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M/s. Shree Gopal Industries Limited Vs. State of Rajasthan and Another | of Revenue refused to submit that question on the ground that question is covered by a decision of the Division Bench. The High Court as mentioned earlier rejected it on the ground that turnover in question comes within the definition of "business" in Cl. (c) of Section 2 of the Act.5. The expression "turnover" is defined in S. 2 (t). It says :Turnover means the aggregate of the amount of sale prices received or receivable by a dealer in respect of the sale or supply of goods or in respect of the sale or supply of goods in the carrying out of any contract."(Proviso to that clause is not relevant for our present purpose).6. "Sale Price" is defined thus in Section (p):" Sale price means the amount payable to a dealer as consideration for the sale of any goods, less any sum allowed as cash discount according to the practice normally prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery of the cost of installation in case where such cost is separately charged and the expression purchase price shall be construed accordingly."7. The charging section is Section 3. But before going to that section, it is necessary to refer to two other definitions in the Act. Dealer is defined in Section 2 (f) as meaning :"any person who carries on the business of buying, selling supplying or distributing goods, directly or otherwise, whether for cash, or for deferred payment, or for commission, remuneration or other valuable consideration and includes..........."8. The expression business is defined in Section 2 (cc) as follows:""business" includes-(i) any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce, manufacture, adventure or concern is carried on with motive to make gain or profit and whether or not any profit accrues from such trade, commerce, manufacture, adventure or concern; and(ii) any transaction in connection with, or incidental or ancillary to, such trade, commerce, manufacture adventure or concern............"Now we may turn to Section 3. That section says:"(1) Subject to the provisions of the Act, every dealer whose turnover in the previous year in respect of sales or supplies of goods exceeds-(a) in the case of a dealer who imports goods or manufactures any goods other than cooked food or deals in cereals and pulses in any of their forms. . . . . . . . .... ... Rs. 5,000/-(b) in the case of a dealer being a co-operative society registered under any law for the time being in force relating to co-operative societies, dealing exclusively in goods produced or manufactured by such society without the aid of hired labour ...... ... Rs. 25,000/-(c) in the case of a dealer not falling in Cl. (a) or Cl. (b)... ... ... Rs. 20,000/-shall be liable to pay tax under this Act on his taxable turnover ... ... "(the remaining portion of the section is not relevant for our present purpose).9. Now the question is whether the sale of machinery or iron and steel defectives or the spare parts was a part of the "business" of the assessee who undoubtedly was a dealer under the Act. The authorities under the Act as well as the High Court have come to the conclusion that it was a part of his business because of Section 2 (cc) (ii). The correctness of this conclusion is in issue.10. The corresponding provisions of the Madras General Sales Tax Act 1959 (Act 1 of 1959) as amended by Act 15 of 1964 are similar to the provisions in the Act referred to earlier. Interpreting a provision identical to Section 2 (cc) (ii) of the Act, the Madras High Court in Dy. Commr. of Commercial Taxes, Coimbatore Division, Coimbatore v. Sri Thirumangal Mills Ltd., (1967) 20 STC 287 (Mad) , came to the conclusion that unless a transaction is connected with the trade, that is to say, it has something to do with trade or has the incidence or elements of trade, it will not be within the definition of "business." Therein the assessee, a limited liability company manufacturing cotton yarn, in order to provide amenity to its workmen, had opened a fair price shop so that commodities might be made available to the workmen at fair prices. The question that arose for decision was whether that activity of the assessee could be said to be in connection with or incidental or ancillary to the business of the assessee. The High Court answered that question in the negative. We are mentioning this fact to show that in interpreting the words "any transaction in connection with, of incidental or ancillary to, such trade, commerce, manufacture, adventure or concern", the Madras High Court has accepted the contention of the assessee. Therefore in our view the High Court of Rajasthan was in error in refusing to call upon the Board of Revenue to state a case on the question of law arising for consideration. The only thing the High Court had to see was whether a question of law did arise out of the order of the Board of Revenue. There can be no doubt that a fairly important question of law arises from out of that order. The Board of Revenue was not justified in refusing to refer that question to the High Court. Further the High Court erred in summarily dismissing the application made by the assessee. Without a reference from the Board of Revenue the High Court had no jurisdiction to decide that question of law.11. The questions formulated by the assessee are not only imprecise but they are repetitive as well. The only question of law arising out of the order of the Board of Revenue is whether the sale of the machinery or iron or steel defectives or spare parts can be considered as "business" within the meaning of Section 2 (cc). | 1[ds]We are mentioning this fact to show that in interpreting the words "any transaction in connection with, of incidental or ancillary to, such trade, commerce, manufacture, adventure or concern", the Madras High Court has accepted the contention of the assessee. Therefore in our view the High Court of Rajasthan was in error in refusing to call upon the Board of Revenue to state a case on the question of law arising for consideration. The only thing the High Court had to see was whether a question of law did arise out of the order of the Board of Revenue. There can be no doubt that a fairly important question of law arises from out of that order. The Board of Revenue was not justified in refusing to refer that question to the High Court. Further the High Court erred in summarily dismissing the application made by the assessee. Without a reference from the Board of Revenue the High Court had no jurisdiction to decide that question of law.11. The questions formulated by the assessee are not only imprecise but they are repetitive as well. The only question of law arising out of the order of the Board of Revenue is whether the sale of the machinery or iron or steel defectives or spare parts can be considered as "business" within the meaning of Section 2 (cc). | 1 | 1,721 | 251 | ### 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:
of Revenue refused to submit that question on the ground that question is covered by a decision of the Division Bench. The High Court as mentioned earlier rejected it on the ground that turnover in question comes within the definition of "business" in Cl. (c) of Section 2 of the Act.5. The expression "turnover" is defined in S. 2 (t). It says :Turnover means the aggregate of the amount of sale prices received or receivable by a dealer in respect of the sale or supply of goods or in respect of the sale or supply of goods in the carrying out of any contract."(Proviso to that clause is not relevant for our present purpose).6. "Sale Price" is defined thus in Section (p):" Sale price means the amount payable to a dealer as consideration for the sale of any goods, less any sum allowed as cash discount according to the practice normally prevailing in the trade, but inclusive of any sum charged for anything done by the dealer in respect of the goods at the time of or before the delivery thereof other than the cost of freight or delivery of the cost of installation in case where such cost is separately charged and the expression purchase price shall be construed accordingly."7. The charging section is Section 3. But before going to that section, it is necessary to refer to two other definitions in the Act. Dealer is defined in Section 2 (f) as meaning :"any person who carries on the business of buying, selling supplying or distributing goods, directly or otherwise, whether for cash, or for deferred payment, or for commission, remuneration or other valuable consideration and includes..........."8. The expression business is defined in Section 2 (cc) as follows:""business" includes-(i) any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce, manufacture, adventure or concern is carried on with motive to make gain or profit and whether or not any profit accrues from such trade, commerce, manufacture, adventure or concern; and(ii) any transaction in connection with, or incidental or ancillary to, such trade, commerce, manufacture adventure or concern............"Now we may turn to Section 3. That section says:"(1) Subject to the provisions of the Act, every dealer whose turnover in the previous year in respect of sales or supplies of goods exceeds-(a) in the case of a dealer who imports goods or manufactures any goods other than cooked food or deals in cereals and pulses in any of their forms. . . . . . . . .... ... Rs. 5,000/-(b) in the case of a dealer being a co-operative society registered under any law for the time being in force relating to co-operative societies, dealing exclusively in goods produced or manufactured by such society without the aid of hired labour ...... ... Rs. 25,000/-(c) in the case of a dealer not falling in Cl. (a) or Cl. (b)... ... ... Rs. 20,000/-shall be liable to pay tax under this Act on his taxable turnover ... ... "(the remaining portion of the section is not relevant for our present purpose).9. Now the question is whether the sale of machinery or iron and steel defectives or the spare parts was a part of the "business" of the assessee who undoubtedly was a dealer under the Act. The authorities under the Act as well as the High Court have come to the conclusion that it was a part of his business because of Section 2 (cc) (ii). The correctness of this conclusion is in issue.10. The corresponding provisions of the Madras General Sales Tax Act 1959 (Act 1 of 1959) as amended by Act 15 of 1964 are similar to the provisions in the Act referred to earlier. Interpreting a provision identical to Section 2 (cc) (ii) of the Act, the Madras High Court in Dy. Commr. of Commercial Taxes, Coimbatore Division, Coimbatore v. Sri Thirumangal Mills Ltd., (1967) 20 STC 287 (Mad) , came to the conclusion that unless a transaction is connected with the trade, that is to say, it has something to do with trade or has the incidence or elements of trade, it will not be within the definition of "business." Therein the assessee, a limited liability company manufacturing cotton yarn, in order to provide amenity to its workmen, had opened a fair price shop so that commodities might be made available to the workmen at fair prices. The question that arose for decision was whether that activity of the assessee could be said to be in connection with or incidental or ancillary to the business of the assessee. The High Court answered that question in the negative. We are mentioning this fact to show that in interpreting the words "any transaction in connection with, of incidental or ancillary to, such trade, commerce, manufacture, adventure or concern", the Madras High Court has accepted the contention of the assessee. Therefore in our view the High Court of Rajasthan was in error in refusing to call upon the Board of Revenue to state a case on the question of law arising for consideration. The only thing the High Court had to see was whether a question of law did arise out of the order of the Board of Revenue. There can be no doubt that a fairly important question of law arises from out of that order. The Board of Revenue was not justified in refusing to refer that question to the High Court. Further the High Court erred in summarily dismissing the application made by the assessee. Without a reference from the Board of Revenue the High Court had no jurisdiction to decide that question of law.11. The questions formulated by the assessee are not only imprecise but they are repetitive as well. The only question of law arising out of the order of the Board of Revenue is whether the sale of the machinery or iron or steel defectives or spare parts can be considered as "business" within the meaning of Section 2 (cc).
### Response:
1
### Explanation:
We are mentioning this fact to show that in interpreting the words "any transaction in connection with, of incidental or ancillary to, such trade, commerce, manufacture, adventure or concern", the Madras High Court has accepted the contention of the assessee. Therefore in our view the High Court of Rajasthan was in error in refusing to call upon the Board of Revenue to state a case on the question of law arising for consideration. The only thing the High Court had to see was whether a question of law did arise out of the order of the Board of Revenue. There can be no doubt that a fairly important question of law arises from out of that order. The Board of Revenue was not justified in refusing to refer that question to the High Court. Further the High Court erred in summarily dismissing the application made by the assessee. Without a reference from the Board of Revenue the High Court had no jurisdiction to decide that question of law.11. The questions formulated by the assessee are not only imprecise but they are repetitive as well. The only question of law arising out of the order of the Board of Revenue is whether the sale of the machinery or iron or steel defectives or spare parts can be considered as "business" within the meaning of Section 2 (cc).
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VIVEK MUDGIL Vs. STATE OF U.P | The learned Single Judge, by recording a finding that the appointment could not be protected under Article 226 of the Constitution of India, rejected the petitions. 6. Said order was challenged by way of Special Appeal being S.A.Nos.189 and 190 of 2015 mainly on the ground that possession of 10 years of experience cannot be regarded as an essential qualification in view of the power conferred on the Board under proviso to Section 16-E(3) of the 1921 Act. The Division Bench of the High Court, rejecting the plea of the appellant herein, dismissed the Special Appeals by recording a finding that after enforcement of the U.P. C.A.@ SLP(C)Nos.14384-85/15 etc. Secondary Education Services Selection Board Act, 1982 the requirement of 10 years? teaching experience is a necessary qualification and is mandatory. 7. During the pendency of the proceedings, the Board has issued exemption proceedings in favour of the appellant granting exemption of 9 months of teaching experience. As pleaded in the counter affidavit it is stated that such an exemption order was passed in view of the order dated 08.07.2015 passed by this Court in Special Leave Petitions. When order of exemption is passed, such order was again challenged by way of writ petition before the High Court which is ordered to be transferred to this Court and on such transfer the same is numbered as Transferred Case (C)No.5 of 2018 which is also taken up for hearing along with these civil appeals. For the sake of convenience, the facts of the civil appeals are being referred to. 8. We have heard learned counsel on both sides appearing in civil appeals as well as in transferred case and perused the material on record. 9. It is not in dispute that as on the last date of submission of applications pursuant to the advertisement C.A.@ SLP(C)Nos.14384-85/15 etc. issued by the Board inviting applications for appointment to the post of Principal, the appellant herein was having only 9 years 3 months of teaching experience. Even as per the notification, having regard to academic qualification possessed by the appellant, there was a requirement of 10 years of teaching experience. It is not in dispute that the appellant had only 9 years 3 months of teaching experience on the last date of making applications. Mainly the writ petitions were filed in the High Court alleging that his period of foreign study leave is to be computed for the purpose of computing the teaching experience of 10 years. It was the case before the High Court that as he was granted leave as per the leave rules and he was also granted increments for the said period, as such, such period has to be computed. It is to be noticed at this stage that he was granted scholarship for higher studies in Czechoslovakia. It is not in dispute that from 15.04.1992 to 08.03.1996 he was studying in Czechoslovakia and same cannot be considered as a teaching experience. Further, having regard to the requirements in the Regulations teaching experience of 10 C.A.@ SLP(C)Nos.14384-85/15 etc. years is rightly considered as a necessary qualification by the Division Bench of the High Court. 10. Before this Court, it is pleaded that in view of the exemption granted he is entitled to continue as Principal of the college. We have also perused the order of exemption which is granted during the pendency of the proceedings. It is stated in the counter affidavit, such an exemption is granted in view of the order passed by this Court on 08.07.2015. The order dated 08.07.2015 passed by this Court reads as under :?The contention of the petitioner is that the petitioner was working as Lecturer in another college when he was selected as principal in Respondent No.5-College in the year 2002 and where he worked till 2008. He submits that in order to join the services with respondent No.5 as Principal to which post he was selected, he resigned as Lecturer where he was serving earlier and after his termination as Principal, the petitioner is left high and dry as he is not working anywhere now. Issue notice to the respondents on the limited aspect as to how this situation can be salvaged, if at all.?11. It is clear from the aforesaid order that there was no direction at all to consider for grant of exemption. By all fairness, when the matter is seized before this Court C.A.@ SLP(C)Nos.14384-85/15 etc. respondent-authorities should not have passed any order granting exemption in favour of the appellant. In any event, from the perusal of the order, it is clear that no retrospective effect is given to such exemption proceedings. Even by grant of such exemption it will not cure the disqualification of the appellant as on last date of submission of the applications and on the date of preparing the panel. In the absence of any such express provision granting retrospective effect, even the exemption granted will not come to the rescue of the appellant to support his case. It is also pleaded that after the enforcement of the provisions of the U.P. Secondary Education Services Selection Board Act 1982, the power of exemption is also not available but the same is not required to be considered at this stage as we are of the view that exemption granted also will not come to the rescue of the appellant to make his selection and appointment valid. Having regard to the notified required qualifications under the Regulations, we are in agreement with the view taken by the Division Bench of the High Court that such qualification of 10 years of teaching experience is necessary qualification for C.A.@ SLP(C)Nos.14384-85/15 etc. appointment to the post of Principal. Although it is pleaded by learned counsel appearing for the respondents that the power of exemption is not available after enactment of the provisions of 1982 Act but in view of the reasoning assigned by us as referred above, it is not necessary to record any finding on such issue at this stage. | 0[ds]11. It is clear from the aforesaid order that there was no direction at all to consider for grant of exemption. By all fairness, when the matter is seized before this Court C.A.@es should not have passed any order granting exemption in favour of the appellant. In any event, from the perusal of the order, it is clear that no retrospective effect is given to such exemption proceedings. Even by grant of such exemption it will not cure the disqualification of the appellant as on last date of submission of the applications and on the date of preparing the panel. In the absence of any such express provision granting retrospective effect, even the exemption granted will not come to the rescue of the appellant to support his case. It is also pleaded that after the enforcement of the provisions of the U.P. Secondary Education Services Selection Board Act 1982, the power of exemption is also not available but the same is not required to be considered at this stage as we are of the view that exemption granted also will not come to the rescue of the appellant to make his selection and appointment valid. Having regard to the notified required qualifications under the Regulations, we are in agreement with the view taken by the Division Bench of the High Court that such qualification of 10 years of teaching experience is necessary qualification for C.A.@etc. appointment to the post of Principal. Although it is pleaded by learned counsel appearing for the respondents that the power of exemption is not available after enactment of the provisions of 1982 Act but in view of the reasoning assigned by us as referred above, it is not necessary to record any finding on such issue at this stage. | 0 | 1,747 | 321 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
The learned Single Judge, by recording a finding that the appointment could not be protected under Article 226 of the Constitution of India, rejected the petitions. 6. Said order was challenged by way of Special Appeal being S.A.Nos.189 and 190 of 2015 mainly on the ground that possession of 10 years of experience cannot be regarded as an essential qualification in view of the power conferred on the Board under proviso to Section 16-E(3) of the 1921 Act. The Division Bench of the High Court, rejecting the plea of the appellant herein, dismissed the Special Appeals by recording a finding that after enforcement of the U.P. C.A.@ SLP(C)Nos.14384-85/15 etc. Secondary Education Services Selection Board Act, 1982 the requirement of 10 years? teaching experience is a necessary qualification and is mandatory. 7. During the pendency of the proceedings, the Board has issued exemption proceedings in favour of the appellant granting exemption of 9 months of teaching experience. As pleaded in the counter affidavit it is stated that such an exemption order was passed in view of the order dated 08.07.2015 passed by this Court in Special Leave Petitions. When order of exemption is passed, such order was again challenged by way of writ petition before the High Court which is ordered to be transferred to this Court and on such transfer the same is numbered as Transferred Case (C)No.5 of 2018 which is also taken up for hearing along with these civil appeals. For the sake of convenience, the facts of the civil appeals are being referred to. 8. We have heard learned counsel on both sides appearing in civil appeals as well as in transferred case and perused the material on record. 9. It is not in dispute that as on the last date of submission of applications pursuant to the advertisement C.A.@ SLP(C)Nos.14384-85/15 etc. issued by the Board inviting applications for appointment to the post of Principal, the appellant herein was having only 9 years 3 months of teaching experience. Even as per the notification, having regard to academic qualification possessed by the appellant, there was a requirement of 10 years of teaching experience. It is not in dispute that the appellant had only 9 years 3 months of teaching experience on the last date of making applications. Mainly the writ petitions were filed in the High Court alleging that his period of foreign study leave is to be computed for the purpose of computing the teaching experience of 10 years. It was the case before the High Court that as he was granted leave as per the leave rules and he was also granted increments for the said period, as such, such period has to be computed. It is to be noticed at this stage that he was granted scholarship for higher studies in Czechoslovakia. It is not in dispute that from 15.04.1992 to 08.03.1996 he was studying in Czechoslovakia and same cannot be considered as a teaching experience. Further, having regard to the requirements in the Regulations teaching experience of 10 C.A.@ SLP(C)Nos.14384-85/15 etc. years is rightly considered as a necessary qualification by the Division Bench of the High Court. 10. Before this Court, it is pleaded that in view of the exemption granted he is entitled to continue as Principal of the college. We have also perused the order of exemption which is granted during the pendency of the proceedings. It is stated in the counter affidavit, such an exemption is granted in view of the order passed by this Court on 08.07.2015. The order dated 08.07.2015 passed by this Court reads as under :?The contention of the petitioner is that the petitioner was working as Lecturer in another college when he was selected as principal in Respondent No.5-College in the year 2002 and where he worked till 2008. He submits that in order to join the services with respondent No.5 as Principal to which post he was selected, he resigned as Lecturer where he was serving earlier and after his termination as Principal, the petitioner is left high and dry as he is not working anywhere now. Issue notice to the respondents on the limited aspect as to how this situation can be salvaged, if at all.?11. It is clear from the aforesaid order that there was no direction at all to consider for grant of exemption. By all fairness, when the matter is seized before this Court C.A.@ SLP(C)Nos.14384-85/15 etc. respondent-authorities should not have passed any order granting exemption in favour of the appellant. In any event, from the perusal of the order, it is clear that no retrospective effect is given to such exemption proceedings. Even by grant of such exemption it will not cure the disqualification of the appellant as on last date of submission of the applications and on the date of preparing the panel. In the absence of any such express provision granting retrospective effect, even the exemption granted will not come to the rescue of the appellant to support his case. It is also pleaded that after the enforcement of the provisions of the U.P. Secondary Education Services Selection Board Act 1982, the power of exemption is also not available but the same is not required to be considered at this stage as we are of the view that exemption granted also will not come to the rescue of the appellant to make his selection and appointment valid. Having regard to the notified required qualifications under the Regulations, we are in agreement with the view taken by the Division Bench of the High Court that such qualification of 10 years of teaching experience is necessary qualification for C.A.@ SLP(C)Nos.14384-85/15 etc. appointment to the post of Principal. Although it is pleaded by learned counsel appearing for the respondents that the power of exemption is not available after enactment of the provisions of 1982 Act but in view of the reasoning assigned by us as referred above, it is not necessary to record any finding on such issue at this stage.
### Response:
0
### Explanation:
11. It is clear from the aforesaid order that there was no direction at all to consider for grant of exemption. By all fairness, when the matter is seized before this Court C.A.@es should not have passed any order granting exemption in favour of the appellant. In any event, from the perusal of the order, it is clear that no retrospective effect is given to such exemption proceedings. Even by grant of such exemption it will not cure the disqualification of the appellant as on last date of submission of the applications and on the date of preparing the panel. In the absence of any such express provision granting retrospective effect, even the exemption granted will not come to the rescue of the appellant to support his case. It is also pleaded that after the enforcement of the provisions of the U.P. Secondary Education Services Selection Board Act 1982, the power of exemption is also not available but the same is not required to be considered at this stage as we are of the view that exemption granted also will not come to the rescue of the appellant to make his selection and appointment valid. Having regard to the notified required qualifications under the Regulations, we are in agreement with the view taken by the Division Bench of the High Court that such qualification of 10 years of teaching experience is necessary qualification for C.A.@etc. appointment to the post of Principal. Although it is pleaded by learned counsel appearing for the respondents that the power of exemption is not available after enactment of the provisions of 1982 Act but in view of the reasoning assigned by us as referred above, it is not necessary to record any finding on such issue at this stage.
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Beti Padia Vs. State of Orissa | BAHARUL ISLAM, J.1. This appeal by special leave is directed against the judgment of the Orissa High Court convicting the appellant under Section 302 and sentencing her to undergo imprisonment for life. The co-accused Kunja Ulla was acquitted. The acquittal of Kunja Ulla was maintained by the High Court2. The material facts are that on 28-9-1970, at about 7.00 p.m., the appellant and the co-accused Kunja Ulla came to the residence of Beti Adama (deceased) and committed assault on her with a Pirah. Beti Adama died instantaneously. Her brother P.W. 4 lodged the First Information Report on 30-9-1970, at about 6.00 p.m. at Motu Police Station at a distance of about 45 kilometers from the place of occurrence. Police registered a case and after investigation submitted charge-sheet against the appellant and Kunja Ulla3. In support of the case, the prosecution examined nine witnesses including the Medical Officer who held post-mortem examination, P.W. 8, a constable and P.W. 9 the Investigating Officer. Amongst them P.Ws. 1 & 2 were said to be the eye witnesses. In addition to their evidence, the prosecution relied on the extra-judicial confession alleged to have been made by the appellant before P.Ws. 1, 4, 6 and 7 and the circumstantial evidence afforded by the seizure of blood stained material objects I to IV. P.W. 3 who held the post-mortem examination on the dead body of Beti Adama found the following injuries :-(1) One punctured wound almost circular in nature measuring 2-1/2" x 1-1/2" on the right side of the face touching the right angle of the eye with everted irregular and lacerated edges exposing the fractured right zygomatic bone(II) A round green swelling (bruise) over the back of the head almost in the middle of occipital region, measuring 2" x 1/2"(III) Five abrasions dark brown in colour the right side of the abdomen"4. He further deposed"On dissection of injury No. (i) bleeding of the underlying tissues and fracture of the right maxillary bone and dislocation of the right upper two premolar and canine teeth were noticed. The doctor also found that there was crushing off of the parotid gland with its embedded right external carotid maxillary and temporal arteries were torn and mouth was seen jammed up with blood clots and broken pieces of bones. On further dissection, a transverse crack of 1/2" length was noticed over the squamous part of the right temporal bone. Internal examination of injury No. (ii) revealed severed affusion of blood into the underlying tissues. On opening of the vault the bran substance along with its membrances were found liquified. In the doctors opinion, the injuries were antemortem in nature and the death was due to shock and profuse haemorrhage resulting from external injury No. (i) with the corresponding internal injuries"5. In his opinion injury No. 1 was fatal and death was instantaneous. He also opined that injury No. 1 might have been caused by a wooden seat like material object III and injuries Nos. 2 & 3 might have been caused by hard wooden substance like material objects I and II6. The learned Sessions Judge acquitted the appellant on a benefit of doubt and acquitted Kunja Ulla as, according to him, there was no evidence against him. The State of Orissa preferred an appeal before the High Court which set aside the judgment and order of acquittal as against the appellant, and convicted and sentenced her as aforesaid7. The High Court has carefully considered the direct evidence on P.W. 1 and P.W. 2. In addition it has also considered the extra-judicial confession made by the appellant before P.Ws. 1, 4, 6 and 7 and the circumstantial evidence afforded by the material objects seized by the Investigating Officer. The High Court has not accepted the evidence of P.W. 2 as it found that P.W. 2 was called to the place of occurrence by her mother (P.W. 1) after the assault. It has accepted, in our opinion for valid reasons, the evidence of P.W. 1. The material object III was found lying near the dead body wherefrom it was seized by the police. On chemical examination blood was detected on it although the amount of blood was not considered sufficient for sereological test. The material object IV which was a blood stained napkin was seized from the house of respondent No. 1. On chemical examination and serological test human blood was detected on it. The appellant did not furnish any explanation as to how his napkin was found with human blood. He did not deny the seizure of material object IV from his house. Material object IV has also been proved by P.Ws. 5 and 9 to have been seized from the house of the appellant. It was stained with blood at the time of seizure. There was no explanation from the appellant about incriminating circumstances appearing against him | 1[ds]7. The High Court has carefully considered the direct evidence on P.W. 1 and P.W. 2. In addition it has also considered theconfession made by the appellant before P.Ws. 1, 4, 6 and 7 and the circumstantial evidence afforded by the material objects seized by the Investigating Officer. The High Court has not accepted the evidence of P.W. 2 as it found that P.W. 2 was called to the place of occurrence by her mother (P.W. 1) after the assault. It has accepted, in our opinion for valid reasons, the evidence of P.W. 1. The material object III was found lying near the dead body wherefrom it was seized by the police. On chemical examination blood was detected on it although the amount of blood was not considered sufficient for sereological test. The material object IV which was a blood stained napkin was seized from the house of respondent No. 1. On chemical examination and serological test human blood was detected on it. The appellant did not furnish any explanation as to how his napkin was found with human blood. He did not deny the seizure of material object IV from his house. Material object IV has also been proved by P.Ws. 5 and 9 to have been seized from the house of the appellant. It was stained with blood at the time of seizure. There was no explanation from the appellant about incriminating circumstances appearing against him | 1 | 917 | 270 | ### 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:
BAHARUL ISLAM, J.1. This appeal by special leave is directed against the judgment of the Orissa High Court convicting the appellant under Section 302 and sentencing her to undergo imprisonment for life. The co-accused Kunja Ulla was acquitted. The acquittal of Kunja Ulla was maintained by the High Court2. The material facts are that on 28-9-1970, at about 7.00 p.m., the appellant and the co-accused Kunja Ulla came to the residence of Beti Adama (deceased) and committed assault on her with a Pirah. Beti Adama died instantaneously. Her brother P.W. 4 lodged the First Information Report on 30-9-1970, at about 6.00 p.m. at Motu Police Station at a distance of about 45 kilometers from the place of occurrence. Police registered a case and after investigation submitted charge-sheet against the appellant and Kunja Ulla3. In support of the case, the prosecution examined nine witnesses including the Medical Officer who held post-mortem examination, P.W. 8, a constable and P.W. 9 the Investigating Officer. Amongst them P.Ws. 1 & 2 were said to be the eye witnesses. In addition to their evidence, the prosecution relied on the extra-judicial confession alleged to have been made by the appellant before P.Ws. 1, 4, 6 and 7 and the circumstantial evidence afforded by the seizure of blood stained material objects I to IV. P.W. 3 who held the post-mortem examination on the dead body of Beti Adama found the following injuries :-(1) One punctured wound almost circular in nature measuring 2-1/2" x 1-1/2" on the right side of the face touching the right angle of the eye with everted irregular and lacerated edges exposing the fractured right zygomatic bone(II) A round green swelling (bruise) over the back of the head almost in the middle of occipital region, measuring 2" x 1/2"(III) Five abrasions dark brown in colour the right side of the abdomen"4. He further deposed"On dissection of injury No. (i) bleeding of the underlying tissues and fracture of the right maxillary bone and dislocation of the right upper two premolar and canine teeth were noticed. The doctor also found that there was crushing off of the parotid gland with its embedded right external carotid maxillary and temporal arteries were torn and mouth was seen jammed up with blood clots and broken pieces of bones. On further dissection, a transverse crack of 1/2" length was noticed over the squamous part of the right temporal bone. Internal examination of injury No. (ii) revealed severed affusion of blood into the underlying tissues. On opening of the vault the bran substance along with its membrances were found liquified. In the doctors opinion, the injuries were antemortem in nature and the death was due to shock and profuse haemorrhage resulting from external injury No. (i) with the corresponding internal injuries"5. In his opinion injury No. 1 was fatal and death was instantaneous. He also opined that injury No. 1 might have been caused by a wooden seat like material object III and injuries Nos. 2 & 3 might have been caused by hard wooden substance like material objects I and II6. The learned Sessions Judge acquitted the appellant on a benefit of doubt and acquitted Kunja Ulla as, according to him, there was no evidence against him. The State of Orissa preferred an appeal before the High Court which set aside the judgment and order of acquittal as against the appellant, and convicted and sentenced her as aforesaid7. The High Court has carefully considered the direct evidence on P.W. 1 and P.W. 2. In addition it has also considered the extra-judicial confession made by the appellant before P.Ws. 1, 4, 6 and 7 and the circumstantial evidence afforded by the material objects seized by the Investigating Officer. The High Court has not accepted the evidence of P.W. 2 as it found that P.W. 2 was called to the place of occurrence by her mother (P.W. 1) after the assault. It has accepted, in our opinion for valid reasons, the evidence of P.W. 1. The material object III was found lying near the dead body wherefrom it was seized by the police. On chemical examination blood was detected on it although the amount of blood was not considered sufficient for sereological test. The material object IV which was a blood stained napkin was seized from the house of respondent No. 1. On chemical examination and serological test human blood was detected on it. The appellant did not furnish any explanation as to how his napkin was found with human blood. He did not deny the seizure of material object IV from his house. Material object IV has also been proved by P.Ws. 5 and 9 to have been seized from the house of the appellant. It was stained with blood at the time of seizure. There was no explanation from the appellant about incriminating circumstances appearing against him
### Response:
1
### Explanation:
7. The High Court has carefully considered the direct evidence on P.W. 1 and P.W. 2. In addition it has also considered theconfession made by the appellant before P.Ws. 1, 4, 6 and 7 and the circumstantial evidence afforded by the material objects seized by the Investigating Officer. The High Court has not accepted the evidence of P.W. 2 as it found that P.W. 2 was called to the place of occurrence by her mother (P.W. 1) after the assault. It has accepted, in our opinion for valid reasons, the evidence of P.W. 1. The material object III was found lying near the dead body wherefrom it was seized by the police. On chemical examination blood was detected on it although the amount of blood was not considered sufficient for sereological test. The material object IV which was a blood stained napkin was seized from the house of respondent No. 1. On chemical examination and serological test human blood was detected on it. The appellant did not furnish any explanation as to how his napkin was found with human blood. He did not deny the seizure of material object IV from his house. Material object IV has also been proved by P.Ws. 5 and 9 to have been seized from the house of the appellant. It was stained with blood at the time of seizure. There was no explanation from the appellant about incriminating circumstances appearing against him
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Sangrur Sales Corporation Vs. United India Insurance Company Limited & Anr | annum from the date of the institution of the complaint. The order of the District Forum was upheld by the State Consumer Disputes Redressal Commission (SCDRC) , Punjab on 5 May 2016. However, in a revision filed by the insurer, the NCDRC reversed the order awarding the claim. 5. Notice was issued in the present proceedings on 22 April 2019. The office report indicates that the insurer has been served. There is no appearance on its behalf. 6. The dispute between the parties turns on a construction of clause VIII (e) of the policy of insurance. Before adverting to the exclusions, it is necessary to extract the relevant part of the insurance policy, which reads as follows: In consideration of the insured named in the Schedule hereto having paid to the United India Insurance Company Limited (hereinafter called the Company) the full premium mentioned in the said schedule, the company agrees, (subject to the conditions and exclusions contained herein or endorsed or otherwise expressed hereon) that if after payment of the premium the Property insured described in the said Schedule or any part of the such property to be destroyed or damaged by any of the perils specified hereunder during the period of insurance named in the said schedule or of any subsequent period in respect of which the Insured shall have paid and the Company shall have accepted the premium required for the renewal of the policy, the Company shall pay to the Insured the value of the Property at the time of the happening of its destruction or the amount of such damage or at its option reinstate or replace such property or any part thereof. 7. Clause VIII is in the following terms: VIII. Subsidence and Landslide including Rock slide: Loss, destruction or damage directly caused by subsidence of part of the site on which the property stands or land slide/rock slide excluding: a) the normal cracking, settlement or bedding down of new structures b) the settlement or movement of made up ground c) coastal or river erosion d) defective design or workmanship or use of defective materials e) demolition, construction, structural alterations or repair of any property or groundworks or excavations. 8. Clause VIII brings within the purview of the insured perils a loss, destruction or damage directly caused by subsidence of a part of the site on which the property stands or a land slide/rock slide, but excludes, what is stipulated in sub-clauses (a) to (e) thereafter. The exclusion in subclause (a) refers to the normal cracking, settlement or bedding down of new structures. The exclusion in clause (d) refers to defective design or workmanship or use of defective materials. The crucial exclusion is the one in sub-clause (e) which has weighed with the NCDRC. Clause (e) relates to the demolition, construction or structural alterations or repair of any property or groundworks or excavations. 9. In the present case, the appellant was not engaged in any work of demolition, construction or structural alterations nor was it engaged in any repair of its property. The excavation which was the cause of the loss, was being carried on in a neighbouring plot and not by the appellant in his own property. In the absence of a specific qualification indicating that the exclusion will apply to an excavation being carried on by a third party, the reasonable construction of sub-clause (e) of Clause VIII is that it should apply only to a situation where the excavation is being carried on by the insured himself in his own property. Significantly, the words of any property qualify the words preceding them namely, demolition, construction, structural alterations or repair and not the words that follow. 10. It is well-settled that in the event that the two constructions are possible or in the event of an ambiguity, that construction which is beneficial to the insured should be accepted consistent with the purpose for which the policy was taken, namely to cover the risk on the happening of a certain event. [See in this context, the decision of this Court in United India Insurance Co Ltd v Pushpalaya Printers (2004) 3 SCC 694 . 11. The NCDRC, in reversing the concurrent views of the District Forum and the SCDRC, held thus: On bare reading of the above, it is clear that as per the above noted condition, the loss caused to the insured property due to demolition, construction, structural alterations or repair of any property or ground works or excavations is excluded from the risk covered. On perusal of para 3(b) of the copy of complaint placed on record, it is evident that as per the stand taken by the complainant on 29.03.2012 the insured showroom had fallen accidentally as a result of subsidence and land sliding due to digging work being carried out by the neighbour in adjacent plot. It is also alleged in the said paragraph that a daily diary report no.54 dated 30.03.2012 regarding the incident was duly lodged with the P.S. Sangrur. From the aforesaid admission on the part of the complainant, it is evident that loss was caused to the insured because of collapse of the insured building as a result of excavation work being carried out in the adjacent plot resulting in subsidence and land sliding. Thus, in my view, in view of the above noted specific exclusion clause, the petitioner/ insurance company was justified in repudiating the insurance claim. 12. The error of the NCDRC lies in reading the exclusion in regard to excavations as being applicable in a situation such as the present where the cause which resulted in the damage was a work of a third party which was carrying on an excavation in independent premises. It is not in dispute that no part of the excavation was attributable to any act or omission on the part of the appellant. Hence, to read the exclusion, as being attracted in the present case, would not be to a reasonable construction of the policy of insurance. | 1[ds]8. Clause VIII brings within the purview of the insured perils a loss, destruction or damage directly caused by subsidence of a part of the site on which the property stands or a land slide/rock slide, but excludes, what is stipulated in sub-clauses (a) to (e) thereafter. The exclusion in subclause (a) refers to the normal cracking, settlement or bedding down of new structures. The exclusion in clause (d) refers to defective design or workmanship or use of defective materials. The crucial exclusion is the one in sub-clause (e) which has weighed with the NCDRC. Clause (e) relates to the demolition, construction or structural alterations or repair of any property or groundworks or excavations9. In the present case, the appellant was not engaged in any work of demolition, construction or structural alterations nor was it engaged in any repair of its property. The excavation which was the cause of the loss, was being carried on in a neighbouring plot and not by the appellant in his own property. In the absence of a specific qualification indicating that the exclusion will apply to an excavation being carried on by a third party, the reasonable construction of sub-clause (e) of Clause VIII is that it should apply only to a situation where the excavation is being carried on by the insured himself in his own property. Significantly, the words of any property qualify the words preceding them namely, demolition, construction, structural alterations or repair and not the words that follow10. It is well-settled that in the event that the two constructions are possible or in the event of an ambiguity, that construction which is beneficial to the insured should be accepted consistent with the purpose for which the policy was taken, namely to cover the risk on the happening of a certain event. [See in this context, the decision of this Court in United India Insurance Co Ltd v Pushpalaya Printers (2004) 3 SCC 694 12. The error of the NCDRC lies in reading the exclusion in regard to excavations as being applicable in a situation such as the present where the cause which resulted in the damage was a work of a third party which was carrying on an excavation in independent premises. It is not in dispute that no part of the excavation was attributable to any act or omission on the part of the appellant. Hence, to read the exclusion, as being attracted in the present case, would not be to a reasonable construction of the policy of insurance. | 1 | 1,334 | 475 | ### 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:
annum from the date of the institution of the complaint. The order of the District Forum was upheld by the State Consumer Disputes Redressal Commission (SCDRC) , Punjab on 5 May 2016. However, in a revision filed by the insurer, the NCDRC reversed the order awarding the claim. 5. Notice was issued in the present proceedings on 22 April 2019. The office report indicates that the insurer has been served. There is no appearance on its behalf. 6. The dispute between the parties turns on a construction of clause VIII (e) of the policy of insurance. Before adverting to the exclusions, it is necessary to extract the relevant part of the insurance policy, which reads as follows: In consideration of the insured named in the Schedule hereto having paid to the United India Insurance Company Limited (hereinafter called the Company) the full premium mentioned in the said schedule, the company agrees, (subject to the conditions and exclusions contained herein or endorsed or otherwise expressed hereon) that if after payment of the premium the Property insured described in the said Schedule or any part of the such property to be destroyed or damaged by any of the perils specified hereunder during the period of insurance named in the said schedule or of any subsequent period in respect of which the Insured shall have paid and the Company shall have accepted the premium required for the renewal of the policy, the Company shall pay to the Insured the value of the Property at the time of the happening of its destruction or the amount of such damage or at its option reinstate or replace such property or any part thereof. 7. Clause VIII is in the following terms: VIII. Subsidence and Landslide including Rock slide: Loss, destruction or damage directly caused by subsidence of part of the site on which the property stands or land slide/rock slide excluding: a) the normal cracking, settlement or bedding down of new structures b) the settlement or movement of made up ground c) coastal or river erosion d) defective design or workmanship or use of defective materials e) demolition, construction, structural alterations or repair of any property or groundworks or excavations. 8. Clause VIII brings within the purview of the insured perils a loss, destruction or damage directly caused by subsidence of a part of the site on which the property stands or a land slide/rock slide, but excludes, what is stipulated in sub-clauses (a) to (e) thereafter. The exclusion in subclause (a) refers to the normal cracking, settlement or bedding down of new structures. The exclusion in clause (d) refers to defective design or workmanship or use of defective materials. The crucial exclusion is the one in sub-clause (e) which has weighed with the NCDRC. Clause (e) relates to the demolition, construction or structural alterations or repair of any property or groundworks or excavations. 9. In the present case, the appellant was not engaged in any work of demolition, construction or structural alterations nor was it engaged in any repair of its property. The excavation which was the cause of the loss, was being carried on in a neighbouring plot and not by the appellant in his own property. In the absence of a specific qualification indicating that the exclusion will apply to an excavation being carried on by a third party, the reasonable construction of sub-clause (e) of Clause VIII is that it should apply only to a situation where the excavation is being carried on by the insured himself in his own property. Significantly, the words of any property qualify the words preceding them namely, demolition, construction, structural alterations or repair and not the words that follow. 10. It is well-settled that in the event that the two constructions are possible or in the event of an ambiguity, that construction which is beneficial to the insured should be accepted consistent with the purpose for which the policy was taken, namely to cover the risk on the happening of a certain event. [See in this context, the decision of this Court in United India Insurance Co Ltd v Pushpalaya Printers (2004) 3 SCC 694 . 11. The NCDRC, in reversing the concurrent views of the District Forum and the SCDRC, held thus: On bare reading of the above, it is clear that as per the above noted condition, the loss caused to the insured property due to demolition, construction, structural alterations or repair of any property or ground works or excavations is excluded from the risk covered. On perusal of para 3(b) of the copy of complaint placed on record, it is evident that as per the stand taken by the complainant on 29.03.2012 the insured showroom had fallen accidentally as a result of subsidence and land sliding due to digging work being carried out by the neighbour in adjacent plot. It is also alleged in the said paragraph that a daily diary report no.54 dated 30.03.2012 regarding the incident was duly lodged with the P.S. Sangrur. From the aforesaid admission on the part of the complainant, it is evident that loss was caused to the insured because of collapse of the insured building as a result of excavation work being carried out in the adjacent plot resulting in subsidence and land sliding. Thus, in my view, in view of the above noted specific exclusion clause, the petitioner/ insurance company was justified in repudiating the insurance claim. 12. The error of the NCDRC lies in reading the exclusion in regard to excavations as being applicable in a situation such as the present where the cause which resulted in the damage was a work of a third party which was carrying on an excavation in independent premises. It is not in dispute that no part of the excavation was attributable to any act or omission on the part of the appellant. Hence, to read the exclusion, as being attracted in the present case, would not be to a reasonable construction of the policy of insurance.
### Response:
1
### Explanation:
8. Clause VIII brings within the purview of the insured perils a loss, destruction or damage directly caused by subsidence of a part of the site on which the property stands or a land slide/rock slide, but excludes, what is stipulated in sub-clauses (a) to (e) thereafter. The exclusion in subclause (a) refers to the normal cracking, settlement or bedding down of new structures. The exclusion in clause (d) refers to defective design or workmanship or use of defective materials. The crucial exclusion is the one in sub-clause (e) which has weighed with the NCDRC. Clause (e) relates to the demolition, construction or structural alterations or repair of any property or groundworks or excavations9. In the present case, the appellant was not engaged in any work of demolition, construction or structural alterations nor was it engaged in any repair of its property. The excavation which was the cause of the loss, was being carried on in a neighbouring plot and not by the appellant in his own property. In the absence of a specific qualification indicating that the exclusion will apply to an excavation being carried on by a third party, the reasonable construction of sub-clause (e) of Clause VIII is that it should apply only to a situation where the excavation is being carried on by the insured himself in his own property. Significantly, the words of any property qualify the words preceding them namely, demolition, construction, structural alterations or repair and not the words that follow10. It is well-settled that in the event that the two constructions are possible or in the event of an ambiguity, that construction which is beneficial to the insured should be accepted consistent with the purpose for which the policy was taken, namely to cover the risk on the happening of a certain event. [See in this context, the decision of this Court in United India Insurance Co Ltd v Pushpalaya Printers (2004) 3 SCC 694 12. The error of the NCDRC lies in reading the exclusion in regard to excavations as being applicable in a situation such as the present where the cause which resulted in the damage was a work of a third party which was carrying on an excavation in independent premises. It is not in dispute that no part of the excavation was attributable to any act or omission on the part of the appellant. Hence, to read the exclusion, as being attracted in the present case, would not be to a reasonable construction of the policy of insurance.
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Brij Kishore Prasad Singh & Others Vs. Jaleshwar Prasad Singh & Others | plaint property had vested in the Government and, therefore, the plaintiffs were incompetent to maintain the suit.7. As regards the first question, the High Court was of the view that, though none of the parties to the compromise had produced the necessary stamp paper as directed by the Court and no formal decree was drawn up, the plaintiffs could not have instituted a fresh suit for recovery of possession of the plaint property as their only remedy was to execute the decree in Suit No. 80/34 of 1944-46. In other words, the High Court held that the plaintiffs should have produced the necessary stamp paper and got the final decree drawn up and executed it, instead of filing a suit for the relief which they could have obtained by executing the decree and so, the suit was barred by Section 47 of the Civil Procedure Code.8. The Trial Court had found that Kishundeo Singh obtained possession of the plaint property without the assistance of the Court in pursuance of the compromise but that he allowed the defendants to occupy the same. To put it in other words, the finding of the Trial Court was that the defendant of the Trial Court was that the defendants were in permissive occupation. The Trial Court also found that the definite case of the defendants was that they were put in possession of the property under the hukumnama and, therefore, their possession was clearly that of lessees under an agricultural lease.9. The lower appellate Court held that there was no allegation in the plaint that Kishundeo Singh obtained khas possession under the compromise nor was there any evidence to show that he obtained khas possession but that defendants 1 and 2 continued in possession as before the compromise.10. Before the compromise, Kishundeo Singh and the defendants were in possession as tenants-in-common.The actual possession of the defendants, of the plaint property, was also the constructive possession of Kishundeo Singh. So, when the lower appellate Court said that the defendants continued in possession as before, it can only mean that after the compromise the defendants were in possession acknowledging the title of Kishendeo Singh. That apart, defendants 1 and 2 had no case that they intended to possess the property as their own. It is clear from the compromise petition that the defendants were permitted to occupy the plaint property until the structure which was constructed in the property was removed by them. They, no doubt, remained in physical possession, but that was not with any intention to possess the property for themselves but because they were permitted to remain in possession until the structure constructed by them was removed. The only right which they claimed in the written statement was that they were tenants under Kishundeo Singh by virtue of the hukumnama executed by him in their favour. At no time they asserted or claimed any right to remain in possession otherwise than as tenant. As already stated, their case that Kishundeo Singh put them in possession under the hukumnama was found against by the Trial as well as the First Appellate Court. But that would not in any way affect the permissive nature of their possession after the compromise.Therefore, we think that Kishundeo Singh was in constructive possession of the property after the compromise, and, the suit for recovery of khas possession was not barred by S. 47 of the Civil Procedure Code.11. The second ground on which the High Court dismissed the suit was that the plaint property had vested in the State of Bihar under the Act and the plaintiffs had, therefore, no right to proceed with the suit and obtain a decree for possession. The suit was instituted on March 7, 1953, the property vested in the State on January 26, 1955, under the Act. There is no dispute that the plaint property answers the description of a homestead in S. 5 of the Act.12. The High Court was of the view that since Kishundeo Singh was not in possession at the time the property vested in the State, he was not entitled to remain in possession of the plaint property under S. 5 as a tenant under the State free of rent. We are of the opinion that the constructive possession of Kishundeo Singh was sufficient to enable him to retain possession as a tenant under the section. In other words, on the date of the vesting of the property in the Government, Kishundeo Singh was, for the purpose of S. 5, in possession of the plaint property. In this context, it may be noted that the language of Section 5 is in sharp contrast with that of S. 6. The material part of S. 5 states :"5. Homestead of intermediaries to be retained by them as tenants - (1) With effect from the date of vesting, all homesteads comprised in an estate or tenure and being in the possession of an intermediary on the date of such vesting shall, subject to the provisions of sections 7A and 7B, be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession of the land comprised in such homesteads and to hold it as a tenant under the State free of rent."The relevant portion of S. 6 is in these terms :"6. Certain other lands in khas possession of intermediaries to be retained by them on payment of rent as raiyats having occupancy rights- (1) On and from the date of vesting all lands used for agricultural or horticultural purposes, which were in khas possession of an intermediary on the date of such vesting......."Whereas S. 6 speaks of khas possession, S. 5 mentions only of possession. We find that on the date of vesting of the plaint property in the State, Kishundeo Singh was in possession for the purpose of S. 5 and that he became a tenant under the State free of rent and that the suit for recovery of possession was maintainable. | 1[ds]10. Before the compromise, Kishundeo Singh and the defendants were in possession asactual possession of the defendants, of the plaint property, was also the constructive possession of Kishundeo Singh. So, when the lower appellate Court said that the defendants continued in possession as before, it can only mean that after the compromise the defendants were in possession acknowledging the title of Kishendeo Singh. That apart, defendants 1 and 2 had no case that they intended to possess the property as their own. It is clear from the compromise petition that the defendants were permitted to occupy the plaint property until the structure which was constructed in the property was removed by them. They, no doubt, remained in physical possession, but that was not with any intention to possess the property for themselves but because they were permitted to remain in possession until the structure constructed by them was removed. The only right which they claimed in the written statement was that they were tenants under Kishundeo Singh by virtue of the hukumnama executed by him in their favour. At no time they asserted or claimed any right to remain in possession otherwise than as tenant. As already stated, their case that Kishundeo Singh put them in possession under the hukumnama was found against by the Trial as well as the First Appellate Court. But that would not in any way affect the permissive nature of their possession after the compromise.Therefore, we think that Kishundeo Singh was in constructive possession of the property after the compromise, and, the suit for recovery of khas possession was not barred by S. 47 of the Civil Procedure Code.11. The second ground on which the High Court dismissed the suit was that the plaint property had vested in the State of Bihar under the Act and the plaintiffs had, therefore, no right to proceed with the suit and obtain a decree for possession. The suit was instituted on March 7, 1953, the property vested in the State on January 26, 1955, under the Act. There is no dispute that the plaint property answers the description of a homestead in S. 5 of the Act.12. The High Court was of the view that since Kishundeo Singh was not in possession at the time the property vested in the State, he was not entitled to remain in possession of the plaint property under S. 5 as a tenant under the State free of rent. We are of the opinion that the constructive possession of Kishundeo Singh was sufficient to enable him to retain possession as a tenant under the section. In other words, on the date of the vesting of the property in the Government, Kishundeo Singh was, for the purpose of S. 5, in possession of the plaint property. In this context, it may be noted that the language of Section 5 is in sharp contrast with that of S.S. 6 speaks of khas possession, S. 5 mentions only of possession. We find that on the date of vesting of the plaint property in the State, Kishundeo Singh was in possession for the purpose of S. 5 and that he became a tenant under the State free of rent and that the suit for recovery of possession was maintainable. | 1 | 1,587 | 592 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
plaint property had vested in the Government and, therefore, the plaintiffs were incompetent to maintain the suit.7. As regards the first question, the High Court was of the view that, though none of the parties to the compromise had produced the necessary stamp paper as directed by the Court and no formal decree was drawn up, the plaintiffs could not have instituted a fresh suit for recovery of possession of the plaint property as their only remedy was to execute the decree in Suit No. 80/34 of 1944-46. In other words, the High Court held that the plaintiffs should have produced the necessary stamp paper and got the final decree drawn up and executed it, instead of filing a suit for the relief which they could have obtained by executing the decree and so, the suit was barred by Section 47 of the Civil Procedure Code.8. The Trial Court had found that Kishundeo Singh obtained possession of the plaint property without the assistance of the Court in pursuance of the compromise but that he allowed the defendants to occupy the same. To put it in other words, the finding of the Trial Court was that the defendant of the Trial Court was that the defendants were in permissive occupation. The Trial Court also found that the definite case of the defendants was that they were put in possession of the property under the hukumnama and, therefore, their possession was clearly that of lessees under an agricultural lease.9. The lower appellate Court held that there was no allegation in the plaint that Kishundeo Singh obtained khas possession under the compromise nor was there any evidence to show that he obtained khas possession but that defendants 1 and 2 continued in possession as before the compromise.10. Before the compromise, Kishundeo Singh and the defendants were in possession as tenants-in-common.The actual possession of the defendants, of the plaint property, was also the constructive possession of Kishundeo Singh. So, when the lower appellate Court said that the defendants continued in possession as before, it can only mean that after the compromise the defendants were in possession acknowledging the title of Kishendeo Singh. That apart, defendants 1 and 2 had no case that they intended to possess the property as their own. It is clear from the compromise petition that the defendants were permitted to occupy the plaint property until the structure which was constructed in the property was removed by them. They, no doubt, remained in physical possession, but that was not with any intention to possess the property for themselves but because they were permitted to remain in possession until the structure constructed by them was removed. The only right which they claimed in the written statement was that they were tenants under Kishundeo Singh by virtue of the hukumnama executed by him in their favour. At no time they asserted or claimed any right to remain in possession otherwise than as tenant. As already stated, their case that Kishundeo Singh put them in possession under the hukumnama was found against by the Trial as well as the First Appellate Court. But that would not in any way affect the permissive nature of their possession after the compromise.Therefore, we think that Kishundeo Singh was in constructive possession of the property after the compromise, and, the suit for recovery of khas possession was not barred by S. 47 of the Civil Procedure Code.11. The second ground on which the High Court dismissed the suit was that the plaint property had vested in the State of Bihar under the Act and the plaintiffs had, therefore, no right to proceed with the suit and obtain a decree for possession. The suit was instituted on March 7, 1953, the property vested in the State on January 26, 1955, under the Act. There is no dispute that the plaint property answers the description of a homestead in S. 5 of the Act.12. The High Court was of the view that since Kishundeo Singh was not in possession at the time the property vested in the State, he was not entitled to remain in possession of the plaint property under S. 5 as a tenant under the State free of rent. We are of the opinion that the constructive possession of Kishundeo Singh was sufficient to enable him to retain possession as a tenant under the section. In other words, on the date of the vesting of the property in the Government, Kishundeo Singh was, for the purpose of S. 5, in possession of the plaint property. In this context, it may be noted that the language of Section 5 is in sharp contrast with that of S. 6. The material part of S. 5 states :"5. Homestead of intermediaries to be retained by them as tenants - (1) With effect from the date of vesting, all homesteads comprised in an estate or tenure and being in the possession of an intermediary on the date of such vesting shall, subject to the provisions of sections 7A and 7B, be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession of the land comprised in such homesteads and to hold it as a tenant under the State free of rent."The relevant portion of S. 6 is in these terms :"6. Certain other lands in khas possession of intermediaries to be retained by them on payment of rent as raiyats having occupancy rights- (1) On and from the date of vesting all lands used for agricultural or horticultural purposes, which were in khas possession of an intermediary on the date of such vesting......."Whereas S. 6 speaks of khas possession, S. 5 mentions only of possession. We find that on the date of vesting of the plaint property in the State, Kishundeo Singh was in possession for the purpose of S. 5 and that he became a tenant under the State free of rent and that the suit for recovery of possession was maintainable.
### Response:
1
### Explanation:
10. Before the compromise, Kishundeo Singh and the defendants were in possession asactual possession of the defendants, of the plaint property, was also the constructive possession of Kishundeo Singh. So, when the lower appellate Court said that the defendants continued in possession as before, it can only mean that after the compromise the defendants were in possession acknowledging the title of Kishendeo Singh. That apart, defendants 1 and 2 had no case that they intended to possess the property as their own. It is clear from the compromise petition that the defendants were permitted to occupy the plaint property until the structure which was constructed in the property was removed by them. They, no doubt, remained in physical possession, but that was not with any intention to possess the property for themselves but because they were permitted to remain in possession until the structure constructed by them was removed. The only right which they claimed in the written statement was that they were tenants under Kishundeo Singh by virtue of the hukumnama executed by him in their favour. At no time they asserted or claimed any right to remain in possession otherwise than as tenant. As already stated, their case that Kishundeo Singh put them in possession under the hukumnama was found against by the Trial as well as the First Appellate Court. But that would not in any way affect the permissive nature of their possession after the compromise.Therefore, we think that Kishundeo Singh was in constructive possession of the property after the compromise, and, the suit for recovery of khas possession was not barred by S. 47 of the Civil Procedure Code.11. The second ground on which the High Court dismissed the suit was that the plaint property had vested in the State of Bihar under the Act and the plaintiffs had, therefore, no right to proceed with the suit and obtain a decree for possession. The suit was instituted on March 7, 1953, the property vested in the State on January 26, 1955, under the Act. There is no dispute that the plaint property answers the description of a homestead in S. 5 of the Act.12. The High Court was of the view that since Kishundeo Singh was not in possession at the time the property vested in the State, he was not entitled to remain in possession of the plaint property under S. 5 as a tenant under the State free of rent. We are of the opinion that the constructive possession of Kishundeo Singh was sufficient to enable him to retain possession as a tenant under the section. In other words, on the date of the vesting of the property in the Government, Kishundeo Singh was, for the purpose of S. 5, in possession of the plaint property. In this context, it may be noted that the language of Section 5 is in sharp contrast with that of S.S. 6 speaks of khas possession, S. 5 mentions only of possession. We find that on the date of vesting of the plaint property in the State, Kishundeo Singh was in possession for the purpose of S. 5 and that he became a tenant under the State free of rent and that the suit for recovery of possession was maintainable.
|
M/S.Sunny Inds.Pvt.Ltd Vs. Collector Of Central Excise, Calcutta | the Drug Control Act. After detailed scrutiny of the documents filed by the appellant and the contentions raised by the parties, the Tribunal arrived at the conclusion that the classification done by the authorities below under sub-heading 3304.00 is correct and the product in question is clearly a massage oil, intended for care of the skin but possibly having some marginal medicinal properties.5. Aggrieved by the order of the Tribunal, the appellant has preferred Civil Appeal No. 4589 of 1995. 6. It is contended by the learned counsel for the appellant that the product Ad-vitamin massage Oil Forte was considered as medicine and it would be covered under heading 3003.19 as patent and proprietary medicine. It is submitted that the product is primarily a drug. This is because:- (i) It contains a drug or medicinal preparation in Oil form;(ii) It is used for massage;(iii) It prevents the ailment or rickets and treats the same.(iv) It has a trade mark and symbol including that it is a proprietary. 7. The question that arises for consideration in these appeals is - whether the product in question can be classified as a cosmetics and toilet preparation falling under Tariff Item 33.04 or as patent or proprietary medicine under Tariff Item No. 30.03?8. For this purpose, we would refer to the relevant part of tariff entries as under:- Old Tariff Entries: Item No. 14E - Patent or Proprietary Medicines. 9. By introduction of Finance Bill. 1985, explanations II and III were added to the said tariff item No.14-F of the Central Excise Tariff. Relevant Explanation II reads as under :- "Explanation-II:- This item includes cosmetics and toilet preparations whether or not they contain subsidiary pharmaceutical or antiseptic constituents, or are held out as having subsidiary curative or prophylactic value." Equivalent Tariff Items After Reconstitution w.e.f. 28.2.1986 10. Chapter Notes 1(c) and (d) of Chapter 30 coupled with Chapter Notes 2 and 5 of Chapter 33 would clearly reveal that the product in question cannot be termed as medicaments. The aforesaid Chapter Notes are as under :- Chapter 30 (Pharmaceutical Products) Note: 1. This Chapter does not cover :(c) Aqueous distillates or aqueous solutions of essential oils, suitable for medicinal uses (Chapter 33);(d) Preparations of Chapter 33 even if they have therapeutic or prophylactic properties." Chapter 33 (Essential Oils and Resinoids: Perfumery, Cosmetic or Toilet Preparations):- "2. Heading Nos.33.03 to 33.07 apply, inter alia, to products, whether or not mixed (other than aqueous distillates and aqueous solutions of essential oils), suitable for use as goods of these headings and put up in packing with labels, literature or other indications that they are for use as cosmetics or toilet preparations or put up in a form clearly specialised to such use and includes products whether or not they contain subsidiary pharmaceutical or antiseptic constituents, or are held out as having subsidiary curative or prophylactic value.5. Heading No.33.04 applies, inter alia, to the following products: beauty creams, vanishing creams, cold creams, make-up creams, cleansing creams, skinfoods. skin tonics, face powders , toilet powders. talcum powders and grease paints, lipstics, eye shadow and eyebrow pencils, nail polishes and varnishes, cuticle removers and other preparations for use in manicure or chiropody and barrier creams to give protection against skin irritants." 11. From the aforesaid Chapter notes, it is clear that heading 33.03 would include products whether or not they contain subsidiary pharmaceutical or antiseptic constituents, or are held out as having subsidiary curative or prophylactic value and heading 33.04 would inter alia include the products specified therein and other preparations for use in manicure or chiropody and barrier creams to give protection against skin irritants. Therefore, the product mainly oil containing some A&D vitamins which is used for massage, even if it prevents ailment of rickets and treats the same, it cannot be held to be medicaments. 12. Hence, in our view after verification of the entire evidence and the certificates produced on record as well as the report of the Chemical Analyser the Tribunal rightly arrived at the conclusion that the product in question is oil used for massage and would be covered by heading 33.04. Similar contention was raised in M/s. Alpine Industries v. Collector of Central Excise, New Delhi [JT 2003 (1 ) SC [130]. The Court observed that Medicament has been defined in note No.2 (i) to mean goods which are either products comprising two or more constituents which have been mixed or compounded together for therapeutic or prophylactic use." On a reading of note No. 1 (d) with note No.2(i) of Chapter 30 under Heading Pharmaceutical Products, it is clear that preparations which fall under Chapter 33 even if they have therapeutic or prophylactic properties are not covered under Heading 30.03 as a medicaments. The Court thereafter held thus:-The certificate issued by the Army Authorities and the chemical ingredients of the product are not decisive on the question of classification of the product for levy of excise duty. It is firmly established that on the question of classification of the product under Central Excise Tariff Act. "commercial parlance theory" has to be applied. It is true that the entry supply by the appellant of its products Lip Salve" has been to the Defence Department for use of military personnel but that would also not be determinative of the nature of the product for classifying it. It is not disputed that the product Lip Salve" is used for the care of the lips. It is a product essentially for "care of skin" and not for "cure of skin". It is therefore, classifiable as a skin care cream and not a medicament. From the nature of the product and the use to which it is put, we do not find that the claim of the appellant is acceptable that it is primarily for therapeutic use."13. The same would be the position in the present case. The oil is not used for cure of skin but is oil for massage and it takes care of the skin. | 0[ds]12. Hence, in our view after verification of the entire evidence and the certificates produced on record as well as the report of the Chemical Analyser the Tribunal rightly arrived at the conclusion that the product in question is oil used for massage and would be covered by heading 33.04. Similar contention was raised in M/s. Alpine Industries v. Collector of Central Excise, New Delhi [JT 2003 (1 ) SC [130]. The Court observed that Medicament has been defined in note No.2 (i) to mean goods which are either products comprising two or more constituents which have been mixed or compounded together for therapeutic or prophylactic use." On a reading of note No. 1 (d) with note No.2(i) of Chapter 30 under Heading Pharmaceutical Products, it is clear that preparations which fall under Chapter 33 even if they have therapeutic or prophylactic properties are not covered under Heading 30.03 as a medicaments. The Court thereafter held thus:-The certificate issued by the Army Authorities and the chemical ingredients of the product are not decisive on the question of classification of the product for levy of excise duty. It is firmly established that on the question of classification of the product under Central Excise Tariff Act. "commercial parlance theory" has to be applied. It is true that the entry supply by the appellant of its products Lip Salve" has been to the Defence Department for use of military personnel but that would also not be determinative of the nature of the product for classifying it. It is not disputed that the product Lip Salve" is used for the care of the lips. It is a product essentially for "care of skin" and not for "cure of skin". It is therefore, classifiable as a skin care cream and not a medicament. From the nature of the product and the use to which it is put, we do not find that the claim of the appellant is acceptable that it is primarily for therapeutic use."13. The same would be the position in the present case. The oil is not used for cure of skin but is oil for massage and it takes care of the skin. | 0 | 1,601 | 412 | ### 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:
the Drug Control Act. After detailed scrutiny of the documents filed by the appellant and the contentions raised by the parties, the Tribunal arrived at the conclusion that the classification done by the authorities below under sub-heading 3304.00 is correct and the product in question is clearly a massage oil, intended for care of the skin but possibly having some marginal medicinal properties.5. Aggrieved by the order of the Tribunal, the appellant has preferred Civil Appeal No. 4589 of 1995. 6. It is contended by the learned counsel for the appellant that the product Ad-vitamin massage Oil Forte was considered as medicine and it would be covered under heading 3003.19 as patent and proprietary medicine. It is submitted that the product is primarily a drug. This is because:- (i) It contains a drug or medicinal preparation in Oil form;(ii) It is used for massage;(iii) It prevents the ailment or rickets and treats the same.(iv) It has a trade mark and symbol including that it is a proprietary. 7. The question that arises for consideration in these appeals is - whether the product in question can be classified as a cosmetics and toilet preparation falling under Tariff Item 33.04 or as patent or proprietary medicine under Tariff Item No. 30.03?8. For this purpose, we would refer to the relevant part of tariff entries as under:- Old Tariff Entries: Item No. 14E - Patent or Proprietary Medicines. 9. By introduction of Finance Bill. 1985, explanations II and III were added to the said tariff item No.14-F of the Central Excise Tariff. Relevant Explanation II reads as under :- "Explanation-II:- This item includes cosmetics and toilet preparations whether or not they contain subsidiary pharmaceutical or antiseptic constituents, or are held out as having subsidiary curative or prophylactic value." Equivalent Tariff Items After Reconstitution w.e.f. 28.2.1986 10. Chapter Notes 1(c) and (d) of Chapter 30 coupled with Chapter Notes 2 and 5 of Chapter 33 would clearly reveal that the product in question cannot be termed as medicaments. The aforesaid Chapter Notes are as under :- Chapter 30 (Pharmaceutical Products) Note: 1. This Chapter does not cover :(c) Aqueous distillates or aqueous solutions of essential oils, suitable for medicinal uses (Chapter 33);(d) Preparations of Chapter 33 even if they have therapeutic or prophylactic properties." Chapter 33 (Essential Oils and Resinoids: Perfumery, Cosmetic or Toilet Preparations):- "2. Heading Nos.33.03 to 33.07 apply, inter alia, to products, whether or not mixed (other than aqueous distillates and aqueous solutions of essential oils), suitable for use as goods of these headings and put up in packing with labels, literature or other indications that they are for use as cosmetics or toilet preparations or put up in a form clearly specialised to such use and includes products whether or not they contain subsidiary pharmaceutical or antiseptic constituents, or are held out as having subsidiary curative or prophylactic value.5. Heading No.33.04 applies, inter alia, to the following products: beauty creams, vanishing creams, cold creams, make-up creams, cleansing creams, skinfoods. skin tonics, face powders , toilet powders. talcum powders and grease paints, lipstics, eye shadow and eyebrow pencils, nail polishes and varnishes, cuticle removers and other preparations for use in manicure or chiropody and barrier creams to give protection against skin irritants." 11. From the aforesaid Chapter notes, it is clear that heading 33.03 would include products whether or not they contain subsidiary pharmaceutical or antiseptic constituents, or are held out as having subsidiary curative or prophylactic value and heading 33.04 would inter alia include the products specified therein and other preparations for use in manicure or chiropody and barrier creams to give protection against skin irritants. Therefore, the product mainly oil containing some A&D vitamins which is used for massage, even if it prevents ailment of rickets and treats the same, it cannot be held to be medicaments. 12. Hence, in our view after verification of the entire evidence and the certificates produced on record as well as the report of the Chemical Analyser the Tribunal rightly arrived at the conclusion that the product in question is oil used for massage and would be covered by heading 33.04. Similar contention was raised in M/s. Alpine Industries v. Collector of Central Excise, New Delhi [JT 2003 (1 ) SC [130]. The Court observed that Medicament has been defined in note No.2 (i) to mean goods which are either products comprising two or more constituents which have been mixed or compounded together for therapeutic or prophylactic use." On a reading of note No. 1 (d) with note No.2(i) of Chapter 30 under Heading Pharmaceutical Products, it is clear that preparations which fall under Chapter 33 even if they have therapeutic or prophylactic properties are not covered under Heading 30.03 as a medicaments. The Court thereafter held thus:-The certificate issued by the Army Authorities and the chemical ingredients of the product are not decisive on the question of classification of the product for levy of excise duty. It is firmly established that on the question of classification of the product under Central Excise Tariff Act. "commercial parlance theory" has to be applied. It is true that the entry supply by the appellant of its products Lip Salve" has been to the Defence Department for use of military personnel but that would also not be determinative of the nature of the product for classifying it. It is not disputed that the product Lip Salve" is used for the care of the lips. It is a product essentially for "care of skin" and not for "cure of skin". It is therefore, classifiable as a skin care cream and not a medicament. From the nature of the product and the use to which it is put, we do not find that the claim of the appellant is acceptable that it is primarily for therapeutic use."13. The same would be the position in the present case. The oil is not used for cure of skin but is oil for massage and it takes care of the skin.
### Response:
0
### Explanation:
12. Hence, in our view after verification of the entire evidence and the certificates produced on record as well as the report of the Chemical Analyser the Tribunal rightly arrived at the conclusion that the product in question is oil used for massage and would be covered by heading 33.04. Similar contention was raised in M/s. Alpine Industries v. Collector of Central Excise, New Delhi [JT 2003 (1 ) SC [130]. The Court observed that Medicament has been defined in note No.2 (i) to mean goods which are either products comprising two or more constituents which have been mixed or compounded together for therapeutic or prophylactic use." On a reading of note No. 1 (d) with note No.2(i) of Chapter 30 under Heading Pharmaceutical Products, it is clear that preparations which fall under Chapter 33 even if they have therapeutic or prophylactic properties are not covered under Heading 30.03 as a medicaments. The Court thereafter held thus:-The certificate issued by the Army Authorities and the chemical ingredients of the product are not decisive on the question of classification of the product for levy of excise duty. It is firmly established that on the question of classification of the product under Central Excise Tariff Act. "commercial parlance theory" has to be applied. It is true that the entry supply by the appellant of its products Lip Salve" has been to the Defence Department for use of military personnel but that would also not be determinative of the nature of the product for classifying it. It is not disputed that the product Lip Salve" is used for the care of the lips. It is a product essentially for "care of skin" and not for "cure of skin". It is therefore, classifiable as a skin care cream and not a medicament. From the nature of the product and the use to which it is put, we do not find that the claim of the appellant is acceptable that it is primarily for therapeutic use."13. The same would be the position in the present case. The oil is not used for cure of skin but is oil for massage and it takes care of the skin.
|
Himatrao Vs. Jaikishandas And Ors | civil suit No. 43 of 1925. According to him, however, it is only these fields that were sold in execution and not his share in the Izara itself. However, the sale certificates and receipts for possession mention not only these 7 fields but also Basantraos one anna 3 pies share in the village. His contention which was accepted by the trial court as well as by the lower appellate court was that the mention of 1 anna 3 pies share in the warrant of attachment and receipt was the result of a fraud practised on the court by interested persons. According to the trial court Himatraos share was 1 anna 3 pies while according to the lower appellate court it was 1 anna 5 pies. In the light of these findings a decree for partition and separate possession of 1 anna 5 pies share in the village, that is, of land falling to the share of 1 anna 5 pies was granted by the lower appellate court to Himatrao. It may be mentioned that Himatrao had said in his plaint that the 7 fields which were sold in execution and which later came into possession of Pusaram should be allocated to Himatraos 1 anna 5 pies share. The main contention of Pusaram in the second appeal before the High Court appears to have been that as a result of the previous execution sale he had become the owner not only of 7 fields out of Himatraos share in the village. Apart from the fact that the finding on each of the points of the two lower courts being one of fact was binding on the High Court, the High Court has erred in the view which it took of the provisions of the Act and of the decision in Chhote Khans case, ILR (1953) Nag 702: (AIR 1953 Nag 361) (FB). 3. What we have, therefore, to consider is whether the High Court was right in throwing out the suit as infructuous. It is no doubt true that so far as the proprietary interest in the village is concerned the whole of it has now been acquired by the State and vests in it. But under the provisions of the Act compensation is payable to the ex-proprietors by virtue of the provisions of the Act. This proprietary interest is analogous to what is known as the interest of the intermediary in similar Acts enacted in many other States of India. The acquisition of such an interest by the State would not put an end to the various rights of ex-proprietors in their capacity as owners of property. Thus, every co-sharer could, despite the acquisition of his proprietary right obtain a declaration from a civil court as to the fact and extent of his share in the pre-existing proprietary rights of that village so that he could lay claim to a proportionate amount of compensation and to a proportionate extent of home-farm land in that village. The High Court seems to think that inasmuch as Himatrao was admittedly not in cultivating possession of any part of the land in the village he could not lay any claim to a partition of the home-farm land. We have already given the definition of home-farm. It would be clear from it that the village being still undivided every bit of land which was in cultivating possession of any of the co-sharers in the village would be deemed to be in possession of the entire body of co-sharers. The same would apply to land in possession of lessees or ordinary tenant. The right to enforce a claim to a partition of this land is in no way affected by any of the provisions of the Act or by the interpretation placed on the provisions of the Act in Chhote Khans case, ILR (1953) Nag 702: (AIR 1953 Nag 361) (FB). Suffice it to say that Chhote Khans case, ILR (1953) Nag 702: (AIR 1953 Nag 361) (FB), was concerned with the right of an ex-lumbardar to continue after the coming into force of the Act, a suit for possession of abadi land which had vested in the State. In the present suit a number of reliefs which Himatrao claimed are with respect to property which has not vested in the State. A somewhat similar argument was sought to be advanced before the Nagpur High Court on the basis of the decision in Chhote Khans case, ILR (1953) Nag 702: (AIR 1953 Nag 361) (FB), in Rahmatullah Khan v. Mahabirsingh, ILR (1955) Nag 983: (AIR 1956 Nag 132). While rejecting the argument the majority of the Judges who decided the case pointed out that a distinction has to be made between a suit brought by a proprietor in his character as proprietor for possession of property which the law then in force authorised him to claim by a suit for the benefit of the entire body of proprietors and a suit based upon trespass upon his individual rights obtained by him irrespective of his character as such proprietor. If this distinction had been borne in mind by the High Court it would not have dismissed the suit as wholly infructuous. 4. An argument was sought to be advanced on behalf of the respondents by Mr. Patwardhan that the suit was also barred by the principle of res judicata. However, learned counsel realising that there was no substance in that contention gave it up. We, therefore, need say nothing more on the point. 5. For the reasons which we have given, it is clear that the matter must go back to the High Court for deciding the appeals before it on other merits. Dr. Barlingay, who appears for Laxman Vinayak, has said that he adopts the arguments addressed before us on behalf of Himatrao by Mr. S. T. Desai and has nothing to add. He said that he would be content with the order that the appeals be heard and decided on merits by the High Court. | 1[ds]It is no doubt true that so far as the proprietary interest in the village is concerned the whole of it has now been acquired by the State and vests in it. But under the provisions of the Act compensation is payable to the ex-proprietors by virtue of the provisions of the Act. This proprietary interest is analogous to what is known as the interest of the intermediary in similar Acts enacted in many other States of India. The acquisition of such an interest by the State would not put an end to the various rights of ex-proprietors in their capacity as owners of property. Thus, every co-sharer could, despite the acquisition of his proprietary right obtain a declaration from a civil court as to the fact and extent of his share in the pre-existing proprietary rights of that village so that he could lay claim to a proportionate amount of compensation and to a proportionate extent of home-farm land in that village. The High Court seems to think that inasmuch as Himatrao was admittedly not in cultivating possession of any part of the land in the village he could not lay any claim to a partition of the home-farm land. We have already given the definition of home-farm. It would be clear from it that the village being still undivided every bit of land which was in cultivating possession of any of the co-sharers in the village would be deemed to be in possession of the entire body of co-sharers. The same would apply to land in possession of lessees or ordinary tenant. The right to enforce a claim to a partition of this land is in no way affected by any of the provisions of the Act or by the interpretation placed on the provisions of the Act in Chhote Khans case, ILR (1953) Nag 702: (AIR 1953 Nag 361) (FB). Suffice it to say that Chhote Khans case, ILR (1953) Nag 702: (AIR 1953 Nag 361) (FB), was concerned with the right of an ex-lumbardar to continue after the coming into force of the Act, a suit for possession of abadi land which had vested in the State. In the present suit a number of reliefs which Himatrao claimed are with respect to property which has not vested in the State. A somewhat similar argument was sought to be advanced before the Nagpur High Court on the basis of the decision in Chhote Khans case, ILR (1953) Nag 702: (AIR 1953 Nag 361) (FB), in Rahmatullah Khan v. Mahabirsingh, ILR (1955) Nag 983: (AIR 1956 Nag 132). While rejecting the argument the majority of the Judges who decided the case pointed out that a distinction has to be made between a suit brought by a proprietor in his character as proprietor for possession of property which the law then in force authorised him to claim by a suit for the benefit of the entire body of proprietors and a suit based upon trespass upon his individual rights obtained by him irrespective of his character as such proprietor. If this distinction had been borne in mind by the High Court it would not have dismissed the suit as wholly infructuous4. An argument was sought to be advanced on behalf of the respondents by Mr. Patwardhan that the suit was also barred by the principle of res judicata. However, learned counsel realising that there was no substance in that contention gave it up. We, therefore, need say nothing more on the point5. For the reasons which we have given, it is clear that the matter must go back to the High Court for deciding the appeals before it on other merits. Dr. Barlingay, who appears for Laxman Vinayak, has said that he adopts the arguments addressed before us on behalf of Himatrao by Mr. S. T. Desai and has nothing to add. He said that he would be content with the order that the appeals be heard and decided on merits by the High Court. | 1 | 2,349 | 732 | ### 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:
civil suit No. 43 of 1925. According to him, however, it is only these fields that were sold in execution and not his share in the Izara itself. However, the sale certificates and receipts for possession mention not only these 7 fields but also Basantraos one anna 3 pies share in the village. His contention which was accepted by the trial court as well as by the lower appellate court was that the mention of 1 anna 3 pies share in the warrant of attachment and receipt was the result of a fraud practised on the court by interested persons. According to the trial court Himatraos share was 1 anna 3 pies while according to the lower appellate court it was 1 anna 5 pies. In the light of these findings a decree for partition and separate possession of 1 anna 5 pies share in the village, that is, of land falling to the share of 1 anna 5 pies was granted by the lower appellate court to Himatrao. It may be mentioned that Himatrao had said in his plaint that the 7 fields which were sold in execution and which later came into possession of Pusaram should be allocated to Himatraos 1 anna 5 pies share. The main contention of Pusaram in the second appeal before the High Court appears to have been that as a result of the previous execution sale he had become the owner not only of 7 fields out of Himatraos share in the village. Apart from the fact that the finding on each of the points of the two lower courts being one of fact was binding on the High Court, the High Court has erred in the view which it took of the provisions of the Act and of the decision in Chhote Khans case, ILR (1953) Nag 702: (AIR 1953 Nag 361) (FB). 3. What we have, therefore, to consider is whether the High Court was right in throwing out the suit as infructuous. It is no doubt true that so far as the proprietary interest in the village is concerned the whole of it has now been acquired by the State and vests in it. But under the provisions of the Act compensation is payable to the ex-proprietors by virtue of the provisions of the Act. This proprietary interest is analogous to what is known as the interest of the intermediary in similar Acts enacted in many other States of India. The acquisition of such an interest by the State would not put an end to the various rights of ex-proprietors in their capacity as owners of property. Thus, every co-sharer could, despite the acquisition of his proprietary right obtain a declaration from a civil court as to the fact and extent of his share in the pre-existing proprietary rights of that village so that he could lay claim to a proportionate amount of compensation and to a proportionate extent of home-farm land in that village. The High Court seems to think that inasmuch as Himatrao was admittedly not in cultivating possession of any part of the land in the village he could not lay any claim to a partition of the home-farm land. We have already given the definition of home-farm. It would be clear from it that the village being still undivided every bit of land which was in cultivating possession of any of the co-sharers in the village would be deemed to be in possession of the entire body of co-sharers. The same would apply to land in possession of lessees or ordinary tenant. The right to enforce a claim to a partition of this land is in no way affected by any of the provisions of the Act or by the interpretation placed on the provisions of the Act in Chhote Khans case, ILR (1953) Nag 702: (AIR 1953 Nag 361) (FB). Suffice it to say that Chhote Khans case, ILR (1953) Nag 702: (AIR 1953 Nag 361) (FB), was concerned with the right of an ex-lumbardar to continue after the coming into force of the Act, a suit for possession of abadi land which had vested in the State. In the present suit a number of reliefs which Himatrao claimed are with respect to property which has not vested in the State. A somewhat similar argument was sought to be advanced before the Nagpur High Court on the basis of the decision in Chhote Khans case, ILR (1953) Nag 702: (AIR 1953 Nag 361) (FB), in Rahmatullah Khan v. Mahabirsingh, ILR (1955) Nag 983: (AIR 1956 Nag 132). While rejecting the argument the majority of the Judges who decided the case pointed out that a distinction has to be made between a suit brought by a proprietor in his character as proprietor for possession of property which the law then in force authorised him to claim by a suit for the benefit of the entire body of proprietors and a suit based upon trespass upon his individual rights obtained by him irrespective of his character as such proprietor. If this distinction had been borne in mind by the High Court it would not have dismissed the suit as wholly infructuous. 4. An argument was sought to be advanced on behalf of the respondents by Mr. Patwardhan that the suit was also barred by the principle of res judicata. However, learned counsel realising that there was no substance in that contention gave it up. We, therefore, need say nothing more on the point. 5. For the reasons which we have given, it is clear that the matter must go back to the High Court for deciding the appeals before it on other merits. Dr. Barlingay, who appears for Laxman Vinayak, has said that he adopts the arguments addressed before us on behalf of Himatrao by Mr. S. T. Desai and has nothing to add. He said that he would be content with the order that the appeals be heard and decided on merits by the High Court.
### Response:
1
### Explanation:
It is no doubt true that so far as the proprietary interest in the village is concerned the whole of it has now been acquired by the State and vests in it. But under the provisions of the Act compensation is payable to the ex-proprietors by virtue of the provisions of the Act. This proprietary interest is analogous to what is known as the interest of the intermediary in similar Acts enacted in many other States of India. The acquisition of such an interest by the State would not put an end to the various rights of ex-proprietors in their capacity as owners of property. Thus, every co-sharer could, despite the acquisition of his proprietary right obtain a declaration from a civil court as to the fact and extent of his share in the pre-existing proprietary rights of that village so that he could lay claim to a proportionate amount of compensation and to a proportionate extent of home-farm land in that village. The High Court seems to think that inasmuch as Himatrao was admittedly not in cultivating possession of any part of the land in the village he could not lay any claim to a partition of the home-farm land. We have already given the definition of home-farm. It would be clear from it that the village being still undivided every bit of land which was in cultivating possession of any of the co-sharers in the village would be deemed to be in possession of the entire body of co-sharers. The same would apply to land in possession of lessees or ordinary tenant. The right to enforce a claim to a partition of this land is in no way affected by any of the provisions of the Act or by the interpretation placed on the provisions of the Act in Chhote Khans case, ILR (1953) Nag 702: (AIR 1953 Nag 361) (FB). Suffice it to say that Chhote Khans case, ILR (1953) Nag 702: (AIR 1953 Nag 361) (FB), was concerned with the right of an ex-lumbardar to continue after the coming into force of the Act, a suit for possession of abadi land which had vested in the State. In the present suit a number of reliefs which Himatrao claimed are with respect to property which has not vested in the State. A somewhat similar argument was sought to be advanced before the Nagpur High Court on the basis of the decision in Chhote Khans case, ILR (1953) Nag 702: (AIR 1953 Nag 361) (FB), in Rahmatullah Khan v. Mahabirsingh, ILR (1955) Nag 983: (AIR 1956 Nag 132). While rejecting the argument the majority of the Judges who decided the case pointed out that a distinction has to be made between a suit brought by a proprietor in his character as proprietor for possession of property which the law then in force authorised him to claim by a suit for the benefit of the entire body of proprietors and a suit based upon trespass upon his individual rights obtained by him irrespective of his character as such proprietor. If this distinction had been borne in mind by the High Court it would not have dismissed the suit as wholly infructuous4. An argument was sought to be advanced on behalf of the respondents by Mr. Patwardhan that the suit was also barred by the principle of res judicata. However, learned counsel realising that there was no substance in that contention gave it up. We, therefore, need say nothing more on the point5. For the reasons which we have given, it is clear that the matter must go back to the High Court for deciding the appeals before it on other merits. Dr. Barlingay, who appears for Laxman Vinayak, has said that he adopts the arguments addressed before us on behalf of Himatrao by Mr. S. T. Desai and has nothing to add. He said that he would be content with the order that the appeals be heard and decided on merits by the High Court.
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Municipal Committee, Akot Vs. Manilal Manekji Pvt. Ltd. And Another | imposing special burdens on, municipal services, imposed under Cl. (ii) of sub-s. (1) of S. 128 of the United Provinces Municipalities Act, 1916.4. The tax on persons exercising any profession or art, or carrying on any trade or calling, within the limits of the municipality, imposed under Cl. (b) of sub-s. (1) of S. 66 of the Central Provinces Municipalities Act, 1922.5. The tax on companies, imposed under S. 110 of the Madras City Municipal Act, 1919.*"*Ins. By S. 2 of the Professions Tax Limitation (Amendment) Act, 1946 (V of 1946) (retrospectively).On behalf of the Municipality it was inter alia contended before the High Court that the impugned tax fell within Item 4 of the Schedule to the Profession Tax Limitation Act, 1941, but the High Court negatived the contention following an earlier judgment of the High Court in an unreported case [Bidarbha Mills Berar Ltd. v. City Municipal Committee of Achalpur, Special Civil Appln. No. 104 of 1960, D/- 9-8-1960 (Bom-Nagpur Bench)].9. The learned Solicitor-General, appearing for the appellant Municipal Committee, contended that Item No. 4 in the Schedule covers the impugned tax because the Act is the same under which the tax is being imposed and recovered and the fact that the title of the Central Provinces Municipalities Act, 1922, was changed by the Berar Laws (Provincial) Act, 1941, does not make any difference. He says that there is nothing in the Profession Tax Limitation Act, 1941, to show that the exemption was intended to be given only to a particular territory. He further urges as follows : The fact that this notification No. 98, dated March 14, 1899, is now deemed to be issued under the Central Provinces and Berar Municipalties Act, 1922, does not make it any the less imposed under the Central Provinces Municipalities Act, 1922, within Item 4; if a tax is deemed to be imposed under the Central Provinces and Berar Municipalities Act, 1922, it is still a tax imposed under S. 66 (1) of the Central Provinces Municipalities Act, 1922, it is a case of misdescription that the word Berar has not been mentioned in Item 5 of the Schedule to the Profession Tax Limitation Act, 1941; the item will be otiose if any other meaning is ascribed to it.10. In our opinion the High Court came to the correct conclusion. First, Item No. 4 is an exemption from the limitation imposed by S. 2 of the Professions Tax Limitation Act, 1941, and the exemption must be construed strictly. Secondly, the effect of S. 3 and Item 4 of the Schedule is to continue the liviability of a tax and, in our opinion, this item must be construed strictly like a taxing statute. If Mr. Gupte had been able to convince us that the item would be otiose if this interpretation is put there would be something to say in his favour. But the item will not be otiose even if we do not treat Item 4 as a case of misdescription but give the plain meaning that the Central Provinces Municipalities Act, 1922, means the Central Provinces Municipalities Act, 1922, and not the Central Provinces and Berar Municipalities Act, 1922. Various taxes must have been imposed by the Municipalities in the Central Provinces by virtue of notifications issued under S. 66 (1) (b) of the Central Provinces Municipalities Act, 1922, and they would fall within the ambit of Item 4. Further if we accept Mr. Guptes argument we will not be giving full effect to the word imposed". This, in our view, means that the taxes which can continue to be levied should have been imposed in the past before the Profession Tax Limitation Act, 1941, came into force. This is in consonance with S. 142 A (2) of the Government of India Act, 1935, which was in the following terms:"142 A (2). The total amount payable in respect of any one person to the Province or to any one municipality, district board, local board, or other local authority in the Province by way of taxes on professions, trades, calling and employments shall not, after the thirty-first day of March nineteen hundred and thirty-nine, exceed fifty rupees per annum :Provided that, if in the financial year ending with that date there was in force in the case of any Province or any such municipality, board or authority a tax on professions, trades, callings or employments the rate, or the maximum rate, of which exceeded fifty rupees per annum, the preceding provisions of this sub-section shall, unless for the time being provision to the contrary is made by a law of the Dominion Legislature, have effect in relation to that Province, municipality, board or authority as if for the reference to fifty rupees per annum there were substituted a reference to that rate or maximum rate, or such lower rate, if any (being a rate greater than fifty rupees per annum), as may for the time being be fixed by a law of the Dominion Legislature; and any law of the Dominion Legislature made for any of the purposes of this proviso may be made either generally or in relation to any specific Provinces, municipalities, boards or authorities.The proviso clearly shows that the section enabled the Dominion Legislature to make a contrary provision if in the financial year ending March 31, 1939, there was in force a tax on professions, trades, callings or employments the rate of which exceeded Rs. 50. The Dominion Legislature could not authorise under the proviso a fresh imposition exceeding Rs. 50.11. In view of our above conclusions it is not necessary to deal with the point whether the word "imposed" in Item 4 of the Schedule to the Profession Tax Limitation Act, 1941, would include "deemed to be imposed" because by virtue of S. 3 of the Berar Laws (Provincial) Act, 1941, the tax would be deemed to be imposed not under the Central Provinces Municipalities Act, 1922, but the Central Provinces and Berar Municipalities Act, 1922. | 0[ds]10. In our opinion the High Court came to the correct conclusion. First, Item No. 4 is an exemption from the limitation imposed by S. 2 of the Professions Tax Limitation Act, 1941, and the exemption must be construed strictly. Secondly, the effect of S. 3 and Item 4 of the Schedule is to continue the liviability of a tax and, in our opinion, this item must be construed strictly like a taxing statute. If Mr. Gupte had been able to convince us that the item would be otiose if this interpretation is put there would be something to say in his favour. But the item will not be otiose even if we do not treat Item 4 as a case of misdescription but give the plain meaning that the Central Provinces Municipalities Act, 1922, means the Central Provinces Municipalities Act, 1922, and not the Central Provinces and Berar Municipalities Act, 1922. Various taxes must have been imposed by the Municipalities in the Central Provinces by virtue of notifications issued under S. 66 (1) (b) of the Central Provinces Municipalities Act, 1922, and they would fall within the ambit of Item 4. Further if we accept Mr. Guptes argument we will not be giving full effect to the word imposed". This, in our view, means that the taxes which can continue to be levied should have been imposed in the past before the Profession Tax Limitation Act, 1941, came intothat, if in the financial year ending with that date there was in force in the case of any Province or any such municipality, board or authority a tax on professions, trades, callings or employments the rate, or the maximum rate, of which exceeded fifty rupees per annum, the preceding provisions of this sub-section shall, unless for the time being provision to the contrary is made by a law of the Dominion Legislature, have effect in relation to that Province, municipality, board or authority as if for the reference to fifty rupees per annum there were substituted a reference to that rate or maximum rate, or such lower rate, if any (being a rate greater than fifty rupees per annum), as may for the time being be fixed by a law of the Dominion Legislature; and any law of the Dominion Legislature made for any of the purposes of this proviso may be made either generally or in relation to any specific Provinces, municipalities, boards orproviso clearly shows that the section enabled the Dominion Legislature to make a contrary provision if in the financial year ending March 31, 1939, there was in force a tax on professions, trades, callings or employments the rate of which exceeded Rs. 50. The Dominion Legislature could not authorise under the proviso a fresh imposition exceeding Rs. 50.11. In view of our above conclusions it is not necessary to deal with the point whether the word "imposed" in Item 4 of the Schedule to the Profession Tax Limitation Act, 1941, would include "deemed to be imposed" because by virtue of S. 3 of the Berar Laws (Provincial) Act, 1941, the tax would be deemed to be imposed not under the Central Provinces Municipalities Act, 1922, but the Central Provinces and Berar Municipalities Act, 1922. | 0 | 3,152 | 614 | ### 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:
imposing special burdens on, municipal services, imposed under Cl. (ii) of sub-s. (1) of S. 128 of the United Provinces Municipalities Act, 1916.4. The tax on persons exercising any profession or art, or carrying on any trade or calling, within the limits of the municipality, imposed under Cl. (b) of sub-s. (1) of S. 66 of the Central Provinces Municipalities Act, 1922.5. The tax on companies, imposed under S. 110 of the Madras City Municipal Act, 1919.*"*Ins. By S. 2 of the Professions Tax Limitation (Amendment) Act, 1946 (V of 1946) (retrospectively).On behalf of the Municipality it was inter alia contended before the High Court that the impugned tax fell within Item 4 of the Schedule to the Profession Tax Limitation Act, 1941, but the High Court negatived the contention following an earlier judgment of the High Court in an unreported case [Bidarbha Mills Berar Ltd. v. City Municipal Committee of Achalpur, Special Civil Appln. No. 104 of 1960, D/- 9-8-1960 (Bom-Nagpur Bench)].9. The learned Solicitor-General, appearing for the appellant Municipal Committee, contended that Item No. 4 in the Schedule covers the impugned tax because the Act is the same under which the tax is being imposed and recovered and the fact that the title of the Central Provinces Municipalities Act, 1922, was changed by the Berar Laws (Provincial) Act, 1941, does not make any difference. He says that there is nothing in the Profession Tax Limitation Act, 1941, to show that the exemption was intended to be given only to a particular territory. He further urges as follows : The fact that this notification No. 98, dated March 14, 1899, is now deemed to be issued under the Central Provinces and Berar Municipalties Act, 1922, does not make it any the less imposed under the Central Provinces Municipalities Act, 1922, within Item 4; if a tax is deemed to be imposed under the Central Provinces and Berar Municipalities Act, 1922, it is still a tax imposed under S. 66 (1) of the Central Provinces Municipalities Act, 1922, it is a case of misdescription that the word Berar has not been mentioned in Item 5 of the Schedule to the Profession Tax Limitation Act, 1941; the item will be otiose if any other meaning is ascribed to it.10. In our opinion the High Court came to the correct conclusion. First, Item No. 4 is an exemption from the limitation imposed by S. 2 of the Professions Tax Limitation Act, 1941, and the exemption must be construed strictly. Secondly, the effect of S. 3 and Item 4 of the Schedule is to continue the liviability of a tax and, in our opinion, this item must be construed strictly like a taxing statute. If Mr. Gupte had been able to convince us that the item would be otiose if this interpretation is put there would be something to say in his favour. But the item will not be otiose even if we do not treat Item 4 as a case of misdescription but give the plain meaning that the Central Provinces Municipalities Act, 1922, means the Central Provinces Municipalities Act, 1922, and not the Central Provinces and Berar Municipalities Act, 1922. Various taxes must have been imposed by the Municipalities in the Central Provinces by virtue of notifications issued under S. 66 (1) (b) of the Central Provinces Municipalities Act, 1922, and they would fall within the ambit of Item 4. Further if we accept Mr. Guptes argument we will not be giving full effect to the word imposed". This, in our view, means that the taxes which can continue to be levied should have been imposed in the past before the Profession Tax Limitation Act, 1941, came into force. This is in consonance with S. 142 A (2) of the Government of India Act, 1935, which was in the following terms:"142 A (2). The total amount payable in respect of any one person to the Province or to any one municipality, district board, local board, or other local authority in the Province by way of taxes on professions, trades, calling and employments shall not, after the thirty-first day of March nineteen hundred and thirty-nine, exceed fifty rupees per annum :Provided that, if in the financial year ending with that date there was in force in the case of any Province or any such municipality, board or authority a tax on professions, trades, callings or employments the rate, or the maximum rate, of which exceeded fifty rupees per annum, the preceding provisions of this sub-section shall, unless for the time being provision to the contrary is made by a law of the Dominion Legislature, have effect in relation to that Province, municipality, board or authority as if for the reference to fifty rupees per annum there were substituted a reference to that rate or maximum rate, or such lower rate, if any (being a rate greater than fifty rupees per annum), as may for the time being be fixed by a law of the Dominion Legislature; and any law of the Dominion Legislature made for any of the purposes of this proviso may be made either generally or in relation to any specific Provinces, municipalities, boards or authorities.The proviso clearly shows that the section enabled the Dominion Legislature to make a contrary provision if in the financial year ending March 31, 1939, there was in force a tax on professions, trades, callings or employments the rate of which exceeded Rs. 50. The Dominion Legislature could not authorise under the proviso a fresh imposition exceeding Rs. 50.11. In view of our above conclusions it is not necessary to deal with the point whether the word "imposed" in Item 4 of the Schedule to the Profession Tax Limitation Act, 1941, would include "deemed to be imposed" because by virtue of S. 3 of the Berar Laws (Provincial) Act, 1941, the tax would be deemed to be imposed not under the Central Provinces Municipalities Act, 1922, but the Central Provinces and Berar Municipalities Act, 1922.
### Response:
0
### Explanation:
10. In our opinion the High Court came to the correct conclusion. First, Item No. 4 is an exemption from the limitation imposed by S. 2 of the Professions Tax Limitation Act, 1941, and the exemption must be construed strictly. Secondly, the effect of S. 3 and Item 4 of the Schedule is to continue the liviability of a tax and, in our opinion, this item must be construed strictly like a taxing statute. If Mr. Gupte had been able to convince us that the item would be otiose if this interpretation is put there would be something to say in his favour. But the item will not be otiose even if we do not treat Item 4 as a case of misdescription but give the plain meaning that the Central Provinces Municipalities Act, 1922, means the Central Provinces Municipalities Act, 1922, and not the Central Provinces and Berar Municipalities Act, 1922. Various taxes must have been imposed by the Municipalities in the Central Provinces by virtue of notifications issued under S. 66 (1) (b) of the Central Provinces Municipalities Act, 1922, and they would fall within the ambit of Item 4. Further if we accept Mr. Guptes argument we will not be giving full effect to the word imposed". This, in our view, means that the taxes which can continue to be levied should have been imposed in the past before the Profession Tax Limitation Act, 1941, came intothat, if in the financial year ending with that date there was in force in the case of any Province or any such municipality, board or authority a tax on professions, trades, callings or employments the rate, or the maximum rate, of which exceeded fifty rupees per annum, the preceding provisions of this sub-section shall, unless for the time being provision to the contrary is made by a law of the Dominion Legislature, have effect in relation to that Province, municipality, board or authority as if for the reference to fifty rupees per annum there were substituted a reference to that rate or maximum rate, or such lower rate, if any (being a rate greater than fifty rupees per annum), as may for the time being be fixed by a law of the Dominion Legislature; and any law of the Dominion Legislature made for any of the purposes of this proviso may be made either generally or in relation to any specific Provinces, municipalities, boards orproviso clearly shows that the section enabled the Dominion Legislature to make a contrary provision if in the financial year ending March 31, 1939, there was in force a tax on professions, trades, callings or employments the rate of which exceeded Rs. 50. The Dominion Legislature could not authorise under the proviso a fresh imposition exceeding Rs. 50.11. In view of our above conclusions it is not necessary to deal with the point whether the word "imposed" in Item 4 of the Schedule to the Profession Tax Limitation Act, 1941, would include "deemed to be imposed" because by virtue of S. 3 of the Berar Laws (Provincial) Act, 1941, the tax would be deemed to be imposed not under the Central Provinces Municipalities Act, 1922, but the Central Provinces and Berar Municipalities Act, 1922.
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Sunil S/O Shyamlal Kewat (In Jail) Vs. The State of Maharashtra, Thr. P.S.O. P.S. Yashodhara Nagar, Nagpur | upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain. 15. Apart from the above evidence, appellants involvement in this Crime is further established from the evidence of PW-5 Sheikh Riyaz Ahamad Maifuz Ahamad, an independent panch witness, in whose evidence it has come on record that, in his presence, Memorandum Statement of appellant (Exh.43) is recorded on 23.4.2015 wherein he stated to disclose rope concealed on the roof of his house and mobile phone of deceased sold by him to PW-8 Sushila, which is seized under Seizure Panchanama Exh.44. Exh Nos.43 and Exh.44 are proved by him. 16. Thus, from above evidence, recovery of above articles at the instance of appellant is established. Said piece of evidence is worthy to be relied as nothing could be elicited in the crossexamination of PW-5 Sheikh Riyaz. In fact, evidence of PW-8 Sushila corroborates recovery of mobile phone of deceased sold to her by appellant when she has deposed that, on 20.4.2015 i.e. on the following day of incident, which date is very much significant in view of fact that appellant on the following day visited her house at 11.00 a.m. and sold mobile phone of deceased to her for Rs.750/- saying that he was in need of money, which mobile was purchased by PWSushila and three days thereafter, was seized by police from her house which she identified as Article-8 produced before the trial Court. In fact, it has come in her cross-examination that she was knowing appellant even prior to purchase of mobile phone from him as they both belong to same State and used to meet in the market. In the background of above evidence, there is substance in the case of prosecution of appellants selling mobile phone of deceased to PW-8 Sushila and has further established that one Coconut String is discovered at the instance of appellant from the terrace of his house which is seized under Panchanama. In the light of above stated recovery of coconut string, evidence of PW-10 Dr.Sachin Giri would reveal that, on his examining appellant on 27.4.2015, he was informed of strangulation of deceased as she refused to perform sexual act with him and on examining the appellant, he issued Medical Certificate (Exh.55) certifying the appellant to be potent capable of performing sexual intercourse. Said document also refers to rope by which victim is strangulated in the column of history of assault stated to him by the appellant. 17. PW-15 Dr.Harshawardhan Kharate has deposed that he noted 16 external injuries over the body of deceased as mentioned in column 17 of the Post Mortem report which were ante mortem injuries. His evidence would reveal that injuries nos. 1 to 5 mentioned in column no.17 together with corresponding internal injuries mentioned in column no.20 were sufficient to cause death in ordinary course of nature. The cause of death is stated to be due to strangulation. Medical Officer has accordingly proved Post Mortem Report at Exh.81. There is no much dispute about unnatural death of deceased by strangulation as the defence of appellant is of total denial. While in Viscera report of deceased no poison is detected. Evidence of Dr.PW-15 Harshawardhan is material with reference to recovery of coconut rope at the instance of appellant when said article was forwarded to the Medical Officer who, on verifying the same, has opined that the injuries mentioned in Column No.17 are possible by such rope and accordingly, issued Query Report (Exh.82). The above circumstance also points towards involvement of appellant in the present crime. According to C.A. report (Exh.23), rope is of coconut coir. 18. As already stated earlier, case of prosecution is based on circumstantial evidence and on the theory of last seen. There are no eye witnesses to the crime. In a case which rests on circumstantial evidence, the law postulates a twofold requirement. First, every link in the chain of circumstances necessary to establish the guilt of the accused must be established by prosecution beyond reasonable doubt. Second, all the circumstances must be consistent only with the guilt of the accused. In the case of Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116 , it has been observed thus : the normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence. 19. Considering the evidence, thus, prosecution since is found to have established that the appellant was last seen in the company of deceased and since this assumes significance as the time period in between when the accused and deceased were seen together and when the deceased is found dead is minimum thus to exclude the possibility of involvement of any other person responsible to cause death of deceased which leads to the only conclusion that it is the appellant alone who is involved in the present crime. | 0[ds]As such, from his evidence it is to be noted that dead body of deceased was found in the morning on 20.4.2015, at 7.00 a.m. Nothing is brought on record to doubt his evidence in his cross-examination. He has denied suggestion put to him that, in the night of incident, he had not seen appellant talking to deceased Ruksana in her hutThis witness has denied suggestion put to her that, in her presence, appellant had not come to the house of deceased. In view of above discussed evidence, presence of appellant in the house of deceased on the fateful night as stated by PW-1 Sidhartha has been fully corroborated by PW-7 Roshan Parveen on all material aspectsFrom his evidence, it has further come on record that PW-9 Sonu is also working in the same Company where PW-1 Sidhartha is working as a driver and knows appellant since he was working in the same Company as a helper. In that view of the matter, there is nothing to doubt evidence of any of these witnesses on the point of identification of appellant as all of these witnesses were knowing appellant since prior to incident, who was seen in the house of deceased on the fateful night. In fact, it has also come in the crossexamination of PW-9 Sonu that PW-1 Sidhartha is residing in his neighbourhood and there is a pan shop situated in their locality. In view of said fact, there is nothing to disbelieve that PW-1 Sidhartha and PW-9 Sonu were not proceeding together, towards the pan shop and as such, have not witnessed appellant in the house of deceased. In fact, such suggestion put to this witness is denied by PW-9 Sonu12. In the appeal in hand, from the above evidence, it is established that the deceased was in the company of appellant at 11.00 p.m. while her dead body was found lying on the same spot at 7.00 a.m. As such, it can definitely be held that the theory of last seen comes into play in the present case as there is absolutely no long gap between the period when the appellant and deceased Ruksana were last seen alive and when the deceased was found dead. In the absence of any other positive evidence, as such, possibility of some one else committing murder of deceased is totally remote13. We are conscious of the fact that the theory of last seen together itself is not conclusive proof establishing involvement of accused, but other circumstances surrounding the incident like relations between the accused and the deceased, enmity between them, recovery of weapon from the accused, non-explanation of death of deceased by the accused etc. may lead to presumption of guilt. As such, according to the said principles of law, the circumstances of last seen together does not by itself and necessarily lead to inference that it was the accused who committed the crime as there has to be something more establishing connectivity between the accused and the crime. Admittedly, in criminal prosecution initial burden of proof is on the prosecution to bring sufficient evidence pointing towards the guilt of accused. However, in the cases based on theory of last seen together, prosecution is exempted from proving exact happening of the incident as the accused himself would have special knowledge of incident and thus, would have to discharge burden of proof contemplated under Section 106 of the Indian Evidence ActThus, from the evidence referred as above, it is seen that the appellant and deceased were together in the room of deceased. In this view of the matter, Section 106 of the Evidence Act would come into play. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In several recent decisions, the Supreme Court has held that the principles which underline Section 106 of the Evidence Act can be applied in cases where certain facts are especially within the knowledge of a person. In the case of State of Rajasthan vs. Kashi Ram reported in (2006) 12 SCC 254 : AIR 2007 SC 144 , the Supreme Court has observed that if the accused fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain15. Apart from the above evidence, appellants involvement in this Crime is further established from the evidence of PW-5 Sheikh Riyaz Ahamad Maifuz Ahamad, an independent panch witness, in whose evidence it has come on record that, in his presence, Memorandum Statement of appellant (Exh.43) is recorded on 23.4.2015 wherein he stated to disclose rope concealed on the roof of his house and mobile phone of deceased sold by him to PW-8 Sushila, which is seized under Seizure Panchanama Exh.44. Exh Nos.43 and Exh.44 are proved by him16. Thus, from above evidence, recovery of above articles at the instance of appellant is established. Said piece of evidence is worthy to be relied as nothing could be elicited in the crossexamination of PW-5 Sheikh Riyaz. In fact, evidence of PW-8 Sushila corroborates recovery of mobile phone of deceased sold to her by appellant when she has deposed that, on 20.4.2015 i.e. on the following day of incident, which date is very much significant in view of fact that appellant on the following day visited her house at 11.00 a.m. and sold mobile phone of deceased to her for Rs.750/- saying that he was in need of money, which mobile was purchased by PWSushila and three days thereafter, was seized by police from her house which she identified as Article-8 produced before the trial Court. In fact, it has come in her cross-examination that she was knowing appellant even prior to purchase of mobile phone from him as they both belong to same State and used to meet in the market. In the background of above evidence, there is substance in the case of prosecution of appellants selling mobile phone of deceased to PW-8 Sushila and has further established that one Coconut String is discovered at the instance of appellant from the terrace of his house which is seized under Panchanama. In the light of above stated recovery of coconut string, evidence of PW-10 Dr.Sachin Giri would reveal that, on his examining appellant on 27.4.2015, he was informed of strangulation of deceased as she refused to perform sexual act with him and on examining the appellant, he issued Medical Certificate (Exh.55) certifying the appellant to be potent capable of performing sexual intercourse. Said document also refers to rope by which victim is strangulated in the column of history of assault stated to him by the appellantThere is no much dispute about unnatural death of deceased by strangulation as the defence of appellant is of total denial. While in Viscera report of deceased no poison is detected. Evidence of Dr.PW-15 Harshawardhan is material with reference to recovery of coconut rope at the instance of appellant when said article was forwarded to the Medical Officer who, on verifying the same, has opined that the injuries mentioned in Column No.17 are possible by such rope and accordingly, issued Query Report (Exh.82). The above circumstance also points towards involvement of appellant in the present crime. According to C.A. report (Exh.23), rope is of coconut coir18. As already stated earlier, case of prosecution is based on circumstantial evidence and on the theory of last seen. There are no eye witnesses to the crime. In a case which rests on circumstantial evidence, the law postulates a twofold requirement. First, every link in the chain of circumstances necessary to establish the guilt of the accused must be established by prosecution beyond reasonable doubt. Second, all the circumstances must be consistent only with the guilt of the accused19. Considering the evidence, thus, prosecution since is found to have established that the appellant was last seen in the company of deceased and since this assumes significance as the time period in between when the accused and deceased were seen together and when the deceased is found dead is minimum thus to exclude the possibility of involvement of any other person responsible to cause death of deceased which leads to the only conclusion that it is the appellant alone who is involved in the present crime. | 0 | 4,373 | 1,629 | ### 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:
upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain. 15. Apart from the above evidence, appellants involvement in this Crime is further established from the evidence of PW-5 Sheikh Riyaz Ahamad Maifuz Ahamad, an independent panch witness, in whose evidence it has come on record that, in his presence, Memorandum Statement of appellant (Exh.43) is recorded on 23.4.2015 wherein he stated to disclose rope concealed on the roof of his house and mobile phone of deceased sold by him to PW-8 Sushila, which is seized under Seizure Panchanama Exh.44. Exh Nos.43 and Exh.44 are proved by him. 16. Thus, from above evidence, recovery of above articles at the instance of appellant is established. Said piece of evidence is worthy to be relied as nothing could be elicited in the crossexamination of PW-5 Sheikh Riyaz. In fact, evidence of PW-8 Sushila corroborates recovery of mobile phone of deceased sold to her by appellant when she has deposed that, on 20.4.2015 i.e. on the following day of incident, which date is very much significant in view of fact that appellant on the following day visited her house at 11.00 a.m. and sold mobile phone of deceased to her for Rs.750/- saying that he was in need of money, which mobile was purchased by PWSushila and three days thereafter, was seized by police from her house which she identified as Article-8 produced before the trial Court. In fact, it has come in her cross-examination that she was knowing appellant even prior to purchase of mobile phone from him as they both belong to same State and used to meet in the market. In the background of above evidence, there is substance in the case of prosecution of appellants selling mobile phone of deceased to PW-8 Sushila and has further established that one Coconut String is discovered at the instance of appellant from the terrace of his house which is seized under Panchanama. In the light of above stated recovery of coconut string, evidence of PW-10 Dr.Sachin Giri would reveal that, on his examining appellant on 27.4.2015, he was informed of strangulation of deceased as she refused to perform sexual act with him and on examining the appellant, he issued Medical Certificate (Exh.55) certifying the appellant to be potent capable of performing sexual intercourse. Said document also refers to rope by which victim is strangulated in the column of history of assault stated to him by the appellant. 17. PW-15 Dr.Harshawardhan Kharate has deposed that he noted 16 external injuries over the body of deceased as mentioned in column 17 of the Post Mortem report which were ante mortem injuries. His evidence would reveal that injuries nos. 1 to 5 mentioned in column no.17 together with corresponding internal injuries mentioned in column no.20 were sufficient to cause death in ordinary course of nature. The cause of death is stated to be due to strangulation. Medical Officer has accordingly proved Post Mortem Report at Exh.81. There is no much dispute about unnatural death of deceased by strangulation as the defence of appellant is of total denial. While in Viscera report of deceased no poison is detected. Evidence of Dr.PW-15 Harshawardhan is material with reference to recovery of coconut rope at the instance of appellant when said article was forwarded to the Medical Officer who, on verifying the same, has opined that the injuries mentioned in Column No.17 are possible by such rope and accordingly, issued Query Report (Exh.82). The above circumstance also points towards involvement of appellant in the present crime. According to C.A. report (Exh.23), rope is of coconut coir. 18. As already stated earlier, case of prosecution is based on circumstantial evidence and on the theory of last seen. There are no eye witnesses to the crime. In a case which rests on circumstantial evidence, the law postulates a twofold requirement. First, every link in the chain of circumstances necessary to establish the guilt of the accused must be established by prosecution beyond reasonable doubt. Second, all the circumstances must be consistent only with the guilt of the accused. In the case of Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116 , it has been observed thus : the normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence. 19. Considering the evidence, thus, prosecution since is found to have established that the appellant was last seen in the company of deceased and since this assumes significance as the time period in between when the accused and deceased were seen together and when the deceased is found dead is minimum thus to exclude the possibility of involvement of any other person responsible to cause death of deceased which leads to the only conclusion that it is the appellant alone who is involved in the present crime.
### Response:
0
### Explanation:
on the prosecution to bring sufficient evidence pointing towards the guilt of accused. However, in the cases based on theory of last seen together, prosecution is exempted from proving exact happening of the incident as the accused himself would have special knowledge of incident and thus, would have to discharge burden of proof contemplated under Section 106 of the Indian Evidence ActThus, from the evidence referred as above, it is seen that the appellant and deceased were together in the room of deceased. In this view of the matter, Section 106 of the Evidence Act would come into play. Section 106 of the Evidence Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In several recent decisions, the Supreme Court has held that the principles which underline Section 106 of the Evidence Act can be applied in cases where certain facts are especially within the knowledge of a person. In the case of State of Rajasthan vs. Kashi Ram reported in (2006) 12 SCC 254 : AIR 2007 SC 144 , the Supreme Court has observed that if the accused fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain15. Apart from the above evidence, appellants involvement in this Crime is further established from the evidence of PW-5 Sheikh Riyaz Ahamad Maifuz Ahamad, an independent panch witness, in whose evidence it has come on record that, in his presence, Memorandum Statement of appellant (Exh.43) is recorded on 23.4.2015 wherein he stated to disclose rope concealed on the roof of his house and mobile phone of deceased sold by him to PW-8 Sushila, which is seized under Seizure Panchanama Exh.44. Exh Nos.43 and Exh.44 are proved by him16. Thus, from above evidence, recovery of above articles at the instance of appellant is established. Said piece of evidence is worthy to be relied as nothing could be elicited in the crossexamination of PW-5 Sheikh Riyaz. In fact, evidence of PW-8 Sushila corroborates recovery of mobile phone of deceased sold to her by appellant when she has deposed that, on 20.4.2015 i.e. on the following day of incident, which date is very much significant in view of fact that appellant on the following day visited her house at 11.00 a.m. and sold mobile phone of deceased to her for Rs.750/- saying that he was in need of money, which mobile was purchased by PWSushila and three days thereafter, was seized by police from her house which she identified as Article-8 produced before the trial Court. In fact, it has come in her cross-examination that she was knowing appellant even prior to purchase of mobile phone from him as they both belong to same State and used to meet in the market. In the background of above evidence, there is substance in the case of prosecution of appellants selling mobile phone of deceased to PW-8 Sushila and has further established that one Coconut String is discovered at the instance of appellant from the terrace of his house which is seized under Panchanama. In the light of above stated recovery of coconut string, evidence of PW-10 Dr.Sachin Giri would reveal that, on his examining appellant on 27.4.2015, he was informed of strangulation of deceased as she refused to perform sexual act with him and on examining the appellant, he issued Medical Certificate (Exh.55) certifying the appellant to be potent capable of performing sexual intercourse. Said document also refers to rope by which victim is strangulated in the column of history of assault stated to him by the appellantThere is no much dispute about unnatural death of deceased by strangulation as the defence of appellant is of total denial. While in Viscera report of deceased no poison is detected. Evidence of Dr.PW-15 Harshawardhan is material with reference to recovery of coconut rope at the instance of appellant when said article was forwarded to the Medical Officer who, on verifying the same, has opined that the injuries mentioned in Column No.17 are possible by such rope and accordingly, issued Query Report (Exh.82). The above circumstance also points towards involvement of appellant in the present crime. According to C.A. report (Exh.23), rope is of coconut coir18. As already stated earlier, case of prosecution is based on circumstantial evidence and on the theory of last seen. There are no eye witnesses to the crime. In a case which rests on circumstantial evidence, the law postulates a twofold requirement. First, every link in the chain of circumstances necessary to establish the guilt of the accused must be established by prosecution beyond reasonable doubt. Second, all the circumstances must be consistent only with the guilt of the accused19. Considering the evidence, thus, prosecution since is found to have established that the appellant was last seen in the company of deceased and since this assumes significance as the time period in between when the accused and deceased were seen together and when the deceased is found dead is minimum thus to exclude the possibility of involvement of any other person responsible to cause death of deceased which leads to the only conclusion that it is the appellant alone who is involved in the present crime.
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Karnataka Small Scale Industries Development Corporation Ltd Vs. Commissioner of Income Tax, Bangalore | per cent, of its book profit... This measure will yield a revenue gain of approximately Rs. 75 crores.16. In addition, a contemporaneous exposition of the purport of section 115J is contained in Circular No. 495 dated 22nd September 1987 issued by the Central Board of Direct Taxes [Reported in 168 ITR (St.) p.87 at page 111]. The Circular gives explanatory notes on the provisions relating to direct tax in the Finance Act. With reference to section 115J, it was said:"Section 115J, therefore, involves two processes. Firstly, an assessing authority has to determine the income of the company under the provisions of the Income-tax Act. Secondly, the book profit is to be worked out in accordance with the Explanation to section 115J(1) and it is to be seen whether the income determined under the first process is less than 30 per cent of the book profit. Section 115J would be invoked if the income determined under the first process is less than 30 per cent of the book profit. The Explanation to sub-section (1) of section 115J gives the definition of the "book profit" by incorporating the requirement of section 205 of the Companies Act in the computation of the book profit. Brought forward losses or unabsorbed depreciation whichever is less would be reduced in arriving at the book profits. Sub-section (2), however, provides that the application of this provision would not affect the carry forward of unabsorbed depreciation, unabsorbed investment allowance, business losses to the extent not set off, and deduction under section 80J, to the extent not set off as computed under the income-tax Act". 17. The Division Bench of the Andhra Pradesh High Court in Suryalatha Spg. Mills Ltd. (supra) had construed section 115J in favour of the Revenue inter alia because: "the very object of the provision of section 115J is to tax such companies which are making huge profits and also declaring substantial dividends, but are managing their affairs in such a way as to avoid payment of income tax, as a result of various tax concessions and incentives and for that purpose the taxable income is determined under sub-section (1) of section 115J, if any loss equal to the income thus determined is allowed to be adjusted, then that would frustrate and nullify the very object of enacting the provision". The reasoning appears to us to be unexceptionable. 18. In Lallcherra Tea Co. (O) Ltd. vs. Commissioner of Income Taxs 239 ITR 611 relied upon by the appellant, the Guwahati High Court was considering a case of an assessee -company which had filed a return in which the total income computed was less than 30 per cent of its book profit. After computing its book profit, in terms of section 115-J(1), a sum of Rs. 74,477/- was deemed to be the total income chargeable to tax for the assessment year, namely, 1987-88. In the assessment year 1988-89, the company sought to deduct the sum of Rs. 74,477/- rounded off to Rs. 74,450/- from its total income. The Revenue opposed this. The submission of the assessee was that the tax would not have been demanded against the amount which was adjusted. Upsetting the finding of the Tribunal, the Court held in favour of the assessee on the basis of a hypothetical example which, in our view, proceeds on a complete mis-appreciation of section 115-J. 19. The decision of this Court in Madeva Upendra Sinai vs. Union of India (supra) related to the constitutional validity of the Taxation Laws (Extension to Union Territories) (Removal of Difficulties) Order No. 2 of 1970 by which the provisions of the Act were extended with certain amendments to the Union Territories of Goa, Daman and Diu w.e.f. 1st April, 1963. The decision turned on the wording of section 43(6) of the 1961 Act which defines written down value in so far as it is relevant: (a) in the case of assets acquired in the previous year, the actual cost to the assessee;(b) in the case of assets acquired before the previous year, the actual cost to the assessee less all depreciation actually allowed to him under this Act, or under the Indian Income Tax Act, 1922 (11 of 1922), or any Act repealed by that Act, or under any executive orders issued when the Indian Income-tax Act, 1886 (2 of 1886) was in force. 20. Under the laws in force in the former Portuguese territory, no allowance in the nature of depreciation was permitted in computing the gross income. According to the assessees since there was no depreciation allowed under the Portuguese law in the said relevant previous year, it could not be said to have been actually allowed and that, therefore, they were entitled to adjust the entire depreciation in the accounting year. This was more than what was available to assessee who had all along been covered by the 1961 Act. Parity amongst the assessees was sought to be brought about by the impugned Order by providing notional depreciation in prior years for the new assessee. This was held to be unconstitutional. In this context, the Court held that: "... The word depreciation actually allowed in section 43(6)(b) connote depreciation that has actually been taken into account and given effect to by the income tax authorities in the computation of the profits and gains of the business in assessing income tax for earlier years". 21. Since there was no law between the date the territories were merged in India and the date when the Income Tax Act was extended to those territories under which the income of those prior could be computed, there was no question of any depreciation being claimed, allowed or carried forward by the assessee for any year prior to 1963. A similar decision was taken by this Court in Commissioner of Income Tax, Bombay City I V. Dharampur Leather Co. Ltd. (supra). Both decisions are distinguishable since, for the reasons stated we have held that there is no notional but actual deduction in this case. | 0[ds]13. The first stage referred to above envisages computation of income under the Act, that is, after taking into consideration all deductions allowable under the Act. It is only after the deductions are given effect to, and if the resultant income is less than 30 per cent of the book profit, that the assessees total income would be deemed to have a notional income fixed at 30 per cent of its book profit. It may be that the assessees are not required to pay tax on the figure of the assessable income arrived at after deducting the amounts permissible under the Act. However, it cannot be said that therefore the deductions are not taken into account. If the deductions had not in fact been allowed then the assessee would not have had an assessable income lesser than 30 per cent of its book profit, entitling it to pay tax only on 30 per cent of its book profit. In deeming that total income to be 30 per cent of the book profit, the deductions claimed are not ignored as contended by the appellants but are a necessary ingredient of the formula for applying the fictional total income. The decisions cited in the context of the operation of statutory fictions are not apposite as there is no notional or fictional but actual deduction. Once the deductions are taken into consideration and the assessee is put into the category of those companies covered by section 115J(1) only then is the assessee required to pay on a notional income of 30 per cent of its book profits.14. Had sections 115J not been introduced, the assessee would have been entitled under the provisions of section 32(2), 32(A)(3), 72(I)(ii), 73, 74, 74A(3) and 80(J)(3) to carry forward only the unabsorbed depreciation allowance under section 32, investment allowance under section 32-A, losses under sections 72, 72A, 73, 74 and permissible deductions under section 80J to the following assessment year to be set off against the profits and gains of that assessment year. All that section 115-J(2) does is to preserve this right viz. to carry forward the balance of the unabsorbed deductions in the relevant previous year to the next assessment year. Section 115-J does create any right nor does it serve to allow all the deductions taken into consideration for determining whether the total income should be quantified under section 115-J(1), to be carried forward under sub-section 2 of section 115-J. It allows only the unabsorbed losses, depreciation, investment allowance etc. which otherwise could have been carried forward, to be carried forward.Under the laws in force in the former Portuguese territory, no allowance in the nature of depreciation was permitted in computing the gross income. According to the assessees since there was no depreciation allowed under the Portuguese law in the said relevant previous year, it could not be said to have been actually allowed and that, therefore, they were entitled to adjust the entire depreciation in the accounting year. This was more than what was available to assessee who had all along been covered by the 1961 Act. Parity amongst the assessees was sought to be brought about by the impugned Order by providing notional depreciation in prior years for the new assessee. This was held to be unconstitutional.Since there was no law between the date the territories were merged in India and the date when the Income Tax Act was extended to those territories under which the income of those prior could be computed, there was no question of any depreciation being claimed, allowed or carried forward by the assessee for any year prior to 1963. A similar decision was taken by this Court in Commissioner of Income Tax, Bombay City I V. Dharampur Leather Co. Ltd. (supra). Both decisions are distinguishable since, for the reasons stated we have held that there is no notional but actual deduction in this case. | 0 | 3,641 | 739 | ### 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:
per cent, of its book profit... This measure will yield a revenue gain of approximately Rs. 75 crores.16. In addition, a contemporaneous exposition of the purport of section 115J is contained in Circular No. 495 dated 22nd September 1987 issued by the Central Board of Direct Taxes [Reported in 168 ITR (St.) p.87 at page 111]. The Circular gives explanatory notes on the provisions relating to direct tax in the Finance Act. With reference to section 115J, it was said:"Section 115J, therefore, involves two processes. Firstly, an assessing authority has to determine the income of the company under the provisions of the Income-tax Act. Secondly, the book profit is to be worked out in accordance with the Explanation to section 115J(1) and it is to be seen whether the income determined under the first process is less than 30 per cent of the book profit. Section 115J would be invoked if the income determined under the first process is less than 30 per cent of the book profit. The Explanation to sub-section (1) of section 115J gives the definition of the "book profit" by incorporating the requirement of section 205 of the Companies Act in the computation of the book profit. Brought forward losses or unabsorbed depreciation whichever is less would be reduced in arriving at the book profits. Sub-section (2), however, provides that the application of this provision would not affect the carry forward of unabsorbed depreciation, unabsorbed investment allowance, business losses to the extent not set off, and deduction under section 80J, to the extent not set off as computed under the income-tax Act". 17. The Division Bench of the Andhra Pradesh High Court in Suryalatha Spg. Mills Ltd. (supra) had construed section 115J in favour of the Revenue inter alia because: "the very object of the provision of section 115J is to tax such companies which are making huge profits and also declaring substantial dividends, but are managing their affairs in such a way as to avoid payment of income tax, as a result of various tax concessions and incentives and for that purpose the taxable income is determined under sub-section (1) of section 115J, if any loss equal to the income thus determined is allowed to be adjusted, then that would frustrate and nullify the very object of enacting the provision". The reasoning appears to us to be unexceptionable. 18. In Lallcherra Tea Co. (O) Ltd. vs. Commissioner of Income Taxs 239 ITR 611 relied upon by the appellant, the Guwahati High Court was considering a case of an assessee -company which had filed a return in which the total income computed was less than 30 per cent of its book profit. After computing its book profit, in terms of section 115-J(1), a sum of Rs. 74,477/- was deemed to be the total income chargeable to tax for the assessment year, namely, 1987-88. In the assessment year 1988-89, the company sought to deduct the sum of Rs. 74,477/- rounded off to Rs. 74,450/- from its total income. The Revenue opposed this. The submission of the assessee was that the tax would not have been demanded against the amount which was adjusted. Upsetting the finding of the Tribunal, the Court held in favour of the assessee on the basis of a hypothetical example which, in our view, proceeds on a complete mis-appreciation of section 115-J. 19. The decision of this Court in Madeva Upendra Sinai vs. Union of India (supra) related to the constitutional validity of the Taxation Laws (Extension to Union Territories) (Removal of Difficulties) Order No. 2 of 1970 by which the provisions of the Act were extended with certain amendments to the Union Territories of Goa, Daman and Diu w.e.f. 1st April, 1963. The decision turned on the wording of section 43(6) of the 1961 Act which defines written down value in so far as it is relevant: (a) in the case of assets acquired in the previous year, the actual cost to the assessee;(b) in the case of assets acquired before the previous year, the actual cost to the assessee less all depreciation actually allowed to him under this Act, or under the Indian Income Tax Act, 1922 (11 of 1922), or any Act repealed by that Act, or under any executive orders issued when the Indian Income-tax Act, 1886 (2 of 1886) was in force. 20. Under the laws in force in the former Portuguese territory, no allowance in the nature of depreciation was permitted in computing the gross income. According to the assessees since there was no depreciation allowed under the Portuguese law in the said relevant previous year, it could not be said to have been actually allowed and that, therefore, they were entitled to adjust the entire depreciation in the accounting year. This was more than what was available to assessee who had all along been covered by the 1961 Act. Parity amongst the assessees was sought to be brought about by the impugned Order by providing notional depreciation in prior years for the new assessee. This was held to be unconstitutional. In this context, the Court held that: "... The word depreciation actually allowed in section 43(6)(b) connote depreciation that has actually been taken into account and given effect to by the income tax authorities in the computation of the profits and gains of the business in assessing income tax for earlier years". 21. Since there was no law between the date the territories were merged in India and the date when the Income Tax Act was extended to those territories under which the income of those prior could be computed, there was no question of any depreciation being claimed, allowed or carried forward by the assessee for any year prior to 1963. A similar decision was taken by this Court in Commissioner of Income Tax, Bombay City I V. Dharampur Leather Co. Ltd. (supra). Both decisions are distinguishable since, for the reasons stated we have held that there is no notional but actual deduction in this case.
