the Municipal Boards, power is given to the State Government to check their actions. The imposition of the tax is left to the Municipal Boards but the duty to see that the provisions for publicity, and obtaining the views of the persons to be taxed are fully complied with is laid upon the State Government. The proceedings for the imposition of the tax, however, must come to a conclusion at some stage after which it can be said that the tax has been imposed. That stage is reached, not when the special resolution of the Municipal Board is passed, but when the notification by Government is issued. Now it is impossible to leave the matter open so that complaints about the imposition of the tax or the breach of this rule or that may continue to be raised. The door to objections must at some stage be shut and the Legislature considers that, if the Sate Government approves of the special resolution, all enquiry must cease. This is not a case of excessive delegation unless one starts with the notion that the State Government may collude with the Municipal Board to disregard deliberately the provisions for the imposition of the tax. There is no warrant for such a supposition. The provision making the notification conclusive evidence of the proper imposition of the tax is conceived in the best interest of compliance of the provisions by the Boards and not to facilitate their breach. It cannot, therefore, be said that there is excessive delegationThe first is the question of discrimination which is said to arise from the proviso which makes the notification conclusive in respect of the procedure by which the tax is imposed. There are numerous statutes, including the Evidence Act, in which a fact is taken to be conclusively proved from the existence of some other fact. The law is full of fictions and irrebuttable presumptions which also involve proof of facts. It has never been suggested before that when the Legislature says that enquiry into the truth or otherwise of a fact shall stop at a given stage and the fact taken to be conclusively proved, that a question of discrimination arises. The tax payers in the Municipality are allowed under the Municipalities Act to object to the proposal for the tax and the rules and to have their objections considered. They cannot, of course, be allowed to keep on agitating and a stage must come when it may be said that the provisions of the Act have been duly observed. That stage is reached after Government has scrutinized the proposal, the rules, the objections and the orders and has approved of the proposal, a special resolution is passed by the Municipal Board and a notification is issued. It cannot be said that sub-s. (3) of S. 135 which leads to the conclusion that the imposition of the tax is according to the Municipalities Act is discriminatory because it only concludes objections against the procedure followed in the imposition of the taxThe next objection that the impugned sub-section involves the exercise of judicial functions not open to the Legislature, is wholly erroneous. The sub-section only shuts out further enquiry and makes the notification final. There is no exercise of a judicial function. In our country there is no rigid separation of powers and the legislature often frames a rule such as is incorporated in the third sub-section of S. 135. The Evidence Act is full of such provisions. In the United States of America where the separation of powers is extremely rigid in some of the constitutions of the States it may be open to objection that the Legislature in shutting out enquiry into the truth of a fact encroaches upon the judicial power of the State. Such disability has never been found to exist in our country although legislation of this type is only too frequent. The objection is, therefore, without substance. | 1 | 10,210 | 1,790 | ### Instruction:
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a delegation which may be called excessive such excessive delegation may be struck down. I may in this connection refer to two decisions of this Court, namely, In re The Delhi Laws Act, 1912, (1951) SCR 747 : (AIR 1951 SC 332 ) and Rajnarain Singh v. The Chairman, Patna Administration Committee (1955) 1 SCR 290 : (AIR 1954 SC 569 ). It has been held in these cases that an essential legislative function cannot be delegated by the legislature. Exactly what constitutes essential function cannot be enunciated in general terms. But the essential legislative function consists in the determination of the legislative policy and its formulation as a binding rule of conduct. It cannot be said that an unlimited right of delegation is inherent in the legislative power itself. This is not warranted by the provisions of the Constitution and the legitimacy of delegation depends entirely upon its being used as an ancillary measure which the legislature considers to be necessary for the purpose of exercising its legislative powers effectively and completely. The legislature must retain its own hands the essential legislative functions which consists in declaring the legislative policy and laying down the standard which is to be enacted into a rule of law and what can be delegated is the task of subordinate legislation which by its very nature is ancillary to the statute which delegates the power to make it. Provided the legislative policy is enunciated with sufficient clearness or a standard is laid down, the Courts should not interfere with the discretion that undoubtedly rests with the legislature itself in determining the extent of delegation necessary in it particular case. 32. In these two cases the question arose whether certain laws could be applied to certain areas with such modification as the executive authority deemed fit to make. It was held that where the executive authority was permitted, at its discretion, to apply without modification (save incidental changes such as name and place), the whole of any law already in existence in any part of India that would be good. Further the executive authority could even be authorised to select further laws in a similar way and to apply them to certain areas. But where the authorisation was to repeat laws already in force in the area and either substitute other laws with or without modification, this was held to be excessive delegation and ultra vires. Further where the modification in a law to be applied did not affect any essential change in the law and alter its policy it could be modified to that extent and applied by the executive authority under delegated authority. But where a modification effects a radical change in the policy of the law to be applied such an authority could not be delegated and would be ultra vires. 33. It is on the basis of these principles that I have to see whether S. 135 (3) can be upheld. There is no doubt that the legislature delegated its power of imposing taxes, including the power to fix the rate, to the municipal board by S. 128 with respect to taxes specified therein. I have already said that generally speaking the fixation of rate of tax is one of the essential legislative functions but there may be situations where it may not be considered to be an essential legislative function and may be delegated by the legislature to subordinate authorities with proper safeguards. I have also said that in the field of local taxation relating to municipal boards and district boards and similar other bodies there are reasons for delegating fixation of the rate to such bodies subject to proper safeguards. This is exactly what has been done under the Act subject to the safeguards, contained in Ss. 131 to 135 (1). If those safeguards are followed, the delegation in my opinion would be a proper delegation and could not be challenged as ultra vires on the ground of excessive delegation. But if the legislature after laying down with great care safeguards as to the imposition of tax including its rate makes a blanket provision like S. 135 (3), which at one stroke does away with all those safeguards-and this is what in my opinion S. 135 (3) has done in the present case- the position that results after such provision is that there is delegation of even the essential function of fixing the rate to the subordinate authority without any safeguard. Such a delegation would in my opinion be excessive delegation and would be ultra vires. 34. The question then is whether in the present case I should save the delegation contained in S. 128 read with the safeguards provided in S. 131 to S. 135 (1) for the imposition of various taxes mentioned therein or uphold S. 135 (3) which in one sweep does away with all the safeguards. In my opinion S. 135 (3) is severable and the legislature would have provided for various safeguards contained in S. 131 to S 135 (1) when it delegated the power to impose a tax including the fixation of rate to municipal boards. It would, therefore, in my opinion be right to hold that Ss. 128 to 135 (2) indicate proper delegation of the authority of the legislature to impose taxes specified in S. 128 and that it is sub-s. (3) of S. 135 which should be struck down because it is the only provision which makes the delegation excessive. I would, therefore, hold that S. 135 (3) inasmuch as it makes the delegation contained in Ss. 128 to 135 (2) excessive must be served from the rest of the sections which are otherwise a proper exercise of delegation of legislative authority and should be struck down on the ground of excessive delegation. 35. I would, therefore, dismiss the appeal with costs and uphold the order of the High Court holding that the tax imposed by the appellant had not been validly imposed though on a different ground. ORDER 36.
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complied with substantially but not literally, because they are directory. In either case the agency for seeing to this compliance is the State Government. It is hardly to be expected that the State Government would not do its duty or that it would allow breaches of the provision to go uncertified One can hardly imagine that an omission to comply with the fundamental provisions would ever be condoned. The law reports show that even before the addition of the provision making the notification conclusive evidence of the proper imposition of the tax, complaints brought before the courts concerned provisions dealing with publicity or requiring ministerial fulfillment. Even in the two earlier cases which reached this Court and also the present case, the complaint is of a breach of one of the provisions which can only be regarded as directory. In cases of minor departures from the letter of the law especially in matters not fundamental, it is for the Government to see whether there has been substantial or reasonable compliance. Once Government condones the departure, the decision of Government is rightly made final by making the notification conclusive evidence of the compliance with the requirements of the Act.It is not necessary to investigate whether a complete lack of observance of the provisions would be afforded the same protection. It is most unlikely that this would ever happen and before we pronounce our opinion we should like to see such a caseIt is impossible for the Legislature to pass statutes for the imposition of such taxes in local areas. The power must be delegated. Regard being had to the democratic set up of the municipalities which need the proceeds of these taxes for their own administration, it is proper to leave to these municipalities the power to impose and collect these taxes. The taxes are, however, predetermined and a procedure for consulting the wishes of the people is devised. But the matter is not left entirely in the hands of the Municipal Boards. As the State Legislature cannot supervise the due observance of its laws by the Municipal Boards, power is given to the State Government to check their actions. The imposition of the tax is left to the Municipal Boards but the duty to see that the provisions for publicity, and obtaining the views of the persons to be taxed are fully complied with is laid upon the State Government. The proceedings for the imposition of the tax, however, must come to a conclusion at some stage after which it can be said that the tax has been imposed. That stage is reached, not when the special resolution of the Municipal Board is passed, but when the notification by Government is issued. Now it is impossible to leave the matter open so that complaints about the imposition of the tax or the breach of this rule or that may continue to be raised. The door to objections must at some stage be shut and the Legislature considers that, if the Sate Government approves of the special resolution, all enquiry must cease. This is not a case of excessive delegation unless one starts with the notion that the State Government may collude with the Municipal Board to disregard deliberately the provisions for the imposition of the tax. There is no warrant for such a supposition. The provision making the notification conclusive evidence of the proper imposition of the tax is conceived in the best interest of compliance of the provisions by the Boards and not to facilitate their breach. It cannot, therefore, be said that there is excessive delegationThe first is the question of discrimination which is said to arise from the proviso which makes the notification conclusive in respect of the procedure by which the tax is imposed. There are numerous statutes, including the Evidence Act, in which a fact is taken to be conclusively proved from the existence of some other fact. The law is full of fictions and irrebuttable presumptions which also involve proof of facts. It has never been suggested before that when the Legislature says that enquiry into the truth or otherwise of a fact shall stop at a given stage and the fact taken to be conclusively proved, that a question of discrimination arises. The tax payers in the Municipality are allowed under the Municipalities Act to object to the proposal for the tax and the rules and to have their objections considered. They cannot, of course, be allowed to keep on agitating and a stage must come when it may be said that the provisions of the Act have been duly observed. That stage is reached after Government has scrutinized the proposal, the rules, the objections and the orders and has approved of the proposal, a special resolution is passed by the Municipal Board and a notification is issued. It cannot be said that sub-s. (3) of S. 135 which leads to the conclusion that the imposition of the tax is according to the Municipalities Act is discriminatory because it only concludes objections against the procedure followed in the imposition of the taxThe next objection that the impugned sub-section involves the exercise of judicial functions not open to the Legislature, is wholly erroneous. The sub-section only shuts out further enquiry and makes the notification final. There is no exercise of a judicial function. In our country there is no rigid separation of powers and the legislature often frames a rule such as is incorporated in the third sub-section of S. 135. The Evidence Act is full of such provisions. In the United States of America where the separation of powers is extremely rigid in some of the constitutions of the States it may be open to objection that the Legislature in shutting out enquiry into the truth of a fact encroaches upon the judicial power of the State. Such disability has never been found to exist in our country although legislation of this type is only too frequent. The objection is, therefore, without substance.
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State Of Bombay Vs. Sardar Venkat Rao Krishna Rao Gujar | for grant of certificate. All the same we allowed Mr. Bindra to urge the contention that ottas and chabutras are not included in the term "buildings" in S. 5(a) of the Act.9. The relevant portion of S. 5(a) of the Act reads thus:"Subject to the provisions in Ss. 47 and 63 - all open enclosures used for agricultural or domestic purposes and in continuous possession for twelve years immediately before 1948-49; all open house-sites purchased for consideration; all buildings; within the limits of a village site belonging to or held by the outgoing proprietor or any other person shall continue to belong to or be held by such proprietor or other person, as the case may be; and the land thereof with areas appurtenant thereto shall be settled with him the State Government on such terms and conditions as it may determine:""Village site" means the abadi in an estate or a mahal.10. Section 5(a) is an exception to S. 4(1)(a) of the Act. No doubt, S 4(1)(a) provides for the vesting in the State of the land on which bazar is held. But reading that section along with S. 5(a) it is clear that where any buildings belonging to the proprietor exist on any portion of the abadi land that land, together with the land appurtenant to those building, had to be settled with the ex-proprietor. Land on which the bazar is held is part of the village abadi land and therefore, all buildings standing on such land would fall within S. 5(a) of the Act and would have to be settled with the ex-proprietor.11. The only question, therefore, is whether ottas and chabutras can be regarded as buildings. A perusal of that provision would show that where the ex-proprietor has spent money on constructing something within the limits of the village sites, that thing had to be settled with him. The word "buildings" should, therefore, be given its literal meaning as something which is built. Mr. Bindras contention, however, is that for a structure to be regarded as a building, it should have walls and a roof and in support of this contention he relied upon the decision in Moir v. Williams, (1892) 1 QB 264. In that case Lord Esher has observed that the building generally means all enclosures of brick and stone covered by a roof. But he has also made it clear that the meaning to be given to that word must depend upon the enactment in which the word is used and the context in which it is used. There, what was being considered was, the provisions of the Metropolitan Buildings Act, 1855 (18 and 19 Vict. c. 122) which dealt with residential houses. He also relied upon the decision in Morrison v. Commissioners of Inland Revenue, 1915-1 KB716 at p. 722. That was a case under the Finance (1909-10) Act, 1910 (10 Miw. 7, c. 8). The observations on which he relied are as follows:"It is quite clear that the expression buildings does not mean everything that can by any means be described as built; it means buildings in a more narrow sense than structures, because there are other structures of a limited class which under the terms of the sub-section may also be taken into consideration.:Far from these observations helping him they clearly show that the natural or ordinary meaning to be given to the word "buildings" is something which has been built That meaning would be modified if the provisions of law justify giving some other meaning. Finally he relied upon the decision in Samuel Small v. Parkway Auto Supplies, 49 Am LR 1363. The observations relied on by him are as follows:"The word building in its ordinary sense denotes a structure of edifice including a space within its walls and usually covered with a roof, such as a house, a church, a shop, a barn or a shed.