### Response:
0
### Explanation:
13. The first stage referred to above envisages computation of income under the Act, that is, after taking into consideration all deductions allowable under the Act. It is only after the deductions are given effect to, and if the resultant income is less than 30 per cent of the book profit, that the assessees total income would be deemed to have a notional income fixed at 30 per cent of its book profit. It may be that the assessees are not required to pay tax on the figure of the assessable income arrived at after deducting the amounts permissible under the Act. However, it cannot be said that therefore the deductions are not taken into account. If the deductions had not in fact been allowed then the assessee would not have had an assessable income lesser than 30 per cent of its book profit, entitling it to pay tax only on 30 per cent of its book profit. In deeming that total income to be 30 per cent of the book profit, the deductions claimed are not ignored as contended by the appellants but are a necessary ingredient of the formula for applying the fictional total income. The decisions cited in the context of the operation of statutory fictions are not apposite as there is no notional or fictional but actual deduction. Once the deductions are taken into consideration and the assessee is put into the category of those companies covered by section 115J(1) only then is the assessee required to pay on a notional income of 30 per cent of its book profits.14. Had sections 115J not been introduced, the assessee would have been entitled under the provisions of section 32(2), 32(A)(3), 72(I)(ii), 73, 74, 74A(3) and 80(J)(3) to carry forward only the unabsorbed depreciation allowance under section 32, investment allowance under section 32-A, losses under sections 72, 72A, 73, 74 and permissible deductions under section 80J to the following assessment year to be set off against the profits and gains of that assessment year. All that section 115-J(2) does is to preserve this right viz. to carry forward the balance of the unabsorbed deductions in the relevant previous year to the next assessment year. Section 115-J does create any right nor does it serve to allow all the deductions taken into consideration for determining whether the total income should be quantified under section 115-J(1), to be carried forward under sub-section 2 of section 115-J. It allows only the unabsorbed losses, depreciation, investment allowance etc. which otherwise could have been carried forward, to be carried forward.Under the laws in force in the former Portuguese territory, no allowance in the nature of depreciation was permitted in computing the gross income. According to the assessees since there was no depreciation allowed under the Portuguese law in the said relevant previous year, it could not be said to have been actually allowed and that, therefore, they were entitled to adjust the entire depreciation in the accounting year. This was more than what was available to assessee who had all along been covered by the 1961 Act. Parity amongst the assessees was sought to be brought about by the impugned Order by providing notional depreciation in prior years for the new assessee. This was held to be unconstitutional.Since there was no law between the date the territories were merged in India and the date when the Income Tax Act was extended to those territories under which the income of those prior could be computed, there was no question of any depreciation being claimed, allowed or carried forward by the assessee for any year prior to 1963. A similar decision was taken by this Court in Commissioner of Income Tax, Bombay City I V. Dharampur Leather Co. Ltd. (supra). Both decisions are distinguishable since, for the reasons stated we have held that there is no notional but actual deduction in this case.
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Shamrao Vishnu Parulekar Vs. The District Magistrate, Thana(And Connected Petition) | sense from that which it bears in another part of an Act. (Statute Law, Edn.5, P.159). And Maxwell, on whose statement of the law the petitioners rely. observes further on:"But the presumption is not of much weight. The same word may be used in different senses in the same statute, and even in the same section." (Interpretation of Statutes, page 322).6. Examining the two provisions in their context, it will be seen that Section 3 (1) confers on the Central Govt. and the State Govt. the power to pass an order of detention, when the grounds mentioned in that sub-clause exist. When an order is made under this provision, the right of the detenu under S.7 is to be informed of the grounds of detention, as soon as may be, and that is to enable him to make a representation against that order, which is a fundamental right guaranteed under Article 22 (5). Coming next to S. 3 (2), it provides for the power which is conferred on the State Govt. under S.3 (1) being exercised by certain authorities with reference to the matters specified therein. This being a delegation of the power conferred on the State Govt. under S.3 (1), with a view to ensure that the delegate acts within his authority and fairly and properly and that the State exercises due and effective control and supervision over him, S.3 (3) enacts a special procedure to be observed when action is taken under S.3 (2). The authority making the order under S.3 (2) is accordingly required to report the fact of the order forthwith to the State along with the grounds therefor, and if the State does not approve of the order within twelve days, it is automatically to lapse.These provisions are intended to regulate the course of business between the State Government and the authorities subordinate to it exercising its power under statutory delegation; and their scope is altogether different from that of S. 7 which deals with the right of the detenu as against the State Government and its subordinate authorities. S.3 (3) requires the authority do communicate the grounds of its order to the State Government, so that the latter might satisfy itself whether detention should be approved. S. 7 requires the statement of grounds to be sent to the detenu, so that he might make a representation against the order. The purpose of the two sections is so different that it cannot be presumed that the expression "the grounds on which the order has been made" is used in S.3 (3) in the same sense which it bears in S.7.7. That the legislature could not have contemplated that the grounds mentioned in S.3(3) should be identical with those referred to in S.7 could also be seen from the fact thatwhereas under S.7(2) it is open to the authority not to disclose to the detenu facts if it considers that it would he against public interests so to do, it is these facts that will figure prominently in a report by the subordinate authority to the State Govt. S.3(3), and form the basis for approval. If the grounds which are furnished under S. 3(3) could contain matters which need not be communicated to the detenu under S.7, the expression. "grounds on which the order has been made" cannot bear the same meaning in both the sections.8. There is also another reason in support of this conclusion. When the authority mentioned in S. 3(2) decides on a consideration of the materials placed before it, to act under that section and orders detention, it is required by S .3 (3) to report that fact with the grounds therefor to the State Government,forthwith. But under S. 7, the duty of the authority is to communicate the grounds to the detenu,as soon as may be. Now, it has been held that as the object of this provision is to give the detenu an opportunity to make a representation against the order, the grounds must be sufficiently definite and detailed to enable him to do so. It is obvious that the communication that has to be served on the detenu under S. 7 of the Act is a formal document setting out the grounds for the order and the particulars in support thereof, subject, of course, to S.7(2); whereas the report to the State under S.3(3) is a less formal document in the nature of a confidential inter-departmental communication, which is to contain the particulars on which the order was made. It could not have been intended that the contents of the two communications which are so dissimilar in their scope and intendment should be identical.9. Mr. N. C. Chatterjee also cited certain observations of Kania C. J. in State of Bombay v. Atma Ram Sridhar Vaidya,1951 S C 167 at p.178: (AIR 1951 S C 157 at p. 161) (A) as supporting his contention that the grounds which are furnished to the detenu must have been before the Sate Government before it approves of the order. Said the learned Chief Justice:"It is obvious that the grounds for making the order as mentioned above, are the grounds on which the detaining authority was satisfied that it was necessary to make the order. These grounds therefore must be in existence when the order is made."But the grounds referred to in the above passages are the reasons for making the order, not the formal expressions in which they are embodied, and that will be clear from the following observation further on:"By their very nature the grounds are conclusions of facts and not a complete detailed recital of all the facts."10. Our conclusion is that the failure on the part of the District Magistrate of Thana to send along with his report under S.3(3), the very grounds which he subsequently communicated to the detenu under S.7 is not a breach of the requirements of that sub-section, and that it was sufficiently complied with when he reported the materials on which he made the order. | 0[ds]communication further states that it is not in the public interests to disclose further facts. Reading the communication as whole, we are of opinion that it is sufficiently definite to apprise the petitioners of what they were charged with and to enable them to give their explanation therefor. That was the view taken by Chagla C. J. in the applications for habeas corpus, which the petitioners moved in the High Court of Bombay under Act: 226 of the Constitution, and we are in agreement with it. The complaint that the grounds are vague must thereforeOxford Concise Dictionary gives the following meanings to the word "ground": Base, foundation, motive, valid reason. On this definition, the materials on which the District Magistrate considered that an order of detention should be made could properly be described as groundsrule of construction contended for by the petitioners is well-settled, but that is only one element in deciding what the true import of the enactment is, to ascertain which it is necessary to have regard to the purpose behind the particular provision, and its setting in the scheme of the statute. "The presumption," says Craies, "that the same words are used in the same meaning is however very slight, and it is proper if sufficient reason can he assigned, to construe a word in one part of an Act in a different sense from that which it bears in another part of an Act. (Statute Law, Edn.5,is obvious that the communication that has to be served on the detenu under S. 7 of the Act is a formal document setting out the grounds for the order and the particulars in support thereof, subject, of course, to S.7(2); whereas the report to the State under S.3(3) is a less formal document in the nature of a confidential inter-departmental communication, which is to contain the particulars on which the order was made. It could not have been intended that the contents of the two communications which are so dissimilar in their scope and intendment should beconclusion is that the failure on the part of the District Magistrate of Thana to send along with his report under S.3(3), the very grounds which he subsequently communicated to the detenu under S.7 is not a breach of the requirements of that sub-section, and that it was sufficiently complied with when he reported the materials on which he made the order. | 0 | 2,924 | 452 | ### Instruction:
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sense from that which it bears in another part of an Act. (Statute Law, Edn.5, P.159). And Maxwell, on whose statement of the law the petitioners rely. observes further on:"But the presumption is not of much weight. The same word may be used in different senses in the same statute, and even in the same section." (Interpretation of Statutes, page 322).6. Examining the two provisions in their context, it will be seen that Section 3 (1) confers on the Central Govt. and the State Govt. the power to pass an order of detention, when the grounds mentioned in that sub-clause exist. When an order is made under this provision, the right of the detenu under S.7 is to be informed of the grounds of detention, as soon as may be, and that is to enable him to make a representation against that order, which is a fundamental right guaranteed under Article 22 (5). Coming next to S. 3 (2), it provides for the power which is conferred on the State Govt. under S.3 (1) being exercised by certain authorities with reference to the matters specified therein. This being a delegation of the power conferred on the State Govt. under S.3 (1), with a view to ensure that the delegate acts within his authority and fairly and properly and that the State exercises due and effective control and supervision over him, S.3 (3) enacts a special procedure to be observed when action is taken under S.3 (2). The authority making the order under S.3 (2) is accordingly required to report the fact of the order forthwith to the State along with the grounds therefor, and if the State does not approve of the order within twelve days, it is automatically to lapse.These provisions are intended to regulate the course of business between the State Government and the authorities subordinate to it exercising its power under statutory delegation; and their scope is altogether different from that of S. 7 which deals with the right of the detenu as against the State Government and its subordinate authorities. S.3 (3) requires the authority do communicate the grounds of its order to the State Government, so that the latter might satisfy itself whether detention should be approved. S. 7 requires the statement of grounds to be sent to the detenu, so that he might make a representation against the order. The purpose of the two sections is so different that it cannot be presumed that the expression "the grounds on which the order has been made" is used in S.3 (3) in the same sense which it bears in S.7.7. That the legislature could not have contemplated that the grounds mentioned in S.3(3) should be identical with those referred to in S.7 could also be seen from the fact thatwhereas under S.7(2) it is open to the authority not to disclose to the detenu facts if it considers that it would he against public interests so to do, it is these facts that will figure prominently in a report by the subordinate authority to the State Govt. S.3(3), and form the basis for approval. If the grounds which are furnished under S. 3(3) could contain matters which need not be communicated to the detenu under S.7, the expression. "grounds on which the order has been made" cannot bear the same meaning in both the sections.8. There is also another reason in support of this conclusion. When the authority mentioned in S. 3(2) decides on a consideration of the materials placed before it, to act under that section and orders detention, it is required by S .3 (3) to report that fact with the grounds therefor to the State Government,forthwith. But under S. 7, the duty of the authority is to communicate the grounds to the detenu,as soon as may be. Now, it has been held that as the object of this provision is to give the detenu an opportunity to make a representation against the order, the grounds must be sufficiently definite and detailed to enable him to do so. It is obvious that the communication that has to be served on the detenu under S. 7 of the Act is a formal document setting out the grounds for the order and the particulars in support thereof, subject, of course, to S.7(2); whereas the report to the State under S.3(3) is a less formal document in the nature of a confidential inter-departmental communication, which is to contain the particulars on which the order was made. It could not have been intended that the contents of the two communications which are so dissimilar in their scope and intendment should be identical.9. Mr. N. C. Chatterjee also cited certain observations of Kania C. J. in State of Bombay v. Atma Ram Sridhar Vaidya,1951 S C 167 at p.178: (AIR 1951 S C 157 at p. 161) (A) as supporting his contention that the grounds which are furnished to the detenu must have been before the Sate Government before it approves of the order. Said the learned Chief Justice:"It is obvious that the grounds for making the order as mentioned above, are the grounds on which the detaining authority was satisfied that it was necessary to make the order. These grounds therefore must be in existence when the order is made."But the grounds referred to in the above passages are the reasons for making the order, not the formal expressions in which they are embodied, and that will be clear from the following observation further on:"By their very nature the grounds are conclusions of facts and not a complete detailed recital of all the facts."10. Our conclusion is that the failure on the part of the District Magistrate of Thana to send along with his report under S.3(3), the very grounds which he subsequently communicated to the detenu under S.7 is not a breach of the requirements of that sub-section, and that it was sufficiently complied with when he reported the materials on which he made the order.
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communication further states that it is not in the public interests to disclose further facts. Reading the communication as whole, we are of opinion that it is sufficiently definite to apprise the petitioners of what they were charged with and to enable them to give their explanation therefor. That was the view taken by Chagla C. J. in the applications for habeas corpus, which the petitioners moved in the High Court of Bombay under Act: 226 of the Constitution, and we are in agreement with it. The complaint that the grounds are vague must thereforeOxford Concise Dictionary gives the following meanings to the word "ground": Base, foundation, motive, valid reason. On this definition, the materials on which the District Magistrate considered that an order of detention should be made could properly be described as groundsrule of construction contended for by the petitioners is well-settled, but that is only one element in deciding what the true import of the enactment is, to ascertain which it is necessary to have regard to the purpose behind the particular provision, and its setting in the scheme of the statute. "The presumption," says Craies, "that the same words are used in the same meaning is however very slight, and it is proper if sufficient reason can he assigned, to construe a word in one part of an Act in a different sense from that which it bears in another part of an Act. (Statute Law, Edn.5,is obvious that the communication that has to be served on the detenu under S. 7 of the Act is a formal document setting out the grounds for the order and the particulars in support thereof, subject, of course, to S.7(2); whereas the report to the State under S.3(3) is a less formal document in the nature of a confidential inter-departmental communication, which is to contain the particulars on which the order was made. It could not have been intended that the contents of the two communications which are so dissimilar in their scope and intendment should beconclusion is that the failure on the part of the District Magistrate of Thana to send along with his report under S.3(3), the very grounds which he subsequently communicated to the detenu under S.7 is not a breach of the requirements of that sub-section, and that it was sufficiently complied with when he reported the materials on which he made the order.
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In Re: Vs. Cadbury India Limited | general principles of universal application in such matters. 7.1.1. Section 100 requires three things: that (1) the Articles of Association of the company must permit such a reduction of share capital; (2) the scheme for reduction must be approved as a special resolution, i.e., at an extraordinary general meeting called for that purpose; and (3) the Courts sanction must be obtained to such a resolution, if passed by the requisite majority. 7.1.2. In considering the application for sanction, the Court must ensure that (1) the scheme is not against the public interest; (2) the scheme is fair and just, and not unreasonable; and (3) the scheme does not unfairly discriminate against or prejudice a class of shareholders. 7.1.3. Prejudice here must mean something more than just receiving less than what a particular shareholder may desire. It means a concerted attempt to force a class of shareholders to divest themselves of their holdings at a rate far below what is reasonable, fair and just. Prejudice in this context must connote a form of discrimination, a stratagem by which an entire class is forced to accept something that is inherently unjust. 7.1.4. One test of such reasonableness might be to consider the past open offers, extinguishments or buy-backs, and the rate at which these were effected. Where it is found, for instance, that the present offer is significantly higher than previous ones, the burden on an objector is exponentially higher to show that even this enhanced rate, price or valuation is unfair or unreasonable. 7.1.5. Before a Court can decline sanction to a scheme on account of a valuation, an objector to the scheme must first show that the valuation is ex-facie unreasonable, i.e., so unreasonable that it cannot on the face of it be accepted. That unreasonableness must exist on the face of the valuation: one so apparent that he who runs can read. To upset a valuation, a wrong approach must be demonstrated clearly and unequivocally, and the result must be plainly invidious. A plausible rationale provided by a valuer is not be readily discarded merely because an objector has a different point of view. 7.1.6. In considering an application for sanction will ask itself if, at a minimum, these tests are met: Is a fair and reasonable value being offered to the minority shareholders Have the majority of non-promoter shareholders voted in favour of the resolution Can it be said, on reading a valuation as any fair-minded and reasonable person would do, and without microscopic scrutiny, that the valuation is so egregiously wrong that the judicial conscience will not permit it Has the valuer gone so far off-track that the results his valuation returns cannot but be wrong 7.1.7. A court called upon to sanction such a scheme is not bound by the ipse dixit of a majority. It must weigh the scheme and look at it from all angles. It must see whether the scheme is fair, just and reasonable, not unconscionable and is not contrary to any provisions of law and it does not violate any public policy. But it must also balance the commercial wisdom of the shareholders expressed at a properly convened meeting against the desires and fancies of the few. The court will take into account, but not be bound by, the views of the majority. In particular, the court will see what the views are of most of the non-promoter (minority) shareholders at the meeting. If the bulk of them have voted in favour, the court will not lightly disregard this expression of an informed view, one that lies in the domain of corporate strategy and commercial wisdom. 7.1.8. The unfairness must apply to a class, even if that class is of one. This class is not to be identified not by a shared ire against the petitioning company or even an ideological animosity, but by the character or nature of their holding, and by the way that class is sought to be singled out for differential, unfair treatment. 7.1.9. The sanctioning court has no power or jurisdiction to exercise any appellate functions over the scheme. It is not a valuer. It does not have the necessary skills or expertise. It cannot substitute its own opinion for that of the shareholders. Its jurisdiction is peripheral and supervisory, not appellate. The Court is not a carping critic, a hair-splitting expert, a meticulous accountant or a fastidious counsel; the effort is not to emphasize the loopholes, technical mistakes and accounting errors. 7.1.10. Valuation is not an exact science. Far from it. It is always and only an estimation, a best-judgment assessment. The fact that a particular estimation might not catch an objectors fancy is no ground to discredit it. All valuations proceed on assumptions. To dislodge a valuation, it must be shown that those assumptions are such as could never have been made, and that they are so patently erroneous that the end result itself could not but be wrong, unfair and unreasonable. The court must not venture into the realm of convoluted analysis, extrapolation, and taking on itself an accounting burden that is no part of its remit or expertise, and no part of a statutory obligation. In particular, the court must guard against the seductiveness of a proposition that suffers from the fallacy of the undistributed middle: all x is z; some y is z; ergo, all y is z.6 The errors and consequent unreasonableness must be shown to be patent and self-evident. 7.1.11. It is impossible to say which of several available valuation models are best or most appropriate. In a given case, the CCM method may be more accurate; in another, the DCF model. There are yet others. No valuation is to be disregarded merely because it has used one or the other of various methods. It must be shown that the chosen method of valuation is such as has resulted in an artificially depressed or contrived valuation well below what a fair-minded person may consider reasonable. 8 SECTION 8: CONCLUSIONS | 1[ds]It seems to me logical to first consider the settled law on the appropriate judicial approach in such cases. It is only if the objectors fall within those well-defined parameters that their objections can be considered. It is not any and every objection, irrespective of whether it has any basis in fact or justification in law that a Court must uphold.4.2. The decision of a Division Bench of this Court in Sandvik Asia Limited vs. Bharat Kumar Padamsi&Ors.2009 (3) Bom CR 57, relied on by Mr. Dwarkadas, is perhaps a fitting starting point. For not only was the situation before the Court in Sandvik very like the present one, but it considered at least four of the decisions separately cited by Mr. Samant in his written submissions: British American Trustee & Finance Corporation Ltd. & Reduced vs. John Couper, 1894 A.C. 399 (H.L.) Poole &Ors vs. National Bank of China, (1907) A.C. 229 (H.L.) In Re: Elpro International Ltd.,2008 (86) SCL 47 (Bom) : [2009] 149 Company Cases 646 (Bom.) and In Re Reckitt Benckiser (India) Ltd.122 (2005) DLT 612 4.3. In Sandvik, a petition was filed seeking the Courts sanction to a special resolution for reduction in its share capital passed by the members of the appellant-company at an extraordinary general meeting. The resolution was that the share capital of the company would be reduced by paying off or returning to non-promoter equity shareholders an amount of Rs. 850/- per share, of which Rs. 750/- was a premium. That petition, like this one, was filed under Section 100 of the Companies Act, 1956. The petition was opposed. The objectors were non-promoter shareholders. The learned Single Judge declined to sanction the resolution. The company appealed. In appeal it was pointed out, inter alia, that the special resolution was passed by an overwhelming majority of 99.05% of the votes polled of the equity shareholders present and voting, and that only about 0.05% of the votes polled were against the special resolution. Sandvik Asia, like Cadbury India, was de-listed from both stock exchanges. The result was that its shares, like Cadbury Indias, were not freely traded. Sandvik Asia provided an exit option to non-promoter equity shareholders (the price of Rs. 850/- per share) and this was much higher than the book value of the shares at the relevant time. After noting the rival submissions, the Division Bench held that it is permissible for a company applying under Section 100 to reduce its share capital in any way. In that case too, as in the present case, there was no argument that the special resolution at the extraordinary general meeting was invalidated for any reason or that did not comply with the statutorily mandated procedure. There was also no argument that the articles of association prohibited such a share capital reduction. The issue before the Court was whether the proposed scheme had the effect of wiping out entirely a class of shareholders, namely, the non-promoter shareholders, though on payment of certain compensation.4.4. The Sandvik Division Bench held itself to be bound by the decision of the Supreme Court in Ramesh B. Desai &Ors. vs. Bipin Vadilal Mehta &Ors.:(2006) 5 SCC 638 , paragraph 11 In paragraph 9 of Sandvik, the Division Bench held:9. In our opinion, the above quoted observations of the House of Lords from its judgment in the case of Poole &Ors, referred to above, squarely apply to the present case. In our opinion once it is established that non-promoter shareholders are being paid fair value of their shares, at no point of time it is even suggested by them that the amount that is being paid is any way less and that even overwhelming majority of the non-promoter shareholders having voted in favour of the resolution shows that the Court will not be justified in withholding its sanction to the resolution. As the Supreme Court has recognised that the judgment of the House of Lords in the case of British & American Trustee and Finance Corporation Ltd. is a leading judgment on the subject, we are justified in considering ourselves bound by the law laid down in that judgment. As we find that there is similarity in the facts in which the observations were made in the judgment in the case of British & American Trustee and Finance Corporation, we will be well advised to follow the law laid down in that case. In our opinion, therefore, the learned single Judge was in error in declining to grant sanction to the special resolution.4.5. The Supreme Court decision in Ramesh B. Desai followed the decision of the House of Lords in British & American Trustee and Finance Corporation Ltd. (Supra) Paragraph 11 of Ramesh B. Desai reads:11. The vexed question of the legality of the purchase by a limited company of its won shares was set at rest by the decision of the House of Lords in (Trevor Vs. Whitworth), 1887 (12) AC 409, since which it has been clear law that a limited company cannot purchase its own shares except by way of reduction of capital with the sanction of the court. (See Buckley on the Companies Act, 14 the Edn. p. 1499.) In the same decision it was also held that even express authority to the contrary in the memorandum is unavailing. The main reasons for this prohibition were that such a purchase could either amount to trafficking in its own shares, thereby enabling the Company in an unhealthy manner to influence the price of its own shares on the market, or it would operate as a reduction of capital which can only be effected with the sanction of the Court and in the manner laid down in the statute (see Palmers Company Law, 23rd Edn. p. 440), in Guide to the Companies Act by A. Ramaiya (16th Edn., 951) apart from Trevor Vs. Withworth, British & American Trustee and Finance Corporation Vs. Couper, 1894 AC 399 has also been referred to as a leading authority on the subject....4.6. The Division Bench in Sandvik held that the Supreme Court decision in Ramesh B. Desai was on point and binding. The appeal was allowed.4.7. Carefully read, these decisions seem to me to suggest that before a Court can decline sanction to a scheme on account of a valuation, an objector to the scheme must first show that the valuation is ex-facie unreasonable, i.e., so unreasonable that it cannot on the face of it be accepted; alternatively, that it is discriminatory; or that it has not been approved by a sufficient majority or, at a minimum, that a substantial number or percentage voted against it at an extraordinary general meeting. None of these are demonstrated in the present case. What the Samant Group suggests is, quite simply, that there are other possible methods of valuing Cadbury Indias shares; that the present values are not to their liking; that it matters not that they constitute a miniscule fraction of the non-promoter shareholders, and, too, a very small percentage of those who voted against; and that it is entirely irrelevant that a overwhelming majority of non-promoter shareholders voted in favour of the special resolution. By an extension of this reasoning, every single shareholder can hold to ransom the collective wisdom of shareholders expressed in a properly called, convened and conducted extraordinary general meeting. That cannot possibly be the purpose, ambit or conspectus of Section 100 of the Companies Act, 1956. Were these submissions to be accepted, the entirety of Section 100 might be rendered a dead letter:100. Special resolution for reduction of share capital.(1) Subject to confirmation by the Court, a company limited by shares or a company limited by guarantee and having a share capital, may, if so authorised by its articles, by special resolution, reduce its share capital in any way; and in particular and without prejudice to the generality of the foregoing power, may(a) extinguish or reduce the liability on any of its shares in respect of share capital not paid up;(b) either with or without extinguishing or reducing liability on any of its shares, cancel any paid-up share capital which is lost, or is unrepresented by available assets; or(c) either with or without extinguishing or reducing liability on any of its shares, pay off any paid-up share capital which is in excess of the wants of the company; and may, if and so far as is necessary, alter its memorandum by reducing the amount of its share capital and of its shares accordingly.(2) A special resolution under this section is in this Act referred to as a resolution for reducing share capital.4.8. On a plain reading of the statutory provision, the basic requirements of Section 100 are that (1) the Articles of Association of the company must permit such a reduction of share capital; (2) the scheme for reduction must be approved as a special resolution, i.e., at an extraordinary general meeting called for that purpose; and (3) the Courts sanction must be obtained to such a resolution, if passed by the requisite majority. Now the third requirement has this trifecta, albeit not expressly stated: viz., to ensure that (1) the scheme is not against the public interest; (2) the scheme is fair and just; and (3) the scheme does not unfairly discriminate against or prejudice a class of shareholders. Prejudice here must mean something more than just receiving less than what a particular shareholder may desire in an ideal world. It does not mean merely a lower rate-per-share than the shareholder wants. It means a deliberate and studied attempt to force a class of shareholders to divest themselves of their holding at a rate far below what is reasonable, fair and just. One test of such reasonableness might be to consider the rate of any past open offers, extinguishments or buy-backs. Are these rates much higher than the one now proposed Does the present valuation posit a rate that is so egregiously low that a shareholder might receive a mere pittance4.9. The section plainly says a company may reduce its capital in any way. In the Sandvik appeal, it was argued that the legislative mandate is directed towards preventing the forced acquisition of shares of the public or the extinguishment of the entire class of public shareholding by use of the brute force of the promoter majority shareholding. But what if the majority is that of the non-promoters The binding decision of the Division Bench in Sandvik deals with precisely this situation when it says that:... once it is established that non-promoter shareholders are being paid fair value of their shares, at no point of time it is even suggested by them that the amount that is being paid is any way less and that even overwhelming majority of the non-promoter shareholders having voted in favour of the resolution shows that the Court will not be justified in withholding its sanction to the resolution.4.10. The word less here cannot possibly mean less than what a minority shareholder fancies. It must mean, and mean only, less than what the Court feels reasonable. Therefore, the Court in considering an application for sanction will ask itself if the valuation is fair; if this fair value is being offered to the minority shareholders; and will also test if, on facts, a majority of non-promoter shareholders have voted in favour of the resolution.4.11. Now in the present case, although an attempt is made to show that the compensation, i.e., the valuation, is per se unfair, incorrect or unreasonable, in fact what is being suggested is that non-promoter shareholders are being discriminated against. Yet, in the present case, nobody suggests that promoter shareholders, or the non-promoters who voted in favour, or any other class of shareholder have got a better deal than any of the objectors. They are not in any way being paid or offered any less. An overwhelming majority of the non-promoter shareholders have already voted in favour of the resolution: there were 7,51,120 non- promoter shares represented at the meeting. Those against held only 12,784 shares. In such a situation, following Sandvik, a court would not be justified in withholding its sanction.4.14. I believe Mr. Samants submission to be entirely unfounded. It is nobodys suggestion that the mere ipse dixit of the majority will dictate the hand of the Court. But in assessing whether the scheme is fair, just and reasonable, the Court must have regard to both the terms of these scheme as also to the informed decision taken by the majority of the shareholders. When such a scheme is assessed, there must be cogent, clear and unambiguous material to show that the scheme is inherently unjust or unreasonable. A sanctioning court is not an appellate body. It will not and cannot substitute its own view, however strongly held, for the collective, commercial wisdom of the voting members.4.15. The only decision cited by Mr. Samant on behalf of the Samant Group in Court was that of the Supreme Court in Dr. Mrs. Renuka Datla vs. Solvay Pharmaceutical B.V. &Ors. (Supra) To my mind, this decision does not support a single one of Mr. Samants submissions. To the contrary: it elucidates certain fundamental principles, the first of which is that to upset a valuation, a wrong approach must be demonstrated clearly and unequivocally. A plausible rationale provided by the valuer is not be readily discarded merely because an objector has a different point of view. What is to be borne in mind is that as a result of Court-ordered valuation, the objectors today have a significantly higher valuation than originally proposed. Cadbury India has not challenged the Court-ordered valuation. It has accepted it. Whether the increase is due to altered parameters and considerations or different methodologies makes little difference. Indeed I would venture to suggest that the Samant Group has, in a manner of speaking, run itself onto its own sword. Every single one of the charges that it levels against the E & Y reports could conceivably be levelled by Cadbury India against the report that the Samant Group claims to have independently obtained.4.16. In its compilation of judgments the objectors have report to the following decisions never cited in Court. The Petitioners counsel had no opportunity to deal with the objectors submissions on these: Miheer H. Mafatlal vs. Mafatlal Industries Ltd.1, Re: Alabama New Orleans Texas & Pacific Junction Railway Company, 1891 (1) CD 213 KEC International Ltd. v. Kamani Employees Union &Ors.,2002 (109) Com Cas 659 (Bom.) Bhagwan Singh & Sons Pvt. Ltd. v. Kalawati&Ors.,1986 (60) Company Cases 94 (Delhi) Dean v. Prince &Ors., 1954 (1) All ER 749 and Burgess v. Purchase & Sons. 1983 (2) All ER 4 In addition, although not circulated there is a reference in these written submissions to other judgments as well: Piramal Spinning and Weaving Mills Ltd.,[1980] 50 Com Cas 514 (Bom); Re: Scheme of Amalgamation ICICI Ltd.;(2002) 4 BCR 450 In Re: Grierson Oldham & Adam Ltd., [1967] 1 WLR 357 In Re: Bluestar Ltd., [2001] 104 Com Cas 371 and Sidhpur Mills Company Ltd.AIR 1964 Gujarat 305 It is true that many, and perhaps all, these referenced in Cadbury Indias affidavit dated 20th March 2012. But none were sought to be distinguished by Mr. Samant during oral arguments.4.17. I do not see how the Samant Groups submissions advance their cause. Indeed, some of them are against the Samant Group. Bluestar, for instance, holds that where a valuation is done by a reputed firm, and is accepted by a majority, even if assets are being transferred at a low price, that does not per se vitiate a valuation report. To dislodge a valuation from a reputed firm, an objector must show mala fides or fraud.2 To show is not merely to allege. Mala fides or fraud must be established. The decisions in Piramal Spinning, ICICI Ltd., Re: Grierson, Oldham and others are all authorities for the proposition that in any valuation, opinions may vary; and that no court should be swayed by acidulated allegations in generalities. A court must be satisfied that the unfairness is gross and patent. Further, as Mr. Dwarkadas points out, business strategies and corporate planning are not the province of courts.34.18. There is no quarrelling with the propositions that where there is sufficient material to dislodge a valuation, the Court is justified in withholding its sanction, and that a scheme should not be unfair, unconscionable or contrary to public interest. Indeed, the statement of law in Sidhpur Mills is actually against the objectors: the Court must test every scheme from the perspective of a reasonable and fair-minded person. Given its conduct, especially toward the Court, I do not think these are adjectives that I would use to describe the Samant Group. There is nothing before me to establish that the majority is acting dishonestly or without care or caution. The Court is not, in the words of the Gujarat High Court in Sidhpur Mills,a carping critic, a hair-splitting expert, a meticulous accountant or a fastidious counsel; the effort is not to emphasize the loopholes, technical mistakes and accounting errors. The perspective is to be that of the ordinary shareholder exercising his discretion in a reasonable and businesslike manner.4.19. Casuistry, carping and caviling : these are not the courts guiding principles. Yet these are all apt descriptions of the Samant Groups objections.5.4. Let us consider for a moment the fallibility of Samant Groups suggested price of Rs. 2,500/- per share. This is based not on any data or material pertaining to Cadbury India, but on the supposed market value of Nestle India Limited. The Samant Groups claim is that since on 19th January 2010, Nestles shares were being traded at Rs. 2,542/- per share, Cadbury Indias shares should be at least Rs. 2,500/-, for the two must be held to be competitors. For the reasons I have discussed, this comparison and submission is entirely untenable. Even if the net worth of the two companies is proximate, it does not necessarily follow that the market or fair value of their shares would be close, let alone the same.5.5. The takeover of Cadbury Indias grandfather holding company Cadbury Plc by Kraft can have no possible bearing on the valuation of Cadbury Indias shares; nor have the objectors shown how this development would affect Cadbury Indias operations, profits, P/E ratios or other financial metrics in the least. The argument seems to be this: Kraft is an enormous multinational conglomerate. It has very wide business interests. Through a series of subsidiaries and subsidiaries of subsidiaries, and also perhaps directly, its product portfolio is large. Therefore, Cadbury India, despite its localised markets and restricted product range, must necessarily benefit. In short: Kraft has a high share valuation; Kraft now owns the holding company of the holding company of Cadbury India; therefore Cadbury Indias share valuation must also be high. Clearly, this is incorrect. It ignores every salient parameter in an assessment of Cadbury Indias share valuation.5.6. The third, much-repeated, allegation relates to the sale of Cadbury House. Cadbury India is reported to have recently sold its property at Bhulabhai Desai Road. Mr. Samant contends that this affects Cadbury Indias share valuation and must be taken into account inter alia because that property has significant development potential. There are two problems with this. The first is that this involves yet another change in the valuation parameters. As I have noted, the Court itself altered the frame of reference when it asked for the second E & Y report. Had that report been dealt with and this matter decided at that time this issue could never have arisen, for the sale is a matter post facto. It simply cannot be that on account of the vagaries of litigation, a petitioner is placed on constantly shifting stands in this manner. Second, the suggestion in oral arguments seemed to be that the sale price was too low, and that E & Y should have factored in the real sale price, as the property is very valuable and can be developed. While the sale price of the property may be known, the value of the development or redevelopment of that property is predicated on several imponderables incapable of quantification. All that development is subject to development control rules; these change frequently. There may be other restrictions. It would require an entirely distinct set of metrics to evaluate the development potential of this property. Lastly, it is unclear how and in what manner the sale price of this immovable property or its development potential would possibly affect the break-up values or share valuations for Cadbury India. There is nothing, even in the written submissions, to affirmatively show that had the sale price been factored (and not the potential of shifting from Cadbury House), the valuation would have gone up sufficiently significantly to warrant a discarding of the second E & Y report.5.7. The statement in at paragraph 3 of the Samant Groups written submissions as to the alleged lack of transparency in the valuation of shares has only to be stated to be rejected. I find it regrettable that any party, and even more so an advocate at our Bar, should choose to describe Court-ordered valuation reports thus: colourable, suspicious and devoid of any transparency. That is irresponsible. As I have noted, the Court was extremely cautious. It first asked for an independent valuation (the first E & Y report). This was, evidently, to assuage any concerns the objectors might then have had. There was, again as I have previously noted, a certain amount of soul-searching after the first E & Y report was submitted. The Court did not simply accept it. It changed the reference parameters. This was to test whether, on a second pass, a very different result might obtain. It therefore asked for a second report, moving the reference date and asking for the DCF method to be used too. That second E & Y report returned a higher result. How either of these can ever be said to be colourable, suspicious or devoid of transparency defeats me. In paragraph 3 it is even more regrettable that the Samant Group has attempted to place on record matters that are alleged to have transpired at hearings in Court but which form no part of the record. There is absolutely no substance in these submissions.5.8. In the second E & Y report of 2011, Cadbury Indias shares have been valued by the CCM and DCF methods. Strangely, the results of both these methods are unacceptable to the objectors. The objectors claim that E & Y approach on the CCM method is fraudulent, erroneous and incorrect. They also claim that the valuation of shares on the DCF method is not transparent and is, therefore, unfair as it does not allegedly, have a disclosed basis, and that the projections of Cadbury India have not been disclosed in relation to the DCF analysis in the second E & Y report. Not only is this submission couched in extremely intemperate temperament language, but it does not disclose, other than ungraciously worded allegations, any substantial basis for the challenge on this ground. It ignores, importantly, the fact that the order of 8th July 2011 tied E & Y hand and foot to a non-disclosure and confidentiality requirement. No such disclosure could have been made by E & Y.5.9. It is not possible for a Court to go into the exercise of carrying out a valuation itself. That, as the Supreme Court said in Miheer H. Mafatlal, is not the Courts remit. Courts do not have the expertise, the time or the means to do this. I do not believe that they are expected to do it. What the Courts approach must be to examine whether or not a valuation report is demonstrated to be so unjust, so unreasonable and so unfair that it could result and result only in a manifest and demonstrable, inequity or injustice. This injustice must be shown to apply to a class. This has not been done. It always possible that there may be two views on any approach to accounting and valuation.4 The fact that the objectors prefer one valuation or method, or prefer their own valuation, is no answer. The Samant Group is unable to demonstrate any such injustice or inequity. All that it says is that the values are not to its liking and that it believes that it is entitled to Rs. 2,500/- per share on the basis of a valuation that it has itself obtained. This is not a valid test in law. Indeed, I have very little doubt that had the Samant Groups valuation of Rs. 2,500/- per share been the result returned by E & Y, the Samant Group would undoubtedly had even found that to be unfair, unjust and unreasonable. The unhappiness or disgruntlement of an individual or a group of individuals is not the measure by which a share valuation can ever be tested.5.10. Take for instance the submissions that in computing the share value on the CCM method, the amount utilised for buyback of shares has been deducted. This, according to the Samant Group, cannot be done according to accounting functions and policies pertaining to valuation and it has resulted in further depressing the valuation by Rs. 37/-. Not only is there no material to establish this, it is entirely possible that on this ground alone, more than one view is plausible. The deduction made by accountant is, in fact, logical, given that the petition was filed after a series of open offers and buybacks had already taken place. In effect, what the submission means is that Cadbury Indias shares ought to be valued at a time when it was still a publicly held, listed and traded company with no buybacks having taken place. That would also necessarily mean that the total number of shares in consideration would have to be of the pre-buyback era. This is, after all, a ratio (total equity value divided by number of shares). It is, clearly, an untenable proposition to use a higher numerator (the enterprise equity value before the buyback) and a lower denominator (the total number of shares after the buyback). That seems to be the Samant Groups suggestion. What is manifestly incorrect is, therefore, not what E & Y did, but what the Samant Group proposes.5.11. The same reason must apply to the further submissions regarding the allegedly incorrect weightage given by the valuer to the DCF and CCM methods respectively. What weightage should be given is itself dependent on a slew of other factors. To merely say that the weightage is incorrect is hardly a sufficient basis to dislodge what, after all, is the collective, commercial decision of a majority, including a majority of the non-promoter minority. In any event, this point was never once argued or urged despite the matter been heard over several days.5.12. Paragraph 6 of the Samant Groups written submissions contains a repetition of many submissions made elsewhere, including that the future prospects of the company had not been taken into account; that the discounting rate for the DCF method is incorrect; that weightage to the two methods was wrongly given; and that the amount utilised for buybacks options was wrongly taken into account. It is hardly the kind of material on which an entire scheme can be dislodged.5.13. The next submission that the valuation has been depressed is again not one that lends itself to acceptance. Various grounds have taken under this head. These include that the terminal growth rate has been estimated at 6% while sales and profits are growing by 20% and 40%, respectively. Just as it is not possible to accept an extremely low figure, it is equally not possible to accept other, possibly inflated, figures. These might be transient or may depend on multiple variables. Moreover, a look at the second E & Y report indicates that this terminal growth rate of 6% is not a random figure plucked out of thin air. A rationale is supplied. This may or may not be to the Samant Groups liking, but it is certainly not without basis. The second E & Y report seems to indicate that E & Y compared future projections with past performance, and with the projections of comparable companies. It then arrived at an assumption of the terminal growth rate for the relevant period. It is important to notice that the projections by E & Y are across a very long time range. The terminal growth rate is one that is used for a period six years hence (eight or nine years from the date of the report, and over ten years beyond the valuation date), post December 2020. As I have noted in Section 6, terminal growth rates are routine in DCF analysis. A conservative terminal growth rate over that time frame is probably a more accurate indicator of a projection.5.14. Another submission made is that the income tax rate has been considered at a flat 33.99%. The submission is that since Cadbury India enjoys various tax benefits, its profits are being taxed at the rate lower than 20% over the past few years.Again there is no substance to this submission. Tax regimes are liable to change. Often they change at short notice. A flat tax rate in a projection might, in fact, provide a very realistic and fairer value than something that is presently at a lower marginal rate. I have already noted that there has been a steadily rising progression in the amount offered by Cadbury India to various non-promoter shareholders for a buyback of their shares. This pattern, one that is self evident, does not sit well with the Samant Groups objections of unfairness.5.15. I turn now to a set of submissions that are singularly distressing. Paragraph 8 of the Samant Groups written submission is captioned Conduct of the Petitioner Company. Couched in much the same immoderate tone and language as the rest of these written submissions, the contentions under this head are actually not so much about the conduct of Cadbury India as a frontal attack on the Court itself. In using the kind of language that it does, and in making the kind of submissions that it does, the Samant Group sails dangerously close to the wind. Motives are attributed to the Court. It is not permissible for any party to speculate as to why a Court passed a particular order. Our orders speak for themselves.5.16. What is significantly worse is that on page 23 of the written submissions, the Samant Group has purported to record something that allegedly transpired before the Court. It attributes observations and comments to Court that find no place in any order. An allegation is made that a representative of E & Y tendered a white envelope to the Honble Court and that contents of this were never made known to the minority shareholders. To my mind, this is possibly contemptuous. It is almost certainly contumacious. This is nothing but an attempt to spin this matter out well beyond any reasonable life span. Indeed, I myself specifically dispensed with the presence of the representative of the Court appointed valuer on 13th February 2014 and I did so in open Court dictating an order in court and in the presence of all concerned, including the counsel for the Samant Group. Not once did anyone object.5.18. This, presumably, is the infamous white envelope. There is, among the court papers, an annexure by E & Y to its second report. This annexure is dated 14th March 2012, one year prior to the 1st February 2013 order. The annexures cover sheet says that it contains Cadbury Indias projections, along with relevant explanations from its management; and workings on the DCF method. This material had been earlier excised on account of the previous confidentiality restriction. It is said to have been submitted apparently in compliance with directions issued 2nd March 2012. I find no order of 2nd March 2012. None has been uploaded, and there is no such order on file. The E & Y annexure has been wholly disregarded by all courts, including myself. It cannot possibly be anybodys case that it has been looked into by one side, or by the Court, and not shown to the objectors. Anything the Court can see, every party before it should, except in the most extraordinary circumstances, be entitled to see. That document remains as it is; unseen, unconsidered and silent. It can furnish the Samant Group no cause for complaint.5.19. In paragraph 8, for the first time, it is now alleged that there was a violation of any principle of natural justice. Using words such as manipulated, twisted and the like, especially in reference to what happened in court, is a reprehensible practice to be deprecated in formal legal documents, especially those filed in courts. All law is discourse; and the discourse of law is the discourse of civility. It is easy to make strongly worded and even egregious allegations. More often than not, such allegations are meant only to camouflage a lack of all substance. This case is no exception. The Samant Groups submission is a straw man argument: it seeks to destroy a non-existent case. The submission says very little; but it says it very badly.5.20. Paragraph 8 of the written submissions also contains a startling submission never made before that no fair valuation can ever be made on the basis of unaudited accounts. This was not once the case in arguments before me. There is neither logic nor material to support this.5.21. The submissions in paragraph 9, regarding an undervaluation of shares of the Petitioner Company comes for the first time in these written submissions. Many of the subsidiary submissions under this head are repetitive. What is undoubtedly true is that valuation is not an exact science.5 It is always and only an estimation. The fact that a particular estimation might not catch an objectors fancy is no ground to discredit it. The objective of a Courts exercise of its discretionary jurisdiction under Section 100 of the Companies Act is not to entertain every fanciful wish or peevish complaint. It is to examine whether, on a standard or a test as detached and as objective as it is possible to be, a Court might plausibly conclude that a particular valuation is one that is, on the face of it, unreasonable, unjust and inequitable.5.22. The submission that Cadbury India treats its shareholders badly, and that this is evidenced by its steady pay out of dividend at only 20% is one so entirely without merit that it is surprising that it should ever have been advanced. No shareholder was compelled to continue his or her holding while the shares of Cadbury India were freely traded. No shareholder has any statutory right to any particular dividend. This can have no possible bearing on the question of valuation either.5.23. What the Samant Group overlooks is that it is not the only set of non-promoter shareholders, nor has it been sought to be ousted at the extraordinary general meeting by promoter shareholders. On the date of the extraordinary general meeting notice, 7,51,120 shares were held by persons other than the Cadbury Group, i.e., non-promoters. The Samant Group itself holds only 499 shares. The Churiwala group holds 1400 shares. This means that an overwhelming majority of the shareholders outside the Cadbury Group and also constituted in the minority voted in favour of the scheme.5.24. I must, at this stage, consider this question of what exactly is meant by minority and majority in the context that is being discussed presently. In the abstract, and at the simplest level, majority would connote the majority of all shareholders of the company across all classes. That is not the correct test here. There are admittedly two classes, the promoter shareholders and the non-promoter shareholders. The promoter shareholders far out-number the non-promoter shareholders. Let us for a moment put aside the promoter-shareholders assent to the scheme, and focus only on the responses of the minority, i.e., the non-promoter shareholders. Within this minority, there are again two classes or divisions: those who voted in favour of the proposed resolution at the extraordinary general meeting, and those who voted against. Where among the non-promoters those in favour out-number those against, it is these that must constitute the relevant majority for the present purposes. When viewed like this, the allegation that has been made by the Samant Group is not so much that they have been done in by the promoter group of Cadbury India, but by those non-promoter shareholders (a minority in the context of all shareholders) who voted in favour of the scheme. We have here, thus, a peculiar situation: overall, the majority of shareholders (including the promoter-shareholders) voted for the scheme. At the same time, the overwhelming bulk of non-promoter shareholders (i.e., a majority of the minority) have also voted in favour of the scheme. Those who voted against held only 12,784 shares. Of those, excluding the Gidwani group, the present group of objectors (the Samant and Churiwala Groups) hold collectively less than 2000 shares of Cadbury India; only 1899 shares. What is this in percentage terms They represent 0.25% of the non-promoter shares at the extraordinary general meeting (7,51,120); under 15% of those who voted against (12,784); and a mere 0.0063% of the total votes cast at the extraordinary general meeting (3,03,31,248).5.25. It is one thing to speak of the tyranny of a majority in general terms sans context. That implies that those with nothing to lose have somehow unleashed their collective will on those with everything to lose. It is another thing to ignore altogether the essential democratic discipline without which the functioning of any company would degenerate into mere chaos and anarchy. Here, the bulk of the non-promoter minority opted for the scheme. It is in this factual context that I must view Samant Groups shrill lamentations of unjust and inequity.5.27. There was no appeal from this order. There could not have been. I am at a loss to understand how, having once given its solemn assurance to the Court, the Samant Group can attempt to constantly resile from it; to constantly impeach the slightest exercise of discretion by the valuer and paint it as a grave infirmity. I am unable to find any infirmity, let alone one that is grave. The objectors must be held to their assurance solemnly given to the Court. It was, after all, on the basis of that assurance alone that the Court acted as it did, accepting the suggestion from Cadbury India and calling for an independent valuation (twice). It is because of that assurance that Cadbury India, adhering to its own assurance, finds itself faced with a valuation several hundred rupees higher than the one with which it first came to court. Cadbury Indias share purchase offers rose from an initial Rs. 500/- per share to an amount four times as high in the second E & Y report, Rs. 2,014.50/- per fully paid up equity share. Even this does not state the Samant Groups appetency.5.28. The Samant and Deepak Gidwani groups both submit that they are entitled to interest. All told the Gidwani Groups 30,157 equity shares in Cadbury India are about 15 times more than the Samant and Churiwala Groups. The Gidwani Group has, after an initial objection, specifically accepted the valuation in the second E & Y report of Rs. 2,014.50/- per fully paid up equity share. In its written submissions, the Deepak Gidwani Group claims interest from 30th July 2011 (i.e., from the day after the submission of the second E & Y report) till date. The basis is that had the amount been paid out then, the Gidwani Group would have had use of these funds. This delay is not attributable to the Gidwani Group. Its interests ought, therefore, to be protected. At least as far as the Deepak Gidwani Group is concerned, this is not a submission to be dismissed out of hand. Unfortunately, it so happens that the responsibility for the delay cannot be laid at the door of Cadbury India. That delay was partly attributable to the vicissitudes of litigation in this country. The matter was considerably exacerbated by the Samant Groups attempts constantly to alter the frame of reference. When this demand comes from the Samant Group, it is inherently unjust. That it works to the prejudice of the Gidwani Group is perhaps a matter of regret, but one without solution. I do not think it is possible to distinguish between the Deepak Gidwani Group and the Samant Group in this respect. Mr. Dwarkadas is justified in his submission that the pendency of this petition is not attributable to Cadbury India at all. Cadbury India has done nothing to delay the matter. Indeed, to cut short the controversy, it volunteered to have its own valuations set to one side and to have an independent valuation made. Just as no act of a Court can prejudice a party, similarly the inaction of a Court can also not deliver to any party any such prejudice. Such are the perils of litigation in India. I am unable to see any justification for foisting Cadbury India with an interest payment liability even for Deepak Gidwani Group.6.12. It is impossible, on any fair reading of the two E & Y reports, to conclude that there is anything in either of them that is so egregious that it would undoubtedly result in a manifestly skewed, distorted and depressed valuation.6.13. There is one final matter to which I must refer. There is, in the records, a letter from E & Y dated 2nd March 2012 addressed to the Court. Annexed to this is a statement of sorts. It is E & Ys response to the objections to its second report. I have not referred to or considered this letter or its annexures in this judgment. This was a small, and certainly immaterial, misstep in E & Ys otherwise unexceptionable, even exemplary, conduct. I do not believe that in writing to Court E & Ys intention was to step into the arena. All it sought to do was, in a sense, to defend its report. It is, after all, a firm of considerable standing, and the broadsides from the Samant Group, set on affidavit at about that time, could not have made for pleasant reading, especially since they contained allegations of bias, fraud and worse, and accused E & Y of entering the fray. E & Ys response could only have been an attempt, entirely unnecessary, to defend its integrity and reputation, not to join battle.7.1. In Section 4, I have examined the various authorities cited at the Bar. From these, and from a reading of the statute, I believe it is possible to cull the following principles in such matters. It is not my intention to suggest that these are the only principles, or that this listing is comprehensive. There are undoubtedly other propositions and principles as well. Some of these are stated in the earlier analysis of the objectors submissions. What follows is a listing of what I believe to be general principles of universal application in such matters.7.1.10. Valuation is not an exact science. Far from it. It is always and only an estimation, a best-judgment assessment. The fact that a particular estimation might not catch an objectors fancy is no ground to discredit it. All valuations proceed on assumptions. To dislodge a valuation, it must be shown that those assumptions are such as could never have been made, and that they are so patently erroneous that the end result itself could not but be wrong, unfair and unreasonable. The court must not venture into the realm of convoluted analysis, extrapolation, and taking on itself an accounting burden that is no part of its remit or expertise, and no part of a statutory obligation. In particular, the court must guard against the seductiveness of a proposition that suffers from the fallacy of the undistributed middle: all x is z; some y is z; ergo, all y is z.6 The errors and consequent unreasonableness must be shown to be patent and self-evident.7.1.11. It is impossible to say which of several available valuation models are best or most appropriate. In a given case, the CCM method may be more accurate; in another, the DCF model. There are yet others. No valuation is to be disregarded merely because it has used one or the other of various methods. It must be shown that the chosen method of valuation is such as has resulted in an artificially depressed or contrived valuation well below what a fair-minded person may consider reasonable. | 1 | 18,476 | 8,389 | ### Instruction:
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general principles of universal application in such matters. 7.1.1. Section 100 requires three things: that (1) the Articles of Association of the company must permit such a reduction of share capital; (2) the scheme for reduction must be approved as a special resolution, i.e., at an extraordinary general meeting called for that purpose; and (3) the Courts sanction must be obtained to such a resolution, if passed by the requisite majority. 7.1.2. In considering the application for sanction, the Court must ensure that (1) the scheme is not against the public interest; (2) the scheme is fair and just, and not unreasonable; and (3) the scheme does not unfairly discriminate against or prejudice a class of shareholders. 7.1.3. Prejudice here must mean something more than just receiving less than what a particular shareholder may desire. It means a concerted attempt to force a class of shareholders to divest themselves of their holdings at a rate far below what is reasonable, fair and just. Prejudice in this context must connote a form of discrimination, a stratagem by which an entire class is forced to accept something that is inherently unjust. 7.1.4. One test of such reasonableness might be to consider the past open offers, extinguishments or buy-backs, and the rate at which these were effected. Where it is found, for instance, that the present offer is significantly higher than previous ones, the burden on an objector is exponentially higher to show that even this enhanced rate, price or valuation is unfair or unreasonable. 7.1.5. Before a Court can decline sanction to a scheme on account of a valuation, an objector to the scheme must first show that the valuation is ex-facie unreasonable, i.e., so unreasonable that it cannot on the face of it be accepted. That unreasonableness must exist on the face of the valuation: one so apparent that he who runs can read. To upset a valuation, a wrong approach must be demonstrated clearly and unequivocally, and the result must be plainly invidious. A plausible rationale provided by a valuer is not be readily discarded merely because an objector has a different point of view. 7.1.6. In considering an application for sanction will ask itself if, at a minimum, these tests are met: Is a fair and reasonable value being offered to the minority shareholders Have the majority of non-promoter shareholders voted in favour of the resolution Can it be said, on reading a valuation as any fair-minded and reasonable person would do, and without microscopic scrutiny, that the valuation is so egregiously wrong that the judicial conscience will not permit it Has the valuer gone so far off-track that the results his valuation returns cannot but be wrong 7.1.7. A court called upon to sanction such a scheme is not bound by the ipse dixit of a majority. It must weigh the scheme and look at it from all angles. It must see whether the scheme is fair, just and reasonable, not unconscionable and is not contrary to any provisions of law and it does not violate any public policy. But it must also balance the commercial wisdom of the shareholders expressed at a properly convened meeting against the desires and fancies of the few. The court will take into account, but not be bound by, the views of the majority. In particular, the court will see what the views are of most of the non-promoter (minority) shareholders at the meeting. If the bulk of them have voted in favour, the court will not lightly disregard this expression of an informed view, one that lies in the domain of corporate strategy and commercial wisdom. 7.1.8. The unfairness must apply to a class, even if that class is of one. This class is not to be identified not by a shared ire against the petitioning company or even an ideological animosity, but by the character or nature of their holding, and by the way that class is sought to be singled out for differential, unfair treatment. 7.1.9. The sanctioning court has no power or jurisdiction to exercise any appellate functions over the scheme. It is not a valuer. It does not have the necessary skills or expertise. It cannot substitute its own opinion for that of the shareholders. Its jurisdiction is peripheral and supervisory, not appellate. The Court is not a carping critic, a hair-splitting expert, a meticulous accountant or a fastidious counsel; the effort is not to emphasize the loopholes, technical mistakes and accounting errors. 7.1.10. Valuation is not an exact science. Far from it. It is always and only an estimation, a best-judgment assessment. The fact that a particular estimation might not catch an objectors fancy is no ground to discredit it. All valuations proceed on assumptions. To dislodge a valuation, it must be shown that those assumptions are such as could never have been made, and that they are so patently erroneous that the end result itself could not but be wrong, unfair and unreasonable. The court must not venture into the realm of convoluted analysis, extrapolation, and taking on itself an accounting burden that is no part of its remit or expertise, and no part of a statutory obligation. In particular, the court must guard against the seductiveness of a proposition that suffers from the fallacy of the undistributed middle: all x is z; some y is z; ergo, all y is z.6 The errors and consequent unreasonableness must be shown to be patent and self-evident. 7.1.11. It is impossible to say which of several available valuation models are best or most appropriate. In a given case, the CCM method may be more accurate; in another, the DCF model. There are yet others. No valuation is to be disregarded merely because it has used one or the other of various methods. It must be shown that the chosen method of valuation is such as has resulted in an artificially depressed or contrived valuation well below what a fair-minded person may consider reasonable. 8 SECTION 8: CONCLUSIONS
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### Explanation:
own assurance, finds itself faced with a valuation several hundred rupees higher than the one with which it first came to court. Cadbury Indias share purchase offers rose from an initial Rs. 500/- per share to an amount four times as high in the second E & Y report, Rs. 2,014.50/- per fully paid up equity share. Even this does not state the Samant Groups appetency.5.28. The Samant and Deepak Gidwani groups both submit that they are entitled to interest. All told the Gidwani Groups 30,157 equity shares in Cadbury India are about 15 times more than the Samant and Churiwala Groups. The Gidwani Group has, after an initial objection, specifically accepted the valuation in the second E & Y report of Rs. 2,014.50/- per fully paid up equity share. In its written submissions, the Deepak Gidwani Group claims interest from 30th July 2011 (i.e., from the day after the submission of the second E & Y report) till date. The basis is that had the amount been paid out then, the Gidwani Group would have had use of these funds. This delay is not attributable to the Gidwani Group. Its interests ought, therefore, to be protected. At least as far as the Deepak Gidwani Group is concerned, this is not a submission to be dismissed out of hand. Unfortunately, it so happens that the responsibility for the delay cannot be laid at the door of Cadbury India. That delay was partly attributable to the vicissitudes of litigation in this country. The matter was considerably exacerbated by the Samant Groups attempts constantly to alter the frame of reference. When this demand comes from the Samant Group, it is inherently unjust. That it works to the prejudice of the Gidwani Group is perhaps a matter of regret, but one without solution. I do not think it is possible to distinguish between the Deepak Gidwani Group and the Samant Group in this respect. Mr. Dwarkadas is justified in his submission that the pendency of this petition is not attributable to Cadbury India at all. Cadbury India has done nothing to delay the matter. Indeed, to cut short the controversy, it volunteered to have its own valuations set to one side and to have an independent valuation made. Just as no act of a Court can prejudice a party, similarly the inaction of a Court can also not deliver to any party any such prejudice. Such are the perils of litigation in India. I am unable to see any justification for foisting Cadbury India with an interest payment liability even for Deepak Gidwani Group.6.12. It is impossible, on any fair reading of the two E & Y reports, to conclude that there is anything in either of them that is so egregious that it would undoubtedly result in a manifestly skewed, distorted and depressed valuation.6.13. There is one final matter to which I must refer. There is, in the records, a letter from E & Y dated 2nd March 2012 addressed to the Court. Annexed to this is a statement of sorts. It is E & Ys response to the objections to its second report. I have not referred to or considered this letter or its annexures in this judgment. This was a small, and certainly immaterial, misstep in E & Ys otherwise unexceptionable, even exemplary, conduct. I do not believe that in writing to Court E & Ys intention was to step into the arena. All it sought to do was, in a sense, to defend its report. It is, after all, a firm of considerable standing, and the broadsides from the Samant Group, set on affidavit at about that time, could not have made for pleasant reading, especially since they contained allegations of bias, fraud and worse, and accused E & Y of entering the fray. E & Ys response could only have been an attempt, entirely unnecessary, to defend its integrity and reputation, not to join battle.7.1. In Section 4, I have examined the various authorities cited at the Bar. From these, and from a reading of the statute, I believe it is possible to cull the following principles in such matters. It is not my intention to suggest that these are the only principles, or that this listing is comprehensive. There are undoubtedly other propositions and principles as well. Some of these are stated in the earlier analysis of the objectors submissions. What follows is a listing of what I believe to be general principles of universal application in such matters.7.1.10. Valuation is not an exact science. Far from it. It is always and only an estimation, a best-judgment assessment. The fact that a particular estimation might not catch an objectors fancy is no ground to discredit it. All valuations proceed on assumptions. To dislodge a valuation, it must be shown that those assumptions are such as could never have been made, and that they are so patently erroneous that the end result itself could not but be wrong, unfair and unreasonable. The court must not venture into the realm of convoluted analysis, extrapolation, and taking on itself an accounting burden that is no part of its remit or expertise, and no part of a statutory obligation. In particular, the court must guard against the seductiveness of a proposition that suffers from the fallacy of the undistributed middle: all x is z; some y is z; ergo, all y is z.6 The errors and consequent unreasonableness must be shown to be patent and self-evident.7.1.11. It is impossible to say which of several available valuation models are best or most appropriate. In a given case, the CCM method may be more accurate; in another, the DCF model. There are yet others. No valuation is to be disregarded merely because it has used one or the other of various methods. It must be shown that the chosen method of valuation is such as has resulted in an artificially depressed or contrived valuation well below what a fair-minded person may consider reasonable.
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Hazarat Pirmahomed Shah Saheb Roza Committee Vs. Commissioner of Income Tax, Gujarat | doctrine, all Muslims, whether Murids or non-Murids, had unrestricted access to the Roza and the mosque. It was further held that the income of the Roza properties after payment of municipal taxes, insurance premia, etc., was utilised for maintenance of the Roza and the mosque and the observance of the festive occasions such as Urs, death anniversaries, etc. It appears from the statement of receipts and expenditure for the years 1942-43 to 1956-57 produced before the Appellate Tribunal that a part of the surplus income of the properties was also utilised for running madrassas, library and for langar and bhandar for giving food to pilgrims attending the Roza and the mosque on festive occasions. There was, however, no evidence before the Appellate Tribunal to show that any portion of the income of the wakf was utilised for madrassas or library prior to the year 1942-43. The Tribunal therefore held that the original purpose of the wakf was confined to the maintenance of the Roza and the mosque and celebration of festive occasions and therefore the wakf was established for a wholly religious purpose. At the hearing of the reference, the High Court has interfered with the finding of the Tribunal on this point. The High Court considered that the maintenance of madrassas and the library must be taken to be one of the original purposes of the wakf and the finding of the Tribunal that the wakf was wholly for a religious purpose must be overruled. It is manifest that the question as to what was the object of the wakf is essentially a question of fact and the High Court had, therefore, no justification for interfering with the finding of the Tribunal on this point. It was pointed out by this court in India Cements Ltd. v. Commissioner of Income-tax that in a reference under section 66 of the Act the High Court must accept the findings of fact made by the Appellate Tribunal, and it is not open to the High Court to reopen the findings of fact unless the party concerned has applied for a reference to challenge those findings first by an application under section 66(1) of the Act. If he has failed to file an application expressly raising the question about the validity of the findings of fact, he is not entitled to urge before the High Court that the findings are vitiated for one reason or another. Similarly, in another case, Commissioner of Income-tax v. M. Ganapathi Mudaliar, it has been pointed out that, even if the question referred to the High Court is regarding the existence of material to support a finding of fact arrived at by the Appellate Tribunal, the High Court should not act as an appellate court and consider whether the finding was justified or not. In the present case, we think that there was no warrant for the High Court to interfere with the finding of the Appellate Tribunal that the purpose of the wakf was wholly religious and the maintenance of madrassas and library from 1942-43 onwards was not the original purpose for which the properties were gifted by the Murids, and that the allotment of money for the maintenance of madrassas and library did not alter the original character of the wakf which was established for a wholly religious purpose, viz., for the maintenance of the Roza and the mosque and the observance of festive occasions such as Urs and death anniversaries, etc., at these institutions. It has been stated by the Appellate Tribunal that the benefit of the wakf was available to all Muslims whether Murids or non-Murids who had unrestricted access to the Roza and the mosque and the festivities celebrated therein. Upon the facts found by the Appellate Tribunal we are of opinion that the Roza properties were held for a wholly religious purpose of a public character and therefore the income of the Roza properties was exempt from assessment under section 4(3)(i) of the ActOn behalf of the appellant an alternative argument was presented that the class of Murids constituted an appreciable section of the Sunni Bohra community and the income from the Roza properties was exempt from assessment on the ground that the Roza properties were held under a legal obligation for a wholly charitable purpose. The opposite view-point was put forward on behalf of the respondent and it was said that the class of Murids did not constitute a section of the community but was merely a fluctuating body of private individuals. In support of this argument reference was made to the decision of the House of Lords in Oppenheim v. Tobacco Securities Trust Co. Ltd., where it was held that, though the group of persons indicated was numerous, the nexus between them was employment by particular employers, and accordingly the trust did not satisfy the test of public benefit requisite to establish it as charitable. Reference was also made to a later decision in Mohamed Falil Abdul Caffoor and Others (Trustees of the Abdul Caffoor Trust) v. Commissioner of Income-tax, Colombo, in which it was held by the Judicial Committee that in view of the absolute priority to the benefit of the trust income which was conferred on the grantors own family by clause (2)(b)(i) of the trust deed, this was a family trust and not a trust of a public character wholly for charitable purpose, and the income thereof was accordingly not entitled to the exemption claimed by the appellant. In our opinion, it is not necessary to express any concluded opinion on this aspect of the case, because we have already held that the appellant is entitled to exemption from being taxed on the ground that the income was derived from property held under a legal obligation wholly for a religious purpose4. For these reasons we hold that the judgment of the High Court should be set aside and the questions referred to the High Court must be answered in the affirmative and in favour of the assessee. | 1[ds]In the present case, we think that there was no warrant for the High Court to interfere with the finding of the Appellate Tribunal that the purpose of the wakf was wholly religious and the maintenance of madrassas and library fromonwards was not the original purpose for which the properties were gifted by the Murids, and that the allotment of money for the maintenance of madrassas and library did not alter the original character of the wakf which was established for a wholly religious purpose, viz., for the maintenance of the Roza and the mosque and the observance of festive occasions such as Urs and death anniversaries, etc., at these institutions. It has been stated by the Appellate Tribunal that the benefit of the wakf was available to all Muslims whether Murids orwho had unrestricted access to the Roza and the mosque and the festivities celebrated therein. Upon the facts found by the Appellate Tribunal we are of opinion that the Roza properties were held for a wholly religious purpose of a public character and therefore the income of the Roza properties was exempt from assessment under section 4(3)(i) of the ActOn behalf of the appellant an alternative argument was presented that the class of Murids constituted an appreciable section of the Sunni Bohra community and the income from the Roza properties was exempt from assessment on the ground that the Roza properties were held under a legal obligation for a wholly charitable purpose. The oppositewas put forward on behalf of the respondent and it was said that the class of Murids did not constitute a section of the community but was merely a fluctuating body of private individuals. In support of this argument reference was made to the decision of the House of Lords in Oppenheim v. Tobacco Securities Trust Co. Ltd., where it was held that, though the group of persons indicated was numerous, the nexus between them was employment by particular employers, and accordingly the trust did not satisfy the test of public benefit requisite to establish it as charitable. Reference was also made to a later decision in Mohamed Falil Abdul Caffoor and Others (Trustees of the Abdul Caffoor Trust) v. Commissioner ofFor these reasons we hold that the judgment of the High Court should be set aside and the questions referred to the High Court must be answered in the affirmative and in favour of the assessee. We accordingly allow these appeals with costs. There will be one consolidated hearing fee. | 1 | 2,941 | 446 | ### 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:
doctrine, all Muslims, whether Murids or non-Murids, had unrestricted access to the Roza and the mosque. It was further held that the income of the Roza properties after payment of municipal taxes, insurance premia, etc., was utilised for maintenance of the Roza and the mosque and the observance of the festive occasions such as Urs, death anniversaries, etc. It appears from the statement of receipts and expenditure for the years 1942-43 to 1956-57 produced before the Appellate Tribunal that a part of the surplus income of the properties was also utilised for running madrassas, library and for langar and bhandar for giving food to pilgrims attending the Roza and the mosque on festive occasions. There was, however, no evidence before the Appellate Tribunal to show that any portion of the income of the wakf was utilised for madrassas or library prior to the year 1942-43. The Tribunal therefore held that the original purpose of the wakf was confined to the maintenance of the Roza and the mosque and celebration of festive occasions and therefore the wakf was established for a wholly religious purpose. At the hearing of the reference, the High Court has interfered with the finding of the Tribunal on this point. The High Court considered that the maintenance of madrassas and the library must be taken to be one of the original purposes of the wakf and the finding of the Tribunal that the wakf was wholly for a religious purpose must be overruled. It is manifest that the question as to what was the object of the wakf is essentially a question of fact and the High Court had, therefore, no justification for interfering with the finding of the Tribunal on this point. It was pointed out by this court in India Cements Ltd. v. Commissioner of Income-tax that in a reference under section 66 of the Act the High Court must accept the findings of fact made by the Appellate Tribunal, and it is not open to the High Court to reopen the findings of fact unless the party concerned has applied for a reference to challenge those findings first by an application under section 66(1) of the Act. If he has failed to file an application expressly raising the question about the validity of the findings of fact, he is not entitled to urge before the High Court that the findings are vitiated for one reason or another. Similarly, in another case, Commissioner of Income-tax v. M. Ganapathi Mudaliar, it has been pointed out that, even if the question referred to the High Court is regarding the existence of material to support a finding of fact arrived at by the Appellate Tribunal, the High Court should not act as an appellate court and consider whether the finding was justified or not. In the present case, we think that there was no warrant for the High Court to interfere with the finding of the Appellate Tribunal that the purpose of the wakf was wholly religious and the maintenance of madrassas and library from 1942-43 onwards was not the original purpose for which the properties were gifted by the Murids, and that the allotment of money for the maintenance of madrassas and library did not alter the original character of the wakf which was established for a wholly religious purpose, viz., for the maintenance of the Roza and the mosque and the observance of festive occasions such as Urs and death anniversaries, etc., at these institutions. It has been stated by the Appellate Tribunal that the benefit of the wakf was available to all Muslims whether Murids or non-Murids who had unrestricted access to the Roza and the mosque and the festivities celebrated therein. Upon the facts found by the Appellate Tribunal we are of opinion that the Roza properties were held for a wholly religious purpose of a public character and therefore the income of the Roza properties was exempt from assessment under section 4(3)(i) of the ActOn behalf of the appellant an alternative argument was presented that the class of Murids constituted an appreciable section of the Sunni Bohra community and the income from the Roza properties was exempt from assessment on the ground that the Roza properties were held under a legal obligation for a wholly charitable purpose. The opposite view-point was put forward on behalf of the respondent and it was said that the class of Murids did not constitute a section of the community but was merely a fluctuating body of private individuals. In support of this argument reference was made to the decision of the House of Lords in Oppenheim v. Tobacco Securities Trust Co. Ltd., where it was held that, though the group of persons indicated was numerous, the nexus between them was employment by particular employers, and accordingly the trust did not satisfy the test of public benefit requisite to establish it as charitable. Reference was also made to a later decision in Mohamed Falil Abdul Caffoor and Others (Trustees of the Abdul Caffoor Trust) v. Commissioner of Income-tax, Colombo, in which it was held by the Judicial Committee that in view of the absolute priority to the benefit of the trust income which was conferred on the grantors own family by clause (2)(b)(i) of the trust deed, this was a family trust and not a trust of a public character wholly for charitable purpose, and the income thereof was accordingly not entitled to the exemption claimed by the appellant. In our opinion, it is not necessary to express any concluded opinion on this aspect of the case, because we have already held that the appellant is entitled to exemption from being taxed on the ground that the income was derived from property held under a legal obligation wholly for a religious purpose4. For these reasons we hold that the judgment of the High Court should be set aside and the questions referred to the High Court must be answered in the affirmative and in favour of the assessee.
### Response:
1
### Explanation:
In the present case, we think that there was no warrant for the High Court to interfere with the finding of the Appellate Tribunal that the purpose of the wakf was wholly religious and the maintenance of madrassas and library fromonwards was not the original purpose for which the properties were gifted by the Murids, and that the allotment of money for the maintenance of madrassas and library did not alter the original character of the wakf which was established for a wholly religious purpose, viz., for the maintenance of the Roza and the mosque and the observance of festive occasions such as Urs and death anniversaries, etc., at these institutions. It has been stated by the Appellate Tribunal that the benefit of the wakf was available to all Muslims whether Murids orwho had unrestricted access to the Roza and the mosque and the festivities celebrated therein. Upon the facts found by the Appellate Tribunal we are of opinion that the Roza properties were held for a wholly religious purpose of a public character and therefore the income of the Roza properties was exempt from assessment under section 4(3)(i) of the ActOn behalf of the appellant an alternative argument was presented that the class of Murids constituted an appreciable section of the Sunni Bohra community and the income from the Roza properties was exempt from assessment on the ground that the Roza properties were held under a legal obligation for a wholly charitable purpose. The oppositewas put forward on behalf of the respondent and it was said that the class of Murids did not constitute a section of the community but was merely a fluctuating body of private individuals. In support of this argument reference was made to the decision of the House of Lords in Oppenheim v. Tobacco Securities Trust Co. Ltd., where it was held that, though the group of persons indicated was numerous, the nexus between them was employment by particular employers, and accordingly the trust did not satisfy the test of public benefit requisite to establish it as charitable. Reference was also made to a later decision in Mohamed Falil Abdul Caffoor and Others (Trustees of the Abdul Caffoor Trust) v. Commissioner ofFor these reasons we hold that the judgment of the High Court should be set aside and the questions referred to the High Court must be answered in the affirmative and in favour of the assessee. We accordingly allow these appeals with costs. There will be one consolidated hearing fee.
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Gwalior Rayons Silk Manufacturing (Wvg) Company Limited Vs. Custodian of Vested Forests, Palghat and Another | Act, 1949 (the MPPF Act) applied immediately before the appointed day; the second concerned is in relation to the remaining areas in the State of Kerala. The definition of private forest as is applicable to the Malabar district is not general in terms but limited to the areas and lands to which the MPPF Act applied and exempts therefrom lands described under sub-clauses (A) to (D). This significant reference to MPPF Act in the definition of private forest in the Vesting Act makes all the difference in the case. The MPPF Act was a special enactment. It was enacted by the erstwhile Madras State to preserve the private forests in the district of Malabar and erstwhile South Kannara District. The scheme of that Act has been explained by several decisions of the Kerala High Court and that scheme appears to be that if the land is shown to be private forest on the date on which the MPPF Act came into force, it would continue to be a forest, even if there was subsequent replantation. 10. It is not in dispute that the lands involved in this appeal were all forests as defined in the MPPF Act, 1949 and continued to be so when the Vesting Act came into force in 1971. In Malankara case this Court was not concerned with the lands covered by the MPPF Act, and denuded thereafter of forest growth and cultivated with fresh replantation. Therefore, it seems inappropriate to transplant the meaning accorded to private forest from the KLR Act to the Vesting Act. That wide concept cannot fit into the new legal source. 11. In State of Kerala v. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. this Court while upholding the constitutional validity of the Vesting Act has observed that the forest lands in the State of Kerala has attained a peculiar character owing to the geography and climate and the evidence available showed that the vast areas of these forests are still capable of supporting large agricultural plantations. That much is clear from the following observations :(SCR p. 683 : SCC p. 726, para 30) "It is, therefore, manifest that when the legislature stated in the preamble that the private forests are agricultural lands, they merely wanted to convey that they are lands which by and large could be prudently and profitably exploited for agricultural purposes." * 12. There is thus a judicial recognition of the distinction between private forest in Travancore-Cochin area in Kerala State and the private forest in Malabar district. This distinction by itself is sufficient to dispel the anomalies suggested by counsel for the appellant. 13. Look at the definition. Sub-clause (A) refers to gardens or nilams as defined in the KLR Act.Garden means lands used principally for growing coconut trees, arecanut trees or pepper vines or any two or more of the same.Nilam means lands adapted for the cultivation of paddy. Sub-clause (B) deals with what may be called plantation crops, cultivation of which in the general sense would be cultivation of agricultural crops. Such agricultural crops are by name specified. Lands used for any purpose ancillary to such cultivation or for preparation of the same for the market are also included thereunder. Next follows sub-clause (C). It first refers to lands which are principally cultivated with cashew or other fruit-bearing trees. It thus refers to only the fruit-bearing trees. It next refers to lands which are principally cultivated with any other agricultural crop. If the legislature had intended to use the term agricultural crop in a wide sense so as to take within its fold all species of trees fruit-bearing or otherwise, it would be unnecessary to have the first limb denoting only the cashew or other fruit-bearing trees. It may be significant to note that the legislature in each sub-clause (A) to (C) has used the words to identify the different categories of crops or trees. The words used in every sub-clause too have "associations, echoes and over-tones". While construing such words, judges must, as Felix Frankfurther, J., said "retain the associations, hear the echoes and capture the overtones" (at p. 414). When so examined and construed, we do not discover any indication that the words in sub-clause (C) "any other agricultural crop" are quit wide enough to comprehend all species of trees including eucalyptus plantations. 14. It is said, indeed rightly, that in seeking legislative intention, judges not only listen to the voice of the legislature but also listen attentively to what the legislature does not say. Let us compare the wordings in Section 3 with those of sub-clause (C). Under Section 3 sub-section (1), private forests vest in government. Sub-clause (2) however, excludes from such vesting lands within the ceiling limits applicable to an owner if they are under his personal cultivation. Cultivation for this purpose "includes cultivation of trees or plants of any species". The explanation to sub-section (2) makes this aspect beyond doubt. The lands used for the cultivation of any kind of trees, fruit-bearing or yielding only timber or pulp are not vested under Section 3 sub-section (2). The legislature has thus excluded from vesting under Section 3 sub-section (2). The legislature has thus excluded from vesting under Section 3 sub-clause (2) the trees of every variety. But while providing for exclusion under sub-clause (C). the legislature could not have again thought of trees or plants of all kinds. It seems to have considered only fruit-bearing trees and not of other species. If the intention was otherwise, the sub-clause (C) would have been in a different language. 15. In our view as a matter of pure construction untrammelled by authority, the words used in the latter part of sub-clause (C) could not take within its fold all varieties of trees and it could exclude only fruit-bearing trees. 16. This is also the conclusion of the High Court not only in the impugned judgment under appeal but also in the subsequent two decisions; Malayalam Plantation Limited and K. C. Moosa Haji cases. | 0[ds]13. Look at the definition. Sub-clause (A) refers to gardens or nilams as defined in the KLR Act.Garden means lands used principally for growing coconut trees, arecanut trees or pepper vines or any two or more of the same.Nilam means lands adapted for the cultivation of paddy. Sub-clause (B) deals with what may be called plantation crops, cultivation of which in the general sense would be cultivation of agricultural crops. Such agricultural crops are by name specified. Lands used for any purpose ancillary to such cultivation or for preparation of the same for the market are also included thereunder. Next follows sub-clause (C). It first refers to lands which are principally cultivated with cashew or other fruit-bearing trees. It thus refers to only the fruit-bearing trees. It next refers to lands which are principally cultivated with any other agricultural crop. If the legislature had intended to use the term agricultural crop in a wide sense so as to take within its fold all species of trees fruit-bearing or otherwise, it would be unnecessary to have the first limb denoting only the cashew or other fruit-bearing trees. It may be significant to note that the legislature in each sub-clause (A) to (C) has used the words to identify the different categories of crops or trees. The words used in every sub-clause too have "associations, echoes and over-tones". While construing such words, judges must, as Felix Frankfurther, J., said "retain the associations, hear the echoes and capture the overtones" (at p. 414). When so examined and construed, we do not discover any indication that the words in sub-clause (C) "any other agricultural crop" are quit wide enough to comprehend all species of trees including eucalyptusIt is said, indeed rightly, that in seeking legislative intention, judges not only listen to the voice of the legislature but also listen attentively to what the legislature does not say. Let us compare the wordings in Section 3 with those of sub-clause (C). Under Section 3 sub-section (1), private forests vest in government. Sub-clause (2) however, excludes from such vesting lands within the ceiling limits applicable to an owner if they are under his personal cultivation. Cultivation for this purpose "includes cultivation of trees or plants of any species". The explanation to sub-section (2) makes this aspect beyond doubt. The lands used for the cultivation of any kind of trees, fruit-bearing or yielding only timber or pulp are not vested under Section 3 sub-section (2). The legislature has thus excluded from vesting under Section 3 sub-section (2). The legislature has thus excluded from vesting under Section 3 sub-clause (2) the trees of every variety. But while providing for exclusion under sub-clause (C). the legislature could not have again thought of trees or plants of all kinds. It seems to have considered only fruit-bearing trees and not of other species. If the intention was otherwise, the sub-clause (C) would have been in a differentIn our view as a matter of pure construction untrammelled by authority, the words used in the latter part of sub-clause (C) could not take within its fold all varieties of trees and it could exclude only fruit-bearing trees | 0 | 2,990 | 614 | ### 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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Act, 1949 (the MPPF Act) applied immediately before the appointed day; the second concerned is in relation to the remaining areas in the State of Kerala. The definition of private forest as is applicable to the Malabar district is not general in terms but limited to the areas and lands to which the MPPF Act applied and exempts therefrom lands described under sub-clauses (A) to (D). This significant reference to MPPF Act in the definition of private forest in the Vesting Act makes all the difference in the case. The MPPF Act was a special enactment. It was enacted by the erstwhile Madras State to preserve the private forests in the district of Malabar and erstwhile South Kannara District. The scheme of that Act has been explained by several decisions of the Kerala High Court and that scheme appears to be that if the land is shown to be private forest on the date on which the MPPF Act came into force, it would continue to be a forest, even if there was subsequent replantation. 10. It is not in dispute that the lands involved in this appeal were all forests as defined in the MPPF Act, 1949 and continued to be so when the Vesting Act came into force in 1971. In Malankara case this Court was not concerned with the lands covered by the MPPF Act, and denuded thereafter of forest growth and cultivated with fresh replantation. Therefore, it seems inappropriate to transplant the meaning accorded to private forest from the KLR Act to the Vesting Act. That wide concept cannot fit into the new legal source. 11. In State of Kerala v. Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. this Court while upholding the constitutional validity of the Vesting Act has observed that the forest lands in the State of Kerala has attained a peculiar character owing to the geography and climate and the evidence available showed that the vast areas of these forests are still capable of supporting large agricultural plantations. That much is clear from the following observations :(SCR p. 683 : SCC p. 726, para 30) "It is, therefore, manifest that when the legislature stated in the preamble that the private forests are agricultural lands, they merely wanted to convey that they are lands which by and large could be prudently and profitably exploited for agricultural purposes." * 12. There is thus a judicial recognition of the distinction between private forest in Travancore-Cochin area in Kerala State and the private forest in Malabar district. This distinction by itself is sufficient to dispel the anomalies suggested by counsel for the appellant. 13. Look at the definition. Sub-clause (A) refers to gardens or nilams as defined in the KLR Act.Garden means lands used principally for growing coconut trees, arecanut trees or pepper vines or any two or more of the same.Nilam means lands adapted for the cultivation of paddy. Sub-clause (B) deals with what may be called plantation crops, cultivation of which in the general sense would be cultivation of agricultural crops. Such agricultural crops are by name specified. Lands used for any purpose ancillary to such cultivation or for preparation of the same for the market are also included thereunder. Next follows sub-clause (C). It first refers to lands which are principally cultivated with cashew or other fruit-bearing trees. It thus refers to only the fruit-bearing trees. It next refers to lands which are principally cultivated with any other agricultural crop. If the legislature had intended to use the term agricultural crop in a wide sense so as to take within its fold all species of trees fruit-bearing or otherwise, it would be unnecessary to have the first limb denoting only the cashew or other fruit-bearing trees. It may be significant to note that the legislature in each sub-clause (A) to (C) has used the words to identify the different categories of crops or trees. The words used in every sub-clause too have "associations, echoes and over-tones". While construing such words, judges must, as Felix Frankfurther, J., said "retain the associations, hear the echoes and capture the overtones" (at p. 414). When so examined and construed, we do not discover any indication that the words in sub-clause (C) "any other agricultural crop" are quit wide enough to comprehend all species of trees including eucalyptus plantations. 14. It is said, indeed rightly, that in seeking legislative intention, judges not only listen to the voice of the legislature but also listen attentively to what the legislature does not say. Let us compare the wordings in Section 3 with those of sub-clause (C). Under Section 3 sub-section (1), private forests vest in government. Sub-clause (2) however, excludes from such vesting lands within the ceiling limits applicable to an owner if they are under his personal cultivation. Cultivation for this purpose "includes cultivation of trees or plants of any species". The explanation to sub-section (2) makes this aspect beyond doubt. The lands used for the cultivation of any kind of trees, fruit-bearing or yielding only timber or pulp are not vested under Section 3 sub-section (2). The legislature has thus excluded from vesting under Section 3 sub-section (2). The legislature has thus excluded from vesting under Section 3 sub-clause (2) the trees of every variety. But while providing for exclusion under sub-clause (C). the legislature could not have again thought of trees or plants of all kinds. It seems to have considered only fruit-bearing trees and not of other species. If the intention was otherwise, the sub-clause (C) would have been in a different language. 15. In our view as a matter of pure construction untrammelled by authority, the words used in the latter part of sub-clause (C) could not take within its fold all varieties of trees and it could exclude only fruit-bearing trees. 16. This is also the conclusion of the High Court not only in the impugned judgment under appeal but also in the subsequent two decisions; Malayalam Plantation Limited and K. C. Moosa Haji cases.
### Response:
0
### Explanation:
13. Look at the definition. Sub-clause (A) refers to gardens or nilams as defined in the KLR Act.Garden means lands used principally for growing coconut trees, arecanut trees or pepper vines or any two or more of the same.Nilam means lands adapted for the cultivation of paddy. Sub-clause (B) deals with what may be called plantation crops, cultivation of which in the general sense would be cultivation of agricultural crops. Such agricultural crops are by name specified. Lands used for any purpose ancillary to such cultivation or for preparation of the same for the market are also included thereunder. Next follows sub-clause (C). It first refers to lands which are principally cultivated with cashew or other fruit-bearing trees. It thus refers to only the fruit-bearing trees. It next refers to lands which are principally cultivated with any other agricultural crop. If the legislature had intended to use the term agricultural crop in a wide sense so as to take within its fold all species of trees fruit-bearing or otherwise, it would be unnecessary to have the first limb denoting only the cashew or other fruit-bearing trees. It may be significant to note that the legislature in each sub-clause (A) to (C) has used the words to identify the different categories of crops or trees. The words used in every sub-clause too have "associations, echoes and over-tones". While construing such words, judges must, as Felix Frankfurther, J., said "retain the associations, hear the echoes and capture the overtones" (at p. 414). When so examined and construed, we do not discover any indication that the words in sub-clause (C) "any other agricultural crop" are quit wide enough to comprehend all species of trees including eucalyptusIt is said, indeed rightly, that in seeking legislative intention, judges not only listen to the voice of the legislature but also listen attentively to what the legislature does not say. Let us compare the wordings in Section 3 with those of sub-clause (C). Under Section 3 sub-section (1), private forests vest in government. Sub-clause (2) however, excludes from such vesting lands within the ceiling limits applicable to an owner if they are under his personal cultivation. Cultivation for this purpose "includes cultivation of trees or plants of any species". The explanation to sub-section (2) makes this aspect beyond doubt. The lands used for the cultivation of any kind of trees, fruit-bearing or yielding only timber or pulp are not vested under Section 3 sub-section (2). The legislature has thus excluded from vesting under Section 3 sub-section (2). The legislature has thus excluded from vesting under Section 3 sub-clause (2) the trees of every variety. But while providing for exclusion under sub-clause (C). the legislature could not have again thought of trees or plants of all kinds. It seems to have considered only fruit-bearing trees and not of other species. If the intention was otherwise, the sub-clause (C) would have been in a differentIn our view as a matter of pure construction untrammelled by authority, the words used in the latter part of sub-clause (C) could not take within its fold all varieties of trees and it could exclude only fruit-bearing trees
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Indian Drugs&Pharmaceuticals Ltd. Vs. R.K.Shewaramani | notice, the respondent had been served minutes of charge sheets dated 27.9.1989 and 12.12.1989 of the proceedings held on 30.7.1990. He was also asked to attend enquiry on certain dates. The High Court, therefore, held that the impugned order cannot be said to have been passed bona fide. Rule 30(A) of the Rules had no application as the two departmental proceedings were already pending and those related to periods prior to coming into effect of Rule 30(A) which cannot be said to have any retrospective effect. Accordingly, the writ petition was allowed and the order of termination was set aside. Liberty was however given to the employer for proceedings further with the departmental proceedings against the respondent. 5. In support of the appeal, learned counsel submitted that the approach of the High Court is clearly erroneous. There is no requirement in law that when a fresh enquiry is commenced, the earlier proceedings should be given a go by. Further, factually also it is not correct as held by the High Court that the show cause notice was not in terms of Rule 30(A). In any event, the respondent himself knew that the action had been taken under Rule 30(A). There was no mala fide involved as erroneously observed by the High Court. 6. In response, learned counsel for the respondent- employee submitted that because of trade union activities the respondent was made a victim. When two proceedings were already in progress, there was no necessity to take resort to Rule 30(A) and that too in a hurried manner without proper opportunity being granted to the respondent to place his side of the case. Therefore, the High Court was justified in interfering with the order of termination. 7. Rule 30(A) reads as follows: "30(A) Notwithstanding anything contained to the contrary in any other rules, the services of any employee shall be terminated by the Company if:- (a) his post is abolished; (b) he is declared on medical ground to be unfit for service in the Company, or (c) he remains on unauthorized absence for thirty days or more. Explanation: 1. In a case of (a) & (b) above, the services shall be terminated after giving three months notice to a permanent employee and one months notice to a temporary employee or pay in lieu thereof in both the cases; 2. In the case of (c) above, services of any employee shall be terminated if he fails to explain his conduct satisfactorily within 15 days from the date of receipt of the Show Cause Notice by him. The Management shall be empowered to take a decision without resorting to further enquiries. 3.(a)The decision in case of (c) above would be taken only with the prior approval of a Screening Committee of 2 Directors/Executive Director to be constituted for this purpose by the Chairman & Managing Director. (b) The reasons for the decision would be recorded in writing." 8. These rules are made effective with effect from 30th March, 1990. 9. At this juncture, it is to be noted that the validity of a Rule similar to Rule 30(A) was considered by this Court in Pyare Lal Sharma v. Managing Director and Ors. (1989(3) SCC 448). In that case after having held that the concerned rule was intra-vires, on the facts of the case it was held the amended rule could not operate retrospectively and could operate only from the date of amendment and, therefore, on the facts of that case it was held that for a period prior to the introduction of the amended provision, action cannot be taken. In the instant case, the period of absence to which reference has been made by the appellants clearly related to a period subsequent to the date of introduction of the amended provision. That being so, the High Court has rightly not led any stress on that plea though urged by respondent-employee before the High Court. 10. That brings us to the crucial question as to whether the High Courts view is sustainable on the facts of the case. 11. There is no requirement in law that for continuing with fresh proceedings the charge sheet issued must indicate that the previous proceedings pending have been given a go by. The employer is free to proceed in as many as departmental proceedings as it considers desirable. Even in a hypothetical case in two of the departmental proceedings the finding is in favour of the delinquent employee, yet in another departmental proceeding finding adverse to the delinquent officer can be recorded. Merely because the two proceedings were pending, that did not in any way stand on the way of the employer to initiate another departmental proceeding and that too on the basis of an amended provision which came into effect after initiation of the previous departmental proceeding. The High Courts view therefore is clearly unsustainable. The High Court had also observed that in the show cause notice there was no reference to Rule 30(A). This is not factually correct. As the records reveal clear reference was made to IDPL Corporate Office letter No. IDP /7/32 /Estt /90 dated 24.9.1990. This related to the amendment of Rule 30(A). Additionally, the respondent- employee was not taken to surprise and no prejudice was caused to him by not mentioning of Rule 30(A) specifically. On the other hand, from his reply dated 22.6.1990 it is clearly revealed that he knew that the proceeding was in terms of the amended Rule 30(A). His specific stand as is revealed from reply to the show-cause notice is that the company having become realized that it will not be in a position to establish the allegations forming foundation of the two departmental proceedings, has resorted to Rule 30(A). That being so, the High Court was not justified in drawing an adverse inference by concluding that non mention of Rule 30(A) specifically in the show cause notice vitiate the proceedings. There is no dispute that factors necessary to bring in application of Rule 30(A) existed | 1[ds]9. At this juncture, it is to be noted that the validity of a Rule similar to Rule 30(A) was considered by this Court in Pyare Lal Sharma v. Managing Director and Ors. (1989(3) SCC 448). In that case after having held that the concerned rule was intra-vires, on the facts of the case it was held the amended rule could not operate retrospectively and could operate only from the date of amendment and, therefore, on the facts of that case it was held that for a period prior to the introduction of the amended provision, action cannot be taken. In the instant case, the period of absence to which reference has been made by the appellants clearly related to a period subsequent to the date of introduction of the amended provision. That being so, the High Court has rightly not led any stress on that plea though urged by respondent-employee before the High Court11. There is no requirement in law that for continuing with fresh proceedings the charge sheet issued must indicate that the previous proceedings pending have been given a go by. The employer is free to proceed in as many as departmental proceedings as it considers desirable. Even in a hypothetical case in two of the departmental proceedings the finding is in favour of the delinquent employee, yet in another departmental proceeding finding adverse to the delinquent officer can be recorded. Merely because the two proceedings were pending, that did not in any way stand on the way of the employer to initiate another departmental proceeding and that too on the basis of an amended provision which came into effect after initiation of the previous departmental proceeding. The High Courts view therefore is clearly unsustainable. The High Court had also observed that in the show cause notice there was no reference to Rule 30(A). This is not factually correct. As the records reveal clear reference was made to IDPL Corporate Office letter No. IDP /7/32 /Estt /90 dated 24.9.1990. This related to the amendment of Rule 30(A). Additionally, the respondent- employee was not taken to surprise and no prejudice was caused to him by not mentioning of Rule 30(A) specifically. On the other hand, from his reply dated 22.6.1990 it is clearly revealed that he knew that the proceeding was in terms of the amended Rule 30(A). His specific stand as is revealed from reply to the show-cause notice is that the company having become realized that it will not be in a position to establish the allegations forming foundation of the two departmental proceedings, has resorted to Rule 30(A). That being so, the High Court was not justified in drawing an adverse inference by concluding that non mention of Rule 30(A) specifically in the show cause notice vitiate the proceedings. There is no dispute that factors necessary to bring in application of Rule 30(A) existed | 1 | 1,743 | 546 | ### 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:
notice, the respondent had been served minutes of charge sheets dated 27.9.1989 and 12.12.1989 of the proceedings held on 30.7.1990. He was also asked to attend enquiry on certain dates. The High Court, therefore, held that the impugned order cannot be said to have been passed bona fide. Rule 30(A) of the Rules had no application as the two departmental proceedings were already pending and those related to periods prior to coming into effect of Rule 30(A) which cannot be said to have any retrospective effect. Accordingly, the writ petition was allowed and the order of termination was set aside. Liberty was however given to the employer for proceedings further with the departmental proceedings against the respondent. 5. In support of the appeal, learned counsel submitted that the approach of the High Court is clearly erroneous. There is no requirement in law that when a fresh enquiry is commenced, the earlier proceedings should be given a go by. Further, factually also it is not correct as held by the High Court that the show cause notice was not in terms of Rule 30(A). In any event, the respondent himself knew that the action had been taken under Rule 30(A). There was no mala fide involved as erroneously observed by the High Court. 6. In response, learned counsel for the respondent- employee submitted that because of trade union activities the respondent was made a victim. When two proceedings were already in progress, there was no necessity to take resort to Rule 30(A) and that too in a hurried manner without proper opportunity being granted to the respondent to place his side of the case. Therefore, the High Court was justified in interfering with the order of termination. 7. Rule 30(A) reads as follows: "30(A) Notwithstanding anything contained to the contrary in any other rules, the services of any employee shall be terminated by the Company if:- (a) his post is abolished; (b) he is declared on medical ground to be unfit for service in the Company, or (c) he remains on unauthorized absence for thirty days or more. Explanation: 1. In a case of (a) & (b) above, the services shall be terminated after giving three months notice to a permanent employee and one months notice to a temporary employee or pay in lieu thereof in both the cases; 2. In the case of (c) above, services of any employee shall be terminated if he fails to explain his conduct satisfactorily within 15 days from the date of receipt of the Show Cause Notice by him. The Management shall be empowered to take a decision without resorting to further enquiries. 3.(a)The decision in case of (c) above would be taken only with the prior approval of a Screening Committee of 2 Directors/Executive Director to be constituted for this purpose by the Chairman & Managing Director. (b) The reasons for the decision would be recorded in writing." 8. These rules are made effective with effect from 30th March, 1990. 9. At this juncture, it is to be noted that the validity of a Rule similar to Rule 30(A) was considered by this Court in Pyare Lal Sharma v. Managing Director and Ors. (1989(3) SCC 448). In that case after having held that the concerned rule was intra-vires, on the facts of the case it was held the amended rule could not operate retrospectively and could operate only from the date of amendment and, therefore, on the facts of that case it was held that for a period prior to the introduction of the amended provision, action cannot be taken. In the instant case, the period of absence to which reference has been made by the appellants clearly related to a period subsequent to the date of introduction of the amended provision. That being so, the High Court has rightly not led any stress on that plea though urged by respondent-employee before the High Court. 10. That brings us to the crucial question as to whether the High Courts view is sustainable on the facts of the case. 11. There is no requirement in law that for continuing with fresh proceedings the charge sheet issued must indicate that the previous proceedings pending have been given a go by. The employer is free to proceed in as many as departmental proceedings as it considers desirable. Even in a hypothetical case in two of the departmental proceedings the finding is in favour of the delinquent employee, yet in another departmental proceeding finding adverse to the delinquent officer can be recorded. Merely because the two proceedings were pending, that did not in any way stand on the way of the employer to initiate another departmental proceeding and that too on the basis of an amended provision which came into effect after initiation of the previous departmental proceeding. The High Courts view therefore is clearly unsustainable. The High Court had also observed that in the show cause notice there was no reference to Rule 30(A). This is not factually correct. As the records reveal clear reference was made to IDPL Corporate Office letter No. IDP /7/32 /Estt /90 dated 24.9.1990. This related to the amendment of Rule 30(A). Additionally, the respondent- employee was not taken to surprise and no prejudice was caused to him by not mentioning of Rule 30(A) specifically. On the other hand, from his reply dated 22.6.1990 it is clearly revealed that he knew that the proceeding was in terms of the amended Rule 30(A). His specific stand as is revealed from reply to the show-cause notice is that the company having become realized that it will not be in a position to establish the allegations forming foundation of the two departmental proceedings, has resorted to Rule 30(A). That being so, the High Court was not justified in drawing an adverse inference by concluding that non mention of Rule 30(A) specifically in the show cause notice vitiate the proceedings. There is no dispute that factors necessary to bring in application of Rule 30(A) existed
### Response:
1
### Explanation:
9. At this juncture, it is to be noted that the validity of a Rule similar to Rule 30(A) was considered by this Court in Pyare Lal Sharma v. Managing Director and Ors. (1989(3) SCC 448). In that case after having held that the concerned rule was intra-vires, on the facts of the case it was held the amended rule could not operate retrospectively and could operate only from the date of amendment and, therefore, on the facts of that case it was held that for a period prior to the introduction of the amended provision, action cannot be taken. In the instant case, the period of absence to which reference has been made by the appellants clearly related to a period subsequent to the date of introduction of the amended provision. That being so, the High Court has rightly not led any stress on that plea though urged by respondent-employee before the High Court11. There is no requirement in law that for continuing with fresh proceedings the charge sheet issued must indicate that the previous proceedings pending have been given a go by. The employer is free to proceed in as many as departmental proceedings as it considers desirable. Even in a hypothetical case in two of the departmental proceedings the finding is in favour of the delinquent employee, yet in another departmental proceeding finding adverse to the delinquent officer can be recorded. Merely because the two proceedings were pending, that did not in any way stand on the way of the employer to initiate another departmental proceeding and that too on the basis of an amended provision which came into effect after initiation of the previous departmental proceeding. The High Courts view therefore is clearly unsustainable. The High Court had also observed that in the show cause notice there was no reference to Rule 30(A). This is not factually correct. As the records reveal clear reference was made to IDPL Corporate Office letter No. IDP /7/32 /Estt /90 dated 24.9.1990. This related to the amendment of Rule 30(A). Additionally, the respondent- employee was not taken to surprise and no prejudice was caused to him by not mentioning of Rule 30(A) specifically. On the other hand, from his reply dated 22.6.1990 it is clearly revealed that he knew that the proceeding was in terms of the amended Rule 30(A). His specific stand as is revealed from reply to the show-cause notice is that the company having become realized that it will not be in a position to establish the allegations forming foundation of the two departmental proceedings, has resorted to Rule 30(A). That being so, the High Court was not justified in drawing an adverse inference by concluding that non mention of Rule 30(A) specifically in the show cause notice vitiate the proceedings. There is no dispute that factors necessary to bring in application of Rule 30(A) existed
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Jayamma Vs. Maria Bai Dead by Proposed Lrs. & Another | In Sangappa Klyanappa Bangi (supra), whereupon Mr. Bhat placed strong reliance, a Division Bench of this Court held: "...We have to read Section 21 with Section 24 to understand the full purport of the provisions. Section 24 is enacted only for the purpose of making it clear that the tenancy continues notwithstanding the death of the tenant and such tenancy is held by the heirs of such tenant on the same terms and conditions on which he had held prior to his death. The heirs who can take the property are those who are referable to in Section 21. If he is a member of the joint family, then the surviving members of the joint family and if he is not such a member of a joint family, his heirs would be entitled to partition. Again, as to who his heirs are will have to be determined not with reference to the Act, but with reference to the personal law on the matter. The assignment of any interest in the tenanted land will not be valid. A devise or a bequest under a Will cannot be stated to fall outside the scope of the said provisions inasmuch as such assignment disposes of or deals with the lease. When there is a disposition of rights under a Will, though it operates posthumously is nevertheless a recognition of the right of the legatee thereunder as to his rights of the tenanted land. In that event, there is an assignment of the tenanted land but that right will come into effect after the death of the testator. Therefore, though it can be said in general terms that the devise simpliciter will not amount to an assignment, in a special case of this nature, interpretation will have to be otherwise." 24. Having held so, the Bench however having regard to the phraseology used in Section 21 of the said Act proceeded to observe that the object of the law is not to allow strangers to the family of the tenant to come upon the land stating: "... We must take into consideration that when it is possible for the tenant to pass the property to those who may nor necessarily be the heirs under the ordinary law and who become heirs only by reason of a bequest under a Will in which event, he would be a stranger to the family and imported on the land thus to the detriment of the landlord. In that event. It must be taken that a devise under a Will will also amount to an assignment and, therefore be not valid for the purpose of Section 21 of the Act. If Section 24 is read along with Section 21 it would only mean that the land can pass by succession to the heirs of a deceased tenant, but subject to the conditions prescribed in Section 21 of the Act. Therefore, we are of the view that the broad statement made by the High Court in the two decisions in Shivanna ((1977) 1 Kant LJ 146 (Short Notes Item 160)) and Dhareppa v. State of Karnataka ((1979) 1 Kant LJ 18) would not promote the object and purpose of the law. Therefore, the better view appears to us is as stated by the High Court in Timmakka Kom Venkama Naik v. Land Tribunal ((1987) 2Kant LJ 337). It was further observed: "... It is no doubt true that the meaning attributed to an heir could be as suggested by the learned counsel for the applicants so as to include the descendant and other persons related by legitimate kinship or otherwise who may be covered by a Will, but the true question to be decided in this case is if a devise of that nature is hit by Section 21 of the Act or not. The object and purpose of Section 21 being to continue the rights of tenancy only to those known under law as heirs and therefore, assignment to strangers is barred..." 25. Apart from the fact that the interpretation was rendered having regard to the language used in Section 21 of the said Act which would not ipso facto apply to Section 61 thereof; as thereby a stricter statutory embargo has been imposed on transfer or assignment, the contention of Mr. Bhat to the effect that the appellant was a relation of the testator also does not appear to be correct. In her examination in chief itself, the appellant stated: "I am the Plaintiff P.W. 3 Richard DSouza is my son-in-law. He was residing at Kinnigoli and after marriage he is residing at Kateel. He was living in a house within a distance about 1/4 meter from the house of the deceased Anthony Rebello. I was living in the house of my son-in-law. Anthony Rebello was living alone in his house. He is no more. I knew him for a period of about 1 year and 9 months prior to his death. I came to know him as I was living in the house of my son-in-law Anthony Rebello came to my son-in-laws house and told him that he has no one to look after him and he is aged 82 years. During this 1 year and 9 months his wife or children had not come to see him. Anthony Rebello requested my son-in-law for assistance and therefore, I, my son-in-law looking after him." 26. The appellant, therefore in view of the aforementioned statement was not having any legitimate kinship with the testator of the Will.27. On a fair construction of Section 61 of the Act, in our opinion as transfer of agricultural land with occupancy right is permissible only in favour of one of the heirs who would be entitled to claim partition of land and not others having regard to the definition of family as contained in Sections 2(12) and joint family as contained in Section 2(17) or the said Act. 28. We, therefore, find no force also in the second submission of Mr. Bhat. | 0[ds]16. We would discuss the construction of the provision of Section 61 of the said Act, a little later, but we have no hesitation on holding that in the event if it be held that the testator could not have executed the Will in favour of a person who could not be declared to be a tenant having occupancy right such a Will would be void ab intio and therefore, non est in the eye of law. The court in such an event would not be determining a disputed question of title but would be considering the effect of the statute vis-a-vis the Will in question.Apart from the fact that the interpretation was rendered having regard to the language used in Section 21 of the said Act which would not ipso facto apply to Section 61 thereof; as thereby a stricter statutory embargo has been imposed on transfer or assignment, the contention of Mr. Bhat to the effect that the appellant was a relation of the testator also does not appear to be correct.The appellant, therefore in view of the aforementioned statement was not having any legitimate kinship with the testator of the Will.27. On a fair construction of Section 61 of the Act, in our opinion as transfer of agricultural land with occupancy right is permissible only in favour of one of the heirs who would be entitled to claim partition of land and not others having regard to the definition of family as contained in Sections 2(12) and joint family as contained in Section 2(17) or the said Act. | 0 | 3,306 | 282 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
In Sangappa Klyanappa Bangi (supra), whereupon Mr. Bhat placed strong reliance, a Division Bench of this Court held: "...We have to read Section 21 with Section 24 to understand the full purport of the provisions. Section 24 is enacted only for the purpose of making it clear that the tenancy continues notwithstanding the death of the tenant and such tenancy is held by the heirs of such tenant on the same terms and conditions on which he had held prior to his death. The heirs who can take the property are those who are referable to in Section 21. If he is a member of the joint family, then the surviving members of the joint family and if he is not such a member of a joint family, his heirs would be entitled to partition. Again, as to who his heirs are will have to be determined not with reference to the Act, but with reference to the personal law on the matter. The assignment of any interest in the tenanted land will not be valid. A devise or a bequest under a Will cannot be stated to fall outside the scope of the said provisions inasmuch as such assignment disposes of or deals with the lease. When there is a disposition of rights under a Will, though it operates posthumously is nevertheless a recognition of the right of the legatee thereunder as to his rights of the tenanted land. In that event, there is an assignment of the tenanted land but that right will come into effect after the death of the testator. Therefore, though it can be said in general terms that the devise simpliciter will not amount to an assignment, in a special case of this nature, interpretation will have to be otherwise." 24. Having held so, the Bench however having regard to the phraseology used in Section 21 of the said Act proceeded to observe that the object of the law is not to allow strangers to the family of the tenant to come upon the land stating: "... We must take into consideration that when it is possible for the tenant to pass the property to those who may nor necessarily be the heirs under the ordinary law and who become heirs only by reason of a bequest under a Will in which event, he would be a stranger to the family and imported on the land thus to the detriment of the landlord. In that event. It must be taken that a devise under a Will will also amount to an assignment and, therefore be not valid for the purpose of Section 21 of the Act. If Section 24 is read along with Section 21 it would only mean that the land can pass by succession to the heirs of a deceased tenant, but subject to the conditions prescribed in Section 21 of the Act. Therefore, we are of the view that the broad statement made by the High Court in the two decisions in Shivanna ((1977) 1 Kant LJ 146 (Short Notes Item 160)) and Dhareppa v. State of Karnataka ((1979) 1 Kant LJ 18) would not promote the object and purpose of the law. Therefore, the better view appears to us is as stated by the High Court in Timmakka Kom Venkama Naik v. Land Tribunal ((1987) 2Kant LJ 337). It was further observed: "... It is no doubt true that the meaning attributed to an heir could be as suggested by the learned counsel for the applicants so as to include the descendant and other persons related by legitimate kinship or otherwise who may be covered by a Will, but the true question to be decided in this case is if a devise of that nature is hit by Section 21 of the Act or not. The object and purpose of Section 21 being to continue the rights of tenancy only to those known under law as heirs and therefore, assignment to strangers is barred..." 25. Apart from the fact that the interpretation was rendered having regard to the language used in Section 21 of the said Act which would not ipso facto apply to Section 61 thereof; as thereby a stricter statutory embargo has been imposed on transfer or assignment, the contention of Mr. Bhat to the effect that the appellant was a relation of the testator also does not appear to be correct. In her examination in chief itself, the appellant stated: "I am the Plaintiff P.W. 3 Richard DSouza is my son-in-law. He was residing at Kinnigoli and after marriage he is residing at Kateel. He was living in a house within a distance about 1/4 meter from the house of the deceased Anthony Rebello. I was living in the house of my son-in-law. Anthony Rebello was living alone in his house. He is no more. I knew him for a period of about 1 year and 9 months prior to his death. I came to know him as I was living in the house of my son-in-law Anthony Rebello came to my son-in-laws house and told him that he has no one to look after him and he is aged 82 years. During this 1 year and 9 months his wife or children had not come to see him. Anthony Rebello requested my son-in-law for assistance and therefore, I, my son-in-law looking after him." 26. The appellant, therefore in view of the aforementioned statement was not having any legitimate kinship with the testator of the Will.27. On a fair construction of Section 61 of the Act, in our opinion as transfer of agricultural land with occupancy right is permissible only in favour of one of the heirs who would be entitled to claim partition of land and not others having regard to the definition of family as contained in Sections 2(12) and joint family as contained in Section 2(17) or the said Act. 28. We, therefore, find no force also in the second submission of Mr. Bhat.
### Response:
0
### Explanation:
16. We would discuss the construction of the provision of Section 61 of the said Act, a little later, but we have no hesitation on holding that in the event if it be held that the testator could not have executed the Will in favour of a person who could not be declared to be a tenant having occupancy right such a Will would be void ab intio and therefore, non est in the eye of law. The court in such an event would not be determining a disputed question of title but would be considering the effect of the statute vis-a-vis the Will in question.Apart from the fact that the interpretation was rendered having regard to the language used in Section 21 of the said Act which would not ipso facto apply to Section 61 thereof; as thereby a stricter statutory embargo has been imposed on transfer or assignment, the contention of Mr. Bhat to the effect that the appellant was a relation of the testator also does not appear to be correct.The appellant, therefore in view of the aforementioned statement was not having any legitimate kinship with the testator of the Will.27. On a fair construction of Section 61 of the Act, in our opinion as transfer of agricultural land with occupancy right is permissible only in favour of one of the heirs who would be entitled to claim partition of land and not others having regard to the definition of family as contained in Sections 2(12) and joint family as contained in Section 2(17) or the said Act.
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Anand Agro Chemical India Ltd Vs. Suresh Chandra & Others | 1. Taken on board.2. This petition is directed against order dated 26.04.2013 of the Division Bench of the Allahabad High Court, the operative portion of which reads as under:"In the special facts and circumstances of the case, we direct the District Magistrate, Hathras to take immediate action against the Directors and occupiers of the sugar mill against whom several orders have been passed under the U.P. Sugarcane (Regulation and Supply) Act, 1913. The District Magistrate, Hathras may in exercise of his powers cause arrest of the Directors and occupier of the sugar mill to recover the dues. If the District Magistrate causes arrests, the Directors/occupier of the sugar mill will not be released until they have paid the entire amount due against them. List on 13th Mary, 2013. A copy of the order be given to learned Standing Counsel today for compliance." 3. We have heard Shri Sanjay Parikh, learned counsel for the petitioner and perused the record. 4. A reading of the order under challenge shows that the petitioner has not paid Rs. 16.12 crores to the farmers for the crushing year 2005-06 to 2009-10, which includes the price of sugarcane, the cane development commission and the interest. It is also borne out from the record that vide letter dated 24.11.2012, the Director of the petitioner had assured the Cane Commissioner that the company will pay Rs. 160 lacs as the price of the cane within two weeks and an amount of Rs. 700 lacs in instalments, the first of which will be paid on 15.01.2013, but the company did not fulfil its assurance.5. In the above backdrop, it is not possible to find any fault with the direction given by the Division Bench of the High Court and there is absolutely no justification for this Courts interference with the impugned order. | 0[ds]4. A reading of the order under challenge shows that the petitioner has not paid Rs. 16.12 crores to the farmers for the crushing year0, which includes the price of sugarcane, the cane development commission and the interest. It is also borne out from the record that vide letter dated 24.11.2012, the Director of the petitioner had assured the Cane Commissioner that the company will pay Rs. 160 lacs as the price of the cane within two weeks and an amount of Rs. 700 lacs in instalments, the first of which will be paid on 15.01.2013, but the company did not fulfil its assurance.5. In the above backdrop, it is not possible to find any fault with the direction given by the Division Bench of the High Court and there is absolutely no justification for this Courts interference with the impugned order.In the above backdrop, it is not possible to find any fault with the direction given by the Division Bench of the High Court and there is absolutely no justification for this Courts interference with the impugned order.A reading of the order under challenge shows that the petitioner has not paid Rs. 16.12 crores to the farmers for the crushing year0, which includes the price of sugarcane, the cane development commission and the interest. It is also borne out from the record that vide letter dated 24.11.2012, the Director of the petitioner had assured the Cane Commissioner that the company will pay Rs. 160 lacs as the price of the cane within two weeks and an amount of Rs. 700 lacs in instalments, the first of which will be paid on 15.01.2013, but the company did not fulfil its assurance. | 0 | 340 | 308 | ### 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. Taken on board.2. This petition is directed against order dated 26.04.2013 of the Division Bench of the Allahabad High Court, the operative portion of which reads as under:"In the special facts and circumstances of the case, we direct the District Magistrate, Hathras to take immediate action against the Directors and occupiers of the sugar mill against whom several orders have been passed under the U.P. Sugarcane (Regulation and Supply) Act, 1913. The District Magistrate, Hathras may in exercise of his powers cause arrest of the Directors and occupier of the sugar mill to recover the dues. If the District Magistrate causes arrests, the Directors/occupier of the sugar mill will not be released until they have paid the entire amount due against them. List on 13th Mary, 2013. A copy of the order be given to learned Standing Counsel today for compliance." 3. We have heard Shri Sanjay Parikh, learned counsel for the petitioner and perused the record. 4. A reading of the order under challenge shows that the petitioner has not paid Rs. 16.12 crores to the farmers for the crushing year 2005-06 to 2009-10, which includes the price of sugarcane, the cane development commission and the interest. It is also borne out from the record that vide letter dated 24.11.2012, the Director of the petitioner had assured the Cane Commissioner that the company will pay Rs. 160 lacs as the price of the cane within two weeks and an amount of Rs. 700 lacs in instalments, the first of which will be paid on 15.01.2013, but the company did not fulfil its assurance.5. In the above backdrop, it is not possible to find any fault with the direction given by the Division Bench of the High Court and there is absolutely no justification for this Courts interference with the impugned order.
### Response:
0
### Explanation:
4. A reading of the order under challenge shows that the petitioner has not paid Rs. 16.12 crores to the farmers for the crushing year0, which includes the price of sugarcane, the cane development commission and the interest. It is also borne out from the record that vide letter dated 24.11.2012, the Director of the petitioner had assured the Cane Commissioner that the company will pay Rs. 160 lacs as the price of the cane within two weeks and an amount of Rs. 700 lacs in instalments, the first of which will be paid on 15.01.2013, but the company did not fulfil its assurance.5. In the above backdrop, it is not possible to find any fault with the direction given by the Division Bench of the High Court and there is absolutely no justification for this Courts interference with the impugned order.In the above backdrop, it is not possible to find any fault with the direction given by the Division Bench of the High Court and there is absolutely no justification for this Courts interference with the impugned order.A reading of the order under challenge shows that the petitioner has not paid Rs. 16.12 crores to the farmers for the crushing year0, which includes the price of sugarcane, the cane development commission and the interest. It is also borne out from the record that vide letter dated 24.11.2012, the Director of the petitioner had assured the Cane Commissioner that the company will pay Rs. 160 lacs as the price of the cane within two weeks and an amount of Rs. 700 lacs in instalments, the first of which will be paid on 15.01.2013, but the company did not fulfil its assurance.
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Rajkumari Kaushalya Devi Vs. Bawa Pritma Singh And Another | as an unsecured creditor in relation to the debt, in which case the provisions of the Act would apply accordingly. It was urged that this sub-section requires that a creditor must make an election before he can take the benefit of this Act. We are of opinion that this argument has no force, for sub-s. (5) of S. 16 only deals with a situation which arises where the mortgage, charge or lien was on immovable property situate in West Pakistan. It does not deal at all with cases where the mortgage, charge or lieu is on immovable property situate outside West Pakistan.7. Reference was then made to S. 17 of the Act. It deals with debts secured on movable properties. That section is again concerned with displaced debtors and provides how equities will be worked out between a displaced debtor and his creditor with respect to debts secured on movable property.We see nothing in this section which can cut down the amplitude of the words used in S. 2 (6) (c).8. Reference was then made to S. 21 which provides for scaling down debts.That is however a general provision dealing with debts of all kinds and there is nothing in that section which shows that the word "debt" as defined in S. 2(6) refers only to claims for money and does not include a mortgage debt.9.Thus we see nothing in any provision of the Act or in its scheme which would cut down the meaning we have given to the words "pecuniary liability" as used in S. 2(6) read with sub-cl. (c) thereof.10. It was also urged that if mortgage debts on property situate in India were covered by the Act, there is no machinery (like S. 16) for enforcement of the creditors rights in respect thereof. This is not correct. Section 10 provides for the claim of a displaced creditor against a displaced debtor and S. 13 provides for the claim of a displaced creditor against any other person who is not a displaced debtor. Section 11 then provides how an application under Section 10 will be dealt with and under sub-s. (2) thereof a decree can be passed under certain circumstances against the displaced debtor. Similarly under S. 14(2) a tribunal can pass such decree in relation to an application under S. 13 as it thinks fit. These decrees are executable under S. 28 of the Act. Therefore even when the debt is a mortgage debt there is provision in the Act for enforcement of that debt, though of course this provision is different from the provision contained in S. 16, which was dealing with the special situation of properties under mortgage situate in West Pakistan.11. We may also refer to S. 3 of the Act which lays down that the provisions of the Act and of the Rules and Orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. The effect of this overriding provision is to make a suit like the present maintainable in spite of the provisions applying to such suits in other laws.12. The last contention on behalf of the appellant is that if S. 2 (6) (c) empowers a displaced creditor to make an application under S. 13 even with respect to a mortgage debt, there will be hardship to prior mortgagees or subsequent mortgagees inasmuch as these persons cannot be dealt with under the Act. Section 13 empowers a displaced person claiming a debt from any other person who is not a displaced person to apply within one year of the coming into force of the Act in any local area to the tribunal having jurisdiction in the matter. The provision is obviously enacted to give relief for a short period only. Section 25 of the Act provides for the regulation of all proceedings under the Act by the provisions contained in the Code of Civil Procedure save as expressly provided in the Act or in any rules made thereunder. But assuming that in spite of this provision, O. XXXIV. R. 1 of the Code of Civil Procedure will not apply to proceedings under the Act and all those having an interest in the mortgage security cannot be joined as parties as required by O. XXXIV. R. 1, the interest of prior or puisne mortgagees cannot in any case be affected by the decree passed under the Act. Explanation to O. XXXIV, R. 1 shows that a prior mortgagee need not be made a party to a suit for sale by a puisne mortgagee. So far therefore as a prior mortgagee is concerned, his rights will not be affected by the decree passed under S. 13 of the Act, just as his rights are not affected by the decree passed under O. XXXIV. So far as mortgagees subsequent to the displaced creditor who applies under S. 13 are concerned, their interests will also not be jeopardized by the decree which may be passed under S. 13. Even under O. XXXIV, which requires puisne or subsequent mortgagees to be joined as parties in a suit for sale, a decree obtained in a suit to which the subsequent mortgagee was not joined as a party does not affect his rights and the proceedings in such a suit are not binding on him so as to affect his rights under the second mortgage. He can thus follow the property by suing his mortgagor, even though it may have been sold under the decree of an earlier mortgagee in a suit to which he was not a party. Therefore, the interest of the prior mortgagee or the subsequent mortgagee, if any, would not be affected by a decree passed on an application under S. 13 and there is no reason therefore to cut down the plain meaning of the words used in s. 2 (6) (c) on the ground that the proceedings under the Act would prejudicially affect the rights of prior or puisne mortgagees. | 0[ds]We are of opinion that there is no force in this contention.The words "pecuniary liability" will cover any liability which is of a monetary nature. Now the definition of a mortgage in S. 58 of the Transfer of Property Act, No. 4 of 1882, shows that though it is the transfer of an interest in specific immovable property,the purpose of the transfer is to secure the payment of money advanced or to be advanced by way of loan or to secure an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability. The money advanced by way of loan, for example, which is secured by a mortgage, obviously creates a pecuniary liability.It is true that a mortgage in addition to creating the pecuniary liability also transfers interest in the specific immovable property to secure that liability; none the less the loan or debt to secure which the mortgage is created will remain a pecuniary liability of the person creating the mortgage. Therefore a mortgage debt would create a pecuniary liability upon the mortgagor and would be covered by the definition of the word "debt" in S. 2 (6).We may in this connection refer to the Displaced Persons (Institution of Suits) Act, No. XLVII of 1948, which has been practically repealed by the Act. In that law, suits relating to immovable property were specially excepted under s. 4, but there is no such provision in the Act. Again S. 6 of the Displaced Persons (Legal Proceedings) Act, No. XXV of 1949, which has also been repealed by the Act mentions decrees or orders for payment of money while in S. 15 of the Act which deals with the same matter those words are omitted and the words "proceedings in respect of any debt" are used instead. There can be no doubt in consequence that the Act is a comprehensive law dealing with all kinds of pecuniary liability.We are therefore of opinion that S. 2(6) clearly includes a mortgage debt and under sub-clause (c) thereof a displaced person to whom such a debt is due from any other person, whether a displaced person or not, ordinarily residing in the territories to which the Act extends can take the the benefit of thiscounsel for the appellant in the first place refers to sub-cl. (b) of S. 2 (6) in this connection and points out that that sub-clause specifically deals with mortgage debts secured on any immovable property situate in the territories forming part of West Pakistan. It is urged that there was a specific provision with respect to mortgage debts in relation to immovable properties in West Pakistan and that if it were intended that mortgage of immovable properties situate in what is now India would also be dealt with under the Act there would have been a similar specific provision in the Act. Further it is pointed out that the proviso to sub-cl. (b) to S. 2 (6) provides for apportioning the mortgage debt in cases where the property on which the debt is secured is both in West Pakistan and in India and restricts the application of sub- cl. (b) only to that part of the debt which was secured on the property in West Pakistan and thus excludes from the operation of sub-cl. (b) that part of the debt which is secured on property in India. That is undoubtedly so. The reason however for this special provision is to be found in the later provision contained in S. 16 by which a charge was created on compensation to be given to a displaced person with respect to the mortgage debt secured on immovable property in Pakistan or in the alternative a charge was created on property given in exchange for the property in Pakistan on which the debt wasspecial provision therefore in sub-cl. (b) of S. 2 (6) would not in these circumstances cut down the plain meaning of the words used in sub-cl. (c) or restrict the wide words "pecuniary liability" to liability other than that secured by a mortgage.Incidentally we may mention that sub-cl. (b) itself shows that pecuniary liability includes a mortgage debt, for it shows that any liability which was incurred on the security of any immovable property situate in West Pakistan would be a debt within the meaning of S. 2 (6) and therefore a pecuniary liability.5.It is next urged that when the legislature excepted the property in India which was encumbered from being dealt with under sub-cl. (b) so far as displaced debtors were concerned, there is no reason why it should allow the displaced creditors to proceed under the Act with respect to mortgage debts. This argument, however, overlooks the provision in sub-cl. (a) under which a displaced debtor can take the benefit of the Act, once it is held that the words "pecuniary liability" also include mortgage debt. As we have said before sub-cl. (b) was dealing with a special situation which was worked out in S. 16 of the Act and the general right of a displaced debtor to take advantage of the Act is to be found in sub-cl. (a) and that sub-clause will cover a mortgage debt as it is a pecuniary liability.It was also urged that if mortgage debts on property situate in India were covered by the Act, there is no machinery (like S. 16) for enforcement of the creditors rights in respect thereof. This is not correct. Section 10 provides for the claim of a displaced creditor against a displaced debtor and S. 13 provides for the claim of a displaced creditor against any other person who is not a displaced debtor. Section 11 then provides how an application under Section 10 will be dealt with and under sub-s. (2) thereof a decree can be passed under certain circumstances against the displaced debtor. Similarly under S. 14(2) a tribunal can pass such decree in relation to an application under S. 13 as it thinks fit. These decrees are executable under S. 28 of the Act. Therefore even when the debt is a mortgage debt there is provision in the Act for enforcement of that debt, though of course this provision is different from the provision contained in S. 16, which was dealing with the special situation of properties under mortgage situate in West Pakistan.11. We may also refer to S. 3 of the Act which lays down that the provisions of the Act and of the Rules and Orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. The effect of this overriding provision is to make a suit like the present maintainable in spite of the provisions applying to such suits in other laws.12. The last contention on behalf of the appellant is that if S. 2 (6) (c) empowers a displaced creditor to make an application under S. 13 even with respect to a mortgage debt, there will be hardship to prior mortgagees or subsequent mortgagees inasmuch as these persons cannot be dealt with under the Act. Section 13 empowers a displaced person claiming a debt from any other person who is not a displaced person to apply within one year of the coming into force of the Act in any local area to the tribunal having jurisdiction in the matter. The provision is obviously enacted to give relief for a short period only. Section 25 of the Act provides for the regulation of all proceedings under the Act by the provisions contained in the Code of Civil Procedure save as expressly provided in the Act or in any rules made thereunder. But assuming that in spite of this provision, O. XXXIV. R. 1 of the Code of Civil Procedure will not apply to proceedings under the Act and all those having an interest in the mortgage security cannot be joined as parties as required by O. XXXIV. R. 1, the interest of prior or puisne mortgagees cannot in any case be affected by the decree passed under the Act. Explanation to O. XXXIV, R. 1 shows that a prior mortgagee need not be made a party to a suit for sale by a puisne mortgagee. So far therefore as a prior mortgagee is concerned, his rights will not be affected by the decree passed under S. 13 of the Act, just as his rights are not affected by the decree passed under O. XXXIV. So far as mortgagees subsequent to the displaced creditor who applies under S. 13 are concerned, their interests will also not be jeopardized by the decree which may be passed under S.Even under O. XXXIV, which requires puisne or subsequent mortgagees to be joined as parties in a suit for sale, a decree obtained in a suit to which the subsequent mortgagee was not joined as a party does not affect his rights and the proceedings in such a suit are not binding on him so as to affect his rights under the second mortgage. He can thus follow the property by suing his mortgagor, even though it may have been sold under the decree of an earlier mortgagee in a suit to which he was not a party. Therefore, the interest of the prior mortgagee or the subsequent mortgagee, if any, would not be affected by a decree passed on an application under S. 13 and there is no reason therefore to cut down the plain meaning of the words used in s. 2 (6) (c) on the ground that the proceedings under the Act would prejudicially affect the rights of prior or puisne mortgagees. | 0 | 2,969 | 1,764 | ### 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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as an unsecured creditor in relation to the debt, in which case the provisions of the Act would apply accordingly. It was urged that this sub-section requires that a creditor must make an election before he can take the benefit of this Act. We are of opinion that this argument has no force, for sub-s. (5) of S. 16 only deals with a situation which arises where the mortgage, charge or lien was on immovable property situate in West Pakistan. It does not deal at all with cases where the mortgage, charge or lieu is on immovable property situate outside West Pakistan.7. Reference was then made to S. 17 of the Act. It deals with debts secured on movable properties. That section is again concerned with displaced debtors and provides how equities will be worked out between a displaced debtor and his creditor with respect to debts secured on movable property.We see nothing in this section which can cut down the amplitude of the words used in S. 2 (6) (c).8. Reference was then made to S. 21 which provides for scaling down debts.That is however a general provision dealing with debts of all kinds and there is nothing in that section which shows that the word "debt" as defined in S. 2(6) refers only to claims for money and does not include a mortgage debt.9.Thus we see nothing in any provision of the Act or in its scheme which would cut down the meaning we have given to the words "pecuniary liability" as used in S. 2(6) read with sub-cl. (c) thereof.10. It was also urged that if mortgage debts on property situate in India were covered by the Act, there is no machinery (like S. 16) for enforcement of the creditors rights in respect thereof. This is not correct. Section 10 provides for the claim of a displaced creditor against a displaced debtor and S. 13 provides for the claim of a displaced creditor against any other person who is not a displaced debtor. Section 11 then provides how an application under Section 10 will be dealt with and under sub-s. (2) thereof a decree can be passed under certain circumstances against the displaced debtor. Similarly under S. 14(2) a tribunal can pass such decree in relation to an application under S. 13 as it thinks fit. These decrees are executable under S. 28 of the Act. Therefore even when the debt is a mortgage debt there is provision in the Act for enforcement of that debt, though of course this provision is different from the provision contained in S. 16, which was dealing with the special situation of properties under mortgage situate in West Pakistan.11. We may also refer to S. 3 of the Act which lays down that the provisions of the Act and of the Rules and Orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. The effect of this overriding provision is to make a suit like the present maintainable in spite of the provisions applying to such suits in other laws.12. The last contention on behalf of the appellant is that if S. 2 (6) (c) empowers a displaced creditor to make an application under S. 13 even with respect to a mortgage debt, there will be hardship to prior mortgagees or subsequent mortgagees inasmuch as these persons cannot be dealt with under the Act. Section 13 empowers a displaced person claiming a debt from any other person who is not a displaced person to apply within one year of the coming into force of the Act in any local area to the tribunal having jurisdiction in the matter. The provision is obviously enacted to give relief for a short period only. Section 25 of the Act provides for the regulation of all proceedings under the Act by the provisions contained in the Code of Civil Procedure save as expressly provided in the Act or in any rules made thereunder. But assuming that in spite of this provision, O. XXXIV. R. 1 of the Code of Civil Procedure will not apply to proceedings under the Act and all those having an interest in the mortgage security cannot be joined as parties as required by O. XXXIV. R. 1, the interest of prior or puisne mortgagees cannot in any case be affected by the decree passed under the Act. Explanation to O. XXXIV, R. 1 shows that a prior mortgagee need not be made a party to a suit for sale by a puisne mortgagee. So far therefore as a prior mortgagee is concerned, his rights will not be affected by the decree passed under S. 13 of the Act, just as his rights are not affected by the decree passed under O. XXXIV. So far as mortgagees subsequent to the displaced creditor who applies under S. 13 are concerned, their interests will also not be jeopardized by the decree which may be passed under S. 13. Even under O. XXXIV, which requires puisne or subsequent mortgagees to be joined as parties in a suit for sale, a decree obtained in a suit to which the subsequent mortgagee was not joined as a party does not affect his rights and the proceedings in such a suit are not binding on him so as to affect his rights under the second mortgage. He can thus follow the property by suing his mortgagor, even though it may have been sold under the decree of an earlier mortgagee in a suit to which he was not a party. Therefore, the interest of the prior mortgagee or the subsequent mortgagee, if any, would not be affected by a decree passed on an application under S. 13 and there is no reason therefore to cut down the plain meaning of the words used in s. 2 (6) (c) on the ground that the proceedings under the Act would prejudicially affect the rights of prior or puisne mortgagees.
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mortgage debt secured on immovable property in Pakistan or in the alternative a charge was created on property given in exchange for the property in Pakistan on which the debt wasspecial provision therefore in sub-cl. (b) of S. 2 (6) would not in these circumstances cut down the plain meaning of the words used in sub-cl. (c) or restrict the wide words "pecuniary liability" to liability other than that secured by a mortgage.Incidentally we may mention that sub-cl. (b) itself shows that pecuniary liability includes a mortgage debt, for it shows that any liability which was incurred on the security of any immovable property situate in West Pakistan would be a debt within the meaning of S. 2 (6) and therefore a pecuniary liability.5.It is next urged that when the legislature excepted the property in India which was encumbered from being dealt with under sub-cl. (b) so far as displaced debtors were concerned, there is no reason why it should allow the displaced creditors to proceed under the Act with respect to mortgage debts. This argument, however, overlooks the provision in sub-cl. (a) under which a displaced debtor can take the benefit of the Act, once it is held that the words "pecuniary liability" also include mortgage debt. As we have said before sub-cl. (b) was dealing with a special situation which was worked out in S. 16 of the Act and the general right of a displaced debtor to take advantage of the Act is to be found in sub-cl. (a) and that sub-clause will cover a mortgage debt as it is a pecuniary liability.It was also urged that if mortgage debts on property situate in India were covered by the Act, there is no machinery (like S. 16) for enforcement of the creditors rights in respect thereof. This is not correct. Section 10 provides for the claim of a displaced creditor against a displaced debtor and S. 13 provides for the claim of a displaced creditor against any other person who is not a displaced debtor. Section 11 then provides how an application under Section 10 will be dealt with and under sub-s. (2) thereof a decree can be passed under certain circumstances against the displaced debtor. Similarly under S. 14(2) a tribunal can pass such decree in relation to an application under S. 13 as it thinks fit. These decrees are executable under S. 28 of the Act. Therefore even when the debt is a mortgage debt there is provision in the Act for enforcement of that debt, though of course this provision is different from the provision contained in S. 16, which was dealing with the special situation of properties under mortgage situate in West Pakistan.11. We may also refer to S. 3 of the Act which lays down that the provisions of the Act and of the Rules and Orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. The effect of this overriding provision is to make a suit like the present maintainable in spite of the provisions applying to such suits in other laws.12. The last contention on behalf of the appellant is that if S. 2 (6) (c) empowers a displaced creditor to make an application under S. 13 even with respect to a mortgage debt, there will be hardship to prior mortgagees or subsequent mortgagees inasmuch as these persons cannot be dealt with under the Act. Section 13 empowers a displaced person claiming a debt from any other person who is not a displaced person to apply within one year of the coming into force of the Act in any local area to the tribunal having jurisdiction in the matter. The provision is obviously enacted to give relief for a short period only. Section 25 of the Act provides for the regulation of all proceedings under the Act by the provisions contained in the Code of Civil Procedure save as expressly provided in the Act or in any rules made thereunder. But assuming that in spite of this provision, O. XXXIV. R. 1 of the Code of Civil Procedure will not apply to proceedings under the Act and all those having an interest in the mortgage security cannot be joined as parties as required by O. XXXIV. R. 1, the interest of prior or puisne mortgagees cannot in any case be affected by the decree passed under the Act. Explanation to O. XXXIV, R. 1 shows that a prior mortgagee need not be made a party to a suit for sale by a puisne mortgagee. So far therefore as a prior mortgagee is concerned, his rights will not be affected by the decree passed under S. 13 of the Act, just as his rights are not affected by the decree passed under O. XXXIV. So far as mortgagees subsequent to the displaced creditor who applies under S. 13 are concerned, their interests will also not be jeopardized by the decree which may be passed under S.Even under O. XXXIV, which requires puisne or subsequent mortgagees to be joined as parties in a suit for sale, a decree obtained in a suit to which the subsequent mortgagee was not joined as a party does not affect his rights and the proceedings in such a suit are not binding on him so as to affect his rights under the second mortgage. He can thus follow the property by suing his mortgagor, even though it may have been sold under the decree of an earlier mortgagee in a suit to which he was not a party. Therefore, the interest of the prior mortgagee or the subsequent mortgagee, if any, would not be affected by a decree passed on an application under S. 13 and there is no reason therefore to cut down the plain meaning of the words used in s. 2 (6) (c) on the ground that the proceedings under the Act would prejudicially affect the rights of prior or puisne mortgagees.
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Patel Natwarlal Rupji Vs. Shri Kondh Group Kheti Vishayak and another | Judges had held that Section 53-A is meant only to bring out a bar against the enforcement of a right by a lessor in respect of the property of which the lessee had already taken possession but does not give any right to the lessee to claim possession or to claim any other right on the basis of an unregistered lease. Section 53-A is available only as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor. In that case the appellants had put forward certain documents as a lease which was admittedly beyond 11 months and, therefore, it was held that the company was not entitled to avail of the statutory right under Section 53-A. In Sardar Govindrao Mahadik v. Devi Sahai [ 1982 (1) SCC 237 ], this Court had held that the court would look at the writing that is offered as a contract for transfer for consideration of any immovable property, then examine the acts said to have been done in furtherance of the contract, and find out whether there is a real nexus between the contract and the acts pleaded as a part performance so that to refuse relief would be perpetuating the fraud of the party, who after having taken advantage or benefit of the contract, backs out and pleads non-registration as a defence, a defence analogous to Section 4 of the Statute of Frauds. In that case it was held that the mortgagee in possession was not entitled to claim title of ownership against suit of mortgagor for redemption. Therefore, the doctrine of part performance in Section 58(3) was held not available to establish title to the property. In Sheth Maneklal Mansukhbhai v. Hormusji Jamshedji Ginwalla & Sons 1950 SCR 75 : 1950 AIR(SC) 1], this court had held that Section 53-A of the Act is only a partial importation of English doctrine of part performance. . 8. The contract for sale of immovable property does not create any title except when covered under Section 54 of the Act and registered under Section 17 of the Registration Act. Equally, it does not create an interest in the property. It merely gives a right to enforce it specifically as an equitable relief in a court of law. In Technicians Studio (P) Ltd. v. Lila Ghosh [ 1977 (4) SCC 324 : 1978 (1) SCR 516 ] [SCR at 520], this Court had held that it is well settled that Section 53-A confers no active title on the transferee in possession; it only imposes a statutory bar on the transferor. 9. The High Court after exhaustive consideration of the evidence and unerring circumstances emerging therefrom has concluded that the petitioner is a resident of a different village at a distance of about 50 miles and his son was working as a doctor in Kondh Village. The evidence established that he did not have the consideration of Rs 30, 000 said to have been paid to Bai Leelawati whose husband was absconding at the relevant time. They had intimacy with Bai Leelawati and her husband. With a view to save the property of Bai Leelawati, the agreement was brought into existence. It is a fraudulent agreement and no consideration has been passed thereunder. The agreement (Exh. 55) was executed after the attachment but before judgment was made on 1-2-1969. For vast property of 53 acres of wet land and 5 acres and odd dry land, the consideration mentioned in the document is inadequate. It was brought into existence to defeat the right of the respondents to proceed against the property. In view of these facts though the agreement was in writing, the petitioner is not a genuine transferee but a privy to the fraud. The contract is a sham and nominal document fraudulently brought into existence. In the State of Gujarat by virtue of local amendment to the Stamp Act, agreement of sale is a registerable document but was not registered. The attachment before judgment prevails over the agreement. That apart it cannot be used as a title for the declaration in the suit but the benefit of Section 53-A can be availed of as a shield to retain possession. Instead agreement is sought to be used as a sword to defeat the rights of the respondents who have obtained lawful award. An order of attachment before judgment was issued pending making of the award. The attempt of the petitioner is to defeat the rights of the first respondent to proceed against the property of the debtor. Thus, it would be clear that the petitioner has not come to the court with clean hands. He is a party to the fraud and his alleged possession is only a ruse to protect the rights of Bai Leelawati and her husband Nagindas, the judgment-debtor. The fraudulent documents were brought into existence by the petitioner and Bai Leelawati. It would be clear from the further finding recorded by the High Court that Exh. 55, agreement of sale, was sought to be corroborated through the petitioners evidence that a stamp paper purchased on 2-5-1968 was used to execute the document (Exh. 112) dated 1-5-1968 to show that there was an interior writing pursuant to which agreement of sale (Exh. 55) dated 29-6-1969 was executed. The fact that it was not pleaded nor did it find mention in Exh. 55, would amount to fabrication of record to buttress the cause. The court would look into the conduct of the parties, the respective interests had under the contract and attending facts and circumstances. It would thus be clear that the statutory rights of part performance under Section 53-A cannot be used for the declaration sought in the suit. In view of these findings it is unnecessary to go into the question whether the agreement prevails over the attachment nor the ratio in V.K. Sreedharan case [ 1990 (3) SCC 291 : 1990 (1) JT 390] helps the petitioner. | 0[ds]of the Act provides that were any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf which constitutes transfer, and the transferee has, in part performance of the contract, taken possession of the property of the transferor, the transferee being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then notwithstanding that the contract, though required to be registered, has not been registered, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract6. Though the doctrine of part performance embodies in SectionA of the Act is part of equitable doctrine in English law, SectionA gives statutory right which is available to the transferee for consideration in possession of the property had under the contract. In terms of the section, so long as the transferee has done and is willing to perform his part of the contract or, in other words, is always ready to abide by the terms of the contract and has performed or is always ready willing to perform his part of the contract, the transferee is entitled to avail of this statutory right to protect his possession as a shield but not as a sword. The right to retain possession of the property rests on the express provisions of the Act and on his compliance thereof. A person who pleads equity must come to the court with clean hands and he alone is entitled to the benefit of this section. The section does not create a right or title in the defendant. It merely operates as a bar to the plaintiff to assert his title. The transferor is barred from enforcing his rights other than those expressly provided by the contract. The section, therefore, imposes a bar on the transferor, when the conditions mentioned in the section are fulfilled by the transferee, and the section also bars the transferor to enforce his rights against such transferee or person deriving right, title and interest from such transferee. It would, therefore, be clear that SectionA confers a right on the transferee, to the extent it imposes a bar on the transferor, to protect the transferees right to retain possession of the property had under the contract. It would thus be clear that SectionA confers no title on the transferee but imposes a statutory bar on the transferor to seek possession of the immovable property from the transferee. Equally, SectionA does not confer any title not the defendant in possession nor can he maintain a suit on title8. The contract for sale of immovable property does not create any title except when covered under Section 54 of the Act and registered under Section 17 of the Registration Act. Equally, it does not create an interest in the property. It merely gives a right to enforce it specifically as an equitable relief in a court of law. In Technicians Studio (P) Ltd. v. Lila Ghosh [ 1977 (4) SCC 324 : 1978 (1) SCR 516 ] [SCR at 520], this Court had held that it is well settled that SectionA confers no active title on the transferee in possession; it only imposes a statutory bar on the transferor9. The High Court after exhaustive consideration of the evidence and unerring circumstances emerging therefrom has concluded that the petitioner is a resident of a different village at a distance of about 50 miles and his son was working as a doctor in Kondh Village. The evidence established that he did not have the consideration of Rs 30, 000 said to have been paid to Bai Leelawati whose husband was absconding at the relevant time. They had intimacy with Bai Leelawati and her husband. With a view to save the property of Bai Leelawati, the agreement was brought into existence. It is a fraudulent agreement and no consideration has been passed thereunder. The agreement (Exh. 55) was executed after the attachment but before judgment was made on. For vast property of 53 acres of wet land and 5 acres and odd dry land, the consideration mentioned in the document is inadequate. It was brought into existence to defeat the right of the respondents to proceed against the property. In view of these facts though the agreement was in writing, the petitioner is not a genuine transferee but a privy to the fraud. The contract is a sham and nominal document fraudulently brought into existence. In the State of Gujarat by virtue of local amendment to the Stamp Act, agreement of sale is a registerable document but was not registered. The attachment before judgment prevails over the agreement. That apart it cannot be used as a title for the declaration in the suit but the benefit of SectionA can be availed of as a shield to retain possession. Instead agreement is sought to be used as a sword to defeat the rights of the respondents who have obtained lawful award. An order of attachment before judgment was issued pending making of the award. The attempt of the petitioner is to defeat the rights of the first respondent to proceed against the property of the debtor. Thus, it would be clear that the petitioner has not come to the court with clean hands. He is a party to the fraud and his alleged possession is only a ruse to protect the rights of Bai Leelawati and her husband Nagindas, the. The fraudulent documents were brought into existence by the petitioner and Bai Leelawati. It would be clear from the further finding recorded by the High Court that Exh. 55, agreement of sale, was sought to be corroborated through the petitioners evidence that a stamp paper purchased on8 was used to execute the document (Exh. 112) dated8 to show that there was an interior writing pursuant to which agreement of sale (Exh. 55) dated9 was executed. The fact that it was not pleaded nor did it find mention in Exh. 55, would amount to fabrication of record to buttress the cause. The court would look into the conduct of the parties, the respective interests had under the contract and attending facts and circumstances. It would thus be clear that the statutory rights of part performance under SectionA cannot be used for the declaration sought in the suit. In view of these findings it is unnecessary to go into the question whether the agreement prevails over the attachment nor the ratio in V.K. Sreedharan case [ 1990 (3) SCC 291 : 1990 (1) JT 390] helps the petitioner. | 0 | 2,607 | 1,258 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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Judges had held that Section 53-A is meant only to bring out a bar against the enforcement of a right by a lessor in respect of the property of which the lessee had already taken possession but does not give any right to the lessee to claim possession or to claim any other right on the basis of an unregistered lease. Section 53-A is available only as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor. In that case the appellants had put forward certain documents as a lease which was admittedly beyond 11 months and, therefore, it was held that the company was not entitled to avail of the statutory right under Section 53-A. In Sardar Govindrao Mahadik v. Devi Sahai [ 1982 (1) SCC 237 ], this Court had held that the court would look at the writing that is offered as a contract for transfer for consideration of any immovable property, then examine the acts said to have been done in furtherance of the contract, and find out whether there is a real nexus between the contract and the acts pleaded as a part performance so that to refuse relief would be perpetuating the fraud of the party, who after having taken advantage or benefit of the contract, backs out and pleads non-registration as a defence, a defence analogous to Section 4 of the Statute of Frauds. In that case it was held that the mortgagee in possession was not entitled to claim title of ownership against suit of mortgagor for redemption. Therefore, the doctrine of part performance in Section 58(3) was held not available to establish title to the property. In Sheth Maneklal Mansukhbhai v. Hormusji Jamshedji Ginwalla & Sons 1950 SCR 75 : 1950 AIR(SC) 1], this court had held that Section 53-A of the Act is only a partial importation of English doctrine of part performance. . 8. The contract for sale of immovable property does not create any title except when covered under Section 54 of the Act and registered under Section 17 of the Registration Act. Equally, it does not create an interest in the property. It merely gives a right to enforce it specifically as an equitable relief in a court of law. In Technicians Studio (P) Ltd. v. Lila Ghosh [ 1977 (4) SCC 324 : 1978 (1) SCR 516 ] [SCR at 520], this Court had held that it is well settled that Section 53-A confers no active title on the transferee in possession; it only imposes a statutory bar on the transferor. 9. The High Court after exhaustive consideration of the evidence and unerring circumstances emerging therefrom has concluded that the petitioner is a resident of a different village at a distance of about 50 miles and his son was working as a doctor in Kondh Village. The evidence established that he did not have the consideration of Rs 30, 000 said to have been paid to Bai Leelawati whose husband was absconding at the relevant time. They had intimacy with Bai Leelawati and her husband. With a view to save the property of Bai Leelawati, the agreement was brought into existence. It is a fraudulent agreement and no consideration has been passed thereunder. The agreement (Exh. 55) was executed after the attachment but before judgment was made on 1-2-1969. For vast property of 53 acres of wet land and 5 acres and odd dry land, the consideration mentioned in the document is inadequate. It was brought into existence to defeat the right of the respondents to proceed against the property. In view of these facts though the agreement was in writing, the petitioner is not a genuine transferee but a privy to the fraud. The contract is a sham and nominal document fraudulently brought into existence. In the State of Gujarat by virtue of local amendment to the Stamp Act, agreement of sale is a registerable document but was not registered. The attachment before judgment prevails over the agreement. That apart it cannot be used as a title for the declaration in the suit but the benefit of Section 53-A can be availed of as a shield to retain possession. Instead agreement is sought to be used as a sword to defeat the rights of the respondents who have obtained lawful award. An order of attachment before judgment was issued pending making of the award. The attempt of the petitioner is to defeat the rights of the first respondent to proceed against the property of the debtor. Thus, it would be clear that the petitioner has not come to the court with clean hands. He is a party to the fraud and his alleged possession is only a ruse to protect the rights of Bai Leelawati and her husband Nagindas, the judgment-debtor. The fraudulent documents were brought into existence by the petitioner and Bai Leelawati. It would be clear from the further finding recorded by the High Court that Exh. 55, agreement of sale, was sought to be corroborated through the petitioners evidence that a stamp paper purchased on 2-5-1968 was used to execute the document (Exh. 112) dated 1-5-1968 to show that there was an interior writing pursuant to which agreement of sale (Exh. 55) dated 29-6-1969 was executed. The fact that it was not pleaded nor did it find mention in Exh. 55, would amount to fabrication of record to buttress the cause. The court would look into the conduct of the parties, the respective interests had under the contract and attending facts and circumstances. It would thus be clear that the statutory rights of part performance under Section 53-A cannot be used for the declaration sought in the suit. In view of these findings it is unnecessary to go into the question whether the agreement prevails over the attachment nor the ratio in V.K. Sreedharan case [ 1990 (3) SCC 291 : 1990 (1) JT 390] helps the petitioner.
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of the contract6. Though the doctrine of part performance embodies in SectionA of the Act is part of equitable doctrine in English law, SectionA gives statutory right which is available to the transferee for consideration in possession of the property had under the contract. In terms of the section, so long as the transferee has done and is willing to perform his part of the contract or, in other words, is always ready to abide by the terms of the contract and has performed or is always ready willing to perform his part of the contract, the transferee is entitled to avail of this statutory right to protect his possession as a shield but not as a sword. The right to retain possession of the property rests on the express provisions of the Act and on his compliance thereof. A person who pleads equity must come to the court with clean hands and he alone is entitled to the benefit of this section. The section does not create a right or title in the defendant. It merely operates as a bar to the plaintiff to assert his title. The transferor is barred from enforcing his rights other than those expressly provided by the contract. The section, therefore, imposes a bar on the transferor, when the conditions mentioned in the section are fulfilled by the transferee, and the section also bars the transferor to enforce his rights against such transferee or person deriving right, title and interest from such transferee. It would, therefore, be clear that SectionA confers a right on the transferee, to the extent it imposes a bar on the transferor, to protect the transferees right to retain possession of the property had under the contract. It would thus be clear that SectionA confers no title on the transferee but imposes a statutory bar on the transferor to seek possession of the immovable property from the transferee. Equally, SectionA does not confer any title not the defendant in possession nor can he maintain a suit on title8. The contract for sale of immovable property does not create any title except when covered under Section 54 of the Act and registered under Section 17 of the Registration Act. Equally, it does not create an interest in the property. It merely gives a right to enforce it specifically as an equitable relief in a court of law. In Technicians Studio (P) Ltd. v. Lila Ghosh [ 1977 (4) SCC 324 : 1978 (1) SCR 516 ] [SCR at 520], this Court had held that it is well settled that SectionA confers no active title on the transferee in possession; it only imposes a statutory bar on the transferor9. The High Court after exhaustive consideration of the evidence and unerring circumstances emerging therefrom has concluded that the petitioner is a resident of a different village at a distance of about 50 miles and his son was working as a doctor in Kondh Village. The evidence established that he did not have the consideration of Rs 30, 000 said to have been paid to Bai Leelawati whose husband was absconding at the relevant time. They had intimacy with Bai Leelawati and her husband. With a view to save the property of Bai Leelawati, the agreement was brought into existence. It is a fraudulent agreement and no consideration has been passed thereunder. The agreement (Exh. 55) was executed after the attachment but before judgment was made on. For vast property of 53 acres of wet land and 5 acres and odd dry land, the consideration mentioned in the document is inadequate. It was brought into existence to defeat the right of the respondents to proceed against the property. In view of these facts though the agreement was in writing, the petitioner is not a genuine transferee but a privy to the fraud. The contract is a sham and nominal document fraudulently brought into existence. In the State of Gujarat by virtue of local amendment to the Stamp Act, agreement of sale is a registerable document but was not registered. The attachment before judgment prevails over the agreement. That apart it cannot be used as a title for the declaration in the suit but the benefit of SectionA can be availed of as a shield to retain possession. Instead agreement is sought to be used as a sword to defeat the rights of the respondents who have obtained lawful award. An order of attachment before judgment was issued pending making of the award. The attempt of the petitioner is to defeat the rights of the first respondent to proceed against the property of the debtor. Thus, it would be clear that the petitioner has not come to the court with clean hands. He is a party to the fraud and his alleged possession is only a ruse to protect the rights of Bai Leelawati and her husband Nagindas, the. The fraudulent documents were brought into existence by the petitioner and Bai Leelawati. It would be clear from the further finding recorded by the High Court that Exh. 55, agreement of sale, was sought to be corroborated through the petitioners evidence that a stamp paper purchased on8 was used to execute the document (Exh. 112) dated8 to show that there was an interior writing pursuant to which agreement of sale (Exh. 55) dated9 was executed. The fact that it was not pleaded nor did it find mention in Exh. 55, would amount to fabrication of record to buttress the cause. The court would look into the conduct of the parties, the respective interests had under the contract and attending facts and circumstances. It would thus be clear that the statutory rights of part performance under SectionA cannot be used for the declaration sought in the suit. In view of these findings it is unnecessary to go into the question whether the agreement prevails over the attachment nor the ratio in V.K. Sreedharan case [ 1990 (3) SCC 291 : 1990 (1) JT 390] helps the petitioner.
|
Aad Lal Vs. Kanshi Ram | two provisos to the sub-section, but they are obviously not applicable to the controversy before us. It was therefore necessary, for the purpose of establishing the corrupt practice of "under influence", to prove that there was any direct or indirect interference or attempt to interfere with the exercise of any electoral right. There is, however, no such allegation in the election petition in paragraph 11 which was the subject-matter of issue No. 3 in the trial Court. A mere allegation that false figures were supplied or distributed in the form of a handbill (or poster) even if true, cannot be said to fall within the mischief of sub-section (2) of Section 123, for that would not, by itself, amount to interference or attempt at interference with the free exercise of any electoral right. It cannot therefore be said that the appellant has succeeded in alleging or proving the commission of the corrupt practice which was the subject-matter of issue No. 3. 12. The trial Court has considered issues Nos. 4, 5 and 6 together although issue No. 4 related to the alleged corrupt practice of undue influence under sub-section (2) of Section 123 because of the alleged misrepresentation of the "true facts" relating to an incident of firing between the two groups etc.; issue No. 5 related to the printing and distribution of a poster; and issue No. 6 related to the commission of a corrupt practice under sub-section (4) of Section 123 of the Act. 13. The photograph in question which is said to relate to the incident of firing is Ex. PW 18/1. The allegation of the appellant was that there was firing in village Ghari, a few days before the election, and the respondent tried to make out through photograph Ex. PW 18/1 and poster Ex. PW 18/2 that Kambohs and Rai Sikhs were fired upon by the supporters of the appellant, at his instance, and that the appellant was a trafficker in women, and he was anti-peasant in his outlook and used to get the peasants evicted. 14. As the trial Court has pointed out, no evidence was led to prove that the photograph was prepared at the instance of the respondent. An attempt was made to prove that it was shown at Bhatinda by Madan Lal PW 30, but that was an afterthought as no such allegation was made in the election petition. It is also a matter of much significance that although the appellant claimed that all the 10 persons in the photograph were Rai Sikhs or Kambohs, one of them was found to be Mukhtiar Singh who did not belong to any of those communities. Moreover the group photograph of the 10 injured persons could not convey to a stranger that the injured persons belonged to the Rai Sikh or Kamboh communities. The trial Court has examined the evidence which was led in that connection, and is right in taking the view that the photograph showing the exhibition of the impugned photograph by Madan Lal PW 30 was not natural and had been stage-managed. The preparation and exhibition of the photograph at the instance of the respondent has not been proved by the evidence on the record. Moreover any such effort could not be said to amount to the corrupt practice of undue influence as it could not be said to be a direct or indirect interference or attempt to interfere with the free exercise of any electoral right. 15. It is not disputed that poster Ex. PW 18/2 contained a statement of fact in relation to the personal character or conduct of the appellant which fell within the mischief of sub-section (4) of Section 123 of the Act. The allegation in the election petition was that it was issued by one "R. L. Angi" and was printed at Kalpana Printing Press Fazilka. The appellant however tried to prove that the poster was issued by R. L. Aneja PW 39 and that it was he who was the author of its manuscript Ex. PW 34/1. The switch over from the authorship of R. L. Angi to R. L. Aneja was not satisfactorily explained, and goes to disprove the allegation in the election petition. Raj Kumar PW 34 has been examined to prove the printing of the poster in his Kalpana Printing Press, and his conduct has been rightly criticised by the trial Court. He did not even take the precaution of having the manuscript signed by its author, and we have no doubt that he is not a reliable witness. The statement of Mohan Lal PW 35 (sic) who claimed to have attested the signature of the author of the handbill on the declaration form, is also not a reliable witness. The trial Court has examined the statement of Ram Sarup PW 16, and has rightly taken the view that there was no satisfactory evidence of the receipt of the poster in the office of the Deputy Commissioner. No useful purpose will be served by repeating all that the trial Court has said in this connection. The poster is said to have been distributed by Om Prakash PW 25, and the appellant has examined Tirlok Singh PW 26, Satish Kumar PW 27, Gurcharan Singh PW 32, Harbhajan Singh PW 36, Mohinder Prakash PW 37, Thakar Singh PW 38, Pannu Ram PW 40, Harbans Lal PW 41, Sita Ram PW 42 and Mam Raj PW 43 and has recorded his own statement. The statements of all these witnesses have been examined by the trial Court and we are in agreement with it that they cannot be said to prove the commission of the alleged corrupt practice. In fact when the preparation of the poster under the signature of R. L. Angi itself remained unproved, we have no hesitation in taking the view that the finding of fact of the trial Court in this respect is correct. 16. There is thus no reason for us to interfere with the impugned judgment of the trial Court. | 0[ds]He has further stated that he had scored off the Gurmukhi equivalent of the words "solemn affirmation" from the certificate (Ex. PW 1/1A immediately after the oath was administered to the respondent but that portion was not scored off from the oath form Ex. PW 1/1 because of rush of work. The statement of the Returning Officer and certificate Ex. PW 1/1A clearly disprove the contention of the appellant of the appellant to the contrary, and the trial Court was quite justified in placing reliance on them4. It may mentioned that the appellant tried to raise a new plea in the trial Court that the respondent merely made the oath but did not subscribe it before the Returning Officer. It was, however, rightly rejected by that court because there was no basis for any such allegation in the election petition. The finding of the trial Court on issue No. 1 is therefore correct and does not call for interference8. It is true that constable Dayal Chand PW 12 presented challans in respect of the use of tractors Nos.0 and8 for carrying passengers, but the trial Court cannot be blamed if, after considering all the evidence which was led in support of the allegation, it reached the conclusion that the story that the respondent used the tractors for the conveyance of the voters on the date of the poll was "woven around" that fact. At any rate, it cannot be said that the appellant has succeeded in proving the allegation which was ther of trial, and we see no reason to differ from the trial Court on that finding of fact15. It is not disputed that poster Ex. PW 18/2 contained a statement of fact in relation to the personal character or conduct of the appellant which fell within the mischief ofn (4) of Section 123 of the Act. The allegation in the election petition was that it was issued by one "R. L. Angi" and was printed at Kalpana Printing Press Fazilka. The appellant however tried to prove that the poster was issued by R. L. Aneja PW 39 and that it was he who was the author of its manuscript Ex. PW 34/1. The switch over from the authorship of R. L. Angi to R. L. Aneja was not satisfactorily explained, and goes to disprove the allegation in the election petition. Raj Kumar PW 34 has been examined to prove the printing of the poster in his Kalpana Printing Press, and his conduct has been rightly criticised by the trial Court. He did not even take the precaution of having the manuscript signed by its author, and we have no doubt that he is not a reliable witness. The statement of Mohan Lal PW 35 (sic) who claimed to have attested the signature of the author of the handbill on the declaration form, is also not a reliable witness. The trial Court has examined the statement of Ram Sarup PW 16, and has rightly taken the view that there was no satisfactory evidence of the receipt of the poster in the office of the Deputy Commissioner. No useful purpose will be served by repeating all that the trial Court has said in this connection. The poster is said to have been distributed by Om Prakash PW 25, and the appellant has examined Tirlok Singh PW 26, Satish Kumar PW 27, Gurcharan Singh PW 32, Harbhajan Singh PW 36, Mohinder Prakash PW 37, Thakar Singh PW 38, Pannu Ram PW 40, Harbans Lal PW 41, Sita Ram PW 42 and Mam Raj PW 43 and has recorded his own statement. The statements of all these witnesses have been examined by the trial Court and we are in agreement with it that they cannot be said to prove the commission of the alleged corrupt practice. In fact when the preparation of the poster under the signature of R. L. Angi itself remained unproved, we have no hesitation in taking the view that the finding of fact of the trial Court in this respect is correct16. There is thus no reason for us to interfere with the impugned judgment of the trial Court. | 0 | 3,052 | 758 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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two provisos to the sub-section, but they are obviously not applicable to the controversy before us. It was therefore necessary, for the purpose of establishing the corrupt practice of "under influence", to prove that there was any direct or indirect interference or attempt to interfere with the exercise of any electoral right. There is, however, no such allegation in the election petition in paragraph 11 which was the subject-matter of issue No. 3 in the trial Court. A mere allegation that false figures were supplied or distributed in the form of a handbill (or poster) even if true, cannot be said to fall within the mischief of sub-section (2) of Section 123, for that would not, by itself, amount to interference or attempt at interference with the free exercise of any electoral right. It cannot therefore be said that the appellant has succeeded in alleging or proving the commission of the corrupt practice which was the subject-matter of issue No. 3. 12. The trial Court has considered issues Nos. 4, 5 and 6 together although issue No. 4 related to the alleged corrupt practice of undue influence under sub-section (2) of Section 123 because of the alleged misrepresentation of the "true facts" relating to an incident of firing between the two groups etc.; issue No. 5 related to the printing and distribution of a poster; and issue No. 6 related to the commission of a corrupt practice under sub-section (4) of Section 123 of the Act. 13. The photograph in question which is said to relate to the incident of firing is Ex. PW 18/1. The allegation of the appellant was that there was firing in village Ghari, a few days before the election, and the respondent tried to make out through photograph Ex. PW 18/1 and poster Ex. PW 18/2 that Kambohs and Rai Sikhs were fired upon by the supporters of the appellant, at his instance, and that the appellant was a trafficker in women, and he was anti-peasant in his outlook and used to get the peasants evicted. 14. As the trial Court has pointed out, no evidence was led to prove that the photograph was prepared at the instance of the respondent. An attempt was made to prove that it was shown at Bhatinda by Madan Lal PW 30, but that was an afterthought as no such allegation was made in the election petition. It is also a matter of much significance that although the appellant claimed that all the 10 persons in the photograph were Rai Sikhs or Kambohs, one of them was found to be Mukhtiar Singh who did not belong to any of those communities. Moreover the group photograph of the 10 injured persons could not convey to a stranger that the injured persons belonged to the Rai Sikh or Kamboh communities. The trial Court has examined the evidence which was led in that connection, and is right in taking the view that the photograph showing the exhibition of the impugned photograph by Madan Lal PW 30 was not natural and had been stage-managed. The preparation and exhibition of the photograph at the instance of the respondent has not been proved by the evidence on the record. Moreover any such effort could not be said to amount to the corrupt practice of undue influence as it could not be said to be a direct or indirect interference or attempt to interfere with the free exercise of any electoral right. 15. It is not disputed that poster Ex. PW 18/2 contained a statement of fact in relation to the personal character or conduct of the appellant which fell within the mischief of sub-section (4) of Section 123 of the Act. The allegation in the election petition was that it was issued by one "R. L. Angi" and was printed at Kalpana Printing Press Fazilka. The appellant however tried to prove that the poster was issued by R. L. Aneja PW 39 and that it was he who was the author of its manuscript Ex. PW 34/1. The switch over from the authorship of R. L. Angi to R. L. Aneja was not satisfactorily explained, and goes to disprove the allegation in the election petition. Raj Kumar PW 34 has been examined to prove the printing of the poster in his Kalpana Printing Press, and his conduct has been rightly criticised by the trial Court. He did not even take the precaution of having the manuscript signed by its author, and we have no doubt that he is not a reliable witness. The statement of Mohan Lal PW 35 (sic) who claimed to have attested the signature of the author of the handbill on the declaration form, is also not a reliable witness. The trial Court has examined the statement of Ram Sarup PW 16, and has rightly taken the view that there was no satisfactory evidence of the receipt of the poster in the office of the Deputy Commissioner. No useful purpose will be served by repeating all that the trial Court has said in this connection. The poster is said to have been distributed by Om Prakash PW 25, and the appellant has examined Tirlok Singh PW 26, Satish Kumar PW 27, Gurcharan Singh PW 32, Harbhajan Singh PW 36, Mohinder Prakash PW 37, Thakar Singh PW 38, Pannu Ram PW 40, Harbans Lal PW 41, Sita Ram PW 42 and Mam Raj PW 43 and has recorded his own statement. The statements of all these witnesses have been examined by the trial Court and we are in agreement with it that they cannot be said to prove the commission of the alleged corrupt practice. In fact when the preparation of the poster under the signature of R. L. Angi itself remained unproved, we have no hesitation in taking the view that the finding of fact of the trial Court in this respect is correct. 16. There is thus no reason for us to interfere with the impugned judgment of the trial Court.
### Response:
0
### Explanation:
He has further stated that he had scored off the Gurmukhi equivalent of the words "solemn affirmation" from the certificate (Ex. PW 1/1A immediately after the oath was administered to the respondent but that portion was not scored off from the oath form Ex. PW 1/1 because of rush of work. The statement of the Returning Officer and certificate Ex. PW 1/1A clearly disprove the contention of the appellant of the appellant to the contrary, and the trial Court was quite justified in placing reliance on them4. It may mentioned that the appellant tried to raise a new plea in the trial Court that the respondent merely made the oath but did not subscribe it before the Returning Officer. It was, however, rightly rejected by that court because there was no basis for any such allegation in the election petition. The finding of the trial Court on issue No. 1 is therefore correct and does not call for interference8. It is true that constable Dayal Chand PW 12 presented challans in respect of the use of tractors Nos.0 and8 for carrying passengers, but the trial Court cannot be blamed if, after considering all the evidence which was led in support of the allegation, it reached the conclusion that the story that the respondent used the tractors for the conveyance of the voters on the date of the poll was "woven around" that fact. At any rate, it cannot be said that the appellant has succeeded in proving the allegation which was ther of trial, and we see no reason to differ from the trial Court on that finding of fact15. It is not disputed that poster Ex. PW 18/2 contained a statement of fact in relation to the personal character or conduct of the appellant which fell within the mischief ofn (4) of Section 123 of the Act. The allegation in the election petition was that it was issued by one "R. L. Angi" and was printed at Kalpana Printing Press Fazilka. The appellant however tried to prove that the poster was issued by R. L. Aneja PW 39 and that it was he who was the author of its manuscript Ex. PW 34/1. The switch over from the authorship of R. L. Angi to R. L. Aneja was not satisfactorily explained, and goes to disprove the allegation in the election petition. Raj Kumar PW 34 has been examined to prove the printing of the poster in his Kalpana Printing Press, and his conduct has been rightly criticised by the trial Court. He did not even take the precaution of having the manuscript signed by its author, and we have no doubt that he is not a reliable witness. The statement of Mohan Lal PW 35 (sic) who claimed to have attested the signature of the author of the handbill on the declaration form, is also not a reliable witness. The trial Court has examined the statement of Ram Sarup PW 16, and has rightly taken the view that there was no satisfactory evidence of the receipt of the poster in the office of the Deputy Commissioner. No useful purpose will be served by repeating all that the trial Court has said in this connection. The poster is said to have been distributed by Om Prakash PW 25, and the appellant has examined Tirlok Singh PW 26, Satish Kumar PW 27, Gurcharan Singh PW 32, Harbhajan Singh PW 36, Mohinder Prakash PW 37, Thakar Singh PW 38, Pannu Ram PW 40, Harbans Lal PW 41, Sita Ram PW 42 and Mam Raj PW 43 and has recorded his own statement. The statements of all these witnesses have been examined by the trial Court and we are in agreement with it that they cannot be said to prove the commission of the alleged corrupt practice. In fact when the preparation of the poster under the signature of R. L. Angi itself remained unproved, we have no hesitation in taking the view that the finding of fact of the trial Court in this respect is correct16. There is thus no reason for us to interfere with the impugned judgment of the trial Court.
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Girish Raghunath Mehta Vs. Inspector Of Customs | joined while recording the statement. The appellant was in custody at the time of recording the statement. The statement was not voluntary. Its contents were not read over to him. A-2 was also in custody and his statement was also not voluntary. Statement of co-accused could not be taken as substantive evidence. The same could not be relied upon in view of the decision in Bal Mukund and Raju Premji (supra).8. Learned counsel for the State supports the conviction and sentence of the appellant. He submitted that concurrent finding of the courts below is based on evidence and the same is not liable to be disturbed in an appeal under Article 136 of the Constitution. It was pointed out that the contentions advanced by the learned counsel for the appellant are not shown to have been raised before the High Court. He next submitted that Section 42 applies only when recovery is to be effected from a building, conveyance or enclosed place. Present case is covered by Section 43 as recovery is from a public place. As regards the plea of absence of label, neither any question was raised at the time of production of the bag nor the fact of recovery of the contraband from co-accused is in dispute. Recovery was proved by independent direct evidence. Co-accused from whom recovery was effected has not even challenged his conviction. As regards the record of samples, it is pointed out that the evidence of the chemical examiner-PW8 is categoric that all the samples were in sealed condition. The appellant never retracted his statement under Section 67 to the effect that the contraband recovered from co-accused was sold by the appellant and that the said co-accused had no licence to purchase the contraband and thereby the appellant contravened the conditions of his licence. He was not in custody when his statement was recorded as is clear from the statement of PW2- Gerard Joseph, who recorded the statement.9. After due consideration, we do not find any merit in the submissions on behalf of the appellant. Both the courts below have concurrently held that the appellant was found to have sold the contraband to the co-accused without any licence. The said finding, inter alia, is based on the evidence of PW1- Bhaskar Shetty, Inspector of Customs who seized the contraband from the co-accused- Karim Patel. Further, the evidence in the form of statement of the appellant himself (Ex.-20) under Section 67 of the Act before his arrest clearly shows that the appellant had sold the contraband to the co-accused-Karim Patel who did not have any licence to purchase thereof. Even otherwise, the connection of contraband with the appellant was clearly established after which the burden was on appellant to show that he had effected sale to an authorized person. Recovery from the co-accused was from an open place to which Section 42 of the Act is not attracted. At the time of production of gunny bag no objection was raised on behalf of the appellant that the bag did not carry any label or sign of identity. Thus, the absence of label and sign of identity could not be presumed. The samples were duly tested by the chemical analyzer and were found to be intact. There is, thus, no serious infirmity in the findings recorded by the courts below in convicting and sentencing the appellant.10. The contention raised on behalf of the appellant on the basis of judgments of this Court in Abdul Rashid Ibrahim Mansuri, Jag Raj Singh and Sukhdev Singh (supra) cannot be accepted. As already noticed, Section 42 of the Act has no application to the fact situation of the present case. The said section applies when the contraband recovered from a building, conveyance or enclosed place. Where recovery is from a public place, Section 43 applies. This Court reconciled the view taken in Abdul Rashid Ibrahim Mansuri (supra) and Sajan Abraham v. State of Kerala (2001) 6 SCC 692 )in larger bench judgment in Sukdev Singh (supra). It was held that in view of technological advancements, it may not be possible to record information as per the requirement of Section 42. Strict compliance by the investigating agency should not be required in an emergency situation so as to avoid misuse by wrongdoers/ offenders/ drug peddlers (2009) 8 SCC 539 - Para 34). Whether there is adequate substantial compliance is a question of fact in each case. Apart from the finding that present case is governed by Section 43, there is no ground to interfere with the concurrent finding of the Courts below that there is adequate compliance of Section 43 of the Act.11. Similarly, the contention on the basis of the judgments in Tofan Singh, Raju Premji and Noor Aga (supra) also cannot be accepted. There can be no doubt that the Court has to satisfy itself that the statement under Section 67 was made voluntarily and at a time when the person making such statement had not been made an accused. Whether the statement is voluntary and free from encumbrance has to be judged from the facts and circumstances of each case. In Tofan Singh (supra), the question whether the investigating officer investigating the matter under the Act is a police officer and whether the statement recorded by the investigating officer under Section 67 of the Act can be treated as a confessional statement has been referred to the larger Bench. It is not necessary to go into this aspect in the present case as there is adequate evidence to prove the sale of the contraband by the appellant for which co-accused has been convicted and sentenced. The prosecution version is based not only on the statement under Section 67 but also on the evidence of recovery of the contraband immediately after sale and the circumstances showing that the contraband was sold by the appellant to the co-accused, without any authorization. Thus, we do not find any ground to interfere with the conviction and sentence awarded to the appellant. | 0[ds]The prosecution version is based not only on the statement under Section 67 but also on the evidence of recovery of the contraband immediately after sale and the circumstances showing that the contraband was sold by the appellant to the co-accused, without any authorization. Thus, we do not find any ground to interfere with the conviction and sentence awarded to the appellant. | 0 | 2,146 | 70 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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joined while recording the statement. The appellant was in custody at the time of recording the statement. The statement was not voluntary. Its contents were not read over to him. A-2 was also in custody and his statement was also not voluntary. Statement of co-accused could not be taken as substantive evidence. The same could not be relied upon in view of the decision in Bal Mukund and Raju Premji (supra).8. Learned counsel for the State supports the conviction and sentence of the appellant. He submitted that concurrent finding of the courts below is based on evidence and the same is not liable to be disturbed in an appeal under Article 136 of the Constitution. It was pointed out that the contentions advanced by the learned counsel for the appellant are not shown to have been raised before the High Court. He next submitted that Section 42 applies only when recovery is to be effected from a building, conveyance or enclosed place. Present case is covered by Section 43 as recovery is from a public place. As regards the plea of absence of label, neither any question was raised at the time of production of the bag nor the fact of recovery of the contraband from co-accused is in dispute. Recovery was proved by independent direct evidence. Co-accused from whom recovery was effected has not even challenged his conviction. As regards the record of samples, it is pointed out that the evidence of the chemical examiner-PW8 is categoric that all the samples were in sealed condition. The appellant never retracted his statement under Section 67 to the effect that the contraband recovered from co-accused was sold by the appellant and that the said co-accused had no licence to purchase the contraband and thereby the appellant contravened the conditions of his licence. He was not in custody when his statement was recorded as is clear from the statement of PW2- Gerard Joseph, who recorded the statement.9. After due consideration, we do not find any merit in the submissions on behalf of the appellant. Both the courts below have concurrently held that the appellant was found to have sold the contraband to the co-accused without any licence. The said finding, inter alia, is based on the evidence of PW1- Bhaskar Shetty, Inspector of Customs who seized the contraband from the co-accused- Karim Patel. Further, the evidence in the form of statement of the appellant himself (Ex.-20) under Section 67 of the Act before his arrest clearly shows that the appellant had sold the contraband to the co-accused-Karim Patel who did not have any licence to purchase thereof. Even otherwise, the connection of contraband with the appellant was clearly established after which the burden was on appellant to show that he had effected sale to an authorized person. Recovery from the co-accused was from an open place to which Section 42 of the Act is not attracted. At the time of production of gunny bag no objection was raised on behalf of the appellant that the bag did not carry any label or sign of identity. Thus, the absence of label and sign of identity could not be presumed. The samples were duly tested by the chemical analyzer and were found to be intact. There is, thus, no serious infirmity in the findings recorded by the courts below in convicting and sentencing the appellant.10. The contention raised on behalf of the appellant on the basis of judgments of this Court in Abdul Rashid Ibrahim Mansuri, Jag Raj Singh and Sukhdev Singh (supra) cannot be accepted. As already noticed, Section 42 of the Act has no application to the fact situation of the present case. The said section applies when the contraband recovered from a building, conveyance or enclosed place. Where recovery is from a public place, Section 43 applies. This Court reconciled the view taken in Abdul Rashid Ibrahim Mansuri (supra) and Sajan Abraham v. State of Kerala (2001) 6 SCC 692 )in larger bench judgment in Sukdev Singh (supra). It was held that in view of technological advancements, it may not be possible to record information as per the requirement of Section 42. Strict compliance by the investigating agency should not be required in an emergency situation so as to avoid misuse by wrongdoers/ offenders/ drug peddlers (2009) 8 SCC 539 - Para 34). Whether there is adequate substantial compliance is a question of fact in each case. Apart from the finding that present case is governed by Section 43, there is no ground to interfere with the concurrent finding of the Courts below that there is adequate compliance of Section 43 of the Act.11. Similarly, the contention on the basis of the judgments in Tofan Singh, Raju Premji and Noor Aga (supra) also cannot be accepted. There can be no doubt that the Court has to satisfy itself that the statement under Section 67 was made voluntarily and at a time when the person making such statement had not been made an accused. Whether the statement is voluntary and free from encumbrance has to be judged from the facts and circumstances of each case. In Tofan Singh (supra), the question whether the investigating officer investigating the matter under the Act is a police officer and whether the statement recorded by the investigating officer under Section 67 of the Act can be treated as a confessional statement has been referred to the larger Bench. It is not necessary to go into this aspect in the present case as there is adequate evidence to prove the sale of the contraband by the appellant for which co-accused has been convicted and sentenced. The prosecution version is based not only on the statement under Section 67 but also on the evidence of recovery of the contraband immediately after sale and the circumstances showing that the contraband was sold by the appellant to the co-accused, without any authorization. Thus, we do not find any ground to interfere with the conviction and sentence awarded to the appellant.
### Response:
0
### Explanation:
The prosecution version is based not only on the statement under Section 67 but also on the evidence of recovery of the contraband immediately after sale and the circumstances showing that the contraband was sold by the appellant to the co-accused, without any authorization. Thus, we do not find any ground to interfere with the conviction and sentence awarded to the appellant.
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Baselius Mar Thoma Mathews and Others Vs. Paulose Mar Athanasius Others | making some submissions, counsel withdrew that petition when we indicated our reaction. Another petition had been filed under Section 24(1)(b) of the Code for withdrawal of the suits to the file of the High Court, which was heard by another Judge of the High Court (Mr. Justice Khalid). The learned Judge dismissed that petition, and against that order the present petition for special leave to appeal has been moved.We are deeply disturbed that an important community in the State of Kerala should be locked in litigation for long years and if amity can be restored by an early end of the crop of cases which drive a wedge between sections of the same community it is a consummation devoutly to be wished. But all that courts can do is to adjudicate cases with the utmost speed and that has apparently been attempted successfully in the present instance. The short point is whether, at this stage and in these circumstances, the eight suits concerned should be called up to the High Court and disposed of. 2. The learned Judge considered the various grounds urged before him for withdrawal of the suits to the High Court and was unimpressed by them. Merely because a considerable section of the public was tensely interested in these litigations the court was not prepared to withdraw them to the High Court, nor was the circumstance that important and intricate questions of law were involved sufficient for such transfer in its view. A massive volume of oral evidence had been recorded by the specially appointed Judge and so the High Court felt that it would be proper for the court that recorded the evidence to hear the arguments also. We are not inclined to fault the learned Judge in the view he has adopted. But there are many buts to any general proposition. 3. Shri Tarkunde appearing for the respondents, stressed before us, as an additional consideration that if the cases were withdrawn to the High Court and tried, as was likely by a Division Bench of that court his clients might lose a statutory right of appeal and would have to depend upon the chancy jurisdiction under Article 136 of the Constitution. A single appeal, as of right, would be taken away, was his apprehension. 4. Shri Nariman, appearing for the petitioners, having prudently though b elatedly withdrawn the Special Leave Petition which made reference to bias, focussed on the advantage both sides would derive by an early determination of the litigation at the High Court level. He also submitted that there was hardly any doubt that questions of law of considerable public importance were involved and an appeal to the Supreme Court, as of right, both under Article 133 and Section 110 C.P.C., was a certainty. He further emphasised that Section 24(1) (b) would become a dead letter if Shri Tarkundes objection that an automatic right of appeal to the Supreme Court would be imperilled in the event of the High Court withdrawing suits, were to be accepted.We agree with the learned Judge of the High Court that some of the grounds put forward for withdrawl of the suits to the High Court were without merit and were rightly rejected. But we are not inclined to exaggerate the importance of the demeanour of witnesses observed by the trial j udge, especially when years have lapsed, heaps of evidence have been recorded and judicial memory with hyper psychic sensitivity is more in the books than in the wear and tear of life. What weighs with us is the importance of shortening the longevity of these quasi-public litigations, reducing the enormous expenditures involved for both sides and entrusting even the first determination, now that all evidence has been recorded, to the highest deck of Justice in the State. 5. It is indubitable that after the decision by the District Court appeals will inevitably be carried to the High Court. It is predictably reasonable to expect, from all that has been presented to us and all that we have been able to gather from t he records, that the case involves questions of public moment and are likely to spiral up to the Supreme Court on final appeal. In this jurisdiction, the approach has to be pragmatic, not theoretic, without whittling down the basics of law bearing on transfer of cases. 6. We do not for a moment countenance the suggestion that the district judge is not equal to the legal instricacies or factual challenges of these or other cases, the procedural law having vested him with unlimited jurisdiction and the High Court having committed these cases to his seisin. Hints of bias are also out of bounds, as we have indicated. If these suits at this stage of early arguments which have yet to begun effectively, are transferred to the High Court a spell of few years in the stressful life of the litigation will be saved. Taking copies of a bunch of decrees by the District Court, followed by preliminaries and filing of appeals, service of notices and other ripening processes, may consume considerable time and money. And then the High Court would begin de novo the entire arguments and appreciation of the whole range of facts and law as in first appeal it is bound to do in a case of this type. Where lakhs of people are excitedly affected by the ultimate decision and the fate of a few hundred suits and a thousand churches is to be settled by a single adjudication, the elimination of some years and duplication of hearings and full arguments at the commanding height of the High Court is a wise measure, all things considered. The social savings of abbreviation of laws delays are important to social justice.We do not tarry to dilate on the many dimensions to this transfer petition except to state t hat we feel the advancement of public justice will be promoted by the High Court itself at this stage, proceeding to hear the suits. | 1[ds]We do not for a moment countenance the suggestion that the district judge is not equal to the legal instricacies or factual challenges of these or other cases, the procedural law having vested him with unlimited jurisdiction and the High Court having committed these cases to his seisin. Hints of bias are also out of bounds, as we have indicated. If these suits at this stage of early arguments which have yet to begun effectively, are transferred to the High Court a spell of few years in the stressful life of the litigation will be saved. Taking copies of a bunch of decrees by the District Court, followed by preliminaries and filing of appeals, service of notices and other ripening processes, may consume considerable time and money. And then the High Court would begin de novo the entire arguments and appreciation of the whole range of facts and law as in first appeal it is bound to do in a case of this type. Where lakhs of people are excitedly affected by the ultimate decision and the fate of a few hundred suits and a thousand churches is to be settled by a single adjudication, the elimination of some years and duplication of hearings and full arguments at the commanding height of the High Court is a wise measure, all things considered. The social savings of abbreviation of laws delays are important to social justice.We do not tarry to dilate on the many dimensions to this transfer petition except to state t hat we feel the advancement of public justice will be promoted by the High Court itself at this stage, proceeding to hear the suits. | 1 | 1,458 | 296 | ### 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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making some submissions, counsel withdrew that petition when we indicated our reaction. Another petition had been filed under Section 24(1)(b) of the Code for withdrawal of the suits to the file of the High Court, which was heard by another Judge of the High Court (Mr. Justice Khalid). The learned Judge dismissed that petition, and against that order the present petition for special leave to appeal has been moved.We are deeply disturbed that an important community in the State of Kerala should be locked in litigation for long years and if amity can be restored by an early end of the crop of cases which drive a wedge between sections of the same community it is a consummation devoutly to be wished. But all that courts can do is to adjudicate cases with the utmost speed and that has apparently been attempted successfully in the present instance. The short point is whether, at this stage and in these circumstances, the eight suits concerned should be called up to the High Court and disposed of. 2. The learned Judge considered the various grounds urged before him for withdrawal of the suits to the High Court and was unimpressed by them. Merely because a considerable section of the public was tensely interested in these litigations the court was not prepared to withdraw them to the High Court, nor was the circumstance that important and intricate questions of law were involved sufficient for such transfer in its view. A massive volume of oral evidence had been recorded by the specially appointed Judge and so the High Court felt that it would be proper for the court that recorded the evidence to hear the arguments also. We are not inclined to fault the learned Judge in the view he has adopted. But there are many buts to any general proposition. 3. Shri Tarkunde appearing for the respondents, stressed before us, as an additional consideration that if the cases were withdrawn to the High Court and tried, as was likely by a Division Bench of that court his clients might lose a statutory right of appeal and would have to depend upon the chancy jurisdiction under Article 136 of the Constitution. A single appeal, as of right, would be taken away, was his apprehension. 4. Shri Nariman, appearing for the petitioners, having prudently though b elatedly withdrawn the Special Leave Petition which made reference to bias, focussed on the advantage both sides would derive by an early determination of the litigation at the High Court level. He also submitted that there was hardly any doubt that questions of law of considerable public importance were involved and an appeal to the Supreme Court, as of right, both under Article 133 and Section 110 C.P.C., was a certainty. He further emphasised that Section 24(1) (b) would become a dead letter if Shri Tarkundes objection that an automatic right of appeal to the Supreme Court would be imperilled in the event of the High Court withdrawing suits, were to be accepted.We agree with the learned Judge of the High Court that some of the grounds put forward for withdrawl of the suits to the High Court were without merit and were rightly rejected. But we are not inclined to exaggerate the importance of the demeanour of witnesses observed by the trial j udge, especially when years have lapsed, heaps of evidence have been recorded and judicial memory with hyper psychic sensitivity is more in the books than in the wear and tear of life. What weighs with us is the importance of shortening the longevity of these quasi-public litigations, reducing the enormous expenditures involved for both sides and entrusting even the first determination, now that all evidence has been recorded, to the highest deck of Justice in the State. 5. It is indubitable that after the decision by the District Court appeals will inevitably be carried to the High Court. It is predictably reasonable to expect, from all that has been presented to us and all that we have been able to gather from t he records, that the case involves questions of public moment and are likely to spiral up to the Supreme Court on final appeal. In this jurisdiction, the approach has to be pragmatic, not theoretic, without whittling down the basics of law bearing on transfer of cases. 6. We do not for a moment countenance the suggestion that the district judge is not equal to the legal instricacies or factual challenges of these or other cases, the procedural law having vested him with unlimited jurisdiction and the High Court having committed these cases to his seisin. Hints of bias are also out of bounds, as we have indicated. If these suits at this stage of early arguments which have yet to begun effectively, are transferred to the High Court a spell of few years in the stressful life of the litigation will be saved. Taking copies of a bunch of decrees by the District Court, followed by preliminaries and filing of appeals, service of notices and other ripening processes, may consume considerable time and money. And then the High Court would begin de novo the entire arguments and appreciation of the whole range of facts and law as in first appeal it is bound to do in a case of this type. Where lakhs of people are excitedly affected by the ultimate decision and the fate of a few hundred suits and a thousand churches is to be settled by a single adjudication, the elimination of some years and duplication of hearings and full arguments at the commanding height of the High Court is a wise measure, all things considered. The social savings of abbreviation of laws delays are important to social justice.We do not tarry to dilate on the many dimensions to this transfer petition except to state t hat we feel the advancement of public justice will be promoted by the High Court itself at this stage, proceeding to hear the suits.
### Response:
1
### Explanation:
We do not for a moment countenance the suggestion that the district judge is not equal to the legal instricacies or factual challenges of these or other cases, the procedural law having vested him with unlimited jurisdiction and the High Court having committed these cases to his seisin. Hints of bias are also out of bounds, as we have indicated. If these suits at this stage of early arguments which have yet to begun effectively, are transferred to the High Court a spell of few years in the stressful life of the litigation will be saved. Taking copies of a bunch of decrees by the District Court, followed by preliminaries and filing of appeals, service of notices and other ripening processes, may consume considerable time and money. And then the High Court would begin de novo the entire arguments and appreciation of the whole range of facts and law as in first appeal it is bound to do in a case of this type. Where lakhs of people are excitedly affected by the ultimate decision and the fate of a few hundred suits and a thousand churches is to be settled by a single adjudication, the elimination of some years and duplication of hearings and full arguments at the commanding height of the High Court is a wise measure, all things considered. The social savings of abbreviation of laws delays are important to social justice.We do not tarry to dilate on the many dimensions to this transfer petition except to state t hat we feel the advancement of public justice will be promoted by the High Court itself at this stage, proceeding to hear the suits.
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Shibji Khestshi Thacker Vs. Commissioners Of Dhanbad Municipality And Ors | to (g) of sub-section (1). Two of such ways, as provided in clauses (c) and (e), are as under:-"(c) By enhancing the valuation of, or assessment on, any holding, which has been incorrectly valued or assessed by reason of fraud, misrepresentation or mistake.""(e) Where the percentage on the annual value at which any tax is to be levied has been altered by the Commissioners under the provision of section 104, by making a corresponding alteration in the amount of tax payable in each case."14. Then, sub-section (2) of this Section makes it obligatory on the Commissioners to give at least one months notice to any person interested, of any alteration which they propose to make under clause. (a), (b), (c), (d) or (dd), of sub-section (1), and of the date on which the alteration will be made. It is to be noted that clause (e), extracted above, has. not been referred to in sub-section (2).Section 115 speaks of publication of notice of assessment. It says that when the assessment list mentioned in section 89 or section 105 has been prepared or revised, the Chairman shall sign the same, and shall give public notice, by beat of drum and by placards. posted up in conspicuous places through the municipality, of the place where the said list may be inspected. Sub-section (2) further requires that in all cases in which any property is for the first time assessed or the assessment is increased, notice shall be given thereof to the owner or occupier of the property, if known.15. Having perused the various relevant provisions referred to by Mr. Niren De, we are of opinion that under the scheme of the Act, the old assessment does not come to an end in respect of a holding the moment new valuation and assessment lists are ordered to be prepared by the Commissioners of the Municipality; nor is there anything to show that if a holding is left out from the general revisional assessment for any good reason, then, in respect thereof, the old assessment comes to an end after five years ending on the first day of the April next following the completion of a new revised list.16. Mr. Niren De placed emphasis on the word "all", immediately preceding the word "holdings" in the latter part of Section 102, and submitted that it indicates that no holding can be left out from the preparation of valuation list.17. It is nobodys case that the appellants holding was left out from the old assessment. So far as the revised assessment is concerned. Section 102 has to be read not in isolation but in conjunction with Section 106. The language of Section 106 is flexible enough to enable the Commissioners to leave out for some good reason, any holding from the revision of the valuation and assessment lists. Th e Word "ordinarily", tones down the force of "shall which immediately precedes it, and indicates that the requirements with regard to revision of the assessment in every five years and to include all the holdings, are not absolute but only director y and can be departed from in extraordinary circumstances, or in the case of particular holdings for good reasons. This being the correct import of the word "ordinarily", it follows therefrom that in the case of a holding which is excluded from the quinquennial revision of assessment. the old valuation and assessment lists do not lapse but continue to remain in force till they are altered or amended in accordance with the procedure laid down in the Act. This position of the law is clear from a reading of the last clause of sub-section (2) of Section 106, which provides that every valuation and assessment entered in a valuation or assessment list shall be valid from the date on which the list takes effect in the municipality and until the first day of the April following the completion of a new list. The key word repeatedly occurring in the sub-section is "list" which appears to have been advisedly used in singular, in contradistinction to "lists employed in plural, in sub-section (2) such distinctive use of the word "list" in these sub-sections, puts it beyond doubt that in respect of a holding which, for some reason, is not included in the five-yearly revision, the old valuation or assessment list continues till a new Est is completed and the 1st day of April following such completion is reached.In this view of the matter, the High Court was right in holding that the demand based on the previous list of valuation and assessment of the suit holding, did not lapse on the first of April 1950 for the mere reason that a general revision of valuation and assessment lists in the Municipality was undertaken and the appellants holding was not subjected to that revision.18. The first contention of Mr. De is accordingly rejected.19. In regard to the second contention of Mr. De, we find that this plea was not taken at any stage before the Courts below. It was not even faintly adumbrated in the written statement filed by the defendant-appellant in the Suit. No issue was framed on this point, nor was any such argument advanced before the High Court. It is a mixed question of law and fact. It cannot be allowed to be raised at this stage, for the first time, in special appeal, as the plaintiff-respondent had no opportunity to lead evidence to show that the requirements of the law had been complied with before increasing the assessment. We are told that similar suits have been filed by the Municipality against the appellant for recovery of tax pertaining to subsequent periods. If that be so, the appellant is at liberty to raise this objection in these Suits in a proper manner. But, in this case, for reasons already stated, we refuse to entertain this plea raised for the first time in this Court. No other point has been pressed into arguments on behalf of the appellant. | 0[ds]Having perused the various relevant provisions referred to by Mr. Niren De, we are of opinion that under the scheme of the Act, the old assessment does not come to an end in respect of a holding the moment new valuation and assessment lists are ordered to be prepared by the Commissioners of the Municipality; nor is there anything to show that if a holding is left out from the general revisional assessment for any good reason, then, in respect thereof, the old assessment comes to an end after five years ending on the first day of the April next following the completion of a new revised list.Niren De placed emphasis on the word "all", immediately preceding the word "holdings" in the latter part of Section 102, and submitted that it indicates that no holding can be left out from the preparation of valuationis nobodys case that the appellants holding was left out from the old assessment. So far as the revised assessment is concerned. Section 102 has to be read not in isolation but in conjunction with Section 106. The language of Section 106 is flexible enough to enable the Commissioners to leave out for some good reason, any holding from the revision of the valuation and assessment lists. Th e Word "ordinarily", tones down the force of "shall which immediately precedes it, and indicates that the requirements with regard to revision of the assessment in every five years and to include all the holdings, are not absolute but only director y and can be departed from in extraordinary circumstances, or in the case of particular holdings for good reasons. This being the correct import of the word "ordinarily", it follows therefrom that in the case of a holding which is excluded from the quinquennial revision of assessment. the old valuation and assessment lists do not lapse but continue to remain in force till they are altered or amended in accordance with the procedure laid down in the Act. This position of the law is clear from a reading of the last clause of sub-section (2) of Section 106, which provides that every valuation and assessment entered in a valuation or assessment list shall be valid from the date on which the list takes effect in the municipality and until the first day of the April following the completion of a new list. The key word repeatedly occurring in the sub-section is "list" which appears to have been advisedly used in singular, in contradistinction to "lists employed in plural, in sub-section (2) such distinctive use of the word "list" in these sub-sections, puts it beyond doubt that in respect of a holding which, for some reason, is not included in the five-yearly revision, the old valuation or assessment list continues till a new Est is completed and the 1st day of April following such completion is reached.In this view of the matter, the High Court was right in holding that the demand based on the previous list of valuation and assessment of the suit holding, did not lapse on the first of April 1950 for the mere reason that a general revision of valuation and assessment lists in the Municipality was undertaken and the appellants holding was not subjected to thatfirst contention of Mr. De is accordinglyregard to the second contention of Mr. De, we find that this plea was not taken at any stage before the Courts below. It was not even faintly adumbrated in the written statement filed by the defendant-appellant in the Suit. No issue was framed on this point, nor was any such argument advanced before the High Court. It is a mixed question of law and fact. It cannot be allowed to be raised at this stage, for the first time, in special appeal, as the plaintiff-respondent had no opportunity to lead evidence to show that the requirements of the law had been complied | 0 | 3,080 | 713 | ### 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:
to (g) of sub-section (1). Two of such ways, as provided in clauses (c) and (e), are as under:-"(c) By enhancing the valuation of, or assessment on, any holding, which has been incorrectly valued or assessed by reason of fraud, misrepresentation or mistake.""(e) Where the percentage on the annual value at which any tax is to be levied has been altered by the Commissioners under the provision of section 104, by making a corresponding alteration in the amount of tax payable in each case."14. Then, sub-section (2) of this Section makes it obligatory on the Commissioners to give at least one months notice to any person interested, of any alteration which they propose to make under clause. (a), (b), (c), (d) or (dd), of sub-section (1), and of the date on which the alteration will be made. It is to be noted that clause (e), extracted above, has. not been referred to in sub-section (2).Section 115 speaks of publication of notice of assessment. It says that when the assessment list mentioned in section 89 or section 105 has been prepared or revised, the Chairman shall sign the same, and shall give public notice, by beat of drum and by placards. posted up in conspicuous places through the municipality, of the place where the said list may be inspected. Sub-section (2) further requires that in all cases in which any property is for the first time assessed or the assessment is increased, notice shall be given thereof to the owner or occupier of the property, if known.15. Having perused the various relevant provisions referred to by Mr. Niren De, we are of opinion that under the scheme of the Act, the old assessment does not come to an end in respect of a holding the moment new valuation and assessment lists are ordered to be prepared by the Commissioners of the Municipality; nor is there anything to show that if a holding is left out from the general revisional assessment for any good reason, then, in respect thereof, the old assessment comes to an end after five years ending on the first day of the April next following the completion of a new revised list.16. Mr. Niren De placed emphasis on the word "all", immediately preceding the word "holdings" in the latter part of Section 102, and submitted that it indicates that no holding can be left out from the preparation of valuation list.17. It is nobodys case that the appellants holding was left out from the old assessment. So far as the revised assessment is concerned. Section 102 has to be read not in isolation but in conjunction with Section 106. The language of Section 106 is flexible enough to enable the Commissioners to leave out for some good reason, any holding from the revision of the valuation and assessment lists. Th e Word "ordinarily", tones down the force of "shall which immediately precedes it, and indicates that the requirements with regard to revision of the assessment in every five years and to include all the holdings, are not absolute but only director y and can be departed from in extraordinary circumstances, or in the case of particular holdings for good reasons. This being the correct import of the word "ordinarily", it follows therefrom that in the case of a holding which is excluded from the quinquennial revision of assessment. the old valuation and assessment lists do not lapse but continue to remain in force till they are altered or amended in accordance with the procedure laid down in the Act. This position of the law is clear from a reading of the last clause of sub-section (2) of Section 106, which provides that every valuation and assessment entered in a valuation or assessment list shall be valid from the date on which the list takes effect in the municipality and until the first day of the April following the completion of a new list. The key word repeatedly occurring in the sub-section is "list" which appears to have been advisedly used in singular, in contradistinction to "lists employed in plural, in sub-section (2) such distinctive use of the word "list" in these sub-sections, puts it beyond doubt that in respect of a holding which, for some reason, is not included in the five-yearly revision, the old valuation or assessment list continues till a new Est is completed and the 1st day of April following such completion is reached.In this view of the matter, the High Court was right in holding that the demand based on the previous list of valuation and assessment of the suit holding, did not lapse on the first of April 1950 for the mere reason that a general revision of valuation and assessment lists in the Municipality was undertaken and the appellants holding was not subjected to that revision.18. The first contention of Mr. De is accordingly rejected.19. In regard to the second contention of Mr. De, we find that this plea was not taken at any stage before the Courts below. It was not even faintly adumbrated in the written statement filed by the defendant-appellant in the Suit. No issue was framed on this point, nor was any such argument advanced before the High Court. It is a mixed question of law and fact. It cannot be allowed to be raised at this stage, for the first time, in special appeal, as the plaintiff-respondent had no opportunity to lead evidence to show that the requirements of the law had been complied with before increasing the assessment. We are told that similar suits have been filed by the Municipality against the appellant for recovery of tax pertaining to subsequent periods. If that be so, the appellant is at liberty to raise this objection in these Suits in a proper manner. But, in this case, for reasons already stated, we refuse to entertain this plea raised for the first time in this Court. No other point has been pressed into arguments on behalf of the appellant.
### Response:
0
### Explanation:
Having perused the various relevant provisions referred to by Mr. Niren De, we are of opinion that under the scheme of the Act, the old assessment does not come to an end in respect of a holding the moment new valuation and assessment lists are ordered to be prepared by the Commissioners of the Municipality; nor is there anything to show that if a holding is left out from the general revisional assessment for any good reason, then, in respect thereof, the old assessment comes to an end after five years ending on the first day of the April next following the completion of a new revised list.Niren De placed emphasis on the word "all", immediately preceding the word "holdings" in the latter part of Section 102, and submitted that it indicates that no holding can be left out from the preparation of valuationis nobodys case that the appellants holding was left out from the old assessment. So far as the revised assessment is concerned. Section 102 has to be read not in isolation but in conjunction with Section 106. The language of Section 106 is flexible enough to enable the Commissioners to leave out for some good reason, any holding from the revision of the valuation and assessment lists. Th e Word "ordinarily", tones down the force of "shall which immediately precedes it, and indicates that the requirements with regard to revision of the assessment in every five years and to include all the holdings, are not absolute but only director y and can be departed from in extraordinary circumstances, or in the case of particular holdings for good reasons. This being the correct import of the word "ordinarily", it follows therefrom that in the case of a holding which is excluded from the quinquennial revision of assessment. the old valuation and assessment lists do not lapse but continue to remain in force till they are altered or amended in accordance with the procedure laid down in the Act. This position of the law is clear from a reading of the last clause of sub-section (2) of Section 106, which provides that every valuation and assessment entered in a valuation or assessment list shall be valid from the date on which the list takes effect in the municipality and until the first day of the April following the completion of a new list. The key word repeatedly occurring in the sub-section is "list" which appears to have been advisedly used in singular, in contradistinction to "lists employed in plural, in sub-section (2) such distinctive use of the word "list" in these sub-sections, puts it beyond doubt that in respect of a holding which, for some reason, is not included in the five-yearly revision, the old valuation or assessment list continues till a new Est is completed and the 1st day of April following such completion is reached.In this view of the matter, the High Court was right in holding that the demand based on the previous list of valuation and assessment of the suit holding, did not lapse on the first of April 1950 for the mere reason that a general revision of valuation and assessment lists in the Municipality was undertaken and the appellants holding was not subjected to thatfirst contention of Mr. De is accordinglyregard to the second contention of Mr. De, we find that this plea was not taken at any stage before the Courts below. It was not even faintly adumbrated in the written statement filed by the defendant-appellant in the Suit. No issue was framed on this point, nor was any such argument advanced before the High Court. It is a mixed question of law and fact. It cannot be allowed to be raised at this stage, for the first time, in special appeal, as the plaintiff-respondent had no opportunity to lead evidence to show that the requirements of the law had been complied
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Satish Shetty Vs. State Of Karnataka | of the Evidence Act which permits raising of presumption as to abetment to suicide by a married woman. Such a statutory presumption though discretionary, may be presumed by the Court in appropriate cases where the question of abetment of suicide by a woman is under consideration in respect of her husband or any of his relative and if the suicide has been committed within seven years of marriage, provided the husband or such relative had subjected her to cruelty. 19. Since the High Court had recorded a finding against the appellant of causing cruelty to the deceased for his conviction under Section 498-A, all the essential ingredients for raising of presumption under Section 113A of the Evidence Act were clearly made out. But the issue raised before us is whether the High Court was justified in resorting to exercise such a discretion as was available to it under Section 113A or not. 20. That the Court has a discretion in the matter of resorting to presumption is clear from the plain words used in that Section - "the Court may presume" (emphasis supplied). The law on this issue is also well settled and therefore needs no elaborate discussion but at this stage the relevant case laws cited by learned senior counsel for the appellant need to be taken note of. 21. Reliance has been placed on behalf of appellant on the judgment of this Court in the case of Hans Raj v. State of Haryana, (2004) 12 SCC 257. In this case it was reiterated that Section 113A of the Evidence Act vests a discretion in the Court to raise such a presumption having regard to all the other circumstances of the case. On evidence and facts of that case it was found that the nature of cruelty proved in that case was not such as is likely to drive the women to commit suicide or to cause grievous injury etc. Reliance was also placed upon the case of Gangula Mohan Reddy v. State of Andhra Pradesh, (2010) 1 SCC 750. The facts of that case were entirely different and required interpretation of the term "abetment" as defined under Section 107 of the IPC. In that case the victim was a servant of the accused and the case did not require any examination of inter-dependence and inter-connectivity of Section 498A and 306 of the IPC or of Section 113A of the Evidence Act. 22. Reliance was also placed upon case of M. Mohan v. State, (2011) 3 SCC 626. The Court followed the general law with regard to ingredients of abetment in the context of Section 306 of the IPC and quashed the prosecution of some of the relations of the husband on the peculiar facts of the case which disclosed that there was no allegation of any dowry demand or instigation against those appellants although they were relatives of the husband. In the case of Mangat Ram v. State of Haryana (2014) 12 SCC 595 , this Court acquitted the appellant who was husband of the deceased for the offences under Sections 498-A and 306 of the IPC on the ground that the prosecution had not succeeded in establishing the offences. The accused had merely left the deceased wife in the matrimonial home in the company of his parents while proceeding to report for duty as a constable to another place. This Court held that such action would not amount to abetment to commit suicide. 23. The aforesaid case laws do not lay down any proposition of law which may warrant interference with the views of the High Court in the impugned judgment. In the case of Narayanamurthy v. State of Karnataka, (2008) 16 SCC 512 the law was reiterated that if on appreciation of evidence two views are possible then the appellate court should not interfere with the judgment of acquittal in favour of the accused. There is no quarrel with the said proposition. The High Court was aware of such legal principle and keeping the same in mind, it has discussed the evidence for coming to a conclusion that the findings of the trial court leading to acquittal were fully unwarranted and it is not a case where two views are possible. Hence the High Court proceeded to convict the appellant for the offences under Sections 498-A and 306 of the IPC.24. Once the prosecution succeeds in establishing the component of cruelty leading to conviction under Section 498A, in our view only in a rare case, the Court can refuse to invoke the presumption of abetment, if other requirements of Section 113A of the Evidence Act stand satisfied. This proposition is amply supported by the view taken by the three-Judge Bench of this Court in the case of K. Prema S. Rao and Anr. (Supra). Further, the High Court has given good reasons on the basis of facts brought on record through evidence for exercising the discretion of invoking the presumption under Section 113A of the Evidence Act and thereafter it has discussed in detail the explanations given by the appellant in the initial version by way of Unnatural Death Report as well as the later explanations. The High Court found the later explanations unacceptable and the initial explanation that the deceased committed suicide because she was not permitted to go to her mothers place does not inspire confidence and has rightly been rejected by the High Court. Only for such a trivial matter, a hale and hearty young woman having a ten months old son and a pregnancy of twenty weeks is not at all expected to take her life. The appellant not only gave absolutely no explanation for the injuries on the person of the deceased, rather he chose to conceal them by keeping mum. Clearly the appellant failed to rebut the presumptions raised against him under Section 113A of the Evidence Act. Having gone through the relevant facts and the reasonings of the trial court we are not persuaded to take a different view. | 0[ds]The High Court was aware of such legal principle and keeping the same in mind, it has discussed the evidence for coming to a conclusion that the findings of the trial court leading to acquittal were fully unwarranted and it is not a case where two views are possible. Hence the High Court proceeded to convict the appellant for the offences under Sections 498-A and 306 of the IPC.24. Once the prosecution succeeds in establishing the component of cruelty leading to conviction under Section 498A, in our view only in a rare case, the Court can refuse to invoke the presumption of abetment, if other requirements of Section 113A of the Evidence Act stand satisfied. This proposition is amply supported by the view taken by the three-Judge Bench of this Court in the case of K. Prema S. Rao and Anr. (Supra). Further, the High Court has given good reasons on the basis of facts brought on record through evidence for exercising the discretion of invoking the presumption under Section 113A of the Evidence Act and thereafter it has discussed in detail the explanations given by the appellant in the initial version by way of Unnatural Death Report as well as the later explanations. The High Court found the later explanations unacceptable and the initial explanation that the deceased committed suicide because she was not permitted to go to her mothers place does not inspire confidence and has rightly been rejected by the High Court. Only for such a trivial matter, a hale and hearty young woman having a ten months old son and a pregnancy of twenty weeks is not at all expected to take her life. The appellant not only gave absolutely no explanation for the injuries on the person of the deceased, rather he chose to conceal them by keeping mum. Clearly the appellant failed to rebut the presumptions raised against him under Section 113A of the Evidence Act. Having gone through the relevant facts and the reasonings of the trial court we are not persuaded to take a different | 0 | 4,622 | 366 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
of the Evidence Act which permits raising of presumption as to abetment to suicide by a married woman. Such a statutory presumption though discretionary, may be presumed by the Court in appropriate cases where the question of abetment of suicide by a woman is under consideration in respect of her husband or any of his relative and if the suicide has been committed within seven years of marriage, provided the husband or such relative had subjected her to cruelty. 19. Since the High Court had recorded a finding against the appellant of causing cruelty to the deceased for his conviction under Section 498-A, all the essential ingredients for raising of presumption under Section 113A of the Evidence Act were clearly made out. But the issue raised before us is whether the High Court was justified in resorting to exercise such a discretion as was available to it under Section 113A or not. 20. That the Court has a discretion in the matter of resorting to presumption is clear from the plain words used in that Section - "the Court may presume" (emphasis supplied). The law on this issue is also well settled and therefore needs no elaborate discussion but at this stage the relevant case laws cited by learned senior counsel for the appellant need to be taken note of. 21. Reliance has been placed on behalf of appellant on the judgment of this Court in the case of Hans Raj v. State of Haryana, (2004) 12 SCC 257. In this case it was reiterated that Section 113A of the Evidence Act vests a discretion in the Court to raise such a presumption having regard to all the other circumstances of the case. On evidence and facts of that case it was found that the nature of cruelty proved in that case was not such as is likely to drive the women to commit suicide or to cause grievous injury etc. Reliance was also placed upon the case of Gangula Mohan Reddy v. State of Andhra Pradesh, (2010) 1 SCC 750. The facts of that case were entirely different and required interpretation of the term "abetment" as defined under Section 107 of the IPC. In that case the victim was a servant of the accused and the case did not require any examination of inter-dependence and inter-connectivity of Section 498A and 306 of the IPC or of Section 113A of the Evidence Act. 22. Reliance was also placed upon case of M. Mohan v. State, (2011) 3 SCC 626. The Court followed the general law with regard to ingredients of abetment in the context of Section 306 of the IPC and quashed the prosecution of some of the relations of the husband on the peculiar facts of the case which disclosed that there was no allegation of any dowry demand or instigation against those appellants although they were relatives of the husband. In the case of Mangat Ram v. State of Haryana (2014) 12 SCC 595 , this Court acquitted the appellant who was husband of the deceased for the offences under Sections 498-A and 306 of the IPC on the ground that the prosecution had not succeeded in establishing the offences. The accused had merely left the deceased wife in the matrimonial home in the company of his parents while proceeding to report for duty as a constable to another place. This Court held that such action would not amount to abetment to commit suicide. 23. The aforesaid case laws do not lay down any proposition of law which may warrant interference with the views of the High Court in the impugned judgment. In the case of Narayanamurthy v. State of Karnataka, (2008) 16 SCC 512 the law was reiterated that if on appreciation of evidence two views are possible then the appellate court should not interfere with the judgment of acquittal in favour of the accused. There is no quarrel with the said proposition. The High Court was aware of such legal principle and keeping the same in mind, it has discussed the evidence for coming to a conclusion that the findings of the trial court leading to acquittal were fully unwarranted and it is not a case where two views are possible. Hence the High Court proceeded to convict the appellant for the offences under Sections 498-A and 306 of the IPC.24. Once the prosecution succeeds in establishing the component of cruelty leading to conviction under Section 498A, in our view only in a rare case, the Court can refuse to invoke the presumption of abetment, if other requirements of Section 113A of the Evidence Act stand satisfied. This proposition is amply supported by the view taken by the three-Judge Bench of this Court in the case of K. Prema S. Rao and Anr. (Supra). Further, the High Court has given good reasons on the basis of facts brought on record through evidence for exercising the discretion of invoking the presumption under Section 113A of the Evidence Act and thereafter it has discussed in detail the explanations given by the appellant in the initial version by way of Unnatural Death Report as well as the later explanations. The High Court found the later explanations unacceptable and the initial explanation that the deceased committed suicide because she was not permitted to go to her mothers place does not inspire confidence and has rightly been rejected by the High Court. Only for such a trivial matter, a hale and hearty young woman having a ten months old son and a pregnancy of twenty weeks is not at all expected to take her life. The appellant not only gave absolutely no explanation for the injuries on the person of the deceased, rather he chose to conceal them by keeping mum. Clearly the appellant failed to rebut the presumptions raised against him under Section 113A of the Evidence Act. Having gone through the relevant facts and the reasonings of the trial court we are not persuaded to take a different view.
### Response:
0
### Explanation:
The High Court was aware of such legal principle and keeping the same in mind, it has discussed the evidence for coming to a conclusion that the findings of the trial court leading to acquittal were fully unwarranted and it is not a case where two views are possible. Hence the High Court proceeded to convict the appellant for the offences under Sections 498-A and 306 of the IPC.24. Once the prosecution succeeds in establishing the component of cruelty leading to conviction under Section 498A, in our view only in a rare case, the Court can refuse to invoke the presumption of abetment, if other requirements of Section 113A of the Evidence Act stand satisfied. This proposition is amply supported by the view taken by the three-Judge Bench of this Court in the case of K. Prema S. Rao and Anr. (Supra). Further, the High Court has given good reasons on the basis of facts brought on record through evidence for exercising the discretion of invoking the presumption under Section 113A of the Evidence Act and thereafter it has discussed in detail the explanations given by the appellant in the initial version by way of Unnatural Death Report as well as the later explanations. The High Court found the later explanations unacceptable and the initial explanation that the deceased committed suicide because she was not permitted to go to her mothers place does not inspire confidence and has rightly been rejected by the High Court. Only for such a trivial matter, a hale and hearty young woman having a ten months old son and a pregnancy of twenty weeks is not at all expected to take her life. The appellant not only gave absolutely no explanation for the injuries on the person of the deceased, rather he chose to conceal them by keeping mum. Clearly the appellant failed to rebut the presumptions raised against him under Section 113A of the Evidence Act. Having gone through the relevant facts and the reasonings of the trial court we are not persuaded to take a different
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Reserve Bank of India Vs. Jayantilal N. Mistry & Anr | by the RBI. We make it clear that all questions raised in the Writ Petitions are left open and the order we propose to pass in the miscellaneous applications will not have any bearing on the consideration of the Writ Petitions on their own merits. 6. The main contention of the Applicants for recall of the judgment in Jayantilal N. Mistry (supra) is that the judgment has far reaching consequences and the applicants who are directly and substantially affected were not made parties and heard. They relied upon the judgments of this Court in Budhia Swain & Ors. v. Gopinath Deb & Ors. (1999) 4 SCC 396 , Royal Paradise Hotel (P) Ltd. v. State of Haryana & Ors. (2006) 7 SCC 597 , Asit Kumar Kar v. State of W.B. & Ors. (2009) 2 SCC 703 and Vishnu Agarwal v. State of U.P.& Anr. (2011) 14 SCC 813 to contend that the application for recall of the judgment is maintainable when there is violation of principles of natural justice. It was also argued on behalf of the banks that an application for recall is different from review. The learned counsel appearing for the banks submitted that the inherent jurisdiction of this Court should be exercised to recall the judgment in Jayantilal N. Mistry (supra) which failed to consider important questions of law. It was further argued that the judgment in Jayantilal N. Mistry (supra) addressed a limited perspective. In the said judgment, this Court did not consider the important aspect of violation of the right to privacy which has been held to be an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution of India in Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors. (2017) 10 SCC 1. Another submission made on behalf of the banks is that the judgment in Jayantilal N. Mistry (supra) is per incuriam as certain judgments of this Court have not been considered. An attempt was made to make submissions regarding the correctness of the judgment which was curtailed by this Court on the ground that arguments were being heard only regarding the maintainability of the applications for recall. 7. The learned counsel for the Respondents submitted that it has been held by this Court in Delhi Administration v. Gurdip Singh Uban & Ors. (2000) 7 SCC 296 that applications for recall are filed to avoid filing Review Petitions which are decided by way of circulation. It was held in the said judgment that such applications are not maintainable. The learned counsel further referred to the judgments of this Court in B.K. Pavithra and Others v. Union of India and Others (2020) SCC Online SC 822, Saurabh Chaudri (Dr.)& Ors. v. Union of India & Ors. (2004) 5 SCC 618 and Rashid Khan Pathan : In Re : Vijay Kurle and Others 2020 SCC Online SC 711. It was argued on behalf of the Respondents that the judgment in Jayantilal N. Mistry (supra) was delivered after hearing RBI and ICICI Bank. All the banks were aware of the hearing of the case but did not take any step to get themselves impleaded. The Contempt Petition filed for non- implementation of the directions issued by this Court in Jayantilal N. Mistry (supra) was against the RBI and the Applicants could not have been made parties to the Contempt Petitions. The learned counsel appearing for the Respondents submitted that it is in public interest that the information that was directed to be furnished under the RTI Act by the RBI is revealed. 8. Order XLVII of the Supreme Court Rules, 2013 provides for the remedy of filing application for review. There is no provision in the Supreme Court Rules for filing any application for recall of the judgment of this Court. In Delhi Administration v. Gurdip Singh Uban & Ors. (supra), this Court made it clear that applications filed for clarification, modification or recall are often only a camouflage for review petitions. It was held that such applications should not be entertained, except in extraordinary circumstances. While relying upon this judgment of this Court in Rashid Khan Pathan (supra), this Court was of the opinion that filing applications which are not maintainable amounts to abuse of process of Court. In the said judgment, this Court reiterated the importance of finality of a judgment and held that parties should not be permitted to file applications to reopen concluded judgments of this Court. 9. The learned counsel appearing for the Applicants cited judgments of this Court in their support to distinguish a review from recall. It was argued that a review petition would require consideration of the matter on merits in case there is an error apparent on the face of record. Whereas, recall applications are entertained only in case the judgment is passed without jurisdiction or without an opportunity of hearing being given to the affected party. All the judgments that are cited on this point are cases where petitions for recall were entertained when a person directly affected by the judgment was not heard. In the instant case, the dispute relates to information to be provided by the RBI under the Act. Though the information pertained to the banks, it was the decision of the RBI which was in challenge and decided by this Court. No effort was made by any of the applicants in the miscellaneous applications to get themselves impleaded when the transferred cases were being heard by this Court. The applications styled as recall are essentially applications for review. The nomenclature given to an application is of absolutely no consequence - what is of importance is the substance of the application - M.C. Mehta v. Union of India (2019) 2 SCJ 640. A close scrutiny of the applications for recall makes it clear that in substance, the applicants are seeking a review of the judgment in Jayantilal N.Mistry (supra). Therefore, we are of the considered opinion that these applications are not maintainable. | 1[ds]We make it clear that all questions raised in the Writ Petitions are left open and the order we propose to pass in the miscellaneous applications will not have any bearing on theconsideration of the Writ Petitions on their own merits.8. Order XLVII of the Supreme Court Rules, 2013 provides for the remedy of filing application for review. There is no provision in the Supreme Court Rules for filing any application for recall of the judgment of this Court. In Delhi Administration v. Gurdip Singh Uban & Ors. (supra), this Court made it clear that applications filed for clarification, modification or recall are often only a camouflage for review petitions. It was held that such applications should not be entertained, except in extraordinary circumstances. While relying upon this judgment of this Court in Rashid Khan Pathan (supra), this Court was of the opinion that filing applications which are not maintainable amounts to abuse of process of Court. In the said judgment, this Court reiterated the importance of finality of a judgment and held that parties should not be permitted to file applications to reopen concluded judgments of this Court.All the judgments that are cited on this point are cases where petitions for recall were entertained when a person directly affected by the judgment was not heard. In the instant case, the dispute relates to information to be provided by the RBI under the Act. Though the information pertained to the banks, it was the decision of the RBI which was in challenge and decided by this Court. No effort was made by any of the applicants in the miscellaneous applications to get themselves impleaded when the transferred cases were being heard by this Court. The applications styled as recall are essentially applications for review. The nomenclature given to an application is of absolutely no consequence - what is of importance is the substance of the application - M.C. Mehta v. Union of India (2019) 2 SCJ 640. A close scrutiny of the applications for recall makes it clear that in substance, the applicants are seeking a review of the judgment in Jayantilal N.Mistry (supra). Therefore, we are of the considered opinion that these applications are not maintainable. | 1 | 1,796 | 405 | ### 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:
by the RBI. We make it clear that all questions raised in the Writ Petitions are left open and the order we propose to pass in the miscellaneous applications will not have any bearing on the consideration of the Writ Petitions on their own merits. 6. The main contention of the Applicants for recall of the judgment in Jayantilal N. Mistry (supra) is that the judgment has far reaching consequences and the applicants who are directly and substantially affected were not made parties and heard. They relied upon the judgments of this Court in Budhia Swain & Ors. v. Gopinath Deb & Ors. (1999) 4 SCC 396 , Royal Paradise Hotel (P) Ltd. v. State of Haryana & Ors. (2006) 7 SCC 597 , Asit Kumar Kar v. State of W.B. & Ors. (2009) 2 SCC 703 and Vishnu Agarwal v. State of U.P.& Anr. (2011) 14 SCC 813 to contend that the application for recall of the judgment is maintainable when there is violation of principles of natural justice. It was also argued on behalf of the banks that an application for recall is different from review. The learned counsel appearing for the banks submitted that the inherent jurisdiction of this Court should be exercised to recall the judgment in Jayantilal N. Mistry (supra) which failed to consider important questions of law. It was further argued that the judgment in Jayantilal N. Mistry (supra) addressed a limited perspective. In the said judgment, this Court did not consider the important aspect of violation of the right to privacy which has been held to be an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution of India in Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India & Ors. (2017) 10 SCC 1. Another submission made on behalf of the banks is that the judgment in Jayantilal N. Mistry (supra) is per incuriam as certain judgments of this Court have not been considered. An attempt was made to make submissions regarding the correctness of the judgment which was curtailed by this Court on the ground that arguments were being heard only regarding the maintainability of the applications for recall. 7. The learned counsel for the Respondents submitted that it has been held by this Court in Delhi Administration v. Gurdip Singh Uban & Ors. (2000) 7 SCC 296 that applications for recall are filed to avoid filing Review Petitions which are decided by way of circulation. It was held in the said judgment that such applications are not maintainable. The learned counsel further referred to the judgments of this Court in B.K. Pavithra and Others v. Union of India and Others (2020) SCC Online SC 822, Saurabh Chaudri (Dr.)& Ors. v. Union of India & Ors. (2004) 5 SCC 618 and Rashid Khan Pathan : In Re : Vijay Kurle and Others 2020 SCC Online SC 711. It was argued on behalf of the Respondents that the judgment in Jayantilal N. Mistry (supra) was delivered after hearing RBI and ICICI Bank. All the banks were aware of the hearing of the case but did not take any step to get themselves impleaded. The Contempt Petition filed for non- implementation of the directions issued by this Court in Jayantilal N. Mistry (supra) was against the RBI and the Applicants could not have been made parties to the Contempt Petitions. The learned counsel appearing for the Respondents submitted that it is in public interest that the information that was directed to be furnished under the RTI Act by the RBI is revealed. 8. Order XLVII of the Supreme Court Rules, 2013 provides for the remedy of filing application for review. There is no provision in the Supreme Court Rules for filing any application for recall of the judgment of this Court. In Delhi Administration v. Gurdip Singh Uban & Ors. (supra), this Court made it clear that applications filed for clarification, modification or recall are often only a camouflage for review petitions. It was held that such applications should not be entertained, except in extraordinary circumstances. While relying upon this judgment of this Court in Rashid Khan Pathan (supra), this Court was of the opinion that filing applications which are not maintainable amounts to abuse of process of Court. In the said judgment, this Court reiterated the importance of finality of a judgment and held that parties should not be permitted to file applications to reopen concluded judgments of this Court. 9. The learned counsel appearing for the Applicants cited judgments of this Court in their support to distinguish a review from recall. It was argued that a review petition would require consideration of the matter on merits in case there is an error apparent on the face of record. Whereas, recall applications are entertained only in case the judgment is passed without jurisdiction or without an opportunity of hearing being given to the affected party. All the judgments that are cited on this point are cases where petitions for recall were entertained when a person directly affected by the judgment was not heard. In the instant case, the dispute relates to information to be provided by the RBI under the Act. Though the information pertained to the banks, it was the decision of the RBI which was in challenge and decided by this Court. No effort was made by any of the applicants in the miscellaneous applications to get themselves impleaded when the transferred cases were being heard by this Court. The applications styled as recall are essentially applications for review. The nomenclature given to an application is of absolutely no consequence - what is of importance is the substance of the application - M.C. Mehta v. Union of India (2019) 2 SCJ 640. A close scrutiny of the applications for recall makes it clear that in substance, the applicants are seeking a review of the judgment in Jayantilal N.Mistry (supra). Therefore, we are of the considered opinion that these applications are not maintainable.
### Response:
1
### Explanation:
We make it clear that all questions raised in the Writ Petitions are left open and the order we propose to pass in the miscellaneous applications will not have any bearing on theconsideration of the Writ Petitions on their own merits.8. Order XLVII of the Supreme Court Rules, 2013 provides for the remedy of filing application for review. There is no provision in the Supreme Court Rules for filing any application for recall of the judgment of this Court. In Delhi Administration v. Gurdip Singh Uban & Ors. (supra), this Court made it clear that applications filed for clarification, modification or recall are often only a camouflage for review petitions. It was held that such applications should not be entertained, except in extraordinary circumstances. While relying upon this judgment of this Court in Rashid Khan Pathan (supra), this Court was of the opinion that filing applications which are not maintainable amounts to abuse of process of Court. In the said judgment, this Court reiterated the importance of finality of a judgment and held that parties should not be permitted to file applications to reopen concluded judgments of this Court.All the judgments that are cited on this point are cases where petitions for recall were entertained when a person directly affected by the judgment was not heard. In the instant case, the dispute relates to information to be provided by the RBI under the Act. Though the information pertained to the banks, it was the decision of the RBI which was in challenge and decided by this Court. No effort was made by any of the applicants in the miscellaneous applications to get themselves impleaded when the transferred cases were being heard by this Court. The applications styled as recall are essentially applications for review. The nomenclature given to an application is of absolutely no consequence - what is of importance is the substance of the application - M.C. Mehta v. Union of India (2019) 2 SCJ 640. A close scrutiny of the applications for recall makes it clear that in substance, the applicants are seeking a review of the judgment in Jayantilal N.Mistry (supra). Therefore, we are of the considered opinion that these applications are not maintainable.
|
Kumar Harish Chandra Singh Das & Ors Vs. Bansidhar Mohanty And Ors | decisions of the High Courts in India. These are Peary Mohan Maiti v. Sreenath Chandra, 14 Cal WN 1046; Sarur Jag Begum v. Baroda Kanta, ILR 37 Cal 525 and Gomathi Ammal v. V. S. M. Krishna Iyer, AIR 1954 Mad 126 . In all these cases it has been held that a party to a document which is required by law to be attested is not competent to attest the document. In taking this view reliance has been placed upon the observations of Lord Selborne, L.C., in Seal v. Claridge (1881) 7 QBD 516."It (i.e., the attestation) implies the presence of some person, who stands by but is not a party to the transaction". The object of attestation is to protect the executant from being required to execute a document by the other party thereto by force, fraud or undue influence. No doubt neither the definition of attested nor S. 59 of the Transfer of Property Act debars a party to a mortgage deed from attesting it. It must, however, be borne in mind that the law requires that the testimony of parties to a document cannot dispense with the necessity of examining at least one attesting witness to prove the execution of the deed. Inferentially, therefore, it debars a party from attesting a document which is required by law to be attested. Where, however, a person is not a party to the deed there is no prohibition in law to the proof of the execution of the document by that person. It would follow, therefore, that the ground on which the rule laid down in English cases and followed in India would not be available against a person who has lent money for securing the payment of which a mortgage deed was executed by the mortgagor but who is not a party to that deed. Indeed it has been so held by the Bombay High Court in Balu Ravji Gharat v. Gopal Gangadhar Dhabu, 12 Ind Cas 531 (Bom), and by the late Chief Court of Oudh in Durga Din v. Suraj Bakhsh, ILR 7 Luck 41 : (AIR 1931 Oudh 285) (FB). In the first of these cases an argument similar to the one advanced before us was addressed before the Bombay High Court. Repelling it the Court observed:"In (1881) 7 QBD 516, much relied upon by the appellants pleader the old case of Swire v. Bell, (1793) 5 TR 371, in which the obsolete rule was pushed to its farthest extent, was cited to the Court but Lord Selborne in delivering judgment said "What is the meaning of attestation, apart from the Bills of Sale Act, 1878? The word implies the presence of some person who stands by but is not a party to the transaction. He then referred to Freshfield v. Reed, (1842) 9 M and W 404 and said : It follows from that case that the party to an instrument cannot attest it. Again in Wickham v. Marquis of Bath (1865) 1 Eq 17 at p. 25, the remarks of the master of the Rolls imply that if the plaintiffs Dawe and Wickham had not executed the deed as parties but had only signed with the intention of attesting, the provision of the statute requiring two attesting witnesses would have been satisfied. " A distinction was thus drawn in this case between a person who is a party to a deed and a person who, though not a party to the deed, is a party to the transaction and it was said that the latter was not incompetent to attest the deed. This decision was followed by the Chief Court of Oudh. We agree with the view taken by the Bombay High Court. 5. As regards the second question a number of High Courts in India had taken the view that a benamidar could not maintain a suit for the recovery of property standing in his name, beneficial interest in which was in someone else. Benami transactions are not frowned upon in India but on the other hand they are recognised. Indeed S. 84 of the Indian Trusts Act, 1882 gives recognition to such transactions. Dealing with such transactions Sir George Farwell has observed in Mt. Bilas Kunwar v. Desraj Ranjit Singh, 42 Ind App 202 at p. 205 : (AIR 1915 PC 96 at p. 97),It is quite unobjectionable and has a curious resemblance to the doctrine of our English law, that the trust of the legal estate results to the man who pays the purchase money, and this again follows the analogy of our common law, that where a feoffment is made without consideration the use results to the feoffor." It must follow from this that the beneficial owner of property standing in the name of another must necessarily be entitled to institute a suit with respect to it or with respect to the enforcement of a right concerning the property of a co-sharer. It will follow that a person who takes benefit under the transaction or who provides consideration for a transaction is entitled to maintain a suit concerning the transaction. Thus where a transaction is a mortgage the actual lender of money is entitled to sue upon it. Indeed, till the decision of the Privy Council in Gur Narayan v. Sheo Lal Singh, 46 Ind App 1 : (AIR 1918 PC 140), the right of a benamidar to sue upon a transaction which is only ostensibly in his favour was not recognised by several Courts in India. Relying upon this decision it was contended before us on behalf of the appellant that in view of this decision I must hold that it is the benamidar alone who could maintain a suit but not the beneficial owner. That, however, is not what the Privy Council decided. Indeed, that was never a question which arose for consideration before the Privy Council. Apart from that on principle the real beneficiary under a transaction cannot be disentitled to enforce a right arising thereunder. | 0[ds]4. In our opinion there is no substance in either of the contentions urged on behalf of the appellant. It is no doubt true that there were only two attesting witnesses to the mortgage deed, one of whom was respondent No. 1, that is, the lender himself. Section 59 of the Transfer of Property Act, which amongst other things, provides that a mortgage deed shall be attested by at least two witnesses does not in terms debar the lender of money from attesting the deed. The word "attested" has been defined thus in S. 3 of the Transfer of Property Act :" attested in relation to an instrument means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attention shall be necessary"This definition is similar to that contained in the Indian Succession Act. It will be seen that it also does not preclude in terms the lender of money from attesting a mortgage deed under which the money was lent. No other provision of law has been brought to our notice which debars the lender of money from attesting the deed which evidences the transaction whereunder the money was lent. Learned counsel, however, referred us to some decisions of the High Courts in India. These are Peary Mohan Maiti v. Sreenath Chandra, 14 Cal WN 1046; Sarur Jag Begum v. Baroda Kanta, ILR 37 Cal 525 and Gomathi Ammal v. V. S. M. Krishna Iyer, AIR 1954 Mad 126 . In all these cases it has been held that a party to a document which is required by law to be attested is not competent to attest the document. In taking this view reliance has been placed upon the observations of Lord Selborne, L.C., inSeal v. Claridge (1881) 7 QBD 516"It (i.e., the attestation) implies the presence of some person, who stands by but is not a party to the transaction"The object of attestation is to protect the executant from being required to execute a document by the other party thereto by force, fraud or undue influence. No doubt neither the definition of attested nor S. 59 of the Transfer of Property Act debars a party to a mortgage deed from attesting it. It must, however, be borne in mind that the law requires that the testimony of parties to a document cannot dispense with the necessity of examining at least one attesting witness to prove the execution of the deed. Inferentially, therefore, it debars a party from attesting a document which is required by law to be attested. Where, however, a person is not a party to the deed there is no prohibition in law to the proof of the execution of the document by that person. It would follow, therefore, that the ground on which the rule laid down in English cases and followed in India would not be available against a person who has lent money for securing the payment of which a mortgage deed was executed by the mortgagor but who is not a party to that deed. Indeed it has been so held by the Bombay High Court in Balu Ravji Gharat v. Gopal Gangadhar Dhabu, 12 Ind Cas 531 (Bom), and by the late Chief Court of Oudh in Durga Din v. Suraj Bakhsh, ILR 7 Luck 41 : (AIR 1931 Oudh 285) (FB). In the first of these cases an argument similar to the one advanced before us was addressed before the Bombay High Court. Repelling it the Court observed:"In (1881) 7 QBD 516, much relied upon by the appellants pleader the old case ofSwire v. Bell, (1793) 5 TR, in which the obsolete rule was pushed to its farthest extent, was cited to the Court but Lord Selborne in delivering judgment said "What is the meaning of attestation, apart from the Bills of Sale Act, 1878? The word implies the presence of some person who stands by but is not a party to the transaction. He then referred toFreshfield v. Reed, (1842) 9 M and W 404and said : It follows from that case that the party to an instrument cannot attest it. Again in Wickham v. Marquis of Bath (1865) 1 Eq 17 at p. 25, the remarks of the master of the Rolls imply that if the plaintiffs Dawe and Wickham had not executed the deed as parties but had only signed with the intention of attesting, the provision of the statute requiring two attesting witnesses would have been satisfied. "A distinction was thus drawn in this case between a person who is a party to a deed and a person who, though not a party to the deed, is a party to the transaction and it was said that the latter was not incompetent to attest the deed. This decision was followed by the Chief Court of Oudh. We agree with the view taken by the Bombay High Court5. As regards the second question a number of High Courts in India had taken the view that a benamidar could not maintain a suit for the recovery of property standing in his name, beneficial interest in which was in someone else. Benami transactions are not frowned upon in India but on the other hand they are recognised. Indeed S. 84 ofthe Indian Trusts Act, 1882 gives recognition to such transactions. Dealing with such transactions Sir George Farwell has observed in Mt. Bilas Kunwar v. Desraj Ranjit Singh, 42 Ind App 202 at p. 205 : (AIR 1915 PC 96 at p. 97),It is quite unobjectionable and has a curious resemblance to the doctrine of our English law, that the trust of the legal estate results to the man who pays the purchase money, and this again follows the analogy of our common law, that where a feoffment is made without consideration the use results to the feoffor."It must follow from this that the beneficial owner of property standing in the name of another must necessarily be entitled to institute a suit with respect to it or with respect to the enforcement of a right concerning the property of a co-sharer. It will follow that a person who takes benefit under the transaction or who provides consideration for a transaction is entitled to maintain a suit concerning the transaction. Thus where a transaction is a mortgage the actual lender of money is entitled to sue upon it. Indeed, till the decision of the Privy Council in Gur Narayan v. Sheo Lal Singh, 46 Ind App 1 : (AIR 1918 PC 140), the right of a benamidar to sue upon a transaction which is only ostensibly in his favour was not recognised by several Courts in India. Relying upon this decision it was contended before us on behalf of the appellant that in view of this decision I must hold that it is the benamidar alone who could maintain a suit but not the beneficial owner. That, however, is not what the Privy Council decided. Indeed, that was never a question which arose for consideration before the Privy Council. Apart from that on principle the real beneficiary under a transaction cannot be disentitled to enforce a right arising thereunder. | 0 | 1,861 | 1,428 | ### 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:
decisions of the High Courts in India. These are Peary Mohan Maiti v. Sreenath Chandra, 14 Cal WN 1046; Sarur Jag Begum v. Baroda Kanta, ILR 37 Cal 525 and Gomathi Ammal v. V. S. M. Krishna Iyer, AIR 1954 Mad 126 . In all these cases it has been held that a party to a document which is required by law to be attested is not competent to attest the document. In taking this view reliance has been placed upon the observations of Lord Selborne, L.C., in Seal v. Claridge (1881) 7 QBD 516."It (i.e., the attestation) implies the presence of some person, who stands by but is not a party to the transaction". The object of attestation is to protect the executant from being required to execute a document by the other party thereto by force, fraud or undue influence. No doubt neither the definition of attested nor S. 59 of the Transfer of Property Act debars a party to a mortgage deed from attesting it. It must, however, be borne in mind that the law requires that the testimony of parties to a document cannot dispense with the necessity of examining at least one attesting witness to prove the execution of the deed. Inferentially, therefore, it debars a party from attesting a document which is required by law to be attested. Where, however, a person is not a party to the deed there is no prohibition in law to the proof of the execution of the document by that person. It would follow, therefore, that the ground on which the rule laid down in English cases and followed in India would not be available against a person who has lent money for securing the payment of which a mortgage deed was executed by the mortgagor but who is not a party to that deed. Indeed it has been so held by the Bombay High Court in Balu Ravji Gharat v. Gopal Gangadhar Dhabu, 12 Ind Cas 531 (Bom), and by the late Chief Court of Oudh in Durga Din v. Suraj Bakhsh, ILR 7 Luck 41 : (AIR 1931 Oudh 285) (FB). In the first of these cases an argument similar to the one advanced before us was addressed before the Bombay High Court. Repelling it the Court observed:"In (1881) 7 QBD 516, much relied upon by the appellants pleader the old case of Swire v. Bell, (1793) 5 TR 371, in which the obsolete rule was pushed to its farthest extent, was cited to the Court but Lord Selborne in delivering judgment said "What is the meaning of attestation, apart from the Bills of Sale Act, 1878? The word implies the presence of some person who stands by but is not a party to the transaction. He then referred to Freshfield v. Reed, (1842) 9 M and W 404 and said : It follows from that case that the party to an instrument cannot attest it. Again in Wickham v. Marquis of Bath (1865) 1 Eq 17 at p. 25, the remarks of the master of the Rolls imply that if the plaintiffs Dawe and Wickham had not executed the deed as parties but had only signed with the intention of attesting, the provision of the statute requiring two attesting witnesses would have been satisfied. " A distinction was thus drawn in this case between a person who is a party to a deed and a person who, though not a party to the deed, is a party to the transaction and it was said that the latter was not incompetent to attest the deed. This decision was followed by the Chief Court of Oudh. We agree with the view taken by the Bombay High Court. 5. As regards the second question a number of High Courts in India had taken the view that a benamidar could not maintain a suit for the recovery of property standing in his name, beneficial interest in which was in someone else. Benami transactions are not frowned upon in India but on the other hand they are recognised. Indeed S. 84 of the Indian Trusts Act, 1882 gives recognition to such transactions. Dealing with such transactions Sir George Farwell has observed in Mt. Bilas Kunwar v. Desraj Ranjit Singh, 42 Ind App 202 at p. 205 : (AIR 1915 PC 96 at p. 97),It is quite unobjectionable and has a curious resemblance to the doctrine of our English law, that the trust of the legal estate results to the man who pays the purchase money, and this again follows the analogy of our common law, that where a feoffment is made without consideration the use results to the feoffor." It must follow from this that the beneficial owner of property standing in the name of another must necessarily be entitled to institute a suit with respect to it or with respect to the enforcement of a right concerning the property of a co-sharer. It will follow that a person who takes benefit under the transaction or who provides consideration for a transaction is entitled to maintain a suit concerning the transaction. Thus where a transaction is a mortgage the actual lender of money is entitled to sue upon it. Indeed, till the decision of the Privy Council in Gur Narayan v. Sheo Lal Singh, 46 Ind App 1 : (AIR 1918 PC 140), the right of a benamidar to sue upon a transaction which is only ostensibly in his favour was not recognised by several Courts in India. Relying upon this decision it was contended before us on behalf of the appellant that in view of this decision I must hold that it is the benamidar alone who could maintain a suit but not the beneficial owner. That, however, is not what the Privy Council decided. Indeed, that was never a question which arose for consideration before the Privy Council. Apart from that on principle the real beneficiary under a transaction cannot be disentitled to enforce a right arising thereunder.
### Response:
0
### Explanation:
Learned counsel, however, referred us to some decisions of the High Courts in India. These are Peary Mohan Maiti v. Sreenath Chandra, 14 Cal WN 1046; Sarur Jag Begum v. Baroda Kanta, ILR 37 Cal 525 and Gomathi Ammal v. V. S. M. Krishna Iyer, AIR 1954 Mad 126 . In all these cases it has been held that a party to a document which is required by law to be attested is not competent to attest the document. In taking this view reliance has been placed upon the observations of Lord Selborne, L.C., inSeal v. Claridge (1881) 7 QBD 516"It (i.e., the attestation) implies the presence of some person, who stands by but is not a party to the transaction"The object of attestation is to protect the executant from being required to execute a document by the other party thereto by force, fraud or undue influence. No doubt neither the definition of attested nor S. 59 of the Transfer of Property Act debars a party to a mortgage deed from attesting it. It must, however, be borne in mind that the law requires that the testimony of parties to a document cannot dispense with the necessity of examining at least one attesting witness to prove the execution of the deed. Inferentially, therefore, it debars a party from attesting a document which is required by law to be attested. Where, however, a person is not a party to the deed there is no prohibition in law to the proof of the execution of the document by that person. It would follow, therefore, that the ground on which the rule laid down in English cases and followed in India would not be available against a person who has lent money for securing the payment of which a mortgage deed was executed by the mortgagor but who is not a party to that deed. Indeed it has been so held by the Bombay High Court in Balu Ravji Gharat v. Gopal Gangadhar Dhabu, 12 Ind Cas 531 (Bom), and by the late Chief Court of Oudh in Durga Din v. Suraj Bakhsh, ILR 7 Luck 41 : (AIR 1931 Oudh 285) (FB). In the first of these cases an argument similar to the one advanced before us was addressed before the Bombay High Court. Repelling it the Court observed:"In (1881) 7 QBD 516, much relied upon by the appellants pleader the old case ofSwire v. Bell, (1793) 5 TR, in which the obsolete rule was pushed to its farthest extent, was cited to the Court but Lord Selborne in delivering judgment said "What is the meaning of attestation, apart from the Bills of Sale Act, 1878? The word implies the presence of some person who stands by but is not a party to the transaction. He then referred toFreshfield v. Reed, (1842) 9 M and W 404and said : It follows from that case that the party to an instrument cannot attest it. Again in Wickham v. Marquis of Bath (1865) 1 Eq 17 at p. 25, the remarks of the master of the Rolls imply that if the plaintiffs Dawe and Wickham had not executed the deed as parties but had only signed with the intention of attesting, the provision of the statute requiring two attesting witnesses would have been satisfied. "A distinction was thus drawn in this case between a person who is a party to a deed and a person who, though not a party to the deed, is a party to the transaction and it was said that the latter was not incompetent to attest the deed. This decision was followed by the Chief Court of Oudh. We agree with the view taken by the Bombay High Court5. As regards the second question a number of High Courts in India had taken the view that a benamidar could not maintain a suit for the recovery of property standing in his name, beneficial interest in which was in someone else. Benami transactions are not frowned upon in India but on the other hand they are recognised. Indeed S. 84 ofthe Indian Trusts Act, 1882 gives recognition to such transactions. Dealing with such transactions Sir George Farwell has observed in Mt. Bilas Kunwar v. Desraj Ranjit Singh, 42 Ind App 202 at p. 205 : (AIR 1915 PC 96 at p. 97),It is quite unobjectionable and has a curious resemblance to the doctrine of our English law, that the trust of the legal estate results to the man who pays the purchase money, and this again follows the analogy of our common law, that where a feoffment is made without consideration the use results to the feoffor."It must follow from this that the beneficial owner of property standing in the name of another must necessarily be entitled to institute a suit with respect to it or with respect to the enforcement of a right concerning the property of a co-sharer. It will follow that a person who takes benefit under the transaction or who provides consideration for a transaction is entitled to maintain a suit concerning the transaction. Thus where a transaction is a mortgage the actual lender of money is entitled to sue upon it. Indeed, till the decision of the Privy Council in Gur Narayan v. Sheo Lal Singh, 46 Ind App 1 : (AIR 1918 PC 140), the right of a benamidar to sue upon a transaction which is only ostensibly in his favour was not recognised by several Courts in India. Relying upon this decision it was contended before us on behalf of the appellant that in view of this decision I must hold that it is the benamidar alone who could maintain a suit but not the beneficial owner. That, however, is not what the Privy Council decided. Indeed, that was never a question which arose for consideration before the Privy Council. Apart from that on principle the real beneficiary under a transaction cannot be disentitled to enforce a right arising thereunder.
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B.S. Bharti Vs. I.B.P. Company Ltd | by the said Act.(3) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946 - which can be called "sister enactments" to Industrial Disputes Act - and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2 (k) and Section 2-A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to civil court is open.(4) It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate Government. The power to make a reference conferred upon the Government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the Government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication.(5) Consistent with the policy of law aforesaid, we commend to Parliament and the State Legislature to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly - i.e., without the requirement of a reference by the Government in case of of industrial disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act.(6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to "statutory provisions". Any violation of these Standing Orders entitles an employee to appropriate relief either before the forums created by the Industrial Disputes Act or the civil court where recourse to civil court is open according to the principle indicated herein.(7) The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute-resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of the courts and tribunals under the Industrial Disputes act are far more extensive in the sense that they can grant such reliefs as they think appropriate in the circumstances for putting an end to an industrial dispute". 6. The High Court considered these principles laid down by this Court in Rajasthan State Road Transport Corporation and Another case (supra) and rightly came to the conclusion, the principles as laid down by this Court in paragraphs 2 and 3 clearly apply to the facts of the appellants case. Hence, a civil suit questioning the termination of service and ancillary relief as sought for in the suit filed by the appellant herein was not maintainable and the only remedy was to approach the forum created under the Industrial Disputes Act. It is to be noticed that the appellant did invoke the provisions of the Industrial Disputes Act for getting the dispute referred to an appropriate forum under the said act for an adjudication but he failed and he did not pursue the remedy any further though such refusal could have been challenged by way of a writ petition. He having failed to do so he cannot then resort to a remedy by way of a civil suit which is otherwise not maintainable in law.7. We think the High Court was justified in coming to this conclusion. 8. However, the learned counsel for the appellant relied on para 37 of the Rajasthan State Road Transport Corporation and Another, wherein this Court having held that the civil court had no jurisdiction in regard to a dispute pertaining to the workman and management which is otherwise covered by the Industrial Disputes Act held thus:- "It is directed that the principles enunciated in this judgment shall apply to all pending matters except where decree have been passed by the trial court and the matters are pending in appeal or second appeal, as the case may be. All suits pending in the trial court shall be governed by the principles enunciated herein - as also the suits and proceedings to be instituted hereinafter". 9. Based on the above observations of the Court, the learned counsel submitted that the principle of relief enunciated in the said paragraph of the judgment of this Court ought to have been extended to him and the relief granted by the Trial Court ought to have been affirmed. It is also be noted in this context this principle does not apply to cases wherein the efforts of the workman to get the dispute referred to adjudication to an appropriate forum under the Industrial Disputes Act has been rejected. As stated above, in cases where the application for reference under the provisions of the Industrial Disputes Act has been rejected by the appropriate authority, the aggrieved party should pursue the same by way of a writ petition and if possible get the dispute referred under the Industrial Disputes Act. If he fails to do so even after such attempt or fails to make such an attempt, the directions issued in para 37 of the above judgment in the case of Rajasthan State Road Transport Corporation (supra) does not apply.10. In the said view of the matter, we find no reason to interfere with the judgment of the High Court. | 0[ds]9. Based on the above observations of the Court, the learned counsel submitted that the principle of relief enunciated in the said paragraph of the judgment of this Court ought to have been extended to him and the relief granted by the Trial Court ought to have been affirmed. It is also be noted in this context this principle does not apply to cases wherein the efforts of the workman to get the dispute referred to adjudication to an appropriate forum under the Industrial Disputes Act has been rejected. As stated above, in cases where the application for reference under the provisions of the Industrial Disputes Act has been rejected by the appropriate authority, the aggrieved party should pursue the same by way of a writ petition and if possible get the dispute referred under the Industrial Disputes Act. If he fails to do so even after such attempt or fails to make such an attempt, the directions issued in para 37 of the above judgment in the case of Rajasthan State Road Transport Corporation (supra) does not apply.10. In the said view of the matter, we find no reason to interfere with the judgment of the High Court. | 0 | 1,876 | 216 | ### Instruction:
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by the said Act.(3) Similarly, where the dispute involves the recognition, observance or enforcement of rights and obligations created by enactments like Industrial Employment (Standing Orders) Act, 1946 - which can be called "sister enactments" to Industrial Disputes Act - and which do not provide a forum for resolution of such disputes, the only remedy shall be to approach the forums created by the Industrial Disputes Act provided they constitute industrial disputes within the meaning of Section 2 (k) and Section 2-A of Industrial Disputes Act or where such enactment says that such dispute shall be either treated as an industrial dispute or says that it shall be adjudicated by any of the forums created by the Industrial Disputes Act. Otherwise, recourse to civil court is open.(4) It is not correct to say that the remedies provided by the Industrial Disputes Act are not equally effective for the reason that access to the forum depends upon a reference being made by the appropriate Government. The power to make a reference conferred upon the Government is to be exercised to effectuate the object of the enactment and hence not unguided. The rule is to make a reference unless, of course, the dispute raised is a totally frivolous one ex facie. The power conferred is the power to refer and not the power to decide, though it may be that the Government is entitled to examine whether the dispute is ex facie frivolous, not meriting an adjudication.(5) Consistent with the policy of law aforesaid, we commend to Parliament and the State Legislature to make a provision enabling a workman to approach the Labour Court/Industrial Tribunal directly - i.e., without the requirement of a reference by the Government in case of of industrial disputes covered by Section 2-A of the Industrial Disputes Act. This would go a long way in removing the misgivings with respect to the effectiveness of the remedies provided by the Industrial Disputes Act.(6) The certified Standing Orders framed under and in accordance with the Industrial Employment (Standing Orders) Act, 1946 are statutorily imposed conditions of service and are binding both upon the employers and employees, though they do not amount to "statutory provisions". Any violation of these Standing Orders entitles an employee to appropriate relief either before the forums created by the Industrial Disputes Act or the civil court where recourse to civil court is open according to the principle indicated herein.(7) The policy of law emerging from Industrial Disputes Act and its sister enactments is to provide an alternative dispute-resolution mechanism to the workmen, a mechanism which is speedy, inexpensive, informal and unencumbered by the plethora of procedural laws and appeals upon appeals and revisions applicable to civil courts. Indeed, the powers of the courts and tribunals under the Industrial Disputes act are far more extensive in the sense that they can grant such reliefs as they think appropriate in the circumstances for putting an end to an industrial dispute". 6. The High Court considered these principles laid down by this Court in Rajasthan State Road Transport Corporation and Another case (supra) and rightly came to the conclusion, the principles as laid down by this Court in paragraphs 2 and 3 clearly apply to the facts of the appellants case. Hence, a civil suit questioning the termination of service and ancillary relief as sought for in the suit filed by the appellant herein was not maintainable and the only remedy was to approach the forum created under the Industrial Disputes Act. It is to be noticed that the appellant did invoke the provisions of the Industrial Disputes Act for getting the dispute referred to an appropriate forum under the said act for an adjudication but he failed and he did not pursue the remedy any further though such refusal could have been challenged by way of a writ petition. He having failed to do so he cannot then resort to a remedy by way of a civil suit which is otherwise not maintainable in law.7. We think the High Court was justified in coming to this conclusion. 8. However, the learned counsel for the appellant relied on para 37 of the Rajasthan State Road Transport Corporation and Another, wherein this Court having held that the civil court had no jurisdiction in regard to a dispute pertaining to the workman and management which is otherwise covered by the Industrial Disputes Act held thus:- "It is directed that the principles enunciated in this judgment shall apply to all pending matters except where decree have been passed by the trial court and the matters are pending in appeal or second appeal, as the case may be. All suits pending in the trial court shall be governed by the principles enunciated herein - as also the suits and proceedings to be instituted hereinafter". 9. Based on the above observations of the Court, the learned counsel submitted that the principle of relief enunciated in the said paragraph of the judgment of this Court ought to have been extended to him and the relief granted by the Trial Court ought to have been affirmed. It is also be noted in this context this principle does not apply to cases wherein the efforts of the workman to get the dispute referred to adjudication to an appropriate forum under the Industrial Disputes Act has been rejected. As stated above, in cases where the application for reference under the provisions of the Industrial Disputes Act has been rejected by the appropriate authority, the aggrieved party should pursue the same by way of a writ petition and if possible get the dispute referred under the Industrial Disputes Act. If he fails to do so even after such attempt or fails to make such an attempt, the directions issued in para 37 of the above judgment in the case of Rajasthan State Road Transport Corporation (supra) does not apply.10. In the said view of the matter, we find no reason to interfere with the judgment of the High Court.