* * * *The word building cannot be held to include every species of erection on land, such as fences, gates or other like structures. Taken in its broadest sense, it can mean only an erection intended for use and occupation as a habitation or for some purpose of trade, manufacture, ornament or use, constituting a fabric, such as a house, a store, a church a shed ..........."These observations must be considered in the context of the Act which was being construed and in the context in which they were made. There the Court had to consider whether erection of gasoline pumps and construction of underground gasoline tanks and pits with concrete sides sunken in the ground are within a restrictive covenant that no building of any kind shall be erected or maintained within a certain distance of a street. In the particular context buildings had, according to the Court, to be given it popular meaning. That case, therefore, does not assist the appellants.12. In our opinion the High Court was quite right in holding that even uncovered ottas and chabutras fall within the term "building" as used in S. 5(a) of the Act and, therefore, along with the land appurtenant to them they must be settled with the respondent.13. Mr. Bindra pointed out that the High Court was in error in asking the Government to settle the whole of Khasra No. 61/1 on the respondent because whereas its area is 12,85 acres, the land covered by the structures, including the appurtenant land, does not measure more than 2.85 acres. Mr. Purshottam Trikamdas, learned counsel for the respondent readily conceded this fact and said that the High Court has committed an error through an oversight and that all that the respondent wants is 2.85 acres of land and nothing more. Mr. Bindra then said that it would not be proper to give a direction to the Government to settle any particular area of the land and it should be left to the revenue authorities to determine the precise area covered by the structures and the passages separating these various structures. We agree with him. | 0[ds]It would also appear from grounds 5 and 6 in the special leave petition that what was really sought to be urged before this Court was the contention actually pressed by the learned Advocate-General in support of the application for grant of certificate.Section 5(a) is an exception to S. 4(1)(a) of the Act. No doubt, S 4(1)(a) provides for the vesting in the State of the land on which bazar is held. But reading that section along with S. 5(a) it is clear that where any buildings belonging to the proprietor exist on any portion of the abadi land that land, together with the land appurtenant to those building, had to be settled with the ex-proprietor. Land on which the bazar is held is part of the village abadi land and therefore, all buildings standing on such land would fall within S. 5(a) of the Act and would have to be settled with theperusal of that provision would show that where the ex-proprietor has spent money on constructing something within the limits of the village sites, that thing had to be settled with him. The word "buildings" should, therefore, be given its literal meaning as something which isobservations must be considered in the context of the Act which was being construed and in the context in which they were made. There the Court had to consider whether erection of gasoline pumps and construction of underground gasoline tanks and pits with concrete sides sunken in the ground are within a restrictive covenant that no building of any kind shall be erected or maintained within a certain distance of a street. In the particular context buildings had, according to the Court, to be given it popular meaning. That case, therefore, does not assist the appellants.12. In our opinion the High Court was quite right in holding that even uncovered ottas and chabutras fall within the term "building" as used in S. 5(a) of the Act and, therefore, along with the land appurtenant to them they must be settled with the respondent. | 0 | 2,710 | 393 | ### Instruction:
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for grant of certificate. All the same we allowed Mr. Bindra to urge the contention that ottas and chabutras are not included in the term "buildings" in S. 5(a) of the Act.9. The relevant portion of S. 5(a) of the Act reads thus:"Subject to the provisions in Ss. 47 and 63 - all open enclosures used for agricultural or domestic purposes and in continuous possession for twelve years immediately before 1948-49; all open house-sites purchased for consideration; all buildings; within the limits of a village site belonging to or held by the outgoing proprietor or any other person shall continue to belong to or be held by such proprietor or other person, as the case may be; and the land thereof with areas appurtenant thereto shall be settled with him the State Government on such terms and conditions as it may determine:""Village site" means the abadi in an estate or a mahal.10. Section 5(a) is an exception to S. 4(1)(a) of the Act. No doubt, S 4(1)(a) provides for the vesting in the State of the land on which bazar is held. But reading that section along with S. 5(a) it is clear that where any buildings belonging to the proprietor exist on any portion of the abadi land that land, together with the land appurtenant to those building, had to be settled with the ex-proprietor. Land on which the bazar is held is part of the village abadi land and therefore, all buildings standing on such land would fall within S. 5(a) of the Act and would have to be settled with the ex-proprietor.11. The only question, therefore, is whether ottas and chabutras can be regarded as buildings. A perusal of that provision would show that where the ex-proprietor has spent money on constructing something within the limits of the village sites, that thing had to be settled with him. The word "buildings" should, therefore, be given its literal meaning as something which is built. Mr. Bindras contention, however, is that for a structure to be regarded as a building, it should have walls and a roof and in support of this contention he relied upon the decision in Moir v. Williams, (1892) 1 QB 264. In that case Lord Esher has observed that the building generally means all enclosures of brick and stone covered by a roof. But he has also made it clear that the meaning to be given to that word must depend upon the enactment in which the word is used and the context in which it is used. There, what was being considered was, the provisions of the Metropolitan Buildings Act, 1855 (18 and 19 Vict. c. 122) which dealt with residential houses. He also relied upon the decision in Morrison v. Commissioners of Inland Revenue, 1915-1 KB716 at p. 722. That was a case under the Finance (1909-10) Act, 1910 (10 Miw. 7, c. 8). The observations on which he relied are as follows:"It is quite clear that the expression buildings does not mean everything that can by any means be described as built; it means buildings in a more narrow sense than structures, because there are other structures of a limited class which under the terms of the sub-section may also be taken into consideration.:Far from these observations helping him they clearly show that the natural or ordinary meaning to be given to the word "buildings" is something which has been built That meaning would be modified if the provisions of law justify giving some other meaning. Finally he relied upon the decision in Samuel Small v. Parkway Auto Supplies, 49 Am LR 1363. The observations relied on by him are as follows:"The word building in its ordinary sense denotes a structure of edifice including a space within its walls and usually covered with a roof, such as a house, a church, a shop, a barn or a shed.* * * *The word building cannot be held to include every species of erection on land, such as fences, gates or other like structures. Taken in its broadest sense, it can mean only an erection intended for use and occupation as a habitation or for some purpose of trade, manufacture, ornament or use, constituting a fabric, such as a house, a store, a church a shed ..........."These observations must be considered in the context of the Act which was being construed and in the context in which they were made. There the Court had to consider whether erection of gasoline pumps and construction of underground gasoline tanks and pits with concrete sides sunken in the ground are within a restrictive covenant that no building of any kind shall be erected or maintained within a certain distance of a street. In the particular context buildings had, according to the Court, to be given it popular meaning. That case, therefore, does not assist the appellants.12. In our opinion the High Court was quite right in holding that even uncovered ottas and chabutras fall within the term "building" as used in S. 5(a) of the Act and, therefore, along with the land appurtenant to them they must be settled with the respondent.13. Mr. Bindra pointed out that the High Court was in error in asking the Government to settle the whole of Khasra No. 61/1 on the respondent because whereas its area is 12,85 acres, the land covered by the structures, including the appurtenant land, does not measure more than 2.85 acres. Mr. Purshottam Trikamdas, learned counsel for the respondent readily conceded this fact and said that the High Court has committed an error through an oversight and that all that the respondent wants is 2.85 acres of land and nothing more. Mr. Bindra then said that it would not be proper to give a direction to the Government to settle any particular area of the land and it should be left to the revenue authorities to determine the precise area covered by the structures and the passages separating these various structures. We agree with him.
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It would also appear from grounds 5 and 6 in the special leave petition that what was really sought to be urged before this Court was the contention actually pressed by the learned Advocate-General in support of the application for grant of certificate.Section 5(a) is an exception to S. 4(1)(a) of the Act. No doubt, S 4(1)(a) provides for the vesting in the State of the land on which bazar is held. But reading that section along with S. 5(a) it is clear that where any buildings belonging to the proprietor exist on any portion of the abadi land that land, together with the land appurtenant to those building, had to be settled with the ex-proprietor. Land on which the bazar is held is part of the village abadi land and therefore, all buildings standing on such land would fall within S. 5(a) of the Act and would have to be settled with theperusal of that provision would show that where the ex-proprietor has spent money on constructing something within the limits of the village sites, that thing had to be settled with him. The word "buildings" should, therefore, be given its literal meaning as something which isobservations must be considered in the context of the Act which was being construed and in the context in which they were made. There the Court had to consider whether erection of gasoline pumps and construction of underground gasoline tanks and pits with concrete sides sunken in the ground are within a restrictive covenant that no building of any kind shall be erected or maintained within a certain distance of a street. In the particular context buildings had, according to the Court, to be given it popular meaning. That case, therefore, does not assist the appellants.12. In our opinion the High Court was quite right in holding that even uncovered ottas and chabutras fall within the term "building" as used in S. 5(a) of the Act and, therefore, along with the land appurtenant to them they must be settled with the respondent.