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9. Based on the above observations of the Court, the learned counsel submitted that the principle of relief enunciated in the said paragraph of the judgment of this Court ought to have been extended to him and the relief granted by the Trial Court ought to have been affirmed. It is also be noted in this context this principle does not apply to cases wherein the efforts of the workman to get the dispute referred to adjudication to an appropriate forum under the Industrial Disputes Act has been rejected. As stated above, in cases where the application for reference under the provisions of the Industrial Disputes Act has been rejected by the appropriate authority, the aggrieved party should pursue the same by way of a writ petition and if possible get the dispute referred under the Industrial Disputes Act. If he fails to do so even after such attempt or fails to make such an attempt, the directions issued in para 37 of the above judgment in the case of Rajasthan State Road Transport Corporation (supra) does not apply.10. In the said view of the matter, we find no reason to interfere with the judgment of the High Court.
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Sadhu Ram Vs. The Custodian-General Of Evacueeproperty | Jagannadhadas, J.1. This is an application under Art.32 of the Constitution which arises under the following circumstances. The petitioner, Sadhu Ram purchased from one Imam-ud-Din, a muslim evacuee, 43 Bighas 14 Biswas of agricultural land comprised in Khasra Nos. 2135 to 2139, 2158, 2159,2171,2204 and 2206 with Shamlat rights in village Kaithal, District Karnal, Punjab. The sale deed was executed on 6-9-1947, and registered on 9-9-1947, before Imam-ud-din left for Pakistan.The consideration therefore was Rs. 3,000 and as much as Rs. 2,700 thereof appears to have been paid by the petitioner to the vendor before the Sub-Registrar. Possession also was transferred on the execution of the sale-deed. Mutation was made by the revenue authorities on 23-1-1948. East Punjab Evacuees (Administration of Property) Act 1947 (East Punjab Act 14 of 1947) came into force on 12-12-1947. It was amended by East Punjab Evacuees (Administration of Property) Amendment) Ordinance, 1948 (East Punjab Ordinance 2 of 1948) which came into force on 16-1-1948.This gave place to East Punjab Evacuees (Administration of Property) (Amendment) Act, 1948 (East Punjab Act 26 of 1948) which came into force on 11-4-1948. By these amendments a new Section, S. 5-A, was inserted in the East Punjab Act 14 of 1947. It will be seen that these amendments were subsequent to the date of the execution and registration of the sale-deed and the transfer of possession thereof. Section 5-A, so far as it is relevant for our present purpose, is in the following terms:"5-A. (1) No sale, mortgage, pledge lease, exchange or other transter of any interest or right in or over any property made by an evacuee or by any person in anticipation of his becoming an evacuee, or by the agent, assign or attorney of the evacuee or such person on or after the fifteenth day of August, 1947, shall be, effective so as to confer any rights or remedies on the parties to such transfer or on any person claiming under them unless it is confirmed by the Custodian.(2) An application for confirming such transfer may be made by an person claiming thereunder or by any person lawfully authorised by him".This Section purports to be retrospective. Hence an application for confirmation was made by the petitioner on 23-3-1948. The Assistant Custodian, Karnal, on being satisfied about the genuineness of the transaction, recommended confirmation. But the Additional Custodian, Jullundur, by his order dated 11-2-1953, rejected the application for confirmation acting on the Custodian-Generals circular dated 9-3-1950, under which a policy of not confirming transactions relating to agricultural property was enunciated. This was affirmed by the Assistant Custodian-General on an application to him for revision.2. Learned counsel for the petitioner relies on the fact that his transaction which on enquiry, was held to be genuine, was entered into before the East Punjab Act 14 of 1947 was enacted and before the amendment therefore by insertion of S. 5-A came into operation. He contends that the retrospective operation of S. 5-A in such circumstances amounts to deprivation of his property, without any compensation and is, therefore, hit by Art.31 of the Constitution.Whethever may have been the position if this matter had to be dealth with much earlier, it seems doubtful whether any such contention can be raised by the petitioner before us, on this date, in view of the recent Constitution (Fourth Amendment) Act, 1955, which has come into force on 27-4-1955. It is unnecessary, however, to base our decision on this ground.3. It appears to us clear that S. 5-A cannot be read as a legislative provision depriving the owner of his property. There can be no doubt that so far as transactions subsequent to the date of amendment are concerned, it is nothing more than a restriction on the transfer of property by the owner thereof.Any transferee in such a situation takes the property subject to the requirement of confirmation. The case would, then, be one which falls under Art. 19 of the Constitution and not under Art. 31.There can be no doubt that having regard to the purpose and policy underlying the law relating Evacuee Property and the abnormal conditions which arose from and after 15-8-1947, the requirement of confirmation with reference to transactions affecting Evacuee Property cannot but be considered a reasonable restriction. If this requirement was is essence not a deprivation but a restriction in respect of future transactions there is no reason for treating it as deprivation by virtue of its having been given retrospective effect, such retrospectively being within the competence of the appropriate Legislature.The retrospectivity commencing from 15-8-1947, is also not only reasonable but called for in the circumstances, which occasioned the Evacuee Property laws.In this case the petitioner is deprived of his bargain and incurs consequential loss, not by virtue of any unconstitutional law but by reason of the quasi-judicial order of the Custodian declining to confirm the transaction.The contention of the learned counsel for the petitioner that any fundamental right of his has been violated must, therefore, be rejected.4. Learned counsel next urges that the action of the Custodian in basing his decision on some circular of the Custodian-General is illegal andthat it is not relevant material under S. 5-A. It is enough to say that even if this contention be correct, this does not raise any question of violation of fundamental rights. If this is the sole ground, this application is misconceived. | 0[ds]Whethever may have been the position if this matter had to be dealth with much earlier, it seems doubtful whether any such contention can be raised by the petitioner before us, on this date, in view of the recent Constitution (Fourth Amendment) Act, 1955, which has come into force onIt is unnecessary, however, to base our decision on this ground.3. It appears to us clear that S. 5-A cannot be read as a legislative provision depriving the owner of his property. There can be no doubt that so far as transactions subsequent to the date of amendment are concerned, it is nothing more than a restriction on the transfer of property by the owner thereof.Any transferee in such a situation takes the property subject to the requirement of confirmation. The case would, then, be one which falls under Art. 19 of the Constitution and not under Art. 31.There can be no doubt that having regard to the purpose and policy underlying the law relating Evacuee Property and the abnormal conditions which arose from and after 15-8-1947, the requirement of confirmation with reference to transactions affecting Evacuee Property cannot but be considered a reasonable restriction. If this requirement was is essence not a deprivation but a restriction in respect of future transactions there is no reason for treating it as deprivation by virtue of its having been given retrospective effect, such retrospectively being within the competence of the appropriate Legislature.The retrospectivity commencing from 15-8-1947, is also not only reasonable but called for in the circumstances, which occasioned the Evacuee Property laws.In this case the petitioner is deprived of his bargain and incurs consequential loss, not by virtue of any unconstitutional law but by reason of the quasi-judicial order of the Custodian declining to confirm the transaction.The contention of the learned counsel for the petitioner that any fundamental right of his has been violated must, therefore, beis enough to say that even if this contention be correct, this does not raise any question of violation of fundamental rights. If this is the sole ground, this application is misconceived. | 0 | 1,010 | 381 | ### Instruction:
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Jagannadhadas, J.1. This is an application under Art.32 of the Constitution which arises under the following circumstances. The petitioner, Sadhu Ram purchased from one Imam-ud-Din, a muslim evacuee, 43 Bighas 14 Biswas of agricultural land comprised in Khasra Nos. 2135 to 2139, 2158, 2159,2171,2204 and 2206 with Shamlat rights in village Kaithal, District Karnal, Punjab. The sale deed was executed on 6-9-1947, and registered on 9-9-1947, before Imam-ud-din left for Pakistan.The consideration therefore was Rs. 3,000 and as much as Rs. 2,700 thereof appears to have been paid by the petitioner to the vendor before the Sub-Registrar. Possession also was transferred on the execution of the sale-deed. Mutation was made by the revenue authorities on 23-1-1948. East Punjab Evacuees (Administration of Property) Act 1947 (East Punjab Act 14 of 1947) came into force on 12-12-1947. It was amended by East Punjab Evacuees (Administration of Property) Amendment) Ordinance, 1948 (East Punjab Ordinance 2 of 1948) which came into force on 16-1-1948.This gave place to East Punjab Evacuees (Administration of Property) (Amendment) Act, 1948 (East Punjab Act 26 of 1948) which came into force on 11-4-1948. By these amendments a new Section, S. 5-A, was inserted in the East Punjab Act 14 of 1947. It will be seen that these amendments were subsequent to the date of the execution and registration of the sale-deed and the transfer of possession thereof. Section 5-A, so far as it is relevant for our present purpose, is in the following terms:"5-A. (1) No sale, mortgage, pledge lease, exchange or other transter of any interest or right in or over any property made by an evacuee or by any person in anticipation of his becoming an evacuee, or by the agent, assign or attorney of the evacuee or such person on or after the fifteenth day of August, 1947, shall be, effective so as to confer any rights or remedies on the parties to such transfer or on any person claiming under them unless it is confirmed by the Custodian.(2) An application for confirming such transfer may be made by an person claiming thereunder or by any person lawfully authorised by him".This Section purports to be retrospective. Hence an application for confirmation was made by the petitioner on 23-3-1948. The Assistant Custodian, Karnal, on being satisfied about the genuineness of the transaction, recommended confirmation. But the Additional Custodian, Jullundur, by his order dated 11-2-1953, rejected the application for confirmation acting on the Custodian-Generals circular dated 9-3-1950, under which a policy of not confirming transactions relating to agricultural property was enunciated. This was affirmed by the Assistant Custodian-General on an application to him for revision.2. Learned counsel for the petitioner relies on the fact that his transaction which on enquiry, was held to be genuine, was entered into before the East Punjab Act 14 of 1947 was enacted and before the amendment therefore by insertion of S. 5-A came into operation. He contends that the retrospective operation of S. 5-A in such circumstances amounts to deprivation of his property, without any compensation and is, therefore, hit by Art.31 of the Constitution.Whethever may have been the position if this matter had to be dealth with much earlier, it seems doubtful whether any such contention can be raised by the petitioner before us, on this date, in view of the recent Constitution (Fourth Amendment) Act, 1955, which has come into force on 27-4-1955. It is unnecessary, however, to base our decision on this ground.3. It appears to us clear that S. 5-A cannot be read as a legislative provision depriving the owner of his property. There can be no doubt that so far as transactions subsequent to the date of amendment are concerned, it is nothing more than a restriction on the transfer of property by the owner thereof.Any transferee in such a situation takes the property subject to the requirement of confirmation. The case would, then, be one which falls under Art. 19 of the Constitution and not under Art. 31.There can be no doubt that having regard to the purpose and policy underlying the law relating Evacuee Property and the abnormal conditions which arose from and after 15-8-1947, the requirement of confirmation with reference to transactions affecting Evacuee Property cannot but be considered a reasonable restriction. If this requirement was is essence not a deprivation but a restriction in respect of future transactions there is no reason for treating it as deprivation by virtue of its having been given retrospective effect, such retrospectively being within the competence of the appropriate Legislature.The retrospectivity commencing from 15-8-1947, is also not only reasonable but called for in the circumstances, which occasioned the Evacuee Property laws.In this case the petitioner is deprived of his bargain and incurs consequential loss, not by virtue of any unconstitutional law but by reason of the quasi-judicial order of the Custodian declining to confirm the transaction.The contention of the learned counsel for the petitioner that any fundamental right of his has been violated must, therefore, be rejected.4. Learned counsel next urges that the action of the Custodian in basing his decision on some circular of the Custodian-General is illegal andthat it is not relevant material under S. 5-A. It is enough to say that even if this contention be correct, this does not raise any question of violation of fundamental rights. If this is the sole ground, this application is misconceived.
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Whethever may have been the position if this matter had to be dealth with much earlier, it seems doubtful whether any such contention can be raised by the petitioner before us, on this date, in view of the recent Constitution (Fourth Amendment) Act, 1955, which has come into force onIt is unnecessary, however, to base our decision on this ground.3. It appears to us clear that S. 5-A cannot be read as a legislative provision depriving the owner of his property. There can be no doubt that so far as transactions subsequent to the date of amendment are concerned, it is nothing more than a restriction on the transfer of property by the owner thereof.Any transferee in such a situation takes the property subject to the requirement of confirmation. The case would, then, be one which falls under Art. 19 of the Constitution and not under Art. 31.There can be no doubt that having regard to the purpose and policy underlying the law relating Evacuee Property and the abnormal conditions which arose from and after 15-8-1947, the requirement of confirmation with reference to transactions affecting Evacuee Property cannot but be considered a reasonable restriction. If this requirement was is essence not a deprivation but a restriction in respect of future transactions there is no reason for treating it as deprivation by virtue of its having been given retrospective effect, such retrospectively being within the competence of the appropriate Legislature.The retrospectivity commencing from 15-8-1947, is also not only reasonable but called for in the circumstances, which occasioned the Evacuee Property laws.In this case the petitioner is deprived of his bargain and incurs consequential loss, not by virtue of any unconstitutional law but by reason of the quasi-judicial order of the Custodian declining to confirm the transaction.The contention of the learned counsel for the petitioner that any fundamental right of his has been violated must, therefore, beis enough to say that even if this contention be correct, this does not raise any question of violation of fundamental rights. If this is the sole ground, this application is misconceived.
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Bharat Coking Coal Ltd. and Ors Vs. Chhota Birsa Uranw | as laid down by Implementation Instruction No. 76 to determine the date of birth of an existing employee. The provisions of which read as follows: (B) Review determination of date of birth in respect of existing employees. (i)(a) In the case of the existing employees Matriculation Certificate of (sic: or) Higher Secondary Certificate issued by the recognized Universities of Board or Middle Pass Certificate issued by the Board of Education and/or Department of Public Instruction and admit cards issued by the aforesaid Bodies should be treated as correct provided they were issued by the said Universities/Boards Institutions prior to the date of employment. (i)(b) Similarly, Mining Sardarship, winding engine or similar other statutory certificate where the Manager had to certify the date of birth will be treated as authentic. Provided that where both documents mentioned in (i)(a) and (i)(b) above are available, the date of birth recorded in (i)(a) will be treated as authentic (ii) Wherever there is no variation in records, such cases will not be reopened unless there is a very glaring and apparent wrong entry brought to the notice of the Management. The Management after being satisfied on the merits of the case will take appropriate action for correction through determination committee/medical board. (C) Age Determination Committee/medical Board for the above will be constituted by the Management. In the case of employees whose date of birth cannot be determined in accordance with the procedure mentioned in (B) (i) (a) or (B) (i) (b) above, the date of birth recorded in the records of the company, namely, Form B register, CMP Records and Identity Cards (untampered) will be treated as final. Provided that where there is a variation, in the age recorded in the records mentioned above, the matter will be referred to the Age Determination Committee/Medical Board constituted by the Management for the determination of age. (D) Age determination: by the Age Determination Committee/Medical Board referred to above may consider their evidence available with the colliery management; and/or (E) Medical Board constituted for determination of age will be required to manage (sic assess) the age in accordance with the requirement of medical jurisprudence and the Medical Board will as far as possible indicate the accurate age assessed and not approximately. In another case, being G.M. Bharat Coking Coal Ltd. vs. Shib Kumar Dushad (supra) where the date of birth of an employee of the Bharat Coking Coal was in dispute and the same set of instructions were applicable, this court referring to the Implementation Instruction held that: 20. From the provisions in the instructions referred to above, it is clear that in case of dispute over the date of birth of an existing employee who has neither a Matriculation Certificate/Secondary School Certificate nor a statutory certificate in which the Manager has certified the entry regarding the date of birth to be authentic the employer is to refer the matter to the Medical Board. 13. We give due regard to the sensitive nature of date of birth disputes and fully agree with the approach laid down in R. Kirubakaran Case (supra). However, with an aim to prevent the cascading inconveniences caused by a change of date of birth, a wronged employee should not be denied of his rights especially when he has adhered to the procedure laid down and attempted to avoid litigation by resorting to in-house mechanisms. Public Corporations/Departments, should not benefit from their own omission of duty. In the present case, the appellant-company failed to follow the procedure as laid down in the Implementation Instruction. It is the appellants omission and not the inaction of the respondent which led to the dispute being raised in the courts at such a delayed stage. The attitude of such corporations wherein to avoid the rectification of a date of birth, litigation is unnecessarily prolonged just because they have number of resources at their command, goes against the grain of equity and duty towards society at large. 14. As noted by us, the respondent in 1987 on coming to know of the wrong recording of his date of birth in his service records from the nomination form sought rectification. Therefore, such rectification was not sought at the fag end of his service. We have further noticed that the High Court duly verified the genuineness of the school leaving certificate on the basis of a supplementary affidavit filed by Shri Dilip Kumar Mishra, legal inspector of the appellant company on September 6, 2010 before the High Court. It has been admitted in the said supplementary affidavit that the school leaving certificate has been verified and has been found to be genuine. We have further noticed that Implementation Instruction No.76 clause (i)(a) permits rectification of the date of birth by treating the date of birth mentioned in the school leaving certificate to be correct provided such certificates were issued by the educational institution prior to the date of employment. The question of interpreting the words were issued was correctly interpreted, in our opinion, by the High Court which interpreted the said words for the purpose of safeguarding against misuse of the certificates for the purpose of increasing the period of employment. The High Court correctly interpreted and meant that these words will not apply where the school records containing the date of birth were available long before the starting of the employment. The date of issue of certificate actually intends to refer to the date with the relevant record in the school on the basis of which the certificate has been issued. A school leaving certificate is usually issued at the time of leaving the school by the student, subsequently a copy thereof also can be obtained where a student misplaces his said school leaving certificate and applies for a fresh copy thereof. The issuance of fresh copy cannot change the relevant record which is prevailing in the records of the school from the date of the admission and birth date of the student, duly entered in the records of the school. | 0[ds]13. We give due regard to the sensitive nature of date of birth disputes and fully agree with the approach laid down in R. Kirubakaran Case (supra). However, with an aim to prevent the cascading inconveniences caused by a change of date of birth, a wronged employee should not be denied of his rights especially when he has adhered to the procedure laid down and attempted to avoid litigation by resorting to in-house mechanisms. Public Corporations/Departments, should not benefit from their own omission of duty. In the present case, the appellant-company failed to follow the procedure as laid down in the Implementation Instruction. It is the appellants omission and not the inaction of the respondent which led to the dispute being raised in the courts at such a delayed stage. The attitude of such corporations wherein to avoid the rectification of a date of birth, litigation is unnecessarily prolonged just because they have number of resources at their command, goes against the grain of equity and duty towards society at large14. As noted by us, the respondent in 1987 on coming to know of the wrong recording of his date of birth in his service records from the nomination form sought rectification. Therefore, such rectification was not sought at the fag end of his service. We have further noticed that the High Court duly verified the genuineness of the school leaving certificate on the basis of a supplementary affidavit filed by Shri Dilip Kumar Mishra, legal inspector of the appellant company on September 6, 2010 before the High Court. It has been admitted in the said supplementary affidavit that the school leaving certificate has been verified and has been found to be genuine. We have further noticed that Implementation Instruction No.76 clause (i)(a) permits rectification of the date of birth by treating the date of birth mentioned in the school leaving certificate to be correct provided such certificates were issued by the educational institution prior to the date of employment. The question of interpreting the words were issued was correctly interpreted, in our opinion, by the High Court which interpreted the said words for the purpose of safeguarding against misuse of the certificates for the purpose of increasing the period of employment. The High Court correctly interpreted and meant that these words will not apply where the school records containing the date of birth were available long before the starting of the employment. The date of issue of certificate actually intends to refer to the date with the relevant record in the school on the basis of which the certificate has been issued. A school leaving certificate is usually issued at the time of leaving the school by the student, subsequently a copy thereof also can be obtained where a student misplaces his said school leaving certificate and applies for a fresh copy thereof. The issuance of fresh copy cannot change the relevant record which is prevailing in the records of the school from the date of the admission and birth date of the student, duly entered in the records of the school. | 0 | 5,499 | 556 | ### 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:
as laid down by Implementation Instruction No. 76 to determine the date of birth of an existing employee. The provisions of which read as follows: (B) Review determination of date of birth in respect of existing employees. (i)(a) In the case of the existing employees Matriculation Certificate of (sic: or) Higher Secondary Certificate issued by the recognized Universities of Board or Middle Pass Certificate issued by the Board of Education and/or Department of Public Instruction and admit cards issued by the aforesaid Bodies should be treated as correct provided they were issued by the said Universities/Boards Institutions prior to the date of employment. (i)(b) Similarly, Mining Sardarship, winding engine or similar other statutory certificate where the Manager had to certify the date of birth will be treated as authentic. Provided that where both documents mentioned in (i)(a) and (i)(b) above are available, the date of birth recorded in (i)(a) will be treated as authentic (ii) Wherever there is no variation in records, such cases will not be reopened unless there is a very glaring and apparent wrong entry brought to the notice of the Management. The Management after being satisfied on the merits of the case will take appropriate action for correction through determination committee/medical board. (C) Age Determination Committee/medical Board for the above will be constituted by the Management. In the case of employees whose date of birth cannot be determined in accordance with the procedure mentioned in (B) (i) (a) or (B) (i) (b) above, the date of birth recorded in the records of the company, namely, Form B register, CMP Records and Identity Cards (untampered) will be treated as final. Provided that where there is a variation, in the age recorded in the records mentioned above, the matter will be referred to the Age Determination Committee/Medical Board constituted by the Management for the determination of age. (D) Age determination: by the Age Determination Committee/Medical Board referred to above may consider their evidence available with the colliery management; and/or (E) Medical Board constituted for determination of age will be required to manage (sic assess) the age in accordance with the requirement of medical jurisprudence and the Medical Board will as far as possible indicate the accurate age assessed and not approximately. In another case, being G.M. Bharat Coking Coal Ltd. vs. Shib Kumar Dushad (supra) where the date of birth of an employee of the Bharat Coking Coal was in dispute and the same set of instructions were applicable, this court referring to the Implementation Instruction held that: 20. From the provisions in the instructions referred to above, it is clear that in case of dispute over the date of birth of an existing employee who has neither a Matriculation Certificate/Secondary School Certificate nor a statutory certificate in which the Manager has certified the entry regarding the date of birth to be authentic the employer is to refer the matter to the Medical Board. 13. We give due regard to the sensitive nature of date of birth disputes and fully agree with the approach laid down in R. Kirubakaran Case (supra). However, with an aim to prevent the cascading inconveniences caused by a change of date of birth, a wronged employee should not be denied of his rights especially when he has adhered to the procedure laid down and attempted to avoid litigation by resorting to in-house mechanisms. Public Corporations/Departments, should not benefit from their own omission of duty. In the present case, the appellant-company failed to follow the procedure as laid down in the Implementation Instruction. It is the appellants omission and not the inaction of the respondent which led to the dispute being raised in the courts at such a delayed stage. The attitude of such corporations wherein to avoid the rectification of a date of birth, litigation is unnecessarily prolonged just because they have number of resources at their command, goes against the grain of equity and duty towards society at large. 14. As noted by us, the respondent in 1987 on coming to know of the wrong recording of his date of birth in his service records from the nomination form sought rectification. Therefore, such rectification was not sought at the fag end of his service. We have further noticed that the High Court duly verified the genuineness of the school leaving certificate on the basis of a supplementary affidavit filed by Shri Dilip Kumar Mishra, legal inspector of the appellant company on September 6, 2010 before the High Court. It has been admitted in the said supplementary affidavit that the school leaving certificate has been verified and has been found to be genuine. We have further noticed that Implementation Instruction No.76 clause (i)(a) permits rectification of the date of birth by treating the date of birth mentioned in the school leaving certificate to be correct provided such certificates were issued by the educational institution prior to the date of employment. The question of interpreting the words were issued was correctly interpreted, in our opinion, by the High Court which interpreted the said words for the purpose of safeguarding against misuse of the certificates for the purpose of increasing the period of employment. The High Court correctly interpreted and meant that these words will not apply where the school records containing the date of birth were available long before the starting of the employment. The date of issue of certificate actually intends to refer to the date with the relevant record in the school on the basis of which the certificate has been issued. A school leaving certificate is usually issued at the time of leaving the school by the student, subsequently a copy thereof also can be obtained where a student misplaces his said school leaving certificate and applies for a fresh copy thereof. The issuance of fresh copy cannot change the relevant record which is prevailing in the records of the school from the date of the admission and birth date of the student, duly entered in the records of the school.
### Response:
0
### Explanation:
13. We give due regard to the sensitive nature of date of birth disputes and fully agree with the approach laid down in R. Kirubakaran Case (supra). However, with an aim to prevent the cascading inconveniences caused by a change of date of birth, a wronged employee should not be denied of his rights especially when he has adhered to the procedure laid down and attempted to avoid litigation by resorting to in-house mechanisms. Public Corporations/Departments, should not benefit from their own omission of duty. In the present case, the appellant-company failed to follow the procedure as laid down in the Implementation Instruction. It is the appellants omission and not the inaction of the respondent which led to the dispute being raised in the courts at such a delayed stage. The attitude of such corporations wherein to avoid the rectification of a date of birth, litigation is unnecessarily prolonged just because they have number of resources at their command, goes against the grain of equity and duty towards society at large14. As noted by us, the respondent in 1987 on coming to know of the wrong recording of his date of birth in his service records from the nomination form sought rectification. Therefore, such rectification was not sought at the fag end of his service. We have further noticed that the High Court duly verified the genuineness of the school leaving certificate on the basis of a supplementary affidavit filed by Shri Dilip Kumar Mishra, legal inspector of the appellant company on September 6, 2010 before the High Court. It has been admitted in the said supplementary affidavit that the school leaving certificate has been verified and has been found to be genuine. We have further noticed that Implementation Instruction No.76 clause (i)(a) permits rectification of the date of birth by treating the date of birth mentioned in the school leaving certificate to be correct provided such certificates were issued by the educational institution prior to the date of employment. The question of interpreting the words were issued was correctly interpreted, in our opinion, by the High Court which interpreted the said words for the purpose of safeguarding against misuse of the certificates for the purpose of increasing the period of employment. The High Court correctly interpreted and meant that these words will not apply where the school records containing the date of birth were available long before the starting of the employment. The date of issue of certificate actually intends to refer to the date with the relevant record in the school on the basis of which the certificate has been issued. A school leaving certificate is usually issued at the time of leaving the school by the student, subsequently a copy thereof also can be obtained where a student misplaces his said school leaving certificate and applies for a fresh copy thereof. The issuance of fresh copy cannot change the relevant record which is prevailing in the records of the school from the date of the admission and birth date of the student, duly entered in the records of the school.
|
Lt Col Vivek Singh Vs. Romani Singh | working and earning a good salary and after school hours has ample time to spend with the child. In these circumstances, impugned order is set aside and the request of the appellant for the grant of custody of the said child to her being natural mother is allowed and the appellant is also appointed as guardian of her child being a natural guardian/mother."16. The aforesaid observations, contained in para 31 of the order of the High Court extracted above, apply with greater force today, when Saesha is 8 years old child. She is at a crucial phase when there is a major shift in thinking ability which may help her to understand cause and effect better and think about the future. She would need regular and frequent contact with each parent as well as shielding from parental hostility. Involvement of both parents in her life and regular school attendance are absolutely essential at this age for her personality development. She would soon be able to establish her individual interests and preferences, shaped by her own individual personality as well as experience. Towards this end, it also becomes necessary for parents to exhibit model good behaviour and set healthy and positive examples as much and as often as possible. It is the age when her emotional development may be evolving at a deeper level than ever before. In order to ensure that she achieves stability and maturity in her thinking and is able to deal with complex emotions, it is necessary that she is in the company of her mother as well, for some time. This Court cannot turn a blind eye to the fact that there have been strong feelings of bitterness, betrayal, anger and distress between the appellant and the respondent, where each party feels that they are right in many of their views on issues which led to separation. The intensity of negative feeling of the appellant towards the respondent would have obvious effect on the psyche of Saesha, who has remained in the company of her father, to the exclusion of her mother. The possibility of appellants effort to get the child to give up her own positive perceptions of the other parent, i.e., the mother and change her to agree with the appellants view point cannot be ruled out thereby diminishing the affection of Saesha towards her mother. Obviously, the appellant, during all this period, would not have said anything about the positive traits of the respondent. Even the matrimonial discord between the two parties would have been understood by Saesha, as perceived by the appellant. Psychologist term it as The Parental Alienation Syndrome[4*]. It has at least two psychological destructive effects:[4* The Parental Alienation Syndrome was originally described by Dr. Richard Gardner in "Recent Developments in Child Custody Litigation", The Academy Forum Vol. 29 No. 2: The American Academy of Psychoanalysis, 1985).](i) First, it puts the child squarely in the middle of a contest of loyalty, a contest which cannot possibly be won. The child is asked to choose who is the preferred parent. No matter whatever is the choice, the child is very likely to end up feeling painfully guilty and confused. This is because in the overwhelming majority of cases, what the child wants and needs is to continue a relationship with each parent, as independent as possible from their own conflicts.(ii) Second, the child is required to make a shift in assessing reality. One parent is presented as being totally to blame for all problems, and as someone who is devoid of any positive characteristics. Both of these assertions represent one parents distortions of reality.17. The aforesaid discussion leads us to feel that continuous company of the mother with Saesha, for some time, is absolutely essential. It may also be underlying that the notion that a childs primary need is for the care and love of its mother, where she has been its primary care giving parent, is supported by a vast body of psychological literature. Empirical studies show that mother infant "bonding" begins at the childs birth and that infants as young as two months old frequently show signs of distress when the mother is replaced by a substitute caregiver. An infant typically responds preferentially to the sound of its mothers voice by four weeks, actively demands her presence and protests her absence by eight months, and within the first year has formed a profound and enduring attachment to her. Psychological theory hypothesizes that the mother is the center of an infants small world, his psychological homebase, and that she "must continue to be so for some years to come." Developmental psychologists believe that the quality and strength of this original bond largely determines the childs later capacity to fulfill her individual potential and to form attachments to other individuals and to the human community.18. No doubt, this presumption in favour of maternal custody as sound child welfare policy, is rebuttable and in a given case, it can be shown that father is better suited to have the custody of the child. Such an assessment, however, can be only after level playing field is granted to both the parents. That has not happened in the instant case so far.19. It is also to be emphasised that her mother is a teacher in a prestigious Kendriya Vidyala school. Saesha is herself a school going child at primary level. If Saesha is admitted in the same school where her mother is teaching, not only Saesha would be under full care and protection of the mother, she would also be in a position to get better education and better guidance of a mother who herself is a teacher.20. We, thus, find that the factors in favour of respondent are weightier than those in favour of the appellant which have been noted above. It is a fit case where respondent deserves a chance to have the custody of child Saesha for the time being, i.e., at least for one year, and not merely visitation rights. | 1[ds]14. In the instant case, the factors which weigh in favour of the appellant are that child Saesha is living with him from tender age of 21 months. She is happy in his company. In fact, her desire is to continue to live with the appellant. Normally, these considerations would have prevailed upon us to hold that custody of Saesha remain with the appellant. However, that is only one side of the picture. We cannot, at the same time, ignore the other side. A glimpse, nay, a proper glance at the other side is equally significant. From the events that took place and noted above, following overwhelming factors in favour of respondentFor first 21 months when the parties were living together, it is the respondent who had nursed the child. The appellant cannot even claim to have an edge over the respondent during this period, when the child was still an infant, who would have naturally remained in the care and protection of the respondent - mother, more than the appellant - father. Finding to this effect has been arrived at by the High Court as well. This position even otherwise cannot be disputed.(b) The respondent was forcibly deprived by the custody of Saesha from August 04, 2010 when she was forced to leave the matrimonial house. As per the respondent, on that date the appellant in a drunken state gave beatings to her and threw her out of the house. The respondent had called the police. The police personnel called the military police and a complaint was lodged. The respondent had also called her parents who had come to her house from NOIDA. Her parents took hold of the child and the appellant and when they were about to leave, the appellant pulled out the child from the hands of her mother and went inside the house and locked himself. He was drunk at that time. The police suggested not to do anything otherwise appellant would harm the child. It was assured that the child would be returned to her in the morning. In any case, the respondent and the appellant were instructed to come to the police along with the child, next morning. The appellant did not bring the child and threatened that he would not give the child to her. Since then, she had been running from pillar to post to get the child back but respondent had been refusing. The respondent, therefore, cannot be blamed at all, if the custody of the child remained with the appellant, after the separation of the parties.(c) Within the few days, i.e. on August 26, 2010, the respondent filed the petition seeking custody of the child and for appointment of her guardian. She did not lose any time making her intentions clear that as a natural mother she wanted to have the custody of the child. It was her mis-fortune that the trial court vide its judgment dated December 07, 2011 dismissed her petition. Though, she filed the appeal against the said judgment immediately, but during the pendency of the appeal, the custody remained with the appellant because of the dismissal of the petition by the Family Court. The High Court has, by impugned judgment dated April 02, 2013 granted the custody to the respondent. However, the respondent has not been able to reap the benefit thereof because of the interim orders passed in the instant appeal. It is in these circumstances that child Saesha from the tender age of 21 months has remained with the appellant and today she is 8 years and 3 months. Obviously, because of this reason, as of today, she is very much attached to the father and she thinks that she should remain in the present environment. A child, who has not seen, experienced or lived the comfort of the company of the mother is, naturally, not in a position to comprehend that the grass on the other side may turn out to be greener. Only when she is exposed to that environment of living with her mother, that she would be in a position to properly evaluate as to whether her welfare lies more in the company of her mother or in the company of her father. As of today, the assessment and perception are one sided. Few years ago, when the High Court passed the impugned judgment, the ground realities were different.While coming to the conclusion that the respondent as mother was more appropriate to have the custody of the child and under the given circumstances the respondent herein was fully competent to take care of the child, the High Court proceeded with the followingThe role of the mother in the development of a childs personality can never be doubted. A child gets the best protection through the mother. It is a most natural thing for any child to grow up in the company of ones mother. The company of the mother is the most natural thing for a child. Neither the father nor any other person can give the same kind of lover, affection, care and sympathies to a child as that of a mother. The company of a mother is more valuable to a growing up female child unless there are compelling and justifiable reasons, a child should not be deprived of the company of the mother. The company of the mother is always in the welfare of the minor child.32. It may be noticed that the stand of the appellant is that since August 04, 2010 she had been pursuing for the custody of her child. She had also visited the police station and approached the CAW Cell. It is also admitted position that within 22 days, i.e., on August 26, 2010 the petition for the grant of custody of child was filed by her. Had she abandoned the child of her own she would not have pursued continuously thereafter for getting the custody of the child. Even she had requested the learned Principal Judge, Family Court for interim custody of the child which was given to her in the form of visitation rights thrice in a month and she and her family had been meeting the child during that period. After filing the appeal, the appellant has been taking the interim custody of the child as is stated above. In thes3e circumstances, it cannot be said that the appellant has not care for the child. Further, respondent is any army Officer. During the course of his service he will be also getting non-family stations and it will be difficult for him to keep the child. Further, even though as per him his parents are looking after the child but when the natural mother is there and has knocked the door of the court without any delay and has all love and affection for the child and is willing to do her duty with all love and affection and since the birth of the child she has been keeping the child. In these circumstances, she should not be deprived of her right especially considering the tender age and child being a girl child. The grandparents cannot be a substitute for natural mother. There is no substitute for mothers love in this world. The grandparents are old. Old age has its own problems. Considering the totality of facts and circumstances, the welfare of the child lies with the mother, i.e, appellant who is educated, working and earning a good salary and after school hours has ample time to spend with the child. In these circumstances, impugned order is set aside and the request of the appellant for the grant of custody of the said child to her being natural mother is allowed and the appellant is also appointed as guardian of her child being a natural guardian/mother.The aforesaid observations, contained in para 31 of the order of the High Court extracted above, apply with greater force today, when Saesha is 8 years old child. She is at a crucial phase when there is a major shift in thinking ability which may help her to understand cause and effect better and think about the future. She would need regular and frequent contact with each parent as well as shielding from parental hostility.The aforesaid discussion leads us to feel that continuous company of the mother with Saesha, for some time, is absolutely essential. It may also be underlying that the notion that a childs primary need is for the care and love of its mother, where she has been its primary care giving parent, is supported by a vast body of psychological literature. Empirical studies show that mother infant "bonding" begins at the childs birth and that infants as young as two months old frequently show signs of distress when the mother is replaced by a substitute caregiver. An infant typically responds preferentially to the sound of its mothers voice by four weeks, actively demands her presence and protests her absence by eight months, and within the first year has formed a profound and enduring attachment to her. Psychological theory hypothesizes that the mother is the center of an infants small world, his psychological homebase, and that she "must continue to be so for some years to come." Developmental psychologists believe that the quality and strength of this original bond largely determines the childs later capacity to fulfill her individual potential and to form attachments to other individuals and to the human community.18. No doubt, this presumption in favour of maternal custody as sound child welfare policy, is rebuttable and in a given case, it can be shown that father is better suited to have the custody of the child. Such an assessment, however, can be only after level playing field is granted to both the parents. That has not happened in the instant case so far.19. It is also to be emphasised that her mother is a teacher in a prestigious Kendriya Vidyala school. Saesha is herself a school going child at primary level. If Saesha is admitted in the same school where her mother is teaching, not only Saesha would be under full care and protection of the mother, she would also be in a position to get better education and better guidance of a mother who herself is a teacher.20. We, thus, find that the factors in favour of respondent are weightier than those in favour of the appellant which have been noted above. It is a fit case where respondent deserves a chance to have the custody of child Saesha for the time being, i.e., at least for one year, and not merely visitation rights. | 1 | 6,192 | 1,949 | ### 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:
working and earning a good salary and after school hours has ample time to spend with the child. In these circumstances, impugned order is set aside and the request of the appellant for the grant of custody of the said child to her being natural mother is allowed and the appellant is also appointed as guardian of her child being a natural guardian/mother."16. The aforesaid observations, contained in para 31 of the order of the High Court extracted above, apply with greater force today, when Saesha is 8 years old child. She is at a crucial phase when there is a major shift in thinking ability which may help her to understand cause and effect better and think about the future. She would need regular and frequent contact with each parent as well as shielding from parental hostility. Involvement of both parents in her life and regular school attendance are absolutely essential at this age for her personality development. She would soon be able to establish her individual interests and preferences, shaped by her own individual personality as well as experience. Towards this end, it also becomes necessary for parents to exhibit model good behaviour and set healthy and positive examples as much and as often as possible. It is the age when her emotional development may be evolving at a deeper level than ever before. In order to ensure that she achieves stability and maturity in her thinking and is able to deal with complex emotions, it is necessary that she is in the company of her mother as well, for some time. This Court cannot turn a blind eye to the fact that there have been strong feelings of bitterness, betrayal, anger and distress between the appellant and the respondent, where each party feels that they are right in many of their views on issues which led to separation. The intensity of negative feeling of the appellant towards the respondent would have obvious effect on the psyche of Saesha, who has remained in the company of her father, to the exclusion of her mother. The possibility of appellants effort to get the child to give up her own positive perceptions of the other parent, i.e., the mother and change her to agree with the appellants view point cannot be ruled out thereby diminishing the affection of Saesha towards her mother. Obviously, the appellant, during all this period, would not have said anything about the positive traits of the respondent. Even the matrimonial discord between the two parties would have been understood by Saesha, as perceived by the appellant. Psychologist term it as The Parental Alienation Syndrome[4*]. It has at least two psychological destructive effects:[4* The Parental Alienation Syndrome was originally described by Dr. Richard Gardner in "Recent Developments in Child Custody Litigation", The Academy Forum Vol. 29 No. 2: The American Academy of Psychoanalysis, 1985).](i) First, it puts the child squarely in the middle of a contest of loyalty, a contest which cannot possibly be won. The child is asked to choose who is the preferred parent. No matter whatever is the choice, the child is very likely to end up feeling painfully guilty and confused. This is because in the overwhelming majority of cases, what the child wants and needs is to continue a relationship with each parent, as independent as possible from their own conflicts.(ii) Second, the child is required to make a shift in assessing reality. One parent is presented as being totally to blame for all problems, and as someone who is devoid of any positive characteristics. Both of these assertions represent one parents distortions of reality.17. The aforesaid discussion leads us to feel that continuous company of the mother with Saesha, for some time, is absolutely essential. It may also be underlying that the notion that a childs primary need is for the care and love of its mother, where she has been its primary care giving parent, is supported by a vast body of psychological literature. Empirical studies show that mother infant "bonding" begins at the childs birth and that infants as young as two months old frequently show signs of distress when the mother is replaced by a substitute caregiver. An infant typically responds preferentially to the sound of its mothers voice by four weeks, actively demands her presence and protests her absence by eight months, and within the first year has formed a profound and enduring attachment to her. Psychological theory hypothesizes that the mother is the center of an infants small world, his psychological homebase, and that she "must continue to be so for some years to come." Developmental psychologists believe that the quality and strength of this original bond largely determines the childs later capacity to fulfill her individual potential and to form attachments to other individuals and to the human community.18. No doubt, this presumption in favour of maternal custody as sound child welfare policy, is rebuttable and in a given case, it can be shown that father is better suited to have the custody of the child. Such an assessment, however, can be only after level playing field is granted to both the parents. That has not happened in the instant case so far.19. It is also to be emphasised that her mother is a teacher in a prestigious Kendriya Vidyala school. Saesha is herself a school going child at primary level. If Saesha is admitted in the same school where her mother is teaching, not only Saesha would be under full care and protection of the mother, she would also be in a position to get better education and better guidance of a mother who herself is a teacher.20. We, thus, find that the factors in favour of respondent are weightier than those in favour of the appellant which have been noted above. It is a fit case where respondent deserves a chance to have the custody of child Saesha for the time being, i.e., at least for one year, and not merely visitation rights.
### Response:
1
### Explanation:
High Court proceeded with the followingThe role of the mother in the development of a childs personality can never be doubted. A child gets the best protection through the mother. It is a most natural thing for any child to grow up in the company of ones mother. The company of the mother is the most natural thing for a child. Neither the father nor any other person can give the same kind of lover, affection, care and sympathies to a child as that of a mother. The company of a mother is more valuable to a growing up female child unless there are compelling and justifiable reasons, a child should not be deprived of the company of the mother. The company of the mother is always in the welfare of the minor child.32. It may be noticed that the stand of the appellant is that since August 04, 2010 she had been pursuing for the custody of her child. She had also visited the police station and approached the CAW Cell. It is also admitted position that within 22 days, i.e., on August 26, 2010 the petition for the grant of custody of child was filed by her. Had she abandoned the child of her own she would not have pursued continuously thereafter for getting the custody of the child. Even she had requested the learned Principal Judge, Family Court for interim custody of the child which was given to her in the form of visitation rights thrice in a month and she and her family had been meeting the child during that period. After filing the appeal, the appellant has been taking the interim custody of the child as is stated above. In thes3e circumstances, it cannot be said that the appellant has not care for the child. Further, respondent is any army Officer. During the course of his service he will be also getting non-family stations and it will be difficult for him to keep the child. Further, even though as per him his parents are looking after the child but when the natural mother is there and has knocked the door of the court without any delay and has all love and affection for the child and is willing to do her duty with all love and affection and since the birth of the child she has been keeping the child. In these circumstances, she should not be deprived of her right especially considering the tender age and child being a girl child. The grandparents cannot be a substitute for natural mother. There is no substitute for mothers love in this world. The grandparents are old. Old age has its own problems. Considering the totality of facts and circumstances, the welfare of the child lies with the mother, i.e, appellant who is educated, working and earning a good salary and after school hours has ample time to spend with the child. In these circumstances, impugned order is set aside and the request of the appellant for the grant of custody of the said child to her being natural mother is allowed and the appellant is also appointed as guardian of her child being a natural guardian/mother.The aforesaid observations, contained in para 31 of the order of the High Court extracted above, apply with greater force today, when Saesha is 8 years old child. She is at a crucial phase when there is a major shift in thinking ability which may help her to understand cause and effect better and think about the future. She would need regular and frequent contact with each parent as well as shielding from parental hostility.The aforesaid discussion leads us to feel that continuous company of the mother with Saesha, for some time, is absolutely essential. It may also be underlying that the notion that a childs primary need is for the care and love of its mother, where she has been its primary care giving parent, is supported by a vast body of psychological literature. Empirical studies show that mother infant "bonding" begins at the childs birth and that infants as young as two months old frequently show signs of distress when the mother is replaced by a substitute caregiver. An infant typically responds preferentially to the sound of its mothers voice by four weeks, actively demands her presence and protests her absence by eight months, and within the first year has formed a profound and enduring attachment to her. Psychological theory hypothesizes that the mother is the center of an infants small world, his psychological homebase, and that she "must continue to be so for some years to come." Developmental psychologists believe that the quality and strength of this original bond largely determines the childs later capacity to fulfill her individual potential and to form attachments to other individuals and to the human community.18. No doubt, this presumption in favour of maternal custody as sound child welfare policy, is rebuttable and in a given case, it can be shown that father is better suited to have the custody of the child. Such an assessment, however, can be only after level playing field is granted to both the parents. That has not happened in the instant case so far.19. It is also to be emphasised that her mother is a teacher in a prestigious Kendriya Vidyala school. Saesha is herself a school going child at primary level. If Saesha is admitted in the same school where her mother is teaching, not only Saesha would be under full care and protection of the mother, she would also be in a position to get better education and better guidance of a mother who herself is a teacher.20. We, thus, find that the factors in favour of respondent are weightier than those in favour of the appellant which have been noted above. It is a fit case where respondent deserves a chance to have the custody of child Saesha for the time being, i.e., at least for one year, and not merely visitation rights.
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Joshi Girjadharji And Another Vs. Lachmanji Panth And Others | and (3) that that decree was passed before the commencement of this Act. That the judgment-debtors applicants were agriculturists at the date when Suit No. 33 of 1938 was filed and also in 1942 when the application under S. 8 was made is conceded by Sri G. N. Kunzru. The decree in that suit was passed on March 31, 1939, which was well before the commencement of the Act. The only question that remains is whether the amount was due under a decree to which the Act applies. Under S. 2 (6) of the Act the phrase "decree to which this Act applies" means a decree passed before or after the commencement of this Act in a suit to which this Act applies. Section 2(17) defines the phrase "suit to which this Act applies" as meaning any suit or proceeding relating to a loan. The question, then, arises was the decree under which the judgment-debtors applicants are liable passed in a suit relating to a loan? Loan is thus defined in S. 2 (9):"Loan means an advance in cash or kind made before the first day of June, 1940, recoverable from an agriculturist or a workman or from any such person and other persons jointly or from the property of an agriculturist or workman and includes any transaction which in substance amounts to such advance, but does not include an advance the liability for the repayment of which has, by a contract with the borrower or his heir or successor or by sale in execution of a decree been transferred to another person or an advance by the Central or Provincial Government to make advances or by a co-operative society or by a scheduled bank:Provided that an advance recoverable from an agriculturist or from an agriculturist and other persons jointly shall not be deemed to be a loan for the purposes of this Act unless such advance was made to an agriculturist or to an agriculturist and other persons jointly."11. In order to be a "loan" the advance must be recoverable from an agriculturist. The word "recoverable" seems, prima facie, to indicate that the crucial point of time is when the advance becomes recoverable, i.e., when the amount advanced becomes or falls due. Under the mortgage of 1931 the date of redemption was 6 years from the date of execution, i.e., in July 1937, Sri Kunzru concedes that Sita Ram was not assessed to income-tax since 1936. Assuming, but without deciding, that the proviso to S. 2 (9) applies and that in order to be a "loan" it must be shown that the advance was made to one who, at the date of the advance, was an agriculturist as defined in S. 2(3) of the Act, the question has yet to be answered, namely, had Sita Ram ceased to be an agriculturist. by reason of clause (b) of the proviso to S. 2 (3), that, is to say, by reason of his being, assessed to income-tax on July 28, 1931. According to the evidence of Suraj Mani Tripathi and Sita Ram income-tax was first deducted at the source in the month of February 1932 by the College authorities and the actual assessment was made on February, 9, 1933. Therefore Sita Ram was not assessed to income-tax on July 28, 1931. It is not disputed that the taxable minimum was reduced from Rs. 2,000 per annum to Rs. 1,000 per annum by the Indian Finance (Supplementary and Extending) Act, 1931, which was enacted on November 28, 1931. Therefore, at the date of the advance, i.e., on July 28, 1931, Sita Ram whose salary was below Rs.2,000 per annum was not only not actually assessed to income-tax but was not even liable to such assessment. The evidence of Suraj Mani Tripathi shows that the first deduction of income-tax out of the salary was in the month of February 1932 and the income-tax assessment form for1931-32 (Ex. S) shows that tax was assessed on Rs. 180 which was evidently salary for February and March 1932 being the last two months of the assessment year.The position, therefore, is that Sita Ram was not assessed to income-tax at the date of the evidence in 1931 or on the due date under the deed, i.e., in July 1937, or on the date of suit in 1938 or on the date of the application under S. 8 in 1942. It consequently follows that he was an agriculturist on all these dates. The other judgment-debtors were admittedly agriculturists. Therefore, the application under S. 8 was made by persons who were all agriculturists and who were liable to pay under a decree to which the Act applies, i.e., under a decree passed in a suit relating to a loan as defined by S. 2 (9).The Courts below, therefore, were right in their conclusion that the judgment-debtors applicants were entitled to the benefit of the Act.12. Sri G. N. Kunzru finally submitted that in any case the accounts could not be taken from 1922, for the mortgagees under the two mortgagees were different. We have already pointed out that this point was not specifically taken in the decree-holders petition of objection. The trial Court held as a fact that so far as the judgment-debtors were concerned the mortgagees were the same in both the mortgages. Although in the petition of appeal to the High Court it was alleged that the mortgagees were different and the accounts could not be reopened from 1922, that ground was not specifically urged before the High Court. The determination of that question must necessarily involve an investigation into facts. We do not think, in the absence of a plea in this behalf in the decree-holders petition of objection and also in view of their failure and neglect to raise this question before the High Court, it will be right for this final Court of appeal, at this stage and in the circumstances of this case, to permit the appellants to raise this question of fact. | 0[ds]10. It is clear from the wording of the sub-section that there are three prerequisites for exercise of the right conferred by it, namely, (1) that the application must be by an agriculturist and (2) that that agriculturist must be liable to pay the amount due under a decree to which this Act applies and (3) that that decree was passed before the commencement of this Act. That the judgment-debtors applicants were agriculturists at the date when Suit No. 33 of 1938 was filed and also in 1942 when the application under S. 8 was made is conceded by Sri G. N. Kunzru. The decree in that suit was passed on March 31, 1939, which was well before the commencement of the Act. The only question that remains is whether the amount was due under a decree to which the Act applies. Under S. 2 (6) of the Act the phrase "decree to which this Act applies" means a decree passed before or after the commencement of this Act in a suit to which this Act applies. Section 2(17) defines the phrase "suit to which this Act applies" as meaning any suit or proceeding relating to aat the date of the advance, i.e., on July 28, 1931, Sita Ram whose salary was below Rs.2,000 per annum was not only not actually assessed to income-tax but was not even liable to such assessment. The evidence of Suraj Mani Tripathi shows that the first deduction of income-tax out of the salary was in the month of February 1932 and the income-tax assessment form for1931-32 (Ex. S) shows that tax was assessed on Rs. 180 which was evidently salary for February and March 1932 being the last two months of the assessment year.The position, therefore, is that Sita Ram was not assessed to income-tax at the date of the evidence in 1931 or on the due date under the deed, i.e., in July 1937, or on the date of suit in 1938 or on the date of the application under S. 8 in 1942. It consequently follows that he was an agriculturist on all these dates. The other judgment-debtors were admittedly agriculturists. Therefore, the application under S. 8 was made by persons who were all agriculturists and who were liable to pay under a decree to which the Act applies, i.e., under a decree passed in a suit relating to a loan as defined by S. 2 (9).The Courts below, therefore, were right in their conclusion that the judgment-debtors applicants were entitled to the benefit of thehave already pointed out that this point was not specifically taken in the decree-holders petition of objection. The trial Court held as a fact that so far as the judgment-debtors were concerned the mortgagees were the same in both the mortgages. Although in the petition of appeal to the High Court it was alleged that the mortgagees were different and the accounts could not be reopened from 1922, that ground was not specifically urged before the High Court. The determination of that question must necessarily involve an investigation into facts. We do not think, in the absence of a plea in this behalf in the decree-holders petition of objection and also in view of their failure and neglect to raise this question before the High Court, it will be right for this final Court of appeal, at this stage and in the circumstances of this case, to permit the appellants to raise this question of fact. | 0 | 3,214 | 644 | ### Instruction:
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and (3) that that decree was passed before the commencement of this Act. That the judgment-debtors applicants were agriculturists at the date when Suit No. 33 of 1938 was filed and also in 1942 when the application under S. 8 was made is conceded by Sri G. N. Kunzru. The decree in that suit was passed on March 31, 1939, which was well before the commencement of the Act. The only question that remains is whether the amount was due under a decree to which the Act applies. Under S. 2 (6) of the Act the phrase "decree to which this Act applies" means a decree passed before or after the commencement of this Act in a suit to which this Act applies. Section 2(17) defines the phrase "suit to which this Act applies" as meaning any suit or proceeding relating to a loan. The question, then, arises was the decree under which the judgment-debtors applicants are liable passed in a suit relating to a loan? Loan is thus defined in S. 2 (9):"Loan means an advance in cash or kind made before the first day of June, 1940, recoverable from an agriculturist or a workman or from any such person and other persons jointly or from the property of an agriculturist or workman and includes any transaction which in substance amounts to such advance, but does not include an advance the liability for the repayment of which has, by a contract with the borrower or his heir or successor or by sale in execution of a decree been transferred to another person or an advance by the Central or Provincial Government to make advances or by a co-operative society or by a scheduled bank:Provided that an advance recoverable from an agriculturist or from an agriculturist and other persons jointly shall not be deemed to be a loan for the purposes of this Act unless such advance was made to an agriculturist or to an agriculturist and other persons jointly."11. In order to be a "loan" the advance must be recoverable from an agriculturist. The word "recoverable" seems, prima facie, to indicate that the crucial point of time is when the advance becomes recoverable, i.e., when the amount advanced becomes or falls due. Under the mortgage of 1931 the date of redemption was 6 years from the date of execution, i.e., in July 1937, Sri Kunzru concedes that Sita Ram was not assessed to income-tax since 1936. Assuming, but without deciding, that the proviso to S. 2 (9) applies and that in order to be a "loan" it must be shown that the advance was made to one who, at the date of the advance, was an agriculturist as defined in S. 2(3) of the Act, the question has yet to be answered, namely, had Sita Ram ceased to be an agriculturist. by reason of clause (b) of the proviso to S. 2 (3), that, is to say, by reason of his being, assessed to income-tax on July 28, 1931. According to the evidence of Suraj Mani Tripathi and Sita Ram income-tax was first deducted at the source in the month of February 1932 by the College authorities and the actual assessment was made on February, 9, 1933. Therefore Sita Ram was not assessed to income-tax on July 28, 1931. It is not disputed that the taxable minimum was reduced from Rs. 2,000 per annum to Rs. 1,000 per annum by the Indian Finance (Supplementary and Extending) Act, 1931, which was enacted on November 28, 1931. Therefore, at the date of the advance, i.e., on July 28, 1931, Sita Ram whose salary was below Rs.2,000 per annum was not only not actually assessed to income-tax but was not even liable to such assessment. The evidence of Suraj Mani Tripathi shows that the first deduction of income-tax out of the salary was in the month of February 1932 and the income-tax assessment form for1931-32 (Ex. S) shows that tax was assessed on Rs. 180 which was evidently salary for February and March 1932 being the last two months of the assessment year.The position, therefore, is that Sita Ram was not assessed to income-tax at the date of the evidence in 1931 or on the due date under the deed, i.e., in July 1937, or on the date of suit in 1938 or on the date of the application under S. 8 in 1942. It consequently follows that he was an agriculturist on all these dates. The other judgment-debtors were admittedly agriculturists. Therefore, the application under S. 8 was made by persons who were all agriculturists and who were liable to pay under a decree to which the Act applies, i.e., under a decree passed in a suit relating to a loan as defined by S. 2 (9).The Courts below, therefore, were right in their conclusion that the judgment-debtors applicants were entitled to the benefit of the Act.12. Sri G. N. Kunzru finally submitted that in any case the accounts could not be taken from 1922, for the mortgagees under the two mortgagees were different. We have already pointed out that this point was not specifically taken in the decree-holders petition of objection. The trial Court held as a fact that so far as the judgment-debtors were concerned the mortgagees were the same in both the mortgages. Although in the petition of appeal to the High Court it was alleged that the mortgagees were different and the accounts could not be reopened from 1922, that ground was not specifically urged before the High Court. The determination of that question must necessarily involve an investigation into facts. We do not think, in the absence of a plea in this behalf in the decree-holders petition of objection and also in view of their failure and neglect to raise this question before the High Court, it will be right for this final Court of appeal, at this stage and in the circumstances of this case, to permit the appellants to raise this question of fact.
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10. It is clear from the wording of the sub-section that there are three prerequisites for exercise of the right conferred by it, namely, (1) that the application must be by an agriculturist and (2) that that agriculturist must be liable to pay the amount due under a decree to which this Act applies and (3) that that decree was passed before the commencement of this Act. That the judgment-debtors applicants were agriculturists at the date when Suit No. 33 of 1938 was filed and also in 1942 when the application under S. 8 was made is conceded by Sri G. N. Kunzru. The decree in that suit was passed on March 31, 1939, which was well before the commencement of the Act. The only question that remains is whether the amount was due under a decree to which the Act applies. Under S. 2 (6) of the Act the phrase "decree to which this Act applies" means a decree passed before or after the commencement of this Act in a suit to which this Act applies. Section 2(17) defines the phrase "suit to which this Act applies" as meaning any suit or proceeding relating to aat the date of the advance, i.e., on July 28, 1931, Sita Ram whose salary was below Rs.2,000 per annum was not only not actually assessed to income-tax but was not even liable to such assessment. The evidence of Suraj Mani Tripathi shows that the first deduction of income-tax out of the salary was in the month of February 1932 and the income-tax assessment form for1931-32 (Ex. S) shows that tax was assessed on Rs. 180 which was evidently salary for February and March 1932 being the last two months of the assessment year.The position, therefore, is that Sita Ram was not assessed to income-tax at the date of the evidence in 1931 or on the due date under the deed, i.e., in July 1937, or on the date of suit in 1938 or on the date of the application under S. 8 in 1942. It consequently follows that he was an agriculturist on all these dates. The other judgment-debtors were admittedly agriculturists. Therefore, the application under S. 8 was made by persons who were all agriculturists and who were liable to pay under a decree to which the Act applies, i.e., under a decree passed in a suit relating to a loan as defined by S. 2 (9).The Courts below, therefore, were right in their conclusion that the judgment-debtors applicants were entitled to the benefit of thehave already pointed out that this point was not specifically taken in the decree-holders petition of objection. The trial Court held as a fact that so far as the judgment-debtors were concerned the mortgagees were the same in both the mortgages. Although in the petition of appeal to the High Court it was alleged that the mortgagees were different and the accounts could not be reopened from 1922, that ground was not specifically urged before the High Court. The determination of that question must necessarily involve an investigation into facts. We do not think, in the absence of a plea in this behalf in the decree-holders petition of objection and also in view of their failure and neglect to raise this question before the High Court, it will be right for this final Court of appeal, at this stage and in the circumstances of this case, to permit the appellants to raise this question of fact.
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Arjun Prasad (dead) through his legal representatives smt. Madhukabhasini Devi & Others Vs. Shantilal Shankarlal Sha & Others | or arrangement shall, if sanctioned by the Court, be binding on all the creditors or the class of creditors, or on all members or class of members, as the case may be, and also on the company, or in the case of a company in the course of being wound up, on the liquidator and contributories of the Company." 8. The agreement has to be of a majority in number representing three-fourths in value of those who are present either in person or by proxy at the meeting. The agreement of those who are not present at the meeting either in person or by proxy cannot be taken into consideration. Any creditor, whether a corporation or a natural person can be present at a meeting by proxy. A natural person can of course be present at a meeting "in person". Can a corporation be present at a meeting "in person"? It appears to us that unless there is some special provision by a law, a company which is not a physical person cannot "be present" at any place "in person". It is true that under the General Clauses Act, 1897, a company is a "person" so that whenever the word "person" is used in any statute a company would be included thereunder. The definition in the General Clauses Act can however be of no assistance in interpreting the words "to be present in person", and the difficulty in the way of a company being present in person can be obviated only by statutory provisions or rules having the force of law. 9. Nor can the appellant derive any assistance from the English Case In re Kelantan Coco, Limited and Reduced (1920 Weekly Notes, Part I, p. 274) cited by the learned counsel. In that case, the Court was dealing with a petition for reduction of capital. In deciding whether the special resolution to reduce the capital of the company had been duly passed, the Court had to consider whether there was a quorum at the confirmatory meeting, at which one member of the company and one representative appointed under S.68 of the Companies (Consolidation) Act, 1908 to represent a shareholder of the company, the Eastern Development Corporation, Limited, were present. The Articles of Association provided: "two members personally present shall be a quorum." It was held that a representative appointed under S.68 should be taken into account in considering whether there was a quorum. The provisions of S.68 were similar to those of S.80 of the Indian Companies Act, 1913 and thereunder a company which is a member of another company may, by resolution of the directors authorise any of its officials or any other person to act as its representative at any meeting of that other company. The presence of such a representative was taken in the above case to amount to personal presence of a member of the company. The case does not deal with the question of a creditor Company. 10. In the Indian Companies Act, 1956 a provision has been introduced under which a company which is a creditor of another company may by resolution of its directors, authorise such person as it thinks fit to act as its representative at any meeting of any creditors of the company held in pursuance of the Act and a person authorised in this manner shall be entitled to exercise the same rights and powers (including the right to vote by proxy) on behalf of the company. (S.187(1)(b) and 2). No such provision however is to be found in the Indian Companies Act, 1913. It is unnecessary for us to consider whether tinder this new provision the attendance of a person authorised in this mannar at a meeting of the creditors will amount to attendance of the creditor company "in person". For, the present case is governed by the provisions of the Indian Companies Act, 1913 and not by this new provision. 11. When the Companies Act was amended in 1936, an addition was made in S.246 which empowers the High Court to make rules, concerning the mode of proceedings inter alia "for the holding of meetings of creditors and members in connection with proceedings under S.153 of this Act." Accordingly, a number of Rules were framed by the Patna High Court in exercise of this additional power. R.144 of the Rules states that a creditor or contributor may vote either in person or by proxy. Rules 145 to 153 deal with various questions as regards proxies. Of these R.150 lays down how a proxy is to be given where a creditor is a corporation. Admittedly, no proxy in accordance with R.150 was given by the two creditor companies, Bhandani Brothers and the Hindustan Goal Company, in the present case. There is nothing in these rules which can assist Mr. Sastris argument that a resolution by the directors of the company authorising a director or some other person to represent the company at the creditors meeting makes him a "present in person" in law for that company at the meeting. 12. Mr. Sastris last argument was that as the business of the company has to be managed by the directors and the directors can delegate any of their powers to any one of themselves, the attendance of Arjun Prasad at the meeting should reasonably be construed as the attendance of all the directors and so the attendance of the company "in person". As we have already indicated it does not appear to us that in the Act of 1913 there is any provision for attendance of the company in person", but apart from that we wish to point out that the resolution made by the two companies do not appear to us to delegate the powers of the directors to Arjun Prasad. 13. The conclusion of the High Court that the votes cast by Arjun Prasad on behalf of the two companies, viz., Bhandani Brothers and the Hindustan Coal Company, were not valid votes is, in our opinion, correct. | 0[ds]It is true that under the General Clauses Act, 1897, a company is a "person" so that whenever the word "person" is used in any statute a company would be included thereunder. The definition in the General Clauses Act can however be of no assistance in interpreting the words "to be present in person", and the difficulty in the way of a company being present in person can be obviated only by statutory provisions or rules having the force of law9. Nor can the appellant derive any assistance from the English Case In re Kelantan Coco, Limited and Reduced (1920 Weekly Notes, Part I, p. 274) cited by the learned counsel. In that case, the Court was dealing with a petition for reduction of capital. In deciding whether the special resolution to reduce the capital of the company had been duly passed, the Court had to consider whether there was a quorum at the confirmatory meeting, at which one member of the company and one representative appointed under S.68 of the Companies (Consolidation) Act, 1908 to represent a shareholder of the company, the Eastern Development Corporation, Limited, were present. The Articles of Association provided: "two members personally present shall be a quorum." It was held that a representative appointed under S.68 should be taken into account in considering whether there was a quorum. The provisions of S.68 were similar to those of S.80 of the Indian Companies Act, 1913 and thereunder a company which is a member of another company may, by resolution of the directors authorise any of its officials or any other person to act as its representative at any meeting of that other company. The presence of such a representative was taken in the above case to amount to personal presence of a member of the company. The case does not deal with the question of a creditor Company10. In the Indian Companies Act, 1956 a provision has been introduced under which a company which is a creditor of another company may by resolution of its directors, authorise such person as it thinks fit to act as its representative at any meeting of any creditors of the company held in pursuance of the Act and a person authorised in this manner shall be entitled to exercise the same rights and powers (including the right to vote by proxy) on behalf of the company. (S.187(1)(b) and 2). No such provision however is to be found in the Indian Companies Act, 1913. It is unnecessary for us to consider whether tinder this new provision the attendance of a person authorised in this mannar at a meeting of the creditors will amount to attendance of the creditor company "in person". For, the present case is governed by the provisions of the Indian Companies Act, 1913 and not by this new provision11. When the Companies Act was amended in 1936, an addition was made in S.246 which empowers the High Court to make rules, concerning the mode of proceedings inter alia "for the holding of meetings of creditors and members in connection with proceedings under S.153 of this Act." Accordingly, a number of Rules were framed by the Patna High Court in exercise of this additional power. R.144 of the Rules states that a creditor or contributor may vote either in person or by proxy. Rules 145 to 153 deal with various questions as regards proxies. Of these R.150 lays down how a proxy is to be given where a creditor is a corporation. Admittedly, no proxy in accordance with R.150 was given by the two creditor companies, Bhandani Brothers and the Hindustan Goal Company, in the present case. There is nothing in these rules which can assist Mr. Sastris argument that a resolution by the directors of the company authorising a director or some other person to represent the company at the creditors meeting makes him a "present in person" in law for that company at the meeting12. Mr. Sastris last argument was that as the business of the company has to be managed by the directors and the directors can delegate any of their powers to any one of themselves, the attendance of Arjun Prasad at the meeting should reasonably be construed as the attendance of all the directors and so the attendance of the company "in person". As we have already indicated it does not appear to us that in the Act of 1913 there is any provision for attendance of the company in person", but apart from that we wish to point out that the resolution made by the two companies do not appear to us to delegate the powers of the directors to Arjun Prasad13. The conclusion of the High Court that the votes cast by Arjun Prasad on behalf of the two companies, viz., Bhandani Brothers and the Hindustan Coal Company, were not valid votes is, in our opinion, correct. | 0 | 2,567 | 909 | ### Instruction:
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or arrangement shall, if sanctioned by the Court, be binding on all the creditors or the class of creditors, or on all members or class of members, as the case may be, and also on the company, or in the case of a company in the course of being wound up, on the liquidator and contributories of the Company." 8. The agreement has to be of a majority in number representing three-fourths in value of those who are present either in person or by proxy at the meeting. The agreement of those who are not present at the meeting either in person or by proxy cannot be taken into consideration. Any creditor, whether a corporation or a natural person can be present at a meeting by proxy. A natural person can of course be present at a meeting "in person". Can a corporation be present at a meeting "in person"? It appears to us that unless there is some special provision by a law, a company which is not a physical person cannot "be present" at any place "in person". It is true that under the General Clauses Act, 1897, a company is a "person" so that whenever the word "person" is used in any statute a company would be included thereunder. The definition in the General Clauses Act can however be of no assistance in interpreting the words "to be present in person", and the difficulty in the way of a company being present in person can be obviated only by statutory provisions or rules having the force of law. 9. Nor can the appellant derive any assistance from the English Case In re Kelantan Coco, Limited and Reduced (1920 Weekly Notes, Part I, p. 274) cited by the learned counsel. In that case, the Court was dealing with a petition for reduction of capital. In deciding whether the special resolution to reduce the capital of the company had been duly passed, the Court had to consider whether there was a quorum at the confirmatory meeting, at which one member of the company and one representative appointed under S.68 of the Companies (Consolidation) Act, 1908 to represent a shareholder of the company, the Eastern Development Corporation, Limited, were present. The Articles of Association provided: "two members personally present shall be a quorum." It was held that a representative appointed under S.68 should be taken into account in considering whether there was a quorum. The provisions of S.68 were similar to those of S.80 of the Indian Companies Act, 1913 and thereunder a company which is a member of another company may, by resolution of the directors authorise any of its officials or any other person to act as its representative at any meeting of that other company. The presence of such a representative was taken in the above case to amount to personal presence of a member of the company. The case does not deal with the question of a creditor Company. 10. In the Indian Companies Act, 1956 a provision has been introduced under which a company which is a creditor of another company may by resolution of its directors, authorise such person as it thinks fit to act as its representative at any meeting of any creditors of the company held in pursuance of the Act and a person authorised in this manner shall be entitled to exercise the same rights and powers (including the right to vote by proxy) on behalf of the company. (S.187(1)(b) and 2). No such provision however is to be found in the Indian Companies Act, 1913. It is unnecessary for us to consider whether tinder this new provision the attendance of a person authorised in this mannar at a meeting of the creditors will amount to attendance of the creditor company "in person". For, the present case is governed by the provisions of the Indian Companies Act, 1913 and not by this new provision. 11. When the Companies Act was amended in 1936, an addition was made in S.246 which empowers the High Court to make rules, concerning the mode of proceedings inter alia "for the holding of meetings of creditors and members in connection with proceedings under S.153 of this Act." Accordingly, a number of Rules were framed by the Patna High Court in exercise of this additional power. R.144 of the Rules states that a creditor or contributor may vote either in person or by proxy. Rules 145 to 153 deal with various questions as regards proxies. Of these R.150 lays down how a proxy is to be given where a creditor is a corporation. Admittedly, no proxy in accordance with R.150 was given by the two creditor companies, Bhandani Brothers and the Hindustan Goal Company, in the present case. There is nothing in these rules which can assist Mr. Sastris argument that a resolution by the directors of the company authorising a director or some other person to represent the company at the creditors meeting makes him a "present in person" in law for that company at the meeting. 12. Mr. Sastris last argument was that as the business of the company has to be managed by the directors and the directors can delegate any of their powers to any one of themselves, the attendance of Arjun Prasad at the meeting should reasonably be construed as the attendance of all the directors and so the attendance of the company "in person". As we have already indicated it does not appear to us that in the Act of 1913 there is any provision for attendance of the company in person", but apart from that we wish to point out that the resolution made by the two companies do not appear to us to delegate the powers of the directors to Arjun Prasad. 13. The conclusion of the High Court that the votes cast by Arjun Prasad on behalf of the two companies, viz., Bhandani Brothers and the Hindustan Coal Company, were not valid votes is, in our opinion, correct.
### Response:
0
### Explanation:
It is true that under the General Clauses Act, 1897, a company is a "person" so that whenever the word "person" is used in any statute a company would be included thereunder. The definition in the General Clauses Act can however be of no assistance in interpreting the words "to be present in person", and the difficulty in the way of a company being present in person can be obviated only by statutory provisions or rules having the force of law9. Nor can the appellant derive any assistance from the English Case In re Kelantan Coco, Limited and Reduced (1920 Weekly Notes, Part I, p. 274) cited by the learned counsel. In that case, the Court was dealing with a petition for reduction of capital. In deciding whether the special resolution to reduce the capital of the company had been duly passed, the Court had to consider whether there was a quorum at the confirmatory meeting, at which one member of the company and one representative appointed under S.68 of the Companies (Consolidation) Act, 1908 to represent a shareholder of the company, the Eastern Development Corporation, Limited, were present. The Articles of Association provided: "two members personally present shall be a quorum." It was held that a representative appointed under S.68 should be taken into account in considering whether there was a quorum. The provisions of S.68 were similar to those of S.80 of the Indian Companies Act, 1913 and thereunder a company which is a member of another company may, by resolution of the directors authorise any of its officials or any other person to act as its representative at any meeting of that other company. The presence of such a representative was taken in the above case to amount to personal presence of a member of the company. The case does not deal with the question of a creditor Company10. In the Indian Companies Act, 1956 a provision has been introduced under which a company which is a creditor of another company may by resolution of its directors, authorise such person as it thinks fit to act as its representative at any meeting of any creditors of the company held in pursuance of the Act and a person authorised in this manner shall be entitled to exercise the same rights and powers (including the right to vote by proxy) on behalf of the company. (S.187(1)(b) and 2). No such provision however is to be found in the Indian Companies Act, 1913. It is unnecessary for us to consider whether tinder this new provision the attendance of a person authorised in this mannar at a meeting of the creditors will amount to attendance of the creditor company "in person". For, the present case is governed by the provisions of the Indian Companies Act, 1913 and not by this new provision11. When the Companies Act was amended in 1936, an addition was made in S.246 which empowers the High Court to make rules, concerning the mode of proceedings inter alia "for the holding of meetings of creditors and members in connection with proceedings under S.153 of this Act." Accordingly, a number of Rules were framed by the Patna High Court in exercise of this additional power. R.144 of the Rules states that a creditor or contributor may vote either in person or by proxy. Rules 145 to 153 deal with various questions as regards proxies. Of these R.150 lays down how a proxy is to be given where a creditor is a corporation. Admittedly, no proxy in accordance with R.150 was given by the two creditor companies, Bhandani Brothers and the Hindustan Goal Company, in the present case. There is nothing in these rules which can assist Mr. Sastris argument that a resolution by the directors of the company authorising a director or some other person to represent the company at the creditors meeting makes him a "present in person" in law for that company at the meeting12. Mr. Sastris last argument was that as the business of the company has to be managed by the directors and the directors can delegate any of their powers to any one of themselves, the attendance of Arjun Prasad at the meeting should reasonably be construed as the attendance of all the directors and so the attendance of the company "in person". As we have already indicated it does not appear to us that in the Act of 1913 there is any provision for attendance of the company in person", but apart from that we wish to point out that the resolution made by the two companies do not appear to us to delegate the powers of the directors to Arjun Prasad13. The conclusion of the High Court that the votes cast by Arjun Prasad on behalf of the two companies, viz., Bhandani Brothers and the Hindustan Coal Company, were not valid votes is, in our opinion, correct.
|
M/s. Videocon Industries Ltd. & Another Vs. State of Maharashtra & Others | is as follows:- "However, in a case like the present one in which the penalty proceeding under Section 51 of the Act and the prosecution under Section 56 of the Act though launched together but the penalty proceeding culminated earlier exonerating the person, the question would arise as to whether continuance of the prosecution would be permissible or not. In other words, the question with which we are concerned is the impact of the findings which are recorded on the culmination of adjudication proceedings on criminal proceeding and in case in the adjudication proceedings the person concerned is exonerated can he ask for dropping of the criminal proceeding on that ground alone". 17. Thereafter, it has referred to various authorities, namely, Collector of Customs v. L.R. Melwani, AIR 1970 SC 962 B.N. Kashyap v. Emperor, AIR 1945 Lah 23 K.G. Premshankar v. Inspector of Police, 2002(4) R.C.R.(Criminal) 596 : (2002) 8 SCC 87 Iqbal Singh Marwah v. Meenakshi Marwah, 2005(2) R.C.R.(Criminal) 178 : (2005) 4 SCC 370 Uttam Chand v. ITO, (1982) 2 SCC 543 G.L. Didwana v. ITO, (1995) Supp (2) SCC 724 and K.C. Builders v. CIT, (2004) 2 SCC 731 and eventually ruled that:- "We find substance in the submission of Mr Sharan. There may appear to be some conflict between the views in Standard Chartered Bank (1) and L.R. Melwani holding that adjudication proceedings and criminal proceeding are two in- dependent proceedings and both can go on simultaneously and finding in the adjudication proceedings is not binding on the criminal proceeding and the judgments of this Court in Uttam Chand, G.L. Didwania and K.C. Builders wherein this Court had taken a view that when there is categorical finding in the adjudication proceedings exonerating the person which is binding and conclusive, the prosecution cannot be allowed to stand. The judgments of this Court are not to be read as a statute and when viewed from that angle there does not seem any conflict between the two sets of decisions. It will not make any difference on principle that latter judgments pertain to cases under the Income Tax Act". 18. In the ultimate eventuate, the following principles were culled out from the decisions referred to in the judgment. The majority has put it thus:- "The ratio which can be culled out from these decisions can broadly be stated as follows: (i) Adjudication proceedings and criminal prosecution can be launched simultaneously; (ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution; (iii) Adjudication proceedings and criminal proceedings are independent in nature to each other; (iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution; (v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure; (vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and (vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases". 19. Clarifying the position, the majority observed that the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court. On the basis of the aforesaid principles, the majority proceeded to analyse the factual matrix and analysed the finding recorded by the adjudicating authority and opined when there is a finding by the Enforcement Directorate in the adjudication proceeding that there is no contravention of any of the provisions of the Act, it would be unjust and an abuse of the process of the court to permit the Enforcement Directorate to continue with the criminal prosecution.20. We respectfully concur with the said view and do not perceive any reason to disagree with the same and refer the pronouncement inRadheshyam Kejriwal (supra) for reconsideration by the larger Bench.21. Coming to the facts of the case, we find that the tribunal has arrived at a conclusion that the appellant cannot be held guilty for Section 18(2) read with Section 18(3) of FER Act, 1973 and the advise of the Reserve Bank of India given in its letters dated 21.1.1992 and 18.2.1994 deserve to be accepted as they are totally in consonance with legal provisions. The High Court, without an assail to the order passed by the tribunal, has adverted to the same and opined that it does not subscribe to the view expressed by the tribunal that Section 18(2) and 18(3) of the Act were not applicable to the transaction in question. The High Court could not have done that. We may note with profit that the High Court after stating that has reproduced paragraph 38 and (vi) and opined that the findings given by the tribunal are based on technical grounds and, therefore, the prosecution is liable to continue. As we perceive, the judgment of the tribunal is on merits, inasmuch as findings have been recorded after analysis of facts and the conclusion has been arrived at that the appellants have not violated the provisions of the Act. In such a situation, it cannot be said that it is a judgment rendered on technical grounds and, therefore, we are compelled to hold that the High Court has totally erred in law. | 1[ds]14. It is obligatory to note at the outset that the findings recorded and the conclusions arrived at by the tribunal are founded on analysis of statutory provisions, the applicability of the letters issued by the Reserve Bank of India and the nature of transaction carried out between the parties. It is beyond any stretch of doubt that the decision rendered by the tribunal is on merits. It is not an adjudication on any technical foundation. The decision on merits was allowed to rest by the revenue. The learned Magistrate, as has been stated earlier, relying upon the decision in Radheshyam Kejriwal (supra) discharged the accused person. The learned Additional Sessions Judge, as is evident, followed the view expressed in the dissenting opinion. The High Court has noted the same and has not really adverted to the said facet. At this juncture it is necessary to state that the revisional court should have followed the view expressed by the majority and not the minority. The approach is absolutely erroneous. Be that as it may, as the order passed by the High Court would show, it has referred to the principles culled out in Radheshyam Kejriwal (supra) and thereafter had proceeded, as has been indicated earlier, to record its opinion about the transaction on which the tribunal has rendered its verdict.Clarifying the position, the majority observed that the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court. On the basis of the aforesaid principles, the majority proceeded to analyse the factual matrix and analysed the finding recorded by the adjudicating authority and opined when there is a finding by the Enforcement Directorate in the adjudication proceeding that there is no contravention of any of the provisions of the Act, it would be unjust and an abuse of the process of the court to permit the Enforcement Directorate to continue with the criminal prosecution.20. We respectfully concur with the said view and do not perceive any reason to disagree with the same and refer the pronouncement inRadheshyam Kejriwal (supra) for reconsideration by the larger Bench.21. Coming to the facts of the case, we find that the tribunal has arrived at a conclusion that the appellant cannot be held guilty for Section 18(2) read with Section 18(3) of FER Act, 1973 and the advise of the Reserve Bank of India given in its letters dated 21.1.1992 and 18.2.1994 deserve to be accepted as they are totally in consonance with legal provisions. The High Court, without an assail to the order passed by the tribunal, has adverted to the same and opined that it does not subscribe to the view expressed by the tribunal that Section 18(2) and 18(3) of the Act were not applicable to the transaction in question. The High Court could not have done that. We may note with profit that the High Court after stating that has reproduced paragraph 38 and (vi) and opined that the findings given by the tribunal are based on technical grounds and, therefore, the prosecution is liable to continue. As we perceive, the judgment of the tribunal is on merits, inasmuch as findings have been recorded after analysis of facts and the conclusion has been arrived at that the appellants have not violated the provisions of the Act. In such a situation, it cannot be said that it is a judgment rendered on technical grounds and, therefore, we are compelled to hold that the High Court has totally erred in law. | 1 | 3,677 | 712 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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is as follows:- "However, in a case like the present one in which the penalty proceeding under Section 51 of the Act and the prosecution under Section 56 of the Act though launched together but the penalty proceeding culminated earlier exonerating the person, the question would arise as to whether continuance of the prosecution would be permissible or not. In other words, the question with which we are concerned is the impact of the findings which are recorded on the culmination of adjudication proceedings on criminal proceeding and in case in the adjudication proceedings the person concerned is exonerated can he ask for dropping of the criminal proceeding on that ground alone". 17. Thereafter, it has referred to various authorities, namely, Collector of Customs v. L.R. Melwani, AIR 1970 SC 962 B.N. Kashyap v. Emperor, AIR 1945 Lah 23 K.G. Premshankar v. Inspector of Police, 2002(4) R.C.R.(Criminal) 596 : (2002) 8 SCC 87 Iqbal Singh Marwah v. Meenakshi Marwah, 2005(2) R.C.R.(Criminal) 178 : (2005) 4 SCC 370 Uttam Chand v. ITO, (1982) 2 SCC 543 G.L. Didwana v. ITO, (1995) Supp (2) SCC 724 and K.C. Builders v. CIT, (2004) 2 SCC 731 and eventually ruled that:- "We find substance in the submission of Mr Sharan. There may appear to be some conflict between the views in Standard Chartered Bank (1) and L.R. Melwani holding that adjudication proceedings and criminal proceeding are two in- dependent proceedings and both can go on simultaneously and finding in the adjudication proceedings is not binding on the criminal proceeding and the judgments of this Court in Uttam Chand, G.L. Didwania and K.C. Builders wherein this Court had taken a view that when there is categorical finding in the adjudication proceedings exonerating the person which is binding and conclusive, the prosecution cannot be allowed to stand. The judgments of this Court are not to be read as a statute and when viewed from that angle there does not seem any conflict between the two sets of decisions. It will not make any difference on principle that latter judgments pertain to cases under the Income Tax Act". 18. In the ultimate eventuate, the following principles were culled out from the decisions referred to in the judgment. The majority has put it thus:- "The ratio which can be culled out from these decisions can broadly be stated as follows: (i) Adjudication proceedings and criminal prosecution can be launched simultaneously; (ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution; (iii) Adjudication proceedings and criminal proceedings are independent in nature to each other; (iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution; (v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure; (vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and (vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases". 19. Clarifying the position, the majority observed that the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court. On the basis of the aforesaid principles, the majority proceeded to analyse the factual matrix and analysed the finding recorded by the adjudicating authority and opined when there is a finding by the Enforcement Directorate in the adjudication proceeding that there is no contravention of any of the provisions of the Act, it would be unjust and an abuse of the process of the court to permit the Enforcement Directorate to continue with the criminal prosecution.20. We respectfully concur with the said view and do not perceive any reason to disagree with the same and refer the pronouncement inRadheshyam Kejriwal (supra) for reconsideration by the larger Bench.21. Coming to the facts of the case, we find that the tribunal has arrived at a conclusion that the appellant cannot be held guilty for Section 18(2) read with Section 18(3) of FER Act, 1973 and the advise of the Reserve Bank of India given in its letters dated 21.1.1992 and 18.2.1994 deserve to be accepted as they are totally in consonance with legal provisions. The High Court, without an assail to the order passed by the tribunal, has adverted to the same and opined that it does not subscribe to the view expressed by the tribunal that Section 18(2) and 18(3) of the Act were not applicable to the transaction in question. The High Court could not have done that. We may note with profit that the High Court after stating that has reproduced paragraph 38 and (vi) and opined that the findings given by the tribunal are based on technical grounds and, therefore, the prosecution is liable to continue. As we perceive, the judgment of the tribunal is on merits, inasmuch as findings have been recorded after analysis of facts and the conclusion has been arrived at that the appellants have not violated the provisions of the Act. In such a situation, it cannot be said that it is a judgment rendered on technical grounds and, therefore, we are compelled to hold that the High Court has totally erred in law.
### Response:
1
### Explanation:
14. It is obligatory to note at the outset that the findings recorded and the conclusions arrived at by the tribunal are founded on analysis of statutory provisions, the applicability of the letters issued by the Reserve Bank of India and the nature of transaction carried out between the parties. It is beyond any stretch of doubt that the decision rendered by the tribunal is on merits. It is not an adjudication on any technical foundation. The decision on merits was allowed to rest by the revenue. The learned Magistrate, as has been stated earlier, relying upon the decision in Radheshyam Kejriwal (supra) discharged the accused person. The learned Additional Sessions Judge, as is evident, followed the view expressed in the dissenting opinion. The High Court has noted the same and has not really adverted to the said facet. At this juncture it is necessary to state that the revisional court should have followed the view expressed by the majority and not the minority. The approach is absolutely erroneous. Be that as it may, as the order passed by the High Court would show, it has referred to the principles culled out in Radheshyam Kejriwal (supra) and thereafter had proceeded, as has been indicated earlier, to record its opinion about the transaction on which the tribunal has rendered its verdict.Clarifying the position, the majority observed that the yardstick would be to judge as to whether the allegation in the adjudication proceedings as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceedings is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceedings, the trial of the person concerned shall be an abuse of the process of the court. On the basis of the aforesaid principles, the majority proceeded to analyse the factual matrix and analysed the finding recorded by the adjudicating authority and opined when there is a finding by the Enforcement Directorate in the adjudication proceeding that there is no contravention of any of the provisions of the Act, it would be unjust and an abuse of the process of the court to permit the Enforcement Directorate to continue with the criminal prosecution.20. We respectfully concur with the said view and do not perceive any reason to disagree with the same and refer the pronouncement inRadheshyam Kejriwal (supra) for reconsideration by the larger Bench.21. Coming to the facts of the case, we find that the tribunal has arrived at a conclusion that the appellant cannot be held guilty for Section 18(2) read with Section 18(3) of FER Act, 1973 and the advise of the Reserve Bank of India given in its letters dated 21.1.1992 and 18.2.1994 deserve to be accepted as they are totally in consonance with legal provisions. The High Court, without an assail to the order passed by the tribunal, has adverted to the same and opined that it does not subscribe to the view expressed by the tribunal that Section 18(2) and 18(3) of the Act were not applicable to the transaction in question. The High Court could not have done that. We may note with profit that the High Court after stating that has reproduced paragraph 38 and (vi) and opined that the findings given by the tribunal are based on technical grounds and, therefore, the prosecution is liable to continue. As we perceive, the judgment of the tribunal is on merits, inasmuch as findings have been recorded after analysis of facts and the conclusion has been arrived at that the appellants have not violated the provisions of the Act. In such a situation, it cannot be said that it is a judgment rendered on technical grounds and, therefore, we are compelled to hold that the High Court has totally erred in law.
|
Commissioner Of Income Tax, Cochin Vs. M/S. Travancore Cochin | was not permissible for them to claim in future Assessment Year (1992-93). It was without any legal basis. 8. The respondent, felt aggrieved, carried the matter in second appeal before the Tribunal. By order dated 13.09.1999, the Tribunal allowed the respondents appeal and set side the orders of assessing authority and CIT (appeal). It was held that since the respondent was following the mercantile system of accountancy and the liability in relation to the rent in question though accrued in 1989-90 was in dispute before the State Government, the same could be claimed only in that Assessment Year wherein the dispute was settled by the State. It was noted that the dispute was settled by the State Government by rejecting the respondents prayer to revise the rent on 07.11.1991. The deduction in respect of lease rent therefore could be claimed in the Assessment Year 1992-93. The Tribunal accordingly allowed the deduction claimed by the respondent in the Assessment Year 1992-93 9. The Revenue, felt aggrieved, filed appeal before the High Court. By impugned order, the High Court dismissed the Revenues appeal and affirmed the order of the Tribunal, giving rise to filing of the appeal by the Revenue. 10. Heard Mr. K. Radhakrishnan, learned senior counsel for the appellant and Mr. Ritin Rai, learned counsel for the respondent. 11. Mr. K. Radhakrishnan, learned counsel for the appellant (Revenue) while assailing the legality and correctness of the impugned order contended that the liability in regard to fixation of lease rent by the respondent to the State was essentially a statutory liability because according to learned counsel it was determined, fixed, payable and lastly recoverable under the Kerala Land Assignment Act, 1960 (hereinafter referred to as "the Act") read with two Rules framed in exercise of powers conferred under Sections 3 and 7 of the Act called, "The Kerala Land Assignment Rules 1964" and "The Rules for Assignment of Government Land for Industrial Purposes" (hereinafter referred to as "the Rules"). It was, therefore, his submission that since the liability to determine, fix, pay and recover the lease rent is a statutory in nature and secondly, the respondent is following mercantile system of accountancy in their business for paying the taxes, the liability to pay such dues once accrued, which in this case was accrued on 25.06.1988, the deduction could be claimed in the same Assessment Year, i.e., 1989-90. Learned counsel urged that since the respondent failed to claim the deduction in the Assessment Year 1989-90, they had no right to claim such deduction in any subsequent assessment year much less in Assessment Year 1992-93. Learned counsel then referred extensively to the provisions of "The Act" and "The Rules" to show that the fixation of the rent is statutory and not contractual. 12. In reply, learned counsel for the respondent (assessee) supported the impugned order and contended that it does not call for any interference. It was also his submission that the argument now being raised by the learned counsel for the appellant in the appeal was never raised by them at any stage of the proceedings in Courts below and hence either it should not be entertained or if entertained, the same cannot be answered either way unless the respondent is given an opportunity to rebut it with reference to documents with a view to show that the fixation of rent is contractual and not statutory as contended by the Revenue. According to the learned counsel, this being a mixed question of fact and law it can be decided in first instance either by the CIT or Tribunal. 13. Having heard the learned counsel for the parties at length and on perusal of the record of the case, we are of the view that having regard to the nature of issue involved which is a mixed question of law and fact, it would be just and proper to remand the case to the Tribunal for deciding the issue afresh on merits. 14. The need to remand the case to the Tribunal, has occasioned because firstly, the question as to whether the fixation of rent and its payment is statutory or contractual and, if so, its effect while claiming deduction under the Income Tax Act and, if so, in which year of assessment is a mixed question of law and fact. Secondly, it was neither decided by any of the authorities below and nor by the Tribunal and the High Court. It may be that since the Revenue itself did not raise it before the authorities below and raised it for the first time before this Court by simply placing reliance on the provisions of the Act and the two Rules mentioned above, this Court cannot decide the same in this appeal, for the first time for want of factual material and legal issues attached to it. 15. In our considered opinion, in order to decide the issue of deduction, the nature of fixation of rent, its payment, recovery etc. and whether it is statutory or contractual, has some bearing over the question. It is also clear that the respondent did not get any chance to meet this submission before the courts/authorities below. It is for these reasons, we are of the view that the matter needs to be remanded to the Tribunal for its proper adjudication. 16. The Tribunal being the last adjudicatory authority in hierarchy on facts would be in a better position to decide the issue after taking into account the documents filed by the parties in support of their respective contentions. Depending upon the decision of the Tribunal, the parties can carry the matter to the higher Courts. 17. We, therefore, at this stage refrain from expressing any opinion on the merits of the case and nor consider it proper to record any finding on the submissions urged either way except to record the submissions of the parties for appreciating the issues urged and leave it to the Tribunal to decide, its applicability and relevancy in accordance with law. | 1[ds]13. Having heard the learned counsel for the parties at length and on perusal of the record of the case, we are of the view that having regard to the nature of issue involved which is a mixed question of law and fact, it would be just and proper to remand the case to the Tribunal for deciding the issue afresh on merits.The need to remand the case to the Tribunal, has occasioned because firstly, the question as to whether the fixation of rent and its payment is statutory or contractual and, if so, its effect while claiming deduction under the Income Tax Act and, if so, in which year of assessment is a mixed question of law and fact. Secondly, it was neither decided by any of the authorities below and nor by the Tribunal and the High Court. It may be that since the Revenue itself did not raise it before the authorities below and raised it for the first time before this Court by simply placing reliance on the provisions of the Act and the two Rules mentioned above, this Court cannot decide the same in this appeal, for the first time for want of factual material and legal issues attached to it.In our considered opinion, in order to decide the issue of deduction, the nature of fixation of rent, its payment, recovery etc. and whether it is statutory or contractual, has some bearing over the question. It is also clear that the respondent did not get any chance to meet this submission before the courts/authorities below. It is for these reasons, we are of the view that the matter needs to be remanded to the Tribunal for its proper adjudication.The Tribunal being the last adjudicatory authority in hierarchy on facts would be in a better position to decide the issue after taking into account the documents filed by the parties in support of their respective contentions. Depending upon the decision of the Tribunal, the parties can carry the matter to the higher Courts.We, therefore, at this stage refrain from expressing any opinion on the merits of the case and nor consider it proper to record any finding on the submissions urged either way except to record the submissions of the parties for appreciating the issues urged and leave it to the Tribunal to decide, its applicability and relevancy in accordance with law. | 1 | 1,780 | 430 | ### Instruction:
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was not permissible for them to claim in future Assessment Year (1992-93). It was without any legal basis. 8. The respondent, felt aggrieved, carried the matter in second appeal before the Tribunal. By order dated 13.09.1999, the Tribunal allowed the respondents appeal and set side the orders of assessing authority and CIT (appeal). It was held that since the respondent was following the mercantile system of accountancy and the liability in relation to the rent in question though accrued in 1989-90 was in dispute before the State Government, the same could be claimed only in that Assessment Year wherein the dispute was settled by the State. It was noted that the dispute was settled by the State Government by rejecting the respondents prayer to revise the rent on 07.11.1991. The deduction in respect of lease rent therefore could be claimed in the Assessment Year 1992-93. The Tribunal accordingly allowed the deduction claimed by the respondent in the Assessment Year 1992-93 9. The Revenue, felt aggrieved, filed appeal before the High Court. By impugned order, the High Court dismissed the Revenues appeal and affirmed the order of the Tribunal, giving rise to filing of the appeal by the Revenue. 10. Heard Mr. K. Radhakrishnan, learned senior counsel for the appellant and Mr. Ritin Rai, learned counsel for the respondent. 11. Mr. K. Radhakrishnan, learned counsel for the appellant (Revenue) while assailing the legality and correctness of the impugned order contended that the liability in regard to fixation of lease rent by the respondent to the State was essentially a statutory liability because according to learned counsel it was determined, fixed, payable and lastly recoverable under the Kerala Land Assignment Act, 1960 (hereinafter referred to as "the Act") read with two Rules framed in exercise of powers conferred under Sections 3 and 7 of the Act called, "The Kerala Land Assignment Rules 1964" and "The Rules for Assignment of Government Land for Industrial Purposes" (hereinafter referred to as "the Rules"). It was, therefore, his submission that since the liability to determine, fix, pay and recover the lease rent is a statutory in nature and secondly, the respondent is following mercantile system of accountancy in their business for paying the taxes, the liability to pay such dues once accrued, which in this case was accrued on 25.06.1988, the deduction could be claimed in the same Assessment Year, i.e., 1989-90. Learned counsel urged that since the respondent failed to claim the deduction in the Assessment Year 1989-90, they had no right to claim such deduction in any subsequent assessment year much less in Assessment Year 1992-93. Learned counsel then referred extensively to the provisions of "The Act" and "The Rules" to show that the fixation of the rent is statutory and not contractual. 12. In reply, learned counsel for the respondent (assessee) supported the impugned order and contended that it does not call for any interference. It was also his submission that the argument now being raised by the learned counsel for the appellant in the appeal was never raised by them at any stage of the proceedings in Courts below and hence either it should not be entertained or if entertained, the same cannot be answered either way unless the respondent is given an opportunity to rebut it with reference to documents with a view to show that the fixation of rent is contractual and not statutory as contended by the Revenue. According to the learned counsel, this being a mixed question of fact and law it can be decided in first instance either by the CIT or Tribunal. 13. Having heard the learned counsel for the parties at length and on perusal of the record of the case, we are of the view that having regard to the nature of issue involved which is a mixed question of law and fact, it would be just and proper to remand the case to the Tribunal for deciding the issue afresh on merits. 14. The need to remand the case to the Tribunal, has occasioned because firstly, the question as to whether the fixation of rent and its payment is statutory or contractual and, if so, its effect while claiming deduction under the Income Tax Act and, if so, in which year of assessment is a mixed question of law and fact. Secondly, it was neither decided by any of the authorities below and nor by the Tribunal and the High Court. It may be that since the Revenue itself did not raise it before the authorities below and raised it for the first time before this Court by simply placing reliance on the provisions of the Act and the two Rules mentioned above, this Court cannot decide the same in this appeal, for the first time for want of factual material and legal issues attached to it. 15. In our considered opinion, in order to decide the issue of deduction, the nature of fixation of rent, its payment, recovery etc. and whether it is statutory or contractual, has some bearing over the question. It is also clear that the respondent did not get any chance to meet this submission before the courts/authorities below. It is for these reasons, we are of the view that the matter needs to be remanded to the Tribunal for its proper adjudication. 16. The Tribunal being the last adjudicatory authority in hierarchy on facts would be in a better position to decide the issue after taking into account the documents filed by the parties in support of their respective contentions. Depending upon the decision of the Tribunal, the parties can carry the matter to the higher Courts. 17. We, therefore, at this stage refrain from expressing any opinion on the merits of the case and nor consider it proper to record any finding on the submissions urged either way except to record the submissions of the parties for appreciating the issues urged and leave it to the Tribunal to decide, its applicability and relevancy in accordance with law.
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13. Having heard the learned counsel for the parties at length and on perusal of the record of the case, we are of the view that having regard to the nature of issue involved which is a mixed question of law and fact, it would be just and proper to remand the case to the Tribunal for deciding the issue afresh on merits.The need to remand the case to the Tribunal, has occasioned because firstly, the question as to whether the fixation of rent and its payment is statutory or contractual and, if so, its effect while claiming deduction under the Income Tax Act and, if so, in which year of assessment is a mixed question of law and fact. Secondly, it was neither decided by any of the authorities below and nor by the Tribunal and the High Court. It may be that since the Revenue itself did not raise it before the authorities below and raised it for the first time before this Court by simply placing reliance on the provisions of the Act and the two Rules mentioned above, this Court cannot decide the same in this appeal, for the first time for want of factual material and legal issues attached to it.In our considered opinion, in order to decide the issue of deduction, the nature of fixation of rent, its payment, recovery etc. and whether it is statutory or contractual, has some bearing over the question. It is also clear that the respondent did not get any chance to meet this submission before the courts/authorities below. It is for these reasons, we are of the view that the matter needs to be remanded to the Tribunal for its proper adjudication.The Tribunal being the last adjudicatory authority in hierarchy on facts would be in a better position to decide the issue after taking into account the documents filed by the parties in support of their respective contentions. Depending upon the decision of the Tribunal, the parties can carry the matter to the higher Courts.We, therefore, at this stage refrain from expressing any opinion on the merits of the case and nor consider it proper to record any finding on the submissions urged either way except to record the submissions of the parties for appreciating the issues urged and leave it to the Tribunal to decide, its applicability and relevancy in accordance with law.
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Sobran Singh & Others Vs. State of U.P. & Others | an agreement to that effect. It is common ground that agreement executed between the guarantor -Appellant and the Respondent No. 4 -Corporation does provide for recovery of money due thereunder as arrears of land revenue. In fairness to learned Counsel for the Appellants, we must mention that there was no challenge to the recoverability of the amount outstanding against the borrower and the guarantor, as arrears of land revenue. What was argued at considerable length was whether recovery proceedings could be initiated against the guarantor so long as the properties mortgaged by the principal debtor borrower remain to be sold for payment of the outstanding amount. It was contended that such recovery proceedings against the guarantor would be permissible only if the mortgaged, charged or encumbered immovable property of the borrower is first sold off. Support for that proposition was drawn from the provisions of Section 4(2)(b) of the Act and the decision of this Court in Pawan Kumar Jains case (supra) later followed by another two -Judge Bench decision of this Court in Ashok Mahajan v. State of U.P. : (2006) 10 SCC 332. 5. Section 4(2)(b) does not, in our opinion, lend itself to the interpretation urged on behalf of the Appellants. The expression "where the property of any persons referred to in Section 3 is subject to any mortgage, charge, pledge or other encumbrance" appearing in that provision, in our opinion, leaves no manner of doubt that situations where the property of any person referred to in Section 3 is subject to any mortgage, charge, pledge or any encumbrance are alone covered by the same. It has no application to cases in which the person referred to in Section 3 has not mortgaged, charged, pledged or encumbered in favour of the State Government or the Corporation or a Government Company or a banking company, any property owned by any such person. In cases where there is a charge, mortgage or encumbrance referred to in Section 4(2), the sale of such property is made a condition precedent for recovery of the balance amount, if any by initiating proceedings against the defaulter in terms of Clause (b) of Section 4(2). In other words Section 4(2) postulates initiation of proceedings against a person whose property is mortgaged, charged or encumbered only if such property is first sold off and the Collector certifies that there are no prospects of realizing the entire sum due through such process of sale within a reasonable time. 6. It is not in dispute that the guarantors have not in the present appeals created any mortgage, charge or encumbrance in regard to their immovable property in favour of the Respondent -Corporation. The bar against initiation of recovery proceedings till such time such mortgaged, charged or encumbered properties are sold can, therefore, have no application to them. The contention that Section 4(2)(b) protects even the guarantors must, therefore, fail. The protection is, in our opinion, confined only to the principal debtor who has charged his properties in the manner indicated above. It was contended on behalf of the Appellants that any interpretation which deprives the guarantor of the property under Section 2(b) and consequently exposes him to a harsher treatment than the one given to the principal -debtor who has borrowed the loan but failed to repay the same would be inequitable and opposed to equity and good conscience. It was urged that the principal borrower cannot escape simply because he has mortgaged or charged his immovable property, nor was there any rationale for denying the protection available to the borrower to the guarantors who have taken no advantage for themselves and yet face the prospects of summary proceedings for recovery of the outstanding as arrears of land revenue which can at times result in their detention in civil prison. The argument though attractive does not stand closer scrutiny. The legislature has, it is evident from the language employed in the provision, made a conscious departure in the case of guarantors while providing protection to the borrowers whose properties stand mortgaged in connection with the loan transactions. If the intention of the legislature was to extend the benefit of such protection to the guarantors also, nothing prevented it from specifically indicating so. Section 4(2) would then have been differently worded. That, however, is not the position. The general principle of law that the liability of the guarantor is co -extensive with that of the principal borrower continues to hold good even when recovery proceedings are taken under a special enactment. There is nothing in Section 4(2) to suggest that the legal edifice on which the liability of the borrower and the guarantor are made co -extensive stands altered. All that the statute provides is that while the liability of the guarantor remains enforceable coextensively with the principal borrower, the latter shall not be proceeded against so long as properties mortgaged, charged or encumbered by him have not been sold. The difference in the treatment which the special enactment authorises as between the borrower and the guarantor in our opinion springs from the fact that one has mortgaged, charged or encumbered his immovable property while the other has not. The one who has charged, mortgaged or encumbered the property is placed at a different footing than the one who has not done so. To that extent alone there is a difference in the matter of enforcement of the recovery proceedings against the borrower and the guarantor for in all other respects the liability of the two continues to be unlimited and coextensive.7. In the light of what we have said above, we are of the view that Pawan Kumar Jains case (supra) was not correctly decided when it said that the guarantors cannot be proceeded against unless the property mortgaged or charged by the principal debtors is first sold. The later decision of the Court in Ashok Mahajans case (supra) has simply followed Pawan Kumar Jains case (supra) without making any qualitative contribution to the rationale underlying judgment | 0[ds]5. Section 4(2)(b) does not, in our opinion, lend itself to the interpretation urged on behalf of the Appellants.It is not in dispute that the guarantors have not in the present appeals created any mortgage, charge or encumbrance in regard to their immovable property in favour of the RespondentCorporation. The bar against initiation of recovery proceedings till such time such mortgaged, charged or encumbered properties are sold can, therefore, have no application to them. The contention that Section 4(2)(b) protects even the guarantors must, therefore, fail. The protection is, in our opinion, confined only to the principal debtor who has charged his properties in the manner indicatedargument though attractive does not stand closer scrutiny. The legislature has, it is evident from the language employed in the provision, made a conscious departure in the case of guarantors while providing protection to the borrowers whose properties stand mortgaged in connection with the loan transactions. If the intention of the legislature was to extend the benefit of such protection to the guarantors also, nothing prevented it from specifically indicating so. Section 4(2) would then have been differently worded. That, however, is not the position. The general principle of law that the liability of the guarantor is coextensive with that of the principal borrower continues to hold good even when recovery proceedings are taken under a special enactment. There is nothing in Section 4(2) to suggest that the legal edifice on which the liability of the borrower and the guarantor are made coextensive stands altered. All that the statute provides is that while the liability of the guarantor remains enforceable coextensively with the principal borrower, the latter shall not be proceeded against so long as properties mortgaged, charged or encumbered by him have not been sold. The difference in the treatment which the special enactment authorises as between the borrower and the guarantor in our opinion springs from the fact that one has mortgaged, charged or encumbered his immovable property while the other has not. The one who has charged, mortgaged or encumbered the property is placed at a different footing than the one who has not done so. To that extent alone there is a difference in the matter of enforcement of the recovery proceedings against the borrower and the guarantor for in all other respects the liability of the two continues to be unlimited and coextensive.7. In the light of what we have said above, we are of the view that Pawan Kumar Jains case (supra) was not correctly decided when it said that the guarantors cannot be proceeded against unless the property mortgaged or charged by the principal debtors is first sold. The later decision of the Court in Ashok Mahajans case (supra) has simply followed Pawan Kumar Jains case (supra) without making any qualitative contribution to the rationale underlyingt though attractive does not stand closer scrutiny. The legislature has, it is evident from the language employed in the provision, made a conscious departure in the case of guarantors while providing protection to the borrowers whose properties stand mortgaged in connection with the loan transactions. If the intention of the legislature was to extend the benefit of such protection to the guarantors also, nothing prevented it from specifically indicating so. Section 4(2) would then have been differently worded. That, however, is not the position. The general principle of law that the liability of the guarantor is coextensive with that of the principal borrower continues to hold good even when recovery proceedings are taken under a special enactment. There is nothing in Section 4(2) to suggest that the legal edifice on which the liability of the borrower and the guarantor are made coextensive stands altered. All that the statute provides is that while the liability of the guarantor remains enforceable coextensively with the principal borrower, the latter shall not be proceeded against so long as properties mortgaged, charged or encumbered by him have not been sold. The difference in the treatment which the special enactment authorises as between the borrower and the guarantor in our opinion springs from the fact that one has mortgaged, charged or encumbered his immovable property while the other has not. The one who has charged, mortgaged or encumbered the property is placed at a different footing than the one who has not done so. To that extent alone there is a difference in the matter of enforcement of the recovery proceedings against the borrower and the guarantor for in all other respects the liability of the two continues to be unlimited and coextensive. | 0 | 2,512 | 847 | ### 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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an agreement to that effect. It is common ground that agreement executed between the guarantor -Appellant and the Respondent No. 4 -Corporation does provide for recovery of money due thereunder as arrears of land revenue. In fairness to learned Counsel for the Appellants, we must mention that there was no challenge to the recoverability of the amount outstanding against the borrower and the guarantor, as arrears of land revenue. What was argued at considerable length was whether recovery proceedings could be initiated against the guarantor so long as the properties mortgaged by the principal debtor borrower remain to be sold for payment of the outstanding amount. It was contended that such recovery proceedings against the guarantor would be permissible only if the mortgaged, charged or encumbered immovable property of the borrower is first sold off. Support for that proposition was drawn from the provisions of Section 4(2)(b) of the Act and the decision of this Court in Pawan Kumar Jains case (supra) later followed by another two -Judge Bench decision of this Court in Ashok Mahajan v. State of U.P. : (2006) 10 SCC 332. 5. Section 4(2)(b) does not, in our opinion, lend itself to the interpretation urged on behalf of the Appellants. The expression "where the property of any persons referred to in Section 3 is subject to any mortgage, charge, pledge or other encumbrance" appearing in that provision, in our opinion, leaves no manner of doubt that situations where the property of any person referred to in Section 3 is subject to any mortgage, charge, pledge or any encumbrance are alone covered by the same. It has no application to cases in which the person referred to in Section 3 has not mortgaged, charged, pledged or encumbered in favour of the State Government or the Corporation or a Government Company or a banking company, any property owned by any such person. In cases where there is a charge, mortgage or encumbrance referred to in Section 4(2), the sale of such property is made a condition precedent for recovery of the balance amount, if any by initiating proceedings against the defaulter in terms of Clause (b) of Section 4(2). In other words Section 4(2) postulates initiation of proceedings against a person whose property is mortgaged, charged or encumbered only if such property is first sold off and the Collector certifies that there are no prospects of realizing the entire sum due through such process of sale within a reasonable time. 6. It is not in dispute that the guarantors have not in the present appeals created any mortgage, charge or encumbrance in regard to their immovable property in favour of the Respondent -Corporation. The bar against initiation of recovery proceedings till such time such mortgaged, charged or encumbered properties are sold can, therefore, have no application to them. The contention that Section 4(2)(b) protects even the guarantors must, therefore, fail. The protection is, in our opinion, confined only to the principal debtor who has charged his properties in the manner indicated above. It was contended on behalf of the Appellants that any interpretation which deprives the guarantor of the property under Section 2(b) and consequently exposes him to a harsher treatment than the one given to the principal -debtor who has borrowed the loan but failed to repay the same would be inequitable and opposed to equity and good conscience. It was urged that the principal borrower cannot escape simply because he has mortgaged or charged his immovable property, nor was there any rationale for denying the protection available to the borrower to the guarantors who have taken no advantage for themselves and yet face the prospects of summary proceedings for recovery of the outstanding as arrears of land revenue which can at times result in their detention in civil prison. The argument though attractive does not stand closer scrutiny. The legislature has, it is evident from the language employed in the provision, made a conscious departure in the case of guarantors while providing protection to the borrowers whose properties stand mortgaged in connection with the loan transactions. If the intention of the legislature was to extend the benefit of such protection to the guarantors also, nothing prevented it from specifically indicating so. Section 4(2) would then have been differently worded. That, however, is not the position. The general principle of law that the liability of the guarantor is co -extensive with that of the principal borrower continues to hold good even when recovery proceedings are taken under a special enactment. There is nothing in Section 4(2) to suggest that the legal edifice on which the liability of the borrower and the guarantor are made co -extensive stands altered. All that the statute provides is that while the liability of the guarantor remains enforceable coextensively with the principal borrower, the latter shall not be proceeded against so long as properties mortgaged, charged or encumbered by him have not been sold. The difference in the treatment which the special enactment authorises as between the borrower and the guarantor in our opinion springs from the fact that one has mortgaged, charged or encumbered his immovable property while the other has not. The one who has charged, mortgaged or encumbered the property is placed at a different footing than the one who has not done so. To that extent alone there is a difference in the matter of enforcement of the recovery proceedings against the borrower and the guarantor for in all other respects the liability of the two continues to be unlimited and coextensive.7. In the light of what we have said above, we are of the view that Pawan Kumar Jains case (supra) was not correctly decided when it said that the guarantors cannot be proceeded against unless the property mortgaged or charged by the principal debtors is first sold. The later decision of the Court in Ashok Mahajans case (supra) has simply followed Pawan Kumar Jains case (supra) without making any qualitative contribution to the rationale underlying judgment
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0
### Explanation:
5. Section 4(2)(b) does not, in our opinion, lend itself to the interpretation urged on behalf of the Appellants.It is not in dispute that the guarantors have not in the present appeals created any mortgage, charge or encumbrance in regard to their immovable property in favour of the RespondentCorporation. The bar against initiation of recovery proceedings till such time such mortgaged, charged or encumbered properties are sold can, therefore, have no application to them. The contention that Section 4(2)(b) protects even the guarantors must, therefore, fail. The protection is, in our opinion, confined only to the principal debtor who has charged his properties in the manner indicatedargument though attractive does not stand closer scrutiny. The legislature has, it is evident from the language employed in the provision, made a conscious departure in the case of guarantors while providing protection to the borrowers whose properties stand mortgaged in connection with the loan transactions. If the intention of the legislature was to extend the benefit of such protection to the guarantors also, nothing prevented it from specifically indicating so. Section 4(2) would then have been differently worded. That, however, is not the position. The general principle of law that the liability of the guarantor is coextensive with that of the principal borrower continues to hold good even when recovery proceedings are taken under a special enactment. There is nothing in Section 4(2) to suggest that the legal edifice on which the liability of the borrower and the guarantor are made coextensive stands altered. All that the statute provides is that while the liability of the guarantor remains enforceable coextensively with the principal borrower, the latter shall not be proceeded against so long as properties mortgaged, charged or encumbered by him have not been sold. The difference in the treatment which the special enactment authorises as between the borrower and the guarantor in our opinion springs from the fact that one has mortgaged, charged or encumbered his immovable property while the other has not. The one who has charged, mortgaged or encumbered the property is placed at a different footing than the one who has not done so. To that extent alone there is a difference in the matter of enforcement of the recovery proceedings against the borrower and the guarantor for in all other respects the liability of the two continues to be unlimited and coextensive.7. In the light of what we have said above, we are of the view that Pawan Kumar Jains case (supra) was not correctly decided when it said that the guarantors cannot be proceeded against unless the property mortgaged or charged by the principal debtors is first sold. The later decision of the Court in Ashok Mahajans case (supra) has simply followed Pawan Kumar Jains case (supra) without making any qualitative contribution to the rationale underlyingt though attractive does not stand closer scrutiny. The legislature has, it is evident from the language employed in the provision, made a conscious departure in the case of guarantors while providing protection to the borrowers whose properties stand mortgaged in connection with the loan transactions. If the intention of the legislature was to extend the benefit of such protection to the guarantors also, nothing prevented it from specifically indicating so. Section 4(2) would then have been differently worded. That, however, is not the position. The general principle of law that the liability of the guarantor is coextensive with that of the principal borrower continues to hold good even when recovery proceedings are taken under a special enactment. There is nothing in Section 4(2) to suggest that the legal edifice on which the liability of the borrower and the guarantor are made coextensive stands altered. All that the statute provides is that while the liability of the guarantor remains enforceable coextensively with the principal borrower, the latter shall not be proceeded against so long as properties mortgaged, charged or encumbered by him have not been sold. The difference in the treatment which the special enactment authorises as between the borrower and the guarantor in our opinion springs from the fact that one has mortgaged, charged or encumbered his immovable property while the other has not. The one who has charged, mortgaged or encumbered the property is placed at a different footing than the one who has not done so. To that extent alone there is a difference in the matter of enforcement of the recovery proceedings against the borrower and the guarantor for in all other respects the liability of the two continues to be unlimited and coextensive.
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Abdul Rashid Vs. State of Bihar | under the Bihar and Orissa Excise Act, 1915 would be admissible in evidence in view of the judgment of this Court in Pon Adithan v. Dy. Director, Narcotics Control Bureau, Madras, and it is for this reason we have granted leave to examine this question. Undoubtedly, therefore, the two items of evidence which could be utilised against the appellant to bring home the guilt is the so-called confessional statement of the appellant to the Superintendent of Excise and the confessional statement of the co-accused. If the former is inadmissible in evidence and as such cannot be taken into consideration, no conviction could be sustained on the statement of the co-accused which cannot form the sole basis of a conviction. This Court in the case of Raja Ram v. State of Bihar considered the relevant provisions of the Bihar and Orissa Excise Act and the powers conferred upon an Excise Officer under the said Act and ultimately came to the conclusion that the said power is not analogous to that of a Customs Officer under the provisions of the Sea Customs Act. The Court also further came to the conclusion that in view of the positive provisions contained in sub-section (3) of Section 78 and the powers which an Excise Officer exercises under the provisions of the Bihar and Orissa Excise Act, the conclusion is irresistible that the said officer is a Police Officer for the purpose of Section 25 of the Evidence Act, and therefore, a confessional statement of an accused made to such Excise Officer would be inadmissible in evidence. This decision was considered in a later decision of this Court in Badaku Joti Savant v. State of Mysore. In that case, the statement made before a Deputy Superintendent of Customs and Excise under the Central Excises and Salt Act was for consideration and the Court held that the said Deputy Superintendent of Customs and Excise is not a Police Officer within the meaning of Section 25 of the Evidence Act. Wanchoo, Judge as he then was took into consideration the two lines of authorities of different High Courts on the subject and also considered the decision of this Court in Raja Ram and the scheme of the provisions of the Bihar and Orissa Excise Act, 1915. The Court then drew up a distinction between a Central Excise Officer exercising power under the provisions of Central Excises and Salt Act and an Excise Officer under the Bihar and Orissa Excise Act and ultimately came to the conclusion that the Deputy Superintendent of Customs and Excise would not be a Police Officer for the purpose of Section 25 of the Evidence Act, and therefore statement made before the said officer of the Central Excise and Customs Department would be admissible in evidence. It may be noted that the judgment of this Court in Raja Ram was a Bench of 3-learned Judges whereas the Judgment of this Court in Badaku Joti was a judgment of 5-learned Judges. The later judgment of the 5-Judge Bench never disapproved the law laid down by this Court in Raja Ram and on the other hand was of the opinion that in view of the provisions contained in the Bihar and Orissa Excise Act, 1915 more particularly sub-section (3) of Section 78 and the provisions contained in Section 21(2) of the Central Excises and Salt Act which confers power on the Officer of the Central Excise Department, even though the Central Excise Officer may while making the enquiries for the purpose of Act exercises powers of an Officer-in-Charge of a Police Station he does not thereby become a Police Officer even if the broader meaning to those words in Section 25 of the Evidence Act is given. The Court noted further that the Scheme of the Bihar and Orissa Excise Act is distinct and different from the scheme of the Central Excises and Salt Act and as such the decision in Raja Ram will have no application where a statement of the accused is made to an officer under the Central Excises and Salt Act. Mr. B. B. Singh, also brought to our notice a judgment of this Court in the case of Raj Kumar Karwal v. Union of India. In support of the contention that even a Superintendent of Excise under Bihar and Orissa Excise Act is not a Police Officer and as such a confessional statement made to him would be admissible in evidence. In the aforesaid case, the question for consideration is whether the officer of Department of Revenue Intelligence (DRI) invested with powers of Officer-in-Charge of Police Station under Section 53 are Police Officers or not within the meaning of Section 25 and this Court answered that those officers are not Police Officers. This decision is in pari-materia with the Constitutional Bench decision in 1966 and does not in any way detract the conclusion of this Court in Raja Ram which we have already noticed. In Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras this question had not directly been in issue and the only question that was raised is whether the statement made was under threat and pressure. It is obvious that a statement of confession made under threat and pressure would come within the ambit of Section 24 of the Evidence Act. This decision therefore would not be direct authority on the point in issue. In the aforesaid premises, the decision of Raja Ram would apply to the alleged confessional statement made by the appellant to the Superintendent of Excise and therefore would be inadmissible in evidence. If that statement is taken out from the purview of consideration then on the residue of material, namely, that the appellant was found coming together with the co-accused and on the statement of co-accused, a conviction under the provisions of Narcotics Drugs and Psychotropic Substances Act, 1985 cannot be sustained. We therefore set aside the conviction and sentence passed against the appellant and he is acquitted of the charge levelled against him. | 1[ds]This decision is inwith the Constitutional Bench decision in 1966 and does not in any way detract the conclusion of this Court in Raja Ram which we have already noticed. In Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras this question had not directly been in issue and the only question that was raised is whether the statement made was under threat and pressure. It is obvious that a statement of confession made under threat and pressure would come within the ambit of Section 24 of the Evidence Act. This decision therefore would not be direct authority on the point in issue. In the aforesaid premises, the decision of Raja Ram would apply to the alleged confessional statement made by the appellant to the Superintendent of Excise and therefore would be inadmissible in evidence. If that statement is taken out from the purview of consideration then on the residue of material, namely, that the appellant was found coming together with theand on the statement ofa conviction under the provisions of Narcotics Drugs and Psychotropic Substances Act, 1985 cannot be sustained. We therefore set aside the conviction and sentence passed against the appellant and he is acquitted of the charge levelled against him. | 1 | 1,343 | 221 | ### Instruction:
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under the Bihar and Orissa Excise Act, 1915 would be admissible in evidence in view of the judgment of this Court in Pon Adithan v. Dy. Director, Narcotics Control Bureau, Madras, and it is for this reason we have granted leave to examine this question. Undoubtedly, therefore, the two items of evidence which could be utilised against the appellant to bring home the guilt is the so-called confessional statement of the appellant to the Superintendent of Excise and the confessional statement of the co-accused. If the former is inadmissible in evidence and as such cannot be taken into consideration, no conviction could be sustained on the statement of the co-accused which cannot form the sole basis of a conviction. This Court in the case of Raja Ram v. State of Bihar considered the relevant provisions of the Bihar and Orissa Excise Act and the powers conferred upon an Excise Officer under the said Act and ultimately came to the conclusion that the said power is not analogous to that of a Customs Officer under the provisions of the Sea Customs Act. The Court also further came to the conclusion that in view of the positive provisions contained in sub-section (3) of Section 78 and the powers which an Excise Officer exercises under the provisions of the Bihar and Orissa Excise Act, the conclusion is irresistible that the said officer is a Police Officer for the purpose of Section 25 of the Evidence Act, and therefore, a confessional statement of an accused made to such Excise Officer would be inadmissible in evidence. This decision was considered in a later decision of this Court in Badaku Joti Savant v. State of Mysore. In that case, the statement made before a Deputy Superintendent of Customs and Excise under the Central Excises and Salt Act was for consideration and the Court held that the said Deputy Superintendent of Customs and Excise is not a Police Officer within the meaning of Section 25 of the Evidence Act. Wanchoo, Judge as he then was took into consideration the two lines of authorities of different High Courts on the subject and also considered the decision of this Court in Raja Ram and the scheme of the provisions of the Bihar and Orissa Excise Act, 1915. The Court then drew up a distinction between a Central Excise Officer exercising power under the provisions of Central Excises and Salt Act and an Excise Officer under the Bihar and Orissa Excise Act and ultimately came to the conclusion that the Deputy Superintendent of Customs and Excise would not be a Police Officer for the purpose of Section 25 of the Evidence Act, and therefore statement made before the said officer of the Central Excise and Customs Department would be admissible in evidence. It may be noted that the judgment of this Court in Raja Ram was a Bench of 3-learned Judges whereas the Judgment of this Court in Badaku Joti was a judgment of 5-learned Judges. The later judgment of the 5-Judge Bench never disapproved the law laid down by this Court in Raja Ram and on the other hand was of the opinion that in view of the provisions contained in the Bihar and Orissa Excise Act, 1915 more particularly sub-section (3) of Section 78 and the provisions contained in Section 21(2) of the Central Excises and Salt Act which confers power on the Officer of the Central Excise Department, even though the Central Excise Officer may while making the enquiries for the purpose of Act exercises powers of an Officer-in-Charge of a Police Station he does not thereby become a Police Officer even if the broader meaning to those words in Section 25 of the Evidence Act is given. The Court noted further that the Scheme of the Bihar and Orissa Excise Act is distinct and different from the scheme of the Central Excises and Salt Act and as such the decision in Raja Ram will have no application where a statement of the accused is made to an officer under the Central Excises and Salt Act. Mr. B. B. Singh, also brought to our notice a judgment of this Court in the case of Raj Kumar Karwal v. Union of India. In support of the contention that even a Superintendent of Excise under Bihar and Orissa Excise Act is not a Police Officer and as such a confessional statement made to him would be admissible in evidence. In the aforesaid case, the question for consideration is whether the officer of Department of Revenue Intelligence (DRI) invested with powers of Officer-in-Charge of Police Station under Section 53 are Police Officers or not within the meaning of Section 25 and this Court answered that those officers are not Police Officers. This decision is in pari-materia with the Constitutional Bench decision in 1966 and does not in any way detract the conclusion of this Court in Raja Ram which we have already noticed. In Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras this question had not directly been in issue and the only question that was raised is whether the statement made was under threat and pressure. It is obvious that a statement of confession made under threat and pressure would come within the ambit of Section 24 of the Evidence Act. This decision therefore would not be direct authority on the point in issue. In the aforesaid premises, the decision of Raja Ram would apply to the alleged confessional statement made by the appellant to the Superintendent of Excise and therefore would be inadmissible in evidence. If that statement is taken out from the purview of consideration then on the residue of material, namely, that the appellant was found coming together with the co-accused and on the statement of co-accused, a conviction under the provisions of Narcotics Drugs and Psychotropic Substances Act, 1985 cannot be sustained. We therefore set aside the conviction and sentence passed against the appellant and he is acquitted of the charge levelled against him.
### Response:
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### Explanation:
This decision is inwith the Constitutional Bench decision in 1966 and does not in any way detract the conclusion of this Court in Raja Ram which we have already noticed. In Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras this question had not directly been in issue and the only question that was raised is whether the statement made was under threat and pressure. It is obvious that a statement of confession made under threat and pressure would come within the ambit of Section 24 of the Evidence Act. This decision therefore would not be direct authority on the point in issue. In the aforesaid premises, the decision of Raja Ram would apply to the alleged confessional statement made by the appellant to the Superintendent of Excise and therefore would be inadmissible in evidence. If that statement is taken out from the purview of consideration then on the residue of material, namely, that the appellant was found coming together with theand on the statement ofa conviction under the provisions of Narcotics Drugs and Psychotropic Substances Act, 1985 cannot be sustained. We therefore set aside the conviction and sentence passed against the appellant and he is acquitted of the charge levelled against him.
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Balak Singh Vs. Waqf Alee Allah Kayam Karda Ahmad Ullahkhan Saheb | the Act reads thus:"168. (1) When a decree for arrears of rent against an exproprietary, an occupancy or hereditary tenant has not been completely satisfied within one year from the date of such decree by any mode of execution other than sale of holdings, the land-holder may apply to the Court, which passed the decree, for the issue of a notice to the tenant for payment of the amount outstanding and for his ejectment in case of the default and the Court shall thereupon issue such notice.(2) The notice shall require the tenant to appear within thirty days of the service of the notice, and either to show cause why he should not be ejected from the holding, or to admit the claim and obtain leave to pay the amount into the Court within one hundred and twenty days from the date of his appearance in the Court.(3) If the tenant does not appear in accordance with the terms of the notice, or having appeared either does not show cause why he should not be ejected or does not ask for leave to pay, the Court shall immediately order his ejectment from the holding.(4) If the tenant appears and obtains leave to pay, then, unless within one hundred and twenty days from the date of his appearance in the court, the tenant has paid the amount or payment thereof has been certified to the Court in accordance with Rule 2, Order XXI of the Code of Civil Procedure, 1908, the Court shall on the 31st of May next following, order his ejectment.(5) The order of ejectment shall be executed on or after the first day of June next following the date of the order. If within one month after the delivery of possession, the tenant deposits the decretal amount, the ejectment order shall be cancelled and possession restored forthwith to the tenant.(6) No extension of time for payment shall be allowed:Provided that the tenant shall be ejected only from such portion of the holding the rent of which does not exceed onesixth of the decretal amount."7. The learned counsel for the appellant contends that an appeal lies under Section 271 (2) of the Act, which reads as follows:"An appeal shall lie from an order mentioned in Section 47 or Section 104 or Section 144 or in Order XLIII, Rule 1 of the Code of Civil Procedure, 1908, and made by an Assistant Collector of the first class or a collector.Such appeal shall lie to the Court, if any, having jurisdiction under Section 265 of this Act to hear an appeal from the decree in the suit, or in the case of an application for execution, to the Court having jurisdiction to hear an appeal from the decree which is being executed."8. The answer to the question depends on whether the order under Section 168 of the Act can be said to be an order relating to the execution, discharge or satisfaction of the decree. It seems to us that the order dated August 8, 1958, was an order relating to the execution, discharge or satisfaction of the decree for rent, dated May 17, 1956.9. It will be noticed that sub-s. (1) of Section 168 contemplates the decree-holder having tried to execute the decree by other modes of execution. If the decree has not been satisfied within one year of the date of the decree, the decree-holder is entitled to apply to the Court which passed the decree for the issue of the notice to the tenant for payment of the amount outstanding and for ejectment in case of default. Once the conditions are satisfied the Court had no option but to issue a notice. The object of the application is satisfaction of the decree; it may be satisfied by payment of the amount outstanding or failing that by ejectment in case of default. Under sub-section (2) the tenant is entitled to apply and obtain leave to pay the amount in Court within 120 days from the date of appearance in the Court. He is also entitled to show cause why he should not be ejected. Under sub-sec. (3) the Court is entitled to immediately order his ejectment from the holding if the tenant does not appear in accordance with the terms of notice or having appeared either does not show cause why he should not be ejected or does not ask leave to pay. Under sub-section (4) in default of payment or certification to the Court in accordance with R. 2, O. 21 of the Code of Civil Procedure, the Court is entitled to order his ejectment on May 31, next following. Then sub-section (5) provides for the execution of the order of ejectment.10. It seems to us that the whole scheme of the Section shows that the application under Section 168 of the Act is a step in the execution, discharge or satisfaction of the decree. The learned Counsel for the respondent contends that the, application is to the Court which passes the decree. But this does not necessarily show that the order passed on the application is not one relating to the execution, discharge or satisfaction of the decree. As provided in Section 38 of the Civil Procedure Code "a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution."11. While Section 168 deals with a decree for arrears of rent against on exproprietary, an occupancy or hereditary tenant, Section 170 of the Act deals with a decree passed for arrears of rent against a non-occupancy tenant. A similar application is provided for in Section 170 and the legislature clearly contemplates that this is a mode of execution for it uses the words "the land-holder may, in addition to any other mode of execution, apply to the Court which passed the decree for issue of a notice." A mode similar to the mode or proceeding under Section 168 is thus treated as a mode of execution. | 1[ds]8. The answer to the question depends on whether the order under Section 168 of the Act can be said to be an order relating to the execution, discharge or satisfaction of the decree. It seems to us that the order dated August 8, 1958, was an order relating to the execution, discharge or satisfaction of the decree for rent, dated May 17, 1956.It seems to us that the whole scheme of the Section shows that the application under Section 168 of the Act is a step in the execution, discharge or satisfaction of thethis does not necessarily show that the order passed on the application is not one relating to the execution, discharge or satisfaction of the decree. As provided in Section 38 of the Civil Procedure Code "a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution."11. While Section 168 deals with a decree for arrears of rent against on exproprietary, an occupancy or hereditary tenant, Section 170 of the Act deals with a decree passed for arrears of rent against atenant. A similar application is provided for in Section 170 and the legislature clearly contemplates that this is a mode of execution for it uses the words "themay, in addition to any other mode of execution, apply to the Court which passed the decree for issue of a notice." A mode similar to the mode or proceeding under Section 168 is thus treated as a mode of execution. | 1 | 1,784 | 283 | ### 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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the Act reads thus:"168. (1) When a decree for arrears of rent against an exproprietary, an occupancy or hereditary tenant has not been completely satisfied within one year from the date of such decree by any mode of execution other than sale of holdings, the land-holder may apply to the Court, which passed the decree, for the issue of a notice to the tenant for payment of the amount outstanding and for his ejectment in case of the default and the Court shall thereupon issue such notice.(2) The notice shall require the tenant to appear within thirty days of the service of the notice, and either to show cause why he should not be ejected from the holding, or to admit the claim and obtain leave to pay the amount into the Court within one hundred and twenty days from the date of his appearance in the Court.(3) If the tenant does not appear in accordance with the terms of the notice, or having appeared either does not show cause why he should not be ejected or does not ask for leave to pay, the Court shall immediately order his ejectment from the holding.(4) If the tenant appears and obtains leave to pay, then, unless within one hundred and twenty days from the date of his appearance in the court, the tenant has paid the amount or payment thereof has been certified to the Court in accordance with Rule 2, Order XXI of the Code of Civil Procedure, 1908, the Court shall on the 31st of May next following, order his ejectment.(5) The order of ejectment shall be executed on or after the first day of June next following the date of the order. If within one month after the delivery of possession, the tenant deposits the decretal amount, the ejectment order shall be cancelled and possession restored forthwith to the tenant.(6) No extension of time for payment shall be allowed:Provided that the tenant shall be ejected only from such portion of the holding the rent of which does not exceed onesixth of the decretal amount."7. The learned counsel for the appellant contends that an appeal lies under Section 271 (2) of the Act, which reads as follows:"An appeal shall lie from an order mentioned in Section 47 or Section 104 or Section 144 or in Order XLIII, Rule 1 of the Code of Civil Procedure, 1908, and made by an Assistant Collector of the first class or a collector.Such appeal shall lie to the Court, if any, having jurisdiction under Section 265 of this Act to hear an appeal from the decree in the suit, or in the case of an application for execution, to the Court having jurisdiction to hear an appeal from the decree which is being executed."8. The answer to the question depends on whether the order under Section 168 of the Act can be said to be an order relating to the execution, discharge or satisfaction of the decree. It seems to us that the order dated August 8, 1958, was an order relating to the execution, discharge or satisfaction of the decree for rent, dated May 17, 1956.9. It will be noticed that sub-s. (1) of Section 168 contemplates the decree-holder having tried to execute the decree by other modes of execution. If the decree has not been satisfied within one year of the date of the decree, the decree-holder is entitled to apply to the Court which passed the decree for the issue of the notice to the tenant for payment of the amount outstanding and for ejectment in case of default. Once the conditions are satisfied the Court had no option but to issue a notice. The object of the application is satisfaction of the decree; it may be satisfied by payment of the amount outstanding or failing that by ejectment in case of default. Under sub-section (2) the tenant is entitled to apply and obtain leave to pay the amount in Court within 120 days from the date of appearance in the Court. He is also entitled to show cause why he should not be ejected. Under sub-sec. (3) the Court is entitled to immediately order his ejectment from the holding if the tenant does not appear in accordance with the terms of notice or having appeared either does not show cause why he should not be ejected or does not ask leave to pay. Under sub-section (4) in default of payment or certification to the Court in accordance with R. 2, O. 21 of the Code of Civil Procedure, the Court is entitled to order his ejectment on May 31, next following. Then sub-section (5) provides for the execution of the order of ejectment.10. It seems to us that the whole scheme of the Section shows that the application under Section 168 of the Act is a step in the execution, discharge or satisfaction of the decree. The learned Counsel for the respondent contends that the, application is to the Court which passes the decree. But this does not necessarily show that the order passed on the application is not one relating to the execution, discharge or satisfaction of the decree. As provided in Section 38 of the Civil Procedure Code "a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution."11. While Section 168 deals with a decree for arrears of rent against on exproprietary, an occupancy or hereditary tenant, Section 170 of the Act deals with a decree passed for arrears of rent against a non-occupancy tenant. A similar application is provided for in Section 170 and the legislature clearly contemplates that this is a mode of execution for it uses the words "the land-holder may, in addition to any other mode of execution, apply to the Court which passed the decree for issue of a notice." A mode similar to the mode or proceeding under Section 168 is thus treated as a mode of execution.
### Response:
1
### Explanation:
8. The answer to the question depends on whether the order under Section 168 of the Act can be said to be an order relating to the execution, discharge or satisfaction of the decree. It seems to us that the order dated August 8, 1958, was an order relating to the execution, discharge or satisfaction of the decree for rent, dated May 17, 1956.It seems to us that the whole scheme of the Section shows that the application under Section 168 of the Act is a step in the execution, discharge or satisfaction of thethis does not necessarily show that the order passed on the application is not one relating to the execution, discharge or satisfaction of the decree. As provided in Section 38 of the Civil Procedure Code "a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution."11. While Section 168 deals with a decree for arrears of rent against on exproprietary, an occupancy or hereditary tenant, Section 170 of the Act deals with a decree passed for arrears of rent against atenant. A similar application is provided for in Section 170 and the legislature clearly contemplates that this is a mode of execution for it uses the words "themay, in addition to any other mode of execution, apply to the Court which passed the decree for issue of a notice." A mode similar to the mode or proceeding under Section 168 is thus treated as a mode of execution.
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Modula India Vs. Kamakshya Singh Deo | its own motion, can do very little to ascertain the truth or otherwise of the plaintiffs averments and it is only the opposite party that will be more familiar with the detailed facts of a particular case and that can assist the court in pointing out defects, weaknesses, errors and inconsistencies of the plaintiffs case. 19. We, therefore, think that the defendant should be allowed his right of cross-examination and arguments. But we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his own evidence. None of the observations or decisions cited have gone to the extent of suggesting that, inspite of the fact that the defence has been struck off, the defendant can adduce evidence of his own or try to substantiate his own case. 20. Secondly, there is force in the apprehension that if one permits cross-examination of the plaintiffs witnesses by the defendant whose defence is struck off, procedural chaos may result unless great case is exercised and that it may be very difficult to keep the cross-examination within the limits of the principles discussed earlier. Under the guise of cross-examination and purported demolition of the plaintiffs case, the defendant may attempt to put forward pleas of his own. To perceive quickly the difference between questions put out to elicit a reply from the plaintiff which may derogate from his own case and questions put out to substantiate pleas in defence which the defendant may have in mind and to restrict the cross-examination to its limits will be not easy task. We think, however, that this is a difficulty of procedure, rather than substance. As pointed out by Ramendra Mohan Dutta, J. this is a matter to be sorted out in practical application rather than by laying down a hard and fast rule of exclusion. 21. A third safeguard which we would like to impose is based on the observations of this Court in Sangram Singhs case. As pointed out therein, the essence of the matter in all such cases is that the latitude that may be extended by the court to the defendant inspite of his not having filed a written statement, should not cause prejudice to the plaintiff. Where the defendant does not file a written statement or where he does not appear to contest the case the plaintiff proceeds on the basis that there is no real opposition and contents himself by letting in just enough evidence to establish a prima facie case. Therefore, the court should ensure that by permitting the defendant at a later stage either to cross-examine the witnesses or to participate in the proceeding the plaintiff is not taken by surprise or gravely prejudiced. This difficulty however can be easily overcome in practice, because there is a wide discretion with the court and it is always open to the court, where it believes that the plaintiff has been misled, to exercise its discretion to shut out cross-examination or to regulate it in such manner as to avoid any real prejudice to the interests of the plaintiff. 22. An objection to our above conclusion has been raised on the basis of the provisions of Order VIII of the CPC. Rules 1, 5 and 10 of this Order have been recently amended by the Amendment Act of 1976. We find nothing in these rules which will support the contention urged on behalf of the respondents. Rule 1 merely requires that the defendant should present a written statement of his defence within the time permitted by the court. Under Rule 5(2), where the defendant has not filed a pleading it shall be lawful for the court to pronounce judgment on the basis of the facts contained in the plaint except against a person under disability but the court may in its discretion require any such fact to be proved. Again under Rule 0 when any party from whom a written statement is required fails to present the same within the time permitted or fixed by the court, the court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit. It will be seen that these rules are only permissive in nature. They enable the court in an appropriate case to pronounce a decree straightaway on the basis of the plaint and the averments contained therein. Though the present language of Rule 0 says that the court shall pronounce judgment against him, it is obvious from the language of the rule that there is still an option with the court either to pronounce judgment on the basis of the plaint against the defendant or to make such other appropriate order as the court may think fit. Therefore, there is nothing in these rules, which makes it mandatory for the court to pass a decree in favour of the plaintiff straightaway because a written statement has not been filed. Reference was made before us to Sub-rule 1 of Rule 5. This Sub-rule, however, has application only in a case where a pleading is filed but does not contain a specific or implicit denial of the averments contained in the plaint or other document to which it is a reply. Rule 5(1) cannot be made use of to sustain the contention that where there is no written statement the court is bound to accept the statements contained in the plaint and pass a decree straightaway. These provisions of the CPC, far from supporting the contentions of the plaintiff that a decree on the basis of the plaint should follow a failure to file the written statement, rather indicate a contrary position, namely, that even in such cases, it is a matter for the court to exercise a discretion as to the manner in which the further proceedings should take place. We, therefore, do not think that the terms of Order VIII in any way conflict with the conclusion reached by us. | 1[ds]14. We have considered the contentions urged on behalf of both the parties and the respective view points of the two lines of decisions of the High Court. We have also perused the decisions of this Court to which reference has been made. Though none of them is a direct decision on the issue before us, the observations made, in so far as they enunciate general principles and relate to analogous statutory provisions are most helpful and instructive. After giving careful thought to all the aspects, we have come to the conclusion that the view expressed in the case under appeal by Ramendra Mohan Dutta, Acting Chief Justice, is preferable to the view taken by the other two learned Judges. It is a more liberal and equitable view and also one consistent with the requirements of justice in such cases. We proceed now to set out the reasons for our conclusion.15. A provision like the one in Section 17(4) is a provision in terrorem. It penalises the defendant for certain defaults of his. As pointed out by the decisions earlier referred to, the court will act with great circumspection before striking out the defence of a tenant under this provision. This Court has interpreted provisions like this in rent acts to say that striking off of defence is not obligatory on the court merely because there is a default and that it is a matter for exercise of great judicial restraint. But it does not necessarily follow that, once the defence is struck off, the defendant is completely helpless and that his conduct of the case should be so crippled as to render a decree against him inevitable. To hold so would be to impose on him a punishment disproportionate to his default. The observations made by this Court, while discussing the provisions of the CPC, and the Original Side rules of the Calcutta High Court which deal with somewhat analogous situations, cannot be lightly brushed aside. Those decisions have enunciated a general equitable principle. We are also of the same view that provisions of this type should be construed strictly and that the disabilities of a person in default should be limited to the minimum extent consistent with the requirements of justice. This should be all the more so in the context of a tenancy legislation, the main object of which is to confer protection on tenants against eviction by the landlord, unless certain statutory conditions are fulfilled. The provisions should not be given any wider operation than could have been strictly intended by the legislature.16. It has already been noticed that, in the Calcutta High Court, there has been unanimity on the point that, even where defence is struck out, the validity of the notice under Section 13(6) is challengeable. This has been the settled view of that court for several years now which it would be inequitable to disturb after such a long time. This type of cases, however, has been sought to be distinguished on the ground that such notice is a condition precedent to the institution of the suit and cannot perhaps be described as a defence to the suit. This, however, is too tenuous a distinction. For, in truth and substance the plea regarding the validity of the notice has invariably to be taken as a plea in defence in such suits. The rule, therefore, is really an exception to the strict application of a rule that a tenant whose defence is struck off cannot be heard at all against the plea of ejectment.17. We agree that full effect should be given to the words that defence against ejectment is struck off. But does this really deprive the defendant tenant of further participation in the case in any manner? While it is true that, in a broad sense, the right of defence takes in, within its canvass, all aspects including the demolition of the plaintiffs case by the cross-examination of his witnesses, it would be equally correct to say that the cross-examination of the plaintiffs witnesses really constitutes a finishing touch which completes the plaintiffs case. It is a well established proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross-examination. The mere statement of the plaintiffs witnesses cannot constitute the plaintiffs evidence in the case unless and until it is tested by cross-examination. The right of the defence to cross-examine the plaintiffs witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiffs evidence cannot be acted upon. Looked at from this point of view it should be possible to take the view that, though the defence of the tenant has been struck out, there is nothing in law to preclude him from demonstrating to the court that the plaintiffs witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfill the terms of the statute.18. To us it appears that the basic principle that where a plaintiff comes to the court he must prove his case should not be whittled down even in a case where no defendant appears. It will at once be clear that to say that the Court can only do this by looking the plaintiffs evidence and pleadings supplemented by such questions as the court may consider necessary and to completely eliminate any type of assistance from the defendant in this task will place the court under a great handicap in discovering the truth or otherwise of the plaintiffs statements. For after all, the court on its own motion, can do very little to ascertain the truth or otherwise of the plaintiffs averments and it is only the opposite party that will be more familiar with the detailed facts of a particular case and that can assist the court in pointing out defects, weaknesses, errors and inconsistencies of the plaintiffs case.19. We, therefore, think that the defendant should be allowed his right of cross-examination and arguments. But we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his own evidence. None of the observations or decisions cited have gone to the extent of suggesting that, inspite of the fact that the defence has been struck off, the defendant can adduce evidence of his own or try to substantiate his own case.20. Secondly, there is force in the apprehension that if one permits cross-examination of the plaintiffs witnesses by the defendant whose defence is struck off, procedural chaos may result unless great case is exercised and that it may be very difficult to keep the cross-examination within the limits of the principles discussed earlier. Under the guise of cross-examination and purported demolition of the plaintiffs case, the defendant may attempt to put forward pleas of his own. To perceive quickly the difference between questions put out to elicit a reply from the plaintiff which may derogate from his own case and questions put out to substantiate pleas in defence which the defendant may have in mind and to restrict the cross-examination to its limits will be not easy task. We think, however, that this is a difficulty of procedure, rather than substance. As pointed out by Ramendra Mohan Dutta, J. this is a matter to be sorted out in practical application rather than by laying down a hard and fast rule of exclusion.21. A third safeguard which we would like to impose is based on the observations of this Court in Sangram Singhs case. As pointed out therein, the essence of the matter in all such cases is that the latitude that may be extended by the court to the defendant inspite of his not having filed a written statement, should not cause prejudice to the plaintiff. Where the defendant does not file a written statement or where he does not appear to contest the case the plaintiff proceeds on the basis that there is no real opposition and contents himself by letting in just enough evidence to establish a prima facie case. Therefore, the court should ensure that by permitting the defendant at a later stage either to cross-examine the witnesses or to participate in the proceeding the plaintiff is not taken by surprise or gravely prejudiced. This difficulty however can be easily overcome in practice, because there is a wide discretion with the court and it is always open to the court, where it believes that the plaintiff has been misled, to exercise its discretion to shut out cross-examination or to regulate it in such manner as to avoid any real prejudice to the interests of the plaintiff.22. An objection to our above conclusion has been raised on the basis of the provisions of Order VIII of the CPC. Rules 1, 5 and 10 of this Order have been recently amended by the Amendment Act of 1976. We find nothing in these rules which will support the contention urged on behalf of the respondents. Rule 1 merely requires that the defendant should present a written statement of his defence within the time permitted by the court. Under Rule 5(2), where the defendant has not filed a pleading it shall be lawful for the court to pronounce judgment on the basis of the facts contained in the plaint except against a person under disability but the court may in its discretion require any such fact to be proved. Again under Rule 0 when any party from whom a written statement is required fails to present the same within the time permitted or fixed by the court, the court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit. It will be seen that these rules are only permissive in nature. They enable the court in an appropriate case to pronounce a decree straightaway on the basis of the plaint and the averments contained therein. Though the present language of Rule 0 says that the court shall pronounce judgment against him, it is obvious from the language of the rule that there is still an option with the court either to pronounce judgment on the basis of the plaint against the defendant or to make such other appropriate order as the court may think fit. Therefore, there is nothing in these rules, which makes it mandatory for the court to pass a decree in favour of the plaintiff straightaway because a written statement has not been filed. Reference was made before us to Sub-rule 1 of Rule 5. This Sub-rule, however, has application only in a case where a pleading is filed but does not contain a specific or implicit denial of the averments contained in the plaint or other document to which it is a reply. Rule 5(1) cannot be made use of to sustain the contention that where there is no written statement the court is bound to accept the statements contained in the plaint and pass a decree straightaway. These provisions of the CPC, far from supporting the contentions of the plaintiff that a decree on the basis of the plaint should follow a failure to file the written statement, rather indicate a contrary position, namely, that even in such cases, it is a matter for the court to exercise a discretion as to the manner in which the further proceedings should take place. We, therefore, do not think that the terms of Order VIII in any way conflict with the conclusion reached by us. | 1 | 11,361 | 2,089 | ### 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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its own motion, can do very little to ascertain the truth or otherwise of the plaintiffs averments and it is only the opposite party that will be more familiar with the detailed facts of a particular case and that can assist the court in pointing out defects, weaknesses, errors and inconsistencies of the plaintiffs case. 19. We, therefore, think that the defendant should be allowed his right of cross-examination and arguments. But we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his own evidence. None of the observations or decisions cited have gone to the extent of suggesting that, inspite of the fact that the defence has been struck off, the defendant can adduce evidence of his own or try to substantiate his own case. 20. Secondly, there is force in the apprehension that if one permits cross-examination of the plaintiffs witnesses by the defendant whose defence is struck off, procedural chaos may result unless great case is exercised and that it may be very difficult to keep the cross-examination within the limits of the principles discussed earlier. Under the guise of cross-examination and purported demolition of the plaintiffs case, the defendant may attempt to put forward pleas of his own. To perceive quickly the difference between questions put out to elicit a reply from the plaintiff which may derogate from his own case and questions put out to substantiate pleas in defence which the defendant may have in mind and to restrict the cross-examination to its limits will be not easy task. We think, however, that this is a difficulty of procedure, rather than substance. As pointed out by Ramendra Mohan Dutta, J. this is a matter to be sorted out in practical application rather than by laying down a hard and fast rule of exclusion. 21. A third safeguard which we would like to impose is based on the observations of this Court in Sangram Singhs case. As pointed out therein, the essence of the matter in all such cases is that the latitude that may be extended by the court to the defendant inspite of his not having filed a written statement, should not cause prejudice to the plaintiff. Where the defendant does not file a written statement or where he does not appear to contest the case the plaintiff proceeds on the basis that there is no real opposition and contents himself by letting in just enough evidence to establish a prima facie case. Therefore, the court should ensure that by permitting the defendant at a later stage either to cross-examine the witnesses or to participate in the proceeding the plaintiff is not taken by surprise or gravely prejudiced. This difficulty however can be easily overcome in practice, because there is a wide discretion with the court and it is always open to the court, where it believes that the plaintiff has been misled, to exercise its discretion to shut out cross-examination or to regulate it in such manner as to avoid any real prejudice to the interests of the plaintiff. 22. An objection to our above conclusion has been raised on the basis of the provisions of Order VIII of the CPC. Rules 1, 5 and 10 of this Order have been recently amended by the Amendment Act of 1976. We find nothing in these rules which will support the contention urged on behalf of the respondents. Rule 1 merely requires that the defendant should present a written statement of his defence within the time permitted by the court. Under Rule 5(2), where the defendant has not filed a pleading it shall be lawful for the court to pronounce judgment on the basis of the facts contained in the plaint except against a person under disability but the court may in its discretion require any such fact to be proved. Again under Rule 0 when any party from whom a written statement is required fails to present the same within the time permitted or fixed by the court, the court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit. It will be seen that these rules are only permissive in nature. They enable the court in an appropriate case to pronounce a decree straightaway on the basis of the plaint and the averments contained therein. Though the present language of Rule 0 says that the court shall pronounce judgment against him, it is obvious from the language of the rule that there is still an option with the court either to pronounce judgment on the basis of the plaint against the defendant or to make such other appropriate order as the court may think fit. Therefore, there is nothing in these rules, which makes it mandatory for the court to pass a decree in favour of the plaintiff straightaway because a written statement has not been filed. Reference was made before us to Sub-rule 1 of Rule 5. This Sub-rule, however, has application only in a case where a pleading is filed but does not contain a specific or implicit denial of the averments contained in the plaint or other document to which it is a reply. Rule 5(1) cannot be made use of to sustain the contention that where there is no written statement the court is bound to accept the statements contained in the plaint and pass a decree straightaway. These provisions of the CPC, far from supporting the contentions of the plaintiff that a decree on the basis of the plaint should follow a failure to file the written statement, rather indicate a contrary position, namely, that even in such cases, it is a matter for the court to exercise a discretion as to the manner in which the further proceedings should take place. We, therefore, do not think that the terms of Order VIII in any way conflict with the conclusion reached by us.
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1
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all, the court on its own motion, can do very little to ascertain the truth or otherwise of the plaintiffs averments and it is only the opposite party that will be more familiar with the detailed facts of a particular case and that can assist the court in pointing out defects, weaknesses, errors and inconsistencies of the plaintiffs case.19. We, therefore, think that the defendant should be allowed his right of cross-examination and arguments. But we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his own evidence. None of the observations or decisions cited have gone to the extent of suggesting that, inspite of the fact that the defence has been struck off, the defendant can adduce evidence of his own or try to substantiate his own case.20. Secondly, there is force in the apprehension that if one permits cross-examination of the plaintiffs witnesses by the defendant whose defence is struck off, procedural chaos may result unless great case is exercised and that it may be very difficult to keep the cross-examination within the limits of the principles discussed earlier. Under the guise of cross-examination and purported demolition of the plaintiffs case, the defendant may attempt to put forward pleas of his own. To perceive quickly the difference between questions put out to elicit a reply from the plaintiff which may derogate from his own case and questions put out to substantiate pleas in defence which the defendant may have in mind and to restrict the cross-examination to its limits will be not easy task. We think, however, that this is a difficulty of procedure, rather than substance. As pointed out by Ramendra Mohan Dutta, J. this is a matter to be sorted out in practical application rather than by laying down a hard and fast rule of exclusion.21. A third safeguard which we would like to impose is based on the observations of this Court in Sangram Singhs case. As pointed out therein, the essence of the matter in all such cases is that the latitude that may be extended by the court to the defendant inspite of his not having filed a written statement, should not cause prejudice to the plaintiff. Where the defendant does not file a written statement or where he does not appear to contest the case the plaintiff proceeds on the basis that there is no real opposition and contents himself by letting in just enough evidence to establish a prima facie case. Therefore, the court should ensure that by permitting the defendant at a later stage either to cross-examine the witnesses or to participate in the proceeding the plaintiff is not taken by surprise or gravely prejudiced. This difficulty however can be easily overcome in practice, because there is a wide discretion with the court and it is always open to the court, where it believes that the plaintiff has been misled, to exercise its discretion to shut out cross-examination or to regulate it in such manner as to avoid any real prejudice to the interests of the plaintiff.22. An objection to our above conclusion has been raised on the basis of the provisions of Order VIII of the CPC. Rules 1, 5 and 10 of this Order have been recently amended by the Amendment Act of 1976. We find nothing in these rules which will support the contention urged on behalf of the respondents. Rule 1 merely requires that the defendant should present a written statement of his defence within the time permitted by the court. Under Rule 5(2), where the defendant has not filed a pleading it shall be lawful for the court to pronounce judgment on the basis of the facts contained in the plaint except against a person under disability but the court may in its discretion require any such fact to be proved. Again under Rule 0 when any party from whom a written statement is required fails to present the same within the time permitted or fixed by the court, the court shall pronounce judgment against him or make such order in relation to the suit as it thinks fit. It will be seen that these rules are only permissive in nature. They enable the court in an appropriate case to pronounce a decree straightaway on the basis of the plaint and the averments contained therein. Though the present language of Rule 0 says that the court shall pronounce judgment against him, it is obvious from the language of the rule that there is still an option with the court either to pronounce judgment on the basis of the plaint against the defendant or to make such other appropriate order as the court may think fit. Therefore, there is nothing in these rules, which makes it mandatory for the court to pass a decree in favour of the plaintiff straightaway because a written statement has not been filed. Reference was made before us to Sub-rule 1 of Rule 5. This Sub-rule, however, has application only in a case where a pleading is filed but does not contain a specific or implicit denial of the averments contained in the plaint or other document to which it is a reply. Rule 5(1) cannot be made use of to sustain the contention that where there is no written statement the court is bound to accept the statements contained in the plaint and pass a decree straightaway. These provisions of the CPC, far from supporting the contentions of the plaintiff that a decree on the basis of the plaint should follow a failure to file the written statement, rather indicate a contrary position, namely, that even in such cases, it is a matter for the court to exercise a discretion as to the manner in which the further proceedings should take place. We, therefore, do not think that the terms of Order VIII in any way conflict with the conclusion reached by us.
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Shri Birdhichand Sharma Vs. First Civil Judge Nagpur And Others | to reject such biris as do not come up to the proper standard. It is on these facts that we have to decide the question whether respondents 2 to 4 were employed by the appellant. 6. It will be immediately noticed that the facts in this case are substantially different from the facts in Shri Chintaman Raos case, 1958 SCR 1340 : (AIR 1958 SC 388 ). In that case the factory entered into contracts with independent contractors, namely, the Sattedars, for the supply of biris. The Sattedars were supplied tobacco by the factories and in some cases biri leaves also. The Sattedars were not bound to work in the factory nor were they bound to prepare the biris themselves but could get them prepared by others. The Sattedars also employed some coolies to work for them and payment to the coolies was made by the Sattedars and not by the factory. The Sattedars in their turn collected the biris prepared by the coolies and took them to the factory where they were sorted and checked by the workers of the factory and such of them as were rejected were taken back by the Sattedars to be re-made. The payment by the factory was to the Sattedars and not to the coolies. In these circumstances it was held that the Sattedars were independent contractors and the coolies who worked for them were not the workers of the factory. 7. The facts of the present case, however, are different. Respondents 2 to 4 have to work at the factory and that in itself implies a certain amount of supervision by the management. Their attendance is noted and they cannot get the work done by others but must do it themselves. Even though they are not bound to work for the entire period during which the factory is open it is not in dispute that if they come after midday, they are not given any work and thus lose wages for that day, the payment being at piece-rates. Further though they can stay away without asking for leave, the management has the right to remove them if they so stay away for a continuous period of eight days. Lastly, there is some amount of supervision inasmuch as the management has the right of rejection of the biris prepared if they do not come up to the proper standard. 8. The question therefore that arises is whether in these circumstances it can be said whether the appellant merely directs what work is to be done but cannot control the manner in which it has to be done; of course, the nature or extent of control varies in different industries and cannot by its very nature be precisely defined. Taking the nature of the work in the present case it can hardly be said that there must be supervision all the time when biris are being prepared and unless there is such supervision there can be no direction as to the manner of work. In the present case the operation being a simple one, the control of the manner in which the work is done is exercised at the end of the day, when biris are ready, by the method of rejecting those which do not come up to the proper standard. In such a case it is the right to supervise and not so much the mode in which it is exercised which is important. In these circumstances, we are of opinion that respondents 2 to 4 work in this factory cannot be said to be independent contractors. The limited freedom which respondents 2 to 4 have of coming and going away whenever they like or of absenting themselves (presumably without leave) is due to the fact that they are piece-rate workers; but the mere fact that a worker is a piece-rate worker would not necessarily take him out of the category of a worker within the meaning of S. 2(1) of the Factories Act. Considering the entire circumstances and particularly the facts that if the worker does not reach the factory before midday he is given no work, he is to work at the factory and cannot work elsewhere, he can be removed if he is absent for eight days continuously and finally his attendance is noted and biris prepared by him are liable to rejection if they do not come upto the standard, there can be no doubt that respondents 2 to 4 are workers within the meaning of S. 2(1) of the Factories Act.This is also the view taken by the Bombay High Court in State v. Shankar Balaji Wale, AIR 1960 Bom 296 in similar circumstances and that we think is the right view. 9. Then it was urged that even if the respondents are workers under S. 2(1), S. 79 should not be applied to them as they can absent themselves whenever they like. In this very case it is said that the respondents remained absent for a longer period than that provided in the Act and therefore they do not need any leave. This argument has in our opinion no force. The leave provided under S. 79 arises as a matter of right when a worker has put in a minimum number of working days and he is entitled to it. The fact that the respondents remained absent for a longer period than that provided in S. 79 has no bearing on their right to leave, for it they so remained absent for such period they lost the wages for that period which they would have otherwise earned. That however does not mean that they should also lose the leave earned by them under S. 79. In the circumstances they were entitled under S. 79 of the Factories Act to proportionate leave during the subsequent calendar year if they had worked during the previous calendar year for 240 days or more in the factory. There is nothing on the record to show that this was not so. | 0[ds]Taking the nature of the work in the present case it can hardly be said that there must be supervision all the time when biris are being prepared and unless there is such supervision there can be no direction as to the manner of work. In the present case the operation being a simple one, the control of the manner in which the work is done is exercised at the end of the day, when biris are ready, by the method of rejecting those which do not come up to the proper standard. In such a case it is the right to supervise and not so much the mode in which it is exercised which is important. In these circumstances, we are of opinion that respondents 2 to 4 work in this factory cannot be said to be independent contractors. The limited freedom which respondents 2 to 4 have of coming and going away whenever they like or of absenting themselves (presumably without leave) is due to the fact that they are piece-rate workers; but the mere fact that a worker is a piece-rate worker would not necessarily take him out of the category of a worker within the meaning of S. 2(1) of the Factories Act. Considering the entire circumstances and particularly the facts that if the worker does not reach the factory before midday he is given no work, he is to work at the factory and cannot work elsewhere, he can be removed if he is absent for eight days continuously and finally his attendance is noted and biris prepared by him are liable to rejection if they do not come upto the standard, there can be no doubt that respondents 2 to 4 are workers within the meaning of S. 2(1) of the Factories Act9. Then it was urged that even if the respondents are workers under S. 2(1), S. 79 should not be applied to them as they can absent themselves whenever they like. In this very case it is said that the respondents remained absent for a longer period than that provided in the Act and therefore they do not need any leave. This argument has in our opinion no force. The leave provided under S. 79 arises as a matter of right when a worker has put in a minimum number of working days and he is entitled to it. The fact that the respondents remained absent for a longer period than that provided in S. 79 has no bearing on their right to leave, for it they so remained absent for such period they lost the wages for that period which they would have otherwise earned. That however does not mean that they should also lose the leave earned by them under S. 79. In the circumstances they were entitled under S. 79 of the Factories Act to proportionate leave during the subsequent calendar year if they had worked during the previous calendar year for 240 days or more in the factory. There is nothing on the record to show that this was not so. | 0 | 2,168 | 554 | ### 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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to reject such biris as do not come up to the proper standard. It is on these facts that we have to decide the question whether respondents 2 to 4 were employed by the appellant. 6. It will be immediately noticed that the facts in this case are substantially different from the facts in Shri Chintaman Raos case, 1958 SCR 1340 : (AIR 1958 SC 388 ). In that case the factory entered into contracts with independent contractors, namely, the Sattedars, for the supply of biris. The Sattedars were supplied tobacco by the factories and in some cases biri leaves also. The Sattedars were not bound to work in the factory nor were they bound to prepare the biris themselves but could get them prepared by others. The Sattedars also employed some coolies to work for them and payment to the coolies was made by the Sattedars and not by the factory. The Sattedars in their turn collected the biris prepared by the coolies and took them to the factory where they were sorted and checked by the workers of the factory and such of them as were rejected were taken back by the Sattedars to be re-made. The payment by the factory was to the Sattedars and not to the coolies. In these circumstances it was held that the Sattedars were independent contractors and the coolies who worked for them were not the workers of the factory. 7. The facts of the present case, however, are different. Respondents 2 to 4 have to work at the factory and that in itself implies a certain amount of supervision by the management. Their attendance is noted and they cannot get the work done by others but must do it themselves. Even though they are not bound to work for the entire period during which the factory is open it is not in dispute that if they come after midday, they are not given any work and thus lose wages for that day, the payment being at piece-rates. Further though they can stay away without asking for leave, the management has the right to remove them if they so stay away for a continuous period of eight days. Lastly, there is some amount of supervision inasmuch as the management has the right of rejection of the biris prepared if they do not come up to the proper standard. 8. The question therefore that arises is whether in these circumstances it can be said whether the appellant merely directs what work is to be done but cannot control the manner in which it has to be done; of course, the nature or extent of control varies in different industries and cannot by its very nature be precisely defined. Taking the nature of the work in the present case it can hardly be said that there must be supervision all the time when biris are being prepared and unless there is such supervision there can be no direction as to the manner of work. In the present case the operation being a simple one, the control of the manner in which the work is done is exercised at the end of the day, when biris are ready, by the method of rejecting those which do not come up to the proper standard. In such a case it is the right to supervise and not so much the mode in which it is exercised which is important. In these circumstances, we are of opinion that respondents 2 to 4 work in this factory cannot be said to be independent contractors. The limited freedom which respondents 2 to 4 have of coming and going away whenever they like or of absenting themselves (presumably without leave) is due to the fact that they are piece-rate workers; but the mere fact that a worker is a piece-rate worker would not necessarily take him out of the category of a worker within the meaning of S. 2(1) of the Factories Act. Considering the entire circumstances and particularly the facts that if the worker does not reach the factory before midday he is given no work, he is to work at the factory and cannot work elsewhere, he can be removed if he is absent for eight days continuously and finally his attendance is noted and biris prepared by him are liable to rejection if they do not come upto the standard, there can be no doubt that respondents 2 to 4 are workers within the meaning of S. 2(1) of the Factories Act.This is also the view taken by the Bombay High Court in State v. Shankar Balaji Wale, AIR 1960 Bom 296 in similar circumstances and that we think is the right view. 9. Then it was urged that even if the respondents are workers under S. 2(1), S. 79 should not be applied to them as they can absent themselves whenever they like. In this very case it is said that the respondents remained absent for a longer period than that provided in the Act and therefore they do not need any leave. This argument has in our opinion no force. The leave provided under S. 79 arises as a matter of right when a worker has put in a minimum number of working days and he is entitled to it. The fact that the respondents remained absent for a longer period than that provided in S. 79 has no bearing on their right to leave, for it they so remained absent for such period they lost the wages for that period which they would have otherwise earned. That however does not mean that they should also lose the leave earned by them under S. 79. In the circumstances they were entitled under S. 79 of the Factories Act to proportionate leave during the subsequent calendar year if they had worked during the previous calendar year for 240 days or more in the factory. There is nothing on the record to show that this was not so.
### Response:
0
### Explanation:
Taking the nature of the work in the present case it can hardly be said that there must be supervision all the time when biris are being prepared and unless there is such supervision there can be no direction as to the manner of work. In the present case the operation being a simple one, the control of the manner in which the work is done is exercised at the end of the day, when biris are ready, by the method of rejecting those which do not come up to the proper standard. In such a case it is the right to supervise and not so much the mode in which it is exercised which is important. In these circumstances, we are of opinion that respondents 2 to 4 work in this factory cannot be said to be independent contractors. The limited freedom which respondents 2 to 4 have of coming and going away whenever they like or of absenting themselves (presumably without leave) is due to the fact that they are piece-rate workers; but the mere fact that a worker is a piece-rate worker would not necessarily take him out of the category of a worker within the meaning of S. 2(1) of the Factories Act. Considering the entire circumstances and particularly the facts that if the worker does not reach the factory before midday he is given no work, he is to work at the factory and cannot work elsewhere, he can be removed if he is absent for eight days continuously and finally his attendance is noted and biris prepared by him are liable to rejection if they do not come upto the standard, there can be no doubt that respondents 2 to 4 are workers within the meaning of S. 2(1) of the Factories Act9. Then it was urged that even if the respondents are workers under S. 2(1), S. 79 should not be applied to them as they can absent themselves whenever they like. In this very case it is said that the respondents remained absent for a longer period than that provided in the Act and therefore they do not need any leave. This argument has in our opinion no force. The leave provided under S. 79 arises as a matter of right when a worker has put in a minimum number of working days and he is entitled to it. The fact that the respondents remained absent for a longer period than that provided in S. 79 has no bearing on their right to leave, for it they so remained absent for such period they lost the wages for that period which they would have otherwise earned. That however does not mean that they should also lose the leave earned by them under S. 79. In the circumstances they were entitled under S. 79 of the Factories Act to proportionate leave during the subsequent calendar year if they had worked during the previous calendar year for 240 days or more in the factory. There is nothing on the record to show that this was not so.
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Asstt. Commissioner Vs. Velliappa Textiles Ltd | been examined by some of the High Courts. In Municipal Corporation vs. Delhi vs. J.B. Bottling Co. 1975 Crl. L.J. 1148 a Full Bench of Delhi High Court held that the conviction of a company under Section 16 Prevention of Food Adulteration Act and award of fine only would be perfectly valid even though it cannot be sentenced to imprisonment which was the mandatory requirement of law. Similar view was taken by a Full Bench of Allahabad High Court in Oswal Vanaspati & Allied Industries vs. State of U.P. (1993) 1 Company Law Journal 172 and it was held that a company cannot enjoy immunity from prosecution on the ground that mandatory punishment of imprisonment cannot be awarded to it. In both these cases it was held that the company can be prosecuted and if found guilty a sentence of fine alone can be awarded. In Manian Transports vs. S. Krishnamurthy (1991) 72 Company Cases 746 it was held by a learned Single Judge of Madras High Court that a company or firm can be prosecuted under Section 276C and 277 of the Act and if convicted a sentence of fine alone could be awarded. I am of the opinion that the view taken in these cases is the legally correct view. 19. Proof of mens rea or guilty mind is not absolutely essential in every case. In P.K. Tejani vs. M.R. Dange AIR 1974 SC 228 , a Constitution Bench held that in food offences strict liability is the rule. In Sarjoo Prasad vs. State of U.P. AIR 1961 SC 631 and Ashu Jaiwant vs. State of Maharashtra AIR 1975 SC 2175 it was clearly held that mens rea in the ordinary or usual sense of term is not required for proof of offence under Section 7 P.F. Act and it is enough if the articles sold or distributed contravene any provision of the Act or the Rules. Same principle applies for offences under Section 7 Essential Commodities Act, namely, mens rea or knowledge are not essential ingredients. (See State of M.P. vs. Narayan Singh (AIR 1989 SC 1789 ). In Radhey Shyam Khemka and Anr. vs. State of Bihar, 1993 (3) SCC 54 it has been held that there is a basic difference between offences under the Penal Code and acts and omissions which have been made punishable under different Acts and Statutes. It has been further held that for framing charges in respect of those acts and omissions, in many cases, mens rea is not an essential ingredient; the concerned statute imposes a duty on those who are in charge of the management, to follow the statutory provisions and once there is a breach or contravention, such persons become liable for punishment. 20. In M.V. Javali vs. Mahajan Borewell & Co. and others 1997 (8) SCC 72 this Court after examining the question of maintainability of prosecution against a company and the nature of sentence to be imposed on it and the individuals liable for the offence, held as under: "From a plain reading of Section 276-B of the IT Act, it is manifest that if an offence under the Act is committed by a company the persons who are liable to be proceeded against and punished are: (i) the company (which includes a firm); (ii) every person, who at the time the offence was committed, was in charge, of, and was responsible to the company for the conduct of the business; and (iii) any director (who is relation to a firm means a partner), manager, secretary or other officer of the company with whose consent or connivance or because of neglect attributable to whom, the offence has been committed. The words ‘as well as the company’ appearing in the section also make it unmistakably clear that the company alone can be prosecuted and punished even if the persons mentioned in categories (ii) and (iii), who are for all intents and purposes, vicariously liable for the offence, are not arraigned, for it is the company which is primarily guilty of the offence.Even though in view of Section 278-B, a company can be prosecuted and punished for an offence committed under Section 276-B (besides other offences under the Act), the sentence of imprisonment which has got to be imposed thereunder cannot be imposed, it being a juristic person. This apparent anomalous situation can be resolved only by a proper interpretation of section. Keeping in view the recommendations contained in paras 8.1 and 8.3 of 47th Report of Law Commission of India and principles of interpretation, the only harmonious construction that can be given to Section 276-B is that the mandatory sentence of imprisonment and fine is to be imposed where it can be imposed, namely on persons coming under categories (ii) and (iii) above, but where it cannot be imposed, namely on a company, fine will be the only imprisonment." 21. Courts would be shirking their responsibility of imparting justice by holding that prosecution of a company is unsustainable merely on the ground that being juristic person it cannot be sent to jail to undergo the sentence. Companies are growing in size and have huge resources and finances at their command. In the course of their business activity they may sometimes commit breach of the law of the land or endanger other’s lives. More than four thousand people lost life and thousands others suffered permanent impairment in Bhopal on account of gross criminal act of a multinational corporation. It will be wholly wrong to allow a company to go away scot free without even being prosecuted in the event of commission of a crime only on the ground that it cannot be made to suffer part of the mandatory punishment. 22. In view of the discussion made above, I am of the opinion that the view taken by the High Court is wholly erroneous in law. The appeal accordingly deserves to be allowed and the judgment and order of the High Court is liable to be set aside.ORDER | 0[ds]4. It is a basic principle of criminal jurisprudence that a penal statute is to be construed strictly. If the act alleged against the accused does not fall within the parameters of the offence described in the statute the accused cannot be held liable. There is no scope for intendment based on the general purpose or object of law. If the Legislature has left a lacuna, it is not open to the Court to paper it over on some presumed intention of the Legislature.The maxim "Judicis est jus dicere, non dare" pithily expounds the duty of the Court. It is to decide what the law is and apply it; not to make it.6. The question of criminal liability of a juristic person has troubled Legislatures and Judges for long. Though, initially, it was supposed that a Corporation could not be held liable criminally for offences where mens rea was requisite, the current judicial thinking appears to be that the mens rea of the person in-charge of the affairs of the Corporation, the alter ego, is liable to be extrapolated to the Corporation, enabling even an artificial person to be prosecuted for such an offence. I am fully in agreement with the view expressed on this aspect of the matter in the judgment of brother Mathur, J. What troubles me is the question whether a Corporation can be prosecuted for an offence even when the punishment is a mandatory sentence of imprisonment.recommendations focussed on the fact that the law as it exists renders it impossible for a court of law to convict a Corporation where the statute mandates a minimum term of imprisonment plus fine. It would not be open to the court of law to hold that a Corporation would be found guilty and sentenced only to a fine for that would be re-writing the statute and exercising a discretion not vested in the court by the statute. It is precisely for this reason that the Law Commission recommended that where the offence is punishable with imprisonment, or with imprisonment and fine, and the offender is a corporation, the Court should be empowered to sentence such an offender to fine only. These recommendations have not been acted upon, though several other recommendations made by the 47th Report of the Law Commission have been accepted and implemented by Parliament vide the Taxation Laws (Amendment) Act, 1975. Hence, the state of law as noticed by the Law Commission continues.Though, Javali, (supra) refers to the recommendations of 47th report of the Law Commission of India dated 28.2.1972 in support of its view, I find it difficult to agree with its reasoning. The report of the Law Commission indicates a lacuna in the law and suggests a possible remedy by amending the law. Since the function of the court of law is jus dicere and not jus dare, the court of law cannot read the recommendations of the Law Commission as justifying an interpretation of the Section in tune with them, even when the words of the Section are plain and unambiguous. Though Javali (supra) also refers to the general principles of interpretation of statutes, the rule of interpretation of criminal statutes is altogether a different cup of tea. It is not open to the court to add something to or read something in the statute on the basis of some supposed intendment of the statute. It is not the function of this Court to supply the casus omissus, if there be one. As long as the presumption of innocence of the accused prevails in this country, the benefit of any lacuna or casus omissus must be given to the accused. The job of plugging the loopholes must strictly be left to the legislature and not assumed by thethe legislature has granted discretion to the court in the matter of sentencing it is open to the court to use its discretion. Where, however, the legislature, for reasons of policy, has done away with this discretion, it is not open to the court to impose only a part of the sentence prescribed by the legislature, for that would amount re-writing the provisions of the statute.I am of the view that the Court should be slow in interpreting a penal statute in a manner which would amount to virtual re-writing of the statute to prejudice to the accused.A court cannot breach a casus omissus and no canon of construction permits the court to supply a lacuna in a statute; nor can courts of law fill up the lacuna in an ill-drafted and hasty legislation.The observations in Tolaram Relumal & Anr. vs. The State of Bombay (AIR 1954) SC 496 ), Bijawa Kumar Agarwala vs. State of Orissa (1996) 5 SCC 1 , Sanjay Dutt vs. State through CBI, Bombay (II) (1994) 5 SCC 410 , Niranjan Singh Karam Singh Punjabi, Advocate vs. Jitendra Bhimraj Bijjaya & Others (1990) 4 SCC 76 , make it clear that while interpreting a penal statute, if more than one view is possible, the court is obliged to lean in favour of the construction which exempts a citizen from penalty than the one which imposes the penalty. The observations of Lord Esher, M.R. in formulating, "the settled rule of construction of penal Sections", that "if there is a reasonable interpretation which will avoid and penalty in any particular case, we must adopt that construction. If there are two reasonable constructions, we must given the more lenient one". (See Tuck & Sons vs. Priester (1887) 19 QBD 629 and London & Norm Eastern Railway vs. Berriman (1946) 1 All ER 255.For the aforesaid reasons, I am of the view that the first respondent company cannot be prosecuted for offences under Sections 276C, 277 and 278 read with Section 278 since each one of these Sections requires the imposition of a mandatory term of imprisonment coupled with a fine and leave no choice to the Court to impose only a | 0 | 14,048 | 1,092 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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been examined by some of the High Courts. In Municipal Corporation vs. Delhi vs. J.B. Bottling Co. 1975 Crl. L.J. 1148 a Full Bench of Delhi High Court held that the conviction of a company under Section 16 Prevention of Food Adulteration Act and award of fine only would be perfectly valid even though it cannot be sentenced to imprisonment which was the mandatory requirement of law. Similar view was taken by a Full Bench of Allahabad High Court in Oswal Vanaspati & Allied Industries vs. State of U.P. (1993) 1 Company Law Journal 172 and it was held that a company cannot enjoy immunity from prosecution on the ground that mandatory punishment of imprisonment cannot be awarded to it. In both these cases it was held that the company can be prosecuted and if found guilty a sentence of fine alone can be awarded. In Manian Transports vs. S. Krishnamurthy (1991) 72 Company Cases 746 it was held by a learned Single Judge of Madras High Court that a company or firm can be prosecuted under Section 276C and 277 of the Act and if convicted a sentence of fine alone could be awarded. I am of the opinion that the view taken in these cases is the legally correct view. 19. Proof of mens rea or guilty mind is not absolutely essential in every case. In P.K. Tejani vs. M.R. Dange AIR 1974 SC 228 , a Constitution Bench held that in food offences strict liability is the rule. In Sarjoo Prasad vs. State of U.P. AIR 1961 SC 631 and Ashu Jaiwant vs. State of Maharashtra AIR 1975 SC 2175 it was clearly held that mens rea in the ordinary or usual sense of term is not required for proof of offence under Section 7 P.F. Act and it is enough if the articles sold or distributed contravene any provision of the Act or the Rules. Same principle applies for offences under Section 7 Essential Commodities Act, namely, mens rea or knowledge are not essential ingredients. (See State of M.P. vs. Narayan Singh (AIR 1989 SC 1789 ). In Radhey Shyam Khemka and Anr. vs. State of Bihar, 1993 (3) SCC 54 it has been held that there is a basic difference between offences under the Penal Code and acts and omissions which have been made punishable under different Acts and Statutes. It has been further held that for framing charges in respect of those acts and omissions, in many cases, mens rea is not an essential ingredient; the concerned statute imposes a duty on those who are in charge of the management, to follow the statutory provisions and once there is a breach or contravention, such persons become liable for punishment. 20. In M.V. Javali vs. Mahajan Borewell & Co. and others 1997 (8) SCC 72 this Court after examining the question of maintainability of prosecution against a company and the nature of sentence to be imposed on it and the individuals liable for the offence, held as under: "From a plain reading of Section 276-B of the IT Act, it is manifest that if an offence under the Act is committed by a company the persons who are liable to be proceeded against and punished are: (i) the company (which includes a firm); (ii) every person, who at the time the offence was committed, was in charge, of, and was responsible to the company for the conduct of the business; and (iii) any director (who is relation to a firm means a partner), manager, secretary or other officer of the company with whose consent or connivance or because of neglect attributable to whom, the offence has been committed. The words ‘as well as the company’ appearing in the section also make it unmistakably clear that the company alone can be prosecuted and punished even if the persons mentioned in categories (ii) and (iii), who are for all intents and purposes, vicariously liable for the offence, are not arraigned, for it is the company which is primarily guilty of the offence.Even though in view of Section 278-B, a company can be prosecuted and punished for an offence committed under Section 276-B (besides other offences under the Act), the sentence of imprisonment which has got to be imposed thereunder cannot be imposed, it being a juristic person. This apparent anomalous situation can be resolved only by a proper interpretation of section. Keeping in view the recommendations contained in paras 8.1 and 8.3 of 47th Report of Law Commission of India and principles of interpretation, the only harmonious construction that can be given to Section 276-B is that the mandatory sentence of imprisonment and fine is to be imposed where it can be imposed, namely on persons coming under categories (ii) and (iii) above, but where it cannot be imposed, namely on a company, fine will be the only imprisonment." 21. Courts would be shirking their responsibility of imparting justice by holding that prosecution of a company is unsustainable merely on the ground that being juristic person it cannot be sent to jail to undergo the sentence. Companies are growing in size and have huge resources and finances at their command. In the course of their business activity they may sometimes commit breach of the law of the land or endanger other’s lives. More than four thousand people lost life and thousands others suffered permanent impairment in Bhopal on account of gross criminal act of a multinational corporation. It will be wholly wrong to allow a company to go away scot free without even being prosecuted in the event of commission of a crime only on the ground that it cannot be made to suffer part of the mandatory punishment. 22. In view of the discussion made above, I am of the opinion that the view taken by the High Court is wholly erroneous in law. The appeal accordingly deserves to be allowed and the judgment and order of the High Court is liable to be set aside.ORDER
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4. It is a basic principle of criminal jurisprudence that a penal statute is to be construed strictly. If the act alleged against the accused does not fall within the parameters of the offence described in the statute the accused cannot be held liable. There is no scope for intendment based on the general purpose or object of law. If the Legislature has left a lacuna, it is not open to the Court to paper it over on some presumed intention of the Legislature.The maxim "Judicis est jus dicere, non dare" pithily expounds the duty of the Court. It is to decide what the law is and apply it; not to make it.6. The question of criminal liability of a juristic person has troubled Legislatures and Judges for long. Though, initially, it was supposed that a Corporation could not be held liable criminally for offences where mens rea was requisite, the current judicial thinking appears to be that the mens rea of the person in-charge of the affairs of the Corporation, the alter ego, is liable to be extrapolated to the Corporation, enabling even an artificial person to be prosecuted for such an offence. I am fully in agreement with the view expressed on this aspect of the matter in the judgment of brother Mathur, J. What troubles me is the question whether a Corporation can be prosecuted for an offence even when the punishment is a mandatory sentence of imprisonment.recommendations focussed on the fact that the law as it exists renders it impossible for a court of law to convict a Corporation where the statute mandates a minimum term of imprisonment plus fine. It would not be open to the court of law to hold that a Corporation would be found guilty and sentenced only to a fine for that would be re-writing the statute and exercising a discretion not vested in the court by the statute. It is precisely for this reason that the Law Commission recommended that where the offence is punishable with imprisonment, or with imprisonment and fine, and the offender is a corporation, the Court should be empowered to sentence such an offender to fine only. These recommendations have not been acted upon, though several other recommendations made by the 47th Report of the Law Commission have been accepted and implemented by Parliament vide the Taxation Laws (Amendment) Act, 1975. Hence, the state of law as noticed by the Law Commission continues.Though, Javali, (supra) refers to the recommendations of 47th report of the Law Commission of India dated 28.2.1972 in support of its view, I find it difficult to agree with its reasoning. The report of the Law Commission indicates a lacuna in the law and suggests a possible remedy by amending the law. Since the function of the court of law is jus dicere and not jus dare, the court of law cannot read the recommendations of the Law Commission as justifying an interpretation of the Section in tune with them, even when the words of the Section are plain and unambiguous. Though Javali (supra) also refers to the general principles of interpretation of statutes, the rule of interpretation of criminal statutes is altogether a different cup of tea. It is not open to the court to add something to or read something in the statute on the basis of some supposed intendment of the statute. It is not the function of this Court to supply the casus omissus, if there be one. As long as the presumption of innocence of the accused prevails in this country, the benefit of any lacuna or casus omissus must be given to the accused. The job of plugging the loopholes must strictly be left to the legislature and not assumed by thethe legislature has granted discretion to the court in the matter of sentencing it is open to the court to use its discretion. Where, however, the legislature, for reasons of policy, has done away with this discretion, it is not open to the court to impose only a part of the sentence prescribed by the legislature, for that would amount re-writing the provisions of the statute.I am of the view that the Court should be slow in interpreting a penal statute in a manner which would amount to virtual re-writing of the statute to prejudice to the accused.A court cannot breach a casus omissus and no canon of construction permits the court to supply a lacuna in a statute; nor can courts of law fill up the lacuna in an ill-drafted and hasty legislation.The observations in Tolaram Relumal & Anr. vs. The State of Bombay (AIR 1954) SC 496 ), Bijawa Kumar Agarwala vs. State of Orissa (1996) 5 SCC 1 , Sanjay Dutt vs. State through CBI, Bombay (II) (1994) 5 SCC 410 , Niranjan Singh Karam Singh Punjabi, Advocate vs. Jitendra Bhimraj Bijjaya & Others (1990) 4 SCC 76 , make it clear that while interpreting a penal statute, if more than one view is possible, the court is obliged to lean in favour of the construction which exempts a citizen from penalty than the one which imposes the penalty. The observations of Lord Esher, M.R. in formulating, "the settled rule of construction of penal Sections", that "if there is a reasonable interpretation which will avoid and penalty in any particular case, we must adopt that construction. If there are two reasonable constructions, we must given the more lenient one". (See Tuck & Sons vs. Priester (1887) 19 QBD 629 and London & Norm Eastern Railway vs. Berriman (1946) 1 All ER 255.For the aforesaid reasons, I am of the view that the first respondent company cannot be prosecuted for offences under Sections 276C, 277 and 278 read with Section 278 since each one of these Sections requires the imposition of a mandatory term of imprisonment coupled with a fine and leave no choice to the Court to impose only a
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Produce Exchange Corporation Ltd Vs. Commissioner Of Income Tax | (2) of the Indian Income-tax Act.4. The Tribunal disagreed with the Appellate Assistant Commissioner. The Tribunal observed that there was complete unity of control and shares were one of a number of commodities in which the Company dealt in the ordinary course of business. There was, in the view of the Tribunal "no element of diversity or distinction or separateness about the transactions in shares." Accordingly, the tribunal upheld the claim of the appellant Company and directed that the loss be set off under S. 24 (2) of the Indian Income-tax Act then in force.5. The Tribunal referred the following question to the High Court of Calcutta:"Whether on the facts and in the circumstances of the case, the business activities of the company to wit, dealings in shares and its dealings in other commodities and selling agency on commission basis constituted the same business within the meaning of section 24 (2) of the Indian Income-tax Act?"The High Court held, following their judgment in Shree Ramesh Cotton Mills Ltd. v. Commr. of Income-tax, (1967) 64 ITR 367 that the "essential matter to be considered in determining whether the two businesses carried on by the assessee constitute the same business, is about the nature of the two commodities, the manner in which they are conducted being a secondary consideration". They observed that "unity of control or management, the employment of the same or common finance, the user of the same business premises and the record of the transactions in the same set of books of accounts are matters to be considered only when it is found that two businesses are of the same nature. Merely because the transactions in shares consist of sales and purchase as do dealings in other commodities like sugar, molasses etc. the two activities cannot be held to form one unit of business," and that the Tribunal erred in holding that because there was complete unity of control and shares formed a part of number of commodities in which the assessee dealt with, the whole trading activity formed one business.6. Section 24 (2) of the Indian Income-tax Act, 1922, as in force in the relevant years, read as follows:"Where any assessee sustains a loss of profits or gains in any year, being a previous year not earlier than the previous year for the assessment for the year ending on the 31st day of March, 1940, under the head "Profits and gains of business, profession or vocation" and the loss cannot be wholly set off under sub-section (1), the portion not so set off shall be carried forward to the following year and set off against the profits and gains, if any, of the assessee from the same business, profession or vocation for that year, and if it cannot be wholly so set off, the amount of loss not so set off shall be carried forward to the follnwing year, and so on; * * *"The section contemplated that the loss which could not be wholly set off against the other income under sub-section (1) could be carried forward to the fallowing year and set off only against the profits and gains, if any, from the same business. There was difference of opinion among the High Courts as to the meaning of the words "same business". It is unnecessary to refer to those authorities. This Court in Commr. of Income-lax, Madras v. Prithvi Insurance Co. Ltd., 63 ITR 632 = AIR 1967 SC 816 set out the test for determining whether two lines of business constitute "same business" within the meaning of S. 24 (2) at the relevant time. It was observed at p. 636:"A fairly adequate test for determining whether the two constitute the same business is furnished by what Rowlatt, J., said in Scales v. George Thompson and Co. Ltd. - "[(1927) 13 Tax Cases 83]"."Was there any inter-connection, any inter-lacing, any inter-dependence, and unity at all embracing those two businesses?""That inter-connection, inter-lacing, inter-dependence and unit are furnished in this case by the existence of common management, common business organisation, common administration, common fund and a common place of business."Applying that test in the present case there is no doubt that there is a common management of the share and stock business and other lines of business, unity of trading organization, common employees, common administration, a common fund and a common place of business.7. We need not consider whether the ultimate decision of the High Court in Shree Ramesh Cotton Mills Ltd.s case, (1967) 64 ITR 317 on which reliance was placed is correct, but we are unable to agree with the High Court that the decisive test for determining whether the two fines of business constitute the same business is the nature of the two businesses.8.In our judgment, the Tribunal was right in holding that the share business and other businesses carried on by the appellant Company constituted the same business within the meaning of S. 24 (2) as that section stood before it was amended in 1955.9. Counsel for the Commissioner contended that the Commissioner had applied under S. 66 (2) to the High Court for calling for a statement of the case from the Tribunal on the following question:"Whether there was any evidence in support of the Tribunals finding that there was complete unity of control and that shares formed a part of did commodities in which the assessee company deals regularly from year to year in the ordinary course of its business?"The High Court declined to make an order on that application calling for the statement of the case on the ground that the first question was "sufficiently comprehensive" and included inquiry into the question proposed. In our judgment the decision of the Tribunal is amply supported by the evidence which is referred to in the order of the Tribunal. Even if the question had been raised and statement of case had been called for, it could not affect the ultimate result.10. The answer to the question referred will be in the affirmative. | 1[ds]Applying that test in the present case there is no doubt that there is a common management of the share and stock business and other lines of business, unity of trading organization, common employees, common administration, a common fund and a common place of business.7. We need not consider whether the ultimate decision of the High Court in Shree Ramesh Cotton Mills Ltd.s case, (1967) 64 ITR 317 on which reliance was placed is correct, but we are unable to agree with the High Court that the decisive test for determining whether the two fines of business constitute the same business is the nature of the two businesses.8.In our judgment, the Tribunal was right in holding that the share business and other businesses carried on by the appellant Company constituted the same business within the meaning of S. 24 (2) as that section stood before it was amended in 1955.9. Counsel for the Commissioner contended that the Commissioner had applied under S. 66 (2) to the High Court for calling for a statement of the case from the Tribunal on the followingthere was any evidence in support of the Tribunals finding that there was complete unity of control and that shares formed a part of did commodities in which the assessee company deals regularly from year to year in the ordinary course of itsHigh Court declined to make an order on that application calling for the statement of the case on the ground that the first question was "sufficiently comprehensive" and included inquiry into the question proposed. In our judgment the decision of the Tribunal is amply supported by the evidence which is referred to in the order of the Tribunal. Even if the question had been raised and statement of case had been called for, it could not affect the ultimate result.10. The answer to the question referred will be in the affirmative. | 1 | 1,544 | 340 | ### Instruction:
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(2) of the Indian Income-tax Act.4. The Tribunal disagreed with the Appellate Assistant Commissioner. The Tribunal observed that there was complete unity of control and shares were one of a number of commodities in which the Company dealt in the ordinary course of business. There was, in the view of the Tribunal "no element of diversity or distinction or separateness about the transactions in shares." Accordingly, the tribunal upheld the claim of the appellant Company and directed that the loss be set off under S. 24 (2) of the Indian Income-tax Act then in force.5. The Tribunal referred the following question to the High Court of Calcutta:"Whether on the facts and in the circumstances of the case, the business activities of the company to wit, dealings in shares and its dealings in other commodities and selling agency on commission basis constituted the same business within the meaning of section 24 (2) of the Indian Income-tax Act?"The High Court held, following their judgment in Shree Ramesh Cotton Mills Ltd. v. Commr. of Income-tax, (1967) 64 ITR 367 that the "essential matter to be considered in determining whether the two businesses carried on by the assessee constitute the same business, is about the nature of the two commodities, the manner in which they are conducted being a secondary consideration". They observed that "unity of control or management, the employment of the same or common finance, the user of the same business premises and the record of the transactions in the same set of books of accounts are matters to be considered only when it is found that two businesses are of the same nature. Merely because the transactions in shares consist of sales and purchase as do dealings in other commodities like sugar, molasses etc. the two activities cannot be held to form one unit of business," and that the Tribunal erred in holding that because there was complete unity of control and shares formed a part of number of commodities in which the assessee dealt with, the whole trading activity formed one business.6. Section 24 (2) of the Indian Income-tax Act, 1922, as in force in the relevant years, read as follows:"Where any assessee sustains a loss of profits or gains in any year, being a previous year not earlier than the previous year for the assessment for the year ending on the 31st day of March, 1940, under the head "Profits and gains of business, profession or vocation" and the loss cannot be wholly set off under sub-section (1), the portion not so set off shall be carried forward to the following year and set off against the profits and gains, if any, of the assessee from the same business, profession or vocation for that year, and if it cannot be wholly so set off, the amount of loss not so set off shall be carried forward to the follnwing year, and so on; * * *"The section contemplated that the loss which could not be wholly set off against the other income under sub-section (1) could be carried forward to the fallowing year and set off only against the profits and gains, if any, from the same business. There was difference of opinion among the High Courts as to the meaning of the words "same business". It is unnecessary to refer to those authorities. This Court in Commr. of Income-lax, Madras v. Prithvi Insurance Co. Ltd., 63 ITR 632 = AIR 1967 SC 816 set out the test for determining whether two lines of business constitute "same business" within the meaning of S. 24 (2) at the relevant time. It was observed at p. 636:"A fairly adequate test for determining whether the two constitute the same business is furnished by what Rowlatt, J., said in Scales v. George Thompson and Co. Ltd. - "[(1927) 13 Tax Cases 83]"."Was there any inter-connection, any inter-lacing, any inter-dependence, and unity at all embracing those two businesses?""That inter-connection, inter-lacing, inter-dependence and unit are furnished in this case by the existence of common management, common business organisation, common administration, common fund and a common place of business."Applying that test in the present case there is no doubt that there is a common management of the share and stock business and other lines of business, unity of trading organization, common employees, common administration, a common fund and a common place of business.7. We need not consider whether the ultimate decision of the High Court in Shree Ramesh Cotton Mills Ltd.s case, (1967) 64 ITR 317 on which reliance was placed is correct, but we are unable to agree with the High Court that the decisive test for determining whether the two fines of business constitute the same business is the nature of the two businesses.8.In our judgment, the Tribunal was right in holding that the share business and other businesses carried on by the appellant Company constituted the same business within the meaning of S. 24 (2) as that section stood before it was amended in 1955.9. Counsel for the Commissioner contended that the Commissioner had applied under S. 66 (2) to the High Court for calling for a statement of the case from the Tribunal on the following question:"Whether there was any evidence in support of the Tribunals finding that there was complete unity of control and that shares formed a part of did commodities in which the assessee company deals regularly from year to year in the ordinary course of its business?"The High Court declined to make an order on that application calling for the statement of the case on the ground that the first question was "sufficiently comprehensive" and included inquiry into the question proposed. In our judgment the decision of the Tribunal is amply supported by the evidence which is referred to in the order of the Tribunal. Even if the question had been raised and statement of case had been called for, it could not affect the ultimate result.10. The answer to the question referred will be in the affirmative.
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Applying that test in the present case there is no doubt that there is a common management of the share and stock business and other lines of business, unity of trading organization, common employees, common administration, a common fund and a common place of business.7. We need not consider whether the ultimate decision of the High Court in Shree Ramesh Cotton Mills Ltd.s case, (1967) 64 ITR 317 on which reliance was placed is correct, but we are unable to agree with the High Court that the decisive test for determining whether the two fines of business constitute the same business is the nature of the two businesses.8.In our judgment, the Tribunal was right in holding that the share business and other businesses carried on by the appellant Company constituted the same business within the meaning of S. 24 (2) as that section stood before it was amended in 1955.9. Counsel for the Commissioner contended that the Commissioner had applied under S. 66 (2) to the High Court for calling for a statement of the case from the Tribunal on the followingthere was any evidence in support of the Tribunals finding that there was complete unity of control and that shares formed a part of did commodities in which the assessee company deals regularly from year to year in the ordinary course of itsHigh Court declined to make an order on that application calling for the statement of the case on the ground that the first question was "sufficiently comprehensive" and included inquiry into the question proposed. In our judgment the decision of the Tribunal is amply supported by the evidence which is referred to in the order of the Tribunal. Even if the question had been raised and statement of case had been called for, it could not affect the ultimate result.10. The answer to the question referred will be in the affirmative.
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Union Of India Vs. Tarachand Gupta & Bros | misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly".To the same effect are also the observations of Lord Pearce at page 233. R. v. Fulham Hammersmith and Kensingon Rent Tribunal, (1953) 2 All ER 4 is yet another decision of a tribunal properly embarking on or enquiry, that is, within its jurisdiction but at the end of its making an order in excess of its jurisdiction which was held to be a nullity though it was an order of the kind which it was entitled to make in a proper case.22. The principle thus is that exclusion of the jurisdiction of the civil Courts is not to be readily inferred. Such exclusion, however, is inferred where the of statute gives finality to the order of the tribunal on which it confers jurisdiction and provides for adequate remedy to do what the Courts would normally do in such a proceeding before it. Even where a statute gives finality, such a provision does not exclude cases where the provisions of the particular statute have not been complied with or the tribunal has not acted in conform with the fundamental principles of judicial procedure. The word "jurisdiction" has both a narrow and a wider meaning. In the sense of the former, it means the authority to embark upon an enquiry; in the sense of the latter it is used in several , one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act. Accordingly, a determination by a tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act, and therefore, in excess of its jurisdiction.23. The respondents licence admittedly authorised them to import goods covered by entry 295. They could, therefore, legitimately import, on the strength of that licence, all and several kinds of parts and accessories of motor cycles and scooters. The only question, therefore, before the Collector was whether the respondents licence covered the goods imported by them. i e. whether the goods were parts and accessories. If they were, the imports were legitimate and no question of their being not covered by the licence or the respondent having committed breach of Section 3 of the Imports and Exports (Control) Act or Section 167 (8) of the Sea Customs Act could possibly arise. What the Collector, however did was that he put the two consignments together and held that they made up 51 Rixe Mopeds in C. K. D. condition and were for that reason not the articles covered by entry 295 but articles prohibited under remark (ii) of entry 294. But entry 294 deals with motor cycles and scooters complete and assembled. Remark (ii) against that entry prohibits an importer who held a licence to import motor cycles and scooters from importing motor cycles and scooters in C. K. D. condition. Remark (ii) containing that prohibition had nothing to do with entry 295 which did not condition any limitations or restrictions whatsoever against imports of parts and accessories.24. That being so if an importer has imported parts and accessories, his import would be of the articles covered by entry 295 The Collector could not say, if they were so covered by entry 295, that when jumped together, they would constitute other articles namely, motor cycles and scooters in C. K. D. condition. Such a process, if adopted by the Collector, would mean that he was inserting in entry 295 a restriction which was not them. That obviously he had no power to do. Such a restriction would mean that though under a licence in respect of goods covered by entry 295 an importer could import parts and accessories of all kinds and types, he shall not import all of them but only some, so that when put together they would not make them motor cycles and scooters in C. K. D. condition. In the Present case even that was not so because he would have to buy tyres, tubes and saddles to convert them into motor cycles and scooters into C. K. D. condition. That would be tantamount to the Collector making a new entry in place of entry 295 which must mean non-compliance of that entry and acting in excess of jurisdiction during the course at his enquiry even though he had embarked upon the enquiry with judsdiction. In our view that was precisely what the collector did. This is therefore, not one of those cases where between two competing entries the statutory authority applied one or the other though in error, and where a civil court cannot interfere.25. In this view the order was in non-compliance of the provisions of the statute and, therefore, was covered by the exceptions laid down in Mask and Co.s case, 67 Ind App 222 = (AIR 1940 PC 105 ). It was not an order in respect of which the Collector was invested with jurisdiction. That being so the provision excluding the jurisdiction of civil Courts was not applicable. Indeed the order was a nullity and Article 14 of the Limitation Act of 1908 could not be applied to hold the suit time barred. Even if Article 14 applied, it would not be time-barred, it as the High Court pointed out, the date of the appellate order was taken into consideration. | 0[ds]In the absence of any restriction in entry 295, namely, that a licence in respect of goods covered by entry 295 would not be valid for import of parts and accessories which when taken together, would make them motor cycles and scooters in C. K. D. condition, the respondents could import under their licence all kinds and types of parts and accessories Therefore, the mere fact, that the goods imported by them were so complete that when put together would make them motor cycles and scooters in C.K. D. condition, would not entry 295. Were that to be so, the position would be anomalous as aptly described by the High Court Suppose that an importer were to import equal number of various parts from different countries under different indents and at different times, and the goods were to reach here in different consignments and on different dates instead of two consignments from the same country as in the present case. If the contention urged before us were to be correct, the Collector can treat them together and say that they would constitute motor cycles and scooters in C. K. D. condition. Such an approach would mean that there is in entry 295 a limitation against importation of all parts and accessories of mater. cycles and scooters. Under that contention, even if the importer had sold away the first consignment or part of it, it would still be possible for the Collector to say that had the importer desired it was possible for him to assemble all the parts and make mater cycles and scooters in C. K. D. condition. Surely, such as meaning has not to be given to entry 295 unless there is in it or in the licence a condition that a licensee is not to import parts in such a fashion that his consignments, different though they may be, when put together would make motor cycles and scooters in C. K. D. condition. Such a condition was advisedly not placed in entry 295 but was put in the entry 294 only. The reason was that import of both motor cycles and scooters as also parts and accessories thereof was permitted, of the first under entry 294 and of the other under entry 295. A trader having a licence in respect of goods covered by entry 294 could import assembled motor cycles and scooters, but not those vehicles in C. K. D. condition unless he was a manufacturer and had obtained a separate licence therefor from the Controller of Imports who, as aforesaid, was authorised to issue such a licence on an ad hoc basis. Thus the restriction not to import motor cycles and scooters in C. K. D. condition was against an importer holding a licence in respect of goods covered by entry 294 under which he could import complete motor cycles and scooters and not against an importer who had a licence to import parts md accessories under entry 295.14. If Dr. Syed Mohameds contention were to be right we would have to import remark (ii) against entry 294 into entry 295, a thing which obviously is not permissible while construing these entries. Further, such a condition if one were to be implied in entry 295, would not fit in as it is a restriction against import of motor cycles and scooters m C. K. D. condition and not their parts and accessories. There is therefore, no question of a licensee under entry 295 doing indirectly what he was not allowed to do directly. What he was not allowed to do directly was importing motor cycles and scooters in C. K. D. condition under a licence under which he could import complete motor cycles and scooters only. That restriction, as already observed, applied to a licensee in respect of goods described in entry 294 and not a licensee in respect of goods covered by entry 295.15. The result is that when Collector examines goods imported under a licence in respect of goods covered by entry 295 what he has, to ascertain is whether the goods are parts and accessories, and not whether the goods, though parts and accessories, are so comprehensive that if put together would constitute motor cycles and scooters in C. K. D. condition. Were he to adopt such an approach, he would be acting contrary to and beyond entry 295 under which he had to find out whether the goods imported were of the description in that entry. Such an approach would in other words, be in non-compliance of entry 295.What needs to be observed in that decision is that the Collectors decision was under which of the two competing entries the imported items fell, that is, whether the goods were bolts and nuts or were components of the prohibited article. And the Court there laid down the well established principle that the High Court under Article 226, could not interfere with the decision of the authority upon whom jurisdiction to decide the question, whether the goods fell under one or the other entry, was conferred on the ground that it was erroneous. Further, the nuts and bolts imported by the appellant could only be used as components of the prohibited article. In other words, the import was of parts of the prohibited article and therefore, of the prohibited article. It was, therefore, that the Court held (1) that the Customs decision was not incorrect and (2) that the importer could not be allowed to do indirectly what he could not do directly.18. It will be noticed that the Bombay decision in D. P. Anands case. Civil Appl. No. 4 of 1959, D/17-8-1960(Bom) was not dissented from but only distinguished, and therefore, the High Court in the present case was justified in following it. It is true, however, that counsel for the appellant there relied on that decision in support of his proposition that a ban on a completed article cannot be read as a ban on the importation of its constituents, which when assembled, would result in the prohibited article, and this Court pointed out in answer that in D. P. Anands case, Civil Appl. No. 4 of 1959, D/-17-8 l960 (Bom) the imported components could not have, when assembled made up the completed article because of the lack of certain essential parts which admittedly were not available in India and could not be imported. The real distinction, however, between the two cases was that the decision of the Collector in D. P. Anands case. Civil Appl. No. 4 of 1959. D/- 17-8-1960 (Bom) was not, as was the decision in Girdharilals case,= (1964) 7 SCR 62 = (AIR 1964 SC 1591) under which of the two competing entries the imported goods fell but that the imported goods in question, if assembled together, would not be the goods covered by the entry, and therefore, not the goods in respect of which the licence was granted.The words "a decision or order passed by an officer of Customs under this Act" used in Section 188 of the Sea Customs Act must mean a real and not a purported determination. A determination, which takes into consideration factors which the officer has no right to take into account, is no determination. This is also the view taken by Courts in England. In such cases the provision excluding jurisdiction of civil Courts cannot overate so as to exclude an inquiry byThe principle thus is that exclusion of the jurisdiction of the civil Courts is not to be readily inferred. Such exclusion, however, is inferred where the of statute gives finality to the order of the tribunal on which it confers jurisdiction and provides for adequate remedy to do what the Courts would normally do in such a proceeding before it. Even where a statute gives finality, such a provision does not exclude cases where the provisions of the particular statute have not been complied with or the tribunal has not acted in conform with the fundamental principles of judicial procedure. The word "jurisdiction" has both a narrow and a wider meaning. In the sense of the former, it means the authority to embark upon an enquiry; in the sense of the latter it is used in several , one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act. Accordingly, a determination by a tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act, and therefore, in excess of its jurisdiction.23. The respondents licence admittedly authorised them to import goods covered by entry 295. They could, therefore, legitimately import, on the strength of that licence, all and several kinds of parts and accessories of motor cycles and scooters. The only question, therefore, before the Collector was whether the respondents licence covered the goods imported by them. i e. whether the goods were parts and accessories. If they were, the imports were legitimate and no question of their being not covered by the licence or the respondent having committed breach of Section 3 of the Imports and Exports (Control) Act or Section 167 (8) of the Sea Customs Act could possibly arise. What the Collector, however did was that he put the two consignments together and held that they made up 51 Rixe Mopeds in C. K. D. condition and were for that reason not the articles covered by entry 295 but articles prohibited under remark (ii) of entry 294. But entry 294 deals with motor cycles and scooters complete and assembled. Remark (ii) against that entry prohibits an importer who held a licence to import motor cycles and scooters from importing motor cycles and scooters in C. K. D. condition. Remark (ii) containing that prohibition had nothing to do with entry 295 which did not condition any limitations or restrictions whatsoever against imports of parts and accessories.24. That being so if an importer has imported parts and accessories, his import would be of the articles covered by entry 295 The Collector could not say, if they were so covered by entry 295, that when jumped together, they would constitute other articles namely, motor cycles and scooters in C. K. D. condition. Such a process, if adopted by the Collector, would mean that he was inserting in entry 295 a restriction which was not them. That obviously he had no power to do. Such a restriction would mean that though under a licence in respect of goods covered by entry 295 an importer could import parts and accessories of all kinds and types, he shall not import all of them but only some, so that when put together they would not make them motor cycles and scooters in C. K. D. condition. In the Present case even that was not so because he would have to buy tyres, tubes and saddles to convert them into motor cycles and scooters into C. K. D. condition. That would be tantamount to the Collector making a new entry in place of entry 295 which must mean non-compliance of that entry and acting in excess of jurisdiction during the course at his enquiry even though he had embarked upon the enquiry with judsdiction. In our view that was precisely what the collector did. This is therefore, not one of those cases where between two competing entries the statutory authority applied one or the other though in error, and where a civil court cannot interfere.25. In this view the order was in non-compliance of the provisions of the statute and, therefore, was covered by the exceptions laid down in Mask and Co.s case, 67 Ind App 222 = (AIR 1940 PC 105 ). It was not an order in respect of which the Collector was invested with jurisdiction. That being so the provision excluding the jurisdiction of civil Courts was not applicable. Indeed the order was a nullity and Article 14 of the Limitation Act of 1908 could not be applied to hold the suit time barred. Even if Article 14 applied, it would not be time-barred, it as the High Court pointed out, the date of the appellate order was taken into consideration. | 0 | 7,422 | 2,238 | ### Instruction:
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misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly".To the same effect are also the observations of Lord Pearce at page 233. R. v. Fulham Hammersmith and Kensingon Rent Tribunal, (1953) 2 All ER 4 is yet another decision of a tribunal properly embarking on or enquiry, that is, within its jurisdiction but at the end of its making an order in excess of its jurisdiction which was held to be a nullity though it was an order of the kind which it was entitled to make in a proper case.22. The principle thus is that exclusion of the jurisdiction of the civil Courts is not to be readily inferred. Such exclusion, however, is inferred where the of statute gives finality to the order of the tribunal on which it confers jurisdiction and provides for adequate remedy to do what the Courts would normally do in such a proceeding before it. Even where a statute gives finality, such a provision does not exclude cases where the provisions of the particular statute have not been complied with or the tribunal has not acted in conform with the fundamental principles of judicial procedure. The word "jurisdiction" has both a narrow and a wider meaning. In the sense of the former, it means the authority to embark upon an enquiry; in the sense of the latter it is used in several , one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act. Accordingly, a determination by a tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act, and therefore, in excess of its jurisdiction.23. The respondents licence admittedly authorised them to import goods covered by entry 295. They could, therefore, legitimately import, on the strength of that licence, all and several kinds of parts and accessories of motor cycles and scooters. The only question, therefore, before the Collector was whether the respondents licence covered the goods imported by them. i e. whether the goods were parts and accessories. If they were, the imports were legitimate and no question of their being not covered by the licence or the respondent having committed breach of Section 3 of the Imports and Exports (Control) Act or Section 167 (8) of the Sea Customs Act could possibly arise. What the Collector, however did was that he put the two consignments together and held that they made up 51 Rixe Mopeds in C. K. D. condition and were for that reason not the articles covered by entry 295 but articles prohibited under remark (ii) of entry 294. But entry 294 deals with motor cycles and scooters complete and assembled. Remark (ii) against that entry prohibits an importer who held a licence to import motor cycles and scooters from importing motor cycles and scooters in C. K. D. condition. Remark (ii) containing that prohibition had nothing to do with entry 295 which did not condition any limitations or restrictions whatsoever against imports of parts and accessories.24. That being so if an importer has imported parts and accessories, his import would be of the articles covered by entry 295 The Collector could not say, if they were so covered by entry 295, that when jumped together, they would constitute other articles namely, motor cycles and scooters in C. K. D. condition. Such a process, if adopted by the Collector, would mean that he was inserting in entry 295 a restriction which was not them. That obviously he had no power to do. Such a restriction would mean that though under a licence in respect of goods covered by entry 295 an importer could import parts and accessories of all kinds and types, he shall not import all of them but only some, so that when put together they would not make them motor cycles and scooters in C. K. D. condition. In the Present case even that was not so because he would have to buy tyres, tubes and saddles to convert them into motor cycles and scooters into C. K. D. condition. That would be tantamount to the Collector making a new entry in place of entry 295 which must mean non-compliance of that entry and acting in excess of jurisdiction during the course at his enquiry even though he had embarked upon the enquiry with judsdiction. In our view that was precisely what the collector did. This is therefore, not one of those cases where between two competing entries the statutory authority applied one or the other though in error, and where a civil court cannot interfere.25. In this view the order was in non-compliance of the provisions of the statute and, therefore, was covered by the exceptions laid down in Mask and Co.s case, 67 Ind App 222 = (AIR 1940 PC 105 ). It was not an order in respect of which the Collector was invested with jurisdiction. That being so the provision excluding the jurisdiction of civil Courts was not applicable. Indeed the order was a nullity and Article 14 of the Limitation Act of 1908 could not be applied to hold the suit time barred. Even if Article 14 applied, it would not be time-barred, it as the High Court pointed out, the date of the appellate order was taken into consideration.
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up the completed article because of the lack of certain essential parts which admittedly were not available in India and could not be imported. The real distinction, however, between the two cases was that the decision of the Collector in D. P. Anands case. Civil Appl. No. 4 of 1959. D/- 17-8-1960 (Bom) was not, as was the decision in Girdharilals case,= (1964) 7 SCR 62 = (AIR 1964 SC 1591) under which of the two competing entries the imported goods fell but that the imported goods in question, if assembled together, would not be the goods covered by the entry, and therefore, not the goods in respect of which the licence was granted.The words "a decision or order passed by an officer of Customs under this Act" used in Section 188 of the Sea Customs Act must mean a real and not a purported determination. A determination, which takes into consideration factors which the officer has no right to take into account, is no determination. This is also the view taken by Courts in England. In such cases the provision excluding jurisdiction of civil Courts cannot overate so as to exclude an inquiry byThe principle thus is that exclusion of the jurisdiction of the civil Courts is not to be readily inferred. Such exclusion, however, is inferred where the of statute gives finality to the order of the tribunal on which it confers jurisdiction and provides for adequate remedy to do what the Courts would normally do in such a proceeding before it. Even where a statute gives finality, such a provision does not exclude cases where the provisions of the particular statute have not been complied with or the tribunal has not acted in conform with the fundamental principles of judicial procedure. The word "jurisdiction" has both a narrow and a wider meaning. In the sense of the former, it means the authority to embark upon an enquiry; in the sense of the latter it is used in several , one of such aspects being that the decision of the tribunal is in non-compliance with the provisions of the Act. Accordingly, a determination by a tribunal of a question other than the one which the statute directs it to decide would be a decision not under the provisions of the Act, and therefore, in excess of its jurisdiction.23. The respondents licence admittedly authorised them to import goods covered by entry 295. They could, therefore, legitimately import, on the strength of that licence, all and several kinds of parts and accessories of motor cycles and scooters. The only question, therefore, before the Collector was whether the respondents licence covered the goods imported by them. i e. whether the goods were parts and accessories. If they were, the imports were legitimate and no question of their being not covered by the licence or the respondent having committed breach of Section 3 of the Imports and Exports (Control) Act or Section 167 (8) of the Sea Customs Act could possibly arise. What the Collector, however did was that he put the two consignments together and held that they made up 51 Rixe Mopeds in C. K. D. condition and were for that reason not the articles covered by entry 295 but articles prohibited under remark (ii) of entry 294. But entry 294 deals with motor cycles and scooters complete and assembled. Remark (ii) against that entry prohibits an importer who held a licence to import motor cycles and scooters from importing motor cycles and scooters in C. K. D. condition. Remark (ii) containing that prohibition had nothing to do with entry 295 which did not condition any limitations or restrictions whatsoever against imports of parts and accessories.24. That being so if an importer has imported parts and accessories, his import would be of the articles covered by entry 295 The Collector could not say, if they were so covered by entry 295, that when jumped together, they would constitute other articles namely, motor cycles and scooters in C. K. D. condition. Such a process, if adopted by the Collector, would mean that he was inserting in entry 295 a restriction which was not them. That obviously he had no power to do. Such a restriction would mean that though under a licence in respect of goods covered by entry 295 an importer could import parts and accessories of all kinds and types, he shall not import all of them but only some, so that when put together they would not make them motor cycles and scooters in C. K. D. condition. In the Present case even that was not so because he would have to buy tyres, tubes and saddles to convert them into motor cycles and scooters into C. K. D. condition. That would be tantamount to the Collector making a new entry in place of entry 295 which must mean non-compliance of that entry and acting in excess of jurisdiction during the course at his enquiry even though he had embarked upon the enquiry with judsdiction. In our view that was precisely what the collector did. This is therefore, not one of those cases where between two competing entries the statutory authority applied one or the other though in error, and where a civil court cannot interfere.25. In this view the order was in non-compliance of the provisions of the statute and, therefore, was covered by the exceptions laid down in Mask and Co.s case, 67 Ind App 222 = (AIR 1940 PC 105 ). It was not an order in respect of which the Collector was invested with jurisdiction. That being so the provision excluding the jurisdiction of civil Courts was not applicable. Indeed the order was a nullity and Article 14 of the Limitation Act of 1908 could not be applied to hold the suit time barred. Even if Article 14 applied, it would not be time-barred, it as the High Court pointed out, the date of the appellate order was taken into consideration.
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Union Of India & Anr Vs. P.K. Roy & Ors | the next contention raised on behalf of the respondents that in any event they should have been given a second opportunity to make representation regarding : (1) inter se- seniority list of the Assistant Engineers of the former Mahakoshal region prepared on February 20, 1962, Annexure R-14, and (2) the final inter se seniority list published on April 6, 1962. With regard to the inter se seniority list it was pointed out by Mr. Asoke Sen that in paragraphs 9 and 10 of its letter dated September 16, 1961, Annexure R-7 the Central Government noticed that no formal orders were issued by the State of Madhya Pradesh prior to October 31, 1956 fixing the rank of the Mahakoshal officer from Serial No. 59 onwards. It was customary in the old State of Madhya Pradesh that the Government issued orders regarding the rank of the officers while making a notification confirming the officers. It was pointed out that if the present rank in the combined gradation list was to be accepted ii would mean that some of the officers who were not selected by the Public Service Commission of the old Madhya Pradesh for permanent posts would be senior to those selected and placed on probation as early as 1953 The normal practice adopted in such cases would appear to be to arrange the names of the officers in the order of appointment to substantive vacancy whether on probation or as confirmed officers. It was suggested by the Central Government that the entire matter should be reviewed by the State Government in the light of the procedure stated in paragraphs 9 and 10 of the letter and necessary changes should be carried out in the combined gradation list. In view of the directions contained in this letter the State Government prepared an inter se-seniority list of the Assistant Engineers of the Mahakoshal region in their letter dated February 20, 1962. It is not disputed on behalf of the respondents that this order of seniority was reflected in the final gradation list published on April.1 6, 1962; but the contention of the respondents is that no opportunity was given to them to make a representation against the inter se seniority list dated February 20, 1962 though Mr. Asoke Sen conceded that he had no quarrel with the principles upon which the list was prepared. Learned Counsel however said that the principles were wrongly applied in particular cases and the respondents should have been given an opportunity of making a representation with regard to the inter se seniority list dated February 20, 1962. With regard to the final gradation list published on April 6, 1962 the contention of Mr. Asoke Sen was that the basis upon which the assumed date, was given in column No. 6 was not set out either in that notification or in the principle specified in the preliminary gradation list. On this point the Solicitor-General said that the final gradation list was prepared and the assumed date in column No. 6 was inserted on the principle of kicking down. It was also pointed out by the Solicitor-General that in the Conference of the Chief Secretaries it had been agreed that in determining inter-State seniority the principle to be taken into account was length of continuous service, whether temporary or permanent in a particular grade. The argument was stressed that the principle could be applied only on the basis of kicking down and that principle was implicit in the preparation of the final gradation list. We are, however, not quite sure whether the Solicitor-General is right in his contention on this point. We think that the final gradation list could have been prepared on the basis of the principle agreed upon in the conference of the Chief Secretaries both on the method of kicking down and the alternative method of kicking up. It is nowhere stated either in the preliminary gradation list or in the final gradation list that the principle of kicking down was adopted in preference to the alternative principle. It was argued by Mr. Asoke Sen that in regard to both these matters the respondents have a right of representation and the final gradation list should have been published after giving them a further opportunity to make a representation. Normally speaking, we should have thought that one opportunity for making a representation against the preliminary list published would have been sufficient to satisfy the requirements of law. But the extent and application of the doctrine of natural justice cannot be imprisoned within the straight jacket of a rigid formula.The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case. [See the decision of this Court in Shri Bhagwan v. Ram Chand, 1965-3 SCR 218 at p. 222 = (AIR 1965 SC 1767 at p. 1770)]. In view of the special circumstances of the present case we think that the respondents were entitled to an opportunity to make a representation with regard to the two points urged by Mr. Asoke Sen before the final gradation list was published. As no such opportunity was furnished to the respondents, with regard to these two matters we hold that the combined final gradation list dated April 6, 1962, so far as category 6 is concerned, is ultra vires and illegal and that part of the notification alone must be quashed by grant of a writ in the nature of certiorari.The rest of the notification of the State Government dated April 6, 1962, with regard to other categories will stand unaffected. So far as category No. 6 is concerned, the Central Government is directed to give an opportunity to the respondents to make a representation in regard to the two points mentioned in this paragraph and thereafter take steps to finalise and publish the list in accordance with law. 18. | 1[ds]our opinion, the procedure adopted in this case does not contravene the provisions of Section 115 (5) of the said Act, because it was the Central Government which laid down the principles for integration, it was the Central Government which considered the representations and passed final orders, and both the preliminary and final gradation lists were prepared and published by the State Government under the direction and with the sanction of the Central Government. It is manifest that there has been no delegation by the Central Government of any of its essential functions entrusted to it under the statute. It was pointed out by Mr. Asoke Sen that in its letter dated April 3, 1957 the Central Government had intimated that the work of integration should be left to the State Government. But what was meant by that letter was that only the preliminary work of preparation of the gradation lists on the principles decided upon by the Central Government should be left to the State Governments concerned. It is clear that such work cannot be done by the Central Government itself since the necessary information regarding the officers can be obtained and tabulated only by the States concerned. It was also pointed out by Mr. Asoke Sen that the preparation of the provisional and the final gradation lists by the State Government constituted .a delegation by the Central Government. We do not think there is any substance in this argument. It is not disputed that the provisional and the final gradation lists were prepared by the State Government on the principles laid down by the Central Government itself subject to on change in the matter of determining seniority and the provisional gradation list was sent for approval of the Central Government together with representations made by the officers concerned for being dealt with and decided upon by the Central Government. The principle of the maxim delegatus non potest delegare has therefore no application to the present case. The maxim deals with the extent to which a statutory authority may permit another to exercise a discretion en trusted by the statute to itself. It is true that delegation in its general sense does not imply a parting with statutory powers by the authority which grants the delegation, but points rather to the conferring of an authority to do things which otherwise that administrative authority would have to do for itself. If, however, the administrative authority named in the statute has and retains in its hands general control over the activities of the person to whom it has entrusted in part the exercise of its statutory power and the control exercised by the administrative authority is of a substantial degree there is in the eve of law no delegation at all and the maxim delegatus non potest delegare does not apply [SeeFowler (John) and Co. (Leeds) v. Duncan. 1941-Ch. In other words if a statutory authority empowers a delegate to undertake preparatory work and to take an initial decision in matters entrusted to it but retains in its own hands the power to approve or disapprove the decision after it has been taken, the decision will be held to have been validly made if the degree of control maintained by the authority is close enough for the decision to be regarded as the authoritys own. In the context of the facts found in the present case we are of opinion that the High Court was in error in holding that there has been an improper delegation of its statutory powers and duties by the Central Government and that the final gradation list dated April 6, 1962 was therefore ultra vires and illegal. Even on the assumption that the task of integration was exclusively entrusted to the Central Government, we are of the opinion that the steps taken by the Central Government in the present case in the matter of integration did not amount to any delegation of its essential statutory functions. There is nothing in Sections 115 or 117 of the said Act which prohibits the Central Government in any way from taking the aid and assistance of the State Government in the matter affecting the integrations of the services. So long as the act of ultimate integrations is done with the sanction and approval of the Central Government and so long as the Central Government exercises general control over the activities of the State Government in the matter it cannot be held that there has been any violation of the principle delegatus non potest delegareNormally speaking, we should have thought that one opportunity for making a representation against the preliminary list published would have been sufficient to satisfy the requirements of law. But the extent and application of the doctrine of natural justice cannot be imprisoned within the straight jacket of a rigid formula.The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case. [See the decision of this Court in Shri Bhagwan v. Ram Chand, 1965-3 SCR 218 at p. 222 = (AIR 1965 SC 1767 at p. 1770)]. In view of the special circumstances of the present case we think that the respondents were entitled to an opportunity to make a representation with regard to the two points urged by Mr. Asoke Sen before the final gradation list was published. As no such opportunity was furnished to the respondents, with regard to these two matters we hold that the combined final gradation list dated April 6, 1962, so far as category 6 is concerned, is ultra vires and illegal and that part of the notification alone must be quashed by grant of a writ in the nature of certiorari.The rest of the notification of the State Government dated April 6, 1962, with regard to other categories will stand unaffected. So far as category No. 6 is concerned, the Central Government is directed to give an opportunity to the respondents to make a representation in regard to the two points mentioned in this paragraph and thereafter take steps to finalise and publish the list in accordance with law. | 1 | 6,992 | 1,105 | ### Instruction:
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the next contention raised on behalf of the respondents that in any event they should have been given a second opportunity to make representation regarding : (1) inter se- seniority list of the Assistant Engineers of the former Mahakoshal region prepared on February 20, 1962, Annexure R-14, and (2) the final inter se seniority list published on April 6, 1962. With regard to the inter se seniority list it was pointed out by Mr. Asoke Sen that in paragraphs 9 and 10 of its letter dated September 16, 1961, Annexure R-7 the Central Government noticed that no formal orders were issued by the State of Madhya Pradesh prior to October 31, 1956 fixing the rank of the Mahakoshal officer from Serial No. 59 onwards. It was customary in the old State of Madhya Pradesh that the Government issued orders regarding the rank of the officers while making a notification confirming the officers. It was pointed out that if the present rank in the combined gradation list was to be accepted ii would mean that some of the officers who were not selected by the Public Service Commission of the old Madhya Pradesh for permanent posts would be senior to those selected and placed on probation as early as 1953 The normal practice adopted in such cases would appear to be to arrange the names of the officers in the order of appointment to substantive vacancy whether on probation or as confirmed officers. It was suggested by the Central Government that the entire matter should be reviewed by the State Government in the light of the procedure stated in paragraphs 9 and 10 of the letter and necessary changes should be carried out in the combined gradation list. In view of the directions contained in this letter the State Government prepared an inter se-seniority list of the Assistant Engineers of the Mahakoshal region in their letter dated February 20, 1962. It is not disputed on behalf of the respondents that this order of seniority was reflected in the final gradation list published on April.1 6, 1962; but the contention of the respondents is that no opportunity was given to them to make a representation against the inter se seniority list dated February 20, 1962 though Mr. Asoke Sen conceded that he had no quarrel with the principles upon which the list was prepared. Learned Counsel however said that the principles were wrongly applied in particular cases and the respondents should have been given an opportunity of making a representation with regard to the inter se seniority list dated February 20, 1962. With regard to the final gradation list published on April 6, 1962 the contention of Mr. Asoke Sen was that the basis upon which the assumed date, was given in column No. 6 was not set out either in that notification or in the principle specified in the preliminary gradation list. On this point the Solicitor-General said that the final gradation list was prepared and the assumed date in column No. 6 was inserted on the principle of kicking down. It was also pointed out by the Solicitor-General that in the Conference of the Chief Secretaries it had been agreed that in determining inter-State seniority the principle to be taken into account was length of continuous service, whether temporary or permanent in a particular grade. The argument was stressed that the principle could be applied only on the basis of kicking down and that principle was implicit in the preparation of the final gradation list. We are, however, not quite sure whether the Solicitor-General is right in his contention on this point. We think that the final gradation list could have been prepared on the basis of the principle agreed upon in the conference of the Chief Secretaries both on the method of kicking down and the alternative method of kicking up. It is nowhere stated either in the preliminary gradation list or in the final gradation list that the principle of kicking down was adopted in preference to the alternative principle. It was argued by Mr. Asoke Sen that in regard to both these matters the respondents have a right of representation and the final gradation list should have been published after giving them a further opportunity to make a representation. Normally speaking, we should have thought that one opportunity for making a representation against the preliminary list published would have been sufficient to satisfy the requirements of law. But the extent and application of the doctrine of natural justice cannot be imprisoned within the straight jacket of a rigid formula.The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case. [See the decision of this Court in Shri Bhagwan v. Ram Chand, 1965-3 SCR 218 at p. 222 = (AIR 1965 SC 1767 at p. 1770)]. In view of the special circumstances of the present case we think that the respondents were entitled to an opportunity to make a representation with regard to the two points urged by Mr. Asoke Sen before the final gradation list was published. As no such opportunity was furnished to the respondents, with regard to these two matters we hold that the combined final gradation list dated April 6, 1962, so far as category 6 is concerned, is ultra vires and illegal and that part of the notification alone must be quashed by grant of a writ in the nature of certiorari.The rest of the notification of the State Government dated April 6, 1962, with regard to other categories will stand unaffected. So far as category No. 6 is concerned, the Central Government is directed to give an opportunity to the respondents to make a representation in regard to the two points mentioned in this paragraph and thereafter take steps to finalise and publish the list in accordance with law. 18.
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final orders, and both the preliminary and final gradation lists were prepared and published by the State Government under the direction and with the sanction of the Central Government. It is manifest that there has been no delegation by the Central Government of any of its essential functions entrusted to it under the statute. It was pointed out by Mr. Asoke Sen that in its letter dated April 3, 1957 the Central Government had intimated that the work of integration should be left to the State Government. But what was meant by that letter was that only the preliminary work of preparation of the gradation lists on the principles decided upon by the Central Government should be left to the State Governments concerned. It is clear that such work cannot be done by the Central Government itself since the necessary information regarding the officers can be obtained and tabulated only by the States concerned. It was also pointed out by Mr. Asoke Sen that the preparation of the provisional and the final gradation lists by the State Government constituted .a delegation by the Central Government. We do not think there is any substance in this argument. It is not disputed that the provisional and the final gradation lists were prepared by the State Government on the principles laid down by the Central Government itself subject to on change in the matter of determining seniority and the provisional gradation list was sent for approval of the Central Government together with representations made by the officers concerned for being dealt with and decided upon by the Central Government. The principle of the maxim delegatus non potest delegare has therefore no application to the present case. The maxim deals with the extent to which a statutory authority may permit another to exercise a discretion en trusted by the statute to itself. It is true that delegation in its general sense does not imply a parting with statutory powers by the authority which grants the delegation, but points rather to the conferring of an authority to do things which otherwise that administrative authority would have to do for itself. If, however, the administrative authority named in the statute has and retains in its hands general control over the activities of the person to whom it has entrusted in part the exercise of its statutory power and the control exercised by the administrative authority is of a substantial degree there is in the eve of law no delegation at all and the maxim delegatus non potest delegare does not apply [SeeFowler (John) and Co. (Leeds) v. Duncan. 1941-Ch. In other words if a statutory authority empowers a delegate to undertake preparatory work and to take an initial decision in matters entrusted to it but retains in its own hands the power to approve or disapprove the decision after it has been taken, the decision will be held to have been validly made if the degree of control maintained by the authority is close enough for the decision to be regarded as the authoritys own. In the context of the facts found in the present case we are of opinion that the High Court was in error in holding that there has been an improper delegation of its statutory powers and duties by the Central Government and that the final gradation list dated April 6, 1962 was therefore ultra vires and illegal. Even on the assumption that the task of integration was exclusively entrusted to the Central Government, we are of the opinion that the steps taken by the Central Government in the present case in the matter of integration did not amount to any delegation of its essential statutory functions. There is nothing in Sections 115 or 117 of the said Act which prohibits the Central Government in any way from taking the aid and assistance of the State Government in the matter affecting the integrations of the services. So long as the act of ultimate integrations is done with the sanction and approval of the Central Government and so long as the Central Government exercises general control over the activities of the State Government in the matter it cannot be held that there has been any violation of the principle delegatus non potest delegareNormally speaking, we should have thought that one opportunity for making a representation against the preliminary list published would have been sufficient to satisfy the requirements of law. But the extent and application of the doctrine of natural justice cannot be imprisoned within the straight jacket of a rigid formula.The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case. [See the decision of this Court in Shri Bhagwan v. Ram Chand, 1965-3 SCR 218 at p. 222 = (AIR 1965 SC 1767 at p. 1770)]. In view of the special circumstances of the present case we think that the respondents were entitled to an opportunity to make a representation with regard to the two points urged by Mr. Asoke Sen before the final gradation list was published. As no such opportunity was furnished to the respondents, with regard to these two matters we hold that the combined final gradation list dated April 6, 1962, so far as category 6 is concerned, is ultra vires and illegal and that part of the notification alone must be quashed by grant of a writ in the nature of certiorari.The rest of the notification of the State Government dated April 6, 1962, with regard to other categories will stand unaffected. So far as category No. 6 is concerned, the Central Government is directed to give an opportunity to the respondents to make a representation in regard to the two points mentioned in this paragraph and thereafter take steps to finalise and publish the list in accordance with law.
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Ranjit Kumar Murmu Vs. M/S Lachmi Narayan Bhomroj | other hand, learned counsel for the respondent contended that the Principal Secretary and Commissioner of Food and Supplies Department had no jurisdiction to hear an appeal over an order passed by the District Magistrate. 11. In the said circumstances, the questions that arise for our consideration are: (i) Whether the impugned order was passed by the State Government?(ii) If not so, whether the Principal Secretary and Commissioner of the Food and Supply Department has jurisdiction to entertain the appeal against the order passed by District Magistrate. 12. Under paragraph 8 of the Control Order, the Director or the District Magistrate, as the case may be, are vested with the power to refuse to grant or renew a licence following the procedure as mentioned therein. It reads as follows: “8. Refusal to grant or renew license:- The Director, or the District Magistrate, having jurisdiction, may, after giving the agent or the dealer or hawker concerned an opportunity of stating his case in writing and for reasons to be recorded in writing, refuse to grant or renew a license under this Order.” 13. On the other hand, Paragraph 9 of the Control Order deals with the power of Director/District Magistrate for cancellation or suspension of license in case of any malpractice or contravention of any provision of this Order. Paragraph 9 reads as follows: “9. Cancellation or suspension of license:- If it appears to the Director or the District Magistrate having jurisdiction that an agent or a dealer has indulged in any malpractice or contravened any provision of this order or any condition of the license or any direction given under paragraph 12 of the order, he may forthwith temporarily suspend the license;Provided that the agent or the dealer whose license has been so suspended shall be given an opportunity of being heard before cancellation of the license or revocation of the order of suspension of the license finally by an order in writing to be made within 30 days from the date of suspension of the license. The order shall be passed ex parte if the dealer whose license has been so suspended fails to appear at the hearing.” 14. Any person aggrieved by the Order passed under Paragraph 8 or Paragraph 9 of the Control Order may within 30 days prefer an appeal under Paragraph 10, which reads as follows: “10. Appeal – Any person aggrieved by an order passed under paragraph or paragraph 9 of this order may within 30 days from the date of the order, prefer an appeal –a) in Calcutta.i) where the order is passed by the Director of Consumer Goods, Department of Food and Supplies, to the State Government.ii) where the order is passed by any other authorised by the State Government under Clause (d) of paragraph 3, to the Director of Consumer Goods, Department of Food and Supplies, andb) elsewhere;i) where the order is passed by the District Magistrate or the Deputy Commissioner of a District, to the State Governmentii) Where the order is passed by any other officer authorised by the District Magistrate of the Deputy Commissioner of a district under Clause (e) of paragraph 3, to the District Magistrate or the deputy commissioner, as the case may be, of the District”. 15. From the aforesaid provision, it is evident that no appeal lies to the Principal Secretary or the Commission of Food and Supply Department. 16. Paragraph 11 relates to issue of delivery order or permit by the Director or the District Magistrate, which reads as under: “11. Issue of delivery order or permit –(1) The Director or the District Magistrate having jurisdiction may issue a delivery order or permit requiring an agent within his jurisdiction to supply kerosene to –a) a dealer, orb) other person or establishment requiring kerosene for his or its own consumption, in any particular area, if in the opinion of the Director or the District Magistrate, as the case may be, this is considered necessary, orc) an agent.2) No person other than oil distributing company, an agent or a dealer shall transport kerosene or store kerosene or shall have in his possession kerosene exceeding ten liters at a time except under and in accordance with a permit issued by the Director or the District Magistrate having jurisdiction.” 17. The impugned order passed by the District Magistrate, Purulia on 6th October, 2009 cannot be termed as an order passed under Paragraph 8 or Paragraph 9 of the Control Order. In such a situation, no appeal is maintainable under Paragraph 10 before the Principal Secretary or the Commissioner, Food and Supply Department, Government of West Bengal.18. In the present case, the District Magistrate, Purulia passed an order dated 6.10.2009 whereby the quantum of Kerosene Oil allotted per month to respondent got enhanced. By the same order quantum of Kerosene Oil allotted to the appellant got reduced. Even if it is assumed that the order of the District Magistrate was under Paragraph 11 of the Control Order, such an order is not appealable under Paragraph 10 or before the Principal Secretary and Commissioner of Food and Supply Department, Govt. of West Bengal.19. The State has indeed the inherent power to alter or to set aside any order passed by the District Magistrate but it should follow the procedure as prescribed by the law, such an order should be passed by the authority empowered to do so on behalf of the State in the name of Governor of the State.20. From the impugned order passed by the Principal Secretary and Commissioner, Food and Supply Department, it is apparent that the said order has been passed in the capacity of his designated post and not on behalf of the State. 21. Learned counsel for the appellant submitted that the writ petition was withdrawn by the appellant to move before the competent authority. But that does not mean that while withdrawing such case, the Court or any individual can confer jurisdiction upon any authority who otherwise is not so empowered under the Statute. | 0[ds]17. The impugned order passed by the District Magistrate, Purulia on 6th October, 2009 cannot be termed as an order passed under Paragraph 8 or Paragraph 9 of the Control Order. In such a situation, no appeal is maintainable under Paragraph 10 before the Principal Secretary or the Commissioner, Food and Supply Department, Government of West Bengal.18. In the present case, the District Magistrate, Purulia passed an order dated 6.10.2009 whereby the quantum of Kerosene Oil allotted per month to respondent got enhanced. By the same order quantum of Kerosene Oil allotted to the appellant got reduced. Even if it is assumed that the order of the District Magistrate was under Paragraph 11 of the Control Order, such an order is not appealable under Paragraph 10 or before the Principal Secretary and Commissioner of Food and Supply Department, Govt. of West Bengal.19. The State has indeed the inherent power to alter or to set aside any order passed by the District Magistrate but it should follow the procedure as prescribed by the law, such an order should be passed by the authority empowered to do so on behalf of the State in the name of Governor of the State.20. From the impugned order passed by the Principal Secretary and Commissioner, Food and Supply Department, it is apparent that the said order has been passed in the capacity of his designated post and not on behalf of thethat does not mean that while withdrawing such case, the Court or any individual can confer jurisdiction upon any authority who otherwise is not so empowered under the Statute. | 0 | 1,992 | 292 | ### 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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other hand, learned counsel for the respondent contended that the Principal Secretary and Commissioner of Food and Supplies Department had no jurisdiction to hear an appeal over an order passed by the District Magistrate. 11. In the said circumstances, the questions that arise for our consideration are: (i) Whether the impugned order was passed by the State Government?(ii) If not so, whether the Principal Secretary and Commissioner of the Food and Supply Department has jurisdiction to entertain the appeal against the order passed by District Magistrate. 12. Under paragraph 8 of the Control Order, the Director or the District Magistrate, as the case may be, are vested with the power to refuse to grant or renew a licence following the procedure as mentioned therein. It reads as follows: “8. Refusal to grant or renew license:- The Director, or the District Magistrate, having jurisdiction, may, after giving the agent or the dealer or hawker concerned an opportunity of stating his case in writing and for reasons to be recorded in writing, refuse to grant or renew a license under this Order.” 13. On the other hand, Paragraph 9 of the Control Order deals with the power of Director/District Magistrate for cancellation or suspension of license in case of any malpractice or contravention of any provision of this Order. Paragraph 9 reads as follows: “9. Cancellation or suspension of license:- If it appears to the Director or the District Magistrate having jurisdiction that an agent or a dealer has indulged in any malpractice or contravened any provision of this order or any condition of the license or any direction given under paragraph 12 of the order, he may forthwith temporarily suspend the license;Provided that the agent or the dealer whose license has been so suspended shall be given an opportunity of being heard before cancellation of the license or revocation of the order of suspension of the license finally by an order in writing to be made within 30 days from the date of suspension of the license. The order shall be passed ex parte if the dealer whose license has been so suspended fails to appear at the hearing.” 14. Any person aggrieved by the Order passed under Paragraph 8 or Paragraph 9 of the Control Order may within 30 days prefer an appeal under Paragraph 10, which reads as follows: “10. Appeal – Any person aggrieved by an order passed under paragraph or paragraph 9 of this order may within 30 days from the date of the order, prefer an appeal –a) in Calcutta.i) where the order is passed by the Director of Consumer Goods, Department of Food and Supplies, to the State Government.ii) where the order is passed by any other authorised by the State Government under Clause (d) of paragraph 3, to the Director of Consumer Goods, Department of Food and Supplies, andb) elsewhere;i) where the order is passed by the District Magistrate or the Deputy Commissioner of a District, to the State Governmentii) Where the order is passed by any other officer authorised by the District Magistrate of the Deputy Commissioner of a district under Clause (e) of paragraph 3, to the District Magistrate or the deputy commissioner, as the case may be, of the District”. 15. From the aforesaid provision, it is evident that no appeal lies to the Principal Secretary or the Commission of Food and Supply Department. 16. Paragraph 11 relates to issue of delivery order or permit by the Director or the District Magistrate, which reads as under: “11. Issue of delivery order or permit –(1) The Director or the District Magistrate having jurisdiction may issue a delivery order or permit requiring an agent within his jurisdiction to supply kerosene to –a) a dealer, orb) other person or establishment requiring kerosene for his or its own consumption, in any particular area, if in the opinion of the Director or the District Magistrate, as the case may be, this is considered necessary, orc) an agent.2) No person other than oil distributing company, an agent or a dealer shall transport kerosene or store kerosene or shall have in his possession kerosene exceeding ten liters at a time except under and in accordance with a permit issued by the Director or the District Magistrate having jurisdiction.” 17. The impugned order passed by the District Magistrate, Purulia on 6th October, 2009 cannot be termed as an order passed under Paragraph 8 or Paragraph 9 of the Control Order. In such a situation, no appeal is maintainable under Paragraph 10 before the Principal Secretary or the Commissioner, Food and Supply Department, Government of West Bengal.18. In the present case, the District Magistrate, Purulia passed an order dated 6.10.2009 whereby the quantum of Kerosene Oil allotted per month to respondent got enhanced. By the same order quantum of Kerosene Oil allotted to the appellant got reduced. Even if it is assumed that the order of the District Magistrate was under Paragraph 11 of the Control Order, such an order is not appealable under Paragraph 10 or before the Principal Secretary and Commissioner of Food and Supply Department, Govt. of West Bengal.19. The State has indeed the inherent power to alter or to set aside any order passed by the District Magistrate but it should follow the procedure as prescribed by the law, such an order should be passed by the authority empowered to do so on behalf of the State in the name of Governor of the State.20. From the impugned order passed by the Principal Secretary and Commissioner, Food and Supply Department, it is apparent that the said order has been passed in the capacity of his designated post and not on behalf of the State. 21. Learned counsel for the appellant submitted that the writ petition was withdrawn by the appellant to move before the competent authority. But that does not mean that while withdrawing such case, the Court or any individual can confer jurisdiction upon any authority who otherwise is not so empowered under the Statute.
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17. The impugned order passed by the District Magistrate, Purulia on 6th October, 2009 cannot be termed as an order passed under Paragraph 8 or Paragraph 9 of the Control Order. In such a situation, no appeal is maintainable under Paragraph 10 before the Principal Secretary or the Commissioner, Food and Supply Department, Government of West Bengal.18. In the present case, the District Magistrate, Purulia passed an order dated 6.10.2009 whereby the quantum of Kerosene Oil allotted per month to respondent got enhanced. By the same order quantum of Kerosene Oil allotted to the appellant got reduced. Even if it is assumed that the order of the District Magistrate was under Paragraph 11 of the Control Order, such an order is not appealable under Paragraph 10 or before the Principal Secretary and Commissioner of Food and Supply Department, Govt. of West Bengal.19. The State has indeed the inherent power to alter or to set aside any order passed by the District Magistrate but it should follow the procedure as prescribed by the law, such an order should be passed by the authority empowered to do so on behalf of the State in the name of Governor of the State.20. From the impugned order passed by the Principal Secretary and Commissioner, Food and Supply Department, it is apparent that the said order has been passed in the capacity of his designated post and not on behalf of thethat does not mean that while withdrawing such case, the Court or any individual can confer jurisdiction upon any authority who otherwise is not so empowered under the Statute.
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United India Insurance Company Limited Vs. Nirmala & Others | town yesterday and would be available today, matters were fixed for final hearing today. When the matters were called out in the afternoon session, neither Advocate Shri Kasliwal nor Advocate Mrs. Jain were available inspite of search through Court Chobdar. However, Advocate Miss.Mamta Warma appeared and prayed for adjournment when we had made it clear to her that we are not inclined to grant adjournment. Consequently, none appeared for the appellants in First Appeal No.60/2003 and the same is required to be and is being dismissed in default.5. So far as First Appeal No.248/2000 is concerned, it is not in dispute that owner and driver of the goods truck, which was insured with appellant insurance company namely M/s United India Insurance Company Ltd., had remained ex-parte. In other words, in spite of service, they had not contested the claims. On our enquiry, Advocate Shri Upadhye, in all fairness, has conceded that no application u/s 170 of Motor Vehicles Act, 1988, was preferred by his insurance company before the trial Court seeking permission to contest the petition with all defences available also to the owner in view of non-appearance of owner and driver. Our attention is drawn by Advocate Shri Darak, who represents the other vehicle, to judgment of the Supreme Court in the matter of National Insurance Company Ltd. Vs. Nicolletta Rohtagi (2002 AIR SCW 3899) and more particularly contents from paras 25, 31 and 32. For the convenient reference, although the learned counsel have taken us through major portion of the reported judgment, we are reproducing only part from the first head note, which suggests against the maintainability of present appeal filed by insurance company:"Even if no appeal is preferred under Section 173 of 1988 Act by an insured against the award of a Tribunal, it is not permissible for an insurer to file an appeal questioning the quantum of compensation as well as finding as regards negligence or contributory negligence of the offending vehicle unless the conditions precedent specified in S.170 of 1988 Act is satisfied."6. We have gone through the written statement that is filed by appellant insurance company before the Tribunal. In paras 1 to 19, it has denied all the contentions raised by the claimants in the petition, para by para. Paras 20 to 25 are captioned as additional statement and, thus, separated from other part of written statement, which constitutes mainly the denials. On going through entire written statement, we have not been able to find any defence raised by the insurance company, which would attract Section 149(2) of the Motor Vehicles Act. Only a passing reference to such defence is available in para 25 wherein insurance company has stated that the truck driver was not holding driving licence. On going through the impugned judgment, there does not appear any attempt on the part of insurance company to prove such a contention.7. Taking into consideration the ratio laid down by the Supreme Court, insurance company could not have contested the claim before the Tribunal on all the defences available to the owner such as contributory negligence or quantum of the compensation awardable. Since there is no prayer in the written statement, even by suggestive sentences that in view of absence of owner and driver inspite of service, insurance company may be allowed to raise all the defences, it cannot presumed even by implications that appellant insurance company is granted permission to raise all the defences as required by Section 170. In fact, as can be seen from the text of Section 170 and the ratio laid down by the Supreme Court, the Tribunal is required to record a reasoned order before allowing the insurance company to raise all the defences beyond the scope of Section 149(2) of M.V. Act, 1988, as are available to the owner and driver of the vehicle. This is a case wherein present insurance company could not have been allowed to raise any other defences except the one regarding the driver of the truck not holding driving licence, which was raised in the concluding sentence in the written statement. Consequently, appeal, if any, by the insurance company could have been only on this ground. Advocate Shri Upadhye has tried to meet the argument raised by Advocate Shri Darak against the maintainability of the appeal by referring to Division Bench judgment of Bombay High Court reported at 1990 ACJ 60 - Oriental Fire & General Insurance Company Ltd. Vs. Rajrani Surendrakumar Sharma & others. He has relied upon contents in para 9, which read thus:"Therefore, if the person against whom the claim is made has failed to contest the claim, the insurer gets a right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. Section 110-C(2-A) provides that in such a case if the insurer is not a party, the court may, for reasons to be recorded by it in writing, direct that the insurer who may be made liable in respect of such a claim shall be impleaded as a party. The insurer so impleaded thereupon gets the right to contest the claim on all grounds available to the person against whom the claim is made."8. We are afraid, the Division Bench view of Bombay High Court cannot be sustained or followed in the light of ratio laid down by the Supreme Court. The Supreme Court has mandated that in order that the insurance company may contest the claim on all grounds available to the owner, must satisfy the requirements of Section 170 of the Motor Vehicles Act, 1988. In the matter at hands, although owner and driver had not contested the claim and, thus, clause (b) of Section 170 was satisfied, the insurance company had raised one technical defence and although they had raised other defences in the written statement, those were raised without permission from the Tribunal by an application u/s 170, for the reasons to be recorded in writing by the Tribunal. | 0[ds]6. We have gone through the written statement that is filed by appellant insurance company before the Tribunal. In paras 1 to 19, it has denied all the contentions raised by the claimants in the petition, para by para. Paras 20 to 25 are captioned as additional statement and, thus, separated from other part of written statement, which constitutes mainly the denials. On going through entire written statement, we have not been able to find any defence raised by the insurance company, which would attract Section 149(2) of the Motor Vehicles Act. Only a passing reference to such defence is available in para 25 wherein insurance company has stated that the truck driver was not holding driving licence. On going through the impugned judgment, there does not appear any attempt on the part of insurance company to prove such a contention.7. Taking into consideration the ratio laid down by the Supreme Court, insurance company could not have contested the claim before the Tribunal on all the defences available to the owner such as contributory negligence or quantum of the compensation awardable. Since there is no prayer in the written statement, even by suggestive sentences that in view of absence of owner and driver inspite of service, insurance company may be allowed to raise all the defences, it cannot presumed even by implications that appellant insurance company is granted permission to raise all the defences as required by Section 170. In fact, as can be seen from the text of Section 170 and the ratio laid down by the Supreme Court, the Tribunal is required to record a reasoned order before allowing the insurance company to raise all the defences beyond the scope of Section 149(2) of M.V. Act, 1988, as are available to the owner and driver of the vehicle. This is a case wherein present insurance company could not have been allowed to raise any other defences except the one regarding the driver of the truck not holding driving licence, which was raised in the concluding sentence in the written statement. Consequently, appeal, if any, by the insurance company could have been only on this ground.8. We are afraid, the Division Bench view of Bombay High Court cannot be sustained or followed in the light of ratio laid down by the Supreme Court. The Supreme Court has mandated that in order that the insurance company may contest the claim on all grounds available to the owner, must satisfy the requirements of Section 170 of the Motor Vehicles Act, 1988. In the matter at hands, although owner and driver had not contested the claim and, thus, clause (b) of Section 170 was satisfied, the insurance company had raised one technical defence and although they had raised other defences in the written statement, those were raised without permission from the Tribunal by an application u/s 170, for the reasons to be recorded in writing by the Tribunal. | 0 | 1,440 | 545 | ### Instruction:
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town yesterday and would be available today, matters were fixed for final hearing today. When the matters were called out in the afternoon session, neither Advocate Shri Kasliwal nor Advocate Mrs. Jain were available inspite of search through Court Chobdar. However, Advocate Miss.Mamta Warma appeared and prayed for adjournment when we had made it clear to her that we are not inclined to grant adjournment. Consequently, none appeared for the appellants in First Appeal No.60/2003 and the same is required to be and is being dismissed in default.5. So far as First Appeal No.248/2000 is concerned, it is not in dispute that owner and driver of the goods truck, which was insured with appellant insurance company namely M/s United India Insurance Company Ltd., had remained ex-parte. In other words, in spite of service, they had not contested the claims. On our enquiry, Advocate Shri Upadhye, in all fairness, has conceded that no application u/s 170 of Motor Vehicles Act, 1988, was preferred by his insurance company before the trial Court seeking permission to contest the petition with all defences available also to the owner in view of non-appearance of owner and driver. Our attention is drawn by Advocate Shri Darak, who represents the other vehicle, to judgment of the Supreme Court in the matter of National Insurance Company Ltd. Vs. Nicolletta Rohtagi (2002 AIR SCW 3899) and more particularly contents from paras 25, 31 and 32. For the convenient reference, although the learned counsel have taken us through major portion of the reported judgment, we are reproducing only part from the first head note, which suggests against the maintainability of present appeal filed by insurance company:"Even if no appeal is preferred under Section 173 of 1988 Act by an insured against the award of a Tribunal, it is not permissible for an insurer to file an appeal questioning the quantum of compensation as well as finding as regards negligence or contributory negligence of the offending vehicle unless the conditions precedent specified in S.170 of 1988 Act is satisfied."6. We have gone through the written statement that is filed by appellant insurance company before the Tribunal. In paras 1 to 19, it has denied all the contentions raised by the claimants in the petition, para by para. Paras 20 to 25 are captioned as additional statement and, thus, separated from other part of written statement, which constitutes mainly the denials. On going through entire written statement, we have not been able to find any defence raised by the insurance company, which would attract Section 149(2) of the Motor Vehicles Act. Only a passing reference to such defence is available in para 25 wherein insurance company has stated that the truck driver was not holding driving licence. On going through the impugned judgment, there does not appear any attempt on the part of insurance company to prove such a contention.7. Taking into consideration the ratio laid down by the Supreme Court, insurance company could not have contested the claim before the Tribunal on all the defences available to the owner such as contributory negligence or quantum of the compensation awardable. Since there is no prayer in the written statement, even by suggestive sentences that in view of absence of owner and driver inspite of service, insurance company may be allowed to raise all the defences, it cannot presumed even by implications that appellant insurance company is granted permission to raise all the defences as required by Section 170. In fact, as can be seen from the text of Section 170 and the ratio laid down by the Supreme Court, the Tribunal is required to record a reasoned order before allowing the insurance company to raise all the defences beyond the scope of Section 149(2) of M.V. Act, 1988, as are available to the owner and driver of the vehicle. This is a case wherein present insurance company could not have been allowed to raise any other defences except the one regarding the driver of the truck not holding driving licence, which was raised in the concluding sentence in the written statement. Consequently, appeal, if any, by the insurance company could have been only on this ground. Advocate Shri Upadhye has tried to meet the argument raised by Advocate Shri Darak against the maintainability of the appeal by referring to Division Bench judgment of Bombay High Court reported at 1990 ACJ 60 - Oriental Fire & General Insurance Company Ltd. Vs. Rajrani Surendrakumar Sharma & others. He has relied upon contents in para 9, which read thus:"Therefore, if the person against whom the claim is made has failed to contest the claim, the insurer gets a right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. Section 110-C(2-A) provides that in such a case if the insurer is not a party, the court may, for reasons to be recorded by it in writing, direct that the insurer who may be made liable in respect of such a claim shall be impleaded as a party. The insurer so impleaded thereupon gets the right to contest the claim on all grounds available to the person against whom the claim is made."8. We are afraid, the Division Bench view of Bombay High Court cannot be sustained or followed in the light of ratio laid down by the Supreme Court. The Supreme Court has mandated that in order that the insurance company may contest the claim on all grounds available to the owner, must satisfy the requirements of Section 170 of the Motor Vehicles Act, 1988. In the matter at hands, although owner and driver had not contested the claim and, thus, clause (b) of Section 170 was satisfied, the insurance company had raised one technical defence and although they had raised other defences in the written statement, those were raised without permission from the Tribunal by an application u/s 170, for the reasons to be recorded in writing by the Tribunal.