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Parmanand Patel (D) Th. Lrs. Vs. Sudha A.Chowgule | lot of controversy between the parties. There is also a lot of bad blood.19. The High Court in its impugned judgment proceeded on the premise that prima facie late Parmanand Patel had a desire to settle the properties in favour of his two daughters in equal shares. He made a meticulous plan therefor which would be tax efficient. To the aforementioned extent, 1st respondents case appears to have been supported by Dr. Hemant Patel, brother of Indu Patel herself. But, with respect, what was not taken into consideration by the Division Bench of the High Court was that admittedly two sets of papers were prepared - one on the basis that the 2nd appellant would surrender her 5% share in the company. Late Parmanand Patel even signed the first set of papers. She, however, refused to part with her share in the company. It was then the second set of documents were executed which not only included the undated Will but also the two letters addressed to Sudha and Jaya respectively. The said letters prima facie had been drafted in a manner which would ultimately be beneficial to the interest of Sudha alone. Presumably, at that point of time the 2nd appellant expressed her stray resent in relation to the whole affair. Rightly or wrongly, she was not ad idem with her husband. It gave rise to execution of a third set of document which was signed not only by late Parmanand Patel but also the appellant no.2 conferring a power of review upon Shirish Patel. It was also attested by R.A. Shah. We have been given to understand that the said Shirish Patel alone was helping late Parmanand Patel in running the business. It is in the aforementioned context that letter dated 26th August 2005 written by Shirish Patel to R.A. Shah assumes importance. It reads as under : "Further to my letter dated 25th August 2005, I wish to confirm that all the documents purported to have been executed on January 23, 2005 by Parmanandkaka dealing with his assets and the acts of Sudha pursuant thereto are detrimental to the interest of Parmanandkaka and therefore he should not be bound by the same." The Will and the letters of gift as evidenced by the two letters dated 23rd January 2005 were subject to review by Shirish Patel. He having opined that the arrangement being detrimental to the interest of Parmanand Patel, in our opinion, should be given primacy at this stage. We would, however, refrain ourselves from making any comment upon the correctness or otherwise of the one set of reports submitted by the medical experts in preference to another. The case of the 1st respondent may or may not be correct. It is possible, as has been contended by her, that late Parmanand Patel had a desire to divide the property in equal shares between her two daughters. However, for the purpose of passing an interlocutory order, we may proceed on the premise that the rights of the parties would have to be considered in terms of the provisions of the Hindu Succession Act, 1956, that is, on the assumption that Parmanand Patel died intestate in which event share of each of his heirs would be one third. Distribution of property amongst the children by the parents, however, may be found to be desirable if the mother wants to retain her share and deal with the same on her own. No exception can be taken thereto. Ordinarily, a Court shall presume the existence of a right in the property of the deceased in favour of the 2nd appellant herein unless a strong prima facie case is made out that she had been deprived therefrom. It is not for the court to consider as to whether her stand is fair to one of her daughters or not. Even if it be held that the Will and the letters had been executed by late Parmanand Patel in sound disposing mind, conduct of Sudha cannot be lost sight of. Sudha might be accompanying her father to various parts of the country as also abroad to see that Parmanand Patel received best of the treatment, but then Jaya had also been residing in the same bungalow with her father despite her marriage in 1979. Above all, 2nd appellant had also not only been looking after her husband but also accompanying him for his treatment wherever it was found to be necessary. We, as at present advised, do not wish to comment upon the contentions raised before us that the Will was not only unnatural but was surrounded by a large number of suspicious circumstances. Such a question would fall for consideration of the High Court in the suit.20. We, therefore, having taken into consideration all aspects of the matter, are of the opinion that it is a fit case where the High Court should have appointed a receiver and/or an administrator with suitable directions. We have, to the aforementioned extent, intend to interfere with the order of the High Court as Sudha alone had been given exclusive powers not only to execute documents but also induct tenants. The aforementioned job, in our opinion, keeping in view the relationship between the parties should better be left with an officer of the Court who would be subject to directions as may be issued by the High Court from time to time. We leave the matter relating to imposition of conditions and/or appointment of chartered accountant or others to assist the receiver completely at the hands of the High Court. In a case of this nature, however, the official receiver himself may not be appointed as receiver.21. Before parting with this case, however, we may place on record that Mr. Hemant Choudhari, learned counsel appearing for respondent no.6- Bank submitted that appellants and the respondent-companies owned by appellants and the first respondent even borrowed a sum of about Rs.5 crore. The High Court may consider desirability of protecting the interest of the bank also. | 1[ds]15. Although, the learned counsel for the parties have addressed us at great length and in fact we have been taken through the minutest details of the relevant and important documents filed and relied on by the parties, we are of the opinion that it would not be prudent on our part to discuss the same in great details.A receiver, having regard to the provisions contained in O.40 R.1 of the Code of Civil Procedure, is appointed only when it is found to be just and convenient to do so.Appointment of a receiver pending suit is a matter which is within the discretionary jurisdiction of the Court. Ordinarily the Court would not appoint a receiver save and except on a prima facie finding that the plaintiff has an excellent chance of success in the suit. It is also for the plaintiff not only to show a case of adverse and conflict claims of property but also emergency, danger or loss demanding immediate action. Element of danger is an important consideration. Ordinarily, a receiver would not be appointed unless a case has been made out which may deprive the defendant of a de facto possession. For the said purpose, conduct of the parties would also be relevant.16. 1st respondent did not question that part of the order of the Division Bench whereby an Official Receiver of the High Court has been appointed as receiver in respect of the suit properties. We would, therefore, proceed on the premise that a strong prima facie case has been found in favour of the appellants.Parties hereto have brought out medical reports in respect of late Parmanent Patel which give us different pictures about his mental condition at the relevant time. It is no doubt true that the relevant date for determining the mental faculty of late Parmanand Patel would be 23rd January 2005, but for arriving at the said conclusion his mental condition, both prior thereto and later, would be relevant. Prima facie, appellant no.2 was compelled to file a suit in order to protect the interest of her husband. Suit was entertained and interim order was passed. The Division Bench, in order to satisfy itself, called late Patel in their chamber. He was found to be totally confused and incoherent. It is in the aforementioned situation, a panel of doctors was constituted for examining him. We have noticed the report of the said panel of doctors.17. The property in suit is worth more than Rs.1000 crores. There are several companies. Respondentherein own huge properties. There are twobuildings which are occupied by a large number of tenants. Each of the heirs and legal representatives of late Parmanand Patel, in the event he is found to have died intestate, would have 1/3rd share. Appellant no.2 does not claim exclusive interest in respect of the flats purported to have been gifted in her favour by her late husband. A statement has also been made on her behalf of the first respondent herein that she would have no objection to share the entire property half and half between herself and appellant no.2.18. We may also place on record that several attempts have been made for reconciliation between the parties. At the instance of the learned senior counsel appearing on behalf of the parties, the dispute was referred to a learned mediator. Parties, however, for reasons best known to them and despite the fact that for all intent and purport the dispute hinges on a narrow pedestal, have not been able to settle their disputes. It, therefore, appears that there is a lot of controversy between the parties. There is also a lot of bad blood.19. The High Court in its impugned judgment proceeded on the premise that prima facie late Parmanand Patel had a desire to settle the properties in favour of his two daughters in equal shares. He made a meticulous plan therefor which would be tax efficient. To the aforementioned extent, 1st respondents case appears to have been supported by Dr. Hemant Patel, brother of Indu Patel herself. But, with respect, what was not taken into consideration by the Division Bench of the High Court was that admittedly two sets of papers were preparedone on the basis that the 2nd appellant would surrender her 5% share in the company. Late Parmanand Patel even signed the first set of papers. She, however, refused to part with her share in the company. It was then the second set of documents were executed which not only included the undated Will but also the two letters addressed to Sudha and Jaya respectively. The said letters prima facie had been drafted in a manner which would ultimately be beneficial to the interest of Sudha