### Response:
0
### Explanation:
6. We have gone through the written statement that is filed by appellant insurance company before the Tribunal. In paras 1 to 19, it has denied all the contentions raised by the claimants in the petition, para by para. Paras 20 to 25 are captioned as additional statement and, thus, separated from other part of written statement, which constitutes mainly the denials. On going through entire written statement, we have not been able to find any defence raised by the insurance company, which would attract Section 149(2) of the Motor Vehicles Act. Only a passing reference to such defence is available in para 25 wherein insurance company has stated that the truck driver was not holding driving licence. On going through the impugned judgment, there does not appear any attempt on the part of insurance company to prove such a contention.7. Taking into consideration the ratio laid down by the Supreme Court, insurance company could not have contested the claim before the Tribunal on all the defences available to the owner such as contributory negligence or quantum of the compensation awardable. Since there is no prayer in the written statement, even by suggestive sentences that in view of absence of owner and driver inspite of service, insurance company may be allowed to raise all the defences, it cannot presumed even by implications that appellant insurance company is granted permission to raise all the defences as required by Section 170. In fact, as can be seen from the text of Section 170 and the ratio laid down by the Supreme Court, the Tribunal is required to record a reasoned order before allowing the insurance company to raise all the defences beyond the scope of Section 149(2) of M.V. Act, 1988, as are available to the owner and driver of the vehicle. This is a case wherein present insurance company could not have been allowed to raise any other defences except the one regarding the driver of the truck not holding driving licence, which was raised in the concluding sentence in the written statement. Consequently, appeal, if any, by the insurance company could have been only on this ground.8. We are afraid, the Division Bench view of Bombay High Court cannot be sustained or followed in the light of ratio laid down by the Supreme Court. The Supreme Court has mandated that in order that the insurance company may contest the claim on all grounds available to the owner, must satisfy the requirements of Section 170 of the Motor Vehicles Act, 1988. In the matter at hands, although owner and driver had not contested the claim and, thus, clause (b) of Section 170 was satisfied, the insurance company had raised one technical defence and although they had raised other defences in the written statement, those were raised without permission from the Tribunal by an application u/s 170, for the reasons to be recorded in writing by the Tribunal.
|
Metal Powder Company Ltd Vs. Oriental Insurance Co. Ltd | Clauses which formed a part of the terms and conditions of the Insurance Policy. Clause 4.6 is to the following effect: “4.6 Loss damage or expense arising from insolvency or financial default of the owners managers charterers or operators of the vessel.” 4. Following the repudiation of its claim legal notice was issued on behalf of the plaintiff and as the same was not responded to the suit in question was filed claiming the value of the goods insured i.e. Rs. 2,65,000/- alongwith interest @ 18% per annum calculated from 21.03.1984 to 30.09.1985 which was quantified at Rs.73,053/-. 5. The claim made by the plaintiff was resisted by the defendant Insurer by relying on the exclusion clause, noticed above. According to the defendant the ship was abandoned by its owners on account of financial difficulties in meeting the cost of repairs. The claim was also resisted by the defendant on the ground that there was no damage to the cargo in transit and in fact the defendant had arranged with a third party for transporting the cargo to its destination at an additional cost of US$ 900 to be paid by the plaintiff which offer was, however, rejected by the plaintiff.6. The learned Trial Court decreed the plaintiff’s suit for an amount of Rs. 3,38,053/- inclusive of interest at 18% per annum upto 30.09.1985. Aggrieved, the Insurance Company filed a regular first appeal before the Madras High Court which was allowed by the impugned judgment and order dated 28.04.2006 on the ground that as per the terms and conditions of the policy, the plaintiff was not entitled to its claim as “the liability of the Insurance Company is excluded when the ship owners are declared as insolvent.” Aggrieved, the present appeal has been filed by the plaintiff. 7. We have heard Mr. V. Prabhakar, learned counsel for the plaintiff-appellant and Mr. M.K. Dua, learned counsel for the defendant-Insurance Company. 8. Learned counsel for the appellant has strenuously urged that there is no material on record to hold that the owners of the ship have been adjudged as insolvent or bankrupt so as to attract exclusion clause 4.6 of the Insurance Policy under which the liability of the insurer is excluded in case of loss or damage arising from the insolvency or financial default of the owners etc. of the vessel. Referring to the communication dated 05.01.1984 learned counsel has submitted that the reason for abandonment of the ship by the owners is that the estimate of the cost of repairs are much higher than the insured value of the ship. It is pointed out that the letter dated 14.10.1985 (Exbt.D-37) relied upon by the defendant to show financial default and bankruptcy of the owners of the vessel does not contain any basis to support the contention advanced. Learned counsel has further pointed out that the risks covered by the Policy included ‘non-delivery of the goods at Maravankulam’ and the cargo not having been so delivered, the defendant is clearly liable. It is also contended that the alleged arrangement made by the insurer to have the goods transported by a third party on payment of additional cost of US$ 900 by the plaintiff was outside the scope of the agreement between the parties and hence was rightly rejected by the plaintiff.9. On the other hand, learned counsel for the insurer has contended that under the Policy, the risk covered was in respect of the loss and damage to the subject matter insured. It is pointed out that in the present case the cargo which was insured was in perfect condition and no loss or damage was caused to it. Learned counsel has also relied on Clause 5.1 of the Institute Cargo Clauses (A), which formed a part of the insurance agreement between the parties, to contend that the loss or damage claimed by the plaintiff is not covered by the policy. 10. Under the Policy the risks covered are : “All risks” Marine, theft, pilferage, non-delivery, civil commotion, strikes, riots, breakage, damage, dentage, etc.” 11. ‘Non-delivery’ being a specific risk covered by the Insurance Policy, the failure to deliver the cargo, as agreed, would clearly amount to loss of the subject matter insured. The situations in which the insurer could avoid its liability are contemplated by the exclusion clauses. Clause 4.6 which was sought to be invoked by the defendant insurer excludes the liability of the insurer for loss or damage arising from the insolvency or financial default of the owners etc. Insolvency or bankruptcy would always be a matter of authoritative determination under the relevant municipal laws of a country and certainly not a matter of individual perceptions and opinions. No material to establish the insolvency or bankruptcy of the owners is available on record. In fact, in the earliest communication i.e. dated 05.01.1984, the plaintiff was informed that the repair cost of the vessel having exceeded the insured value, the owners had decided to abandon the ship. The said act on the part of owners cannot have the effect of their being adjudged as insolvents, which Clause 4.6 contemplates. The subsequent communication of the insurer dated 14.10.1985 (Exbt. D-3), relied upon by the defendant, is a mere assertion made by it that the owners have become bankrupt. The same is neither conclusive nor determinative of the question and appears to have been made by the insurer only to attract Clause 4.6. In the absence of any material whatsoever to show that Clause 4.6 can be attracted to the present case, the finding to the said effect, recorded by the High Court, cannot be sustained.12. Insofar as Clause 5.1 is concerned the same ex facie is not attracted inasmuch as no question of unseaworthiness of the vessel, much less, prior knowledge of the plaintiff of such unseaworthiness can and does not arise in the present case so as to exclude the loss and damage suffered by the plaintiff from the purview of the Insurance Cover as contemplated by Clause 5.1. | 1[ds]ng a specific risk covered by the Insurance Policy, the failure to deliver the cargo, as agreed, would clearly amount to loss of the subject matter insured. The situations in which the insurer could avoid its liability are contemplated by the exclusion clauses. Clause 4.6 which was sought to be invoked by the defendant insurer excludes the liability of the insurer for loss or damage arising from the insolvency or financial default of the owners etc. Insolvency or bankruptcy would always be a matter of authoritative determination under the relevant municipal laws of a country and certainly not a matter of individual perceptions and opinions. No material to establish the insolvency or bankruptcy of the owners is available on record. In fact, in the earliest communication i.e. dated 05.01.1984, the plaintiff was informed that the repair cost of the vessel having exceeded the insured value, the owners had decided to abandon the ship. The said act on the part of owners cannot have the effect of their being adjudged as insolvents, which Clause 4.6 contemplates. The subsequent communication of the insurer dated 14.10.1985 (Exbt.relied upon by the defendant, is a mere assertion made by it that the owners have become bankrupt. The same is neither conclusive nor determinative of the question and appears to have been made by the insurer only to attract Clause 4.6. In the absence of any material whatsoever to show that Clause 4.6 can be attracted to the present case, the finding to the said effect, recorded by the High Court, cannot be sustained.12. Insofar as Clause 5.1 is concerned the same ex facie is not attracted inasmuch as no question of unseaworthiness of the vessel, much less, prior knowledge of the plaintiff of such unseaworthiness can and does not arise in the present case so as to exclude the loss and damage suffered by the plaintiff from the purview of the Insurance Cover as contemplated by Clause 5.1. | 1 | 1,499 | 355 | ### 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:
Clauses which formed a part of the terms and conditions of the Insurance Policy. Clause 4.6 is to the following effect: “4.6 Loss damage or expense arising from insolvency or financial default of the owners managers charterers or operators of the vessel.” 4. Following the repudiation of its claim legal notice was issued on behalf of the plaintiff and as the same was not responded to the suit in question was filed claiming the value of the goods insured i.e. Rs. 2,65,000/- alongwith interest @ 18% per annum calculated from 21.03.1984 to 30.09.1985 which was quantified at Rs.73,053/-. 5. The claim made by the plaintiff was resisted by the defendant Insurer by relying on the exclusion clause, noticed above. According to the defendant the ship was abandoned by its owners on account of financial difficulties in meeting the cost of repairs. The claim was also resisted by the defendant on the ground that there was no damage to the cargo in transit and in fact the defendant had arranged with a third party for transporting the cargo to its destination at an additional cost of US$ 900 to be paid by the plaintiff which offer was, however, rejected by the plaintiff.6. The learned Trial Court decreed the plaintiff’s suit for an amount of Rs. 3,38,053/- inclusive of interest at 18% per annum upto 30.09.1985. Aggrieved, the Insurance Company filed a regular first appeal before the Madras High Court which was allowed by the impugned judgment and order dated 28.04.2006 on the ground that as per the terms and conditions of the policy, the plaintiff was not entitled to its claim as “the liability of the Insurance Company is excluded when the ship owners are declared as insolvent.” Aggrieved, the present appeal has been filed by the plaintiff. 7. We have heard Mr. V. Prabhakar, learned counsel for the plaintiff-appellant and Mr. M.K. Dua, learned counsel for the defendant-Insurance Company. 8. Learned counsel for the appellant has strenuously urged that there is no material on record to hold that the owners of the ship have been adjudged as insolvent or bankrupt so as to attract exclusion clause 4.6 of the Insurance Policy under which the liability of the insurer is excluded in case of loss or damage arising from the insolvency or financial default of the owners etc. of the vessel. Referring to the communication dated 05.01.1984 learned counsel has submitted that the reason for abandonment of the ship by the owners is that the estimate of the cost of repairs are much higher than the insured value of the ship. It is pointed out that the letter dated 14.10.1985 (Exbt.D-37) relied upon by the defendant to show financial default and bankruptcy of the owners of the vessel does not contain any basis to support the contention advanced. Learned counsel has further pointed out that the risks covered by the Policy included ‘non-delivery of the goods at Maravankulam’ and the cargo not having been so delivered, the defendant is clearly liable. It is also contended that the alleged arrangement made by the insurer to have the goods transported by a third party on payment of additional cost of US$ 900 by the plaintiff was outside the scope of the agreement between the parties and hence was rightly rejected by the plaintiff.9. On the other hand, learned counsel for the insurer has contended that under the Policy, the risk covered was in respect of the loss and damage to the subject matter insured. It is pointed out that in the present case the cargo which was insured was in perfect condition and no loss or damage was caused to it. Learned counsel has also relied on Clause 5.1 of the Institute Cargo Clauses (A), which formed a part of the insurance agreement between the parties, to contend that the loss or damage claimed by the plaintiff is not covered by the policy. 10. Under the Policy the risks covered are : “All risks” Marine, theft, pilferage, non-delivery, civil commotion, strikes, riots, breakage, damage, dentage, etc.” 11. ‘Non-delivery’ being a specific risk covered by the Insurance Policy, the failure to deliver the cargo, as agreed, would clearly amount to loss of the subject matter insured. The situations in which the insurer could avoid its liability are contemplated by the exclusion clauses. Clause 4.6 which was sought to be invoked by the defendant insurer excludes the liability of the insurer for loss or damage arising from the insolvency or financial default of the owners etc. Insolvency or bankruptcy would always be a matter of authoritative determination under the relevant municipal laws of a country and certainly not a matter of individual perceptions and opinions. No material to establish the insolvency or bankruptcy of the owners is available on record. In fact, in the earliest communication i.e. dated 05.01.1984, the plaintiff was informed that the repair cost of the vessel having exceeded the insured value, the owners had decided to abandon the ship. The said act on the part of owners cannot have the effect of their being adjudged as insolvents, which Clause 4.6 contemplates. The subsequent communication of the insurer dated 14.10.1985 (Exbt. D-3), relied upon by the defendant, is a mere assertion made by it that the owners have become bankrupt. The same is neither conclusive nor determinative of the question and appears to have been made by the insurer only to attract Clause 4.6. In the absence of any material whatsoever to show that Clause 4.6 can be attracted to the present case, the finding to the said effect, recorded by the High Court, cannot be sustained.12. Insofar as Clause 5.1 is concerned the same ex facie is not attracted inasmuch as no question of unseaworthiness of the vessel, much less, prior knowledge of the plaintiff of such unseaworthiness can and does not arise in the present case so as to exclude the loss and damage suffered by the plaintiff from the purview of the Insurance Cover as contemplated by Clause 5.1.
### Response:
1
### Explanation:
ng a specific risk covered by the Insurance Policy, the failure to deliver the cargo, as agreed, would clearly amount to loss of the subject matter insured. The situations in which the insurer could avoid its liability are contemplated by the exclusion clauses. Clause 4.6 which was sought to be invoked by the defendant insurer excludes the liability of the insurer for loss or damage arising from the insolvency or financial default of the owners etc. Insolvency or bankruptcy would always be a matter of authoritative determination under the relevant municipal laws of a country and certainly not a matter of individual perceptions and opinions. No material to establish the insolvency or bankruptcy of the owners is available on record. In fact, in the earliest communication i.e. dated 05.01.1984, the plaintiff was informed that the repair cost of the vessel having exceeded the insured value, the owners had decided to abandon the ship. The said act on the part of owners cannot have the effect of their being adjudged as insolvents, which Clause 4.6 contemplates. The subsequent communication of the insurer dated 14.10.1985 (Exbt.relied upon by the defendant, is a mere assertion made by it that the owners have become bankrupt. The same is neither conclusive nor determinative of the question and appears to have been made by the insurer only to attract Clause 4.6. In the absence of any material whatsoever to show that Clause 4.6 can be attracted to the present case, the finding to the said effect, recorded by the High Court, cannot be sustained.12. Insofar as Clause 5.1 is concerned the same ex facie is not attracted inasmuch as no question of unseaworthiness of the vessel, much less, prior knowledge of the plaintiff of such unseaworthiness can and does not arise in the present case so as to exclude the loss and damage suffered by the plaintiff from the purview of the Insurance Cover as contemplated by Clause 5.1.
|
State Of Punjab And Ors Vs. Om Prakash Baldev Krishan | to arbitration. Section 175(3) of the Government of India Act, 1935 provided as followsSubject to the provisions of this Act with respect to the Federal Railway Authority, all contracts made in the exercise of the executive authority of the Federation or of a Province shall be, expressed to be made by the Governor-general, or by the Governor of the Province, as the case may be, and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the Governor-general or Governor by such persons and in such manner as he may direct or authorise. 13. This Court reiterated that under that section a contract entered into by the Governor of a Province must satisfy three conditions, namely, (i) it must be expressed to be made by the Governor; (ii) it must be executed; and (iii) the execution should be by such persons and in such manner as the Governor might direct or authorise. These three conditions are required to be fulfilled. This position was reiterated by this court again in Seth Bikhraj Jaipuria v. Union of India ((1962) 2 SCR 880 : AIR 1962 SC 113 ). This Court explained that three conditions as mentioned in State of Bihar v. M/s. Karam Chand Thapar ((1962) 1 SCR 827 : AIR 1962 SC 110 ) had to be fulfilled, and further reiterated that the object of enacting these provisions was that the State should not be saddled with liability for unauthorised contracts and, hence, it was provided that the contracts must show on their faces that these were made by the Governor-General and executed on his behalf in the manner prescribed by the person authorised. It is based on public policy. No question of waiver arises in such a situation. If once that position is reached, and that position is well settled by the authorities over a long lapse of time, no question of examining the purpose of this requirement arises. In Union of India v. A. L. Rallia Ram ((1964) 3 SCR 164 : AIR 1963 SC 1685 ) this Court again reiterated that the agreement under arbitration with the government must be in accordance with Section 175(3) of the Government of India Act, 1935. These principles were again reiterated by this Court in Timber Kashmir Pvt. Ltd. v. Conservator of Forests, Jammu ((1977) 1 SCR 937 : (1976) 4 SCC 497 ). There, the court was concerned with Section 122(1) of the Jammu & Kashmir Constitution which corresponded to Article 299(1) of the Constitution of India. In that case all the three applications filed by the respondent State for a reference to an arbitrator under Section 20 of the Jammu & Kashmir Arbitration Act, were dismissed by a Single Judge of the Jammu & Kashmir Arbitration Act, were dismissed by a Single Judge of the Jammu & Kashmir High Court on the ground that the arbitration clause was, in each case, a part of an agreement which was not duly executed in accordance with the provisions of Section 122(1) of the Jammu & Kashmir Constitution which corresponded to those of Article 299(1) of the Constitution of India. But the Division Bench allowed the appeals holding that if contracts were signed by the Conservator of Forests in compliance with an order of the government, the provisions of Section 122(1) of the Jammu & Kashmir Constitution could not be said to have been infringed. This Court held that the contract could not be executed without the sanction. Nevertheless, if the sanction could be either expressly or impliedly given by or on behalf of the government, as it could, and, if some acts of the government could fasten some obligations upon the government, the lessee could also be estopped from questioning the terms of the grant of the sanction even where there is no written contract executed to bind the lessee. But, once there had been a valid execution of lessee by duly authorised officers, the documents would be the best evidence of sanction. In that case, the contracts were executed on behalf of the Government of Jammu & Kashmir. The only question with which the court was concerned in that case was whether the contracts executed by duly authorised officials had been proved or not. It was held that it was so proved. 14. In Bihar Eastern Gangetic Fishermen Co-operative society Ltd. v. Sipahi Singh ((1977) 4 SCC 145 : (1978) 1 SCR 375 ) where this Court relied on a previous decision in Mulamchand v. State of Madhya Pradesh ((1968) 3 SCR 214 : AIR 1968 SC 1218 ) and reiterated that there cannot be any question of estoppel or ratification in a case where there is contravention of the provisions of Article 299(1) of the Constitution. The reason is that the provisions of Section 175(3) of the Government of India Act and the corresponding provisions of Article 299(1) of the Constitution have not been enacted for the sake of mere form but they have been enacted for safeguarding the government against unauthorised contracts. The provisions are embodied in Section 175(3) of the Government of India Act and Article 299(1) of the Constitution on the ground of public policy - on the ground of protection of general public .... and these formalities cannot be waived or dispensed with. This Court again reiterated the three conditions mentioned hereinbefore. The same principle was again reiterated by this Court in Union of India v. M/s. Hanuman Oil Mills Ltd. (1987 Supp SCC 84). 15. In the instant case, we have referred to the letter dated August 31, 1976 which towards the end stated that the parties were to attend the office within 10 days to sign the agreement which is under preparation. It is common ground that no such agreement was signed. 16. In the aforesaid view of the matter the High Court was right in the view it took and the submissions made on behalf of the appellants cannot be entertained. 17. | 0[ds]13. This Court reiterated that under that section a contract entered into by the Governor of a Province must satisfy three conditions, namely, (i) it must be expressed to be made by the Governor; (ii) it must be executed; and (iii) the execution should be by such persons and in such manner as the Governor might direct or authorise. These three conditions are required to be fulfilled. This position was reiterated by this court again in Seth Bikhraj Jaipuria v. Union of India ((1962) 2 SCR 880 : AIR 1962 SC 113 ). This Court explained that three conditions as mentioned in State of Bihar v. M/s. Karam Chand Thapar ((1962) 1 SCR 827 : AIR 1962 SC 110 ) had to be fulfilled, and further reiterated that the object of enacting these provisions was that the State should not be saddled with liability for unauthorised contracts and, hence, it was provided that the contracts must show on their faces that these were made by theand executed on his behalf in the manner prescribed by the person authorised. It is based on public policy. No question of waiver arises in such a situation. If once that position is reached, and that position is well settled by the authorities over a long lapse of time, no question of examining the purpose of this requirement arises. In Union of India v. A. L. Rallia Ram ((1964) 3 SCR 164 : AIR 1963 SC 1685 ) this Court again reiterated that the agreement under arbitration with the government must be in accordance with Section 175(3) of the Government of India Act, 1935. These principles were again reiterated by this Court in Timber Kashmir Pvt. Ltd. v. Conservator of Forests, Jammu ((1977) 1 SCR 937 : (1976) 4 SCC 497 ). There, the court was concerned with Section 122(1) of the Jammu & Kashmir Constitution which corresponded to Article 299(1) of the Constitution of India. In that case all the three applications filed by the respondent State for a reference to an arbitrator under Section 20 of the Jammu & Kashmir Arbitration Act, were dismissed by a Single Judge of the Jammu & Kashmir Arbitration Act, were dismissed by a Single Judge of the Jammu & Kashmir High Court on the ground that the arbitration clause was, in each case, a part of an agreement which was not duly executed in accordance with the provisions of Section 122(1) of the Jammu & Kashmir Constitution which corresponded to those of Article 299(1) of the Constitution of India. But the Division Bench allowed the appeals holding that if contracts were signed by the Conservator of Forests in compliance with an order of the government, the provisions of Section 122(1) of the Jammu & Kashmir Constitution could not be said to have been infringed. This Court held that the contract could not be executed without the sanction. Nevertheless, if the sanction could be either expressly or impliedly given by or on behalf of the government, as it could, and, if some acts of the government could fasten some obligations upon the government, the lessee could also be estopped from questioning the terms of the grant of the sanction even where there is no written contract executed to bind the lessee. But, once there had been a valid execution of lessee by duly authorised officers, the documents would be the best evidence of sanction. In that case, the contracts were executed on behalf of the Government of Jammu & Kashmir. The only question with which the court was concerned in that case was whether the contracts executed by duly authorised officials had been proved or not. It was held that it was soIn Bihar Eastern Gangetic Fishermensociety Ltd. v. Sipahi Singh ((1977) 4 SCC 145 : (1978) 1 SCR 375 ) where this Court relied on a previous decision in Mulamchand v. State of Madhya Pradesh ((1968) 3 SCR 214 : AIR 1968 SC 1218 ) and reiterated that there cannot be any question of estoppel or ratification in a case where there is contravention of the provisions of Article 299(1) of the Constitution. The reason is that the provisions of Section 175(3) of the Government of India Act and the corresponding provisions of Article 299(1) of the Constitution have not been enacted for the sake of mere form but they have been enacted for safeguarding the government against unauthorised contracts. The provisions are embodied in Section 175(3) of the Government of India Act and Article 299(1) of the Constitution on the ground of public policyon the ground of protection of general public .... and these formalities cannot be waived or dispensed with. This Court again reiterated the three conditions mentioned hereinbefore. The same principle was again reiterated by this Court in Union of India v. M/s. Hanuman Oil Mills Ltd. (1987 Supp SCCIn the instant case, we have referred to the letter dated August 31, 1976 which towards the end stated that the parties were to attend the office within 10 days to sign the agreement which is under preparation. It is common ground that no such agreement wasIn the aforesaid view of the matter the High Court was right in the view it took and the submissions made on behalf of the appellants cannot be entertained. | 0 | 3,580 | 1,003 | ### 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:
to arbitration. Section 175(3) of the Government of India Act, 1935 provided as followsSubject to the provisions of this Act with respect to the Federal Railway Authority, all contracts made in the exercise of the executive authority of the Federation or of a Province shall be, expressed to be made by the Governor-general, or by the Governor of the Province, as the case may be, and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the Governor-general or Governor by such persons and in such manner as he may direct or authorise. 13. This Court reiterated that under that section a contract entered into by the Governor of a Province must satisfy three conditions, namely, (i) it must be expressed to be made by the Governor; (ii) it must be executed; and (iii) the execution should be by such persons and in such manner as the Governor might direct or authorise. These three conditions are required to be fulfilled. This position was reiterated by this court again in Seth Bikhraj Jaipuria v. Union of India ((1962) 2 SCR 880 : AIR 1962 SC 113 ). This Court explained that three conditions as mentioned in State of Bihar v. M/s. Karam Chand Thapar ((1962) 1 SCR 827 : AIR 1962 SC 110 ) had to be fulfilled, and further reiterated that the object of enacting these provisions was that the State should not be saddled with liability for unauthorised contracts and, hence, it was provided that the contracts must show on their faces that these were made by the Governor-General and executed on his behalf in the manner prescribed by the person authorised. It is based on public policy. No question of waiver arises in such a situation. If once that position is reached, and that position is well settled by the authorities over a long lapse of time, no question of examining the purpose of this requirement arises. In Union of India v. A. L. Rallia Ram ((1964) 3 SCR 164 : AIR 1963 SC 1685 ) this Court again reiterated that the agreement under arbitration with the government must be in accordance with Section 175(3) of the Government of India Act, 1935. These principles were again reiterated by this Court in Timber Kashmir Pvt. Ltd. v. Conservator of Forests, Jammu ((1977) 1 SCR 937 : (1976) 4 SCC 497 ). There, the court was concerned with Section 122(1) of the Jammu & Kashmir Constitution which corresponded to Article 299(1) of the Constitution of India. In that case all the three applications filed by the respondent State for a reference to an arbitrator under Section 20 of the Jammu & Kashmir Arbitration Act, were dismissed by a Single Judge of the Jammu & Kashmir Arbitration Act, were dismissed by a Single Judge of the Jammu & Kashmir High Court on the ground that the arbitration clause was, in each case, a part of an agreement which was not duly executed in accordance with the provisions of Section 122(1) of the Jammu & Kashmir Constitution which corresponded to those of Article 299(1) of the Constitution of India. But the Division Bench allowed the appeals holding that if contracts were signed by the Conservator of Forests in compliance with an order of the government, the provisions of Section 122(1) of the Jammu & Kashmir Constitution could not be said to have been infringed. This Court held that the contract could not be executed without the sanction. Nevertheless, if the sanction could be either expressly or impliedly given by or on behalf of the government, as it could, and, if some acts of the government could fasten some obligations upon the government, the lessee could also be estopped from questioning the terms of the grant of the sanction even where there is no written contract executed to bind the lessee. But, once there had been a valid execution of lessee by duly authorised officers, the documents would be the best evidence of sanction. In that case, the contracts were executed on behalf of the Government of Jammu & Kashmir. The only question with which the court was concerned in that case was whether the contracts executed by duly authorised officials had been proved or not. It was held that it was so proved. 14. In Bihar Eastern Gangetic Fishermen Co-operative society Ltd. v. Sipahi Singh ((1977) 4 SCC 145 : (1978) 1 SCR 375 ) where this Court relied on a previous decision in Mulamchand v. State of Madhya Pradesh ((1968) 3 SCR 214 : AIR 1968 SC 1218 ) and reiterated that there cannot be any question of estoppel or ratification in a case where there is contravention of the provisions of Article 299(1) of the Constitution. The reason is that the provisions of Section 175(3) of the Government of India Act and the corresponding provisions of Article 299(1) of the Constitution have not been enacted for the sake of mere form but they have been enacted for safeguarding the government against unauthorised contracts. The provisions are embodied in Section 175(3) of the Government of India Act and Article 299(1) of the Constitution on the ground of public policy - on the ground of protection of general public .... and these formalities cannot be waived or dispensed with. This Court again reiterated the three conditions mentioned hereinbefore. The same principle was again reiterated by this Court in Union of India v. M/s. Hanuman Oil Mills Ltd. (1987 Supp SCC 84). 15. In the instant case, we have referred to the letter dated August 31, 1976 which towards the end stated that the parties were to attend the office within 10 days to sign the agreement which is under preparation. It is common ground that no such agreement was signed. 16. In the aforesaid view of the matter the High Court was right in the view it took and the submissions made on behalf of the appellants cannot be entertained. 17.
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13. This Court reiterated that under that section a contract entered into by the Governor of a Province must satisfy three conditions, namely, (i) it must be expressed to be made by the Governor; (ii) it must be executed; and (iii) the execution should be by such persons and in such manner as the Governor might direct or authorise. These three conditions are required to be fulfilled. This position was reiterated by this court again in Seth Bikhraj Jaipuria v. Union of India ((1962) 2 SCR 880 : AIR 1962 SC 113 ). This Court explained that three conditions as mentioned in State of Bihar v. M/s. Karam Chand Thapar ((1962) 1 SCR 827 : AIR 1962 SC 110 ) had to be fulfilled, and further reiterated that the object of enacting these provisions was that the State should not be saddled with liability for unauthorised contracts and, hence, it was provided that the contracts must show on their faces that these were made by theand executed on his behalf in the manner prescribed by the person authorised. It is based on public policy. No question of waiver arises in such a situation. If once that position is reached, and that position is well settled by the authorities over a long lapse of time, no question of examining the purpose of this requirement arises. In Union of India v. A. L. Rallia Ram ((1964) 3 SCR 164 : AIR 1963 SC 1685 ) this Court again reiterated that the agreement under arbitration with the government must be in accordance with Section 175(3) of the Government of India Act, 1935. These principles were again reiterated by this Court in Timber Kashmir Pvt. Ltd. v. Conservator of Forests, Jammu ((1977) 1 SCR 937 : (1976) 4 SCC 497 ). There, the court was concerned with Section 122(1) of the Jammu & Kashmir Constitution which corresponded to Article 299(1) of the Constitution of India. In that case all the three applications filed by the respondent State for a reference to an arbitrator under Section 20 of the Jammu & Kashmir Arbitration Act, were dismissed by a Single Judge of the Jammu & Kashmir Arbitration Act, were dismissed by a Single Judge of the Jammu & Kashmir High Court on the ground that the arbitration clause was, in each case, a part of an agreement which was not duly executed in accordance with the provisions of Section 122(1) of the Jammu & Kashmir Constitution which corresponded to those of Article 299(1) of the Constitution of India. But the Division Bench allowed the appeals holding that if contracts were signed by the Conservator of Forests in compliance with an order of the government, the provisions of Section 122(1) of the Jammu & Kashmir Constitution could not be said to have been infringed. This Court held that the contract could not be executed without the sanction. Nevertheless, if the sanction could be either expressly or impliedly given by or on behalf of the government, as it could, and, if some acts of the government could fasten some obligations upon the government, the lessee could also be estopped from questioning the terms of the grant of the sanction even where there is no written contract executed to bind the lessee. But, once there had been a valid execution of lessee by duly authorised officers, the documents would be the best evidence of sanction. In that case, the contracts were executed on behalf of the Government of Jammu & Kashmir. The only question with which the court was concerned in that case was whether the contracts executed by duly authorised officials had been proved or not. It was held that it was soIn Bihar Eastern Gangetic Fishermensociety Ltd. v. Sipahi Singh ((1977) 4 SCC 145 : (1978) 1 SCR 375 ) where this Court relied on a previous decision in Mulamchand v. State of Madhya Pradesh ((1968) 3 SCR 214 : AIR 1968 SC 1218 ) and reiterated that there cannot be any question of estoppel or ratification in a case where there is contravention of the provisions of Article 299(1) of the Constitution. The reason is that the provisions of Section 175(3) of the Government of India Act and the corresponding provisions of Article 299(1) of the Constitution have not been enacted for the sake of mere form but they have been enacted for safeguarding the government against unauthorised contracts. The provisions are embodied in Section 175(3) of the Government of India Act and Article 299(1) of the Constitution on the ground of public policyon the ground of protection of general public .... and these formalities cannot be waived or dispensed with. This Court again reiterated the three conditions mentioned hereinbefore. The same principle was again reiterated by this Court in Union of India v. M/s. Hanuman Oil Mills Ltd. (1987 Supp SCCIn the instant case, we have referred to the letter dated August 31, 1976 which towards the end stated that the parties were to attend the office within 10 days to sign the agreement which is under preparation. It is common ground that no such agreement wasIn the aforesaid view of the matter the High Court was right in the view it took and the submissions made on behalf of the appellants cannot be entertained.
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Noble Resources Ltd Vs. State Of Orissa | have also noticed hereinbefore that there had been no complaint on the part of the Appellant in regard to the supply of iron ore fines till August, 2003, by which time 1,08,181 MT of iron ore fines was supplied in two installments. In the month of September 60,000 MT of Grade-B iron ore and 1,20,000 MT of Grade-A iron was to be supplied. According to the Respondent No. 2, however, such quantity was not possible in adherence of the schedule. We have noticed hereinbefore that in its additional affidavit before the High Court, the Respondent No.2 has not assigned any reason which can be said to be contrary to its earlier stand. Some more reasons have been assigned in regard to its inability to supply iron ore fines. It its Counter Affidavit, the Respondent No.2 stated: "That to sum up as per tender norms of the tender floated during February, 2003, the price and quantity was valid till end of September 2003 as there was constraint in convergence of ore by rake from Daitari to Pradip, the buyer was intimated by OMC Ltd., to conclude the contract on shipment to shipment basis. OMC would have concluded the contract for the entire tender quantity in one lot with M/s Noble Resources Ltd. Hong Kong had there been no constraint for convergence of cargo to Paradip...if the balance quantity against the tender norms would have been supplied to the petitioner company at the tendered prices of February, 2003 the Corporation would have incurred huge loss as the price of iron ore in the International Market has increased manifold." 38. We may herein notice a statement on tenders floated and accepted in respect of the iron ore fines after 30.09.2003, which is as under : DATE OF TENDER OPENINGQUALITY OF IRON ORE FINES QUANTITYHIGHEST PRICEPRICE QUOTED BY NOBLE USD/D MTSEE PRICE IN TENDER AT P.50 Quoted byPrice in USD/DMT 12.11.03B-Grade-60,000 MT +- 10%M/s. Burwill, Hong Kong47.1031.7514.96 C, Grade-60,000 MT+–10%M/s. Burwill, Hong Kong45.1029.2513.86 3.2.04C-Grade-1.20,000 MT +– 10%Sudamin Metal, London63.3059.8013.86 20.3.04C-Grade-1,20,000 MT +– 10%VISA Comtrade, AG, Switzerland75.0662.6813.86 22.6.04C-Grade-1,20,,000 MT +– 10%Noble Resources, Hong Kong25.7025.7013.86 7.9.04C-Grade-60,000 MT +– 10%IMR Resources, Hong Kong46.3544.6813.86 22.11.04C-Grade-1,20,000 MT +– 10%Noble Resources, Hong Kong40.1840.1813.86 24.1.05C-Grade-60,000 MT +– 10%Noble Resources, Hong Kong53.0853.0813.86 15.3.05C-Grade-60,000 MT +– 10%IMR Metallurgical Resources AG, Switzerland.58.1054.0013.86 39. The Appellant evidently participated in subsequent tenders. It became successful in some of them. It did not raise any protest. It took part in the said process without any demur. 40. We have noticed hereinbefore that the price of iron ore fines in the international market varied from time to time. After September, 2003, a tender was issued. The Appellant took part in the said tender. Its tender was accepted in relation to Grade-C iron ore fines. Its offers on 22.06.2004, 22.11.2004 and 24.01.2005 had also been accepted. 41. The table quoted hereinbefore also points out that the Appellant had also understood the implication of phenomenal rise in price in the international market. 42. We may at this juncture furthermore notice that the contractual terms came to an end in September, 2003. It participated in the bids of prices much higher than the contractual prices during the period 12.11.2003 and 03.02.2004. The stand of the Respondents that only having regard to the fact that there had been increase in the prices, the Appellant filed a writ petition only in February, 2004, cannot be said to be wholly misconceived. 43. The submission of Mr. Desai that rise in international price would not by itself be a relevant consideration to rescind the contract may be correct, but then the same was not the sole ground for the Respondent No.2 to refuse to supply iron ore fines to the Appellants. 44. Moreover, certain serious disputed questions of fact have arisen for determination. Such disputed questions of facts ordinarily could not have been entertained by the High Court in exercise of its power of judicial review. 45. Ordinarily, a specific performance of contract would not be enforced by issuing a writ of or in the nature of mandamus, particularly when keeping in view the provisions of the Specific Relief Act, 1963 damages may be an adequate remedy for breach of contract. 46. The questions as to whether OMC had the available stock of iron ore fines or the only ground to refuse supply thereof was the rise in international prices, are matters which could not have been fully and effectively adjudicated in the writ proceedings. It was difficult for the High to go into the other questions which have been raised before us by the Appellant, namely, the effect of the purported decision of OMC to offer to the Appellant 60,000 MT of A Grade iron ore fines provided the Appellant gave up all other contractual rights which stating the bad faith on the part of OMC. We may, however, notice that although a decision had allegedly been taken by OMC not to supply iron ore fines prior to the expiry of the contractual period, but the same had not been communicated. Its effect has to be determined keeping in view the fact as to whether the Appellant suffered any loss thereby. The reasons for non-supply, we may reiterate, may constitute a breach of contract but having regard to the conduct of the parties, it cannot be said that the same was so arbitrary so as to attract the wrath of Article 14 of the Constitution of India. Before us also what has been emphasized is the purported breaches of contract by the Respondent. A contention has also been raised by Mr. Desai that keeping in view the facts and circumstances of this case, this Court should mould the relief. We do not intend to do so and leave the parties to raise all contentions before an appropriate forum. 47. For the reasons aforementioned, we are of the opinion that although the approach of the High Court was not entirely correct, its ultimate decision to refuse to exercise its discretionary jurisdiction cannot be faulted with. | 0[ds]15. It is trite that if an action on the part of the State is violative the equality clause contained in Article 14 of the Constitution of India, a writ petition would be maintainable even in the contractual field. A distinction indisputably must be made between a matter which is at the threshold of a contract and a breach of contract; whereas in the former the courts scrutiny would be more intrusive, in the latter the court may not ordinarily exercise its discretionary jurisdiction of judicial review, unless it is found to be violative of Article 14 of the Constitution. While exercising contractual powers also, the government bodies may be subjected to judicial review in order to prevent arbitrariness or favouritism on its part. Indisputably, inherent limitations exist, but it would not be correct to opine that under no circumstances a writ will lie only because it involves a contractual matterIt may, however, be true that where serious disputed questions of fact are raised requiring appreciation of evidence, and, thus, for determination thereof, examination of witnesses would be necessary; it may not be convenient to decide the dispute in a proceeding under Article 226 of the Constitution of India45. Ordinarily, a specific performance of contract would not be enforced by issuing a writ of or in the nature of mandamus, particularly when keeping in view the provisions of the Specific Relief Act, 1963 damages may be an adequate remedy for breach of contract46. The questions as to whether OMC had the available stock of iron ore fines or the only ground to refuse supply thereof was the rise in international prices, are matters which could not have been fully and effectively adjudicated in the writ proceedings. It was difficult for the High to go into the other questions which have been raised before us by the Appellant, namely, the effect of the purported decision of OMC to offer to the Appellant 60,000 MT of A Grade iron ore fines provided the Appellant gave up all other contractual rights which stating the bad faith on the part of OMC. We may, however, notice that although a decision had allegedly been taken by OMC not to supply iron ore fines prior to the expiry of the contractual period, but the same had not been communicated. Its effect has to be determined keeping in view the fact as to whether the Appellant suffered any loss thereby. The reasons for non-supply, we may reiterate, may constitute a breach of contract but having regard to the conduct of the parties, it cannot be said that the same was so arbitrary so as to attract the wrath of Article 14 of the Constitution of India. Before us also what has been emphasized is the purported breaches of contract by the Respondent. A contention has also been raised by Mr. Desai that keeping in view the facts and circumstances of this case, this Court should mould the relief. We do not intend to do so and leave the parties to raise all contentions before an appropriate forum47. For the reasons aforementioned, we are of the opinion that although the approach of the High Court was not entirely correct, its ultimate decision to refuse to exercise its discretionary jurisdiction cannot be faulted with | 0 | 5,818 | 594 | ### Instruction:
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have also noticed hereinbefore that there had been no complaint on the part of the Appellant in regard to the supply of iron ore fines till August, 2003, by which time 1,08,181 MT of iron ore fines was supplied in two installments. In the month of September 60,000 MT of Grade-B iron ore and 1,20,000 MT of Grade-A iron was to be supplied. According to the Respondent No. 2, however, such quantity was not possible in adherence of the schedule. We have noticed hereinbefore that in its additional affidavit before the High Court, the Respondent No.2 has not assigned any reason which can be said to be contrary to its earlier stand. Some more reasons have been assigned in regard to its inability to supply iron ore fines. It its Counter Affidavit, the Respondent No.2 stated: "That to sum up as per tender norms of the tender floated during February, 2003, the price and quantity was valid till end of September 2003 as there was constraint in convergence of ore by rake from Daitari to Pradip, the buyer was intimated by OMC Ltd., to conclude the contract on shipment to shipment basis. OMC would have concluded the contract for the entire tender quantity in one lot with M/s Noble Resources Ltd. Hong Kong had there been no constraint for convergence of cargo to Paradip...if the balance quantity against the tender norms would have been supplied to the petitioner company at the tendered prices of February, 2003 the Corporation would have incurred huge loss as the price of iron ore in the International Market has increased manifold." 38. We may herein notice a statement on tenders floated and accepted in respect of the iron ore fines after 30.09.2003, which is as under : DATE OF TENDER OPENINGQUALITY OF IRON ORE FINES QUANTITYHIGHEST PRICEPRICE QUOTED BY NOBLE USD/D MTSEE PRICE IN TENDER AT P.50 Quoted byPrice in USD/DMT 12.11.03B-Grade-60,000 MT +- 10%M/s. Burwill, Hong Kong47.1031.7514.96 C, Grade-60,000 MT+–10%M/s. Burwill, Hong Kong45.1029.2513.86 3.2.04C-Grade-1.20,000 MT +– 10%Sudamin Metal, London63.3059.8013.86 20.3.04C-Grade-1,20,000 MT +– 10%VISA Comtrade, AG, Switzerland75.0662.6813.86 22.6.04C-Grade-1,20,,000 MT +– 10%Noble Resources, Hong Kong25.7025.7013.86 7.9.04C-Grade-60,000 MT +– 10%IMR Resources, Hong Kong46.3544.6813.86 22.11.04C-Grade-1,20,000 MT +– 10%Noble Resources, Hong Kong40.1840.1813.86 24.1.05C-Grade-60,000 MT +– 10%Noble Resources, Hong Kong53.0853.0813.86 15.3.05C-Grade-60,000 MT +– 10%IMR Metallurgical Resources AG, Switzerland.58.1054.0013.86 39. The Appellant evidently participated in subsequent tenders. It became successful in some of them. It did not raise any protest. It took part in the said process without any demur. 40. We have noticed hereinbefore that the price of iron ore fines in the international market varied from time to time. After September, 2003, a tender was issued. The Appellant took part in the said tender. Its tender was accepted in relation to Grade-C iron ore fines. Its offers on 22.06.2004, 22.11.2004 and 24.01.2005 had also been accepted. 41. The table quoted hereinbefore also points out that the Appellant had also understood the implication of phenomenal rise in price in the international market. 42. We may at this juncture furthermore notice that the contractual terms came to an end in September, 2003. It participated in the bids of prices much higher than the contractual prices during the period 12.11.2003 and 03.02.2004. The stand of the Respondents that only having regard to the fact that there had been increase in the prices, the Appellant filed a writ petition only in February, 2004, cannot be said to be wholly misconceived. 43. The submission of Mr. Desai that rise in international price would not by itself be a relevant consideration to rescind the contract may be correct, but then the same was not the sole ground for the Respondent No.2 to refuse to supply iron ore fines to the Appellants. 44. Moreover, certain serious disputed questions of fact have arisen for determination. Such disputed questions of facts ordinarily could not have been entertained by the High Court in exercise of its power of judicial review. 45. Ordinarily, a specific performance of contract would not be enforced by issuing a writ of or in the nature of mandamus, particularly when keeping in view the provisions of the Specific Relief Act, 1963 damages may be an adequate remedy for breach of contract. 46. The questions as to whether OMC had the available stock of iron ore fines or the only ground to refuse supply thereof was the rise in international prices, are matters which could not have been fully and effectively adjudicated in the writ proceedings. It was difficult for the High to go into the other questions which have been raised before us by the Appellant, namely, the effect of the purported decision of OMC to offer to the Appellant 60,000 MT of A Grade iron ore fines provided the Appellant gave up all other contractual rights which stating the bad faith on the part of OMC. We may, however, notice that although a decision had allegedly been taken by OMC not to supply iron ore fines prior to the expiry of the contractual period, but the same had not been communicated. Its effect has to be determined keeping in view the fact as to whether the Appellant suffered any loss thereby. The reasons for non-supply, we may reiterate, may constitute a breach of contract but having regard to the conduct of the parties, it cannot be said that the same was so arbitrary so as to attract the wrath of Article 14 of the Constitution of India. Before us also what has been emphasized is the purported breaches of contract by the Respondent. A contention has also been raised by Mr. Desai that keeping in view the facts and circumstances of this case, this Court should mould the relief. We do not intend to do so and leave the parties to raise all contentions before an appropriate forum. 47. For the reasons aforementioned, we are of the opinion that although the approach of the High Court was not entirely correct, its ultimate decision to refuse to exercise its discretionary jurisdiction cannot be faulted with.
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15. It is trite that if an action on the part of the State is violative the equality clause contained in Article 14 of the Constitution of India, a writ petition would be maintainable even in the contractual field. A distinction indisputably must be made between a matter which is at the threshold of a contract and a breach of contract; whereas in the former the courts scrutiny would be more intrusive, in the latter the court may not ordinarily exercise its discretionary jurisdiction of judicial review, unless it is found to be violative of Article 14 of the Constitution. While exercising contractual powers also, the government bodies may be subjected to judicial review in order to prevent arbitrariness or favouritism on its part. Indisputably, inherent limitations exist, but it would not be correct to opine that under no circumstances a writ will lie only because it involves a contractual matterIt may, however, be true that where serious disputed questions of fact are raised requiring appreciation of evidence, and, thus, for determination thereof, examination of witnesses would be necessary; it may not be convenient to decide the dispute in a proceeding under Article 226 of the Constitution of India45. Ordinarily, a specific performance of contract would not be enforced by issuing a writ of or in the nature of mandamus, particularly when keeping in view the provisions of the Specific Relief Act, 1963 damages may be an adequate remedy for breach of contract46. The questions as to whether OMC had the available stock of iron ore fines or the only ground to refuse supply thereof was the rise in international prices, are matters which could not have been fully and effectively adjudicated in the writ proceedings. It was difficult for the High to go into the other questions which have been raised before us by the Appellant, namely, the effect of the purported decision of OMC to offer to the Appellant 60,000 MT of A Grade iron ore fines provided the Appellant gave up all other contractual rights which stating the bad faith on the part of OMC. We may, however, notice that although a decision had allegedly been taken by OMC not to supply iron ore fines prior to the expiry of the contractual period, but the same had not been communicated. Its effect has to be determined keeping in view the fact as to whether the Appellant suffered any loss thereby. The reasons for non-supply, we may reiterate, may constitute a breach of contract but having regard to the conduct of the parties, it cannot be said that the same was so arbitrary so as to attract the wrath of Article 14 of the Constitution of India. Before us also what has been emphasized is the purported breaches of contract by the Respondent. A contention has also been raised by Mr. Desai that keeping in view the facts and circumstances of this case, this Court should mould the relief. We do not intend to do so and leave the parties to raise all contentions before an appropriate forum47. For the reasons aforementioned, we are of the opinion that although the approach of the High Court was not entirely correct, its ultimate decision to refuse to exercise its discretionary jurisdiction cannot be faulted with
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Soni Lalji Jetha & Ors Vs. Soni Kalidas Devchand & Ors, | agreeing to purchase the property thereunder does not acquire any interest in the property. Section 54 of the Transfer of Property Act in terms provides that such a contract of sale does not create as in English law any equitable estate in the immovable property which is the subject-matter of the contract. But as aforesaid, the contract creates an obligation which is recognised by Section 3 of the Specific Relief Act, 1877 and Section-91 of the Indian Trusts Act, 1882, Section 3 of the Specific Relief Act defines an "obligation" as including every duty enforceable by law and a "trustee" as including every person holding expressly, by implication or constructively a fiduciary character. Illustration (g) to that section reads as follows:"A buys certain land from B, with notice that B has already contracted to buy it. A is a trustee, within the meaning of this Act for B, of the land so bought."This Principle is embodied in Section 91 of the Indian Trusts Act which lays down that where a person acquires property with notice that another person has entered into an existing contract affecting that property, of which specific performance could be enforced, the former must hold the property for the benefit of the latter to the extent necessary to give effect to the contract.10. In Durga Prasad v. Deep Chand, 1954 SCR 360 : (AIR 1954 SC 75 ) this Court after considering these provisions observer that in spite of the existence of a previous contract of sale, a sale to a subsequent purchaser even with notice is not void but void able at the instance of the party agreeing to purchase under a previous contract and except for the obligation arising from Section 91 of the Trusts Act and paragraph 9 of Section 40 of the Transfer of Property Act the title to the property would pass from the vendor to the subsequent transferee. In Gafur v. Bhikaji Govind, (1902) ILR 26 Bom 159 the fasts were a1most similar to the facts in the present case. The first defendant there had entered into an agreement dated June 25, 1895 to sell certain land to the plaintiff. On December 19, 1895 he sold the land to the second defendant by a registered deed. The plaintiff then sued the first defendant for specific performance and got a decree dated March S. 1897 in execution of which conveyance of the land was executed to him by the court. On his failing to obtain possession from the second defendant he filed a suit. It was found as a fact that the second defendant had purchased the said land in December 1895 with notice of the earlier agreement of June 1895 with the plaintiff. The High Court held that the plaintiff was entitled to possession and as the second defendant had purchased with notice of the plaintiffs contract he held the property for the benefit of the plaintiff to the extent necessary to give effect to that contract. In Sathiraju v. Venkanna, AIR 1935 Mad 333 the High Court of Madras similarly observed that as a result of S. 91 of the Trusts Act the natural result of a person purchasing a property with notice of a prior contract in another persons favour is that the purchaser holds the property for the benefit of the latter to the extent necessary to give effect to the contract. But for all other purposes and as between the purchaser and the vendor, the purchaser is the owner and that is the reason why in such circumstances the decree in a suit for specific performance must direct the purchaser to join in execution of the conveyance. See also Appa Rao v. Veeranna. AIR 1953 Mad 409 .11. It is thus clear that though the sale dated September 10, 1930 in favour of Kanjil and Lalji was not void but voidable at the instance of respondents 1 and a by reason of their earlier contract and though as between the mortgagors and Kanji and Lalji the sale was valid and binding, it was subject to the right of specific performance which respondents 1 and 2 had acquired and Kanji and Lalji being in a fiduciary position, their possession was not adverse as against respondents 1 and 2. Therefore their suit for redemption cannot be said to be barred even though the statutory period had expired. We thus arrive at the same result which the High Court reached though on different reasons.12. The contention of Mr. Sarjooprasad, however, was that the said decree for specific performance cannot affect the adverse nature of possession of Kanji and Lalji as even when respondents 1 and 2 obtain the deed of sale from the court in April 1947 Kanji was not made one of the conveying parties but was made an attesting witness. As pointed out in Lala Durga Prasads Case (supra) the logical course is to provide in such a decree that both the vendors and the subsequent purchaser should join in the deed of conveyance. The decree for specific performance did in feet provide that all the defendants in that suit that is, including Kanji should sign the deed of conveyance. But it appears that through some misconception Kanji was not made to join in that conveyance and was only made to attest that document. But that would not, in our view, make any difference in the conclusion that as between Kanji and Lalji on the one hand and respondents 1 and 2 on the other the possession of the former could not be adverse and therefore there was no question of the suit of respondents 1 and for redemption being barred by limitation. Further, being an attesting witness. Kanji both for himself and on behalf of Lalji was made fully aware that the sale deed conveying the title of the property was being passed in favour of respondents 1 and 2 and that the only right henceforth in them was to receive the mortgage amount and no more. | 0[ds]For, while observing that possession of Kanji and Lalji could at no point of time be adverse the Division Bench slipped into an error in failing to take into account the loyal effect of the sale, dated September 10, 1930.It is true that as mortgagees-in-possession Kanji and Lalji derived their title to possession through the mortgagors and by virtue of their rights under the said mortgage. They were entitled, therefore, to continue to be in possession under the said mortgage and so long as it subsisted. By merely asserting rights of ownership in the said shops they could not convert their possession as mortgages and unilaterally alter their lawful possession as mortgagees into possession hostile to the mortgagors. But it is a well proposition that a mortgagor can sell the mortgaged property to his mortgagee and thus put the mortgagees estate to an end and thereafter all the right, title and interest in the property would vest in the mortgagee. Such a sale would be valid and binding as between them and henceforth the character of possession as a mortgagee would be converted into possession as an absolute owner. Even if such a sale is held to be voidable and not binding on a subsequent purchaser the character of possession based on assertion of absolute ownership by the mortgagee does not alter, and if that possession continues throughout the statutory period it ripens into a title to thedecision was followed in Dagadabai v. Sakharam, AIR 1948 Bom. 149 where the High Court of Bombay held that if a decree for possession in plaintiffs favour does not in fact result in the defendant giving up possession of the property or having possession of the property taken from him, it cannot be said that it had interrupted possession; nor can it in law affect the nature of the possession unless it does so in fact. On this basis the High Court held that the possession of the defendant must be deemed to have been adverse throughout and could not be said to nave been interrupted by the mortgage decree. (See also Bhogilal v. Ratilal, AIR 1939 Bom 261 ). The observation made by the High Court that possession of Kanji and Lalji was at no point of time adverse is clearly contrary to the decision of the Privy Council and the two decisions of the High Court of Bombay which were binding on them. The fact that a decree for specific performance was passed in suit No. 263 of S. Y. 1987 would not affect the character of possession of Kanji and Lalji nor would the declaration therein made that the sale deed in their favour was not valid and binding on respondents 1 and 2 would have the effect of altering the character of their possession. Therefore, except for the rights and equities in favour of respondents 1 and 2 by virtue of the agreement of sale of August 1930, the sale in favour of Kanji and Lalji by the mortgagors was a valid sale and conveyed title in the shops in theirBut paragraph 2 of- S. 40 of the Transfer of Property Act, 1882 in clear terms lays down that where a third person is entitled to the benefit of all obligation arising out of contract and annexed to the ownership of immovable property, but not amounting to an interest therein, such right or obligation may be enforced against a transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation nor against such property in his hands. It is a right no doubt arising from contract and the person agreeing to purchase the property thereunder does not acquire any interest in the property. Section 54 of the Transfer of Property Act in terms provides that such a contract of sale does not create as in English law any equitable estate in the immovable property which is the subject-matter of the contract. But as aforesaid, the contract creates an obligation which is recognised by Section 3 of the Specific Relief Act, 1877 and Section-91 of the Indian Trusts Act, 1882, Section 3 of the Specific Relief Act defines an "obligation" as including every duty enforceable by law and a "trustee" as including every person holding expressly, by implication or constructively a fiduciaryPrinciple is embodied in Section 91 of the Indian Trusts Act which lays down that where a person acquires property with notice that another person has entered into an existing contract affecting that property, of which specific performance could be enforced, the former must hold the property for the benefit of the latter to the extent necessary to give effect to the contract.It is thus clear that though the sale dated September 10, 1930 in favour of Kanjil and Lalji was not void but voidable at the instance of respondents 1 and a by reason of their earlier contract and though as between the mortgagors and Kanji and Lalji the sale was valid and binding, it was subject to the right of specific performance which respondents 1 and 2 had acquired and Kanji and Lalji being in a fiduciary position, their possession was not adverse as against1 and 2. Therefore their suit for redemption cannot be said to be barred even though the statutory period had expired. We thus arrive at the same result which the High Court reached though on differentpointed out in Lala Durga Prasads Case (supra) the logical course is to provide in such a decree that both the vendors and the subsequent purchaser should join in the deed of conveyance. The decree for specific performance did in feet provide that all the defendants in that suit that is, including Kanji should sign the deed of conveyance. But it appears that through some misconception Kanji was not made to join in that conveyance and was only made to attest that document. But that would not, in our view, make any difference in the conclusion that as between Kanji and Lalji on the one hand and respondents 1 and 2 on the other the possession of the former could not be adverse and therefore there was no question of the suit of respondents 1 and for redemption being barred by limitation. Further, being an attesting witness. Kanji both for himself and on behalf of Lalji was made fully aware that the sale deed conveying the title of the property was being passed in favour of respondents 1 and 2 and that the only right henceforth in them was to receive the mortgage amount and no more. | 0 | 3,854 | 1,167 | ### 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:
agreeing to purchase the property thereunder does not acquire any interest in the property. Section 54 of the Transfer of Property Act in terms provides that such a contract of sale does not create as in English law any equitable estate in the immovable property which is the subject-matter of the contract. But as aforesaid, the contract creates an obligation which is recognised by Section 3 of the Specific Relief Act, 1877 and Section-91 of the Indian Trusts Act, 1882, Section 3 of the Specific Relief Act defines an "obligation" as including every duty enforceable by law and a "trustee" as including every person holding expressly, by implication or constructively a fiduciary character. Illustration (g) to that section reads as follows:"A buys certain land from B, with notice that B has already contracted to buy it. A is a trustee, within the meaning of this Act for B, of the land so bought."This Principle is embodied in Section 91 of the Indian Trusts Act which lays down that where a person acquires property with notice that another person has entered into an existing contract affecting that property, of which specific performance could be enforced, the former must hold the property for the benefit of the latter to the extent necessary to give effect to the contract.10. In Durga Prasad v. Deep Chand, 1954 SCR 360 : (AIR 1954 SC 75 ) this Court after considering these provisions observer that in spite of the existence of a previous contract of sale, a sale to a subsequent purchaser even with notice is not void but void able at the instance of the party agreeing to purchase under a previous contract and except for the obligation arising from Section 91 of the Trusts Act and paragraph 9 of Section 40 of the Transfer of Property Act the title to the property would pass from the vendor to the subsequent transferee. In Gafur v. Bhikaji Govind, (1902) ILR 26 Bom 159 the fasts were a1most similar to the facts in the present case. The first defendant there had entered into an agreement dated June 25, 1895 to sell certain land to the plaintiff. On December 19, 1895 he sold the land to the second defendant by a registered deed. The plaintiff then sued the first defendant for specific performance and got a decree dated March S. 1897 in execution of which conveyance of the land was executed to him by the court. On his failing to obtain possession from the second defendant he filed a suit. It was found as a fact that the second defendant had purchased the said land in December 1895 with notice of the earlier agreement of June 1895 with the plaintiff. The High Court held that the plaintiff was entitled to possession and as the second defendant had purchased with notice of the plaintiffs contract he held the property for the benefit of the plaintiff to the extent necessary to give effect to that contract. In Sathiraju v. Venkanna, AIR 1935 Mad 333 the High Court of Madras similarly observed that as a result of S. 91 of the Trusts Act the natural result of a person purchasing a property with notice of a prior contract in another persons favour is that the purchaser holds the property for the benefit of the latter to the extent necessary to give effect to the contract. But for all other purposes and as between the purchaser and the vendor, the purchaser is the owner and that is the reason why in such circumstances the decree in a suit for specific performance must direct the purchaser to join in execution of the conveyance. See also Appa Rao v. Veeranna. AIR 1953 Mad 409 .11. It is thus clear that though the sale dated September 10, 1930 in favour of Kanjil and Lalji was not void but voidable at the instance of respondents 1 and a by reason of their earlier contract and though as between the mortgagors and Kanji and Lalji the sale was valid and binding, it was subject to the right of specific performance which respondents 1 and 2 had acquired and Kanji and Lalji being in a fiduciary position, their possession was not adverse as against respondents 1 and 2. Therefore their suit for redemption cannot be said to be barred even though the statutory period had expired. We thus arrive at the same result which the High Court reached though on different reasons.12. The contention of Mr. Sarjooprasad, however, was that the said decree for specific performance cannot affect the adverse nature of possession of Kanji and Lalji as even when respondents 1 and 2 obtain the deed of sale from the court in April 1947 Kanji was not made one of the conveying parties but was made an attesting witness. As pointed out in Lala Durga Prasads Case (supra) the logical course is to provide in such a decree that both the vendors and the subsequent purchaser should join in the deed of conveyance. The decree for specific performance did in feet provide that all the defendants in that suit that is, including Kanji should sign the deed of conveyance. But it appears that through some misconception Kanji was not made to join in that conveyance and was only made to attest that document. But that would not, in our view, make any difference in the conclusion that as between Kanji and Lalji on the one hand and respondents 1 and 2 on the other the possession of the former could not be adverse and therefore there was no question of the suit of respondents 1 and for redemption being barred by limitation. Further, being an attesting witness. Kanji both for himself and on behalf of Lalji was made fully aware that the sale deed conveying the title of the property was being passed in favour of respondents 1 and 2 and that the only right henceforth in them was to receive the mortgage amount and no more.
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as mortgages and unilaterally alter their lawful possession as mortgagees into possession hostile to the mortgagors. But it is a well proposition that a mortgagor can sell the mortgaged property to his mortgagee and thus put the mortgagees estate to an end and thereafter all the right, title and interest in the property would vest in the mortgagee. Such a sale would be valid and binding as between them and henceforth the character of possession as a mortgagee would be converted into possession as an absolute owner. Even if such a sale is held to be voidable and not binding on a subsequent purchaser the character of possession based on assertion of absolute ownership by the mortgagee does not alter, and if that possession continues throughout the statutory period it ripens into a title to thedecision was followed in Dagadabai v. Sakharam, AIR 1948 Bom. 149 where the High Court of Bombay held that if a decree for possession in plaintiffs favour does not in fact result in the defendant giving up possession of the property or having possession of the property taken from him, it cannot be said that it had interrupted possession; nor can it in law affect the nature of the possession unless it does so in fact. On this basis the High Court held that the possession of the defendant must be deemed to have been adverse throughout and could not be said to nave been interrupted by the mortgage decree. (See also Bhogilal v. Ratilal, AIR 1939 Bom 261 ). The observation made by the High Court that possession of Kanji and Lalji was at no point of time adverse is clearly contrary to the decision of the Privy Council and the two decisions of the High Court of Bombay which were binding on them. The fact that a decree for specific performance was passed in suit No. 263 of S. Y. 1987 would not affect the character of possession of Kanji and Lalji nor would the declaration therein made that the sale deed in their favour was not valid and binding on respondents 1 and 2 would have the effect of altering the character of their possession. Therefore, except for the rights and equities in favour of respondents 1 and 2 by virtue of the agreement of sale of August 1930, the sale in favour of Kanji and Lalji by the mortgagors was a valid sale and conveyed title in the shops in theirBut paragraph 2 of- S. 40 of the Transfer of Property Act, 1882 in clear terms lays down that where a third person is entitled to the benefit of all obligation arising out of contract and annexed to the ownership of immovable property, but not amounting to an interest therein, such right or obligation may be enforced against a transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation nor against such property in his hands. It is a right no doubt arising from contract and the person agreeing to purchase the property thereunder does not acquire any interest in the property. Section 54 of the Transfer of Property Act in terms provides that such a contract of sale does not create as in English law any equitable estate in the immovable property which is the subject-matter of the contract. But as aforesaid, the contract creates an obligation which is recognised by Section 3 of the Specific Relief Act, 1877 and Section-91 of the Indian Trusts Act, 1882, Section 3 of the Specific Relief Act defines an "obligation" as including every duty enforceable by law and a "trustee" as including every person holding expressly, by implication or constructively a fiduciaryPrinciple is embodied in Section 91 of the Indian Trusts Act which lays down that where a person acquires property with notice that another person has entered into an existing contract affecting that property, of which specific performance could be enforced, the former must hold the property for the benefit of the latter to the extent necessary to give effect to the contract.It is thus clear that though the sale dated September 10, 1930 in favour of Kanjil and Lalji was not void but voidable at the instance of respondents 1 and a by reason of their earlier contract and though as between the mortgagors and Kanji and Lalji the sale was valid and binding, it was subject to the right of specific performance which respondents 1 and 2 had acquired and Kanji and Lalji being in a fiduciary position, their possession was not adverse as against1 and 2. Therefore their suit for redemption cannot be said to be barred even though the statutory period had expired. We thus arrive at the same result which the High Court reached though on differentpointed out in Lala Durga Prasads Case (supra) the logical course is to provide in such a decree that both the vendors and the subsequent purchaser should join in the deed of conveyance. The decree for specific performance did in feet provide that all the defendants in that suit that is, including Kanji should sign the deed of conveyance. But it appears that through some misconception Kanji was not made to join in that conveyance and was only made to attest that document. But that would not, in our view, make any difference in the conclusion that as between Kanji and Lalji on the one hand and respondents 1 and 2 on the other the possession of the former could not be adverse and therefore there was no question of the suit of respondents 1 and for redemption being barred by limitation. Further, being an attesting witness. Kanji both for himself and on behalf of Lalji was made fully aware that the sale deed conveying the title of the property was being passed in favour of respondents 1 and 2 and that the only right henceforth in them was to receive the mortgage amount and no more.
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Brooke Bond Employees Union Vs. Hindustan Unilever Limited and Ors | assistance we have also perused the material that was placed on record by the parties. Before considering the applicability of the relevant statutory provisions on which the learned counsel for the parties have relied, it would be necessary to first refer to the findings recorded by the learned Single Judge after considering the evidence on record. It has been found by the learned Single Judge that the settlements from 24.01.1962 to 27.07.1999 which are at Exhibits 53 to 59 were entered into between the Federation and the Management under Section 2(p) read with Section 18(1) of the Act of 1947. Under these settlements a need was expressed by the Management for restructuring and re-organization of its activities in a phased manner. Initially the sales depots were closed and the sales system was replaced by the system of acquiring and forwarding agents and re-distribution of stockists. The number of Area Sales Offices/Branch Offices were reduced to five. Nagpur Area Sales Office was also closed down and the entire accounting work was agreed to be carried out from the Regional/Branch Office at Mumbai. As a result of re-organization of Companys activities option was given to the employees to either opt for voluntary retirement or to agree for re-deployment. It is in the light of these settlements that it has been held that the closure of the Regional Accounts Office was governed by the various settlements with the Federation. Yet another finding recorded is that the Regional Accounts Office was not part and parcel of the manufacturing process of the Company. There was no evidence found on record to hold that the Regional Accounts Office, Nagpur formed part and parcel of the manufacturing process undertaken by various factories. It is on this basis that it was concluded that there was no material on record to satisfy the test of functional integrality, interdependence and componential relationship between the Regional Accounts Office and the various factories. On this basis it has been held that the provisions of Section 25-O(1) of the Act of 1947 were not attracted. The closure was governed by the provisions of Section 25FFF and that course had been duly followed. 8. We find that the aforesaid findings going to the root of the matter have been recorded after considering the relevant material on record. Once it is found that the closure of the Regional Accounts Office at Nagpur was pursuant to the settlements between the Federation and the Management the proviso to Section 9A would stand attracted. As per the said proviso, no notice of change would be required to be given if such change is effected pursuant to any settlement or award. The Union has not been in a position to demonstrate that the closure of the Regional Accounts Office as per notice dated 05.01.2001 was not pursuant to the settlement at Exhibits 53 to 59. Reliance has been rightly placed on the decision of the learned Single Judge in Anglo-French Drugs and Industries Ltd. (supra) by the learned counsel for the Management that for alteration of the conditions of service, existence of a live industry is necessary. On the factum of closure being established there would be no occasion to hold that such closure amounted to alteration of the conditions of service. As regards the finding recorded by the learned Single Judge that the closure of the Regional Accounts Office was a local issue, the basis for that conclusion is that in none of the settlements was any provision made to enable the parties to the settlement to raise a question about illegal closure. In absence of any such modality it was held that the Union by espousing the case of its members at Nagpur was competent to do so and the same was thus a local issue. We do not find any reason to take a different view of the matter and on perusal of various settlements the aforesaid aspect is clear. For the same reason it was not necessary for the Federation to come in the picture in the present proceedings nor was it required to examine any witness in that regard. Similarly, the finding recorded that the jurisdiction of the Industrial Court was rightly invoked also does not require any interference since what was challenged was the notice of closure on the premise that it was in breach of the settlement entered into. Admittedly, the provisions of Item I of Schedule IV to the Act of 1971 had not been invoked and thus the Industrial Court was competent to entertain the same. The substantive claim made in the complaint was with regard to the illegal closure of the RAO at Nagpur on the premise that it was in breach of the settlements between the parties and hence the provisions of Item 9 of Schedule IV to the Act of 1971 were rightly invoked by the Union. The ratio of the decision in Lokmat Newspapers Pvt. Ltd. (supra) has been rightly held to be not applicable to the facts of the present case. 9. As regards the competence of the General Secretary to file the complaint before the Industrial Court, it is seen that the learned Single Judge has found that the complaint was filed by the registered Union and that Shri Rajhans was its General Secretary. The judgments cited in the cases of Dale & Carrington Invt. (P) Ltd. And M/s Nibro Limited (supra) have been dealt with. We are in agreement with the finding recorded in paragraphs 19 to 23 of the judgment of the learned Single Judge in that regard. 10. We thus find on a re-consideration of the material on record in the context of the findings arrived at by the learned Single Judge that the learned Single Judge was legally justified in setting aside the judgment passed by the Industrial Court. The closure of the Regional Accounts Office at Nagpur being pursuant to various settlements, the notice dated 05.01.2001 given to that effect did not result in constituting an unfair labour practice. | 0[ds]7. We have heard the learned counsel for the parties at length and with their assistance we have also perused the material that was placed on record by the parties. Before considering the applicability of the relevant statutory provisions on which the learned counsel for the parties have relied, it would be necessary to first refer to the findings recorded by the learned Single Judge after considering the evidence on record. It has been found by the learned Single Judge that the settlements from 24.01.1962 to 27.07.1999 which are at Exhibits 53 to 59 were entered into between the Federation and the Management under Section 2(p) read with Section 18(1) of the Act of 1947. Under these settlements a need was expressed by the Management for restructuring and re-organization of its activities in a phased manner. Initially the sales depots were closed and the sales system was replaced by the system of acquiring and forwarding agents and re-distribution of stockists. The number of Area Sales Offices/Branch Offices were reduced to five. Nagpur Area Sales Office was also closed down and the entire accounting work was agreed to be carried out from the Regional/Branch Office at Mumbai. As a result of re-organization of Companys activities option was given to the employees to either opt for voluntary retirement or to agree for re-deployment. It is in the light of these settlements that it has been held that the closure of the Regional Accounts Office was governed by the various settlements with the Federation. Yet another finding recorded is that the Regional Accounts Office was not part and parcel of the manufacturing process of the Company. There was no evidence found on record to hold that the Regional Accounts Office, Nagpur formed part and parcel of the manufacturing process undertaken by various factories. It is on this basis that it was concluded that there was no material on record to satisfy the test of functional integrality, interdependence and componential relationship between the Regional Accounts Office and the various factories. On this basis it has been held that the provisions of Section 25-O(1) of the Act of 1947 were not attracted. The closure was governed by the provisions of Section 25FFF and that course had been duly followed.8. We find that the aforesaid findings going to the root of the matter have been recorded after considering the relevant material on record. Once it is found that the closure of the Regional Accounts Office at Nagpur was pursuant to the settlements between the Federation and the Management the proviso to Section 9A would stand attracted. As per the said proviso, no notice of change would be required to be given if such change is effected pursuant to any settlement or award. The Union has not been in a position to demonstrate that the closure of the Regional Accounts Office as per notice dated 05.01.2001 was not pursuant to the settlement at Exhibits 53 to 59. Reliance has been rightly placed on the decision of the learned Single Judge in Anglo-French Drugs and Industries Ltd. (supra) by the learned counsel for the Management that for alteration of the conditions of service, existence of a live industry is necessary. On the factum of closure being established there would be no occasion to hold that such closure amounted to alteration of the conditions of service.As regards the finding recorded by the learned Single Judge that the closure of the Regional Accounts Office was a local issue, the basis for that conclusion is that in none of the settlements was any provision made to enable the parties to the settlement to raise a question about illegal closure. In absence of any such modality it was held that the Union by espousing the case of its members at Nagpur was competent to do so and the same was thus a local issue. We do not find any reason to take a different view of the matter and on perusal of various settlements the aforesaid aspect is clear. For the same reason it was not necessary for the Federation to come in the picture in the present proceedings nor was it required to examine any witness in that regard. Similarly, the finding recorded that the jurisdiction of the Industrial Court was rightly invoked also does not require any interference since what was challenged was the notice of closure on the premise that it was in breach of the settlement entered into. Admittedly, the provisions of Item I of Schedule IV to the Act of 1971 had not been invoked and thus the Industrial Court was competent to entertain the same. The substantive claim made in the complaint was with regard to the illegal closure of the RAO at Nagpur on the premise that it was in breach of the settlements between the parties and hence the provisions of Item 9 of Schedule IV to the Act of 1971 were rightly invoked by the Union. The ratio of the decision in Lokmat Newspapers Pvt. Ltd. (supra) has been rightly held to be not applicable to the facts of the present case.9. As regards the competence of the General Secretary to file the complaint before the Industrial Court, it is seen that the learned Single Judge has found that the complaint was filed by the registered Union and that Shri Rajhans was its General Secretary. The judgments cited in the cases of Dale & Carrington Invt. (P) Ltd. And M/s Nibro Limited (supra) have been dealt with. We are in agreement with the finding recorded in paragraphs 19 to 23 of the judgment of the learned Single Judge in that regard.10. We thus find on a re-consideration of the material on record in the context of the findings arrived at by the learned Single Judge that the learned Single Judge was legally justified in setting aside the judgment passed by the Industrial Court. The closure of the Regional Accounts Office at Nagpur being pursuant to various settlements, the notice dated 05.01.2001 given to that effect did not result in constituting an unfair labour practice. | 0 | 3,456 | 1,077 | ### 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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assistance we have also perused the material that was placed on record by the parties. Before considering the applicability of the relevant statutory provisions on which the learned counsel for the parties have relied, it would be necessary to first refer to the findings recorded by the learned Single Judge after considering the evidence on record. It has been found by the learned Single Judge that the settlements from 24.01.1962 to 27.07.1999 which are at Exhibits 53 to 59 were entered into between the Federation and the Management under Section 2(p) read with Section 18(1) of the Act of 1947. Under these settlements a need was expressed by the Management for restructuring and re-organization of its activities in a phased manner. Initially the sales depots were closed and the sales system was replaced by the system of acquiring and forwarding agents and re-distribution of stockists. The number of Area Sales Offices/Branch Offices were reduced to five. Nagpur Area Sales Office was also closed down and the entire accounting work was agreed to be carried out from the Regional/Branch Office at Mumbai. As a result of re-organization of Companys activities option was given to the employees to either opt for voluntary retirement or to agree for re-deployment. It is in the light of these settlements that it has been held that the closure of the Regional Accounts Office was governed by the various settlements with the Federation. Yet another finding recorded is that the Regional Accounts Office was not part and parcel of the manufacturing process of the Company. There was no evidence found on record to hold that the Regional Accounts Office, Nagpur formed part and parcel of the manufacturing process undertaken by various factories. It is on this basis that it was concluded that there was no material on record to satisfy the test of functional integrality, interdependence and componential relationship between the Regional Accounts Office and the various factories. On this basis it has been held that the provisions of Section 25-O(1) of the Act of 1947 were not attracted. The closure was governed by the provisions of Section 25FFF and that course had been duly followed. 8. We find that the aforesaid findings going to the root of the matter have been recorded after considering the relevant material on record. Once it is found that the closure of the Regional Accounts Office at Nagpur was pursuant to the settlements between the Federation and the Management the proviso to Section 9A would stand attracted. As per the said proviso, no notice of change would be required to be given if such change is effected pursuant to any settlement or award. The Union has not been in a position to demonstrate that the closure of the Regional Accounts Office as per notice dated 05.01.2001 was not pursuant to the settlement at Exhibits 53 to 59. Reliance has been rightly placed on the decision of the learned Single Judge in Anglo-French Drugs and Industries Ltd. (supra) by the learned counsel for the Management that for alteration of the conditions of service, existence of a live industry is necessary. On the factum of closure being established there would be no occasion to hold that such closure amounted to alteration of the conditions of service. As regards the finding recorded by the learned Single Judge that the closure of the Regional Accounts Office was a local issue, the basis for that conclusion is that in none of the settlements was any provision made to enable the parties to the settlement to raise a question about illegal closure. In absence of any such modality it was held that the Union by espousing the case of its members at Nagpur was competent to do so and the same was thus a local issue. We do not find any reason to take a different view of the matter and on perusal of various settlements the aforesaid aspect is clear. For the same reason it was not necessary for the Federation to come in the picture in the present proceedings nor was it required to examine any witness in that regard. Similarly, the finding recorded that the jurisdiction of the Industrial Court was rightly invoked also does not require any interference since what was challenged was the notice of closure on the premise that it was in breach of the settlement entered into. Admittedly, the provisions of Item I of Schedule IV to the Act of 1971 had not been invoked and thus the Industrial Court was competent to entertain the same. The substantive claim made in the complaint was with regard to the illegal closure of the RAO at Nagpur on the premise that it was in breach of the settlements between the parties and hence the provisions of Item 9 of Schedule IV to the Act of 1971 were rightly invoked by the Union. The ratio of the decision in Lokmat Newspapers Pvt. Ltd. (supra) has been rightly held to be not applicable to the facts of the present case. 9. As regards the competence of the General Secretary to file the complaint before the Industrial Court, it is seen that the learned Single Judge has found that the complaint was filed by the registered Union and that Shri Rajhans was its General Secretary. The judgments cited in the cases of Dale & Carrington Invt. (P) Ltd. And M/s Nibro Limited (supra) have been dealt with. We are in agreement with the finding recorded in paragraphs 19 to 23 of the judgment of the learned Single Judge in that regard. 10. We thus find on a re-consideration of the material on record in the context of the findings arrived at by the learned Single Judge that the learned Single Judge was legally justified in setting aside the judgment passed by the Industrial Court. The closure of the Regional Accounts Office at Nagpur being pursuant to various settlements, the notice dated 05.01.2001 given to that effect did not result in constituting an unfair labour practice.
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length and with their assistance we have also perused the material that was placed on record by the parties. Before considering the applicability of the relevant statutory provisions on which the learned counsel for the parties have relied, it would be necessary to first refer to the findings recorded by the learned Single Judge after considering the evidence on record. It has been found by the learned Single Judge that the settlements from 24.01.1962 to 27.07.1999 which are at Exhibits 53 to 59 were entered into between the Federation and the Management under Section 2(p) read with Section 18(1) of the Act of 1947. Under these settlements a need was expressed by the Management for restructuring and re-organization of its activities in a phased manner. Initially the sales depots were closed and the sales system was replaced by the system of acquiring and forwarding agents and re-distribution of stockists. The number of Area Sales Offices/Branch Offices were reduced to five. Nagpur Area Sales Office was also closed down and the entire accounting work was agreed to be carried out from the Regional/Branch Office at Mumbai. As a result of re-organization of Companys activities option was given to the employees to either opt for voluntary retirement or to agree for re-deployment. It is in the light of these settlements that it has been held that the closure of the Regional Accounts Office was governed by the various settlements with the Federation. Yet another finding recorded is that the Regional Accounts Office was not part and parcel of the manufacturing process of the Company. There was no evidence found on record to hold that the Regional Accounts Office, Nagpur formed part and parcel of the manufacturing process undertaken by various factories. It is on this basis that it was concluded that there was no material on record to satisfy the test of functional integrality, interdependence and componential relationship between the Regional Accounts Office and the various factories. On this basis it has been held that the provisions of Section 25-O(1) of the Act of 1947 were not attracted. The closure was governed by the provisions of Section 25FFF and that course had been duly followed.8. We find that the aforesaid findings going to the root of the matter have been recorded after considering the relevant material on record. Once it is found that the closure of the Regional Accounts Office at Nagpur was pursuant to the settlements between the Federation and the Management the proviso to Section 9A would stand attracted. As per the said proviso, no notice of change would be required to be given if such change is effected pursuant to any settlement or award. The Union has not been in a position to demonstrate that the closure of the Regional Accounts Office as per notice dated 05.01.2001 was not pursuant to the settlement at Exhibits 53 to 59. Reliance has been rightly placed on the decision of the learned Single Judge in Anglo-French Drugs and Industries Ltd. (supra) by the learned counsel for the Management that for alteration of the conditions of service, existence of a live industry is necessary. On the factum of closure being established there would be no occasion to hold that such closure amounted to alteration of the conditions of service.As regards the finding recorded by the learned Single Judge that the closure of the Regional Accounts Office was a local issue, the basis for that conclusion is that in none of the settlements was any provision made to enable the parties to the settlement to raise a question about illegal closure. In absence of any such modality it was held that the Union by espousing the case of its members at Nagpur was competent to do so and the same was thus a local issue. We do not find any reason to take a different view of the matter and on perusal of various settlements the aforesaid aspect is clear. For the same reason it was not necessary for the Federation to come in the picture in the present proceedings nor was it required to examine any witness in that regard. Similarly, the finding recorded that the jurisdiction of the Industrial Court was rightly invoked also does not require any interference since what was challenged was the notice of closure on the premise that it was in breach of the settlement entered into. Admittedly, the provisions of Item I of Schedule IV to the Act of 1971 had not been invoked and thus the Industrial Court was competent to entertain the same. The substantive claim made in the complaint was with regard to the illegal closure of the RAO at Nagpur on the premise that it was in breach of the settlements between the parties and hence the provisions of Item 9 of Schedule IV to the Act of 1971 were rightly invoked by the Union. The ratio of the decision in Lokmat Newspapers Pvt. Ltd. (supra) has been rightly held to be not applicable to the facts of the present case.9. As regards the competence of the General Secretary to file the complaint before the Industrial Court, it is seen that the learned Single Judge has found that the complaint was filed by the registered Union and that Shri Rajhans was its General Secretary. The judgments cited in the cases of Dale & Carrington Invt. (P) Ltd. And M/s Nibro Limited (supra) have been dealt with. We are in agreement with the finding recorded in paragraphs 19 to 23 of the judgment of the learned Single Judge in that regard.10. We thus find on a re-consideration of the material on record in the context of the findings arrived at by the learned Single Judge that the learned Single Judge was legally justified in setting aside the judgment passed by the Industrial Court. The closure of the Regional Accounts Office at Nagpur being pursuant to various settlements, the notice dated 05.01.2001 given to that effect did not result in constituting an unfair labour practice.
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Chowringhee Sales Bureau Ltd Vs. Commissioner of Income Tax, West Bengal | observed :"Entry 48 authorises the imposition of tax either on a seller or a purchaser or both. If, however, the Legislature purports to levy a tax upon a person who is neither a seller nor a purchaser, the legislation must be declared ultra vires, because it treats an operation as a sale of goods which, according to the Sale of Goods Act, does not amount to such a sale."10.We find ourselves unable to agree with the above observations. An auction sale in view of the provisions of Section 4 read with Section 64 of the Sale of Goods Act would have to be considered to be a sale for the purpose of the Sale of Goods Act. There is nothing in Entry 48 which restricts the power of the Legislature in the matter of the imposition of the sales tax to the levy of such tax on the owner of the goods on whose behalf they are sold or the purchaser only. Where transaction is one of sale of goods as known to law, the power of the legislature to impose a tax thereon, in our view, is plenary and unrestricted subject only to any limitation which might have been imposed by the Government of India Act or the Constitution (see J. K. Jute Mills Co. Ltd. v. The State of Uttar Pradesh, (1961) 12 STC 429 = (AIR 1961 SC 1534 )).In view of the wide amplitude of the power of the State or Provincial Legislature to impose tax on transactions of sale of goods, it would, in our opinion, be impermissible to read a restriction in Entry 48 on the power of the State Legislature as would prevent the said legislature from imposing tax on an auctioneer who carries on the business of selling goods and who has in the customary course of business, authority to sell goods belonging to the principal. What is sought to be taxed is the transaction of the sale of goods. If there is a close and direct connection between the transaction of sale and the person made liable for the payment of sales tax, the statutory provision providing for such levy of sales tax would not offend entry 48.It cannot be disputed that there is a close and direct connection between an auctioneer and the transaction of auction sale. As such, the definition of the word "dealer" in Explanation 2 of Section 2 (c) of the Bengal Act cannot be deemed to be ultra vires the power of the Provincial or State Legislature on the ground that the legislature purports to levy tax on a person who is neither a seller nor a purchaser. It was, in our opinion, within the competence of the Provincial Legislature to include within the definition of the word "dealer" an auctioneer who carries on the business of selling goods and who has in the customary course of business authority to sell goods belonging to the principal.11. We may also observe that a Division Bench of the Madras High Court in the case of Zackria Sons Private Limited v. State of Madras, (1965) 16 STC 136 (Mad) had dissented from the view taken by the Calcutta High Court in the appellants case against the State of West Bengal.12. It is apparent from the order of the Appellate Assistant Commissioner and has not been disputed before us in the present case that in the cash memos issued by the appellant to the purchasers in the auction sales it was the appellant who was shown as the seller. The amount realised by the appellant from the purchasers included sales tax. The appellant, however, did not pay the amount of sales tax to the actual owner of the goods auctioned because the statutory liability for the payment of that sales tax was that of the appellant. The appellant company did not also deposit the amount realised by it as sales tax in the State exchequer because it took the position that the statutory provision creating that liability upon it was not valid. As the amount of sales tax was received by the appellant in its character as an auctioneer, the amount, in our view, should be held to form part of its trading or business receipt. The appellant would, of course, be entitled to claim deduction of the amount as and when it pays it to the State Government.13. The fact that the appellant credited the amount received as sales tax under the head "sales tax collection account" would not, in our opinion, make any material difference. It is the true nature and the quality of the receipt and not the head under which it is entered in the account books as would prove decisive. If a receipt is a trading receipt, the fact that it is not so shown in the account books of the assessee would not prevent the assessing authority from treating it as trading receipt. We may in this context refer to the case of Punjab Distilling Industries Ltd. v. Commissioner of Income tax, Simla, (1959) 35 ITR 519 = (AIR 1959 SC 346 ). In that case certain amounts received by the assessee were described as security deposits. This Court found that those amounts were an integral part of the commercial transaction of the sale of liquor and were the assessees trading receipt. In dealing with the contention that those amounts were entered in a separate Ledger termed "empty bottles return security deposit account", this Court observed :"So the amount which was called security deposit was actually a part of the consideration for the sale and therefore part of the price of what was sold. Nor does it make any difference that the price of the bottles was entered in the general trading account while the so-called deposit was entered in a separate Ledger termed "empty bottles return deposit account" for, what was a consideration for the sale cannot cease to be so by being written up in the books in a particular manner."14. W | 0[ds]12. It is apparent from the order of the Appellate Assistant Commissioner and has not been disputed before us in the present case that in the cash memos issued by the appellant to the purchasers in the auction sales it was the appellant who was shown as the seller. The amount realised by the appellant from the purchasers included sales tax. The appellant, however, did not pay the amount of sales tax to the actual owner of the goods auctioned because the statutory liability for the payment of that sales tax was that of the appellant. The appellant company did not also deposit the amount realised by it as sales tax in the State exchequer because it took the position that the statutory provision creating that liability upon it was not valid. As the amount of sales tax was received by the appellant in its character as an auctioneer, the amount, in our view, should be held to form part of its trading or business receipt. The appellant would, of course, be entitled to claim deduction of the amount as and when it pays it to the State Government.13. The fact that the appellant credited the amount received as sales tax under the head "sales tax collection account" would not, in our opinion, make any material difference. It is the true nature and the quality of the receipt and not the head under which it is entered in the account books as would prove decisive. If a receipt is a trading receipt, the fact that it is not so shown in the account books of the assessee would not prevent the assessing authority from treating it as trading receipt. We may in this context refer to the case of Punjab Distilling Industries Ltd. v. Commissioner of Income tax, Simla, (1959) 35 ITR 519 = (AIR 1959 SC 346 ). In that case certain amounts received by the assessee were described as security deposits. This Court found that those amounts were an integral part of the commercial transaction of the sale of liquor and were the assessees trading receipt. In dealing with the contention that those amounts were entered in a separate Ledger termed "empty bottles return security deposit account", this Court observedthe amount which was called security deposit was actually a part of the consideration for the sale and therefore part of the price of what was sold. Nor does it make any difference that the price of the bottles was entered in the general trading account while the so-called deposit was entered in a separate Ledger termed "empty bottles return deposit account" for, what was a consideration for the sale cannot cease to be so by being written up in the books in a particular manner.We, therefore, agree with the High Court in so far as it has answered the question referred to it in the negative and against the appellant. | 0 | 2,731 | 527 | ### Instruction:
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observed :"Entry 48 authorises the imposition of tax either on a seller or a purchaser or both. If, however, the Legislature purports to levy a tax upon a person who is neither a seller nor a purchaser, the legislation must be declared ultra vires, because it treats an operation as a sale of goods which, according to the Sale of Goods Act, does not amount to such a sale."10.We find ourselves unable to agree with the above observations. An auction sale in view of the provisions of Section 4 read with Section 64 of the Sale of Goods Act would have to be considered to be a sale for the purpose of the Sale of Goods Act. There is nothing in Entry 48 which restricts the power of the Legislature in the matter of the imposition of the sales tax to the levy of such tax on the owner of the goods on whose behalf they are sold or the purchaser only. Where transaction is one of sale of goods as known to law, the power of the legislature to impose a tax thereon, in our view, is plenary and unrestricted subject only to any limitation which might have been imposed by the Government of India Act or the Constitution (see J. K. Jute Mills Co. Ltd. v. The State of Uttar Pradesh, (1961) 12 STC 429 = (AIR 1961 SC 1534 )).In view of the wide amplitude of the power of the State or Provincial Legislature to impose tax on transactions of sale of goods, it would, in our opinion, be impermissible to read a restriction in Entry 48 on the power of the State Legislature as would prevent the said legislature from imposing tax on an auctioneer who carries on the business of selling goods and who has in the customary course of business, authority to sell goods belonging to the principal. What is sought to be taxed is the transaction of the sale of goods. If there is a close and direct connection between the transaction of sale and the person made liable for the payment of sales tax, the statutory provision providing for such levy of sales tax would not offend entry 48.It cannot be disputed that there is a close and direct connection between an auctioneer and the transaction of auction sale. As such, the definition of the word "dealer" in Explanation 2 of Section 2 (c) of the Bengal Act cannot be deemed to be ultra vires the power of the Provincial or State Legislature on the ground that the legislature purports to levy tax on a person who is neither a seller nor a purchaser. It was, in our opinion, within the competence of the Provincial Legislature to include within the definition of the word "dealer" an auctioneer who carries on the business of selling goods and who has in the customary course of business authority to sell goods belonging to the principal.11. We may also observe that a Division Bench of the Madras High Court in the case of Zackria Sons Private Limited v. State of Madras, (1965) 16 STC 136 (Mad) had dissented from the view taken by the Calcutta High Court in the appellants case against the State of West Bengal.12. It is apparent from the order of the Appellate Assistant Commissioner and has not been disputed before us in the present case that in the cash memos issued by the appellant to the purchasers in the auction sales it was the appellant who was shown as the seller. The amount realised by the appellant from the purchasers included sales tax. The appellant, however, did not pay the amount of sales tax to the actual owner of the goods auctioned because the statutory liability for the payment of that sales tax was that of the appellant. The appellant company did not also deposit the amount realised by it as sales tax in the State exchequer because it took the position that the statutory provision creating that liability upon it was not valid. As the amount of sales tax was received by the appellant in its character as an auctioneer, the amount, in our view, should be held to form part of its trading or business receipt. The appellant would, of course, be entitled to claim deduction of the amount as and when it pays it to the State Government.13. The fact that the appellant credited the amount received as sales tax under the head "sales tax collection account" would not, in our opinion, make any material difference. It is the true nature and the quality of the receipt and not the head under which it is entered in the account books as would prove decisive. If a receipt is a trading receipt, the fact that it is not so shown in the account books of the assessee would not prevent the assessing authority from treating it as trading receipt. We may in this context refer to the case of Punjab Distilling Industries Ltd. v. Commissioner of Income tax, Simla, (1959) 35 ITR 519 = (AIR 1959 SC 346 ). In that case certain amounts received by the assessee were described as security deposits. This Court found that those amounts were an integral part of the commercial transaction of the sale of liquor and were the assessees trading receipt. In dealing with the contention that those amounts were entered in a separate Ledger termed "empty bottles return security deposit account", this Court observed :"So the amount which was called security deposit was actually a part of the consideration for the sale and therefore part of the price of what was sold. Nor does it make any difference that the price of the bottles was entered in the general trading account while the so-called deposit was entered in a separate Ledger termed "empty bottles return deposit account" for, what was a consideration for the sale cannot cease to be so by being written up in the books in a particular manner."14. W
### Response:
0
### Explanation:
12. It is apparent from the order of the Appellate Assistant Commissioner and has not been disputed before us in the present case that in the cash memos issued by the appellant to the purchasers in the auction sales it was the appellant who was shown as the seller. The amount realised by the appellant from the purchasers included sales tax. The appellant, however, did not pay the amount of sales tax to the actual owner of the goods auctioned because the statutory liability for the payment of that sales tax was that of the appellant. The appellant company did not also deposit the amount realised by it as sales tax in the State exchequer because it took the position that the statutory provision creating that liability upon it was not valid. As the amount of sales tax was received by the appellant in its character as an auctioneer, the amount, in our view, should be held to form part of its trading or business receipt. The appellant would, of course, be entitled to claim deduction of the amount as and when it pays it to the State Government.13. The fact that the appellant credited the amount received as sales tax under the head "sales tax collection account" would not, in our opinion, make any material difference. It is the true nature and the quality of the receipt and not the head under which it is entered in the account books as would prove decisive. If a receipt is a trading receipt, the fact that it is not so shown in the account books of the assessee would not prevent the assessing authority from treating it as trading receipt. We may in this context refer to the case of Punjab Distilling Industries Ltd. v. Commissioner of Income tax, Simla, (1959) 35 ITR 519 = (AIR 1959 SC 346 ). In that case certain amounts received by the assessee were described as security deposits. This Court found that those amounts were an integral part of the commercial transaction of the sale of liquor and were the assessees trading receipt. In dealing with the contention that those amounts were entered in a separate Ledger termed "empty bottles return security deposit account", this Court observedthe amount which was called security deposit was actually a part of the consideration for the sale and therefore part of the price of what was sold. Nor does it make any difference that the price of the bottles was entered in the general trading account while the so-called deposit was entered in a separate Ledger termed "empty bottles return deposit account" for, what was a consideration for the sale cannot cease to be so by being written up in the books in a particular manner.We, therefore, agree with the High Court in so far as it has answered the question referred to it in the negative and against the appellant.
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Pingle Industries Ltd., Secunderabad Vs. Commissioner Of Income Tax, Hyderabad | point of view of rating, but compensation has the same meaning in its application to matters of taxation such as are involved in this case."38. Thus, the contention of the learned counsel for the assessee that we should treat this quolnama as merely showing a licence and not a lease creating interest in land is not correct. A lease to take out sand was described in Kanjee and Moolji Bros. v. Shanmugam Pillai, ILR 56 Mad 169 : (AIR 1932 Mad 734 ), as amounting to a transfer of interest in immovable property and also so, in connection with the Registration Act in Secy. of State v. Kuchwar Lime and Stone Co., 65 Ind App 45 at p. 54: (AIR 1938 PC 20 at p. 22). It is thus clear that what the assessee acquired was land, a part of which in the shape of stones he was to appropriate under the covenants. He was not purchasing stones, and the price paid could not in any sense be referable to stones as stock-in-trade. The stones extracted might have become his stock-in-trade, but the stones in situ were not so.39. Nor do we agree that the periodicity of payments has any significance. As was pointed out by Lord Greene, M. R. in Henriksens case, (1942) 24 Tax Cas 453 :"If the sum payable is not in the nature of revenue expenditure, it cannot be made so by permitting it to be paid in annual instalments. These payments by instalments in respect of monopoly value have not the annual quality of the payments for grant of the annual excise licence, but are of a different character altogether ....... Here the Appellants were minded to acquire as asset in the shape of a licence for a term of years." The learned Master of the Rolls added that the annual payments gave "a false appearance of periodicity".40. Applying the above test to the present case, it is obvious that the monthly payments of Rs. 1,666-10-8 did not represent the lease amount for a month. This was a case in which the assessee had acquired an asset of an enduring character for which he had to put his hand in his pocket for a very large sum indeed. He paid Rs. 96,000 down, but for the rest he asked for easy terms. The amount paid every month was not in any sense a payment of acquisition of the right from month to month. It was really the entire sum chapped into small payments for his convenience. Nor an the amount be described as a business expense, because the outgoings over purchase of stones but in discharge of the entire liability to the jagir.41. Some of the cases to which we were referred may now be briefly noted. Hakim Ram Prasad In re, (1936) 4 ITR 104 (Lah), was a case of renting of a cinema projector for 10 years. The amount paid was thus hire for the machine. In Commr. of Income-tax v. Globe Theatres, Limited, 1950-18 ITR 403 : (AIR 1952 Cal 145 ), the assessee advance Rs. 10,000 to a company for the construction of a cinema house which was never built. Since the amount was not salami or premium but only advance rent, it was held deductible. Commissioner of Income-tax v. Kolhia Hirdagarh Co. Ltd., 1949-17 ITR 545 : (AIR 1950 Bom 51 ), was a case of commission on every ton of coal raised, and it was held to be revenue expenditure. These cases are entirely different, and can be of no authority for payments, such as we have.42. Reliance was also placed upon Parmanand Haveli Ram In re, (1945) 13 ITR 157 : (AIR 1945 Lah 137), Nand Lal Bhoj Raj In re, 1946-14 ITR 181 (Lah) and Commissioner of Income-tax v. Tika Ram and Sons, 1937-5 ITR 544 : (AIR 1937 All 708) (SB). In the first two, expenditure to acquire lands bearing certain salts in the earth, which could be converted into potassium nitrate, sodium chloride or saltpetre, was regarded as revenue expenditure. They follow the line of reasoning which the same Court adopted in the Full Bench case of Benarsidas, 1947-15 ITR 185 : (AIR 1947 Lah 162), which we have considered in detail earlier. They involved short-term contracts, and in the Full Bench case it was stated that the case of long-term leases was on a different footing, though, in our opinion, the decisive factors in such cases will be the nature of the acquisition and the reason for the payment. Cases on the other side of the line where payments were regarded as capital expenditure are Commissioner of Income-tax v. Chengalvaroya Mundaliar, ILR 58 Mad 1 : (AIR 1934 Mad 617 (2) ) (SB) and Chengalvaroya Chettiar v. Commissioner of Income-tax, (1937) 5 ITR 70 : (AIR 1937 Mad 300) (SB). There the expenditure was for a lease for excavation of lime shells. Since the lease conferred exclusive privilege and a new business was started, the payment was regarded not as the price for the shells but for the right to win shells.43. All these cases turned on different facts, and it is not necessary to decide which of them in the special circumstances were correctly decided. This enquiry will hardly help in the solution of the case in hand.We are, however, satisfied that in this case the assessee acquired by his long-term lease a right to win stones, and the leases convey to him a part of land. The stones in situ were not his stock-in-trade in a business sense but a capital asset from which after extraction he converted the stones into his stock-in-trade. The payment, though periodic in fact, was neither rent nor royalty but a lump payment in instalments for acquiring a capital asset of enduring benefit to his trade. In this view of the matter, the High Court was right in treating the outgoings as on capital account.44. In the result, the appeal fails, and will be dismissed with costs. | 0[ds]6. This distinction between capital and revenue, either on the receipt or expenditure side, is almost a perennial problem in Income-tax law. In general the distinction is well-recognised and is based on certain principles which are easy of application in some cases; but from time to time cases arise which make the distinction difficult of application. A large number of decisions were cited before us, but no infallible criterion of universal application emerges therefrom and each case must turn on its own facts, though the decisions are useful as illustrations and as affording indication of the kind of considerations which may relevantly be borne in mind in approaching the problem. I shall refer in this judgment to such decision only as have a bearing on the real controversy between the parties.It is, I think, an accepted position now that the expression "capital expenditure" must normally be construed in a business sense and emphasis should be placed upon the business aspect of the transaction rather than on the purely legal and technical aspect. It is not, therefore, necessary to determine whether the Quolnama in the present case was in law a lease, or a license, or a license coupled with a grant. What we have to consider is the nature of the transaction from the business point of view, and it seems to me that having regard to the terms of the Quolnama, the transaction in its true nature and quality was a sale of raw materials coupled with a license to the appellant to come on the land and remove the materials sold; the purchase price was to be paid partly in a lump sum and partly in monthly instalments. If that is the true nature of the transaction, there is no difficulty in answering the question rasied. The only answer then is that the payments in question were revenue expenditure.In the result and for the reasons given above, I hold that the expenditure in question was on revenue account and the appellant was entitled to the allowance he claimed. The answer given by the High Court was wrong and the appeal should be allowed with costs. | 0 | 13,232 | 389 | ### Instruction:
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point of view of rating, but compensation has the same meaning in its application to matters of taxation such as are involved in this case."38. Thus, the contention of the learned counsel for the assessee that we should treat this quolnama as merely showing a licence and not a lease creating interest in land is not correct. A lease to take out sand was described in Kanjee and Moolji Bros. v. Shanmugam Pillai, ILR 56 Mad 169 : (AIR 1932 Mad 734 ), as amounting to a transfer of interest in immovable property and also so, in connection with the Registration Act in Secy. of State v. Kuchwar Lime and Stone Co., 65 Ind App 45 at p. 54: (AIR 1938 PC 20 at p. 22). It is thus clear that what the assessee acquired was land, a part of which in the shape of stones he was to appropriate under the covenants. He was not purchasing stones, and the price paid could not in any sense be referable to stones as stock-in-trade. The stones extracted might have become his stock-in-trade, but the stones in situ were not so.39. Nor do we agree that the periodicity of payments has any significance. As was pointed out by Lord Greene, M. R. in Henriksens case, (1942) 24 Tax Cas 453 :"If the sum payable is not in the nature of revenue expenditure, it cannot be made so by permitting it to be paid in annual instalments. These payments by instalments in respect of monopoly value have not the annual quality of the payments for grant of the annual excise licence, but are of a different character altogether ....... Here the Appellants were minded to acquire as asset in the shape of a licence for a term of years." The learned Master of the Rolls added that the annual payments gave "a false appearance of periodicity".40. Applying the above test to the present case, it is obvious that the monthly payments of Rs. 1,666-10-8 did not represent the lease amount for a month. This was a case in which the assessee had acquired an asset of an enduring character for which he had to put his hand in his pocket for a very large sum indeed. He paid Rs. 96,000 down, but for the rest he asked for easy terms. The amount paid every month was not in any sense a payment of acquisition of the right from month to month. It was really the entire sum chapped into small payments for his convenience. Nor an the amount be described as a business expense, because the outgoings over purchase of stones but in discharge of the entire liability to the jagir.41. Some of the cases to which we were referred may now be briefly noted. Hakim Ram Prasad In re, (1936) 4 ITR 104 (Lah), was a case of renting of a cinema projector for 10 years. The amount paid was thus hire for the machine. In Commr. of Income-tax v. Globe Theatres, Limited, 1950-18 ITR 403 : (AIR 1952 Cal 145 ), the assessee advance Rs. 10,000 to a company for the construction of a cinema house which was never built. Since the amount was not salami or premium but only advance rent, it was held deductible. Commissioner of Income-tax v. Kolhia Hirdagarh Co. Ltd., 1949-17 ITR 545 : (AIR 1950 Bom 51 ), was a case of commission on every ton of coal raised, and it was held to be revenue expenditure. These cases are entirely different, and can be of no authority for payments, such as we have.42. Reliance was also placed upon Parmanand Haveli Ram In re, (1945) 13 ITR 157 : (AIR 1945 Lah 137), Nand Lal Bhoj Raj In re, 1946-14 ITR 181 (Lah) and Commissioner of Income-tax v. Tika Ram and Sons, 1937-5 ITR 544 : (AIR 1937 All 708) (SB). In the first two, expenditure to acquire lands bearing certain salts in the earth, which could be converted into potassium nitrate, sodium chloride or saltpetre, was regarded as revenue expenditure. They follow the line of reasoning which the same Court adopted in the Full Bench case of Benarsidas, 1947-15 ITR 185 : (AIR 1947 Lah 162), which we have considered in detail earlier. They involved short-term contracts, and in the Full Bench case it was stated that the case of long-term leases was on a different footing, though, in our opinion, the decisive factors in such cases will be the nature of the acquisition and the reason for the payment. Cases on the other side of the line where payments were regarded as capital expenditure are Commissioner of Income-tax v. Chengalvaroya Mundaliar, ILR 58 Mad 1 : (AIR 1934 Mad 617 (2) ) (SB) and Chengalvaroya Chettiar v. Commissioner of Income-tax, (1937) 5 ITR 70 : (AIR 1937 Mad 300) (SB). There the expenditure was for a lease for excavation of lime shells. Since the lease conferred exclusive privilege and a new business was started, the payment was regarded not as the price for the shells but for the right to win shells.43. All these cases turned on different facts, and it is not necessary to decide which of them in the special circumstances were correctly decided. This enquiry will hardly help in the solution of the case in hand.We are, however, satisfied that in this case the assessee acquired by his long-term lease a right to win stones, and the leases convey to him a part of land. The stones in situ were not his stock-in-trade in a business sense but a capital asset from which after extraction he converted the stones into his stock-in-trade. The payment, though periodic in fact, was neither rent nor royalty but a lump payment in instalments for acquiring a capital asset of enduring benefit to his trade. In this view of the matter, the High Court was right in treating the outgoings as on capital account.44. In the result, the appeal fails, and will be dismissed with costs.
### Response:
0
### Explanation:
6. This distinction between capital and revenue, either on the receipt or expenditure side, is almost a perennial problem in Income-tax law. In general the distinction is well-recognised and is based on certain principles which are easy of application in some cases; but from time to time cases arise which make the distinction difficult of application. A large number of decisions were cited before us, but no infallible criterion of universal application emerges therefrom and each case must turn on its own facts, though the decisions are useful as illustrations and as affording indication of the kind of considerations which may relevantly be borne in mind in approaching the problem. I shall refer in this judgment to such decision only as have a bearing on the real controversy between the parties.It is, I think, an accepted position now that the expression "capital expenditure" must normally be construed in a business sense and emphasis should be placed upon the business aspect of the transaction rather than on the purely legal and technical aspect. It is not, therefore, necessary to determine whether the Quolnama in the present case was in law a lease, or a license, or a license coupled with a grant. What we have to consider is the nature of the transaction from the business point of view, and it seems to me that having regard to the terms of the Quolnama, the transaction in its true nature and quality was a sale of raw materials coupled with a license to the appellant to come on the land and remove the materials sold; the purchase price was to be paid partly in a lump sum and partly in monthly instalments. If that is the true nature of the transaction, there is no difficulty in answering the question rasied. The only answer then is that the payments in question were revenue expenditure.In the result and for the reasons given above, I hold that the expenditure in question was on revenue account and the appellant was entitled to the allowance he claimed. The answer given by the High Court was wrong and the appeal should be allowed with costs.
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Jagdish Mandal Vs. State Of Orissa | his powers or outside the purpose of the Act, or unfairly or on an incorrect basis of fact. But there is no universal rule as to the principles on which the exercise of a discretion may be reviewed;" Reliance is also placed on the following observations of this Court in Barium Chemicals Ltd. vs. The Company Law Board [1966 Supp. SCR 311]: "No doubt the formation of opinion is subjective but the existence of circumstances relevant to the inference as the sine qua non for action must be demonstrable. If the action is questioned on the ground that no circumstance leading to an inference of the kind contemplated by the section exists, the action might be exposed to interference unless the existence of the circumstances is made out." These decisions are no assistance. In this case, the committee in fact acted on a factual basis, namely, the communication from the Superintendent of Posts that the TD passbook should not be acted upon. Even if the said information furnished by the Superintendent of Posts was subsequently found to be incorrect, that will not invalidate the action taken by the Committee on such information. In this case, in fact, there is nothing to show even till now that the information given by the Superintendent of Posts in his letter dated 14.3.2005 was false. We are not expressing any opinion on the issue whether the TD pass book was really genuine or not as it does not directly arise for consideration in this case. All that is required to be noticed is that the High Court exceeded its power of judicial review in interfering with the contracts.Re: Contract for Second Stretch27. The High Court has quashed the agreement relating to second stretch without even considering the matter on merits. It proceeded on the basis that both tenders of fifth respondent were rejected only on the ground of fabrication/manipulation of the term deposit pass book offered as EMD for the first tender. We have already held, while dealing with the first tender, that there was no irregularity in the decision to exclude reject fifth respondents tender. Therefore, the very basis for High Courts judgment for interfering with the award of the work in respect of the second tender disappears. Be that as it may. The Committee has given other reasons also for rejection of fifth respondents tender, which merit consideration.28. The fifth respondent had submitted an unduly low rate in regard to item no. 19 (C.C. lining). It was the last item of work to be executed, and constituted nearly one fifth of the total estimated value of the work. In regard to the said work, as against the rate of Rs. 2020.50 per cu.m., estimated by the department, the fifth respondent quoted an absurdly low rate of Rs. 20 only which was less than 1% of the estimated rate. It is obvious that he could not have executed the work at that rate. The CC lining being the last work, there was every likelihood of the tenderer executing the other items of work for which he had quoted much higher rates than others and leave out the last item, or raise same dispute thereby jeopardizing the work and causing delay. It is true that a contractor could have an answer by contending that he had priced the other items of work in a manner which enabled him to quote a very low rate for one of the items. But then the committee is entitled to consider the effect of such freak rates. Where the absurdly low rate is in regard to a large item of work, which has to be executed at the very end, it is possible for the committee to suspect some ulterior motive on the part of the tenderer. If the committee felt that there was a reasonable possibility of the contractor leaving the work midway on account of the rate quoted for the last item of work being found to be unworkable, thereby putting the work in jeopardy, it can certainly reject the tender as it affects the reliability of the contractor to perform the work. Unduly low and unworkable rate or rates, is a ground for rejection of tenders (vide Note to clause 3.5.18). The modus operandi of quoting low rates in regard to some items of work and thereby securing the contract and then raising disputes by making large claims, is not uncommon among the contractors. The very purpose of constituting a committee for scrutinizing the tenders is to find out whether any freak low rate will affect the work if the contract is awarded to the tenderer. If the committee found that the tender of fifth respondent should be rejected on that ground, the said decision cannot be termed as unreasonable or arbitrary. The committee has applied its mind and rejected the tender by assigning a reason which is neither irrational nor arbitrary. Neither the High Court nor this Court can sit in appeal over such technical assessment. There is no infirmity in the decision making process or the decision.29. Learned counsel for the fifth respondent pointed out that the Resident Audit Officer had made a report in regard to the extra cost involved due to rejection of the two lowest tenders of the fifth respondent and that report refers to the fact that Laxman Sharma had also quoted some low rates in regard to certain items of work. It is contended that ignoring low rates in the case of Laxman Sharma, but making it a ground for rejection of fifth respondents tender, show bias and favoritism. The value of work in respect of which Laxman Sharma is said to have given low tender rates, is not specified. It is for the Committee to assess whether a particular low tender rate is likely to affect the execution of the work. Therefore, the fact that Laxman Sharma had also quoted low rates in regard to certain items of work, will not affect the decision of the Committee. | 0[ds]22. We have already noticed that while the Committee acted on the letter dated 14.3.2005 of the Superintendent of posts, the High Court acted on an Inquiry Report submitted by the Officer in Charge of Junagarh Police Station during the pendency of the writ petition. When the SLP came up for consideration on 25.1.2006, this Court directed the State to place on record the report of the Superintendent of Post Offices and the Police investigation report. Accordingly, the State placed three reports before this Court. The first is the detailed Vigilance Enquiry Report of the Postal Department holding that the TA Account pass book no.154120 issued byMaster, Mukhiguda should not be considered as genuine. The second is the Inquiry Report dated 16.9.2006 of the Officer in charge of Junagarh police station reiterating his earlier report submitted to the High Court that the pass book is genuine and a sum of Rs. 1,70,000 was deposited by fifth respondent in postal TA Account No. 154120 on 06.12.2004. The third is the report of the Superintendent of Police, Kalahandi, dated 28.10.2006, opining that fifth respondent did not deposit Rs. 1,70,000 on 6.12.2004 and that theMaster, Mukhiguda had shown the date of deposit as 6.12.2004 in order to help fifth respondent to get his tender accepted. While the inquiry report of the Postal Vigilance Cell and the letters from postal department clearly holds that the TD Account Passbook No.154120 produced by fifth respondent was not genuine, the report of the office in charge of the police station, concludes that the passbook is genuine and not forged. But significantly the subsequent police report dated 28.10.2006 by a higher authority, namely the Superintendent of Police, Kalahandi, states that fifth respondent had obtained apassbook in connivance with theMaster Mukhiguda.23. We have referred to various reports only to show that there exist divergent views about the genuineness of the TD passbook. It is wholly unnecessary to record a definite finding on the issue whether the TD passbook submitted by one of the tenderes EMD is genuine or forged. In this case, as the Superintendent of Post Offices informed the department that the postal TD passbook produced by fifth respondent should not be acted upon, the Committee proceeded to hold that his tender wasor defective as it was not accompanied by a valid EMD. In such circumstances, the limited question that had to be considered in a writ petition filed by the unsuccessful tenderer is whether the Committee acted unreasonably in taking such a decision. There can be no doubt that it did not. The tender was to be accompanied by an EMD as prescribed. If the postal department which issued the TD passbook pledged by the fifth respondent towards EMD, said that it should not be acted upon, there is no question of the Committee then holding any further enquiry about its genuineness and holding up the evaluation of tenders. For example if a Pay Order/Bankers Cheque/Demand Draft issued by a Bank is produced as EMD and the Bank informs that such pay order/cheque/DD should not be acted upon, the authority concerned is not expected to suspend the process of evaluation and hold an enquiry in regard to the validity of genuineness, but act upon the information received fro the Bank and treat the EMD as defective and proceed with the evaluation of tenders on that basis.24.The learned counsel for fifth respondent submitted that the department ought not to have acted on a complaint received against him, without giving him an opportunity to show cause.This contention has no merit. Whether any complaint is received or not, the department is entitled to verify the authenticity of the document pledged as earnest money deposit. Such verification is routinely done. The Committee was neither blacklisting the tenderer nor visiting any penal consequences on the tenderer. It was merely treating the tender as defective. There was, therefore, no need to give an opportunity to the tenderer to show cause at that stage. We no doubt agree that the Committee could have granted an opportunity to the tenderer to explain the position. But failure to do so cannot render the action of the Committee treating the EMD as defective, illegal or arbitrary.25. The limited scope of judicial review by the High Court envisaged examination of the question whether there was any material irregularity in the decision making process or whether the decision of the Committee and consequential rejection of fifth respondents tender was irrational, unreasonable or arbitrary. The validity of the decision of the Committee taken on the material available at the time of consideration of tenders, cannot be tested with reference to a subsequent police enquiry report submitted in the writ proceedings. Nor can it be held that the Committee acted arbitrarily in not accepting the passbook, on the basis of some report opining that the TD passbook is genuine. The High Court was not sitting in appeal over the decision of the Committee. The High Court could not, therefore, by relying on a subsequent police enquiry report, the correctness of which is yet to be established, to hold that the Tender Committee was wrong in rejecting the TD passbook. Further, the High Court missed the issue. The question for consideration was not whether the TD passbook pledged by the fifth respondent is genuine or not. The question for consideration was whether the committee acted arbitrarily or irrationally in rejecting the said TD passbook.26.The learned counsel for fifth respondent submitted thatif the Committee had proceeded on an incorrect basis of facts, then the decision was open to judicialdecisions are no assistance. In this case, the committee in fact acted on a factual basis, namely, the communication from the Superintendent of Posts that the TD passbook should not be acted upon. Even if the said information furnished by the Superintendent of Posts was subsequently found to be incorrect, that will not invalidate the action taken by the Committee on such information. In this case, in fact, there is nothing to show even till now that the information given by the Superintendent of Posts in his letter dated 14.3.2005 was false. We are not expressing any opinion on the issue whether the TD pass book was really genuine or not as it does not directly arise for consideration in this case. All that is required to be noticed is that the High Court exceeded its power of judicial review in interfering with the contracts.Re: Contract for Second Stretch27. The High Court has quashed the agreement relating to second stretch without even considering the matter on merits. It proceeded on the basis that both tenders of fifth respondent were rejected only on the ground of fabrication/manipulation of the term deposit pass book offered as EMD for the first tender. We have already held, while dealing with the first tender, that there was no irregularity in the decision to exclude reject fifth respondents tender. Therefore, the very basis for High Courts judgment for interfering with the award of the work in respect of the second tender disappears. Be that as it may. The Committee has given other reasons also for rejection of fifth respondents tender, which merit consideration.28.The fifth respondent had submitted an unduly low rate in regard to item no. 19 (C.C. lining). It was the last item of work to be executed, and constituted nearly one fifth of the total estimated value of the work. In regard to the said work, as against the rate of Rs. 2020.50 per cu.m., estimated by the department, the fifth respondent quoted an absurdly low rate of Rs. 20 only which was less than 1% of the estimated rate.It is obvious that he could not have executed the work at that rate. The CC lining being the last work, there was every likelihood of the tenderer executing the other items of work for which he had quoted much higher rates than others and leave out the last item, or raise same dispute thereby jeopardizing the work and causing delay. It is true that a contractor could have an answer by contending that he had priced the other items of work in a manner which enabled him to quote a very low rate for one of the items. But then the committee is entitled to consider the effect of such freak rates. Where the absurdly low rate is in regard to a large item of work, which has to be executed at the very end, it is possible for the committee to suspect some ulterior motive on the part of the tenderer. If the committee felt that there was a reasonable possibility of the contractor leaving the work midway on account of the rate quoted for the last item of work being found to be unworkable, thereby putting the work in jeopardy, it can certainly reject the tender as it affects the reliability of the contractor to perform the work. Unduly low and unworkable rate or rates, is a ground for rejection of tenders (vide Note to clause 3.5.18). The modus operandi of quoting low rates in regard to some items of work and thereby securing the contract and then raising disputes by making large claims, is not uncommon among the contractors. The very purpose of constituting a committee for scrutinizing the tenders is to find out whether any freak low rate will affect the work if the contract is awarded to the tenderer. If the committee found that the tender of fifth respondent should be rejected on that ground, the said decision cannot be termed as unreasonable or arbitrary. The committee has applied its mind and rejected the tender by assigning a reason which is neither irrational nor arbitrary. Neither the High Court nor this Court can sit in appeal over such technical assessment. There is no infirmity in the decision making process or the decision.29.Learned counsel for the fifth respondent pointed out that the Resident Audit Officer had made a report in regard to the extra cost involved due to rejection of the two lowest tenders of the fifth respondent and that report refers to the fact that Laxman Sharma had also quoted some low rates in regard to certain items of work. It is contended that ignoring low rates in the case of Laxman Sharma, but making it a ground for rejection of fifth respondents tender, show bias and favoritism. The value of work in respect of which Laxman Sharma is said to have given low tender rates, is not specified. It is for the Committee to assess whether a particular low tender rate is likely to affect the execution of the work. Therefore, the fact that Laxman Sharma had also quoted low rates in regard to certain items of work, will not affect the decision of the Committee. | 0 | 7,380 | 1,936 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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his powers or outside the purpose of the Act, or unfairly or on an incorrect basis of fact. But there is no universal rule as to the principles on which the exercise of a discretion may be reviewed;" Reliance is also placed on the following observations of this Court in Barium Chemicals Ltd. vs. The Company Law Board [1966 Supp. SCR 311]: "No doubt the formation of opinion is subjective but the existence of circumstances relevant to the inference as the sine qua non for action must be demonstrable. If the action is questioned on the ground that no circumstance leading to an inference of the kind contemplated by the section exists, the action might be exposed to interference unless the existence of the circumstances is made out." These decisions are no assistance. In this case, the committee in fact acted on a factual basis, namely, the communication from the Superintendent of Posts that the TD passbook should not be acted upon. Even if the said information furnished by the Superintendent of Posts was subsequently found to be incorrect, that will not invalidate the action taken by the Committee on such information. In this case, in fact, there is nothing to show even till now that the information given by the Superintendent of Posts in his letter dated 14.3.2005 was false. We are not expressing any opinion on the issue whether the TD pass book was really genuine or not as it does not directly arise for consideration in this case. All that is required to be noticed is that the High Court exceeded its power of judicial review in interfering with the contracts.Re: Contract for Second Stretch27. The High Court has quashed the agreement relating to second stretch without even considering the matter on merits. It proceeded on the basis that both tenders of fifth respondent were rejected only on the ground of fabrication/manipulation of the term deposit pass book offered as EMD for the first tender. We have already held, while dealing with the first tender, that there was no irregularity in the decision to exclude reject fifth respondents tender. Therefore, the very basis for High Courts judgment for interfering with the award of the work in respect of the second tender disappears. Be that as it may. The Committee has given other reasons also for rejection of fifth respondents tender, which merit consideration.28. The fifth respondent had submitted an unduly low rate in regard to item no. 19 (C.C. lining). It was the last item of work to be executed, and constituted nearly one fifth of the total estimated value of the work. In regard to the said work, as against the rate of Rs. 2020.50 per cu.m., estimated by the department, the fifth respondent quoted an absurdly low rate of Rs. 20 only which was less than 1% of the estimated rate. It is obvious that he could not have executed the work at that rate. The CC lining being the last work, there was every likelihood of the tenderer executing the other items of work for which he had quoted much higher rates than others and leave out the last item, or raise same dispute thereby jeopardizing the work and causing delay. It is true that a contractor could have an answer by contending that he had priced the other items of work in a manner which enabled him to quote a very low rate for one of the items. But then the committee is entitled to consider the effect of such freak rates. Where the absurdly low rate is in regard to a large item of work, which has to be executed at the very end, it is possible for the committee to suspect some ulterior motive on the part of the tenderer. If the committee felt that there was a reasonable possibility of the contractor leaving the work midway on account of the rate quoted for the last item of work being found to be unworkable, thereby putting the work in jeopardy, it can certainly reject the tender as it affects the reliability of the contractor to perform the work. Unduly low and unworkable rate or rates, is a ground for rejection of tenders (vide Note to clause 3.5.18). The modus operandi of quoting low rates in regard to some items of work and thereby securing the contract and then raising disputes by making large claims, is not uncommon among the contractors. The very purpose of constituting a committee for scrutinizing the tenders is to find out whether any freak low rate will affect the work if the contract is awarded to the tenderer. If the committee found that the tender of fifth respondent should be rejected on that ground, the said decision cannot be termed as unreasonable or arbitrary. The committee has applied its mind and rejected the tender by assigning a reason which is neither irrational nor arbitrary. Neither the High Court nor this Court can sit in appeal over such technical assessment. There is no infirmity in the decision making process or the decision.29. Learned counsel for the fifth respondent pointed out that the Resident Audit Officer had made a report in regard to the extra cost involved due to rejection of the two lowest tenders of the fifth respondent and that report refers to the fact that Laxman Sharma had also quoted some low rates in regard to certain items of work. It is contended that ignoring low rates in the case of Laxman Sharma, but making it a ground for rejection of fifth respondents tender, show bias and favoritism. The value of work in respect of which Laxman Sharma is said to have given low tender rates, is not specified. It is for the Committee to assess whether a particular low tender rate is likely to affect the execution of the work. Therefore, the fact that Laxman Sharma had also quoted low rates in regard to certain items of work, will not affect the decision of the Committee.