alone. Presumably, at that point of time the 2nd appellant expressed her stray resent in relation to the whole affair. Rightly or wrongly, she was not ad idem with her husband. It gave rise to execution of a third set of document which was signed not only by late Parmanand Patel but also the appellant no.2 conferring a power of review upon Shirish Patel. It was also attested by R.A. Shah. We have been given to understand that the said Shirish Patel alone was helping late Parmanand Patel in running the business. It is in the aforementioned context that letter dated 26th August 2005 written by Shirish Patel to R.A. Shah assumes importance. It reads as underto my letter dated 25th August 2005, I wish to confirm that all the documents purported to have been executed on January 23, 2005 by Parmanandkaka dealing with his assets and the acts of Sudha pursuant thereto are detrimental to the interest of Parmanandkaka and therefore he should not be bound by theWill and the letters of gift as evidenced by the two letters dated 23rd January 2005 were subject to review by Shirish Patel. He having opined that the arrangement being detrimental to the interest of Parmanand Patel, in our opinion, should be given primacy at this stage. We would, however, refrain ourselves from making any comment upon the correctness or otherwise of the one set of reports submitted by the medical experts in preference to another. The case of the 1st respondent may or may not be correct. It is possible, as has been contended by her, that late Parmanand Patel had a desire to divide the property in equal shares between her two daughters. However, for the purpose of passing an interlocutory order, we may proceed on the premise that the rights of the parties would have to be considered in terms of the provisions of the Hindu Succession Act, 1956, that is, on the assumption that Parmanand Patel died intestate in which event share of each of his heirs would be one third. Distribution of property amongst the children by the parents, however, may be found to be desirable if the mother wants to retain her share and deal with the same on her own. No exception can be taken thereto. Ordinarily, a Court shall presume the existence of a right in the property of the deceased in favour of the 2nd appellant herein unless a strong prima facie case is made out that she had been deprived therefrom. It is not for the court to consider as to whether her stand is fair to one of her daughters or not. Even if it be held that the Will and the letters had been executed by late Parmanand Patel in sound disposing mind, conduct of Sudha cannot be lost sight of. Sudha might be accompanying her father to various parts of the country as also abroad to see that Parmanand Patel received best of the treatment, but then Jaya had also been residing in the same bungalow with her father despite her marriage in 1979. Above all, 2nd appellant had also not only been looking after her husband but also accompanying him for his treatment wherever it was found to be necessary. We, as at present advised, do not wish to comment upon the contentions raised before us that the Will was not only unnatural but was surrounded by a large number of suspicious circumstances. Such a question would fall for consideration of the High Court in the suit.20. We, therefore, having taken into consideration all aspects of the matter, are of the opinion that it is a fit case where the High Court should have appointed a receiver and/or an administrator with suitable directions. We have, to the aforementioned extent, intend to interfere with the order of the High Court as Sudha alone had been given exclusive powers not only to execute documents but also induct tenants. The aforementioned job, in our opinion, keeping in view the relationship between the parties should better be left with an officer of the Court who would be subject to directions as may be issued by the High Court from time toleave the matter relating to imposition of conditions and/or appointment of chartered accountant or others to assist the receiver completely at the hands of the High Court. In a case of this nature, however, the official receiver himself may not be appointed as receiver.21. Before parting with this case, however, we may place on record that Mr. Hemant Choudhari, learned counsel appearing for respondent no.6Bank submitted that appellants and theowned by appellants and the first respondent even borrowed a sum of about Rs.5 crore. The High Court may consider desirability of protecting the interest of the bank also. | 1 | 5,936 | 1,713 | ### Instruction:
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lot of controversy between the parties. There is also a lot of bad blood.19. The High Court in its impugned judgment proceeded on the premise that prima facie late Parmanand Patel had a desire to settle the properties in favour of his two daughters in equal shares. He made a meticulous plan therefor which would be tax efficient. To the aforementioned extent, 1st respondents case appears to have been supported by Dr. Hemant Patel, brother of Indu Patel herself. But, with respect, what was not taken into consideration by the Division Bench of the High Court was that admittedly two sets of papers were prepared - one on the basis that the 2nd appellant would surrender her 5% share in the company. Late Parmanand Patel even signed the first set of papers. She, however, refused to part with her share in the company. It was then the second set of documents were executed which not only included the undated Will but also the two letters addressed to Sudha and Jaya respectively. The said letters prima facie had been drafted in a manner which would ultimately be beneficial to the interest of Sudha alone. Presumably, at that point of time the 2nd appellant expressed her stray resent in relation to the whole affair. Rightly or wrongly, she was not ad idem with her husband. It gave rise to execution of a third set of document which was signed not only by late Parmanand Patel but also the appellant no.2 conferring a power of review upon Shirish Patel. It was also attested by R.A. Shah. We have been given to understand that the said Shirish Patel alone was helping late Parmanand Patel in running the business. It is in the aforementioned context that letter dated 26th August 2005 written by Shirish Patel to R.A. Shah assumes importance. It reads as under : "Further to my letter dated 25th August 2005, I wish to confirm that all the documents purported to have been executed on January 23, 2005 by Parmanandkaka dealing with his assets and the acts of Sudha pursuant thereto are detrimental to the interest of Parmanandkaka and therefore he should not be bound by the same." The Will and the letters of gift as evidenced by the two letters dated 23rd January 2005 were subject to review by Shirish Patel. He having opined that the arrangement being detrimental to the interest of Parmanand Patel, in our opinion, should be given primacy at this stage. We would, however, refrain ourselves from making any comment upon the correctness or otherwise of the one set of reports submitted by the medical experts in preference to another. The case of the 1st respondent may or may not be correct. It is possible, as has been contended by her, that late Parmanand Patel had a desire to divide the property in equal shares between her two daughters. However, for the purpose of passing an interlocutory order, we may proceed on the premise that the rights of the parties would have to be considered in terms of the provisions of the Hindu Succession Act, 1956, that is, on the assumption that Parmanand Patel died intestate in which event share of each of his heirs would be one third. Distribution of property amongst the children by the parents, however, may be found to be desirable if the mother wants to retain her share and deal with the same on her own. No exception can be taken thereto. Ordinarily, a Court shall presume the existence of a right in the property of the deceased in favour of the 2nd appellant herein unless a strong prima facie case is made out that she had been deprived therefrom. It is not for the court to consider as to whether her stand is fair to one of her daughters or not. Even if it be held that the Will and the letters had been executed by late Parmanand Patel in sound disposing mind, conduct of Sudha cannot be lost sight of. Sudha might be accompanying her father to various parts of the country as also abroad to see that Parmanand Patel received best of the treatment, but then Jaya had also been residing in the same bungalow with her father despite her marriage in 1979. Above all, 2nd appellant had also not only been looking after her husband but also accompanying him for his treatment wherever it was found to be necessary. We, as at present advised, do not wish to comment upon the contentions raised before us that the Will was not only unnatural but was surrounded by a large number of suspicious circumstances. Such a question would fall for consideration of the High Court in the suit.20. We, therefore, having taken into consideration all aspects of the matter, are of the opinion that it is a fit case where the High Court should have appointed a receiver and/or an administrator with suitable directions. We have, to the aforementioned extent, intend to interfere with the order of the High Court as Sudha alone had been given exclusive powers not only to execute documents but also induct tenants. The aforementioned job, in our opinion, keeping in view the relationship between the parties should better be left with an officer of the Court who would be subject to directions as may be issued by the High Court from time to time. We leave the matter relating to imposition of conditions and/or appointment of chartered accountant or others to assist the receiver completely at the hands of the High Court. In a case of this nature, however, the official receiver himself may not be appointed as receiver.21. Before parting with this case, however, we may place on record that Mr. Hemant Choudhari, learned counsel appearing for respondent no.6- Bank submitted that appellants and the respondent-companies owned by appellants and the first respondent even borrowed a sum of about Rs.5 crore. The High Court may consider desirability of protecting the interest of the bank also.