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the passbook, on the basis of some report opining that the TD passbook is genuine. The High Court was not sitting in appeal over the decision of the Committee. The High Court could not, therefore, by relying on a subsequent police enquiry report, the correctness of which is yet to be established, to hold that the Tender Committee was wrong in rejecting the TD passbook. Further, the High Court missed the issue. The question for consideration was not whether the TD passbook pledged by the fifth respondent is genuine or not. The question for consideration was whether the committee acted arbitrarily or irrationally in rejecting the said TD passbook.26.The learned counsel for fifth respondent submitted thatif the Committee had proceeded on an incorrect basis of facts, then the decision was open to judicialdecisions are no assistance. In this case, the committee in fact acted on a factual basis, namely, the communication from the Superintendent of Posts that the TD passbook should not be acted upon. Even if the said information furnished by the Superintendent of Posts was subsequently found to be incorrect, that will not invalidate the action taken by the Committee on such information. In this case, in fact, there is nothing to show even till now that the information given by the Superintendent of Posts in his letter dated 14.3.2005 was false. We are not expressing any opinion on the issue whether the TD pass book was really genuine or not as it does not directly arise for consideration in this case. All that is required to be noticed is that the High Court exceeded its power of judicial review in interfering with the contracts.Re: Contract for Second Stretch27. The High Court has quashed the agreement relating to second stretch without even considering the matter on merits. It proceeded on the basis that both tenders of fifth respondent were rejected only on the ground of fabrication/manipulation of the term deposit pass book offered as EMD for the first tender. We have already held, while dealing with the first tender, that there was no irregularity in the decision to exclude reject fifth respondents tender. Therefore, the very basis for High Courts judgment for interfering with the award of the work in respect of the second tender disappears. Be that as it may. The Committee has given other reasons also for rejection of fifth respondents tender, which merit consideration.28.The fifth respondent had submitted an unduly low rate in regard to item no. 19 (C.C. lining). It was the last item of work to be executed, and constituted nearly one fifth of the total estimated value of the work. In regard to the said work, as against the rate of Rs. 2020.50 per cu.m., estimated by the department, the fifth respondent quoted an absurdly low rate of Rs. 20 only which was less than 1% of the estimated rate.It is obvious that he could not have executed the work at that rate. The CC lining being the last work, there was every likelihood of the tenderer executing the other items of work for which he had quoted much higher rates than others and leave out the last item, or raise same dispute thereby jeopardizing the work and causing delay. It is true that a contractor could have an answer by contending that he had priced the other items of work in a manner which enabled him to quote a very low rate for one of the items. But then the committee is entitled to consider the effect of such freak rates. Where the absurdly low rate is in regard to a large item of work, which has to be executed at the very end, it is possible for the committee to suspect some ulterior motive on the part of the tenderer. If the committee felt that there was a reasonable possibility of the contractor leaving the work midway on account of the rate quoted for the last item of work being found to be unworkable, thereby putting the work in jeopardy, it can certainly reject the tender as it affects the reliability of the contractor to perform the work. Unduly low and unworkable rate or rates, is a ground for rejection of tenders (vide Note to clause 3.5.18). The modus operandi of quoting low rates in regard to some items of work and thereby securing the contract and then raising disputes by making large claims, is not uncommon among the contractors. The very purpose of constituting a committee for scrutinizing the tenders is to find out whether any freak low rate will affect the work if the contract is awarded to the tenderer. If the committee found that the tender of fifth respondent should be rejected on that ground, the said decision cannot be termed as unreasonable or arbitrary. The committee has applied its mind and rejected the tender by assigning a reason which is neither irrational nor arbitrary. Neither the High Court nor this Court can sit in appeal over such technical assessment. There is no infirmity in the decision making process or the decision.29.Learned counsel for the fifth respondent pointed out that the Resident Audit Officer had made a report in regard to the extra cost involved due to rejection of the two lowest tenders of the fifth respondent and that report refers to the fact that Laxman Sharma had also quoted some low rates in regard to certain items of work. It is contended that ignoring low rates in the case of Laxman Sharma, but making it a ground for rejection of fifth respondents tender, show bias and favoritism. The value of work in respect of which Laxman Sharma is said to have given low tender rates, is not specified. It is for the Committee to assess whether a particular low tender rate is likely to affect the execution of the work. Therefore, the fact that Laxman Sharma had also quoted low rates in regard to certain items of work, will not affect the decision of the Committee.
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U.N. R. Rao Vs. Smt. Indira Gandhi | President of India is a person who has to be elected in accordance with the relevant provisions of the Constitution but even so he is bound by the provisions of the Constitution. Art. 60 prescribes the oath or affirmation which the President has to take. It reads:"I. A B. do swear in the name of God/solemnly affirm that I will faithfully execute the office of President (or discharge the functions of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India." Articles 74 and 75 deal with the council of Ministers. They read thus : "74. (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. (2) The question whether any, and so what advice was tendered by Ministers to the President shall not be inquired into in any court. 75. (1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister. (2) The Ministers shall hold office during the pleasure of the President. (3) The Council of Ministers shall be collectively responsible to the House of the People. (4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule. (5) A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister. (6) The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine and, until Parliament so determines shall be as specified in the Second Schedule." 8. It will be noticed that Article 74 (1) is mandatory in form. We are unable to agree with the appellant that in the context the word "shall" should be read as "may". Article 52 is mandatory. In other words there shall be a President of India. So is Art. 74 (l). The Constituent Assembly did not choose the Presidential system of Government. If we were to give effect to this contention of the appellant we would be changing the whole concept of the Executive. It would mean that the President need not have a Prime Minister and Ministers to aid and advise in the exercise of his functions. As there would be no Council of Ministers, nobody would be responsible to the House of the People. With the aid of advisers he would be able to rule the country at least till he is impeached under Article 61. 9. It seems to us that we must read the word "shall" as meaning "shall" and not "may". If Article 74 (1) is read in this manner the rest of the Provisions dealing with the Executive must be read in harmony with it. Indeed they fall into place. Under Article 75 (l) the President appoints the Prime Minister and appoints the other Ministers on the advice of the Prime Minister, and under Article 75 (2) they hold office during the pleasure of the President. The President has not said that it is his pleasure that the respondent shall not hold office. 10. Now comes the crucial clause three of Art. 75. The appellant urges that the House of People having been dissolved this clause cannot be complied with. According to him it follows from the provisions of this clause that it was contemplated that on the dissolution of the House of People the Prime Minister and the other ministers must resign or be dismissed by the President and the President must carry on the Government as best as he can with the aid of the Services. As we have shown above, Art. 74 (1) is mandatory and therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers. We must then harmonise the provisions of Art 75 (3) with Art. 74 (1) and Art. 75 (2).Article 75 (3) brings into existence what is usually called "Responsible Government". In other words the Council of Ministers must enjoy the confidence of the House of People. While the House of People is not dissolved under Art. 85 (2) (b), Art. 75 (3) has full operation. But when it is dissolved the Council of Ministers cannot naturally enjoy the confidence of the House of People. Nobody has said that the Council of Ministers does not enjoy the confidence of the House of People when it is prorogued. In the context, therefore, this clause must be read as meaning that Art 75 (3) only applies when the House of People does not stand dissolved or prorogued. We are not concerned with the case where dissolution of the House of People takes place under Art. 83 (2) on the expiration of the period of five years prescribed therein, for Parliament has provided for that contingency in S. 14 of the Representation of the People Act, 1951. 11. On our interpretation other articles of the Constitution also have full play; e. g. Article 77 (3) which contemplates allocation of business among Ministers, and Article 78 which prescribes certain duties of Prime Minister. 12. We ate grateful to the learned Attorney General and the appellant for having supplied to us compilations containing extracts from various books on Constitutional Law and extracts from the debates in the Constituent Assembly. We need not burden this judgment with them. But on the whole we receive assurance from the learned authors and the speeches that the view we have taken is the right one and is in accordance with conventions followed not only in the United Kingdom but in other countries following a similar system of responsible Government. | 0[ds]9. It seems to us that we must read the word "shall" as meaning "shall" and not "may". If Article 74 (1) is read in this manner the rest of the Provisions dealing with the Executive must be read in harmony with it. Indeed they fall into place. Under Article 75 (l) the President appoints the Prime Minister and appoints the other Ministers on the advice of the Prime Minister, and under Article 75 (2) they hold office during the pleasure of the President. The President has not said that it is his pleasure that the respondent shall not hold office10. Now comes the crucial clause three of Art. 75. The appellant urges that the House of People having been dissolved this clause cannot be complied with. According to him it follows from the provisions of this clause that it was contemplated that on the dissolution of the House of People the Prime Minister and the other ministers must resign or be dismissed by the President and the President must carry on the Government as best as he can with the aid of the Services. As we have shown above, Art. 74 (1) is mandatory and therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers. We must then harmonise the provisions of Art 75 (3) with Art. 74 (1) and Art. 75 (2).Article 75 (3) brings into existence what is usually called "Responsible Government". In other words the Council of Ministers must enjoy the confidence of the House of People. While the House of People is not dissolved under Art. 85 (2) (b), Art. 75 (3) has full operation. But when it is dissolved the Council of Ministers cannot naturally enjoy the confidence of the House of People. Nobody has said that the Council of Ministers does not enjoy the confidence of the House of People when it is prorogued. In the context, therefore, this clause must be read as meaning that Art 75 (3) only applies when the House of People does not stand dissolved or prorogued. We are not concerned with the case where dissolution of the House of People takes place under Art. 83 (2) on the expiration of the period of five years prescribed therein, for Parliament has provided for that contingency in S. 14 of the Representation of the People Act, 195111. On our interpretation other articles of the Constitution also have full play; e. g. Article 77 (3) which contemplates allocation of business among Ministers, and Article 78 which prescribes certain duties of Prime Minister12. We ate grateful to the learned Attorney General and the appellant for having supplied to us compilations containing extracts from various books on Constitutional Law and extracts from the debates in the Constituent Assembly. We need not burden this judgment with them. But on the whole we receive assurance from the learned authors and the speeches that the view we have taken is the right one and is in accordance with conventions followed not only in the United Kingdom but in other countries following a similar system of responsible Government. | 0 | 2,688 | 602 | ### 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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President of India is a person who has to be elected in accordance with the relevant provisions of the Constitution but even so he is bound by the provisions of the Constitution. Art. 60 prescribes the oath or affirmation which the President has to take. It reads:"I. A B. do swear in the name of God/solemnly affirm that I will faithfully execute the office of President (or discharge the functions of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of India." Articles 74 and 75 deal with the council of Ministers. They read thus : "74. (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of his functions. (2) The question whether any, and so what advice was tendered by Ministers to the President shall not be inquired into in any court. 75. (1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister. (2) The Ministers shall hold office during the pleasure of the President. (3) The Council of Ministers shall be collectively responsible to the House of the People. (4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule. (5) A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister. (6) The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine and, until Parliament so determines shall be as specified in the Second Schedule." 8. It will be noticed that Article 74 (1) is mandatory in form. We are unable to agree with the appellant that in the context the word "shall" should be read as "may". Article 52 is mandatory. In other words there shall be a President of India. So is Art. 74 (l). The Constituent Assembly did not choose the Presidential system of Government. If we were to give effect to this contention of the appellant we would be changing the whole concept of the Executive. It would mean that the President need not have a Prime Minister and Ministers to aid and advise in the exercise of his functions. As there would be no Council of Ministers, nobody would be responsible to the House of the People. With the aid of advisers he would be able to rule the country at least till he is impeached under Article 61. 9. It seems to us that we must read the word "shall" as meaning "shall" and not "may". If Article 74 (1) is read in this manner the rest of the Provisions dealing with the Executive must be read in harmony with it. Indeed they fall into place. Under Article 75 (l) the President appoints the Prime Minister and appoints the other Ministers on the advice of the Prime Minister, and under Article 75 (2) they hold office during the pleasure of the President. The President has not said that it is his pleasure that the respondent shall not hold office. 10. Now comes the crucial clause three of Art. 75. The appellant urges that the House of People having been dissolved this clause cannot be complied with. According to him it follows from the provisions of this clause that it was contemplated that on the dissolution of the House of People the Prime Minister and the other ministers must resign or be dismissed by the President and the President must carry on the Government as best as he can with the aid of the Services. As we have shown above, Art. 74 (1) is mandatory and therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers. We must then harmonise the provisions of Art 75 (3) with Art. 74 (1) and Art. 75 (2).Article 75 (3) brings into existence what is usually called "Responsible Government". In other words the Council of Ministers must enjoy the confidence of the House of People. While the House of People is not dissolved under Art. 85 (2) (b), Art. 75 (3) has full operation. But when it is dissolved the Council of Ministers cannot naturally enjoy the confidence of the House of People. Nobody has said that the Council of Ministers does not enjoy the confidence of the House of People when it is prorogued. In the context, therefore, this clause must be read as meaning that Art 75 (3) only applies when the House of People does not stand dissolved or prorogued. We are not concerned with the case where dissolution of the House of People takes place under Art. 83 (2) on the expiration of the period of five years prescribed therein, for Parliament has provided for that contingency in S. 14 of the Representation of the People Act, 1951. 11. On our interpretation other articles of the Constitution also have full play; e. g. Article 77 (3) which contemplates allocation of business among Ministers, and Article 78 which prescribes certain duties of Prime Minister. 12. We ate grateful to the learned Attorney General and the appellant for having supplied to us compilations containing extracts from various books on Constitutional Law and extracts from the debates in the Constituent Assembly. We need not burden this judgment with them. But on the whole we receive assurance from the learned authors and the speeches that the view we have taken is the right one and is in accordance with conventions followed not only in the United Kingdom but in other countries following a similar system of responsible Government.
### Response:
0
### Explanation:
9. It seems to us that we must read the word "shall" as meaning "shall" and not "may". If Article 74 (1) is read in this manner the rest of the Provisions dealing with the Executive must be read in harmony with it. Indeed they fall into place. Under Article 75 (l) the President appoints the Prime Minister and appoints the other Ministers on the advice of the Prime Minister, and under Article 75 (2) they hold office during the pleasure of the President. The President has not said that it is his pleasure that the respondent shall not hold office10. Now comes the crucial clause three of Art. 75. The appellant urges that the House of People having been dissolved this clause cannot be complied with. According to him it follows from the provisions of this clause that it was contemplated that on the dissolution of the House of People the Prime Minister and the other ministers must resign or be dismissed by the President and the President must carry on the Government as best as he can with the aid of the Services. As we have shown above, Art. 74 (1) is mandatory and therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers. We must then harmonise the provisions of Art 75 (3) with Art. 74 (1) and Art. 75 (2).Article 75 (3) brings into existence what is usually called "Responsible Government". In other words the Council of Ministers must enjoy the confidence of the House of People. While the House of People is not dissolved under Art. 85 (2) (b), Art. 75 (3) has full operation. But when it is dissolved the Council of Ministers cannot naturally enjoy the confidence of the House of People. Nobody has said that the Council of Ministers does not enjoy the confidence of the House of People when it is prorogued. In the context, therefore, this clause must be read as meaning that Art 75 (3) only applies when the House of People does not stand dissolved or prorogued. We are not concerned with the case where dissolution of the House of People takes place under Art. 83 (2) on the expiration of the period of five years prescribed therein, for Parliament has provided for that contingency in S. 14 of the Representation of the People Act, 195111. On our interpretation other articles of the Constitution also have full play; e. g. Article 77 (3) which contemplates allocation of business among Ministers, and Article 78 which prescribes certain duties of Prime Minister12. We ate grateful to the learned Attorney General and the appellant for having supplied to us compilations containing extracts from various books on Constitutional Law and extracts from the debates in the Constituent Assembly. We need not burden this judgment with them. But on the whole we receive assurance from the learned authors and the speeches that the view we have taken is the right one and is in accordance with conventions followed not only in the United Kingdom but in other countries following a similar system of responsible Government.
|
Larsen & Toubro Ltd Vs. State Of Jharkhand | Section 19 of the State Act, it would be sufficient to refer to a judgment of this Court in Anandjiharidas & Co. v. S.P. Kasture AIR 1968 SC 565 wherein it was held that a fact which was already there in records doesnt by its mere availability becomes an item of information till the time it has been brought to the notice of assessing authority. Hence, the audit objections were well within the parameters of being construed as `information for the purpose of section 19 of the State Act. 27. The expression `information means instruction or knowledge derived from an external source concerning facts or parties or as to law relating to and/or after bearing on the assessment. We are of the clear view that on the basis of information received and if the assessing officer is satisfied that reasonable ground exists to believe, then in that case the power of the assessing authority extends to re-opening of assessment, if for any reason, the whole or any part of the turnover of the business of the dealer has escaped assessment or has been under assessed and the assessment in such a case would be valid even if the materials, on the basis of which the earlier assessing authority passed the order and the successor assessing authority proceeded, were same. The question still is as to whether in the present case, the assessing authority was satisfied or not. 28. At this stage, we deem it appropriate to reproduce the matter dealt with between the audit team and the assessing authority which led to the initiation of re-assessment proceedings under Section 19 of the State Act which is as under:- chart The dealer had furnished the statement of material utilized in the contract work and goods consumed for own use. Scrutiny of assessment order revealed that the dealer was allowed exemption on Rs. 3,12,47,916.00 being the amount of goods consumed or used itself in course of execution of work, details of which were discussed in the assessment order. It had been stated by the assessing authority that such goods were purchased on payment of tax, but no declaration in form IX C along with other evidences were kept on record. Production of declaration form in IX C was mandatory one and hence the claim was not allowable. The entire materials received from outside the State or purchased within the State without payment of tax was normally leviable to tax at specified rates under section 12 of B.F. Act 1981. Under section 4 of the Act ibid, every dealer liable to pay under section 3 of the Act, if otherwise disposes the goods in any manner other than by way of sale in the State was also liable to purchase tax. In this connection a reference to the judgement of Honble Karnataka High Court and duly confirmed by the Honble Supreme Court in the case of Chevvabbo v. State of Karnataka (1986) 62 STG 194 Se) is invited ....... Disposal of goods in this section (Similar to those Karnataka) was clarified as transfer of title over the goods otherwise than sale, included gifts, own use or consumption section 4 of the Act (B.F. Act) is similar to section 7 A of Tamil Nadu General Court in the case of the State of Tamil Nadu v. M.K. Kandaswami (1975 36 STC 191 ) where it was held that (1) this Section is a separate charging provision in the Act and is not subject to section 3 and (ii) brings to tax goods, the sale of which would normally have been taxed at the same point or other in the State but could not be taxed even due to destroying them or other reasons. Thus the purchase tax was leviable on goods consumed for own use. Since cost price/purchase price was reflected as value of goods consumed for own use of the dealer, the tax at the rate specified in section 12 of the Act ibid was leviable. In this case, even if same charges like Electrodes, Welding Cables, welding appliances, fuel and lubricants, oxygen and P.A. Gas safety, safety appliances valued at Rs. 44,90,114.00 was not considered as taxable, the consumable goods worth Rs. 2,67,57,802.00 attracted levying of tax at specified rates. The case may please be re-examined in the light of above observation and levying of purchase tax amounting to Rs. 24,19,385.31 (including additional tax and surcharge) as calculated below may be considered under intimation to audit. chart The use of fuel and lubricants may please be bifurcated and value of lubricants only may be levied to tax. On being pointed out in audit, it was stated that since the goods had not been transferred to contractee co-under the provisions of works contract, but it had been consumed and so it does not come under the purview of taxation. The reply is not tanable in view of the above judgements and hence the case needed to be reviewed. (emphasis supplied) 29. From a perusal of the last paragraph of the aforementioned report of the audit party, it is clear that the Assessing Officer was of the opinion that as the goods had not been transferred to appellant-Company but had been consumed, so it does not come under the purview of taxation. In other words, the Assessing Officer was not satisfied on the basis of information given by the audit party that any of the turnover of the appellant-Company had escaped assessment so as to invoke Section 19 of the State Act. From the above, it also appears that the assessing officer had to issue notice on the ground of direction issued by the audit party and not on his personal satisfaction which is not permissible under law. 30. In view of the above discussion, we are of the considered view that the order dated 27.02.2006 passed by the Deputy Commissioner, Commercial Taxes, Urban Circle, Jamshedpur is without jurisdiction and the High Court was not right in dismissing the petition filed by the appellant-Company. | 1[ds]Sub-Section (1) of Section 19 very clearly prescribes that the competent authority, upon information, if satisfied that reasonable ground exists to believe that any turnover of a registered dealer or a dealer to whom grant of registration certificate has been refused in respect of any period has, for any reason, escaped assessment or any turnover of any such dealer assessed under sub-Section (5) of Section 17 has been under-assessed or assessed at a rate lower than that which was correctly applicable, may, within eight years from the date of order of assessment, proceed to assess or reassess the amount of tax in respect of such turnover.We agree that a mere change of opinion or having second thought about it by the competent authority on the same set of facts and materials on the record does not constitute `information for the purposes of the State Act. But the word information used in the aforesaid Section is of the widest amplitude and should not be construed narrowly. It comprehends not only variety of factors including information from external sources of any kind but also the discovery of new facts or information available in the record of assessment not previously noticed or investigated. Suppose a mistake in the original order of assessment is not discovered by the Assessing Officer, on further scrutiny, if it came to the notice of another assessor or even by a subordinate or a superior officer, it would be considered as information disclosed to the incumbent officer. If the mistake itself is not extraneous to the record and the informant gathered the information from the record, the immediate source of information to the Officer in such circumstances is in one sense extraneous to the record. It will be information in his possession within the meaning of Section 19 of the State Act. In such cases of obvious mistakes apparent on the face of the record of assessment, that record itself can be a source of information, if that information leads to a discovery or belief that there has been an escape of assessment or under-assessment or wrong assessment.22. There are a catena of judgments of this Court holding that assessment proceedings can be reopened if the audit objection points out the factual information already available in the records and that it was overlooked or not taken into consideration. Similarly, if audit points out some information or facts available outside the record or any arithmetical mistake, assessment can be re-opened.26. The contention whether finding the information from the very facts that were already available on record amounts to information for the purpose of Section 19 of the State Act, it would be sufficient to refer to a judgment of this Court in AnandjiharidasCo. v. S.P. Kasture AIR 1968 SC 565 wherein it was held that a fact which was already there in records doesnt by its mere availability becomes an item of information till the time it has been brought to the notice of assessing authority. Hence, the audit objections were well within the parameters of being construed as `information for the purpose of section 19 of the State Act27. The expression `information means instruction or knowledge derived from an external source concerning facts or parties or as to law relating to and/or after bearing on the assessment. We are of the clear view that on the basis of information received and if the assessing officer is satisfied that reasonable ground exists to believe, then in that case the power of the assessing authority extends to re-opening of assessment, if for any reason, the whole or any part of the turnover of the business of the dealer has escaped assessment or has been under assessed and the assessment in such a case would be valid even if the materials, on the basis of which the earlier assessing authority passed the order and the successor assessing authority proceeded, were same29. From a perusal of the last paragraph of the aforementioned report of the audit party, it is clear that the Assessing Officer was of the opinion that as the goods had not been transferred to appellant-Company but had been consumed, so it does not come under the purview of taxation. In other words, the Assessing Officer was not satisfied on the basis of information given by the audit party that any of the turnover of the appellant-Company had escaped assessment so as to invoke Section 19 of the State Act. From the above, it also appears that the assessing officer had to issue notice on the ground of direction issued by the audit party and not on his personal satisfaction which is not permissible under law.30. In view of the above discussion, we are of the considered view that the order dated 27.02.2006 passed by the Deputy Commissioner, Commercial Taxes, Urban Circle, Jamshedpur is without jurisdiction and the High Court was not right in dismissing the petition filed by the appellant-Company. | 1 | 5,465 | 880 | ### 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:
Section 19 of the State Act, it would be sufficient to refer to a judgment of this Court in Anandjiharidas & Co. v. S.P. Kasture AIR 1968 SC 565 wherein it was held that a fact which was already there in records doesnt by its mere availability becomes an item of information till the time it has been brought to the notice of assessing authority. Hence, the audit objections were well within the parameters of being construed as `information for the purpose of section 19 of the State Act. 27. The expression `information means instruction or knowledge derived from an external source concerning facts or parties or as to law relating to and/or after bearing on the assessment. We are of the clear view that on the basis of information received and if the assessing officer is satisfied that reasonable ground exists to believe, then in that case the power of the assessing authority extends to re-opening of assessment, if for any reason, the whole or any part of the turnover of the business of the dealer has escaped assessment or has been under assessed and the assessment in such a case would be valid even if the materials, on the basis of which the earlier assessing authority passed the order and the successor assessing authority proceeded, were same. The question still is as to whether in the present case, the assessing authority was satisfied or not. 28. At this stage, we deem it appropriate to reproduce the matter dealt with between the audit team and the assessing authority which led to the initiation of re-assessment proceedings under Section 19 of the State Act which is as under:- chart The dealer had furnished the statement of material utilized in the contract work and goods consumed for own use. Scrutiny of assessment order revealed that the dealer was allowed exemption on Rs. 3,12,47,916.00 being the amount of goods consumed or used itself in course of execution of work, details of which were discussed in the assessment order. It had been stated by the assessing authority that such goods were purchased on payment of tax, but no declaration in form IX C along with other evidences were kept on record. Production of declaration form in IX C was mandatory one and hence the claim was not allowable. The entire materials received from outside the State or purchased within the State without payment of tax was normally leviable to tax at specified rates under section 12 of B.F. Act 1981. Under section 4 of the Act ibid, every dealer liable to pay under section 3 of the Act, if otherwise disposes the goods in any manner other than by way of sale in the State was also liable to purchase tax. In this connection a reference to the judgement of Honble Karnataka High Court and duly confirmed by the Honble Supreme Court in the case of Chevvabbo v. State of Karnataka (1986) 62 STG 194 Se) is invited ....... Disposal of goods in this section (Similar to those Karnataka) was clarified as transfer of title over the goods otherwise than sale, included gifts, own use or consumption section 4 of the Act (B.F. Act) is similar to section 7 A of Tamil Nadu General Court in the case of the State of Tamil Nadu v. M.K. Kandaswami (1975 36 STC 191 ) where it was held that (1) this Section is a separate charging provision in the Act and is not subject to section 3 and (ii) brings to tax goods, the sale of which would normally have been taxed at the same point or other in the State but could not be taxed even due to destroying them or other reasons. Thus the purchase tax was leviable on goods consumed for own use. Since cost price/purchase price was reflected as value of goods consumed for own use of the dealer, the tax at the rate specified in section 12 of the Act ibid was leviable. In this case, even if same charges like Electrodes, Welding Cables, welding appliances, fuel and lubricants, oxygen and P.A. Gas safety, safety appliances valued at Rs. 44,90,114.00 was not considered as taxable, the consumable goods worth Rs. 2,67,57,802.00 attracted levying of tax at specified rates. The case may please be re-examined in the light of above observation and levying of purchase tax amounting to Rs. 24,19,385.31 (including additional tax and surcharge) as calculated below may be considered under intimation to audit. chart The use of fuel and lubricants may please be bifurcated and value of lubricants only may be levied to tax. On being pointed out in audit, it was stated that since the goods had not been transferred to contractee co-under the provisions of works contract, but it had been consumed and so it does not come under the purview of taxation. The reply is not tanable in view of the above judgements and hence the case needed to be reviewed. (emphasis supplied) 29. From a perusal of the last paragraph of the aforementioned report of the audit party, it is clear that the Assessing Officer was of the opinion that as the goods had not been transferred to appellant-Company but had been consumed, so it does not come under the purview of taxation. In other words, the Assessing Officer was not satisfied on the basis of information given by the audit party that any of the turnover of the appellant-Company had escaped assessment so as to invoke Section 19 of the State Act. From the above, it also appears that the assessing officer had to issue notice on the ground of direction issued by the audit party and not on his personal satisfaction which is not permissible under law. 30. In view of the above discussion, we are of the considered view that the order dated 27.02.2006 passed by the Deputy Commissioner, Commercial Taxes, Urban Circle, Jamshedpur is without jurisdiction and the High Court was not right in dismissing the petition filed by the appellant-Company.
### Response:
1
### Explanation:
Sub-Section (1) of Section 19 very clearly prescribes that the competent authority, upon information, if satisfied that reasonable ground exists to believe that any turnover of a registered dealer or a dealer to whom grant of registration certificate has been refused in respect of any period has, for any reason, escaped assessment or any turnover of any such dealer assessed under sub-Section (5) of Section 17 has been under-assessed or assessed at a rate lower than that which was correctly applicable, may, within eight years from the date of order of assessment, proceed to assess or reassess the amount of tax in respect of such turnover.We agree that a mere change of opinion or having second thought about it by the competent authority on the same set of facts and materials on the record does not constitute `information for the purposes of the State Act. But the word information used in the aforesaid Section is of the widest amplitude and should not be construed narrowly. It comprehends not only variety of factors including information from external sources of any kind but also the discovery of new facts or information available in the record of assessment not previously noticed or investigated. Suppose a mistake in the original order of assessment is not discovered by the Assessing Officer, on further scrutiny, if it came to the notice of another assessor or even by a subordinate or a superior officer, it would be considered as information disclosed to the incumbent officer. If the mistake itself is not extraneous to the record and the informant gathered the information from the record, the immediate source of information to the Officer in such circumstances is in one sense extraneous to the record. It will be information in his possession within the meaning of Section 19 of the State Act. In such cases of obvious mistakes apparent on the face of the record of assessment, that record itself can be a source of information, if that information leads to a discovery or belief that there has been an escape of assessment or under-assessment or wrong assessment.22. There are a catena of judgments of this Court holding that assessment proceedings can be reopened if the audit objection points out the factual information already available in the records and that it was overlooked or not taken into consideration. Similarly, if audit points out some information or facts available outside the record or any arithmetical mistake, assessment can be re-opened.26. The contention whether finding the information from the very facts that were already available on record amounts to information for the purpose of Section 19 of the State Act, it would be sufficient to refer to a judgment of this Court in AnandjiharidasCo. v. S.P. Kasture AIR 1968 SC 565 wherein it was held that a fact which was already there in records doesnt by its mere availability becomes an item of information till the time it has been brought to the notice of assessing authority. Hence, the audit objections were well within the parameters of being construed as `information for the purpose of section 19 of the State Act27. The expression `information means instruction or knowledge derived from an external source concerning facts or parties or as to law relating to and/or after bearing on the assessment. We are of the clear view that on the basis of information received and if the assessing officer is satisfied that reasonable ground exists to believe, then in that case the power of the assessing authority extends to re-opening of assessment, if for any reason, the whole or any part of the turnover of the business of the dealer has escaped assessment or has been under assessed and the assessment in such a case would be valid even if the materials, on the basis of which the earlier assessing authority passed the order and the successor assessing authority proceeded, were same29. From a perusal of the last paragraph of the aforementioned report of the audit party, it is clear that the Assessing Officer was of the opinion that as the goods had not been transferred to appellant-Company but had been consumed, so it does not come under the purview of taxation. In other words, the Assessing Officer was not satisfied on the basis of information given by the audit party that any of the turnover of the appellant-Company had escaped assessment so as to invoke Section 19 of the State Act. From the above, it also appears that the assessing officer had to issue notice on the ground of direction issued by the audit party and not on his personal satisfaction which is not permissible under law.30. In view of the above discussion, we are of the considered view that the order dated 27.02.2006 passed by the Deputy Commissioner, Commercial Taxes, Urban Circle, Jamshedpur is without jurisdiction and the High Court was not right in dismissing the petition filed by the appellant-Company.
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Management Of Gordon Woodrofe Agencies Pvt. Ltd Vs. S Presiding Officer, Principal Labour Court & Others | the Labour Court came to be dismissed by the learned Single Judge.9. In an appeal filed before the Division Bench of the said High Court by both the parties, the Division Bench agreed with the Labour Court and the Single Judge by upholding the finding as to the legality of the closure of the establishment as also in regard to the payment of ex gratia compensation in addition to the compensation legally payable to the respondent workmen. 10. It is in the above factual background the appellant-management is before us questioning the validity of the direction to pay additional ex gratia compensation as awarded by the trial court. 11. Mr. R. Sundervardham, learned senior counsel appearing for the appellant, submitted that once the Labour Court came to the conclusion that the closure in question was legally justifiable and bona fide and also having come to the conclusion that the appellant had offered the compensation and other legal dues to the workmen concerned promptly, it was not open to the Labour Court to have directed additional ex gratia payment which is not contemplated under the provisions of the Act on the basis of the principle of social justice. He submitted that apart from the Labour Court even the learned Single Judge and the Division Bench of the High Court also fell in error in confirming that part of the award of the Labour Court which directed the payment of such unjustified ex gratia amount. In support of this contention, he relied on two judgments of this Court in the case of M/s. Om Oil and Oil Seeds Exchange Ltd., Delhi vs. Their Workmen (AIR 1966 SC 1657 ) and N.S. Giri vs. The Corporation of City of Mangalore and others (AIR 1999 SC 1958 ). 12. In reply, Mr. S.S. Dahiya, learned counsel appearing for the respondents, contended that the courts below were justified in taking into consideration the plight of the workmen who have been thrown out of employment in mid-stream of their lives. He also contended that it was the legal responsibility of the appellant to have absorbed these workmen in suitable posts in its sister company, namely, Gordon Woodroffe Ltd. which as a matter of fact, was one of the service conditions applicable to the workmen. He also tried to contend that the closure itself was illegal and was for collateral reasons. 13. Having heard the learned counsel for the parties and perused the records, we are satisfied that so far as the legality and genuineness of the closure is concerned, the Labour Court after considering the evidence brought on record has given a conclusive finding in favour of the appellant which finding has been confirmed by the learned Single Judge as well as the Division Bench of the High Court and the same has become final. Therefore, we will have to consider whether consequent to such finding of the Labour Court, it can direct payment of further compensation over and above what is contemplated under the Act. The answer to this question is found in the two judgments relied on by learned counsel for the appellant before us. In the case of M/s. Om Oil and Oil Seeds Exchange Ltd. (supra), this Court held: "... If the management was entitled to retrench 30 workmen and did so after paying wages for the period of notice and retrenchment compensation, we fail to appreciate the grounds on which an order of payment of 50 per cent of the wages in addition to retrenchment compensation may be made. Retrenchment compensation is paid as solatium for termination of service resulting in unemployment, and if that compensation be paid there can be no ground for awarding compensation in addition to statutory retrenchment compensation. If the Industrial Tribunal comes to the conclusion that an order of retrenchment was not properly made, and the Tribunal directs reinstatement an order for payment of remuneration for the period during which the employee remained unemployed, or a part thereof may appropriately be made. There is because the employee who had been retrenched for no fault of his had been improperly kept out of employment, and was prevented from earning his wages. But where retrenchment has been properly made and that order has not been set aside, we are not aware of any principle which may justify an order directing payment of compensation to employees properly retrenched in addition to the retrenchment compensation statutorily payable." 14. In our opinion, the ratio laid down in the above case clearly applies to the facts of this case. In the instant case also, the Labour Court came to the conclusion that the closure of the establishment was legally justifiable and the management had a required under the law, offered apart from the compensation payable for the closure, all other statutory dues which some of the employees collected without demur and in the case of respondent-workmen even though the same were offered on time, they did not accept it, therefore, the question of paying any additional ex gratia compensation which is not contemplated under the statue, does not arise. This Court in the case of N.S. Giri (supra) held : "An award under the Industrial Disputes Act cannot be inconsistent with the law laid down by the Legislature or by the Supreme Court and if it does so, it is illegal and cannot be enforced." Thus, it is clear from the pronouncements of this Court that the Labour Court or for that matter the High Court had no authority in law to direct payment of any additional sum by way of ex gratia payment otherwise than what is provided under the statute when the act of the management in closing down the establishment is found to be valid and all legally payable amounts have been paid or offered in time. In such a situation, contrary to the statute, the principle of social justice cannot be invoked since the Legislature would have already taken note of the same while fixing the compensation payable. | 1[ds]13. Having heard the learned counsel for the parties and perused the records, we are satisfied that so far as the legality and genuineness of the closure is concerned, the Labour Court after considering the evidence brought on record has given a conclusive finding in favour of the appellant which finding has been confirmed by the learned Single Judge as well as the Division Bench of the High Court and the same has become final. Therefore, we will have to consider whether consequent to such finding of the Labour Court, it can direct payment of further compensation over and above what is contemplated under the Act. The answer to this question is found in the two judgments relied on by learned counsel for the appellant before us. In the case of M/s. Om Oil and Oil Seeds Exchange Ltd. (supra), this CourtIf the management was entitled to retrench 30 workmen and did so after paying wages for the period of notice and retrenchment compensation, we fail to appreciate the grounds on which an order of payment of 50 per cent of the wages in addition to retrenchment compensation may be made. Retrenchment compensation is paid as solatium for termination of service resulting in unemployment, and if that compensation be paid there can be no ground for awarding compensation in addition to statutory retrenchment compensation. If the Industrial Tribunal comes to the conclusion that an order of retrenchment was not properly made, and the Tribunal directs reinstatement an order for payment of remuneration for the period during which the employee remained unemployed, or a part thereof may appropriately be made. There is because the employee who had been retrenched for no fault of his had been improperly kept out of employment, and was prevented from earning his wages. But where retrenchment has been properly made and that order has not been set aside, we are not aware of any principle which may justify an order directing payment of compensation to employees properly retrenched in addition to the retrenchment compensation statutorily payable.In our opinion, the ratio laid down in the above case clearly applies to the facts of this case. In the instant case also, the Labour Court came to the conclusion that the closure of the establishment was legally justifiable and the management had a required under the law, offered apart from the compensation payable for the closure, all other statutory dues which some of the employees collected without demur and in the case of respondent-workmen even though the same were offered on time, they did not accept it, therefore, the question of paying any additional ex gratia compensation which is not contemplated under the statue, does not arise. This Court in the case of N.S. Giri (supra) held : "An award under the Industrial Disputes Act cannot be inconsistent with the law laid down by the Legislature or by the Supreme Court and if it does so, it is illegal and cannot be enforced." Thus, it is clear from the pronouncements of this Court that the Labour Court or for that matter the High Court had no authority in law to direct payment of any additional sum by way of ex gratia payment otherwise than what is provided under the statute when the act of the management in closing down the establishment is found to be valid and all legally payable amounts have been paid or offered in time. In such a situation, contrary to the statute, the principle of social justice cannot be invoked since the Legislature would have already taken note of the same while fixing the compensation payable. | 1 | 2,001 | 652 | ### 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:
the Labour Court came to be dismissed by the learned Single Judge.9. In an appeal filed before the Division Bench of the said High Court by both the parties, the Division Bench agreed with the Labour Court and the Single Judge by upholding the finding as to the legality of the closure of the establishment as also in regard to the payment of ex gratia compensation in addition to the compensation legally payable to the respondent workmen. 10. It is in the above factual background the appellant-management is before us questioning the validity of the direction to pay additional ex gratia compensation as awarded by the trial court. 11. Mr. R. Sundervardham, learned senior counsel appearing for the appellant, submitted that once the Labour Court came to the conclusion that the closure in question was legally justifiable and bona fide and also having come to the conclusion that the appellant had offered the compensation and other legal dues to the workmen concerned promptly, it was not open to the Labour Court to have directed additional ex gratia payment which is not contemplated under the provisions of the Act on the basis of the principle of social justice. He submitted that apart from the Labour Court even the learned Single Judge and the Division Bench of the High Court also fell in error in confirming that part of the award of the Labour Court which directed the payment of such unjustified ex gratia amount. In support of this contention, he relied on two judgments of this Court in the case of M/s. Om Oil and Oil Seeds Exchange Ltd., Delhi vs. Their Workmen (AIR 1966 SC 1657 ) and N.S. Giri vs. The Corporation of City of Mangalore and others (AIR 1999 SC 1958 ). 12. In reply, Mr. S.S. Dahiya, learned counsel appearing for the respondents, contended that the courts below were justified in taking into consideration the plight of the workmen who have been thrown out of employment in mid-stream of their lives. He also contended that it was the legal responsibility of the appellant to have absorbed these workmen in suitable posts in its sister company, namely, Gordon Woodroffe Ltd. which as a matter of fact, was one of the service conditions applicable to the workmen. He also tried to contend that the closure itself was illegal and was for collateral reasons. 13. Having heard the learned counsel for the parties and perused the records, we are satisfied that so far as the legality and genuineness of the closure is concerned, the Labour Court after considering the evidence brought on record has given a conclusive finding in favour of the appellant which finding has been confirmed by the learned Single Judge as well as the Division Bench of the High Court and the same has become final. Therefore, we will have to consider whether consequent to such finding of the Labour Court, it can direct payment of further compensation over and above what is contemplated under the Act. The answer to this question is found in the two judgments relied on by learned counsel for the appellant before us. In the case of M/s. Om Oil and Oil Seeds Exchange Ltd. (supra), this Court held: "... If the management was entitled to retrench 30 workmen and did so after paying wages for the period of notice and retrenchment compensation, we fail to appreciate the grounds on which an order of payment of 50 per cent of the wages in addition to retrenchment compensation may be made. Retrenchment compensation is paid as solatium for termination of service resulting in unemployment, and if that compensation be paid there can be no ground for awarding compensation in addition to statutory retrenchment compensation. If the Industrial Tribunal comes to the conclusion that an order of retrenchment was not properly made, and the Tribunal directs reinstatement an order for payment of remuneration for the period during which the employee remained unemployed, or a part thereof may appropriately be made. There is because the employee who had been retrenched for no fault of his had been improperly kept out of employment, and was prevented from earning his wages. But where retrenchment has been properly made and that order has not been set aside, we are not aware of any principle which may justify an order directing payment of compensation to employees properly retrenched in addition to the retrenchment compensation statutorily payable." 14. In our opinion, the ratio laid down in the above case clearly applies to the facts of this case. In the instant case also, the Labour Court came to the conclusion that the closure of the establishment was legally justifiable and the management had a required under the law, offered apart from the compensation payable for the closure, all other statutory dues which some of the employees collected without demur and in the case of respondent-workmen even though the same were offered on time, they did not accept it, therefore, the question of paying any additional ex gratia compensation which is not contemplated under the statue, does not arise. This Court in the case of N.S. Giri (supra) held : "An award under the Industrial Disputes Act cannot be inconsistent with the law laid down by the Legislature or by the Supreme Court and if it does so, it is illegal and cannot be enforced." Thus, it is clear from the pronouncements of this Court that the Labour Court or for that matter the High Court had no authority in law to direct payment of any additional sum by way of ex gratia payment otherwise than what is provided under the statute when the act of the management in closing down the establishment is found to be valid and all legally payable amounts have been paid or offered in time. In such a situation, contrary to the statute, the principle of social justice cannot be invoked since the Legislature would have already taken note of the same while fixing the compensation payable.
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13. Having heard the learned counsel for the parties and perused the records, we are satisfied that so far as the legality and genuineness of the closure is concerned, the Labour Court after considering the evidence brought on record has given a conclusive finding in favour of the appellant which finding has been confirmed by the learned Single Judge as well as the Division Bench of the High Court and the same has become final. Therefore, we will have to consider whether consequent to such finding of the Labour Court, it can direct payment of further compensation over and above what is contemplated under the Act. The answer to this question is found in the two judgments relied on by learned counsel for the appellant before us. In the case of M/s. Om Oil and Oil Seeds Exchange Ltd. (supra), this CourtIf the management was entitled to retrench 30 workmen and did so after paying wages for the period of notice and retrenchment compensation, we fail to appreciate the grounds on which an order of payment of 50 per cent of the wages in addition to retrenchment compensation may be made. Retrenchment compensation is paid as solatium for termination of service resulting in unemployment, and if that compensation be paid there can be no ground for awarding compensation in addition to statutory retrenchment compensation. If the Industrial Tribunal comes to the conclusion that an order of retrenchment was not properly made, and the Tribunal directs reinstatement an order for payment of remuneration for the period during which the employee remained unemployed, or a part thereof may appropriately be made. There is because the employee who had been retrenched for no fault of his had been improperly kept out of employment, and was prevented from earning his wages. But where retrenchment has been properly made and that order has not been set aside, we are not aware of any principle which may justify an order directing payment of compensation to employees properly retrenched in addition to the retrenchment compensation statutorily payable.In our opinion, the ratio laid down in the above case clearly applies to the facts of this case. In the instant case also, the Labour Court came to the conclusion that the closure of the establishment was legally justifiable and the management had a required under the law, offered apart from the compensation payable for the closure, all other statutory dues which some of the employees collected without demur and in the case of respondent-workmen even though the same were offered on time, they did not accept it, therefore, the question of paying any additional ex gratia compensation which is not contemplated under the statue, does not arise. This Court in the case of N.S. Giri (supra) held : "An award under the Industrial Disputes Act cannot be inconsistent with the law laid down by the Legislature or by the Supreme Court and if it does so, it is illegal and cannot be enforced." Thus, it is clear from the pronouncements of this Court that the Labour Court or for that matter the High Court had no authority in law to direct payment of any additional sum by way of ex gratia payment otherwise than what is provided under the statute when the act of the management in closing down the establishment is found to be valid and all legally payable amounts have been paid or offered in time. In such a situation, contrary to the statute, the principle of social justice cannot be invoked since the Legislature would have already taken note of the same while fixing the compensation payable.
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Damodar Ganpat Wani & Anr Vs. Rajaram Dhondu Wagh & Ors | He allowed Pardeshi to remain in possession. Against the order of the Collector the respondents field a revision application before the Maharashtra Revenue Tribunal. The Tribunal, on Jan. 22, 1968, set aside the order of the Collector and awarded possession of the land to the respondents. It found that the respondents were tenants and could hold the land in that capacity under S. 34 of the Tenancy Act. The appellants then sought relief under Article 227 of the Constitution in the High Court, but the petition was summarily rejected by an order dated June 17, 1968. That order is under challenge in this appeal.5. In its order dated Jan 22. 1968 dismissing the revision application, the Tribunal held that the substantive right of the landlord to obtain possession of the land from the tenant must be founded in S. 34 of the Tenancy Act and not in S. 88 (1A) of the Act, and what S. 88 (1A) did was merely to withdraw the privileges granted to the tenant under S. 34 to obtain possession of half the land, thus enabling the first appellant to obtain possession of the entire land, and that as the possession was taken by the first appellant for bona fide personal cultivation, it was open to the erstwhile tenant or his sons, the respondents to apply under S. 37 read with S. 39 of the Tenancy Act for possession of the land. The Tribunal also held that S. 88 (1A) did not bring to an end the status of the tenant as a protected tenant. It also rejected the submission that as the second appellant was cultivating the land it should be taken that the cultivation was on behalf of the first appellant.6. We have no. hesitation in dismissing this appeal. Section 34 (1) of the Tenancy Act entitles the landlord to terminate the tenancy of the protected tenant by giving him one years notice in writing, if the landlord bona fide requires the land for cultivating personally. Section 34 (2-A) qualifies the landlords right to terminate the tenancy by certain conditions, and one of them is that if the land held by the landlord is more than the agricultural holding in area, the right of the landlord to terminate the tenancy of the protected tenant must be limited to an area which should, after such termination, leave with the tenant half the area of the land leased. That condition confers a right or privilege on the tenant to retain half the area of the land leased notwithstanding that a case has been made out by the landlord under S. 34 (1) for termination of the tenancy. Section 88 (1A) provides that:"a protected tenant, whose name stands entered as an owner in the record of rights on the first day of January 1952 in respect of any land 50 acres or more of jirayat or twelve and half acres or more of irrigated land in area in addition to the land held by him on lease as a protected tenant, shall not be entitled to any rights or privileges conferred on a protected tenant by the provisions of S. 32 or 34".7. What S. 88 (1A) does is to deprive the protected tenant of the rights and privileges conferred on him by S. 32 or 34. It does nothing more. Consequently, the right or privilege which the tenant enjoyed under S. 34 (2-A), that is to say, the retention of possession of half the area of the land leased was lost and in the result the landlord became entitled to possession of the entire land leased. This S. 34 of the Bombay Tenancy Act confers rights and privileges on the landlord as well as the tenant was affirmed by a Full Bench of the Bombay High Court in Janga Baoji Mali v. Nasarat Jahan Begum ILR (1958) Born 571 and it was declared that if a tenant felt within the mischief of S. 88 (1A), the landlord on making out a case under S. 34 (1), was exempt from the restrictions on his rights imposed by sub-ss. (2) and (2-A) of S. 34 because the rights or privileges conferred on the tenant by those sub-sections were no. longer available to him by reason of S. 88 (1A). It is beyond dispute that the landlord obtains his right to terminate the tenancy of a protected tenant under S. 34 (1) of the Act, and that is what happened in this case. The first appellant was able to terminate the tenancy because of S. 34 (1). That brings into play S. 37 (1) of the Act. Section 37 (1) declares that:"if after the landlord takes possession of the land after the termination of the tenancy under S. 34, he fails to use it for any of the purposes specified in the notice given under sub-sec. (1) of S. 34 within one year from the date on which he took possession or ceases to use it at any time for any of the aforesaid purposes within 12 years from the date on which he took such possession, the landlord shall forthwith restore possession of the land to the tenant whose tenancy was terminated by him ...............".8. It is clear from the record that the first appellant after having taken possession of the land termination of the tenancy under S. 34, ceased to use it for any of the purposes mentioned in the notice within 12 years from June 14, 1960 the date on which he took possession. He sold it to the second appellant on April 2, 1964 and transferred possession to him. The possession of the second appellant cannot be regarded as the possession of the first appellant, and the conclusion must be that the default mentioned in Section 37 (1) took place and the respondents became entitled to possession of the land. The respondents are entitled to possession of the land subject, of course, to any limitations placed by the law in regard to their holding.9. | 0[ds]6. We have no. hesitation in dismissing this appeal. Section 34 (1) of the Tenancy Act entitles the landlord to terminate the tenancy of the protected tenant by giving him one years notice in writing, if the landlord bona fide requires the land for cultivating personally. Section 34 (2-A) qualifies the landlords right to terminate the tenancy by certain conditions, and one of them is that if the land held by the landlord is more than the agricultural holding in area, the right of the landlord to terminate the tenancy of the protected tenant must be limited to an area which should, after such termination, leave with the tenant half the area of the land leased. That condition confers a right or privilege on the tenant to retain half the area of the land leased notwithstanding that a case has been made out by the landlord under S. 34 (1) for termination of the tenancy. Section 88 (1A) provides that"a protected tenant, whose name stands entered as an owner in the record of rights on the first day of January 1952 in respect of any land 50 acres or more of jirayat or twelve and half acres or more of irrigated land in area in addition to the land held by him on lease as a protected tenant, shall not be entitled to any rights or privileges conferred on a protected tenant by the provisions of S. 32 or 34".What S. 88 (1A) does is to deprive the protected tenant of the rights and privileges conferred on him by S. 32 or 34. It does nothing more. Consequently, the right or privilege which the tenant enjoyed under S. 34 (2-A), that is to say, the retention of possession of half the area of the land leased was lost and in the result the landlord became entitled to possession of the entire land leased. This S. 34 of the Bombay Tenancy Act confers rights and privileges on the landlord as well as the tenant was affirmed by a Full Bench of the Bombay High Court in Janga Baoji Mali v. Nasarat Jahan Begum ILR (1958) Born 571 and it was declared that if a tenant felt within the mischief of S. 88 (1A), the landlord on making out a case under S. 34 (1), was exempt from the restrictions on his rights imposed by sub-ss. (2) and (2-A) of S. 34 because the rights or privileges conferred on the tenant by those sub-sections were no. longer available to him by reason of S. 88 (1A). It is beyond dispute that the landlord obtains his right to terminate the tenancy of a protected tenant under S. 34 (1) of the Act, and that is what happened in this case. The first appellant was able to terminate the tenancy because of S. 34 (1). That brings into play S. 37 (1) of the Act. Section 37 (1) declares that"if after the landlord takes possession of the land after the termination of the tenancy under S. 34, he fails to use it for any of the purposes specified in the notice given under sub-sec. (1) of S. 34 within one year from the date on which he took possession or ceases to use it at any time for any of the aforesaid purposes within 12 years from the date on which he took such possession, the landlord shall forthwith restore possession of the land to the tenant whose tenancy was terminated by him ...............".It is clear from the record that the first appellant after having taken possession of the land termination of the tenancy under S. 34, ceased to use it for any of the purposes mentioned in the notice within 12 years from June 14, 1960 the date on which he took possession. He sold it to the second appellant on April 2, 1964 and transferred possession to him. The possession of the second appellant cannot be regarded as the possession of the first appellant, and the conclusion must be that the default mentioned in Section 37 (1) took place and the respondents became entitled to possession of the land. The respondents are entitled to possession of the land subject, of course, to any limitations placed by the law in regard to their holding. | 0 | 1,821 | 801 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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He allowed Pardeshi to remain in possession. Against the order of the Collector the respondents field a revision application before the Maharashtra Revenue Tribunal. The Tribunal, on Jan. 22, 1968, set aside the order of the Collector and awarded possession of the land to the respondents. It found that the respondents were tenants and could hold the land in that capacity under S. 34 of the Tenancy Act. The appellants then sought relief under Article 227 of the Constitution in the High Court, but the petition was summarily rejected by an order dated June 17, 1968. That order is under challenge in this appeal.5. In its order dated Jan 22. 1968 dismissing the revision application, the Tribunal held that the substantive right of the landlord to obtain possession of the land from the tenant must be founded in S. 34 of the Tenancy Act and not in S. 88 (1A) of the Act, and what S. 88 (1A) did was merely to withdraw the privileges granted to the tenant under S. 34 to obtain possession of half the land, thus enabling the first appellant to obtain possession of the entire land, and that as the possession was taken by the first appellant for bona fide personal cultivation, it was open to the erstwhile tenant or his sons, the respondents to apply under S. 37 read with S. 39 of the Tenancy Act for possession of the land. The Tribunal also held that S. 88 (1A) did not bring to an end the status of the tenant as a protected tenant. It also rejected the submission that as the second appellant was cultivating the land it should be taken that the cultivation was on behalf of the first appellant.6. We have no. hesitation in dismissing this appeal. Section 34 (1) of the Tenancy Act entitles the landlord to terminate the tenancy of the protected tenant by giving him one years notice in writing, if the landlord bona fide requires the land for cultivating personally. Section 34 (2-A) qualifies the landlords right to terminate the tenancy by certain conditions, and one of them is that if the land held by the landlord is more than the agricultural holding in area, the right of the landlord to terminate the tenancy of the protected tenant must be limited to an area which should, after such termination, leave with the tenant half the area of the land leased. That condition confers a right or privilege on the tenant to retain half the area of the land leased notwithstanding that a case has been made out by the landlord under S. 34 (1) for termination of the tenancy. Section 88 (1A) provides that:"a protected tenant, whose name stands entered as an owner in the record of rights on the first day of January 1952 in respect of any land 50 acres or more of jirayat or twelve and half acres or more of irrigated land in area in addition to the land held by him on lease as a protected tenant, shall not be entitled to any rights or privileges conferred on a protected tenant by the provisions of S. 32 or 34".7. What S. 88 (1A) does is to deprive the protected tenant of the rights and privileges conferred on him by S. 32 or 34. It does nothing more. Consequently, the right or privilege which the tenant enjoyed under S. 34 (2-A), that is to say, the retention of possession of half the area of the land leased was lost and in the result the landlord became entitled to possession of the entire land leased. This S. 34 of the Bombay Tenancy Act confers rights and privileges on the landlord as well as the tenant was affirmed by a Full Bench of the Bombay High Court in Janga Baoji Mali v. Nasarat Jahan Begum ILR (1958) Born 571 and it was declared that if a tenant felt within the mischief of S. 88 (1A), the landlord on making out a case under S. 34 (1), was exempt from the restrictions on his rights imposed by sub-ss. (2) and (2-A) of S. 34 because the rights or privileges conferred on the tenant by those sub-sections were no. longer available to him by reason of S. 88 (1A). It is beyond dispute that the landlord obtains his right to terminate the tenancy of a protected tenant under S. 34 (1) of the Act, and that is what happened in this case. The first appellant was able to terminate the tenancy because of S. 34 (1). That brings into play S. 37 (1) of the Act. Section 37 (1) declares that:"if after the landlord takes possession of the land after the termination of the tenancy under S. 34, he fails to use it for any of the purposes specified in the notice given under sub-sec. (1) of S. 34 within one year from the date on which he took possession or ceases to use it at any time for any of the aforesaid purposes within 12 years from the date on which he took such possession, the landlord shall forthwith restore possession of the land to the tenant whose tenancy was terminated by him ...............".8. It is clear from the record that the first appellant after having taken possession of the land termination of the tenancy under S. 34, ceased to use it for any of the purposes mentioned in the notice within 12 years from June 14, 1960 the date on which he took possession. He sold it to the second appellant on April 2, 1964 and transferred possession to him. The possession of the second appellant cannot be regarded as the possession of the first appellant, and the conclusion must be that the default mentioned in Section 37 (1) took place and the respondents became entitled to possession of the land. The respondents are entitled to possession of the land subject, of course, to any limitations placed by the law in regard to their holding.9.
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6. We have no. hesitation in dismissing this appeal. Section 34 (1) of the Tenancy Act entitles the landlord to terminate the tenancy of the protected tenant by giving him one years notice in writing, if the landlord bona fide requires the land for cultivating personally. Section 34 (2-A) qualifies the landlords right to terminate the tenancy by certain conditions, and one of them is that if the land held by the landlord is more than the agricultural holding in area, the right of the landlord to terminate the tenancy of the protected tenant must be limited to an area which should, after such termination, leave with the tenant half the area of the land leased. That condition confers a right or privilege on the tenant to retain half the area of the land leased notwithstanding that a case has been made out by the landlord under S. 34 (1) for termination of the tenancy. Section 88 (1A) provides that"a protected tenant, whose name stands entered as an owner in the record of rights on the first day of January 1952 in respect of any land 50 acres or more of jirayat or twelve and half acres or more of irrigated land in area in addition to the land held by him on lease as a protected tenant, shall not be entitled to any rights or privileges conferred on a protected tenant by the provisions of S. 32 or 34".What S. 88 (1A) does is to deprive the protected tenant of the rights and privileges conferred on him by S. 32 or 34. It does nothing more. Consequently, the right or privilege which the tenant enjoyed under S. 34 (2-A), that is to say, the retention of possession of half the area of the land leased was lost and in the result the landlord became entitled to possession of the entire land leased. This S. 34 of the Bombay Tenancy Act confers rights and privileges on the landlord as well as the tenant was affirmed by a Full Bench of the Bombay High Court in Janga Baoji Mali v. Nasarat Jahan Begum ILR (1958) Born 571 and it was declared that if a tenant felt within the mischief of S. 88 (1A), the landlord on making out a case under S. 34 (1), was exempt from the restrictions on his rights imposed by sub-ss. (2) and (2-A) of S. 34 because the rights or privileges conferred on the tenant by those sub-sections were no. longer available to him by reason of S. 88 (1A). It is beyond dispute that the landlord obtains his right to terminate the tenancy of a protected tenant under S. 34 (1) of the Act, and that is what happened in this case. The first appellant was able to terminate the tenancy because of S. 34 (1). That brings into play S. 37 (1) of the Act. Section 37 (1) declares that"if after the landlord takes possession of the land after the termination of the tenancy under S. 34, he fails to use it for any of the purposes specified in the notice given under sub-sec. (1) of S. 34 within one year from the date on which he took possession or ceases to use it at any time for any of the aforesaid purposes within 12 years from the date on which he took such possession, the landlord shall forthwith restore possession of the land to the tenant whose tenancy was terminated by him ...............".It is clear from the record that the first appellant after having taken possession of the land termination of the tenancy under S. 34, ceased to use it for any of the purposes mentioned in the notice within 12 years from June 14, 1960 the date on which he took possession. He sold it to the second appellant on April 2, 1964 and transferred possession to him. The possession of the second appellant cannot be regarded as the possession of the first appellant, and the conclusion must be that the default mentioned in Section 37 (1) took place and the respondents became entitled to possession of the land. The respondents are entitled to possession of the land subject, of course, to any limitations placed by the law in regard to their holding.
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Common Cause A Regd. Society Vs. U.O.I | be sustained.48. We are further of the view that Capt. Satish Sharma acted in a wholly biased manner inasmuch as he unfairly regarded with favour the cases of 15 allottees before him. The relevant circumstances available from record and discussed by us leave no manner of doubt in our mind that Capt. Satish Sharma deliberately acted in a biased manner to favour these allottees and as such the allotment orders are wholly vitiated and are liable to be set aside. 49. The orders of the Minister reproduced above read: "the applicant has no regular income to support herself and her family", "the applicant is an educated lady and belongs to scheduled tribe community, "the applicant is unemployed and has no regular source of income," "the applicant is an uneducated, unemployed scheduled tribe youth without regular source of livelihood", "the applicant is a housewife whose family is facing difficult financial circumstances" etc. etc. There would be literally millions of people in the country having these circumstances or worse. There is no justification whatsoever to pick up these person except that they happen to have won the favour of the Minister on mala fide considerations. None of these cases fall within the categories placed before this Court in writ petition (civil) No. 886/93 titled Centre for public interest litigation v. Union of India and another decided on March 31, 1995 but even if we assume for argument sake that these cases fall in some of those or similar guidelines the exercise of discretion was wholly arbitrary. Such a discretionary power which is capable of being exercised arbitrarily is not permitted by Article 14 of the Constitution of India. While Article 14 permits a reasonable classification having a rational nexus to the objective sought to the achieved, it does not permit the power to pick and choose arbitrarily out of several persons falling in the same category. A transparent and objective Criteria/procedure has to evolved so that the choice among the members belonging to the same class or category is based on reason, fair play and non-arbitrariness. It is essential to lay down as a matter of policy as to how preferences would be assigned between two persons falling in the same category. If there are two imminent sportsman in distress and only one petrol pump is available, there should be clear, transparent and objective criteria/procedure to indicate who out of the two is to be preferred. Lack of transparency in the system promotes neptosism and arbitrariness. It is absolutely essential that the entire system should be transparent right from the stage of calling for the applications upto the stage of passing the orders of allotment. The names of the allottees, the orders and the reasons for allotment should be available for public knowledge and scrutiny. Mr. Shanti Bhushan has suggested that the petrol pumps, agencies etc. may be allotted by public auction category wise amongst the eligible and objectively selected applicants. We do not wish to impose any procedure on the Government. It is a matter of policy for the Government to lay down. We, however, direct that any procedure laid down by the Government must be transparent, just, fair and non-arbitrary. 50. This Court in The Centre for Public Interest Litigation case (supra) has endorsed the guidelines submitted by the Attorney General for allotment of petrol pumps, gas agencies etc. The Court in that case did not have before it the actual manner of exercise of discretion by the Minister in the allotment of pumps/agencies. The allotment orders which are now before the Court clearly indicate that leaving the authorities to enjoy absolute discretion even within the guidelines would inevitably lead to gross violation of the constitutional norms when the persons for allotment are picked up arbitrarily and discriminatorily. 51. This Court as back as in 1979 in Ramana Shettys case (supra) held "it must, therefore, be taken to be the law... that even in the matter of grant of largesses including award of jobs, contracts, quotas and licences, the Government must act in fair and just manner and any arbitrary distribution of wealth would violate the law of the land." Mr. Satish Sharma has acted in utter violation of the law laid-down by this Court and has also infarcted Article 14 of the Constitution of India. As already stated a Minister in the Central Government is in position of a trustee in respect of the public property under his charge and discretion. The petrol pumps/gas agencies are a kind of wealth which the Government must distribute in a bona fide manner and in conformity with law. Capt. Satish Sharma has betrayed the trust reposed in him by the people under the Constitution. It is high time that the public servants should be held personally responsible for their mala fide acts in the discharge of their functions as public servants. This court in Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243 , approved "Misfeasance in public offices" as a part of the Law. Tort. Public servants may be liable in damages for malicious, deliberate or injurious wrong-doing. According to wade : "There is, thus, a tort which has been called misfeasance in public office and which includes malicious abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury". With the change in socio-economic outlook, the public servants are being entrusted with more and more discretionary powers even in the failed of distribution of Government wealth in various forms. We take it to be perfectly clear, that if a public servant abuses his office either by an act of omission or commission, and the consequence of that is injury to an individual or loss of public property, an action may be maintained against such public servant. No public servant can say "you may set aside an order on the ground of mala fide but you cannot hold me personally liable". No public servant can arrogate to himself the power to act in a manner which is arbitrary. | 1[ds]44. All the 15 allotmentse have been madeby the Minister in a stereotyped manner. The applications have not been officially received by the Petroleum Ministry. There is noon any of the applications. The applicants seem to have approached the Minister directly. None of the applications have been dealt with by any of the branches of the Ministry. There is nothing on the record to indicate that the Minister kept any criteria in view while making that allotments. How the applicants came to know about the availability of the petrol pumps is not known. No advertisement was made to invite the applications. There is nothing on the record to show that any other method of inviting applications was adopted. There is no indication in theor anywhere in the record to show that the Minister kept any guidelines in view while making these allotments. The allotments have been made in a cloistered manner. The petrol pumpsy have beendoled out in a wholly arbitrary manner.The allotments have been made by the Minister either on the ground of poverty or unemployment. Assuming that the allottees belong to either of these two categories then how the Minister has selected them out of millions of poor and unemployed in this country. As mentions above no criteria was fixed, no guidelines were kept in view, none knew how many petrol pumps were available for allotment, applications were not invited and the allotments of petrol pumps were made in arbitrary and discriminatoryis obvious that Capt. Satish Sharma was personally interested in making allotments of petrol pumps in favour of all these 15 persons. He made allotments in favour of relations of his personal staff under the influence of the staff on wholly extraneous considerations. The allotments to the sons of Ministers were only to oblige the ministers. The allotments to the members of the Oil Selection Boards and their chairmens relations have been done to influence them to have favours from them. All these allotments are wholly arbitrary, nepotistic and are motivated by extraneoushave no hesitation in holding that Capt. Satish Sharma in his capacity as a Minister for Petroleum and Natual Gas deliberately acted in a wholly arbitrary and unjust manner. We have no doubt in our mind that Capt. Satish Sharma knew that the allottees were relations of his personal staff, sons of Ministers, sons/relations of Chairman and members of the Oil Selection Boards and the members of the Oil Selection Boards themselves. The allotments made by him were wholly mala fide and as such cannot be sustained.48. We are further of the view that Capt. Satish Sharma acted in a wholly biased manner inasmuch as he unfairly regarded with favour the cases of 15 allottees before him. The relevant circumstances available from record and discussed by us leave no manner of doubt in our mind that Capt. Satish Sharma deliberately acted in a biased manner to favour these allottees and as such the allotment orders are wholly vitiated and are liable to be setThis Court as back as in 1979 in Ramana Shettys case (supra) held "it must, therefore, be taken to be the law... that even in the matter of grant of largesses including award of jobs, contracts, quotas and licences, the Government must act in fair and just manner and any arbitrary distribution of wealth would violate the law of the land." Mr. Satish Sharma has acted in utter violation of the lawby this Court and has also infarcted Article 14 of the Constitution of India. As already stated a Minister in the Central Government is in position of a trustee in respect of the public property under his charge and discretion. The petrol pumps/gas agencies are a kind of wealth which the Government must distribute in a bona fide manner and in conformity with law. Capt. Satish Sharma has betrayed the trust reposed in him by the people under the Constitution. It is high time that the public servants should be held personally responsible for their mala fide acts in the discharge of their functions as public servants. This court in Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243 , approved "Misfeasance in public offices" as a part of the Law. Tort. Public servants may be liable in damages for malicious, deliberate or injuriousAccording to wade : "There is, thus, a tort which has been called misfeasance in public office and which includes malicious abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury". With the change inoutlook, the public servants are being entrusted with more and more discretionary powers even in the failed of distribution of Government wealth in various forms. We take it to be perfectly clear, that if a public servant abuses his office either by an act of omission or commission, and the consequence of that is injury to an individual or loss of public property, an action may be maintained against such public servant. No public servant can say "you may set aside anorder on theground of mala fide but you cannot hold me personally liable". No public servant can arrogate to himself the power to act in a manner which is arbitrary. | 1 | 10,415 | 942 | ### 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:
be sustained.48. We are further of the view that Capt. Satish Sharma acted in a wholly biased manner inasmuch as he unfairly regarded with favour the cases of 15 allottees before him. The relevant circumstances available from record and discussed by us leave no manner of doubt in our mind that Capt. Satish Sharma deliberately acted in a biased manner to favour these allottees and as such the allotment orders are wholly vitiated and are liable to be set aside. 49. The orders of the Minister reproduced above read: "the applicant has no regular income to support herself and her family", "the applicant is an educated lady and belongs to scheduled tribe community, "the applicant is unemployed and has no regular source of income," "the applicant is an uneducated, unemployed scheduled tribe youth without regular source of livelihood", "the applicant is a housewife whose family is facing difficult financial circumstances" etc. etc. There would be literally millions of people in the country having these circumstances or worse. There is no justification whatsoever to pick up these person except that they happen to have won the favour of the Minister on mala fide considerations. None of these cases fall within the categories placed before this Court in writ petition (civil) No. 886/93 titled Centre for public interest litigation v. Union of India and another decided on March 31, 1995 but even if we assume for argument sake that these cases fall in some of those or similar guidelines the exercise of discretion was wholly arbitrary. Such a discretionary power which is capable of being exercised arbitrarily is not permitted by Article 14 of the Constitution of India. While Article 14 permits a reasonable classification having a rational nexus to the objective sought to the achieved, it does not permit the power to pick and choose arbitrarily out of several persons falling in the same category. A transparent and objective Criteria/procedure has to evolved so that the choice among the members belonging to the same class or category is based on reason, fair play and non-arbitrariness. It is essential to lay down as a matter of policy as to how preferences would be assigned between two persons falling in the same category. If there are two imminent sportsman in distress and only one petrol pump is available, there should be clear, transparent and objective criteria/procedure to indicate who out of the two is to be preferred. Lack of transparency in the system promotes neptosism and arbitrariness. It is absolutely essential that the entire system should be transparent right from the stage of calling for the applications upto the stage of passing the orders of allotment. The names of the allottees, the orders and the reasons for allotment should be available for public knowledge and scrutiny. Mr. Shanti Bhushan has suggested that the petrol pumps, agencies etc. may be allotted by public auction category wise amongst the eligible and objectively selected applicants. We do not wish to impose any procedure on the Government. It is a matter of policy for the Government to lay down. We, however, direct that any procedure laid down by the Government must be transparent, just, fair and non-arbitrary. 50. This Court in The Centre for Public Interest Litigation case (supra) has endorsed the guidelines submitted by the Attorney General for allotment of petrol pumps, gas agencies etc. The Court in that case did not have before it the actual manner of exercise of discretion by the Minister in the allotment of pumps/agencies. The allotment orders which are now before the Court clearly indicate that leaving the authorities to enjoy absolute discretion even within the guidelines would inevitably lead to gross violation of the constitutional norms when the persons for allotment are picked up arbitrarily and discriminatorily. 51. This Court as back as in 1979 in Ramana Shettys case (supra) held "it must, therefore, be taken to be the law... that even in the matter of grant of largesses including award of jobs, contracts, quotas and licences, the Government must act in fair and just manner and any arbitrary distribution of wealth would violate the law of the land." Mr. Satish Sharma has acted in utter violation of the law laid-down by this Court and has also infarcted Article 14 of the Constitution of India. As already stated a Minister in the Central Government is in position of a trustee in respect of the public property under his charge and discretion. The petrol pumps/gas agencies are a kind of wealth which the Government must distribute in a bona fide manner and in conformity with law. Capt. Satish Sharma has betrayed the trust reposed in him by the people under the Constitution. It is high time that the public servants should be held personally responsible for their mala fide acts in the discharge of their functions as public servants. This court in Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243 , approved "Misfeasance in public offices" as a part of the Law. Tort. Public servants may be liable in damages for malicious, deliberate or injurious wrong-doing. According to wade : "There is, thus, a tort which has been called misfeasance in public office and which includes malicious abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury". With the change in socio-economic outlook, the public servants are being entrusted with more and more discretionary powers even in the failed of distribution of Government wealth in various forms. We take it to be perfectly clear, that if a public servant abuses his office either by an act of omission or commission, and the consequence of that is injury to an individual or loss of public property, an action may be maintained against such public servant. No public servant can say "you may set aside an order on the ground of mala fide but you cannot hold me personally liable". No public servant can arrogate to himself the power to act in a manner which is arbitrary.
### Response:
1
### Explanation:
44. All the 15 allotmentse have been madeby the Minister in a stereotyped manner. The applications have not been officially received by the Petroleum Ministry. There is noon any of the applications. The applicants seem to have approached the Minister directly. None of the applications have been dealt with by any of the branches of the Ministry. There is nothing on the record to indicate that the Minister kept any criteria in view while making that allotments. How the applicants came to know about the availability of the petrol pumps is not known. No advertisement was made to invite the applications. There is nothing on the record to show that any other method of inviting applications was adopted. There is no indication in theor anywhere in the record to show that the Minister kept any guidelines in view while making these allotments. The allotments have been made in a cloistered manner. The petrol pumpsy have beendoled out in a wholly arbitrary manner.The allotments have been made by the Minister either on the ground of poverty or unemployment. Assuming that the allottees belong to either of these two categories then how the Minister has selected them out of millions of poor and unemployed in this country. As mentions above no criteria was fixed, no guidelines were kept in view, none knew how many petrol pumps were available for allotment, applications were not invited and the allotments of petrol pumps were made in arbitrary and discriminatoryis obvious that Capt. Satish Sharma was personally interested in making allotments of petrol pumps in favour of all these 15 persons. He made allotments in favour of relations of his personal staff under the influence of the staff on wholly extraneous considerations. The allotments to the sons of Ministers were only to oblige the ministers. The allotments to the members of the Oil Selection Boards and their chairmens relations have been done to influence them to have favours from them. All these allotments are wholly arbitrary, nepotistic and are motivated by extraneoushave no hesitation in holding that Capt. Satish Sharma in his capacity as a Minister for Petroleum and Natual Gas deliberately acted in a wholly arbitrary and unjust manner. We have no doubt in our mind that Capt. Satish Sharma knew that the allottees were relations of his personal staff, sons of Ministers, sons/relations of Chairman and members of the Oil Selection Boards and the members of the Oil Selection Boards themselves. The allotments made by him were wholly mala fide and as such cannot be sustained.48. We are further of the view that Capt. Satish Sharma acted in a wholly biased manner inasmuch as he unfairly regarded with favour the cases of 15 allottees before him. The relevant circumstances available from record and discussed by us leave no manner of doubt in our mind that Capt. Satish Sharma deliberately acted in a biased manner to favour these allottees and as such the allotment orders are wholly vitiated and are liable to be setThis Court as back as in 1979 in Ramana Shettys case (supra) held "it must, therefore, be taken to be the law... that even in the matter of grant of largesses including award of jobs, contracts, quotas and licences, the Government must act in fair and just manner and any arbitrary distribution of wealth would violate the law of the land." Mr. Satish Sharma has acted in utter violation of the lawby this Court and has also infarcted Article 14 of the Constitution of India. As already stated a Minister in the Central Government is in position of a trustee in respect of the public property under his charge and discretion. The petrol pumps/gas agencies are a kind of wealth which the Government must distribute in a bona fide manner and in conformity with law. Capt. Satish Sharma has betrayed the trust reposed in him by the people under the Constitution. It is high time that the public servants should be held personally responsible for their mala fide acts in the discharge of their functions as public servants. This court in Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243 , approved "Misfeasance in public offices" as a part of the Law. Tort. Public servants may be liable in damages for malicious, deliberate or injuriousAccording to wade : "There is, thus, a tort which has been called misfeasance in public office and which includes malicious abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury". With the change inoutlook, the public servants are being entrusted with more and more discretionary powers even in the failed of distribution of Government wealth in various forms. We take it to be perfectly clear, that if a public servant abuses his office either by an act of omission or commission, and the consequence of that is injury to an individual or loss of public property, an action may be maintained against such public servant. No public servant can say "you may set aside anorder on theground of mala fide but you cannot hold me personally liable". No public servant can arrogate to himself the power to act in a manner which is arbitrary.
|
State of Kerala Vs. Kumari T.P. Roshana and Anr | claimed was admission to the medical college. 27. The upshot of the judgment, in terms of student impact, government policy, college admissions and potential for agitation , may be envisioned for a while. We may also take note of the gregarious trend of one writ petition being followed by many when the grievance is common and the first case is in essence a test case and class action. What is granted to the petitioner has to be granted to others who follow her. In terms of numbers several candidates may have to be admitted into the medical colleges. More than that is the chaotic consequence of the pro tempore project of the Government being struck down with no alternative methodology of selection. Governments have no magic remedies to tide over sudden crisis. Their processes are notoriously slow and the temper of the student community is notoriously inflammable. Thus the negative stroke of voiding the G.O. and granting relief to the petitioner is to throw out a number of students already undergoing their course and to incite unwittingly student unrest of magnitude, apart from leaving the academic algebra for admissions in a state of vacuum. One thing is certain. If the syndrome of campus chaos is to be obviated, the court should come to the assistance of the Kerala University students already admitted and undergoing their medical course who might otherwise have to be jettisoned. We, therefore, do not think it right to force into the medical colleges any students who may be qualified for admission by virtue of our order at the expense of another who has already been admitted and is undergoing the medical course. This means that 30 students from the colleges affiliated to the Calicut University will have to be provided for ab extra. But how to find accommodation for 30 more students ?The Universities concerned have the power to increase the streghth ad hoc when gripped by a crisis such as has occurred here. The Medical Council of India has an overall control in this field, being the statutory body created under the Indian Medical Council Act, 1956. Thus, the concurrence of the Calicut and the Kerala Universities and the Medical Council of India becomes necessary for working out effective reliefs in terms of adding to the strength on a temporary footing, with a sense of equity and anxiety to do justice to the existing entrants. 28. Unfortunately, neither the Universities concerned nor the students affected are parties. The presence of the Medical Council of India also has to be secured. Confronted by this situation, we directed, as a measure of emergency issuance of notice to the two Universities and made them party to the record. A similar step was taken in the case of the Medical Council of India. At short notice, all the three parties entered appearance. Although Shri A. S. Nambiar, appearing for the University, expressed inability to consent to any course of addition of strength, he agreed that the concerned academic bodies were likely to meet shortly and the Universities themselves would abide by any directions t his Court issued in the interests of Justice. The learned Advocate General had earlier represented that the Universities were likely to agree to a temporary addition of strength, provided the Medical Council of India would also approve of t he course. We need hardly say that the writ of this Court binds the parties on record and all the three bodies are before us and must abide by the directions we issue necessitated by the exigency of the situation and the need to do justice. 29. After all, the Court system belongs to the people and must promote constructive justice; and all institutions, including the Governments and Universities, likewise belong, to the people. This commitment is the whet stone for doing justice in the wider context of social good. The Universities, as we gather from counsel representing all the parties, may not find it difficult to accommodate 30 students more, apportioned among the four medical colleges of the State. This addition is compelled by the critical condition set out above. This need will not survive this academic year and, in that sense, no long term trauma for academic standards will be inflicted by each of the colleges accommodating a few more students for their courses this year. After all, not much time has passed since the teaching session began. Compared to their existing strength, the additions are negligible. The Medical Council of India, through the learned Additional Solicitor Genera l, has expressed that it has no objection to this proposal for a miniscule addition confined to this academic year. We see no ground for either University to plead inability to help the cause of Justice. The insistence on standards, measured by mark s, is not being relaxed, so much so the quality of the admission of additional students does not suffer. A marginal strain in the matter of teaching and perhaps extra burden in regard to the practicals may have to be endured. We are, therefore sure that the Universities, the colleges concerned, the teaching community and the alumni themselves will appreciate the goal and cooperate in the success of the direction we make.Had we left the Judgment of the High Court in the conventional form of merely quashing the formula of admission the remedy would have aggravated the malady- confusion, agitation, paralysis. The root of the grievance and the fruit of the writ are not individual but collective and while the adversary system makes the Judge a mere umpire, traditionally speaking, the community orientation of the judicial function, so desirable in the Third World remedial jurisprudence, transforms the courts power into affirmative structuring of redress so as to make it personally meaningful and socially relevant. Frustration of invalidity is part of the judicial duty; fulfillment of legality is complementary. This principle of affirmative action is within our jurisdiction under Art. 136 and Art. 32 and we think the present cases deserve its exercise 30. | 1[ds]The rule of law runs close to the rule of life and where societal life, as between one part of the State and another, is the victim ofd disparities the constitutional mandate of equal justice under the law responds to it pragmatically and permits classification geared to eventual equalisation. We, therefore, agree with the High Court that current conditions warrant the classification of the student community on the Zonal basisnot as a legitimation of endless perpetuation but as a transient panacea for an handicap which the State must actively strive to undo.In Kerala, as in some other States, reservation policies of Governments and `equal protection pronouncements of courts have chased e ach other. A happy harmony among the great instrumentalities for accomplishment of constitutional goals by complementary action is the desideratum for developing countries, if we may say so respectfullyThe principle of reservation with weightage for the geographical area of the Malabar District has our approval in endorsement of the view or the High CourtWe are not impressed much wit h the surmise which colours the reasoning of the Full Bench and the learned Single Judge that there is such substantial difference in thee courses and evaluations between the sister universities within the same State that the breach of Art. 14 by equal treatment of the marks unequally secured by examinees in the two universities may be spelt out. It is trite law that every inconsequential differentiation between two things does not constitute the vice of discrimination, i f law clubs them together ignoring venial variances. Art. 14 is not a voodoo which visits with invalidation every executive or legislative fusion of things or categories where there are no pronounced inequalities. Mathematical equality is not the touchstone of constitutionalityThere can be no manner of doubt, and it is now fairly well settled, that the Government, as also other private agencies, who found such centres for medical training, have the right to frame rules f or admission so long as those rules are not inconsistent with the university statutes and regulations and do not suffer from infirmities, constitutional or otherwise. Since the universities are set up fore educational needs of different areas where they are set up and medical colleges are established in those areas, it can safely be presumed that they also were so set up to satisfy the needs for medical training of those attached to those universities. In our view, there is nothing undesirable in ensuring that those attached to such universities have their ambitions to have training in specialised subjects, like medicine satisfied through colleges affiliated to their own universities. Such a basis for selection has not the disadvantage of District wise or unit wise selection as any student from any part of the state can pass the qualifying examination in any of the three universities irrespective of the place of his birth or residence. Further, the rules confer a discretion on the selection committee to admit outsiders upto 20% of the total available seats in any one of these colleges, i .e. those who have passed the equivalent examination held by any other university not only in the State but also elsewhere in India..... The fact that a candidate having lesser marks might obtain admission at the cost of another having higher marks from another university does not necessarily mean that a less meritorious candidate gets advantage over a more meritorious one. As is well known, different universities have different standards in the examinations held by them. A preference to one attached to one university in its own institutions fore or technical training is not uncommon..... Further, the Government which bears the financial burden of running the Government colleges is entitled to lay down criteria for admission in its own colleges and to decide the sources from which admission would be made, provided of course, such classification is not arbitrary and has a rational bass and a reasonable connection with the object of the rules. So long as there is no discrimination within each of such sources, the validity of the rules laying down such sources cannot b e successfully challengedIn our view, the rules lay down a valid classification. Candidates passing through the qualifying examinations held by a university form a class by themselves as distinguished from those passing through such examination from the other two universities. Such a classification has a reasonable nexus with the object of the rules" namely, to cater to the needs of candidates who would naturally look to their own university to advance their training in technical studies, such as medical studies. In our opinion, the rules cannot justly be attacked on the ground of hostile discrimination or as being otherwise in breach of Art. 14We do not mean to lay down, as an inflexible dogma of universal application, that under utterly different social and educational environsd grouping of candidates for specialised course s will,, be valid. But the basic identity of pertinent circumstances bearing on thed descrimen in Chanchala and here constitutionalize the scheme of selection adopted by Government grouping all eligibles from colleges affiliated to each University as separate units. The High Courts perspective in this regard is impeccableWe agree with the High Court that the injection of the university wiseh is drawing theg across then irrelevance that invalidates the scheme. We cannot see the nexus between the registered studentstrength and the seats to be allotted. The fewer the colleges the fewer thee or degree students. And so, the linkage of the division of seats with the registeredh would make an irrational inroad into theOne thing is certain. If the syndrome of campus chaos is to be obviated, the court should come to the assistance of the Kerala University students already admitted and undergoing their medical course who might otherwise have to be jettisoned. We, therefore, do not think it right to force into the medical colleges any students who may be qualified for admission by virtue of our order at the expense of another who has already been admitted and is undergoing the medical course. This means that 30 students from the colleges affiliated to the Calicut University will have to be provided for ab extra. But how to find accommodation for 30 more students ?The Universities concerned have the power to increase the streghth ad hoc when gripped by a crisis such as has occurred here. The Medical Council of India has an overall control in this field, being the statutory body created underthe Indian Medical Council Act, 1956. Thus, the concurrence of the Calicut and the Kerala Universities and the Medical Council of India becomes necessary for working out effective reliefs in terms of adding to the strength on a temporary footing, with a sense of equity and anxiety to do justice to the existing entrantsAfter all, the Court system belongs to the people and must promote constructive justice; and all institutions, including the Governments and Universities, likewise belong, to the people. This commitment is the whet stone for doing justice in the wider context of social good. The Universities, as we gather from counsel representing all the parties, may not find it difficult to accommodate 30 students more, apportioned among the four medical colleges of the State. This addition is compelled by the critical condition set out above. This need will not survive this academic year and, in that sense, no long term trauma for academic standards will be inflicted by each of the colleges accommodating a few more students for their courses this year. After all, not much time has passed since the teaching session began. Compared to their existing strength, the additions are negligible. The Medical Council of India, through the learned Additional Solicitor Genera l, has expressed that it has no objection to this proposal for a miniscule addition confined to this academic year. We see no ground for either University to plead inability to help the cause of Justice. The insistence on standards, measured by mark s, is not being relaxed, so much so the quality of the admission of additional students does not suffer. A marginal strain in the matter of teaching and perhaps extra burden in regard to the practicals may have to be endured. We are, therefore sure that the Universities, the colleges concerned, the teaching community and the alumni themselves will appreciate the goal and cooperate in the success of the direction we make.Had we left the Judgment of the High Court in the conventional form of merely quashing the formula of admission the remedy would have aggravated the maladyconfusion, agitation, paralysis. The root of the grievance and the fruit of the writ are not individual but collective and while the adversary system makes the Judge a mere umpire, traditionally speaking, the community orientation of the judicial function, so desirable in the Third World remedial jurisprudence, transforms the courts power into affirmative structuring of redress so as to make it personally meaningful and socially relevant. Frustration of invalidity is part of the judicial duty; fulfillment of legality is complementary. This principle of affirmative action is within our jurisdiction under Art. 136 and Art. 32 and we think the present cases deserve its exercise | 1 | 7,722 | 1,653 | ### 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:
claimed was admission to the medical college. 27. The upshot of the judgment, in terms of student impact, government policy, college admissions and potential for agitation , may be envisioned for a while. We may also take note of the gregarious trend of one writ petition being followed by many when the grievance is common and the first case is in essence a test case and class action. What is granted to the petitioner has to be granted to others who follow her. In terms of numbers several candidates may have to be admitted into the medical colleges. More than that is the chaotic consequence of the pro tempore project of the Government being struck down with no alternative methodology of selection. Governments have no magic remedies to tide over sudden crisis. Their processes are notoriously slow and the temper of the student community is notoriously inflammable. Thus the negative stroke of voiding the G.O. and granting relief to the petitioner is to throw out a number of students already undergoing their course and to incite unwittingly student unrest of magnitude, apart from leaving the academic algebra for admissions in a state of vacuum. One thing is certain. If the syndrome of campus chaos is to be obviated, the court should come to the assistance of the Kerala University students already admitted and undergoing their medical course who might otherwise have to be jettisoned. We, therefore, do not think it right to force into the medical colleges any students who may be qualified for admission by virtue of our order at the expense of another who has already been admitted and is undergoing the medical course. This means that 30 students from the colleges affiliated to the Calicut University will have to be provided for ab extra. But how to find accommodation for 30 more students ?The Universities concerned have the power to increase the streghth ad hoc when gripped by a crisis such as has occurred here. The Medical Council of India has an overall control in this field, being the statutory body created under the Indian Medical Council Act, 1956. Thus, the concurrence of the Calicut and the Kerala Universities and the Medical Council of India becomes necessary for working out effective reliefs in terms of adding to the strength on a temporary footing, with a sense of equity and anxiety to do justice to the existing entrants. 28. Unfortunately, neither the Universities concerned nor the students affected are parties. The presence of the Medical Council of India also has to be secured. Confronted by this situation, we directed, as a measure of emergency issuance of notice to the two Universities and made them party to the record. A similar step was taken in the case of the Medical Council of India. At short notice, all the three parties entered appearance. Although Shri A. S. Nambiar, appearing for the University, expressed inability to consent to any course of addition of strength, he agreed that the concerned academic bodies were likely to meet shortly and the Universities themselves would abide by any directions t his Court issued in the interests of Justice. The learned Advocate General had earlier represented that the Universities were likely to agree to a temporary addition of strength, provided the Medical Council of India would also approve of t he course. We need hardly say that the writ of this Court binds the parties on record and all the three bodies are before us and must abide by the directions we issue necessitated by the exigency of the situation and the need to do justice. 29. After all, the Court system belongs to the people and must promote constructive justice; and all institutions, including the Governments and Universities, likewise belong, to the people. This commitment is the whet stone for doing justice in the wider context of social good. The Universities, as we gather from counsel representing all the parties, may not find it difficult to accommodate 30 students more, apportioned among the four medical colleges of the State. This addition is compelled by the critical condition set out above. This need will not survive this academic year and, in that sense, no long term trauma for academic standards will be inflicted by each of the colleges accommodating a few more students for their courses this year. After all, not much time has passed since the teaching session began. Compared to their existing strength, the additions are negligible. The Medical Council of India, through the learned Additional Solicitor Genera l, has expressed that it has no objection to this proposal for a miniscule addition confined to this academic year. We see no ground for either University to plead inability to help the cause of Justice. The insistence on standards, measured by mark s, is not being relaxed, so much so the quality of the admission of additional students does not suffer. A marginal strain in the matter of teaching and perhaps extra burden in regard to the practicals may have to be endured. We are, therefore sure that the Universities, the colleges concerned, the teaching community and the alumni themselves will appreciate the goal and cooperate in the success of the direction we make.Had we left the Judgment of the High Court in the conventional form of merely quashing the formula of admission the remedy would have aggravated the malady- confusion, agitation, paralysis. The root of the grievance and the fruit of the writ are not individual but collective and while the adversary system makes the Judge a mere umpire, traditionally speaking, the community orientation of the judicial function, so desirable in the Third World remedial jurisprudence, transforms the courts power into affirmative structuring of redress so as to make it personally meaningful and socially relevant. Frustration of invalidity is part of the judicial duty; fulfillment of legality is complementary. This principle of affirmative action is within our jurisdiction under Art. 136 and Art. 32 and we think the present cases deserve its exercise 30.
### Response:
1
### Explanation:
India..... The fact that a candidate having lesser marks might obtain admission at the cost of another having higher marks from another university does not necessarily mean that a less meritorious candidate gets advantage over a more meritorious one. As is well known, different universities have different standards in the examinations held by them. A preference to one attached to one university in its own institutions fore or technical training is not uncommon..... Further, the Government which bears the financial burden of running the Government colleges is entitled to lay down criteria for admission in its own colleges and to decide the sources from which admission would be made, provided of course, such classification is not arbitrary and has a rational bass and a reasonable connection with the object of the rules. So long as there is no discrimination within each of such sources, the validity of the rules laying down such sources cannot b e successfully challengedIn our view, the rules lay down a valid classification. Candidates passing through the qualifying examinations held by a university form a class by themselves as distinguished from those passing through such examination from the other two universities. Such a classification has a reasonable nexus with the object of the rules" namely, to cater to the needs of candidates who would naturally look to their own university to advance their training in technical studies, such as medical studies. In our opinion, the rules cannot justly be attacked on the ground of hostile discrimination or as being otherwise in breach of Art. 14We do not mean to lay down, as an inflexible dogma of universal application, that under utterly different social and educational environsd grouping of candidates for specialised course s will,, be valid. But the basic identity of pertinent circumstances bearing on thed descrimen in Chanchala and here constitutionalize the scheme of selection adopted by Government grouping all eligibles from colleges affiliated to each University as separate units. The High Courts perspective in this regard is impeccableWe agree with the High Court that the injection of the university wiseh is drawing theg across then irrelevance that invalidates the scheme. We cannot see the nexus between the registered studentstrength and the seats to be allotted. The fewer the colleges the fewer thee or degree students. And so, the linkage of the division of seats with the registeredh would make an irrational inroad into theOne thing is certain. If the syndrome of campus chaos is to be obviated, the court should come to the assistance of the Kerala University students already admitted and undergoing their medical course who might otherwise have to be jettisoned. We, therefore, do not think it right to force into the medical colleges any students who may be qualified for admission by virtue of our order at the expense of another who has already been admitted and is undergoing the medical course. This means that 30 students from the colleges affiliated to the Calicut University will have to be provided for ab extra. But how to find accommodation for 30 more students ?The Universities concerned have the power to increase the streghth ad hoc when gripped by a crisis such as has occurred here. The Medical Council of India has an overall control in this field, being the statutory body created underthe Indian Medical Council Act, 1956. Thus, the concurrence of the Calicut and the Kerala Universities and the Medical Council of India becomes necessary for working out effective reliefs in terms of adding to the strength on a temporary footing, with a sense of equity and anxiety to do justice to the existing entrantsAfter all, the Court system belongs to the people and must promote constructive justice; and all institutions, including the Governments and Universities, likewise belong, to the people. This commitment is the whet stone for doing justice in the wider context of social good. The Universities, as we gather from counsel representing all the parties, may not find it difficult to accommodate 30 students more, apportioned among the four medical colleges of the State. This addition is compelled by the critical condition set out above. This need will not survive this academic year and, in that sense, no long term trauma for academic standards will be inflicted by each of the colleges accommodating a few more students for their courses this year. After all, not much time has passed since the teaching session began. Compared to their existing strength, the additions are negligible. The Medical Council of India, through the learned Additional Solicitor Genera l, has expressed that it has no objection to this proposal for a miniscule addition confined to this academic year. We see no ground for either University to plead inability to help the cause of Justice. The insistence on standards, measured by mark s, is not being relaxed, so much so the quality of the admission of additional students does not suffer. A marginal strain in the matter of teaching and perhaps extra burden in regard to the practicals may have to be endured. We are, therefore sure that the Universities, the colleges concerned, the teaching community and the alumni themselves will appreciate the goal and cooperate in the success of the direction we make.Had we left the Judgment of the High Court in the conventional form of merely quashing the formula of admission the remedy would have aggravated the maladyconfusion, agitation, paralysis. The root of the grievance and the fruit of the writ are not individual but collective and while the adversary system makes the Judge a mere umpire, traditionally speaking, the community orientation of the judicial function, so desirable in the Third World remedial jurisprudence, transforms the courts power into affirmative structuring of redress so as to make it personally meaningful and socially relevant. Frustration of invalidity is part of the judicial duty; fulfillment of legality is complementary. This principle of affirmative action is within our jurisdiction under Art. 136 and Art. 32 and we think the present cases deserve its exercise
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Charan Singh And Ors Vs. Babulal And Ors | 8, 1956, modified the award, dated May 14, l956. Babu Lal. Mohar Singh and Ram Piyari filed an appeal before the District Judge against the order of the Civil Judge, dated September 8, 1956. Before the District Judge a preliminary objection was raised that no appeal lay against the order of the Civil Judge. The District Judge overruled the objection. On the merits, the District Judge held that the Civil Judge was not justified, under S 15 of the Arbitration Act, in modifying the award merely because he disagreed with the finding. He, therefore allowed the appeal and set aside the order of the Civil Judge modifying the award and the award announced by Shri Vikram Singh was accepted.4. Charan Singh, Maharaj Singh, Doonger Singh and Lajja Ram filed a petition before the High Court under S. 115 of the Civil Procedure Code. As stated above, Dhavan, T. dismissed the petition on the ground that an appeal lay under S. 39 of the Arbitration Act. This Court granted special leave and now the matter is before us.5. Mr. Goyal contends that S. 37 of the Act applies the provisions of the Arbitration Act only as far as procedure is concerned and S. 39 of the Arbitration Act which provides for appeals does not apply to arbitrations referred to in S. 37 of the Act. He relies strongly on S. 12 (6) of the Act which provides that the decision of the arbitrator under sub-s. (4) shall be final. We have already set out S. 12 (4). He, however, does not contend that the provisions of S. 15 of the Arbitration Act do not apply because the appellants had apparently applied under S. 15 of the Arbitration Act to the Court to modify the award made by Vikram Singh and they had succeeded in getting an order modifying the award in their favour.6. In our opinion, the High Court arrived at the correct conclusion in ILR (1959) 1 All 354: (AIR 19,59 AI1 717) and Sayeed Ullah Khan v Temporary Civil Judge of Sultanpur AIR 1959 All 330 . Section 12 (4) of the Act provides for a statutory arbitration and S. 37 of the Act provides for the appointment of an arbitrator by the State Government. It seems to us that apart from the question of appointment of the arbitrator, in all other respects the matter referred to, i.e., the question of title referred to under S. 12 (4), shall be determined in accordance with the provisions of the Arbitration Act. Section 37 of the Act does not make any distinction between provisions like S. 39 and S. 15 of the Arbitration Act. Further, the effect of S. 46 and S. 47 of the Arbitration Act is that all the provisions of the Arbitration Act except sub-s (1) of Section 6, Ss. 7. 12, 36 and 37, apply to arbitrations under the Consolidation of Holdings Act. Section 37 of the Act cannot be held as providing anything inconsistent with this. In our opinion, the effect of S. 37 of the Act, read with Ss. 46 and 47 of the Arbitration Act, is inter alia to apply Ss 15 and 39 of the Arbitration Act to the proceedings under the Act. It is not necessary to rely on Rr. 63 and 64 of the Uttar Pradesh Consolidation of Holdings Rules, l954 but we may mention that they proceed on the basis that Ss 15, 16 and 30 of the Arbitration Act apply to the arbitration proceedings under the Act.7. Mr. Goyal then urges that this Court in the case of Attar Singh. The State of U. P., (1959) Supp (1) SCR 928 : (AIR 1959 SC 564 ), understood S. 37 of the Act to mean that it makes the Arbitration Act applicable to the proceedings before the arbitrator in the matter of procedure only. It is true that at p. 935 of the judgment, Wanchoo, J., observed :"Further S. 12 provides that where there is a dispute as to title and such question has not already been determined by any competent Court, the Consolidation Officer has to refer the question for determination to the Civil Judge who thereafter will refer it to the arbitrator. The arbitrator then proceeds in the manner provided by R. 73 (sic 63) and gives a hearing to the parties and takes evidence both oral and documentary before making his award; and S. 37 of the Act makes the Arbitration Act applicable to the proceedings before the arbitrator in the matter of procedure."We are unable to agree with Mr. Goyal that this passage in any manner decides the point which is before us. This Court in Attar Singhs case, (1959) Supp (1) SCR 928 : (AIR 1959 SC 564 ), was concerned with the validity of the Act, and ground No. 2 which was urged before the Court was :"Sections 8, 9 and 10 read with S. 49 of the Act provide a procedure for the correction and revision of revenue records for villages under consolidation which is vitally different from that applicable to villages not under consolidation, and there is thus discrimination which offends Art. 14 of the Constitution."In dealing with this ground, Wanchoo, J., made the observations which have been set out above. There was no question there of considering the effect of Ss. 46 and 47 of the Arbitration Act, or considering whether S. 39 of the Arbitration Act applies to Arbitrations under S. 12 (4) of the Act.8. Mr. Goyal also laid a great dead of emphasis on S. 12 (6) of the Act which provides that the decision of the arbitrator under sub-s. (4) shall be final. In our opinion, S. 12 (6) must be read with S. 37 of the Act, and if it is so read it is quite clear that what is made final is the decision of the arbitrator as it emerges after appropriate proceedings if any, have been taken under the provisions of the Arbitration Act. | 0[ds]6. In our opinion, the High Court arrived at the correct conclusion in ILR (1959) 1 All 354: (AIR 19,59 AI1 717) and Sayeed Ullah Khan v Temporary Civil Judge of Sultanpur AIR 1959 All 330 . Section 12 (4) of the Act provides for a statutory arbitration and S. 37 of the Act provides for the appointment of an arbitrator by the State Government. It seems to us that apart from the question of appointment of the arbitrator, in all other respects the matter referred to, i.e., the question of title referred to under S. 12 (4), shall be determined in accordance with the provisions of the Arbitration Act. Section 37 of the Act does not make any distinction between provisions like S. 39 and S. 15 of the Arbitration Act. Further, the effect of S. 46 and S. 47 of the Arbitration Act is that all the provisions of the Arbitration Act except sub-s (1) of Section 6, Ss. 7. 12, 36 and 37, apply to arbitrations under the Consolidation of Holdings Act. Section 37 of the Act cannot be held as providing anything inconsistent with this. In our opinion, the effect of S. 37 of the Act, read with Ss. 46 and 47 of the Arbitration Act, is inter alia to apply Ss 15 and 39 of the Arbitration Act to the proceedings under the Act. It is not necessary to rely on Rr. 63 and 64 of the Uttar Pradesh Consolidation of Holdings Rules, l954 but we may mention that they proceed on the basis that Ss 15, 16 and 30 of the Arbitration Act apply to the arbitration proceedings under theour opinion, S. 12 (6) must be read with S. 37 of the Act, and if it is so read it is quite clear that what is made final is the decision of the arbitrator as it emerges after appropriate proceedings if any, have been taken under the provisions of the Arbitrationare unable to agree with Mr. Goyal that this passage in any manner decides the point which is before us. | 0 | 1,603 | 393 | ### 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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8, 1956, modified the award, dated May 14, l956. Babu Lal. Mohar Singh and Ram Piyari filed an appeal before the District Judge against the order of the Civil Judge, dated September 8, 1956. Before the District Judge a preliminary objection was raised that no appeal lay against the order of the Civil Judge. The District Judge overruled the objection. On the merits, the District Judge held that the Civil Judge was not justified, under S 15 of the Arbitration Act, in modifying the award merely because he disagreed with the finding. He, therefore allowed the appeal and set aside the order of the Civil Judge modifying the award and the award announced by Shri Vikram Singh was accepted.4. Charan Singh, Maharaj Singh, Doonger Singh and Lajja Ram filed a petition before the High Court under S. 115 of the Civil Procedure Code. As stated above, Dhavan, T. dismissed the petition on the ground that an appeal lay under S. 39 of the Arbitration Act. This Court granted special leave and now the matter is before us.5. Mr. Goyal contends that S. 37 of the Act applies the provisions of the Arbitration Act only as far as procedure is concerned and S. 39 of the Arbitration Act which provides for appeals does not apply to arbitrations referred to in S. 37 of the Act. He relies strongly on S. 12 (6) of the Act which provides that the decision of the arbitrator under sub-s. (4) shall be final. We have already set out S. 12 (4). He, however, does not contend that the provisions of S. 15 of the Arbitration Act do not apply because the appellants had apparently applied under S. 15 of the Arbitration Act to the Court to modify the award made by Vikram Singh and they had succeeded in getting an order modifying the award in their favour.6. In our opinion, the High Court arrived at the correct conclusion in ILR (1959) 1 All 354: (AIR 19,59 AI1 717) and Sayeed Ullah Khan v Temporary Civil Judge of Sultanpur AIR 1959 All 330 . Section 12 (4) of the Act provides for a statutory arbitration and S. 37 of the Act provides for the appointment of an arbitrator by the State Government. It seems to us that apart from the question of appointment of the arbitrator, in all other respects the matter referred to, i.e., the question of title referred to under S. 12 (4), shall be determined in accordance with the provisions of the Arbitration Act. Section 37 of the Act does not make any distinction between provisions like S. 39 and S. 15 of the Arbitration Act. Further, the effect of S. 46 and S. 47 of the Arbitration Act is that all the provisions of the Arbitration Act except sub-s (1) of Section 6, Ss. 7. 12, 36 and 37, apply to arbitrations under the Consolidation of Holdings Act. Section 37 of the Act cannot be held as providing anything inconsistent with this. In our opinion, the effect of S. 37 of the Act, read with Ss. 46 and 47 of the Arbitration Act, is inter alia to apply Ss 15 and 39 of the Arbitration Act to the proceedings under the Act. It is not necessary to rely on Rr. 63 and 64 of the Uttar Pradesh Consolidation of Holdings Rules, l954 but we may mention that they proceed on the basis that Ss 15, 16 and 30 of the Arbitration Act apply to the arbitration proceedings under the Act.7. Mr. Goyal then urges that this Court in the case of Attar Singh. The State of U. P., (1959) Supp (1) SCR 928 : (AIR 1959 SC 564 ), understood S. 37 of the Act to mean that it makes the Arbitration Act applicable to the proceedings before the arbitrator in the matter of procedure only. It is true that at p. 935 of the judgment, Wanchoo, J., observed :"Further S. 12 provides that where there is a dispute as to title and such question has not already been determined by any competent Court, the Consolidation Officer has to refer the question for determination to the Civil Judge who thereafter will refer it to the arbitrator. The arbitrator then proceeds in the manner provided by R. 73 (sic 63) and gives a hearing to the parties and takes evidence both oral and documentary before making his award; and S. 37 of the Act makes the Arbitration Act applicable to the proceedings before the arbitrator in the matter of procedure."We are unable to agree with Mr. Goyal that this passage in any manner decides the point which is before us. This Court in Attar Singhs case, (1959) Supp (1) SCR 928 : (AIR 1959 SC 564 ), was concerned with the validity of the Act, and ground No. 2 which was urged before the Court was :"Sections 8, 9 and 10 read with S. 49 of the Act provide a procedure for the correction and revision of revenue records for villages under consolidation which is vitally different from that applicable to villages not under consolidation, and there is thus discrimination which offends Art. 14 of the Constitution."In dealing with this ground, Wanchoo, J., made the observations which have been set out above. There was no question there of considering the effect of Ss. 46 and 47 of the Arbitration Act, or considering whether S. 39 of the Arbitration Act applies to Arbitrations under S. 12 (4) of the Act.8. Mr. Goyal also laid a great dead of emphasis on S. 12 (6) of the Act which provides that the decision of the arbitrator under sub-s. (4) shall be final. In our opinion, S. 12 (6) must be read with S. 37 of the Act, and if it is so read it is quite clear that what is made final is the decision of the arbitrator as it emerges after appropriate proceedings if any, have been taken under the provisions of the Arbitration Act.
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6. In our opinion, the High Court arrived at the correct conclusion in ILR (1959) 1 All 354: (AIR 19,59 AI1 717) and Sayeed Ullah Khan v Temporary Civil Judge of Sultanpur AIR 1959 All 330 . Section 12 (4) of the Act provides for a statutory arbitration and S. 37 of the Act provides for the appointment of an arbitrator by the State Government. It seems to us that apart from the question of appointment of the arbitrator, in all other respects the matter referred to, i.e., the question of title referred to under S. 12 (4), shall be determined in accordance with the provisions of the Arbitration Act. Section 37 of the Act does not make any distinction between provisions like S. 39 and S. 15 of the Arbitration Act. Further, the effect of S. 46 and S. 47 of the Arbitration Act is that all the provisions of the Arbitration Act except sub-s (1) of Section 6, Ss. 7. 12, 36 and 37, apply to arbitrations under the Consolidation of Holdings Act. Section 37 of the Act cannot be held as providing anything inconsistent with this. In our opinion, the effect of S. 37 of the Act, read with Ss. 46 and 47 of the Arbitration Act, is inter alia to apply Ss 15 and 39 of the Arbitration Act to the proceedings under the Act. It is not necessary to rely on Rr. 63 and 64 of the Uttar Pradesh Consolidation of Holdings Rules, l954 but we may mention that they proceed on the basis that Ss 15, 16 and 30 of the Arbitration Act apply to the arbitration proceedings under theour opinion, S. 12 (6) must be read with S. 37 of the Act, and if it is so read it is quite clear that what is made final is the decision of the arbitrator as it emerges after appropriate proceedings if any, have been taken under the provisions of the Arbitrationare unable to agree with Mr. Goyal that this passage in any manner decides the point which is before us.
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I.T.C. Ltd. Workers Welfare Association and Anr Vs. The Management of I.T.C. Ltd. and Ors | of life pension cannot be said to be arbitrary or irrational as such fixation becomes imperative from financial point of view and moreover the date coincided with the Platinum Jubilee Celebrations of the Company. The date was not picked up from the hat, the High Court observed. The High Court approached the issue more from the angle of Article 14 and referred to the decisions in which the States action in making the classification for the purpose of extending the pensionary benefits or additional benefits fell for consideration of this Court. Strictly speaking, such approach is not apt and appropriate. The present case is one where Article 14 cannot be applied as the respondent is not State or other Authority. On this, there is practically no dispute. If so, the approach should be as we indicated earlier; that is to say, whether the settlement can be said to be unjust, unfair or vitiated by mala fides. No mala fides is imputed to anyone. What remains to be consideration is whether it is fair and just, viewed from a broader angle and taking a holistic view of the matter. It is true that certain considerations germane to Article 14 may also be germane while deciding the issue whether the settlement is just and fair. But, it does not follow that the doctrine of classification and the principles associated with it should be projected wholesale into the process of consideration of justness and fairness of the settlement. There may be some overlapping and there may be some facets which apply in common to determine the crucial issue whether the settlement on the whole is just and fair, but that is not to say that the settlement is liable to be tested on the touchstone of Article 14, more so when it has no application in the instant case. Keeping this distinction in mind and considering the grounds of attack on the particular clause of settlement, we are unable to hold that it is vulnerable to challenge on any well-recognised grounds. The facts on record do not establish that the settlement which was reached was palpably unjust or unfair from the point of the entire body of workmen. The preponderence of circumstances and the material on record do not in our view displace the presumption attached to the settlement arrived at in the course of conciliation. 25. Firstly, it is to be borne in mind that there was no challenge at any time to any of the terms of the settlement other than the clause relating to pension in so far as it confines the benefit of life-long pension only to those who retire on or after 24.08.1986. Secondly, we must give due weight to the fact that the settlement was reached as a result of collective bargaining and with the assistance of Conciliation officer. Invariably, there would be an element of give and take in the deal leading to the settlement. Granting the benefit of life-long pension prospectively or with limited retro-active effect does not make the settlement unjust or unfair. It is certainly beneficial to the workmen in service and those who retired few months earlier. The mere fact that the Management did not go the whole hog to extend the benefit to all the retired employees does not impart an element of unjustness or unreasonableness to the settlement. Financial implications apart, the benefits granted to workmen under various other clauses of settlement have to be kept in view. This particular clause relating to pension cannot be considered in isolation. The learned senior counsel for the petitioners argued that there was no justification in making a sub-classification amongst the retired employees by giving the benefit to those who retired only between 24.08.1986 and the date of settlement. In our view, conferment of such additional benefit to workmen who retired after the date of platinum jubilee celebration and before the date of culmination of settlement, far from making it unjust or irrational, tantamounts to extending benefit to some more workmen who would not have got it otherwise, if the decision was implemented prospectively. Apparently, such decision was taken to arrive at an amicable settlement and to comply with the demands of the workmen to the extent feasible and practicable. The argument that either all the retired employees should be given the benefit or none at all cannot cut ice if the principles of collective bargaining and justness of the settlement viewed as a whole is kept in view. There is nothing which is palpably unjust or irrational in giving the benefit only to those who retired during and after the platinum jubilee year. Though there was some dispute as to the correctness of the date on which the platinum jubilee falls, on material has been placed before us excepting the date of incorporation of the Company to establish the version of the appellants in this regard. Picking up that date by going a little backwards from the date of settlement cannot be regarded as a whimsical or arbitrary step, more so when it was down with the consent of large majority of workmen. The Tribunal while adjudicating the dispute and the High Court while exercising its jurisdiction under Art. 226/227 should be circumspect and cautious in disturbing the terms of settlement founded on collective bargaining and conciliation. The adjudicator or industrial dispute could not have directed the benefit to be extended to all the retired employees by substituting its own views to those reflected in the settlement, on an application of the usual principles governing industrial adjudication.26. Another factor to be taken into account is that the recognised union of workmen which espoused the cause of the retired employees and contested the issue before the Industrial Tribunal did not pursue the matter further obviously because the felt that in the larger interests of maintaining industrial harmony and peace, the matter should be left off at that state. A member of that recognised union had taken up the issue before the High Court. | 0[ds]14. In answering the reference the industrial adjudicator has to keep in the forefront of his mind the settlement reached under Section 12(3) of the Industrial Disputes Act. Once it is found that the terms of the settlement operate in respect of the dispute raised before it, it is not open to the Industrial Tribunal to ignore the settlement or even belittle its effect by applying its mind independent of the settlement unless the settlement is found to be contrary to the mandatory provisions of the Act or unless it is found that there isto the norms by which the settlement could be subjected to limited judicial scrutiny. This is infact the approach of the Tribunal in the instant case. The High Court which examined the issue from a different angle as well was, in our view, justified in affirming the award of the Tribunal.Admittedly, the settlement arrived at in the instant case was in the course of conciliation proceedings and therefore it carries a presumption that it is just and fair. It becomes binding on all the parties to the dispute as well as the other workmen in the establishment to which the disputed relates and all other persons who may be subsequently employed in that establishment. An individual employee cannot seek to wriggle out of the settlement merely because it does not suit him.Having noted that the only objectionable feature of the settlement as found by the Tribunal was reduction of dearness allowance from cent per to 85 per cent, it was held that, that part of the settlement cannot be held to be invalid or inoperative. This proposition laid down in Herbertsons case was reiterated in K.C.P. Ltd. case (supra), approvingly citing the said decision. The passages in Herbertsons case were quoted in extenso and approved by thebench in TELCO case (supra) as well.22. What follows from a conspectus of these decisions is that a settlement which is a product of collective bargaining is entitled to due weight and consideration, more so when a settlement is arrived at in the course of conciliation proceedings. The settlement can only be ignored in exceptional circumstances viz. if it is demonstrably unjust, unfair or the result of mala fides such as corrupt motives on the part of those who were instrumental in effecting the settlement. The apart, the settlement has to be judged as a whole, taking an overall view. The various terms and clauses of settlement cannot be examined in piecemeal and in vacuum.23. Viewed in the light of these principles, it cannot be said that the settlement in the present case which is otherwise valid and just suffers from any legal infirmity merely for the reasons that one of the clauses in the settlement extends the benefits of life pension scheme only of the employees retiring after a particular date i.e. 24.8.1986. Exclusion of workmen retiring before that date is no ground to characterise the settlement an unjust or unfair. Of course, the allegations of mala fides such as corrupt motives have not been levelled against anyone and that aspect becomes irrelevantpresent case is one where Article 14 cannot be applied as the respondent is not State or other Authority. On this, there is practically no dispute. If so, the approach should be as we indicated earlier; that is to say, whether the settlement can be said to be unjust, unfair or vitiated by mala fides. No mala fides is imputed to anyone. What remains to be consideration is whether it is fair and just, viewed from a broader angle and taking a holistic view of the matter. It is true that certain considerations germane to Article 14 may also be germane while deciding the issue whether the settlement is just and fair. But, it does not follow that the doctrine of classification and the principles associated with it should be projected wholesale into the process of consideration of justness and fairness of the settlement. There may be some overlapping and there may be some facets which apply in common to determine the crucial issue whether the settlement on the whole is just and fair, but that is not to say that the settlement is liable to be tested on the touchstone of Article 14, more so when it has no application in the instant case. Keeping this distinction in mind and considering the grounds of attack on the particular clause of settlement, we are unable to hold that it is vulnerable to challenge on anygrounds. The facts on record do not establish that the settlement which was reached was palpably unjust or unfair from the point of the entire body of workmen. The preponderence of circumstances and the material on record do not in our view displace the presumption attached to the settlement arrived at in the course ofour view, conferment of such additional benefit to workmen who retired after the date of platinum jubilee celebration and before the date of culmination of settlement, far from making it unjust or irrational, tantamounts to extending benefit to some more workmen who would not have got it otherwise, if the decision was implemented prospectively. Apparently, such decision was taken to arrive at an amicable settlement and to comply with the demands of the workmen to the extent feasible and practicable. The argument that either all the retired employees should be given the benefit or none at all cannot cut ice if the principles of collective bargaining and justness of the settlement viewed as a whole is kept in view. There is nothing which is palpably unjust or irrational in giving the benefit only to those who retired during and after the platinum jubilee year. Though there was some dispute as to the correctness of the date on which the platinum jubilee falls, on material has been placed before us excepting the date of incorporation of the Company to establish the version of the appellants in this regard. Picking up that date by going a little backwards from the date of settlement cannot be regarded as a whimsical or arbitrary step, more so when it was down with the consent of large majority of workmen. The Tribunal while adjudicating the dispute and the High Court while exercising its jurisdiction under Art. 226/227 should be circumspect and cautious in disturbing the terms of settlement founded on collective bargaining and conciliation. The adjudicator or industrial dispute could not have directed the benefit to be extended to all the retired employees by substituting its own views to those reflected in the settlement, on an application of the usual principles governing industrial adjudication.26. Another factor to be taken into account is that the recognised union of workmen which espoused the cause of the retired employees and contested the issue before the Industrial Tribunal did not pursue the matter further obviously because the felt that in the larger interests of maintaining industrial harmony and peace, the matter should be left off at that state. A member of that recognised union had taken up the issue before the High Court. | 0 | 6,259 | 1,263 | ### 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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of life pension cannot be said to be arbitrary or irrational as such fixation becomes imperative from financial point of view and moreover the date coincided with the Platinum Jubilee Celebrations of the Company. The date was not picked up from the hat, the High Court observed. The High Court approached the issue more from the angle of Article 14 and referred to the decisions in which the States action in making the classification for the purpose of extending the pensionary benefits or additional benefits fell for consideration of this Court. Strictly speaking, such approach is not apt and appropriate. The present case is one where Article 14 cannot be applied as the respondent is not State or other Authority. On this, there is practically no dispute. If so, the approach should be as we indicated earlier; that is to say, whether the settlement can be said to be unjust, unfair or vitiated by mala fides. No mala fides is imputed to anyone. What remains to be consideration is whether it is fair and just, viewed from a broader angle and taking a holistic view of the matter. It is true that certain considerations germane to Article 14 may also be germane while deciding the issue whether the settlement is just and fair. But, it does not follow that the doctrine of classification and the principles associated with it should be projected wholesale into the process of consideration of justness and fairness of the settlement. There may be some overlapping and there may be some facets which apply in common to determine the crucial issue whether the settlement on the whole is just and fair, but that is not to say that the settlement is liable to be tested on the touchstone of Article 14, more so when it has no application in the instant case. Keeping this distinction in mind and considering the grounds of attack on the particular clause of settlement, we are unable to hold that it is vulnerable to challenge on any well-recognised grounds. The facts on record do not establish that the settlement which was reached was palpably unjust or unfair from the point of the entire body of workmen. The preponderence of circumstances and the material on record do not in our view displace the presumption attached to the settlement arrived at in the course of conciliation. 25. Firstly, it is to be borne in mind that there was no challenge at any time to any of the terms of the settlement other than the clause relating to pension in so far as it confines the benefit of life-long pension only to those who retire on or after 24.08.1986. Secondly, we must give due weight to the fact that the settlement was reached as a result of collective bargaining and with the assistance of Conciliation officer. Invariably, there would be an element of give and take in the deal leading to the settlement. Granting the benefit of life-long pension prospectively or with limited retro-active effect does not make the settlement unjust or unfair. It is certainly beneficial to the workmen in service and those who retired few months earlier. The mere fact that the Management did not go the whole hog to extend the benefit to all the retired employees does not impart an element of unjustness or unreasonableness to the settlement. Financial implications apart, the benefits granted to workmen under various other clauses of settlement have to be kept in view. This particular clause relating to pension cannot be considered in isolation. The learned senior counsel for the petitioners argued that there was no justification in making a sub-classification amongst the retired employees by giving the benefit to those who retired only between 24.08.1986 and the date of settlement. In our view, conferment of such additional benefit to workmen who retired after the date of platinum jubilee celebration and before the date of culmination of settlement, far from making it unjust or irrational, tantamounts to extending benefit to some more workmen who would not have got it otherwise, if the decision was implemented prospectively. Apparently, such decision was taken to arrive at an amicable settlement and to comply with the demands of the workmen to the extent feasible and practicable. The argument that either all the retired employees should be given the benefit or none at all cannot cut ice if the principles of collective bargaining and justness of the settlement viewed as a whole is kept in view. There is nothing which is palpably unjust or irrational in giving the benefit only to those who retired during and after the platinum jubilee year. Though there was some dispute as to the correctness of the date on which the platinum jubilee falls, on material has been placed before us excepting the date of incorporation of the Company to establish the version of the appellants in this regard. Picking up that date by going a little backwards from the date of settlement cannot be regarded as a whimsical or arbitrary step, more so when it was down with the consent of large majority of workmen. The Tribunal while adjudicating the dispute and the High Court while exercising its jurisdiction under Art. 226/227 should be circumspect and cautious in disturbing the terms of settlement founded on collective bargaining and conciliation. The adjudicator or industrial dispute could not have directed the benefit to be extended to all the retired employees by substituting its own views to those reflected in the settlement, on an application of the usual principles governing industrial adjudication.26. Another factor to be taken into account is that the recognised union of workmen which espoused the cause of the retired employees and contested the issue before the Industrial Tribunal did not pursue the matter further obviously because the felt that in the larger interests of maintaining industrial harmony and peace, the matter should be left off at that state. A member of that recognised union had taken up the issue before the High Court.
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### Explanation:
binding on all the parties to the dispute as well as the other workmen in the establishment to which the disputed relates and all other persons who may be subsequently employed in that establishment. An individual employee cannot seek to wriggle out of the settlement merely because it does not suit him.Having noted that the only objectionable feature of the settlement as found by the Tribunal was reduction of dearness allowance from cent per to 85 per cent, it was held that, that part of the settlement cannot be held to be invalid or inoperative. This proposition laid down in Herbertsons case was reiterated in K.C.P. Ltd. case (supra), approvingly citing the said decision. The passages in Herbertsons case were quoted in extenso and approved by thebench in TELCO case (supra) as well.22. What follows from a conspectus of these decisions is that a settlement which is a product of collective bargaining is entitled to due weight and consideration, more so when a settlement is arrived at in the course of conciliation proceedings. The settlement can only be ignored in exceptional circumstances viz. if it is demonstrably unjust, unfair or the result of mala fides such as corrupt motives on the part of those who were instrumental in effecting the settlement. The apart, the settlement has to be judged as a whole, taking an overall view. The various terms and clauses of settlement cannot be examined in piecemeal and in vacuum.23. Viewed in the light of these principles, it cannot be said that the settlement in the present case which is otherwise valid and just suffers from any legal infirmity merely for the reasons that one of the clauses in the settlement extends the benefits of life pension scheme only of the employees retiring after a particular date i.e. 24.8.1986. Exclusion of workmen retiring before that date is no ground to characterise the settlement an unjust or unfair. Of course, the allegations of mala fides such as corrupt motives have not been levelled against anyone and that aspect becomes irrelevantpresent case is one where Article 14 cannot be applied as the respondent is not State or other Authority. On this, there is practically no dispute. If so, the approach should be as we indicated earlier; that is to say, whether the settlement can be said to be unjust, unfair or vitiated by mala fides. No mala fides is imputed to anyone. What remains to be consideration is whether it is fair and just, viewed from a broader angle and taking a holistic view of the matter. It is true that certain considerations germane to Article 14 may also be germane while deciding the issue whether the settlement is just and fair. But, it does not follow that the doctrine of classification and the principles associated with it should be projected wholesale into the process of consideration of justness and fairness of the settlement. There may be some overlapping and there may be some facets which apply in common to determine the crucial issue whether the settlement on the whole is just and fair, but that is not to say that the settlement is liable to be tested on the touchstone of Article 14, more so when it has no application in the instant case. Keeping this distinction in mind and considering the grounds of attack on the particular clause of settlement, we are unable to hold that it is vulnerable to challenge on anygrounds. The facts on record do not establish that the settlement which was reached was palpably unjust or unfair from the point of the entire body of workmen. The preponderence of circumstances and the material on record do not in our view displace the presumption attached to the settlement arrived at in the course ofour view, conferment of such additional benefit to workmen who retired after the date of platinum jubilee celebration and before the date of culmination of settlement, far from making it unjust or irrational, tantamounts to extending benefit to some more workmen who would not have got it otherwise, if the decision was implemented prospectively. Apparently, such decision was taken to arrive at an amicable settlement and to comply with the demands of the workmen to the extent feasible and practicable. The argument that either all the retired employees should be given the benefit or none at all cannot cut ice if the principles of collective bargaining and justness of the settlement viewed as a whole is kept in view. There is nothing which is palpably unjust or irrational in giving the benefit only to those who retired during and after the platinum jubilee year. Though there was some dispute as to the correctness of the date on which the platinum jubilee falls, on material has been placed before us excepting the date of incorporation of the Company to establish the version of the appellants in this regard. Picking up that date by going a little backwards from the date of settlement cannot be regarded as a whimsical or arbitrary step, more so when it was down with the consent of large majority of workmen. The Tribunal while adjudicating the dispute and the High Court while exercising its jurisdiction under Art. 226/227 should be circumspect and cautious in disturbing the terms of settlement founded on collective bargaining and conciliation. The adjudicator or industrial dispute could not have directed the benefit to be extended to all the retired employees by substituting its own views to those reflected in the settlement, on an application of the usual principles governing industrial adjudication.26. Another factor to be taken into account is that the recognised union of workmen which espoused the cause of the retired employees and contested the issue before the Industrial Tribunal did not pursue the matter further obviously because the felt that in the larger interests of maintaining industrial harmony and peace, the matter should be left off at that state. A member of that recognised union had taken up the issue before the High Court.