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not been able to settle their disputes. It, therefore, appears that there is a lot of controversy between the parties. There is also a lot of bad blood.19. The High Court in its impugned judgment proceeded on the premise that prima facie late Parmanand Patel had a desire to settle the properties in favour of his two daughters in equal shares. He made a meticulous plan therefor which would be tax efficient. To the aforementioned extent, 1st respondents case appears to have been supported by Dr. Hemant Patel, brother of Indu Patel herself. But, with respect, what was not taken into consideration by the Division Bench of the High Court was that admittedly two sets of papers were preparedone on the basis that the 2nd appellant would surrender her 5% share in the company. Late Parmanand Patel even signed the first set of papers. She, however, refused to part with her share in the company. It was then the second set of documents were executed which not only included the undated Will but also the two letters addressed to Sudha and Jaya respectively. The said letters prima facie had been drafted in a manner which would ultimately be beneficial to the interest of Sudha alone. Presumably, at that point of time the 2nd appellant expressed her stray resent in relation to the whole affair. Rightly or wrongly, she was not ad idem with her husband. It gave rise to execution of a third set of document which was signed not only by late Parmanand Patel but also the appellant no.2 conferring a power of review upon Shirish Patel. It was also attested by R.A. Shah. We have been given to understand that the said Shirish Patel alone was helping late Parmanand Patel in running the business. It is in the aforementioned context that letter dated 26th August 2005 written by Shirish Patel to R.A. Shah assumes importance. It reads as underto my letter dated 25th August 2005, I wish to confirm that all the documents purported to have been executed on January 23, 2005 by Parmanandkaka dealing with his assets and the acts of Sudha pursuant thereto are detrimental to the interest of Parmanandkaka and therefore he should not be bound by theWill and the letters of gift as evidenced by the two letters dated 23rd January 2005 were subject to review by Shirish Patel. He having opined that the arrangement being detrimental to the interest of Parmanand Patel, in our opinion, should be given primacy at this stage. We would, however, refrain ourselves from making any comment upon the correctness or otherwise of the one set of reports submitted by the medical experts in preference to another. The case of the 1st respondent may or may not be correct. It is possible, as has been contended by her, that late Parmanand Patel had a desire to divide the property in equal shares between her two daughters. However, for the purpose of passing an interlocutory order, we may proceed on the premise that the rights of the parties would have to be considered in terms of the provisions of the Hindu Succession Act, 1956, that is, on the assumption that Parmanand Patel died intestate in which event share of each of his heirs would be one third. Distribution of property amongst the children by the parents, however, may be found to be desirable if the mother wants to retain her share and deal with the same on her own. No exception can be taken thereto. Ordinarily, a Court shall presume the existence of a right in the property of the deceased in favour of the 2nd appellant herein unless a strong prima facie case is made out that she had been deprived therefrom. It is not for the court to consider as to whether her stand is fair to one of her daughters or not. Even if it be held that the Will and the letters had been executed by late Parmanand Patel in sound disposing mind, conduct of Sudha cannot be lost sight of. Sudha might be accompanying her father to various parts of the country as also abroad to see that Parmanand Patel received best of the treatment, but then Jaya had also been residing in the same bungalow with her father despite her marriage in 1979. Above all, 2nd appellant had also not only been looking after her husband but also accompanying him for his treatment wherever it was found to be necessary. We, as at present advised, do not wish to comment upon the contentions raised before us that the Will was not only unnatural but was surrounded by a large number of suspicious circumstances. Such a question would fall for consideration of the High Court in the suit.20. We, therefore, having taken into consideration all aspects of the matter, are of the opinion that it is a fit case where the High Court should have appointed a receiver and/or an administrator with suitable directions. We have, to the aforementioned extent, intend to interfere with the order of the High Court as Sudha alone had been given exclusive powers not only to execute documents but also induct tenants. The aforementioned job, in our opinion, keeping in view the relationship between the parties should better be left with an officer of the Court who would be subject to directions as may be issued by the High Court from time toleave the matter relating to imposition of conditions and/or appointment of chartered accountant or others to assist the receiver completely at the hands of the High Court. In a case of this nature, however, the official receiver himself may not be appointed as receiver.21. Before parting with this case, however, we may place on record that Mr. Hemant Choudhari, learned counsel appearing for respondent no.6Bank submitted that appellants and theowned by appellants and the first respondent even borrowed a sum of about Rs.5 crore. The High Court may consider desirability of protecting the interest of the bank also.
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Iyanahalli Bakkappa & Sons Vs. State Of Mysore | Section 3 (a) of the Central Sales Tax Act and since the appellant was the first dealer in matches in Mysore State it was liable to pay Sales Tax and accordingly, it was so assessed. Against the said assessment order the appellant filed an appeal to the Deputy Commissioner of Commercial Taxes who dismissed the Appeal. The further appeal to the Tribunal was equally unsuccessful. 3. Before us it is contended by the learned Advocate for the appellant relying upon the dispatch advice, delivery notes and invoices issued in the name of the assessee in which the sales Tax at 2% was charged that the sale by the manufacturer at Sivakasi was effected in favour of their respective Sales Depots in Mysore and it is only thereafter that the appellants purchased from these Sales Depots the matches and cannot therefore be treated as the first purchaser in the Mysore State. It appears to us on the facts as set out above which were not in dispute, the sales were made by the respective factories direct to the appellant, the sales price was also sent directly to the factories at Sivakasi. No doubt the orders were routed through the Sales Depot but on that account it cannot be said that the factory sold the goods ordered by the appellant to its Sales Depot. It does not appear that the contention based on the invoices showing that the Sales Tax was charged by the Sales Depot was urged before any of the authorities or before the High Court nor was there any finding on this aspect as is evident from the facts found by the Sales Tax authorities which were not in dispute. It is also inconceivable that there can be a sale between the manufacturer and its Sales Depot. 4. It is not disputed that under the provisions of the Act it is the first sale in the State that is exigible to tax. Sale is defined in Section 2 (t) of the Act as follows:- Sale with all its grammatical variations and cognate expressions means every transfer of the property in goods by one person to another in the course of trade or business for cash or for deferred payments or other valuable consideration, but does not include a mortgage hypothecation. charge or pledge " Explanation (3) to this definition which is relevant is given below :-"(a) The sale or purchase of goods shall be deemed for the purposes of this Act, to have taken place in the State wherever the contract of sale or purchase might have been made, it the goods are within the State: (I) In the case of specific or ascertained goods, at the time the contract or sale or purchase is made; and (II) in the case of unascertained or future goods, at the time of their appropriation to the contract of sale or purchase by the seller or by the purchaser, whether the assent of the other party is prior or subsequent to such appropriation." 5. It is apparent from the above provisions that the transactions in question under explanation 3 (a) are the first sales in favour of the appellant and they took place within the State of Mysore. The learned Advocate relies on the decision in Rain Narain and Sons v. The Assistant Commissioner of Sales-tax, (1955) 2 SCR 483 for the contention that in similar circumstances the sale was said to have been effected to the depots and consequently the sale to the assessee was the second sale and is, therefore, not assessable to tax. The High Court, before which this decision was cited, did not rely upon it because it felt that it was not possible to ascertain whether under the statute this Court was called upon to consider the definition of sale similar to that contained in Section 2 (t) of the Act. It is true that in that case while this Court was considering the question whether the sales were inter-State sales or inside sales, the definition of sale under the Madhya Pradesh Sales Tax Act was not specifically referred to or examined. A perusal of that decision, however, would show that what this Court was considering was whether the transactions fell within the definition of sale contained in explanation II to Section 2 (g) of the Madhya Pradesh Sales Tax Act and that so far as the post-Constitution period was concerned, whether they were saved from the ban of Article 286 (1) (a) and the explanation thereto, by the Presidents order made under the proviso to Article 286 (2). The Advocate General of Madhya Pradesh, no doubt, urged that the transactions were pure inside sales entered into by the assessees in Madhya Pradesh on orders received by them from outside the State, and accepted by the petitioners in that State. It was also contended that the goods were appropriated to the contracts, and the property in the goods passed within the State of Madhya Pradesh, as such the sales were inter-State sales or inside sales which it was within the competence of the State of Madhya Pradesh to tax. The facts disclosed that the assessees manufactured beedis in Madhya Pradesh. They had various sales depots in U. P. and other States and also had selling agents through whom they sold their goods. Apart from effecting sales through the said agencies, they also sold direct to customers who placed orders with them. The question was whether some or all of those sales took place in Madhya Pradesh or in U. P. and it was held that having regard to the transactions in respect of all the aforesaid categories of sales, they were effected in U. P. We are unable to appreciate how this case really assists the appellants. On the other hand, it would appear that the sale by the assessee was effected in U. P., which if applied to the facts in this case, would indicate that the first sale by the Sivakasi firms was in Mysore. | 0[ds]It appears to us on the facts as set out above which were not in dispute, the sales were made by the respective factories direct to the appellant, the sales price was also sent directly to the factories at Sivakasi. No doubt the orders were routed through the Sales Depot but on that account it cannot be said that the factory sold the goods ordered by the appellant to its Sales Depot. It does not appear that the contention based on the invoices showing that the Sales Tax was charged by the Sales Depot was urged before any of the authorities or before the High Court nor was there any finding on this aspect as is evident from the facts found by the Sales Tax authorities which were not in dispute. It is also inconceivable that there can be a sale between the manufacturer and its Sales DepotThe High Court, before which this decision was cited, did not rely upon it because it felt that it was not possible to ascertain whether under the statute this Court was called upon to consider the definition of sale similar to that contained in Section 2 (t) of the Act. It is true that in that case while this Court was considering the question whether the sales were inter-State sales or inside sales, the definition of sale under the Madhya Pradesh Sales Tax Act was not specifically referred to or examined. A perusal of that decision, however, would show that what this Court was considering was whether the transactions fell within the definition of sale contained in explanation II to Section 2 (g) of the Madhya Pradesh Sales Tax Act and that so far as the post-Constitution period was concerned, whether they were saved from the ban of Article 286 (1) (a) and the explanation thereto, by the Presidents order made under the proviso to Article 286 (2). The Advocate General of Madhya Pradesh, no doubt, urged that the transactions were pure inside sales entered into by the assessees in Madhya Pradesh on orders received by them from outside the State, and accepted by the petitioners in that State. It was also contended that the goods were appropriated to the contracts, and the property in the goods passed within the State of Madhya Pradesh, as such the sales were inter-State sales or inside sales which it was within the competence of the State of Madhya Pradesh to tax. The facts disclosed that the assessees manufactured beedis in Madhya Pradesh. They had various sales depots in U. P. and other States and also had selling agents through whom they sold their goods. Apart from effecting sales through the said agencies, they also sold direct to customers who placed orders with them. The question was whether some or all of those sales took place in Madhya Pradesh or in U. P. and it was held that having regard to the transactions in respect of all the aforesaid categories of sales, they were effected in U. P. We are unable to appreciate how this case really assists the appellants. On the other hand, it would appear that the sale by the assessee was effected in U. P., which if applied to the facts in this case, would indicate that the first sale by the Sivakasi firms was in Mysore5. It is apparent from the above provisions that the transactions in question under explanation 3 (a) are the first sales in favour of the appellant and they took place within the State of MysoreThe learned Advocate relies on the decision in Rain Narain and Sons v. The Assistant Commissioner of, (1955) 2 SCR 483 for the contention that in similar circumstances the sale was said to have been effected to the depots and consequently the sale to the assessee was the second sale and is, therefore, not assessable to tax. | 0 | 1,595 | 698 | ### Instruction:
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Section 3 (a) of the Central Sales Tax Act and since the appellant was the first dealer in matches in Mysore State it was liable to pay Sales Tax and accordingly, it was so assessed. Against the said assessment order the appellant filed an appeal to the Deputy Commissioner of Commercial Taxes who dismissed the Appeal. The further appeal to the Tribunal was equally unsuccessful. 3. Before us it is contended by the learned Advocate for the appellant relying upon the dispatch advice, delivery notes and invoices issued in the name of the assessee in which the sales Tax at 2% was charged that the sale by the manufacturer at Sivakasi was effected in favour of their respective Sales Depots in Mysore and it is only thereafter that the appellants purchased from these Sales Depots the matches and cannot therefore be treated as the first purchaser in the Mysore State. It appears to us on the facts as set out above which were not in dispute, the sales were made by the respective factories direct to the appellant, the sales price was also sent directly to the factories at Sivakasi. No doubt the orders were routed through the Sales Depot but on that account it cannot be said that the factory sold the goods ordered by the appellant to its Sales Depot. It does not appear that the contention based on the invoices showing that the Sales Tax was charged by the Sales Depot was urged before any of the authorities or before the High Court nor was there any finding on this aspect as is evident from the facts found by the Sales Tax authorities which were not in dispute. It is also inconceivable that there can be a sale between the manufacturer and its Sales Depot. 4. It is not disputed that under the provisions of the Act it is the first sale in the State that is exigible to tax. Sale is defined in Section 2 (t) of the Act as follows:- Sale with all its grammatical variations and cognate expressions means every transfer of the property in goods by one person to another in the course of trade or business for cash or for deferred payments or other valuable consideration, but does not include a mortgage hypothecation. charge or pledge " Explanation (3) to this definition which is relevant is given below :-"(a) The sale or purchase of goods shall be deemed for the purposes of this Act, to have taken place in the State wherever the contract of sale or purchase might have been made, it the goods are within the State: (I) In the case of specific or ascertained goods, at the time the contract or sale or purchase is made; and (II) in the case of unascertained or future goods, at the time of their appropriation to the contract of sale or purchase by the seller or by the purchaser, whether the assent of the other party is prior or subsequent to such appropriation." 5. It is apparent from the above provisions that the transactions in question under explanation 3 (a) are the first sales in favour of the appellant and they took place within the State of Mysore. The learned Advocate relies on the decision in Rain Narain and Sons v. The Assistant Commissioner of Sales-tax, (1955) 2 SCR 483 for the contention that in similar circumstances the sale was said to have been effected to the depots and consequently the sale to the assessee was the second sale and is, therefore, not assessable to tax. The High Court, before which this decision was cited, did not rely upon it because it felt that it was not possible to ascertain whether under the statute this Court was called upon to consider the definition of sale similar to that contained in Section 2 (t) of the Act. It is true that in that case while this Court was considering the question whether the sales were inter-State sales or inside sales, the definition of sale under the Madhya Pradesh Sales Tax Act was not specifically referred to or examined. A perusal of that decision, however, would show that what this Court was considering was whether the transactions fell within the definition of sale contained in explanation II to Section 2 (g) of the Madhya Pradesh Sales Tax Act and that so far as the post-Constitution period was concerned, whether they were saved from the ban of Article 286 (1) (a) and the explanation thereto, by the Presidents order made under the proviso to Article 286 (2). The Advocate General of Madhya Pradesh, no doubt, urged that the transactions were pure inside sales entered into by the assessees in Madhya Pradesh on orders received by them from outside the State, and accepted by the petitioners in that State. It was also contended that the goods were appropriated to the contracts, and the property in the goods passed within the State of Madhya Pradesh, as such the sales were inter-State sales or inside sales which it was within the competence of the State of Madhya Pradesh to tax. The facts disclosed that the assessees manufactured beedis in Madhya Pradesh. They had various sales depots in U. P. and other States and also had selling agents through whom they sold their goods. Apart from effecting sales through the said agencies, they also sold direct to customers who placed orders with them. The question was whether some or all of those sales took place in Madhya Pradesh or in U. P. and it was held that having regard to the transactions in respect of all the aforesaid categories of sales, they were effected in U. P. We are unable to appreciate how this case really assists the appellants. On the other hand, it would appear that the sale by the assessee was effected in U. P., which if applied to the facts in this case, would indicate that the first sale by the Sivakasi firms was in Mysore.
### Response:
0
### Explanation:
It appears to us on the facts as set out above which were not in dispute, the sales were made by the respective factories direct to the appellant, the sales price was also sent directly to the factories at Sivakasi. No doubt the orders were routed through the Sales Depot but on that account it cannot be said that the factory sold the goods ordered by the appellant to its Sales Depot. It does not appear that the contention based on the invoices showing that the Sales Tax was charged by the Sales Depot was urged before any of the authorities or before the High Court nor was there any finding on this aspect as is evident from the facts found by the Sales Tax authorities which were not in dispute. It is also inconceivable that there can be a sale between the manufacturer and its Sales DepotThe High Court, before which this decision was cited, did not rely upon it because it felt that it was not possible to ascertain whether under the statute this Court was called upon to consider the definition of sale similar to that contained in Section 2 (t) of the Act. It is true that in that case while this Court was considering the question whether the sales were inter-State sales or inside sales, the definition of sale under the Madhya Pradesh Sales Tax Act was not specifically referred to or examined. A perusal of that decision, however, would show that what this Court was considering was whether the transactions fell within the definition of sale contained in explanation II to Section 2 (g) of the Madhya Pradesh Sales Tax Act and that so far as the post-Constitution period was concerned, whether they were saved from the ban of Article 286 (1) (a) and the explanation thereto, by the Presidents order made under the proviso to Article 286 (2). The Advocate General of Madhya Pradesh, no doubt, urged that the transactions were pure inside sales entered into by the assessees in Madhya Pradesh on orders received by them from outside the State, and accepted by the petitioners in that State. It was also contended that the goods were appropriated to the contracts, and the property in the goods passed within the State of Madhya Pradesh, as such the sales were inter-State sales or inside sales which it was within the competence of the State of Madhya Pradesh to tax. The facts disclosed that the assessees manufactured beedis in Madhya Pradesh. They had various sales depots in U. P. and other States and also had selling agents through whom they sold their goods. Apart from effecting sales through the said agencies, they also sold direct to customers who placed orders with them. The question was whether some or all of those sales took place in Madhya Pradesh or in U. P. and it was held that having regard to the transactions in respect of all the aforesaid categories of sales, they were effected in U. P. We are unable to appreciate how this case really assists the appellants. On the other hand, it would appear that the sale by the assessee was effected in U. P., which if applied to the facts in this case, would indicate that the first sale by the Sivakasi firms was in Mysore5. It is apparent from the above provisions that the transactions in question under explanation 3 (a) are the first sales in favour of the appellant and they took place within the State of MysoreThe learned Advocate relies on the decision in Rain Narain and Sons v. The Assistant Commissioner of, (1955) 2 SCR 483 for the contention that in similar circumstances the sale was said to have been effected to the depots and consequently the sale to the assessee was the second sale and is, therefore, not assessable to tax.
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Nantu Ranjan Paul Vs. Steel Authority Of India Ltd. | 1. Leave granted. 2. These appeals are directed against the judgment of the Division Bench of the High Court of Calcutta in F.M.A. No.481 of 2003 and F.M.A. No.482 of 2003 dated 17th June, 2008. 3. The brief facts which are necessary in these two appeals are recapitulated as under: The appellant, posted as Deputy Manager (Finance) under Durgapur Steel Plant and discharging function of an Assistant Manager (Finance) in relation to the miscellaneous work of Bill Section of Finance and Accounts Branch, was charged with the alleged misconduct of passing false bills. The Inquiry Officer on 31st March, 1993, found that the charge of lack of integrity and devotion to duty brought against the appellant was not proved. However, the Inquiry Officer found that the charge pertaining to negligence of duty on the part of the appellant and also acting in the manner prejudicial to the interest of the company was proved. Based on the finding of the Inquiry Officer dated 31st March, 1993, in respect of the charges, the Disciplinary Authority directed the appellant to suffer reduction to a lower stage in a time scale. Aggrieved, the appellant preferred an appeal before the Chairman (SAIL). 4. The Additional Chief Vigilance Officer, Durgapur Steel Plant vide order dated 8th January, 1994, rejected the appeal. The appellant assailed the order of the Disciplinary Authority dated 14th June, 1993, and rejection order dated 8th January, 1994, preferred Writ Petition No.5360 of 1994 in the High Court of Calcutta. 5. On 13th April, 1994, a similar charge was issued to the appellant for two bills almost for the same period, i.e., 1984 to 1987, namely, failed to maintain absolute integrity. The second Inquiry Officer found the appellant to be guilty of acting in a manner prejudicial to the interest of the company and failing to maintain devotion of duty but the appellant was, however, not found guilty to maintain absolute integrity so far as second charge is concerned. The Disciplinary Authority directed the appellant to suffer reduction to a lower post. In this matter also, the appellant preferred an appeal before the Chairman (SAIL), which was dismissed later on. 6. The appellant preferred writ petition before the Calcutta High Court being C.O. No.6493 of 1995. Both the writ petitions were heard by the learned Single Judge and on 9th October, 2002, these writ petitions were allowed holding the imposition of major penalty as illegal and the same was set aside. The learned Single Judge further directed the respondents to give the appellant all service benefits of backwages as if no order of major penalty was imposed upon him. 7. The respondents, being aggrieved by the judgment of the learned Single Judge, preferred two appeals before the Division Bench. The Division Bench party allowed both F.M.A. No.481 of 2003 and F.M.A. No.482 of 2003 by directing: (a) F.M.A. No.481 of 2003 was partly allowed by directing the appellants C.O. No.6493(W) of 1995 to be heard afresh by the learned Single Judge at the earliest; and (b) F.M.A. No.482 of 2003 was partly allowed whereby the reduction in the scale of pay of the appellant was maintained. Only reduction with cumulative effect was deleted. 8. The appellant preferred these appeals by way of special leave petitions against the judgment of the Division Bench. 9. The Division Bench remitted the matter to the learned Single Judge to be heard afresh and according to the Division Bench, the learned Single Judge ought to have given separate judgment dealing with each and every issue raised by the parties. 10. We find no serious infirmity with the impugned judgment of the Division Bench. However, the appellant has been facing inquiry and Court proceedings for almost twenty five years and at this stage remitting the matter to the learned Single Judge would be very harsh to the appellant. 11. | 1[ds]We find no serious infirmity with the impugned judgment of the Division Bench. However, the appellant has been facing inquiry and Court proceedings for almost twenty five years and at this stage remitting the matter to the learned Single Judge would be very harsh to the appellant. | 1 | 733 | 54 | ### 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:
1. Leave granted. 2. These appeals are directed against the judgment of the Division Bench of the High Court of Calcutta in F.M.A. No.481 of 2003 and F.M.A. No.482 of 2003 dated 17th June, 2008. 3. The brief facts which are necessary in these two appeals are recapitulated as under: The appellant, posted as Deputy Manager (Finance) under Durgapur Steel Plant and discharging function of an Assistant Manager (Finance) in relation to the miscellaneous work of Bill Section of Finance and Accounts Branch, was charged with the alleged misconduct of passing false bills. The Inquiry Officer on 31st March, 1993, found that the charge of lack of integrity and devotion to duty brought against the appellant was not proved. However, the Inquiry Officer found that the charge pertaining to negligence of duty on the part of the appellant and also acting in the manner prejudicial to the interest of the company was proved. Based on the finding of the Inquiry Officer dated 31st March, 1993, in respect of the charges, the Disciplinary Authority directed the appellant to suffer reduction to a lower stage in a time scale. Aggrieved, the appellant preferred an appeal before the Chairman (SAIL). 4. The Additional Chief Vigilance Officer, Durgapur Steel Plant vide order dated 8th January, 1994, rejected the appeal. The appellant assailed the order of the Disciplinary Authority dated 14th June, 1993, and rejection order dated 8th January, 1994, preferred Writ Petition No.5360 of 1994 in the High Court of Calcutta. 5. On 13th April, 1994, a similar charge was issued to the appellant for two bills almost for the same period, i.e., 1984 to 1987, namely, failed to maintain absolute integrity. The second Inquiry Officer found the appellant to be guilty of acting in a manner prejudicial to the interest of the company and failing to maintain devotion of duty but the appellant was, however, not found guilty to maintain absolute integrity so far as second charge is concerned. The Disciplinary Authority directed the appellant to suffer reduction to a lower post. In this matter also, the appellant preferred an appeal before the Chairman (SAIL), which was dismissed later on. 6. The appellant preferred writ petition before the Calcutta High Court being C.O. No.6493 of 1995. Both the writ petitions were heard by the learned Single Judge and on 9th October, 2002, these writ petitions were allowed holding the imposition of major penalty as illegal and the same was set aside. The learned Single Judge further directed the respondents to give the appellant all service benefits of backwages as if no order of major penalty was imposed upon him. 7. The respondents, being aggrieved by the judgment of the learned Single Judge, preferred two appeals before the Division Bench. The Division Bench party allowed both F.M.A. No.481 of 2003 and F.M.A. No.482 of 2003 by directing: (a) F.M.A. No.481 of 2003 was partly allowed by directing the appellants C.O. No.6493(W) of 1995 to be heard afresh by the learned Single Judge at the earliest; and (b) F.M.A. No.482 of 2003 was partly allowed whereby the reduction in the scale of pay of the appellant was maintained. Only reduction with cumulative effect was deleted. 8. The appellant preferred these appeals by way of special leave petitions against the judgment of the Division Bench. 9. The Division Bench remitted the matter to the learned Single Judge to be heard afresh and according to the Division Bench, the learned Single Judge ought to have given separate judgment dealing with each and every issue raised by the parties. 10. We find no serious infirmity with the impugned judgment of the Division Bench. However, the appellant has been facing inquiry and Court proceedings for almost twenty five years and at this stage remitting the matter to the learned Single Judge would be very harsh to the appellant. 11.
### Response:
1
### Explanation:
We find no serious infirmity with the impugned judgment of the Division Bench. However, the appellant has been facing inquiry and Court proceedings for almost twenty five years and at this stage remitting the matter to the learned Single Judge would be very harsh to the appellant.
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