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Baburam Shantaram More Vs. Bombay Housing Board and Another | applied to any land or building belonging to or vesting in the Board under or the purposes of this Act;(b) shall not apply nor shall be deemed to have ever applied as against the Board to any tenancies or other like relationship created by the Board in respect of such land or building;(c) but shall apply to any land or building let to the Board".4. The trial Court held that the Board was a local authority within the meaning of Section 4 of the Bombay Rent Act and that that Section did not contravene the provisions of Article 14 of the Constitution and accordingly on the 14 February 1952 passed an order for delivery of possession of the two rooms to the Board but directed that the warrant for possession should not be issued until the 15th May 1952.The petitioner moved the High Court in revision. The High Court found that it was difficult to hold that the Board was a local authority but held that Section "3-A introduced by the amending Act had retrospectively extended the exemption contained in Section 4 of the Bombay Rent Act to the Board. The High Court further held that there had been no infraction of the petitioners fundamental right under Article 14 and dismissed the application for revision. The petitioner applied to the Bombay High Court for leave to appeal to this court but that application was rejected.The petitioner has now applied before us for special leave to appeal against order of the High Court, he also made a substantive application under Article 32 for enforcement of his fundamental rights. Both these applications have been posted together before us for hearing and disposal.5. The only point urged before us by learned counsel appearing for the petitioner is that the said Section 3-A which exempts lands or buildings belonging to or vested in the Board from the operation of the Bombay Rent Act offends against the equal protection clause of the Constitution. He points out that there are in Bombay numerous Co-operative Housing Societies incorporated under the Co-operative Societies Act which are similarly situated and whose object is, also to solve housing problem but their lands and buildings are not exempted from the operation of the Bombay Rent Act. The result is that while the tenants of those Co-operative Housing Societies are fully protected by the Bombay Rent Act against enhancement of rent and ejectment, the tenants of the Board are, by virtue of Section 3-A, denied, the protection of the Bombay Rent Act.The Co-operative Societies Act does not in terms bring about any relationship of landlord and tenant between a Co-operative Housing Society incorporated under that Act and its members. There is nothing in that Act to indicate that any of the members of any of the Co-operative Housing Societies is a tenant of such society. No lease or other document has been produced in support of the suggestion that the Co-operative Housing Societies have any tenant at all. Further, though these Co-operative Housing Societies are no doubt incorporate bodies, they nevertheless may earn profits which may be distributed amongst their members.The Board, on the other hand, is an incorporated body brought into existence for the purpose of framing housing schemes to solve the problem of acute shortage of accommodation in Bombay. There are no shareholders interested in the distribution of any profit. It is under the control of the Government and acts under the orders of the Government. In effect, it is Government sponsored body not having any profit making motive. No material has been placed before us which may even remotely be regarded as suggesting much less proving, that the Co-operative Housing Societies or their members stand similarly situated vis-a-vis the Board and its tenants. The petitioner, therefore, cannot sustain his complaint of discrimination on this ground.6. Learned counsel for the petitioner then said that the effect of Section 3-A is to extend the benefit of the exemption of Section 4 of the Bombay Rent Act to the Board which, in other words, implies that the name of the Board has been added in Section 4 after the local authority. The contention is that Section 4 discrimination against the tenants of properties belonging to the Government, local authority or the Board in that these tenants are denied the benefits of the Bombay Rent Act which are available to all other tenants in Bombay.There can be no question that this exemption is given by Section 4 to certain classes of tenants and this classification is based on an intelligible differentia which distinguishes them from other tenants and this differentia has a rational relation to the object sought to be achieved by the Act. It is the business of the Government to solve the accommodation problem and satisfy the public need of housing accommodation. It was for the purpose of achieving this object that the Board was incorporated and established. It is not to be expected that the Government or local authority or the Board would be actuated by any profit making motive so as to unduly enhance the rents or eject the tenants from their respective properties as private landlords are or are likely to be. Therefore, the tenants of the Govt. or local authority or the Board are not in need of such protection as the tenants of private landlords are and this circumstance is a cogent basis for differentiation.The two classes of tenants are not by force of circumstances placed on an equal footing and the tenants of the Government or local authority or the Board cannot, therefore, complain of any denial of equality before the law or of equal protection of the law. There is here no real discrimination, for the two classes are not similarly situated. Neither Section 4 of the Bombay Rent Act nor Section 3-A of the Bombay Housing Rent Act can, therefore, be challenged as unconstitutional on the ground of contravention of Article 14 of the Constitution.7. No other point has been urged before us. | 0[ds]The Board, on the other hand, is an incorporated body brought into existence for the purpose of framing housing schemes to solve the problem of acute shortage of accommodation in Bombay. There are no shareholders interested in the distribution of any profit. It is under the control of the Government and acts under the orders of the Government. In effect, it is Government sponsored body not having any profit making motive. No material has been placed before us which may even remotely be regarded as suggesting much less proving, that the Co-operative Housing Societies or their members stand similarly situated vis-a-vis the Board and its tenants. The petitioner, therefore, cannot sustain his complaint of discrimination on thiscan be no question that this exemption is given by Section 4 to certain classes of tenants and this classification is based on an intelligible differentia which distinguishes them from other tenants and this differentia has a rational relation to the object sought to be achieved by the Act. It is the business of the Government to solve the accommodation problem and satisfy the public need of housing accommodation. It was for the purpose of achieving this object that the Board was incorporated and established. It is not to be expected that the Government or local authority or the Board would be actuated by any profit making motive so as to unduly enhance the rents or eject the tenants from their respective properties as private landlords are or are likely to be. Therefore, the tenants of the Govt. or local authority or the Board are not in need of such protection as the tenants of private landlords are and this circumstance is a cogent basis for differentiation.The two classes of tenants are not by force of circumstances placed on an equal footing and the tenants of the Government or local authority or the Board cannot, therefore, complain of any denial of equality before the law or of equal protection of the law. There is here no real discrimination, for the two classes are not similarly situated. Neither Section 4 of the Bombay Rent Act nor Section 3-A of the Bombay Housing Rent Act can, therefore, be challenged as unconstitutional on the ground of contravention of Article 14 of the Constitution. | 0 | 1,880 | 407 | ### 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:
applied to any land or building belonging to or vesting in the Board under or the purposes of this Act;(b) shall not apply nor shall be deemed to have ever applied as against the Board to any tenancies or other like relationship created by the Board in respect of such land or building;(c) but shall apply to any land or building let to the Board".4. The trial Court held that the Board was a local authority within the meaning of Section 4 of the Bombay Rent Act and that that Section did not contravene the provisions of Article 14 of the Constitution and accordingly on the 14 February 1952 passed an order for delivery of possession of the two rooms to the Board but directed that the warrant for possession should not be issued until the 15th May 1952.The petitioner moved the High Court in revision. The High Court found that it was difficult to hold that the Board was a local authority but held that Section "3-A introduced by the amending Act had retrospectively extended the exemption contained in Section 4 of the Bombay Rent Act to the Board. The High Court further held that there had been no infraction of the petitioners fundamental right under Article 14 and dismissed the application for revision. The petitioner applied to the Bombay High Court for leave to appeal to this court but that application was rejected.The petitioner has now applied before us for special leave to appeal against order of the High Court, he also made a substantive application under Article 32 for enforcement of his fundamental rights. Both these applications have been posted together before us for hearing and disposal.5. The only point urged before us by learned counsel appearing for the petitioner is that the said Section 3-A which exempts lands or buildings belonging to or vested in the Board from the operation of the Bombay Rent Act offends against the equal protection clause of the Constitution. He points out that there are in Bombay numerous Co-operative Housing Societies incorporated under the Co-operative Societies Act which are similarly situated and whose object is, also to solve housing problem but their lands and buildings are not exempted from the operation of the Bombay Rent Act. The result is that while the tenants of those Co-operative Housing Societies are fully protected by the Bombay Rent Act against enhancement of rent and ejectment, the tenants of the Board are, by virtue of Section 3-A, denied, the protection of the Bombay Rent Act.The Co-operative Societies Act does not in terms bring about any relationship of landlord and tenant between a Co-operative Housing Society incorporated under that Act and its members. There is nothing in that Act to indicate that any of the members of any of the Co-operative Housing Societies is a tenant of such society. No lease or other document has been produced in support of the suggestion that the Co-operative Housing Societies have any tenant at all. Further, though these Co-operative Housing Societies are no doubt incorporate bodies, they nevertheless may earn profits which may be distributed amongst their members.The Board, on the other hand, is an incorporated body brought into existence for the purpose of framing housing schemes to solve the problem of acute shortage of accommodation in Bombay. There are no shareholders interested in the distribution of any profit. It is under the control of the Government and acts under the orders of the Government. In effect, it is Government sponsored body not having any profit making motive. No material has been placed before us which may even remotely be regarded as suggesting much less proving, that the Co-operative Housing Societies or their members stand similarly situated vis-a-vis the Board and its tenants. The petitioner, therefore, cannot sustain his complaint of discrimination on this ground.6. Learned counsel for the petitioner then said that the effect of Section 3-A is to extend the benefit of the exemption of Section 4 of the Bombay Rent Act to the Board which, in other words, implies that the name of the Board has been added in Section 4 after the local authority. The contention is that Section 4 discrimination against the tenants of properties belonging to the Government, local authority or the Board in that these tenants are denied the benefits of the Bombay Rent Act which are available to all other tenants in Bombay.There can be no question that this exemption is given by Section 4 to certain classes of tenants and this classification is based on an intelligible differentia which distinguishes them from other tenants and this differentia has a rational relation to the object sought to be achieved by the Act. It is the business of the Government to solve the accommodation problem and satisfy the public need of housing accommodation. It was for the purpose of achieving this object that the Board was incorporated and established. It is not to be expected that the Government or local authority or the Board would be actuated by any profit making motive so as to unduly enhance the rents or eject the tenants from their respective properties as private landlords are or are likely to be. Therefore, the tenants of the Govt. or local authority or the Board are not in need of such protection as the tenants of private landlords are and this circumstance is a cogent basis for differentiation.The two classes of tenants are not by force of circumstances placed on an equal footing and the tenants of the Government or local authority or the Board cannot, therefore, complain of any denial of equality before the law or of equal protection of the law. There is here no real discrimination, for the two classes are not similarly situated. Neither Section 4 of the Bombay Rent Act nor Section 3-A of the Bombay Housing Rent Act can, therefore, be challenged as unconstitutional on the ground of contravention of Article 14 of the Constitution.7. No other point has been urged before us.
### Response:
0
### Explanation:
The Board, on the other hand, is an incorporated body brought into existence for the purpose of framing housing schemes to solve the problem of acute shortage of accommodation in Bombay. There are no shareholders interested in the distribution of any profit. It is under the control of the Government and acts under the orders of the Government. In effect, it is Government sponsored body not having any profit making motive. No material has been placed before us which may even remotely be regarded as suggesting much less proving, that the Co-operative Housing Societies or their members stand similarly situated vis-a-vis the Board and its tenants. The petitioner, therefore, cannot sustain his complaint of discrimination on thiscan be no question that this exemption is given by Section 4 to certain classes of tenants and this classification is based on an intelligible differentia which distinguishes them from other tenants and this differentia has a rational relation to the object sought to be achieved by the Act. It is the business of the Government to solve the accommodation problem and satisfy the public need of housing accommodation. It was for the purpose of achieving this object that the Board was incorporated and established. It is not to be expected that the Government or local authority or the Board would be actuated by any profit making motive so as to unduly enhance the rents or eject the tenants from their respective properties as private landlords are or are likely to be. Therefore, the tenants of the Govt. or local authority or the Board are not in need of such protection as the tenants of private landlords are and this circumstance is a cogent basis for differentiation.The two classes of tenants are not by force of circumstances placed on an equal footing and the tenants of the Government or local authority or the Board cannot, therefore, complain of any denial of equality before the law or of equal protection of the law. There is here no real discrimination, for the two classes are not similarly situated. Neither Section 4 of the Bombay Rent Act nor Section 3-A of the Bombay Housing Rent Act can, therefore, be challenged as unconstitutional on the ground of contravention of Article 14 of the Constitution.
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Hythro Power Corporation Ltd Vs. Delhi Transco Ltd | the Act exercise purely administrative functions and it is not open to him to discharge any judicial function of adjudicating the dispute even regarding the existence of arbitration agreement. Whether the letters and exchange of correspondence between the parties, pursuant to the NIT, can constitute a contract and an arbitration agreement can be read into the same in terms of Section 7(4)(b) of the Act was a question solely within the jurisdiction of arbitral tribunal under Section 16 of the Act. See decision in the case of Nimet Resources Inc. vs. Essar Steels Ltd. [2000 (7) SCC 497 ] wherein Justice Rajendra Babu of this Court acting as designate of the Chief Justice of India while exercising powers under Section 11 of the Act, observed thus:- "I am conscious of the fact that M. Jagannadha Rao, J. in Wellington Associates Ltd. vs. Kirti Mehta, (2000) 4 SCC 272 held that the jurisdiction of the nominee of the Chief Justice of India to decide the question is not excluded by Section 16 of the Act and such a power can be exercised in a suitable case. On this basis, it is no doubt permissible under Section 11 of the Act to decide a question as to the existence or otherwise of the arbitration agreement but when the correspondence or exchange of documents between the parties are not clear as to the existence or no-existence of an arbitration agreement, in terms of Section 7 of the Act the appropriate course would be that the arbitrator should decide such a question under Section 16 of the Act rather the Chief Justice of India or his nominee under Section 11 of the Act.I take this view because the power that is exercised by the nominee of the Chief Justice of India under Section 11 of the Act is in the nature of an administrative order. In such a case, unless the Chief Justice of India or his nominee can be absolutely sure that there exists no arbitration agreement between the parties it would be difficult to state that there should be no reference to arbitration. Further such a view may not be conclusive in view of the nature of the powers that are exercised under Section 11(6) of the Act." 10. In the latest decision of two-Judge Bench of this Court in the case of Food Corporation of India vs. Indian Council of Arbitration & Ors. etc. etc., [JT 2003 (5) SC 480 ], similar view was taken. In that case reference of dispute to arbitration was opposed on the ground that under the arbitration clause the arbitrator was to be nominated by the Food Corporation of India as the employer and not by the Indian Council of Arbitration which was the Institution from whose panel the arbitrator was to be selected. The designate of the Chief Justice under Section 11 refused to make a reference and the High Court in Writ Petition by an elaborate judgment expressed its opinion on the dispute that the Food Corporation of India should have nominated the arbitrator from the panel of Indian Council of arbitration. In the context of that dispute, this Court observed thus: "Unfortunately the High Court in this case seems to have proceeded to adopt an adjudicatory role and returned a verdict recording reasons as to the very existence or otherwise of the agreement as well as the tenability and legality or otherwise of making a reference to an arbitration.""As indicated earlier even assuming without accepting for purposes of consideration that there is any infirmity in the arbitration clause which go to undermine as claimed by the respondents the legality, propriety and validity of the constitution of the Tribunal and/or even if there be any objections as to the existence of an enforceable or valid arbitration agreement, it had to be adjudicated by the very Arbitral Tribunal after a reference is made to it on being so constituted and it is not for the ICA or the learned Judge in the High Court to undertake this impermissible adjudicatory task of adjudging highly contentious issues between the parties. As observed by the Constitution Bench of this Court, there is nothing in Section 11 of the 1996 Act that requires the party other than the party making the request to be noticed and that it does neither contemplate a response from the other party nor contemplate and decision by the Chief Justice or his nominee on any controversy that the other party may raise, even in regard to its failure to appoint an Arbitrator within the stipulated period. The legislative intent underlying the 1996 Act is to minimize the supervisory role of courts in arbitral process and nominate/appoint the Arbitrator without wasting time, leaving all contentious issues to be urged and agitated before the Arbitral Tribunal itself. Even under the old law, common sense approach alone was commended for being adopted in construing an arbitration clause more to perpetuate the intention of parties to get their disputes resolved through the alternate disputes redressal method of arbitration rather than thwart it by adopting a narrow, pedantic and legalistic interpretation. 11. Keeping in view the law as settled by this Court, the designate of the Chief Justice acting under Section 11 of the Act and the Division Bench of the High Court in exercise of power under Article 226 of the Constitution both acted under a misconception of law and wrongly held that the disputes were not referable to the arbitration. The appellant sought reference of its disputes with the respondent/company for adjudication through the arbitration in accordance with arbitration clause in the alleged agreement arrived at between them. Whether on the facts mentioned above an arbitration agreement can be said to have existed by recourse to arbitration clause in NIT was itself a dispute which deserved to be referred to the arbitral Tribunal in accordance with the arbitration clause. Section 16 empowers the arbitral Tribunal to decide the question of existence and validity of the arbitration agreement. | 1[ds]find that the designate of the Chief Justice acting administratively under Section 11 and the Division Bench of the High Court exercising powers under Article 226 of the Constitution were clearly in error in adjudicating upon the dispute regarding the validity and existence of the arbitration agreement and holding that the dispute was not referable to arbitration.Keeping in view the law as settled by this Court, the designate of the Chief Justice acting under Section 11 of the Act and the Division Bench of the High Court in exercise of power under Article 226 of the Constitution both acted under a misconception of law and wrongly held that the disputes were not referable to the arbitration. The appellant sought reference of its disputes with the respondent/company for adjudication through the arbitration in accordance with arbitration clause in the alleged agreement arrived at between them. Whether on the facts mentioned above an arbitration agreement can be said to have existed by recourse to arbitration clause in NIT was itself a dispute which deserved to be referred to the arbitral Tribunal in accordance with the arbitration clause. Section 16 empowers the arbitral Tribunal to decide the question of existence and validity of the arbitration | 1 | 1,821 | 210 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
the Act exercise purely administrative functions and it is not open to him to discharge any judicial function of adjudicating the dispute even regarding the existence of arbitration agreement. Whether the letters and exchange of correspondence between the parties, pursuant to the NIT, can constitute a contract and an arbitration agreement can be read into the same in terms of Section 7(4)(b) of the Act was a question solely within the jurisdiction of arbitral tribunal under Section 16 of the Act. See decision in the case of Nimet Resources Inc. vs. Essar Steels Ltd. [2000 (7) SCC 497 ] wherein Justice Rajendra Babu of this Court acting as designate of the Chief Justice of India while exercising powers under Section 11 of the Act, observed thus:- "I am conscious of the fact that M. Jagannadha Rao, J. in Wellington Associates Ltd. vs. Kirti Mehta, (2000) 4 SCC 272 held that the jurisdiction of the nominee of the Chief Justice of India to decide the question is not excluded by Section 16 of the Act and such a power can be exercised in a suitable case. On this basis, it is no doubt permissible under Section 11 of the Act to decide a question as to the existence or otherwise of the arbitration agreement but when the correspondence or exchange of documents between the parties are not clear as to the existence or no-existence of an arbitration agreement, in terms of Section 7 of the Act the appropriate course would be that the arbitrator should decide such a question under Section 16 of the Act rather the Chief Justice of India or his nominee under Section 11 of the Act.I take this view because the power that is exercised by the nominee of the Chief Justice of India under Section 11 of the Act is in the nature of an administrative order. In such a case, unless the Chief Justice of India or his nominee can be absolutely sure that there exists no arbitration agreement between the parties it would be difficult to state that there should be no reference to arbitration. Further such a view may not be conclusive in view of the nature of the powers that are exercised under Section 11(6) of the Act." 10. In the latest decision of two-Judge Bench of this Court in the case of Food Corporation of India vs. Indian Council of Arbitration & Ors. etc. etc., [JT 2003 (5) SC 480 ], similar view was taken. In that case reference of dispute to arbitration was opposed on the ground that under the arbitration clause the arbitrator was to be nominated by the Food Corporation of India as the employer and not by the Indian Council of Arbitration which was the Institution from whose panel the arbitrator was to be selected. The designate of the Chief Justice under Section 11 refused to make a reference and the High Court in Writ Petition by an elaborate judgment expressed its opinion on the dispute that the Food Corporation of India should have nominated the arbitrator from the panel of Indian Council of arbitration. In the context of that dispute, this Court observed thus: "Unfortunately the High Court in this case seems to have proceeded to adopt an adjudicatory role and returned a verdict recording reasons as to the very existence or otherwise of the agreement as well as the tenability and legality or otherwise of making a reference to an arbitration.""As indicated earlier even assuming without accepting for purposes of consideration that there is any infirmity in the arbitration clause which go to undermine as claimed by the respondents the legality, propriety and validity of the constitution of the Tribunal and/or even if there be any objections as to the existence of an enforceable or valid arbitration agreement, it had to be adjudicated by the very Arbitral Tribunal after a reference is made to it on being so constituted and it is not for the ICA or the learned Judge in the High Court to undertake this impermissible adjudicatory task of adjudging highly contentious issues between the parties. As observed by the Constitution Bench of this Court, there is nothing in Section 11 of the 1996 Act that requires the party other than the party making the request to be noticed and that it does neither contemplate a response from the other party nor contemplate and decision by the Chief Justice or his nominee on any controversy that the other party may raise, even in regard to its failure to appoint an Arbitrator within the stipulated period. The legislative intent underlying the 1996 Act is to minimize the supervisory role of courts in arbitral process and nominate/appoint the Arbitrator without wasting time, leaving all contentious issues to be urged and agitated before the Arbitral Tribunal itself. Even under the old law, common sense approach alone was commended for being adopted in construing an arbitration clause more to perpetuate the intention of parties to get their disputes resolved through the alternate disputes redressal method of arbitration rather than thwart it by adopting a narrow, pedantic and legalistic interpretation. 11. Keeping in view the law as settled by this Court, the designate of the Chief Justice acting under Section 11 of the Act and the Division Bench of the High Court in exercise of power under Article 226 of the Constitution both acted under a misconception of law and wrongly held that the disputes were not referable to the arbitration. The appellant sought reference of its disputes with the respondent/company for adjudication through the arbitration in accordance with arbitration clause in the alleged agreement arrived at between them. Whether on the facts mentioned above an arbitration agreement can be said to have existed by recourse to arbitration clause in NIT was itself a dispute which deserved to be referred to the arbitral Tribunal in accordance with the arbitration clause. Section 16 empowers the arbitral Tribunal to decide the question of existence and validity of the arbitration agreement.
### Response:
1
### Explanation:
find that the designate of the Chief Justice acting administratively under Section 11 and the Division Bench of the High Court exercising powers under Article 226 of the Constitution were clearly in error in adjudicating upon the dispute regarding the validity and existence of the arbitration agreement and holding that the dispute was not referable to arbitration.Keeping in view the law as settled by this Court, the designate of the Chief Justice acting under Section 11 of the Act and the Division Bench of the High Court in exercise of power under Article 226 of the Constitution both acted under a misconception of law and wrongly held that the disputes were not referable to the arbitration. The appellant sought reference of its disputes with the respondent/company for adjudication through the arbitration in accordance with arbitration clause in the alleged agreement arrived at between them. Whether on the facts mentioned above an arbitration agreement can be said to have existed by recourse to arbitration clause in NIT was itself a dispute which deserved to be referred to the arbitral Tribunal in accordance with the arbitration clause. Section 16 empowers the arbitral Tribunal to decide the question of existence and validity of the arbitration
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DAMODAR LAL LOYA Vs. LEGAL REPRESENTATIVES OF MADAN LAL | A.K. Sikri, J. - We have heard the matter finally. Leave granted. 2. The facts which are required to be taken note of are briefly stated herein: 3. The matter pertains to fixation of standard rent in respect of property situated at Bhadada Bagh, Bhopalganj, Bhilwara, Rajasthan (hereinafter referred to as the suit property). The appellant herein, who is the owner and landlord of the suit property, had let out the same to one Madan Lal (since deceased), who is the predecessor-in-interest of the respondents herein. The appellant filed a suit for fixation of standard rent in the year 2001 on the ground that for the suit property, which was in excess of 15,500 square feet in the heart of Bhilwara city in Rajasthan, the rent paid by the respondents was too meagre. It may be noted that the respondent came into possession of the suit property some time in the year 1957. 4. It may also be noted, by way of background, that the appellant had filed eviction proceedings against the respondent way back in the year 1974. Though the trial Court had dismissed the said eviction suit, in appeal there-against, the eviction was ordered in favour of the appellant and against the respondent, some time in the year 2001. Against that, first appeal of the respondent was dismissed. The respondent filed second appeal in the High Court which was registered as Civil Second Appeal No. 251 of 2001. 5. After passing of the said eviction order, the appellant filed the aforesaid Civil Suit No. 25 of 2002 for fixation of the standard rent. This Suit was decreed by the Trial Court on 20.02.2013 fixing the rent at Rs. 5,000/- per month from November, 2001. Not satisfied with this fixation of the rent at that rate, the appellant filed first appeal before the Additional District Judge. This appeal was allowed and the standard rent was fixed by the Additional District Judge vide judgment dated 25.02.2015 at the rate of Rs. 2.50/- per square feet which comes to Rs. 38,750/- per month. 6. The appellant was still not satisfied with the said fixation of standard rent and wanted further enhancement. Therefore, he filed Civil Revision Petition No. 88 of 2015 in the High Court of Judicature for Rajasthan. Even the respondent challenged the same order by filing revision petition there-against. Both these revisions petitions have been decided by the High Court vide the impugned judgment dated 06.11.2015. 7. A perusal of the said judgment would show that the respondents had made a statement at the Bar that they were ready to vacate the premises in question and were willing to handover the peaceful and vacant possession of the premises on or before 30.06.2016. Having regard to this statement and noticing that since the respondents were willing to vacate the premises, the High Court had disposed of all three cases with the following directions: (A) The defendants-LRs of Madan Lal shall clear off arrears of rent by depositing 50% of the total arrears of rent due as determined by the first appellate court, after adjustment of the amount already deposited by them, as directed to be deposited by the order dated 06.05.2015 of this Court, within a period of three months; (B) The defendants are also directed, as they have undertaken, to hand over the peaceful and vacant possession of the entire land/plot in question to the plaintiff on or before 30.06.2016; (C) The defendants shall continue to pay monthly rent or mesne profits, as they are paying as of now, terms of the order of the first appellate court from November, 2015 till the date of handing over the vacant possession before 30.06.2015; (D) In view of the aforesaid, the substantial questions of law framed above in second appeal are not required to be answered on merits; and (E) This order will not form precedent for any other similar case between these parties or other parties, with same common party in this case. 8. The aforesaid order was challenged by the appellant on a short ground, viz., merely because respondent No. 1 agreed to vacate the premises was no reason for the High Court to deny the benefit of mesne profits. It was submitted that the appellant had filed the revision petition as he wanted further enhancement in the standard rent. On the contrary, by the impugned order, the High Court has mentioned that only 50 per cent of the standard rent as fixed by the Additional District Judge (which was an interim order) would be payable and the revision petition was not decided on merits. 9. We find substance in this argument raised by the learned counsel for the appellant. The facts noted above would disclose that there was a decree of eviction in favour of the appellant and against that the respondent had filed second appeal. Merely because the respondent agreed to vacate the premises and give the vacant possession, meaning thereby that they did not press their second appeal against the decree of eviction, would not mean that the issue of standard rent was not to be decided by the High Court on merits. By the impugned order, the appellant is deprived of the fruits of the order passed even by the learned Additional District Judge. No reasons thereof are given except the fact that the respondents agreed to vacate the premises. | 1[ds]On the contrary, by the impugned order, the High Court has mentioned that only 50 per cent of the standard rent as fixed by the Additional District Judge (which was an interim order) would be payable and the revision petition was not decided on merits.9. We find substance in this argument raised by the learned counsel for the appellant. The facts noted above would disclose that there was a decree of eviction in favour of the appellant and against that the respondent had filed second appeal. Merely because the respondent agreed to vacate the premises and give the vacant possession, meaning thereby that they did not press their second appeal against the decree of eviction, would not mean that the issue of standard rent was not to be decided by the High Court on merits. By the impugned order, the appellant is deprived of the fruits of the order passed even by the learned Additional District Judge. No reasons thereof are given except the fact that the respondents agreed to vacate the premises. | 1 | 1,000 | 190 | ### 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:
A.K. Sikri, J. - We have heard the matter finally. Leave granted. 2. The facts which are required to be taken note of are briefly stated herein: 3. The matter pertains to fixation of standard rent in respect of property situated at Bhadada Bagh, Bhopalganj, Bhilwara, Rajasthan (hereinafter referred to as the suit property). The appellant herein, who is the owner and landlord of the suit property, had let out the same to one Madan Lal (since deceased), who is the predecessor-in-interest of the respondents herein. The appellant filed a suit for fixation of standard rent in the year 2001 on the ground that for the suit property, which was in excess of 15,500 square feet in the heart of Bhilwara city in Rajasthan, the rent paid by the respondents was too meagre. It may be noted that the respondent came into possession of the suit property some time in the year 1957. 4. It may also be noted, by way of background, that the appellant had filed eviction proceedings against the respondent way back in the year 1974. Though the trial Court had dismissed the said eviction suit, in appeal there-against, the eviction was ordered in favour of the appellant and against the respondent, some time in the year 2001. Against that, first appeal of the respondent was dismissed. The respondent filed second appeal in the High Court which was registered as Civil Second Appeal No. 251 of 2001. 5. After passing of the said eviction order, the appellant filed the aforesaid Civil Suit No. 25 of 2002 for fixation of the standard rent. This Suit was decreed by the Trial Court on 20.02.2013 fixing the rent at Rs. 5,000/- per month from November, 2001. Not satisfied with this fixation of the rent at that rate, the appellant filed first appeal before the Additional District Judge. This appeal was allowed and the standard rent was fixed by the Additional District Judge vide judgment dated 25.02.2015 at the rate of Rs. 2.50/- per square feet which comes to Rs. 38,750/- per month. 6. The appellant was still not satisfied with the said fixation of standard rent and wanted further enhancement. Therefore, he filed Civil Revision Petition No. 88 of 2015 in the High Court of Judicature for Rajasthan. Even the respondent challenged the same order by filing revision petition there-against. Both these revisions petitions have been decided by the High Court vide the impugned judgment dated 06.11.2015. 7. A perusal of the said judgment would show that the respondents had made a statement at the Bar that they were ready to vacate the premises in question and were willing to handover the peaceful and vacant possession of the premises on or before 30.06.2016. Having regard to this statement and noticing that since the respondents were willing to vacate the premises, the High Court had disposed of all three cases with the following directions: (A) The defendants-LRs of Madan Lal shall clear off arrears of rent by depositing 50% of the total arrears of rent due as determined by the first appellate court, after adjustment of the amount already deposited by them, as directed to be deposited by the order dated 06.05.2015 of this Court, within a period of three months; (B) The defendants are also directed, as they have undertaken, to hand over the peaceful and vacant possession of the entire land/plot in question to the plaintiff on or before 30.06.2016; (C) The defendants shall continue to pay monthly rent or mesne profits, as they are paying as of now, terms of the order of the first appellate court from November, 2015 till the date of handing over the vacant possession before 30.06.2015; (D) In view of the aforesaid, the substantial questions of law framed above in second appeal are not required to be answered on merits; and (E) This order will not form precedent for any other similar case between these parties or other parties, with same common party in this case. 8. The aforesaid order was challenged by the appellant on a short ground, viz., merely because respondent No. 1 agreed to vacate the premises was no reason for the High Court to deny the benefit of mesne profits. It was submitted that the appellant had filed the revision petition as he wanted further enhancement in the standard rent. On the contrary, by the impugned order, the High Court has mentioned that only 50 per cent of the standard rent as fixed by the Additional District Judge (which was an interim order) would be payable and the revision petition was not decided on merits. 9. We find substance in this argument raised by the learned counsel for the appellant. The facts noted above would disclose that there was a decree of eviction in favour of the appellant and against that the respondent had filed second appeal. Merely because the respondent agreed to vacate the premises and give the vacant possession, meaning thereby that they did not press their second appeal against the decree of eviction, would not mean that the issue of standard rent was not to be decided by the High Court on merits. By the impugned order, the appellant is deprived of the fruits of the order passed even by the learned Additional District Judge. No reasons thereof are given except the fact that the respondents agreed to vacate the premises.
### Response:
1
### Explanation:
On the contrary, by the impugned order, the High Court has mentioned that only 50 per cent of the standard rent as fixed by the Additional District Judge (which was an interim order) would be payable and the revision petition was not decided on merits.9. We find substance in this argument raised by the learned counsel for the appellant. The facts noted above would disclose that there was a decree of eviction in favour of the appellant and against that the respondent had filed second appeal. Merely because the respondent agreed to vacate the premises and give the vacant possession, meaning thereby that they did not press their second appeal against the decree of eviction, would not mean that the issue of standard rent was not to be decided by the High Court on merits. By the impugned order, the appellant is deprived of the fruits of the order passed even by the learned Additional District Judge. No reasons thereof are given except the fact that the respondents agreed to vacate the premises.
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Hardesh Ores Pvt. Ltd Vs. Timblo Minerals Pvt. Ltd. | in writing has refused to renew and terminated the contract of the old contractor. Thereafter, he has entered into a written contract on higher price with the new contractors. The old contractor, therefore, has no right in presenti to remain in possession of the mine and to operate it. According to learned counsel for the new contractors, there is no counter suit filed by the old contractor to specifically enforce any alleged agreement of renewal of the contract and such relief cannot be legally granted in view of the bar contained in clause (c) of sub-section (1) of Section 14 of the Specific Relief Act which provides that a contract in its nature determinable is unenforceable. 10. The suit is pending for trial on merits. We would not, therefore, express any option, one way or the other, on the merits of the contentions advanced. On the basis of three established principles for grant of temporary injunction e.g., prima facie case, balance of convenience and irreparable loss, in our considered opinion, it would not be appropriate to interfere with the order of the High Court at the present stage of the suit and disturb the working of the mine by the new contractors who have already commenced operations from June 2003 and, as alleged, entered into business commitments for supply of iron ore to different parties in the outside India.11. After considering the comparative merit of the case of either parties and their rival claims, we have formed an opinion that the High Court ought not to have granted unconditional order of temporary injunction by ignoring the huge investments which have been made by the old contractor to operate the mine under an existing arrangement and alleged renewal of the contract by their mutual conduct.12. In the course of hearing, on behalf of the old contractor, learned counsel has handed over to us in writing the proposed terms and conditions on which it seeks restoration of possession of the mine and permission to operate the same. The proposed terms suggested by the appellants have been opposed by the new contractors and their response in writing has also been placed before us. Taking tentatively the figures mentioned by the new and old contractors in their proposed terms and responses submitted orally and in writing indicating the extent of investments and estimated profits, we consider it appropriate to modify the impugned order of grant of temporary injunction passed by the High Court by imposing the following conditions:- 1) An a pre-condition for further operating the mine, the new contractors shall furnish a Bank Guarantee or a Solvent Security to the satisfaction of the Trial Court in the sum of Rupees Five Crores towards the estimated investments already made by the old contractor in the mine from the year 1984 in prospecting, developing, digging bore holes, removal of rejection, making benches, putting up infrastructural facilities, acquiring surface rights, to dump rejects, cost of shifting of school, electrification, research and development etc. The Bank guarantee or solvent security, as the case may be, to the satisfaction of the trial court shall be furnished within a period of four weeks from today.2) The new contractors shall, by the end of every month, deposit in the trial court a sum of Rupees 50/- per metric ton, on the basis of payment slips of trucks and monthly returns submitted to the statutory mine authorities, on each quantity of ore extracted and exported by them, in order to reimburse, in the event of dismissal of the suit, the loss of estimated profit caused to the old contractor.3) The amounts aforementioned to be deposited in respect of the quantities of Ore extracted and exported shall be kept by the Trial Court, when deposited, in fixed deposit in a nationalised Bank so that they earn current rate of interest. The amounts shall be paid on final decision of the suit by the Trial Court to the party held entitled to it.4) At the conclusion of the trial and decision of the suit, the trial court shall pass consequential orders for payment of the amount covered by the Bank Guarantee or solvent security and the amounts periodically deposited for the ore extracted and exported in the manner directed above.5) As admitted by the parties, the quantity of iron ore already extracted during period of working by the old contractor is stacked at the site in the mining area. Without going into the dispute of extent of quantity of iron ore extracted and stacked at site and its value, we direct that the old contractor shall be allowed to collect and transport the same in accordance with the then existing terms of the written contract between the old contractor and the mining-lease-owner. In collecting and transporting the aforementioned quantity of iron ore, the old contractor shall follow not only the terms of the contract but also all statutory provisions and rules regulating the extraction and transportation of minerals. It shall also submit necessary statutory returns and clear dues, if any, of statutory Authorities in accordance with law. In order of allow the old contractor to take away the iron ore extracted by it and stacked at the site, the trial court shall appoint a Commissioner to be assisted by a statutory mining authority to supervise the work.13. Looking to the nature of the dispute, the rival claims and high stakes of the parties involved in running the mine, we direct the Trial Court to expedite the trial of the suit and to make all endeavour to decide the same early and in any event before December 2004.14. All legal grounds and contentions are left open to the parties to be urged before the Trial Court. The trial court shall, on the basis of the evidence produced before it, decide the suit in accordance with law and regardless of any observations made by the trial court and the High Court in their orders while disposing of the subject matter of grant of temporary injunction. | 1[ds]10. The suit is pending for trial on merits. We would not, therefore, express any option, one way or the other, on the merits of the contentions advanced. On the basis of three established principles for grant of temporary injunction e.g., prima facie case, balance of convenience and irreparable loss, in our considered opinion, it would not be appropriate to interfere with the order of the High Court at the present stage of the suit and disturb the working of the mine by the new contractors who have already commenced operations from June 2003 and, as alleged, entered into business commitments for supply of iron ore to different parties in the outside India.11. After considering the comparative merit of the case of either parties and their rival claims, we have formed an opinion that the High Court ought not to have granted unconditional order of temporary injunction by ignoring the huge investments which have been made by the old contractor to operate the mine under an existing arrangement and alleged renewal of the contract by their mutual conduct.12. In the course of hearing, on behalf of the old contractor, learned counsel has handed over to us in writing the proposed terms and conditions on which it seeks restoration of possession of the mine and permission to operate the same. The proposed terms suggested by the appellants have been opposed by the new contractors and their response in writing has also been placed before us. Taking tentatively the figures mentioned by the new and old contractors in their proposed terms and responses submitted orally and in writing indicating the extent of investments and estimated profits, we consider it appropriate to modify the impugned order of grant of temporary injunction passed by the High Court by imposing the followingion for further operating the mine, the new contractors shall furnish a Bank Guarantee or a Solvent Security to the satisfaction of the Trial Court in the sum of Rupees Five Crores towards the estimated investments already made by the old contractor in the mine from the year 1984 in prospecting, developing, digging bore holes, removal of rejection, making benches, putting up infrastructural facilities, acquiring surface rights, to dump rejects, cost of shifting of school, electrification, research and development etc. The Bank guarantee or solvent security, as the case may be, to the satisfaction of the trial court shall be furnished within a period of four weeks from today.2) The new contractors shall, by the end of every month, deposit in the trial court a sum of Rupees 50/per metric ton, on the basis of payment slips of trucks and monthly returns submitted to the statutory mine authorities, on each quantity of ore extracted and exported by them, in order to reimburse, in the event of dismissal of the suit, the loss of estimated profit caused to the old contractor.3) The amounts aforementioned to be deposited in respect of the quantities of Ore extracted and exported shall be kept by the Trial Court, when deposited, in fixed deposit in a nationalised Bank so that they earn current rate of interest. The amounts shall be paid on final decision of the suit by the Trial Court to the party held entitled to it.4) At the conclusion of the trial and decision of the suit, the trial court shall pass consequential orders for payment of the amount covered by the Bank Guarantee or solvent security and the amounts periodically deposited for the ore extracted and exported in the manner directed above.5) As admitted by the parties, the quantity of iron ore already extracted during period of working by the old contractor is stacked at the site in the mining area. Without going into the dispute of extent of quantity of iron ore extracted and stacked at site and its value, we direct that the old contractor shall be allowed to collect and transport the same in accordance with the then existing terms of the written contract between the old contractor and theIn collecting and transporting the aforementioned quantity of iron ore, the old contractor shall follow not only the terms of the contract but also all statutory provisions and rules regulating the extraction and transportation of minerals. It shall also submit necessary statutory returns and clear dues, if any, of statutory Authorities in accordance with law. In order of allow the old contractor to take away the iron ore extracted by it and stacked at the site, the trial court shall appoint a Commissioner to be assisted by a statutory mining authority to supervise the work.13. Looking to the nature of the dispute, the rival claims and high stakes of the parties involved in running the mine, we direct the Trial Court to expedite the trial of the suit and to make all endeavour to decide the same early and in any event before December 2004.14. All legal grounds and contentions are left open to the parties to be urged before the Trial Court. The trial court shall, on the basis of the evidence produced before it, decide the suit in accordance with law and regardless of any observations made by the trial court and the High Court in their orders while disposing of the subject matter of grant of temporary injunction. | 1 | 1,933 | 947 | ### 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:
in writing has refused to renew and terminated the contract of the old contractor. Thereafter, he has entered into a written contract on higher price with the new contractors. The old contractor, therefore, has no right in presenti to remain in possession of the mine and to operate it. According to learned counsel for the new contractors, there is no counter suit filed by the old contractor to specifically enforce any alleged agreement of renewal of the contract and such relief cannot be legally granted in view of the bar contained in clause (c) of sub-section (1) of Section 14 of the Specific Relief Act which provides that a contract in its nature determinable is unenforceable. 10. The suit is pending for trial on merits. We would not, therefore, express any option, one way or the other, on the merits of the contentions advanced. On the basis of three established principles for grant of temporary injunction e.g., prima facie case, balance of convenience and irreparable loss, in our considered opinion, it would not be appropriate to interfere with the order of the High Court at the present stage of the suit and disturb the working of the mine by the new contractors who have already commenced operations from June 2003 and, as alleged, entered into business commitments for supply of iron ore to different parties in the outside India.11. After considering the comparative merit of the case of either parties and their rival claims, we have formed an opinion that the High Court ought not to have granted unconditional order of temporary injunction by ignoring the huge investments which have been made by the old contractor to operate the mine under an existing arrangement and alleged renewal of the contract by their mutual conduct.12. In the course of hearing, on behalf of the old contractor, learned counsel has handed over to us in writing the proposed terms and conditions on which it seeks restoration of possession of the mine and permission to operate the same. The proposed terms suggested by the appellants have been opposed by the new contractors and their response in writing has also been placed before us. Taking tentatively the figures mentioned by the new and old contractors in their proposed terms and responses submitted orally and in writing indicating the extent of investments and estimated profits, we consider it appropriate to modify the impugned order of grant of temporary injunction passed by the High Court by imposing the following conditions:- 1) An a pre-condition for further operating the mine, the new contractors shall furnish a Bank Guarantee or a Solvent Security to the satisfaction of the Trial Court in the sum of Rupees Five Crores towards the estimated investments already made by the old contractor in the mine from the year 1984 in prospecting, developing, digging bore holes, removal of rejection, making benches, putting up infrastructural facilities, acquiring surface rights, to dump rejects, cost of shifting of school, electrification, research and development etc. The Bank guarantee or solvent security, as the case may be, to the satisfaction of the trial court shall be furnished within a period of four weeks from today.2) The new contractors shall, by the end of every month, deposit in the trial court a sum of Rupees 50/- per metric ton, on the basis of payment slips of trucks and monthly returns submitted to the statutory mine authorities, on each quantity of ore extracted and exported by them, in order to reimburse, in the event of dismissal of the suit, the loss of estimated profit caused to the old contractor.3) The amounts aforementioned to be deposited in respect of the quantities of Ore extracted and exported shall be kept by the Trial Court, when deposited, in fixed deposit in a nationalised Bank so that they earn current rate of interest. The amounts shall be paid on final decision of the suit by the Trial Court to the party held entitled to it.4) At the conclusion of the trial and decision of the suit, the trial court shall pass consequential orders for payment of the amount covered by the Bank Guarantee or solvent security and the amounts periodically deposited for the ore extracted and exported in the manner directed above.5) As admitted by the parties, the quantity of iron ore already extracted during period of working by the old contractor is stacked at the site in the mining area. Without going into the dispute of extent of quantity of iron ore extracted and stacked at site and its value, we direct that the old contractor shall be allowed to collect and transport the same in accordance with the then existing terms of the written contract between the old contractor and the mining-lease-owner. In collecting and transporting the aforementioned quantity of iron ore, the old contractor shall follow not only the terms of the contract but also all statutory provisions and rules regulating the extraction and transportation of minerals. It shall also submit necessary statutory returns and clear dues, if any, of statutory Authorities in accordance with law. In order of allow the old contractor to take away the iron ore extracted by it and stacked at the site, the trial court shall appoint a Commissioner to be assisted by a statutory mining authority to supervise the work.13. Looking to the nature of the dispute, the rival claims and high stakes of the parties involved in running the mine, we direct the Trial Court to expedite the trial of the suit and to make all endeavour to decide the same early and in any event before December 2004.14. All legal grounds and contentions are left open to the parties to be urged before the Trial Court. The trial court shall, on the basis of the evidence produced before it, decide the suit in accordance with law and regardless of any observations made by the trial court and the High Court in their orders while disposing of the subject matter of grant of temporary injunction.
### Response:
1
### Explanation:
10. The suit is pending for trial on merits. We would not, therefore, express any option, one way or the other, on the merits of the contentions advanced. On the basis of three established principles for grant of temporary injunction e.g., prima facie case, balance of convenience and irreparable loss, in our considered opinion, it would not be appropriate to interfere with the order of the High Court at the present stage of the suit and disturb the working of the mine by the new contractors who have already commenced operations from June 2003 and, as alleged, entered into business commitments for supply of iron ore to different parties in the outside India.11. After considering the comparative merit of the case of either parties and their rival claims, we have formed an opinion that the High Court ought not to have granted unconditional order of temporary injunction by ignoring the huge investments which have been made by the old contractor to operate the mine under an existing arrangement and alleged renewal of the contract by their mutual conduct.12. In the course of hearing, on behalf of the old contractor, learned counsel has handed over to us in writing the proposed terms and conditions on which it seeks restoration of possession of the mine and permission to operate the same. The proposed terms suggested by the appellants have been opposed by the new contractors and their response in writing has also been placed before us. Taking tentatively the figures mentioned by the new and old contractors in their proposed terms and responses submitted orally and in writing indicating the extent of investments and estimated profits, we consider it appropriate to modify the impugned order of grant of temporary injunction passed by the High Court by imposing the followingion for further operating the mine, the new contractors shall furnish a Bank Guarantee or a Solvent Security to the satisfaction of the Trial Court in the sum of Rupees Five Crores towards the estimated investments already made by the old contractor in the mine from the year 1984 in prospecting, developing, digging bore holes, removal of rejection, making benches, putting up infrastructural facilities, acquiring surface rights, to dump rejects, cost of shifting of school, electrification, research and development etc. The Bank guarantee or solvent security, as the case may be, to the satisfaction of the trial court shall be furnished within a period of four weeks from today.2) The new contractors shall, by the end of every month, deposit in the trial court a sum of Rupees 50/per metric ton, on the basis of payment slips of trucks and monthly returns submitted to the statutory mine authorities, on each quantity of ore extracted and exported by them, in order to reimburse, in the event of dismissal of the suit, the loss of estimated profit caused to the old contractor.3) The amounts aforementioned to be deposited in respect of the quantities of Ore extracted and exported shall be kept by the Trial Court, when deposited, in fixed deposit in a nationalised Bank so that they earn current rate of interest. The amounts shall be paid on final decision of the suit by the Trial Court to the party held entitled to it.4) At the conclusion of the trial and decision of the suit, the trial court shall pass consequential orders for payment of the amount covered by the Bank Guarantee or solvent security and the amounts periodically deposited for the ore extracted and exported in the manner directed above.5) As admitted by the parties, the quantity of iron ore already extracted during period of working by the old contractor is stacked at the site in the mining area. Without going into the dispute of extent of quantity of iron ore extracted and stacked at site and its value, we direct that the old contractor shall be allowed to collect and transport the same in accordance with the then existing terms of the written contract between the old contractor and theIn collecting and transporting the aforementioned quantity of iron ore, the old contractor shall follow not only the terms of the contract but also all statutory provisions and rules regulating the extraction and transportation of minerals. It shall also submit necessary statutory returns and clear dues, if any, of statutory Authorities in accordance with law. In order of allow the old contractor to take away the iron ore extracted by it and stacked at the site, the trial court shall appoint a Commissioner to be assisted by a statutory mining authority to supervise the work.13. Looking to the nature of the dispute, the rival claims and high stakes of the parties involved in running the mine, we direct the Trial Court to expedite the trial of the suit and to make all endeavour to decide the same early and in any event before December 2004.14. All legal grounds and contentions are left open to the parties to be urged before the Trial Court. The trial court shall, on the basis of the evidence produced before it, decide the suit in accordance with law and regardless of any observations made by the trial court and the High Court in their orders while disposing of the subject matter of grant of temporary injunction.
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Pannalal Jankidas Vs. Mohanlal And Another | relations between the parties are of a principal and an agent and the agent is found to have committed breach of his duty, it is correct to take a narrow view of the situation. The agent chose to gamble in not insuring the goods and desired to charge the agreed premia, on the footing that the goods were covered by insurance. If so, he must take the consequences of his default. The argument that their liability as an agent who had agreed to insure should be ascertained as on the date of the explosion is no answer to the claim of the resps. The position would be this. Assuming that the applts. had insured the goods on the terms of the usual fire insurance policy, the resps. could ask them either to assign the policy to the resps. or ask them to file a suit against the insurance co. contending that the fire, and not the explosion, was the cause of the loss and was covered by the policy of insurance. Before the Ct. could decide the rights of the parties, the Ordinance promulgated by the Governor General prevented the decision of the dispute, but the Govt. undertook to pay the loss on the footing that the policy covered the risk. The misconduct gave rise to the liability to make good the damage and to put the resps. in the same position in which they would have been if their goods had been insured.(19) On behalf of the applts. it was urged that because of the Govt. intervention in issuing the Ordinance they were sought to be made liable under a new liability. Their liability has been and exists on the basis that a fire insurance policy existed, as they were instructed to insure the goods and which they represented they had done. The liability arises not because of the Ordinance but because of the breach of their duty in failing to insure, which has taken place apart from the Ordinance and which is not affected by the Ordinance. The utmost that they could urge is that the extent of their liability arising from their misconduct was not anticipated by them when they agreed to perform their duty. That, however, is no defence in law if the damages directly flow from the breach of duty. The Ordinance only quantifies the damages instead of leaving the unliquidated damages to be assessed in the usual way. The Ordinance lays down the yardstick for fixing the damages under different circumstances, which cover all alternative situations, and the liability for failure to insure must now be measured by the new basis. It does not create any new liability. The applts. contention on this point therefore must be rejected0.(20) The only other point urged before us was based on the construction of S. 18 of the Ordinance. It was argued on behalf of the applts. that apart from what could be recovered under cl. (1) of S. 18 the Ordinance extinguished all right, whether in contract or tort or otherwise to any compensation or damage for loss of any property due to or in anyway arising out of the explosion and provided that no suit or other legal proceedings for any such compensation or damages shall, save as aforesaid, be maintainable in any Ct. against the Crown or against any other person whatsoever. It was urged that in establishing their claim the resps. must plead the right to recover the amount due to explosion and that was barred under S. 18 (2 ). In our opinion, this contention is unsound. The applts. have filed this suit to recover the price of the goods on the ground of indemnity. The resps. answer is that the applts. are not entitled to the indemnity because they are guilty of a breach of duty in the business of the agency. They contend that they could be liable to pay for the goods only if the applts. give them the goods or deliver the same according to their instructions. They counterclaim that if the applts. are unable to give them the goods they must pay them the value thereof. The applts. plead by way of defence to the counterclaim that the goods were destroyed without any neglect on their part by fire caused by the explosion and therefore they were not liable. The resps. rejoinder is that they had asked the applts. to insure the goods and if the applts. had not failed in their duty they would have reimbursed the resps. The applts. then plead that even if they had insured the goods, the resps. could not have recovered anything from the insurance companies. It is in reply to this contention that the resps. say that the applts. liability to recover money from the insurance co. on the terms of the usual fire insurance policy is irrelevant because they could have recovered the money if they had insured in fact, irrespective of the terms of the policy, under the Ordinance. The resps. are not thus claiming to recover money from the applts. otherwise than under S. 18 (1) of the Ordinance. Their cause of action is the misconduct of the agent in the business of agency and is quite different. It is not for compensation arising from explosion.(21) It was argued that damages formed part of the cause of action of the resps. in framing the counterclaim and therefore S. 18 (2) stood in the way of the resps. The contention is unsound because the cause of action is completed by the averment that there was a duty or agreement to insure, that there was a failure to perform that duty, that loss had occasioned to the resps. because of the failure to perform the duty and the applts. were, therefore, liable for the breach of the duty. The quantum of damages is not a part of the cause of action. It is a matter to be ascertained by the Ct. according to well laid down principles of law. | 0[ds](17) Bearing in mind this state of the law it appears clear that in the present case it was the duty of the applts. to insure the goods, as they had agreed to do. Once misconduct is admitted or proved, the fact that the Ordinance did not exist and could not have been in the contemplation of the parties is irrelevant for deciding the question of liability. The liability was incurred by reason of the breach of their duty and the applts made themselves liable to pay damages. The measure of damages was the loss suffered by the resps. on account of the goods not being insured. The next point to be decided is what difference the promulgation of the Ordinance makes in the liability of the applts. The relevant provisions are noted above. The scheme of the Ordinance clearly is, as stated in the preamble to provide for and regulate the payment of compensation and to prevent litigation, amongst other things. It is thus a comprehensive legislation which replaces the rights of parties either under the policy of insurance against insurance companies, or on the ground of negligence against Govt. by the owners of the goods, is also claim by insurance companies against Govt. The validity of this legislation is not challenged. S. 18 gives it a retrospective effect. Therefore the Ordinance only substitutes a new basis for assessing compensation for the ordinary basis for assessing unliquidated damages. The compensation under the Ordinance is payable on proof of the existence of a fire insurance policy irrespective of the terms of the Policy. The non-recovery of half the amount of the resps. claim from the Govt. under the Ordinance because of the absence of a fire insurance policy, thus directly arises from the neglect of the applts. to insure the goods as they had been instructed to do or agreed to do and which in fact they represented that they had done. In our opinion, these are not indirect or remote damages.(18) The contention that under the policy of insurance the assured could not have recovered anything for loss caused by the fire due to explosion cannot be accepted. Firstly, this contention of the assureds inability to receive any compensation because of cl. 7 of the form of common policy was not raised in the trial Ct. No issue was raised in respect thereof and no arguments in support or against it were heard. It was suggested for the first time, as appears from the judgment of Chagla J. in the Ct. of appeal. The assumption that because of cl. 7 Of the policy no insurance co. would have paid the loss cannot be assumed to be necessarily and unquestionably sound and in view of the terms of the Ordinance not capable of being determined. There appears no reason under the circumstances to proceed as if an adverse decision on the interpretation of the policy had been given against the resps. and to hold the applts. free from liability for not recovering half the value of the goods which could have been recovered if the goods had been insured (irrespective of the terms on which the policy stood) as agreed to be done by them. I do not think when the relations between the parties are of a principal and an agent and the agent is found to have committed breach of his duty, it is correct to take a narrow view of the situation. The agent chose to gamble in not insuring the goods and desired to charge the agreed premia, on the footing that the goods were covered by insurance. If so, he must take the consequences of his default. The argument that their liability as an agent who had agreed to insure should be ascertained as on the date of the explosion is no answer to the claim of the resps. The position would be this. Assuming that the applts. had insured the goods on the terms of the usual fire insurance policy, the resps. could ask them either to assign the policy to the resps. or ask them to file a suit against the insurance co. contending that the fire, and not the explosion, was the cause of the loss and was covered by the policy of insurance. Before the Ct. could decide the rights of the parties, the Ordinance promulgated by the Governor General prevented the decision of the dispute, but the Govt. undertook to pay the loss on the footing that the policy covered the risk. The misconduct gave rise to the liability to make good the damage and to put the resps. in the same position in which they would have been if their goods had been insured.(19) On behalf of the applts. it was urged that because of the Govt. intervention in issuing the Ordinance they were sought to be made liable under a new liability. Their liability has been and exists on the basis that a fire insurance policy existed, as they were instructed to insure the goods and which they represented they had done. The liability arises not because of the Ordinance but because of the breach of their duty in failing to insure, which has taken place apart from the Ordinance and which is not affected by the Ordinance. The utmost that they could urge is that the extent of their liability arising from their misconduct was not anticipated by them when they agreed to perform their duty. That, however, is no defence in law if the damages directly flow from the breach of duty. The Ordinance only quantifies the damages instead of leaving the unliquidated damages to be assessed in the usual way. The Ordinance lays down the yardstick for fixing the damages under different circumstances, which cover all alternative situations, and the liability for failure to insure must now be measured by the new basis. It does not create any new liability. The applts. contention on this point therefore must be rejected0.(20) The only other point urged before us was based on the construction of S. 18 of the Ordinance. It was argued on behalf of the applts. that apart from what could be recovered under cl. (1) of S. 18 the Ordinance extinguished all right, whether in contract or tort or otherwise to any compensation or damage for loss of any property due to or in anyway arising out of the explosion and provided that no suit or other legal proceedings for any such compensation or damages shall, save as aforesaid, be maintainable in any Ct. against the Crown or against any other person whatsoever. It was urged that in establishing their claim the resps. must plead the right to recover the amount due to explosion and that was barred under S. 18 (2 ). In our opinion, this contention is unsound. The applts. have filed this suit to recover the price of the goods on the ground of indemnity. The resps. answer is that the applts. are not entitled to the indemnity because they are guilty of a breach of duty in the business of the agency. They contend that they could be liable to pay for the goods only if the applts. give them the goods or deliver the same according to their instructions. They counterclaim that if the applts. are unable to give them the goods they must pay them the value thereof. The applts. plead by way of defence to the counterclaim that the goods were destroyed without any neglect on their part by fire caused by the explosion and therefore they were not liable. The resps. rejoinder is that they had asked the applts. to insure the goods and if the applts. had not failed in their duty they would have reimbursed the resps. The applts. then plead that even if they had insured the goods, the resps. could not have recovered anything from the insurance companies. It is in reply to this contention that the resps. say that the applts. liability to recover money from the insurance co. on the terms of the usual fire insurance policy is irrelevant because they could have recovered the money if they had insured in fact, irrespective of the terms of the policy, under the Ordinance. The resps. are not thus claiming to recover money from the applts. otherwise than under S. 18 (1) of the Ordinance. Their cause of action is the misconduct of the agent in the business of agency and is quite different. It is not for compensation arising from explosion.(21) It was argued that damages formed part of the cause of action of the resps. in framing the counterclaim and therefore S. 18 (2) stood in the way of the resps. The contention is unsound because the cause of action is completed by the averment that there was a duty or agreement to insure, that there was a failure to perform that duty, that loss had occasioned to the resps. because of the failure to perform the duty and the applts. were, therefore, liable for the breach of the duty. The quantum of damages is not a part of the cause of action. It is a matter to be ascertained by the Ct. according to well laid down principles of law. | 0 | 6,514 | 1,699 | ### 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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relations between the parties are of a principal and an agent and the agent is found to have committed breach of his duty, it is correct to take a narrow view of the situation. The agent chose to gamble in not insuring the goods and desired to charge the agreed premia, on the footing that the goods were covered by insurance. If so, he must take the consequences of his default. The argument that their liability as an agent who had agreed to insure should be ascertained as on the date of the explosion is no answer to the claim of the resps. The position would be this. Assuming that the applts. had insured the goods on the terms of the usual fire insurance policy, the resps. could ask them either to assign the policy to the resps. or ask them to file a suit against the insurance co. contending that the fire, and not the explosion, was the cause of the loss and was covered by the policy of insurance. Before the Ct. could decide the rights of the parties, the Ordinance promulgated by the Governor General prevented the decision of the dispute, but the Govt. undertook to pay the loss on the footing that the policy covered the risk. The misconduct gave rise to the liability to make good the damage and to put the resps. in the same position in which they would have been if their goods had been insured.(19) On behalf of the applts. it was urged that because of the Govt. intervention in issuing the Ordinance they were sought to be made liable under a new liability. Their liability has been and exists on the basis that a fire insurance policy existed, as they were instructed to insure the goods and which they represented they had done. The liability arises not because of the Ordinance but because of the breach of their duty in failing to insure, which has taken place apart from the Ordinance and which is not affected by the Ordinance. The utmost that they could urge is that the extent of their liability arising from their misconduct was not anticipated by them when they agreed to perform their duty. That, however, is no defence in law if the damages directly flow from the breach of duty. The Ordinance only quantifies the damages instead of leaving the unliquidated damages to be assessed in the usual way. The Ordinance lays down the yardstick for fixing the damages under different circumstances, which cover all alternative situations, and the liability for failure to insure must now be measured by the new basis. It does not create any new liability. The applts. contention on this point therefore must be rejected0.(20) The only other point urged before us was based on the construction of S. 18 of the Ordinance. It was argued on behalf of the applts. that apart from what could be recovered under cl. (1) of S. 18 the Ordinance extinguished all right, whether in contract or tort or otherwise to any compensation or damage for loss of any property due to or in anyway arising out of the explosion and provided that no suit or other legal proceedings for any such compensation or damages shall, save as aforesaid, be maintainable in any Ct. against the Crown or against any other person whatsoever. It was urged that in establishing their claim the resps. must plead the right to recover the amount due to explosion and that was barred under S. 18 (2 ). In our opinion, this contention is unsound. The applts. have filed this suit to recover the price of the goods on the ground of indemnity. The resps. answer is that the applts. are not entitled to the indemnity because they are guilty of a breach of duty in the business of the agency. They contend that they could be liable to pay for the goods only if the applts. give them the goods or deliver the same according to their instructions. They counterclaim that if the applts. are unable to give them the goods they must pay them the value thereof. The applts. plead by way of defence to the counterclaim that the goods were destroyed without any neglect on their part by fire caused by the explosion and therefore they were not liable. The resps. rejoinder is that they had asked the applts. to insure the goods and if the applts. had not failed in their duty they would have reimbursed the resps. The applts. then plead that even if they had insured the goods, the resps. could not have recovered anything from the insurance companies. It is in reply to this contention that the resps. say that the applts. liability to recover money from the insurance co. on the terms of the usual fire insurance policy is irrelevant because they could have recovered the money if they had insured in fact, irrespective of the terms of the policy, under the Ordinance. The resps. are not thus claiming to recover money from the applts. otherwise than under S. 18 (1) of the Ordinance. Their cause of action is the misconduct of the agent in the business of agency and is quite different. It is not for compensation arising from explosion.(21) It was argued that damages formed part of the cause of action of the resps. in framing the counterclaim and therefore S. 18 (2) stood in the way of the resps. The contention is unsound because the cause of action is completed by the averment that there was a duty or agreement to insure, that there was a failure to perform that duty, that loss had occasioned to the resps. because of the failure to perform the duty and the applts. were, therefore, liable for the breach of the duty. The quantum of damages is not a part of the cause of action. It is a matter to be ascertained by the Ct. according to well laid down principles of law.
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the parties are of a principal and an agent and the agent is found to have committed breach of his duty, it is correct to take a narrow view of the situation. The agent chose to gamble in not insuring the goods and desired to charge the agreed premia, on the footing that the goods were covered by insurance. If so, he must take the consequences of his default. The argument that their liability as an agent who had agreed to insure should be ascertained as on the date of the explosion is no answer to the claim of the resps. The position would be this. Assuming that the applts. had insured the goods on the terms of the usual fire insurance policy, the resps. could ask them either to assign the policy to the resps. or ask them to file a suit against the insurance co. contending that the fire, and not the explosion, was the cause of the loss and was covered by the policy of insurance. Before the Ct. could decide the rights of the parties, the Ordinance promulgated by the Governor General prevented the decision of the dispute, but the Govt. undertook to pay the loss on the footing that the policy covered the risk. The misconduct gave rise to the liability to make good the damage and to put the resps. in the same position in which they would have been if their goods had been insured.(19) On behalf of the applts. it was urged that because of the Govt. intervention in issuing the Ordinance they were sought to be made liable under a new liability. Their liability has been and exists on the basis that a fire insurance policy existed, as they were instructed to insure the goods and which they represented they had done. The liability arises not because of the Ordinance but because of the breach of their duty in failing to insure, which has taken place apart from the Ordinance and which is not affected by the Ordinance. The utmost that they could urge is that the extent of their liability arising from their misconduct was not anticipated by them when they agreed to perform their duty. That, however, is no defence in law if the damages directly flow from the breach of duty. The Ordinance only quantifies the damages instead of leaving the unliquidated damages to be assessed in the usual way. The Ordinance lays down the yardstick for fixing the damages under different circumstances, which cover all alternative situations, and the liability for failure to insure must now be measured by the new basis. It does not create any new liability. The applts. contention on this point therefore must be rejected0.(20) The only other point urged before us was based on the construction of S. 18 of the Ordinance. It was argued on behalf of the applts. that apart from what could be recovered under cl. (1) of S. 18 the Ordinance extinguished all right, whether in contract or tort or otherwise to any compensation or damage for loss of any property due to or in anyway arising out of the explosion and provided that no suit or other legal proceedings for any such compensation or damages shall, save as aforesaid, be maintainable in any Ct. against the Crown or against any other person whatsoever. It was urged that in establishing their claim the resps. must plead the right to recover the amount due to explosion and that was barred under S. 18 (2 ). In our opinion, this contention is unsound. The applts. have filed this suit to recover the price of the goods on the ground of indemnity. The resps. answer is that the applts. are not entitled to the indemnity because they are guilty of a breach of duty in the business of the agency. They contend that they could be liable to pay for the goods only if the applts. give them the goods or deliver the same according to their instructions. They counterclaim that if the applts. are unable to give them the goods they must pay them the value thereof. The applts. plead by way of defence to the counterclaim that the goods were destroyed without any neglect on their part by fire caused by the explosion and therefore they were not liable. The resps. rejoinder is that they had asked the applts. to insure the goods and if the applts. had not failed in their duty they would have reimbursed the resps. The applts. then plead that even if they had insured the goods, the resps. could not have recovered anything from the insurance companies. It is in reply to this contention that the resps. say that the applts. liability to recover money from the insurance co. on the terms of the usual fire insurance policy is irrelevant because they could have recovered the money if they had insured in fact, irrespective of the terms of the policy, under the Ordinance. The resps. are not thus claiming to recover money from the applts. otherwise than under S. 18 (1) of the Ordinance. Their cause of action is the misconduct of the agent in the business of agency and is quite different. It is not for compensation arising from explosion.(21) It was argued that damages formed part of the cause of action of the resps. in framing the counterclaim and therefore S. 18 (2) stood in the way of the resps. The contention is unsound because the cause of action is completed by the averment that there was a duty or agreement to insure, that there was a failure to perform that duty, that loss had occasioned to the resps. because of the failure to perform the duty and the applts. were, therefore, liable for the breach of the duty. The quantum of damages is not a part of the cause of action. It is a matter to be ascertained by the Ct. according to well laid down principles of law.
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KAKADIA BUILDERS PVT LTD Vs. INCOME TAX OFFICER WARD 1(3) | the Settlement Commission for deciding the matter in question afresh on merits keeping in view the observations made infra.16. At the outset, we consider it apposite to mention that the issue involved in these appeals is governed by the law laid down by the decision of two Constitution Benches of this Court. One was rendered on 18.10.2001 in Commissioner of Income Tax, Mumbai vs. Anjum M.H. Ghaswala & Ors., (2002) 1 SCC 633 and the other was rendered on 21.10.2010 in Brij Lal & Ors. vs. Commissioner of Income Tax, Jalandhar, (2011) 1 SCC 1. 17. So far as the decision rendered in Ghaswala (supra) is concerned, the question involved therein was whether the Settlement Commission constituted under Section 245B of the Act has the jurisdiction to reduce or waive the interest chargeable under Sections 234A, 234B and 234C of the Act while passing the order of settlement under Section 245D of the Act. After examining the scheme of the Act in the context of the powers of the Settlement Commission, Justice Santosh Hegde speaking for the Bench held as under:“35. For the reasons stated above, we hold that the Commission in exercise of its power under Sections 245¬D(4) and (6) does not have the power to reduce or waive interest statutorily payable under Sections 234¬A, 234¬B and 234¬C except to the extent of granting relief under the circulars issued by the Board under Section 119 of the Act.”18. So far as the decision rendered in Brijlal (supra) is concerned, this Court examined the following three questions:“(I) Whether Section 234¬B applies to proceedings of the Settlement Commission under Chapter XIX¬A of the said Act?(II) If answer to the above question is in the affirmative, what is the terminal point for levy of such interest — whether such interest should be computed up to the date of the order under Section 245¬D(1) or up to the date of the order of the Commission under Section 245¬D(4)?(III) Whether the Settlement Commission could reopen its concluded proceedings by invoking Section 154 of the said Act so as to levy interest under Section 234¬B, though it was not so done in the original proceedings?”19. After examining these questions, this Court speaking through Justice S.H. Kapadia, the then learned CJI, answered the questions as under :“ (1) Sections 234¬A, 234¬B and 234¬C are applicable to the proceedings of the Settlement Commission under Chapter XIX¬A of the Act to the extent indicated hereinabove.(2) Consequent upon Conclusion (1), the terminal point for the levy of interest under Section 234-B would be up to the date of the order under Section 245¬D(1) and not up to the date of the order of settlement under Section 245¬D(4).(3) The Settlement Commission cannot reopen its concluded proceedings by invoking Section 154 of the Act so as to levy interest under Section 234¬B, particularly, in view of Section 245¬I.”20. Keeping in view the law laid down by this Court in the aforementioned two decisions, the question arises for consideration in these appeals is whether the High Court was justified in allowing the petitions(SCAs) filed by the Revenue.21. It is not in dispute that when the Settlement Commission passed the first order on 11.08.2000 disposing of the application of the appellants(aseesee), the issue with regard to the powers of the Settlement Commission was not settled by any decision of this Court. These two decisions were rendered after the Settlement Commission passed the order in this case. Therefore, the Settlement Commission had no occasion to examine the issue in question in the context of law laid down by this Court in these two decisions. However, the issue in question was, at that time, pending before the High Court in the petitions(SCAs).22. In a situation like the one arising in the case, the High Court instead of going into the merits of the issue, should have set aside the order dated 11.08.2000 passed by the Settlement Commission and remanded the case to the Settlement Commission for deciding the issue relating to waiver of interest payable under Sections 234A , 234B, and 234C of the Act afresh keeping in view the scope and the extent of powers of the Settlement Commissioner in relation to waiver of interest as laid down in the said two decisions.23. The High Court, however, committed a jurisdictional error when it observed in Para 13 (quoted above) that they (High Court) adopt the directions contained in the order of the Settlement Commission dated 11.10.2002 and then went on to make the said directions as a part of the impugned order in relation to waiver of interest. This approach of the High Court is wholly without jurisdiction.24. The High Court failed to see that the order dated 11.10.2002 of the Settlement Commission was already set aside by the High Court itself in the first round vide order dated 03.03.2014 passed in S.C.A. Nos. 15097 & 15101 of 2004 in the light of law laid down by this Court in Brijlal (supra) wherein it is laid down that the Settlement Commission has no power to pass orders under Section 154 (see conclusion III).25. Since the order dated 11.10.2002 of the Settlement Commission was already held bad in law on the ground that it was passed under Section 154 of the Act, the same was neither in existence for any purpose and nor it could be relied upon by the High Court much less for making it a part of their order for issuing a writ.26. In the light of what we have held above, we consider it apposite to set aside the impugned order and the order dated 11.08.2000 passed by Settlement Commission to the extent it decided the issue in relation to waiver of interest and remand the case to the Settlement Commission to decide the issue relating to waiver of interest payable by the assessee (appellants herein) afresh keeping in view the law laid down by this Court in Ghaswala (supra) and Brijlal (supra) after affording an opportunity to the parties concerned. | 1[ds]15. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions filed by the parties, we are inclined to allow the appeals and remand the case to the Settlement Commission for deciding the matter in question afresh on merits keeping in view the observations made infra.16. At the outset, we consider it apposite to mention that the issue involved in these appeals is governed by the law laid down by the decision of two Constitution Benches of this Court. One was rendered on 18.10.2001 in Commissioner of Income Tax, Mumbai vs. Anjum M.H. Ghaswala & Ors., (2002) 1 SCC 633 and the other was rendered on 21.10.2010 in Brij Lal & Ors. vs. Commissioner of Income Tax, Jalandhar, (2011) 1 SCC 1. Keeping in view the law laid down by this Court in the aforementioned two decisions, the question arises for consideration in these appeals is whether the High Court was justified in allowing the petitions(SCAs) filed by the Revenue.21. It is not in dispute that when the Settlement Commission passed the first order on 11.08.2000 disposing of the application of the appellants(aseesee), the issue with regard to the powers of the Settlement Commission was not settled by any decision of this Court. These two decisions were rendered after the Settlement Commission passed the order in this case. Therefore, the Settlement Commission had no occasion to examine the issue in question in the context of law laid down by this Court in these two decisions. However, the issue in question was, at that time, pending before the High Court in the petitions(SCAs).22. In a situation like the one arising in the case, the High Court instead of going into the merits of the issue, should have set aside the order dated 11.08.2000 passed by the Settlement Commission and remanded the case to the Settlement Commission for deciding the issue relating to waiver of interest payable under Sections 234A , 234B, and 234C of the Act afresh keeping in view the scope and the extent of powers of the Settlement Commissioner in relation to waiver of interest as laid down in the said two decisions.23. The High Court, however, committed a jurisdictional error when it observed in Para 13 (quoted above) that they (High Court) adopt the directions contained in the order of the Settlement Commission dated 11.10.2002 and then went on to make the said directions as a part of the impugned order in relation to waiver of interest. This approach of the High Court is wholly without jurisdiction.24. The High Court failed to see that the order dated 11.10.2002 of the Settlement Commission was already set aside by the High Court itself in the first round vide order dated 03.03.2014 passed in S.C.A. Nos. 15097 & 15101 of 2004 in the light of law laid down by this Court in Brijlal (supra) wherein it is laid down that the Settlement Commission has no power to pass orders under Section 154 (see conclusion III).25. Since the order dated 11.10.2002 of the Settlement Commission was already held bad in law on the ground that it was passed under Section 154 of the Act, the same was neither in existence for any purpose and nor it could be relied upon by the High Court much less for making it a part of their order for issuing a writ.26. In the light of what we have held above, we consider it apposite to set aside the impugned order and the order dated 11.08.2000 passed by Settlement Commission to the extent it decided the issue in relation to waiver of interest and remand the case to the Settlement Commission to decide the issue relating to waiver of interest payable by the assessee (appellants herein) afresh keeping in view the law laid down by this Court in Ghaswala (supra) and Brijlal (supra) after affording an opportunity to the parties concerned. | 1 | 1,899 | 727 | ### 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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the Settlement Commission for deciding the matter in question afresh on merits keeping in view the observations made infra.16. At the outset, we consider it apposite to mention that the issue involved in these appeals is governed by the law laid down by the decision of two Constitution Benches of this Court. One was rendered on 18.10.2001 in Commissioner of Income Tax, Mumbai vs. Anjum M.H. Ghaswala & Ors., (2002) 1 SCC 633 and the other was rendered on 21.10.2010 in Brij Lal & Ors. vs. Commissioner of Income Tax, Jalandhar, (2011) 1 SCC 1. 17. So far as the decision rendered in Ghaswala (supra) is concerned, the question involved therein was whether the Settlement Commission constituted under Section 245B of the Act has the jurisdiction to reduce or waive the interest chargeable under Sections 234A, 234B and 234C of the Act while passing the order of settlement under Section 245D of the Act. After examining the scheme of the Act in the context of the powers of the Settlement Commission, Justice Santosh Hegde speaking for the Bench held as under:“35. For the reasons stated above, we hold that the Commission in exercise of its power under Sections 245¬D(4) and (6) does not have the power to reduce or waive interest statutorily payable under Sections 234¬A, 234¬B and 234¬C except to the extent of granting relief under the circulars issued by the Board under Section 119 of the Act.”18. So far as the decision rendered in Brijlal (supra) is concerned, this Court examined the following three questions:“(I) Whether Section 234¬B applies to proceedings of the Settlement Commission under Chapter XIX¬A of the said Act?(II) If answer to the above question is in the affirmative, what is the terminal point for levy of such interest — whether such interest should be computed up to the date of the order under Section 245¬D(1) or up to the date of the order of the Commission under Section 245¬D(4)?(III) Whether the Settlement Commission could reopen its concluded proceedings by invoking Section 154 of the said Act so as to levy interest under Section 234¬B, though it was not so done in the original proceedings?”19. After examining these questions, this Court speaking through Justice S.H. Kapadia, the then learned CJI, answered the questions as under :“ (1) Sections 234¬A, 234¬B and 234¬C are applicable to the proceedings of the Settlement Commission under Chapter XIX¬A of the Act to the extent indicated hereinabove.(2) Consequent upon Conclusion (1), the terminal point for the levy of interest under Section 234-B would be up to the date of the order under Section 245¬D(1) and not up to the date of the order of settlement under Section 245¬D(4).(3) The Settlement Commission cannot reopen its concluded proceedings by invoking Section 154 of the Act so as to levy interest under Section 234¬B, particularly, in view of Section 245¬I.”20. Keeping in view the law laid down by this Court in the aforementioned two decisions, the question arises for consideration in these appeals is whether the High Court was justified in allowing the petitions(SCAs) filed by the Revenue.21. It is not in dispute that when the Settlement Commission passed the first order on 11.08.2000 disposing of the application of the appellants(aseesee), the issue with regard to the powers of the Settlement Commission was not settled by any decision of this Court. These two decisions were rendered after the Settlement Commission passed the order in this case. Therefore, the Settlement Commission had no occasion to examine the issue in question in the context of law laid down by this Court in these two decisions. However, the issue in question was, at that time, pending before the High Court in the petitions(SCAs).22. In a situation like the one arising in the case, the High Court instead of going into the merits of the issue, should have set aside the order dated 11.08.2000 passed by the Settlement Commission and remanded the case to the Settlement Commission for deciding the issue relating to waiver of interest payable under Sections 234A , 234B, and 234C of the Act afresh keeping in view the scope and the extent of powers of the Settlement Commissioner in relation to waiver of interest as laid down in the said two decisions.23. The High Court, however, committed a jurisdictional error when it observed in Para 13 (quoted above) that they (High Court) adopt the directions contained in the order of the Settlement Commission dated 11.10.2002 and then went on to make the said directions as a part of the impugned order in relation to waiver of interest. This approach of the High Court is wholly without jurisdiction.24. The High Court failed to see that the order dated 11.10.2002 of the Settlement Commission was already set aside by the High Court itself in the first round vide order dated 03.03.2014 passed in S.C.A. Nos. 15097 & 15101 of 2004 in the light of law laid down by this Court in Brijlal (supra) wherein it is laid down that the Settlement Commission has no power to pass orders under Section 154 (see conclusion III).25. Since the order dated 11.10.2002 of the Settlement Commission was already held bad in law on the ground that it was passed under Section 154 of the Act, the same was neither in existence for any purpose and nor it could be relied upon by the High Court much less for making it a part of their order for issuing a writ.26. In the light of what we have held above, we consider it apposite to set aside the impugned order and the order dated 11.08.2000 passed by Settlement Commission to the extent it decided the issue in relation to waiver of interest and remand the case to the Settlement Commission to decide the issue relating to waiver of interest payable by the assessee (appellants herein) afresh keeping in view the law laid down by this Court in Ghaswala (supra) and Brijlal (supra) after affording an opportunity to the parties concerned.
### Response:
1
### Explanation:
15. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions filed by the parties, we are inclined to allow the appeals and remand the case to the Settlement Commission for deciding the matter in question afresh on merits keeping in view the observations made infra.16. At the outset, we consider it apposite to mention that the issue involved in these appeals is governed by the law laid down by the decision of two Constitution Benches of this Court. One was rendered on 18.10.2001 in Commissioner of Income Tax, Mumbai vs. Anjum M.H. Ghaswala & Ors., (2002) 1 SCC 633 and the other was rendered on 21.10.2010 in Brij Lal & Ors. vs. Commissioner of Income Tax, Jalandhar, (2011) 1 SCC 1. Keeping in view the law laid down by this Court in the aforementioned two decisions, the question arises for consideration in these appeals is whether the High Court was justified in allowing the petitions(SCAs) filed by the Revenue.21. It is not in dispute that when the Settlement Commission passed the first order on 11.08.2000 disposing of the application of the appellants(aseesee), the issue with regard to the powers of the Settlement Commission was not settled by any decision of this Court. These two decisions were rendered after the Settlement Commission passed the order in this case. Therefore, the Settlement Commission had no occasion to examine the issue in question in the context of law laid down by this Court in these two decisions. However, the issue in question was, at that time, pending before the High Court in the petitions(SCAs).22. In a situation like the one arising in the case, the High Court instead of going into the merits of the issue, should have set aside the order dated 11.08.2000 passed by the Settlement Commission and remanded the case to the Settlement Commission for deciding the issue relating to waiver of interest payable under Sections 234A , 234B, and 234C of the Act afresh keeping in view the scope and the extent of powers of the Settlement Commissioner in relation to waiver of interest as laid down in the said two decisions.23. The High Court, however, committed a jurisdictional error when it observed in Para 13 (quoted above) that they (High Court) adopt the directions contained in the order of the Settlement Commission dated 11.10.2002 and then went on to make the said directions as a part of the impugned order in relation to waiver of interest. This approach of the High Court is wholly without jurisdiction.24. The High Court failed to see that the order dated 11.10.2002 of the Settlement Commission was already set aside by the High Court itself in the first round vide order dated 03.03.2014 passed in S.C.A. Nos. 15097 & 15101 of 2004 in the light of law laid down by this Court in Brijlal (supra) wherein it is laid down that the Settlement Commission has no power to pass orders under Section 154 (see conclusion III).25. Since the order dated 11.10.2002 of the Settlement Commission was already held bad in law on the ground that it was passed under Section 154 of the Act, the same was neither in existence for any purpose and nor it could be relied upon by the High Court much less for making it a part of their order for issuing a writ.26. In the light of what we have held above, we consider it apposite to set aside the impugned order and the order dated 11.08.2000 passed by Settlement Commission to the extent it decided the issue in relation to waiver of interest and remand the case to the Settlement Commission to decide the issue relating to waiver of interest payable by the assessee (appellants herein) afresh keeping in view the law laid down by this Court in Ghaswala (supra) and Brijlal (supra) after affording an opportunity to the parties concerned.
|
Desh Bandhu Gupta and Company and Others Vs. Delhi Stock Exchange Assn. Limited | Respondent rightly invited our attention to two documents on record which had come into existence almost simultaneously with the issuance of the notification explaining the manner in which outstanding transactions were intended to be closed or liquidated. In a Press Statement or Press Note issued by the Finance Ministry immediately upon the issuance of the notification it was stated thus:"The existing contracts entered into upto the date of the notification and remaining to be performed are, however, permitted by the same notification to be liquidated in accordance with the rules, bye-laws and regulations of the Stock Exchange concerned."Further it appears that in response to a query made by the President of the respondent, Shri Maitra, Joint Director (S.E.) Ministry of Finance, Department of Economic Affairs, addressed a communication dated June 28, 1969 to the President in which he stated thus:"As stated in the notification itself, all outstanding contracts which were not liquidated till the date o f notification, will have to be liquidated in accordance with the relevant rules, bye-laws and regulations of your exchange in that regard. No fresh forward transactions in any cleared security, however, is permissible.A statement of outstanding position in each of the cleared securities on your Exchange, as on the date of the notification may please be forwarded to us as early as possible and thereafter at each settlement so as to enable Government to know the reduction in the outstanding business effected from time to time. As will be seen, no specific period has been mentioned in the notification for liquidation of the outstandings. It is, however, hoped t hat you will issue suitable instruction to your members to ensure that the outstandings are cleared in a smooth and orderly manner within a reasonable period." (Emphasis supplied)8. It may be stated that in one of his earlier communications appellant No. 2 himself had requested the respondent to seek clarification from the Government on the points raised by him in regard to the outstanding transactions. The letter dated June 28, 1969 addressed by the Joint Director to the President of the Respondent clearly brings out two aspects: first, that as per the notification itself all outstanding contracts were permitted to be liquidated in accordance with the relevant rules, bye-laws and regulations of the respondent and secondly, no specific period was mentioned in the notification for liquidation of the outstanding business but the members operating on a recognised Stock Exchange were expected to clear the outstandings in a smooth and orderly manner within a reasonable period and, in fact, the Government desired the respondent to forward to it a statement at each settlement indicating the reduction in outstanding business effected from time to time. The exposition in these two documents, therefore, conforms to our interpretation of the proviso.9. It may be stated that it was not disputed before us that these two documents which came into existence almost simultaneously with the issuance of the notification could be looked at for finding out the true intention of the Government in issuing the notification in question, particularly in regard to the manner in which outstanding transactions were to be closed or liquidated. The principle of contemporanea expositio (interpreting a statute or any other document by reference to the exposition it has received from contemporary authority) can be invoked though the same will not always be decisive of the quest ion of construction. (Maxwell 12th Edn. p. 268). In Crawford on Statutory Construction (1940 Edn.) in para 219 (at pp. 393- 395) it has been stated that administrative construction (i.e. contemporaneous construction placed by administrative or executive officers charged with executing a statute) generally should be clearly wrong before it is overturned; such a construction, commonly referred to as practical construction, although not controlling, is nevertheless entitled to considerable weight; it is highly persuasive. In Baleshwar Bagarti v. Bhagirathi Dass(1) the principle, which was reiterated in Mathura Mohan Saha v. Ram Kumar Saha(2) has been stated by Mukerjee J. thus:"It is a well-settled principle of construction that courts in construing a statute will give much weight to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to construe, execute and apply it. I do not suggest for a moment that such interpretation has by any means a controlling effect upon the Courts; such interpretation may, if occasion arises, have to be disregarded for cogent and persuasive reasons, and in a clear case of error, a Court would without hesitation refuse to follow such construction."10. Of course, even without the aid of these two documents which contain a contemporaneous exposition of the Governments intention, we have come to the conclusion t hat on a plain construction of the Notification the proviso permitted the closing out or liquidation of all outstanding transactions by entering into a forward contract in accordance with the rules, bye-laws and regulations of the respondent.11. Having regard to the above construction which appears to us to be the true and proper construction of the notification in question it will be clear that the directions issued by the respondent to all its members including appellant No. 2 on June 28, 1969 in regard to their outstanding transactions as at the close of June 27, 1969 were proper and legal and the appellants stand was clearly erroneous. It cannot be disputed that ample opportunity was given to appellant No. 2 to comply with the directions but the appellant persisted in his erroneous contention, and failed to comply with those directions with the result that the respondent had no alternative but to declare him a defaulter. In our view, the directions dated June 28, 1969 as well as the two resolutions passed by the respondent on July 2 and July 3, 1969 were proper and justified and the appellants case on merits was rightly rejected by the High Court. This conclusion of ours, as stated at the commencement of the judgment, renders unnecessary the determination of the preliminary objection. | 0[ds]In our view, the notification was in three parts. By the first part the Central Government put a ban on all forward trading in sha res through the Stock Exchanges in the country by declaring that "no person.. shall, save with the permission of the Central Government, enter into any contract for the sale or purchase of securities other than such spot delivery con tract or contract for cash or hand delivery or special delivery in any securities as is permissible under the said Act, and the rules, bye-laws and regulations of a recognised stock exchange."The second part consisted of the proviso and it de alt fully with how all existing contracts remaining outstanding as on the date of the notification should be closed or liquidated, and the direction contained therein in that behalf was to the effect that "a contract other than a spot deli very contract or contract for cash or hand delivery or special delivery (meaning thereby a forward contract).......may be entered into between its members or through or with any such member for the purpose of closing out or liquidating all existing contracts.... remaining to be performed after that date."In other words, for the purpose of closing or liquidating existing outstanding transactions a forward contract (which would include a carry over) was permitted to be entered into. Then follows the third or the last part of the notification which commences with the words "but such contracts shall be subject to ....... " The expression "such contracts" occurring in this last part of the notification meant those as wer e referred to in the first part of the notification the making of which was banned after June 27, 1969 and the last portion provided that such forward contracts that had been banned "shall be subject to the rules, bye-laws or regulations of th e recognised Stock Exchange that come into force (i.e. become applicable) when further new dealings are prohibited ........ and subject also to such terms and conditions as the Central Government may from time to time impose." In our view the expression "such contracts" occurring in the last part of the notification were not referable to the existing outstanding contracts nor to a contract that could be entered into for closing or liquidating the existing outstanding con tracts. In other words, the third part of the notification on which reliance has been placed by the counsel for the appellants, in our view, has nothing to do with the existing outstanding contracts, the closing or liquidating of which was independently provided for by the proviso. It will thus appear clear that on a proper construction of the notification in question the proviso clearly permitted the closing or liquidating of the existing outstanding trans actions in the normal manner by entering into a forward contract (which would include a "carry over") in accordance with the rules, bye-laws and regulations of the Respondent. There was no warrant for the stand taken by the appellant No. 2 that all outstanding transactions had to be or could be adjusted on the basis of "previous official closing".On the construction of the proviso counsel for the Respondent rightly invited our attention to two documents on record which had come into existence almost simultaneously with the issuance of the notification explaining the manner in which outstanding transactions were intended to be closed orcourse, even without the aid of these two documents which contain a contemporaneous exposition of the Governments intention, we have come to the conclusion t hat on a plain construction of the Notification the proviso permitted the closing out or liquidation of all outstanding transactions by entering into a forward contract in accordance with the rules, bye-laws and regulations of theregard to the above construction which appears to us to be the true and proper construction of the notification in question it will be clear that the directions issued by the respondent to all its members including appellant No. 2 on June 28, 1969 in regard to their outstanding transactions as at the close of June 27, 1969 were proper and legal and the appellants stand was clearly erroneous. It cannot be disputed that ample opportunity was given to appellant No. 2 to comply with the directions but the appellant persisted in his erroneous contention, and failed to comply with those directions with the result that the respondent had no alternative but to declare him a defaulter. In our view, the directions dated June 28, 1969 as well as the two resolutions passed by the respondent on July 2 and July 3, 1969 were proper and justified and the appellants case on merits was rightly rejected by the High Court. This conclusion of ours, as stated at the commencement of the judgment, renders unnecessary the determination of the preliminary objection. | 0 | 4,529 | 875 | ### 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:
Respondent rightly invited our attention to two documents on record which had come into existence almost simultaneously with the issuance of the notification explaining the manner in which outstanding transactions were intended to be closed or liquidated. In a Press Statement or Press Note issued by the Finance Ministry immediately upon the issuance of the notification it was stated thus:"The existing contracts entered into upto the date of the notification and remaining to be performed are, however, permitted by the same notification to be liquidated in accordance with the rules, bye-laws and regulations of the Stock Exchange concerned."Further it appears that in response to a query made by the President of the respondent, Shri Maitra, Joint Director (S.E.) Ministry of Finance, Department of Economic Affairs, addressed a communication dated June 28, 1969 to the President in which he stated thus:"As stated in the notification itself, all outstanding contracts which were not liquidated till the date o f notification, will have to be liquidated in accordance with the relevant rules, bye-laws and regulations of your exchange in that regard. No fresh forward transactions in any cleared security, however, is permissible.A statement of outstanding position in each of the cleared securities on your Exchange, as on the date of the notification may please be forwarded to us as early as possible and thereafter at each settlement so as to enable Government to know the reduction in the outstanding business effected from time to time. As will be seen, no specific period has been mentioned in the notification for liquidation of the outstandings. It is, however, hoped t hat you will issue suitable instruction to your members to ensure that the outstandings are cleared in a smooth and orderly manner within a reasonable period." (Emphasis supplied)8. It may be stated that in one of his earlier communications appellant No. 2 himself had requested the respondent to seek clarification from the Government on the points raised by him in regard to the outstanding transactions. The letter dated June 28, 1969 addressed by the Joint Director to the President of the Respondent clearly brings out two aspects: first, that as per the notification itself all outstanding contracts were permitted to be liquidated in accordance with the relevant rules, bye-laws and regulations of the respondent and secondly, no specific period was mentioned in the notification for liquidation of the outstanding business but the members operating on a recognised Stock Exchange were expected to clear the outstandings in a smooth and orderly manner within a reasonable period and, in fact, the Government desired the respondent to forward to it a statement at each settlement indicating the reduction in outstanding business effected from time to time. The exposition in these two documents, therefore, conforms to our interpretation of the proviso.9. It may be stated that it was not disputed before us that these two documents which came into existence almost simultaneously with the issuance of the notification could be looked at for finding out the true intention of the Government in issuing the notification in question, particularly in regard to the manner in which outstanding transactions were to be closed or liquidated. The principle of contemporanea expositio (interpreting a statute or any other document by reference to the exposition it has received from contemporary authority) can be invoked though the same will not always be decisive of the quest ion of construction. (Maxwell 12th Edn. p. 268). In Crawford on Statutory Construction (1940 Edn.) in para 219 (at pp. 393- 395) it has been stated that administrative construction (i.e. contemporaneous construction placed by administrative or executive officers charged with executing a statute) generally should be clearly wrong before it is overturned; such a construction, commonly referred to as practical construction, although not controlling, is nevertheless entitled to considerable weight; it is highly persuasive. In Baleshwar Bagarti v. Bhagirathi Dass(1) the principle, which was reiterated in Mathura Mohan Saha v. Ram Kumar Saha(2) has been stated by Mukerjee J. thus:"It is a well-settled principle of construction that courts in construing a statute will give much weight to the interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to construe, execute and apply it. I do not suggest for a moment that such interpretation has by any means a controlling effect upon the Courts; such interpretation may, if occasion arises, have to be disregarded for cogent and persuasive reasons, and in a clear case of error, a Court would without hesitation refuse to follow such construction."10. Of course, even without the aid of these two documents which contain a contemporaneous exposition of the Governments intention, we have come to the conclusion t hat on a plain construction of the Notification the proviso permitted the closing out or liquidation of all outstanding transactions by entering into a forward contract in accordance with the rules, bye-laws and regulations of the respondent.11. Having regard to the above construction which appears to us to be the true and proper construction of the notification in question it will be clear that the directions issued by the respondent to all its members including appellant No. 2 on June 28, 1969 in regard to their outstanding transactions as at the close of June 27, 1969 were proper and legal and the appellants stand was clearly erroneous. It cannot be disputed that ample opportunity was given to appellant No. 2 to comply with the directions but the appellant persisted in his erroneous contention, and failed to comply with those directions with the result that the respondent had no alternative but to declare him a defaulter. In our view, the directions dated June 28, 1969 as well as the two resolutions passed by the respondent on July 2 and July 3, 1969 were proper and justified and the appellants case on merits was rightly rejected by the High Court. This conclusion of ours, as stated at the commencement of the judgment, renders unnecessary the determination of the preliminary objection.
### Response:
0
### Explanation:
In our view, the notification was in three parts. By the first part the Central Government put a ban on all forward trading in sha res through the Stock Exchanges in the country by declaring that "no person.. shall, save with the permission of the Central Government, enter into any contract for the sale or purchase of securities other than such spot delivery con tract or contract for cash or hand delivery or special delivery in any securities as is permissible under the said Act, and the rules, bye-laws and regulations of a recognised stock exchange."The second part consisted of the proviso and it de alt fully with how all existing contracts remaining outstanding as on the date of the notification should be closed or liquidated, and the direction contained therein in that behalf was to the effect that "a contract other than a spot deli very contract or contract for cash or hand delivery or special delivery (meaning thereby a forward contract).......may be entered into between its members or through or with any such member for the purpose of closing out or liquidating all existing contracts.... remaining to be performed after that date."In other words, for the purpose of closing or liquidating existing outstanding transactions a forward contract (which would include a carry over) was permitted to be entered into. Then follows the third or the last part of the notification which commences with the words "but such contracts shall be subject to ....... " The expression "such contracts" occurring in this last part of the notification meant those as wer e referred to in the first part of the notification the making of which was banned after June 27, 1969 and the last portion provided that such forward contracts that had been banned "shall be subject to the rules, bye-laws or regulations of th e recognised Stock Exchange that come into force (i.e. become applicable) when further new dealings are prohibited ........ and subject also to such terms and conditions as the Central Government may from time to time impose." In our view the expression "such contracts" occurring in the last part of the notification were not referable to the existing outstanding contracts nor to a contract that could be entered into for closing or liquidating the existing outstanding con tracts. In other words, the third part of the notification on which reliance has been placed by the counsel for the appellants, in our view, has nothing to do with the existing outstanding contracts, the closing or liquidating of which was independently provided for by the proviso. It will thus appear clear that on a proper construction of the notification in question the proviso clearly permitted the closing or liquidating of the existing outstanding trans actions in the normal manner by entering into a forward contract (which would include a "carry over") in accordance with the rules, bye-laws and regulations of the Respondent. There was no warrant for the stand taken by the appellant No. 2 that all outstanding transactions had to be or could be adjusted on the basis of "previous official closing".On the construction of the proviso counsel for the Respondent rightly invited our attention to two documents on record which had come into existence almost simultaneously with the issuance of the notification explaining the manner in which outstanding transactions were intended to be closed orcourse, even without the aid of these two documents which contain a contemporaneous exposition of the Governments intention, we have come to the conclusion t hat on a plain construction of the Notification the proviso permitted the closing out or liquidation of all outstanding transactions by entering into a forward contract in accordance with the rules, bye-laws and regulations of theregard to the above construction which appears to us to be the true and proper construction of the notification in question it will be clear that the directions issued by the respondent to all its members including appellant No. 2 on June 28, 1969 in regard to their outstanding transactions as at the close of June 27, 1969 were proper and legal and the appellants stand was clearly erroneous. It cannot be disputed that ample opportunity was given to appellant No. 2 to comply with the directions but the appellant persisted in his erroneous contention, and failed to comply with those directions with the result that the respondent had no alternative but to declare him a defaulter. In our view, the directions dated June 28, 1969 as well as the two resolutions passed by the respondent on July 2 and July 3, 1969 were proper and justified and the appellants case on merits was rightly rejected by the High Court. This conclusion of ours, as stated at the commencement of the judgment, renders unnecessary the determination of the preliminary objection.
|
State Of Punjab Vs. Hindsons (P) Ltd | p. Deductions were claimed in respect of sales of tax-free goods, sales made to registered dealers etc. Among the sales claimed in respect of tax-free goods, a commodity known as belt pulley attachment was included valued at Rs. 26.572.82p. It was admitted that the belt pulley attachment was sold alongwith tractor or separately by itself. It was contended by the assessee that the belt pulley attachment should be treated as an agricultural implement and therefore, it is exempted under Entry 34 of Schedule B to the Act from the levy of sales tax. The assessing authority came to the conclusion that the belt pulley attachment could not be treated as a composite part of the tractor nor can it be treated as an agricultural implement and it was not one of the tax-free goods as contemplated by Entry 34. He accordingly, rejected the claim for deduction and completed the assessment for the assessment year 1965-66. The assessee preferred an appeal before the Deputy Excise and Taxation Commissioner raising various contentions, one of them being that the assessing authority was in error in holding that belt pulley attachment was not an agricultural implement so as to be exempt from the payment of sales tax. The appellate authority held that the belt pulley attachment should be treated as an agricultural implement and allowed the appeal to that extent holding that the sales of belt pulley attachment amounting to Rs. 26, 572.82p. was of tax-free goods under Section 5(2)(a)(i) and that amount should be deducted from the gross turnover of the assessee. The Joint Excise and Taxation Commissioner exercising the powers of Commissioner initiated suo moto proceedings under Section 21(1) of the Act and concluded that the appellate authority was in error in holding that the belt pulley attachment was an agricultural implement. He accordingly quashed the order of the appellate authority and restored the order of the assessing authority. The assessee carried the matter in revision to the Sales Tax Tribunal raising the same contention. The Sales Tax Tribunal by its order dated October 21, 1972 upheld the order of the Joint Excise and Taxation Commissioner and dismissed the revision petition. The assessee moved an application under Section 21(1) of the Act requesting the Tribunal to state the case and refer the question of law as hereinbefore set out to the High Court. The Tribunal rejected the application. Thereupon the assessee moved the High Court as herein above mentioned. The High Court held that belt pulley attachment, as a matter of fact, increases the utility of a tractor for an agricultural operation and concluded `that belt pulley attachment falls within the meaning of agricultural implement . The High Court accordingly answered the question in the affirmative that is against the revenue and in favour of the assessee. Hence this appeal by special leave. 3. The narrow question is whether belt pulley attachment is an agricultural implement so as to be exempt from the levy of sales tax under the Act. It is indeed true as held by the High Court that the belt pulley when used in a tractor may increase the utility of the tractor for agricultural operations but that by itself does not lead to the inevitable conclusion that belt pulley attachment is an agricultural implement. The Tribunal in this connection, has rightly held that not only belt pulley attachment is used in the tractor but it is also used in water pumps, threshers etc. The High Court unfortunately overlooked the most obvious fact that belt pulley is also sold as a separate spare part. It is used in various other machines such as motor car engines. Belt pulley means a pulley over which a belt may pass to transmit power to other part of the machine. Common sense tells us that even in a motor-car there is belt pulley and the rotational movement is transmitted from the rotating fan via the belt on the pulley to the pulley of the dynamo for charging it. The assessee is selling belt pulley attachment as spare-part which can thus be used in many machines. If it is so then it is difficult to understand how belt pulley attachment by itself becomes an agricultural implement. When used in a motor engine, how can one ever assure that it is an agricultural implement. It may as well be used in many agricultural instruments where mechanised farming takes place. But by itself when sold as a spare part it can by itself become an agricultural implement. The exemption was with regard to an agricultural implement as contemplated by Entry 34 in Schedule B to the Act. Undoubtedly, later on by amendment to Entry 34 on April 15, 1971, belt pulley attachment has been introduced in Entry 34. On this account alone it cannot however, be contended that the amendment merely makes explicit what was implicit in the entry as it stood prior to the amendment. The Tribunal rightly held that if belt pulley is used in a tractor and sales tax is levied on the sale of tractor no separate sales-tax is levied on belt pulley. We do not propose to view the matter from this angle. We must examine whether a belt pulley attachment when sold as a spare-part would be comprehended in Entry 34 which sets out agricultural implements exempted from the levy of sales tax. Obviously, as stated earlier belt pulley attachment which can be used in various mechanical appliances or devices by itself cannot be said to be an agricultural implement. To comprehend it in the generic term agricultural implement , we would have to stretch the language to impermissible limit of breaking it. 4. The High Court merely observed that :A belt pulley, as a matter of fact, increases the utility of a tractor for agricultural operation and therefore a belt pulley falls within the meaning of an agricultural implement. The conclusion on the face of it without anything more is incorrect and cannot be accepted as an ipse dixit. | 1[ds]The High Court unfortunately overlooked the most obvious fact that belt pulley is also sold as a separate spare part. It is used in various other machines such as motor car engines. Belt pulley means a pulley over which a belt may pass to transmit power to other part of the machine. Common sense tells us that even in a motor-car there is belt pulley and the rotational movement is transmitted from the rotating fan via the belt on the pulley to the pulley of the dynamo for charging it. The assessee is selling belt pulley attachment as spare-part which can thus be used in many machines. If it is so then it is difficult to understand how belt pulley attachment by itself becomes an agricultural implement. When used in a motor engine, how can one ever assure that it is an agricultural implement. It may as well be used in many agricultural instruments where mechanised farming takes place. But by itself when sold as a spare part it can by itself become an agricultural implement. The exemption was with regard to an agricultural implement as contemplated by Entry 34 in Schedule B to the Act. Undoubtedly, later on by amendment to Entry 34 on April 15, 1971, belt pulley attachment has been introduced in Entry 34. On this account alone it cannot however, be contended that the amendment merely makes explicit what was implicit in the entry as it stood prior to the amendment. The Tribunal rightly held that if belt pulley is used in a tractor and sales tax is levied on the sale of tractor no separate sales-tax is levied on belt pulley. We do not propose to view the matter from this angle. We must examinewhether a belt pulley attachment when sold as aspare-partwould be comprehended in Entry 34 which sets out agricultural implements exempted from the levy of sales tax.Obviously, as stated earlier belt pulley attachment which can be used in various mechanical appliances or devices by itself cannot be said to be an agricultural implement. To comprehend it in the generic term agricultural implement , we would have to stretch the language to impermissible limit of breaking it4. The High Court merely observed that :A belt pulley, as a matter of fact, increases the utility of a tractor for agricultural operation and therefore a belt pulley falls within the meaning of an agricultural implementThe conclusion on the face of it without anything more is incorrect and cannot be accepted as an ipse dixit. | 1 | 1,246 | 452 | ### 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:
p. Deductions were claimed in respect of sales of tax-free goods, sales made to registered dealers etc. Among the sales claimed in respect of tax-free goods, a commodity known as belt pulley attachment was included valued at Rs. 26.572.82p. It was admitted that the belt pulley attachment was sold alongwith tractor or separately by itself. It was contended by the assessee that the belt pulley attachment should be treated as an agricultural implement and therefore, it is exempted under Entry 34 of Schedule B to the Act from the levy of sales tax. The assessing authority came to the conclusion that the belt pulley attachment could not be treated as a composite part of the tractor nor can it be treated as an agricultural implement and it was not one of the tax-free goods as contemplated by Entry 34. He accordingly, rejected the claim for deduction and completed the assessment for the assessment year 1965-66. The assessee preferred an appeal before the Deputy Excise and Taxation Commissioner raising various contentions, one of them being that the assessing authority was in error in holding that belt pulley attachment was not an agricultural implement so as to be exempt from the payment of sales tax. The appellate authority held that the belt pulley attachment should be treated as an agricultural implement and allowed the appeal to that extent holding that the sales of belt pulley attachment amounting to Rs. 26, 572.82p. was of tax-free goods under Section 5(2)(a)(i) and that amount should be deducted from the gross turnover of the assessee. The Joint Excise and Taxation Commissioner exercising the powers of Commissioner initiated suo moto proceedings under Section 21(1) of the Act and concluded that the appellate authority was in error in holding that the belt pulley attachment was an agricultural implement. He accordingly quashed the order of the appellate authority and restored the order of the assessing authority. The assessee carried the matter in revision to the Sales Tax Tribunal raising the same contention. The Sales Tax Tribunal by its order dated October 21, 1972 upheld the order of the Joint Excise and Taxation Commissioner and dismissed the revision petition. The assessee moved an application under Section 21(1) of the Act requesting the Tribunal to state the case and refer the question of law as hereinbefore set out to the High Court. The Tribunal rejected the application. Thereupon the assessee moved the High Court as herein above mentioned. The High Court held that belt pulley attachment, as a matter of fact, increases the utility of a tractor for an agricultural operation and concluded `that belt pulley attachment falls within the meaning of agricultural implement . The High Court accordingly answered the question in the affirmative that is against the revenue and in favour of the assessee. Hence this appeal by special leave. 3. The narrow question is whether belt pulley attachment is an agricultural implement so as to be exempt from the levy of sales tax under the Act. It is indeed true as held by the High Court that the belt pulley when used in a tractor may increase the utility of the tractor for agricultural operations but that by itself does not lead to the inevitable conclusion that belt pulley attachment is an agricultural implement. The Tribunal in this connection, has rightly held that not only belt pulley attachment is used in the tractor but it is also used in water pumps, threshers etc. The High Court unfortunately overlooked the most obvious fact that belt pulley is also sold as a separate spare part. It is used in various other machines such as motor car engines. Belt pulley means a pulley over which a belt may pass to transmit power to other part of the machine. Common sense tells us that even in a motor-car there is belt pulley and the rotational movement is transmitted from the rotating fan via the belt on the pulley to the pulley of the dynamo for charging it. The assessee is selling belt pulley attachment as spare-part which can thus be used in many machines. If it is so then it is difficult to understand how belt pulley attachment by itself becomes an agricultural implement. When used in a motor engine, how can one ever assure that it is an agricultural implement. It may as well be used in many agricultural instruments where mechanised farming takes place. But by itself when sold as a spare part it can by itself become an agricultural implement. The exemption was with regard to an agricultural implement as contemplated by Entry 34 in Schedule B to the Act. Undoubtedly, later on by amendment to Entry 34 on April 15, 1971, belt pulley attachment has been introduced in Entry 34. On this account alone it cannot however, be contended that the amendment merely makes explicit what was implicit in the entry as it stood prior to the amendment. The Tribunal rightly held that if belt pulley is used in a tractor and sales tax is levied on the sale of tractor no separate sales-tax is levied on belt pulley. We do not propose to view the matter from this angle. We must examine whether a belt pulley attachment when sold as a spare-part would be comprehended in Entry 34 which sets out agricultural implements exempted from the levy of sales tax. Obviously, as stated earlier belt pulley attachment which can be used in various mechanical appliances or devices by itself cannot be said to be an agricultural implement. To comprehend it in the generic term agricultural implement , we would have to stretch the language to impermissible limit of breaking it. 4. The High Court merely observed that :A belt pulley, as a matter of fact, increases the utility of a tractor for agricultural operation and therefore a belt pulley falls within the meaning of an agricultural implement. The conclusion on the face of it without anything more is incorrect and cannot be accepted as an ipse dixit.
### Response:
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### Explanation:
The High Court unfortunately overlooked the most obvious fact that belt pulley is also sold as a separate spare part. It is used in various other machines such as motor car engines. Belt pulley means a pulley over which a belt may pass to transmit power to other part of the machine. Common sense tells us that even in a motor-car there is belt pulley and the rotational movement is transmitted from the rotating fan via the belt on the pulley to the pulley of the dynamo for charging it. The assessee is selling belt pulley attachment as spare-part which can thus be used in many machines. If it is so then it is difficult to understand how belt pulley attachment by itself becomes an agricultural implement. When used in a motor engine, how can one ever assure that it is an agricultural implement. It may as well be used in many agricultural instruments where mechanised farming takes place. But by itself when sold as a spare part it can by itself become an agricultural implement. The exemption was with regard to an agricultural implement as contemplated by Entry 34 in Schedule B to the Act. Undoubtedly, later on by amendment to Entry 34 on April 15, 1971, belt pulley attachment has been introduced in Entry 34. On this account alone it cannot however, be contended that the amendment merely makes explicit what was implicit in the entry as it stood prior to the amendment. The Tribunal rightly held that if belt pulley is used in a tractor and sales tax is levied on the sale of tractor no separate sales-tax is levied on belt pulley. We do not propose to view the matter from this angle. We must examinewhether a belt pulley attachment when sold as aspare-partwould be comprehended in Entry 34 which sets out agricultural implements exempted from the levy of sales tax.Obviously, as stated earlier belt pulley attachment which can be used in various mechanical appliances or devices by itself cannot be said to be an agricultural implement. To comprehend it in the generic term agricultural implement , we would have to stretch the language to impermissible limit of breaking it4. The High Court merely observed that :A belt pulley, as a matter of fact, increases the utility of a tractor for agricultural operation and therefore a belt pulley falls within the meaning of an agricultural implementThe conclusion on the face of it without anything more is incorrect and cannot be accepted as an ipse dixit.
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Gestetner Duplicators Private Limited Vs. Commissioner of Income Tax, West Bengal | 36(1) (iv) of the Act.Turning to the Circular dated January 16, 1941 issued by the Central Board of Revenue on which counsel for the Revenue has relied, it cannot, in our view, affect the question of deductibility, for, if the commission paid by the assessee to its salesmen is covered by the expression salary on its true construction, which, according to us, it does, the Boards view or instructions cannot detract from the legal position arising on such proper construction. In any case we are of the view that by the said Circular what the Board wants to keep out of the term salary are payments by way of commission which do not partake of the character of salary. Similarly the decision of this Court in M/s. Bridge &Roof Co.s case (supra) on which the High Court has relied cannot avail the Revenue. In the first place it was a case under the Provident Fund Act, 1952 where this Court was required to construe the expression basic wages as defined in s. 2(b) of that Act and to decide whether production bonus was included in that expression and it was in that context that this Court made observations to the effect that the said expression as defined therein did not include any bonus, commission or other similar allowances. Secondly, as against the definition of basic wages in s. 2(b) (ii) which excluded any dearness allowance, house rent allowance, over-time allowance, bonus, commission or any other similar allowance, s. 6, of the Act provided for inclusion of dearness allowance for the purposes of contribution and, therefore, this Court was concerned with trying to discover some basis for the exclusion in cl. (ii) of s. 2(b) as also for the inclusion of dearness allowance and retaining allow ance (if any) in s. 6 of that Act and the Court found that the basis for inclusion in s. 6 and exclusion in cl. (ii) of s. 2(b) was that whatever was payable in all concerns and was earned by all permanent employees was included for the purpose of contribution under s. 6 but whatever was not payable by all concerns and was not earned by all employees of a concern was excluded for the purposes of contribution and that is why commission or similar allowances were excluded from the definition of basic wages, for commission and allowances were not necessarily to be found in all concerns nor were they necessarily earned by all the employees of the same concern. It is, therefore, clear that the ratio of the decision and th e observations made by this Court in a different context in that case would be inapplicable to the facts of the present case.Having regard to the above discussion it is clear that the High Courts view on the first question is clearly unsustainable and that question must be answered in favour of the assessee and against the Revenue. 7. Dealing next with the second question it seems to us clear that having regard to our view on the proper construction of the expression salary occurring in Rule 2(h) of Part A of the Fourth Schedule to the Act it must be held that the Tribunal was right in holding that the Provident Fund maintained by the assessee satisfied the condition laid down in Rule 4(c) of Part A of the Fourth Schedule and that question also must be answered in favour of the assessee and against the Revenue However, we would like to make some observations with regard to the true impact of the recognition granted by the Commissioner of Income-Tax to a Provident Fund maintained by an assessee. The facts in the present case that need be stressed in this behalf are that it was as far back as 1937 that the Commissioner of Income-tax had granted recognition to the Provident Fund maintained by the assessee under the relevant rules under 1922 Act, that such recognition had been granted after the true nature of the commission payable by the assessee to its salesmen under their contracts of employment had been brought to t he notice of the Commissioner and that said recognition had continued to remain in operation during the relevant assessment years in question; the last fact in particular clearly implied that the Provident Fund of the assessee did satisfy all the conditions laid down in Rule 4 of Part A of the Fourth Schedule to the Act even during the relevant assessment years. In that situation we do not think that it was open to the taxing authorities to question the recognition in any of the relevant years on t he ground that the assessees Provident Fund did not satisfy any particular condition mentioned in Rule 4. It would be conducive to judicial discipline and the maintaining of certainty and uniformity in administering the law that the taxing authorities should proceed on the basis that the recognition granted and available for any particular assessment year implies that the Provident Fund satisfies all the conditions under Rule 4 of Part A of the Fourth Schedule to the Act and not sit in judgment over it. There is ample power conferred upon the Commissioner under Rule 3 of Part A of the Fourth Schedule to withdraw at any time the recognition already granted if, in his opinion, the Provident Fund contravenes any of the condition s required to be satisfied for its recognition and if during assessment proceedings for any particular assessment year the taxing authority finds that the Provident Fund maintained by an assessee has contravened any of the conditions of recognition he may refer the question of withdrawal of recognition to the Commissioner but until the Commissioner acting under the powers reserved to him withdraws such recognition the taxing authority must proceed on the basis that the Provident Fun d has satisfied all the requisite conditions for its recognition for that year; any other course is bound to result in chaos and uncertainty which has to be avoided. 8. | 1[ds]It will thus appear clear that conceptually there is no difference between salary and wages both being a recompense for work done or services rendered, though ordinarily the former expression is used in connection with services of non-manual type while the latter is used in connection with manual services. It is further common knowledge that this compensation to the labourer or artisan could be a specified sum for a given time of service or a fixed sum for a specified work i.e. payment made by the job, the commonest example of the latter category being a piece-rated worker. In other words, the expression wages does not imply that the compensation is to be determined solely upon the basis of time spent in service; it may be determined by the work done; it could be estimated in either way. If conceptually salary and wages mea n one and the same thing then salary could take the form of payment by reference to the time factor or by the job done. In fact, in the case of salary the recompense could be determined wholly on the basis of time spent on service or wholly by the work done or partly by the time spent in service and partly by the work done. In other words, whatever be the basis on which such recompense is determined it would all be salary.Having reached the above conclusion, we have to consider the nature of recompense that is being made by the assessee to its salesmen, whether the whole of it partakes of the character of salary or not? The definition of salary in Rule 2(h) includes dearness allowance if the terms of employment so provide and excludes all other allowances and perquisites. It does not in terms exclude commission as such and, in our view rightly, for, though ordinarily according to the Shorter Oxford English Dictionary commission means a pro rata remuneration for work done as agent, in business practice commission covers various kinds of payments made under different circumstances.It is thus clear that if under the terms of the contract of employment remuneration or recompense for the services rendered by the employee is determined at a fixed percentage of turnover achieved by him then such remuneration or recompense will partake of the character of salary, the percentage basis being the measure of the salary and therefore such remuneration or recompense must fall within the expression salary as defined in Rule 2(h) of Part A of the Fourth Schedule to the Act. In the instant case before us, admittedly, under their contracts of employment the assessee has been paying and did pay during the previous years relevant to the three assessment years to its salesmen, in addition to the fixed monthly salary, commission at a fixed percentage of the turnover achieved by each salesman, the rate of percentage varying according to the class of article sold and the category to which each salesman belonged. The instant case is therefore, an instance where the remuneration so recompense payable for the services rendered by the salesmen is determined partly by reference to the time spent in the service and partly by reference to the volume of work done. But it is clear that the entire remuneration so determined on both the basis clearly partake s of the character of salary. In our view, therefore, the commission paid by the assessee to its salesmen would clearly fall within the expression salary as defined in Rule 2(h) of Part A of the Fourth Schedule to the Act and as such the three sums of Rs. 95, 421/-, Rs. 1, 00, 564/- and Rs. 1, 17, 969/- representing proportionate contributions appertaining to the commission paid by the assessee to its salesmen would be deductible under s. 36(1) (iv) of the Act.Turning to the Circular dated January 16, 1941 issued by the Central Board of Revenue on which counsel for the Revenue has relied, it cannot, in our view, affect the question of deductibility, for, if the commission paid by the assessee to its salesmen is covered by the expression salary on its true construction, which, according to us, it does, the Boards view or instructions cannot detract from the legal position arising on such proper construction. In any case we are of the view that by the said Circular what the Board wants to keep out of the term salary are payments by way of commission which do not partake of the character of salary. Similarly the decision of this Court in M/s. Bridge &Roof Co.s case (supra) on which the High Court has relied cannot avail the Revenue. In the first place it was a case under the Provident Fund Act, 1952 where this Court was required to construe the expression basic wages as defined in s. 2(b) of that Act and to decide whether production bonus was included in that expression and it was in that context that this Court made observations to the effect that the said expression as defined therein did not include any bonus, commission or other similar allowances. Secondly, as against the definition of basic wages in s. 2(b) (ii) which excluded any dearness allowance, house rent allowance, over-time allowance, bonus, commission or any other similar allowance, s. 6, of the Act provided for inclusion of dearness allowance for the purposes of contribution and, therefore, this Court was concerned with trying to discover some basis for the exclusion in cl. (ii) of s. 2(b) as also for the inclusion of dearness allowance and retaining allow ance (if any) in s. 6 of that Act and the Court found that the basis for inclusion in s. 6 and exclusion in cl. (ii) of s. 2(b) was that whatever was payable in all concerns and was earned by all permanent employees was included for the purpose of contribution under s. 6 but whatever was not payable by all concerns and was not earned by all employees of a concern was excluded for the purposes of contribution and that is why commission or similar allowances were excluded from the definition of basic wages, for commission and allowances were not necessarily to be found in all concerns nor were they necessarily earned by all the employees of the same concern. It is, therefore, clear that the ratio of the decision and th e observations made by this Court in a different context in that case would be inapplicable to the facts of the present case.Having regard to the above discussion it is clear that the High Courts view on the first question is clearly unsustainable and that question must be answered in favour of the assessee and against the RevenueDealing next with the second question it seems to us clear that having regard to our view on the proper construction of the expression salary occurring in Rule 2(h) of Part A of the Fourth Schedule to the Act it must be held that the Tribunal was right in holding that the Provident Fund maintained by the assessee satisfied the condition laid down in Rule 4(c) of Part A of the Fourth Schedule and that question also must be answered in favour of the assessee and against the Revenue However, we would like to make some observations with regard to the true impact of the recognition granted by the Commissioner of Income-Tax to a Provident Fund maintained by an assessee. The facts in the present case that need be stressed in this behalf are that it was as far back as 1937 that the Commissioner of Income-tax had granted recognition to the Provident Fund maintained by the assessee under the relevant rules under 1922 Act, that such recognition had been granted after the true nature of the commission payable by the assessee to its salesmen under their contracts of employment had been brought to t he notice of the Commissioner and that said recognition had continued to remain in operation during the relevant assessment years in question; the last fact in particular clearly implied that the Provident Fund of the assessee did satisfy all the conditions laid down in Rule 4 of Part A of the Fourth Schedule to the Act even during the relevant assessment years. In that situation we do not think that it was open to the taxing authorities to question the recognition in any of the relevant years on t he ground that the assessees Provident Fund did not satisfy any particular condition mentioned in Rule 4. It would be conducive to judicial discipline and the maintaining of certainty and uniformity in administering the law that the taxing authorities should proceed on the basis that the recognition granted and available for any particular assessment year implies that the Provident Fund satisfies all the conditions under Rule 4 of Part A of the Fourth Schedule to the Act and not sit in judgment over it. There is ample power conferred upon the Commissioner under Rule 3 of Part A of the Fourth Schedule to withdraw at any time the recognition already granted if, in his opinion, the Provident Fund contravenes any of the condition s required to be satisfied for its recognition and if during assessment proceedings for any particular assessment year the taxing authority finds that the Provident Fund maintained by an assessee has contravened any of the conditions of recognition he may refer the question of withdrawal of recognition to the Commissioner but until the Commissioner acting under the powers reserved to him withdraws such recognition the taxing authority must proceed on the basis that the Provident Fun d has satisfied all the requisite conditions for its recognition for that year; any other course is bound to result in chaos and uncertainty which has to be avoided. | 1 | 6,732 | 1,759 | ### 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:
36(1) (iv) of the Act.Turning to the Circular dated January 16, 1941 issued by the Central Board of Revenue on which counsel for the Revenue has relied, it cannot, in our view, affect the question of deductibility, for, if the commission paid by the assessee to its salesmen is covered by the expression salary on its true construction, which, according to us, it does, the Boards view or instructions cannot detract from the legal position arising on such proper construction. In any case we are of the view that by the said Circular what the Board wants to keep out of the term salary are payments by way of commission which do not partake of the character of salary. Similarly the decision of this Court in M/s. Bridge &Roof Co.s case (supra) on which the High Court has relied cannot avail the Revenue. In the first place it was a case under the Provident Fund Act, 1952 where this Court was required to construe the expression basic wages as defined in s. 2(b) of that Act and to decide whether production bonus was included in that expression and it was in that context that this Court made observations to the effect that the said expression as defined therein did not include any bonus, commission or other similar allowances. Secondly, as against the definition of basic wages in s. 2(b) (ii) which excluded any dearness allowance, house rent allowance, over-time allowance, bonus, commission or any other similar allowance, s. 6, of the Act provided for inclusion of dearness allowance for the purposes of contribution and, therefore, this Court was concerned with trying to discover some basis for the exclusion in cl. (ii) of s. 2(b) as also for the inclusion of dearness allowance and retaining allow ance (if any) in s. 6 of that Act and the Court found that the basis for inclusion in s. 6 and exclusion in cl. (ii) of s. 2(b) was that whatever was payable in all concerns and was earned by all permanent employees was included for the purpose of contribution under s. 6 but whatever was not payable by all concerns and was not earned by all employees of a concern was excluded for the purposes of contribution and that is why commission or similar allowances were excluded from the definition of basic wages, for commission and allowances were not necessarily to be found in all concerns nor were they necessarily earned by all the employees of the same concern. It is, therefore, clear that the ratio of the decision and th e observations made by this Court in a different context in that case would be inapplicable to the facts of the present case.Having regard to the above discussion it is clear that the High Courts view on the first question is clearly unsustainable and that question must be answered in favour of the assessee and against the Revenue. 7. Dealing next with the second question it seems to us clear that having regard to our view on the proper construction of the expression salary occurring in Rule 2(h) of Part A of the Fourth Schedule to the Act it must be held that the Tribunal was right in holding that the Provident Fund maintained by the assessee satisfied the condition laid down in Rule 4(c) of Part A of the Fourth Schedule and that question also must be answered in favour of the assessee and against the Revenue However, we would like to make some observations with regard to the true impact of the recognition granted by the Commissioner of Income-Tax to a Provident Fund maintained by an assessee. The facts in the present case that need be stressed in this behalf are that it was as far back as 1937 that the Commissioner of Income-tax had granted recognition to the Provident Fund maintained by the assessee under the relevant rules under 1922 Act, that such recognition had been granted after the true nature of the commission payable by the assessee to its salesmen under their contracts of employment had been brought to t he notice of the Commissioner and that said recognition had continued to remain in operation during the relevant assessment years in question; the last fact in particular clearly implied that the Provident Fund of the assessee did satisfy all the conditions laid down in Rule 4 of Part A of the Fourth Schedule to the Act even during the relevant assessment years. In that situation we do not think that it was open to the taxing authorities to question the recognition in any of the relevant years on t he ground that the assessees Provident Fund did not satisfy any particular condition mentioned in Rule 4. It would be conducive to judicial discipline and the maintaining of certainty and uniformity in administering the law that the taxing authorities should proceed on the basis that the recognition granted and available for any particular assessment year implies that the Provident Fund satisfies all the conditions under Rule 4 of Part A of the Fourth Schedule to the Act and not sit in judgment over it. There is ample power conferred upon the Commissioner under Rule 3 of Part A of the Fourth Schedule to withdraw at any time the recognition already granted if, in his opinion, the Provident Fund contravenes any of the condition s required to be satisfied for its recognition and if during assessment proceedings for any particular assessment year the taxing authority finds that the Provident Fund maintained by an assessee has contravened any of the conditions of recognition he may refer the question of withdrawal of recognition to the Commissioner but until the Commissioner acting under the powers reserved to him withdraws such recognition the taxing authority must proceed on the basis that the Provident Fun d has satisfied all the requisite conditions for its recognition for that year; any other course is bound to result in chaos and uncertainty which has to be avoided. 8.
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### Explanation:
under s. 36(1) (iv) of the Act.Turning to the Circular dated January 16, 1941 issued by the Central Board of Revenue on which counsel for the Revenue has relied, it cannot, in our view, affect the question of deductibility, for, if the commission paid by the assessee to its salesmen is covered by the expression salary on its true construction, which, according to us, it does, the Boards view or instructions cannot detract from the legal position arising on such proper construction. In any case we are of the view that by the said Circular what the Board wants to keep out of the term salary are payments by way of commission which do not partake of the character of salary. Similarly the decision of this Court in M/s. Bridge &Roof Co.s case (supra) on which the High Court has relied cannot avail the Revenue. In the first place it was a case under the Provident Fund Act, 1952 where this Court was required to construe the expression basic wages as defined in s. 2(b) of that Act and to decide whether production bonus was included in that expression and it was in that context that this Court made observations to the effect that the said expression as defined therein did not include any bonus, commission or other similar allowances. Secondly, as against the definition of basic wages in s. 2(b) (ii) which excluded any dearness allowance, house rent allowance, over-time allowance, bonus, commission or any other similar allowance, s. 6, of the Act provided for inclusion of dearness allowance for the purposes of contribution and, therefore, this Court was concerned with trying to discover some basis for the exclusion in cl. (ii) of s. 2(b) as also for the inclusion of dearness allowance and retaining allow ance (if any) in s. 6 of that Act and the Court found that the basis for inclusion in s. 6 and exclusion in cl. (ii) of s. 2(b) was that whatever was payable in all concerns and was earned by all permanent employees was included for the purpose of contribution under s. 6 but whatever was not payable by all concerns and was not earned by all employees of a concern was excluded for the purposes of contribution and that is why commission or similar allowances were excluded from the definition of basic wages, for commission and allowances were not necessarily to be found in all concerns nor were they necessarily earned by all the employees of the same concern. It is, therefore, clear that the ratio of the decision and th e observations made by this Court in a different context in that case would be inapplicable to the facts of the present case.Having regard to the above discussion it is clear that the High Courts view on the first question is clearly unsustainable and that question must be answered in favour of the assessee and against the RevenueDealing next with the second question it seems to us clear that having regard to our view on the proper construction of the expression salary occurring in Rule 2(h) of Part A of the Fourth Schedule to the Act it must be held that the Tribunal was right in holding that the Provident Fund maintained by the assessee satisfied the condition laid down in Rule 4(c) of Part A of the Fourth Schedule and that question also must be answered in favour of the assessee and against the Revenue However, we would like to make some observations with regard to the true impact of the recognition granted by the Commissioner of Income-Tax to a Provident Fund maintained by an assessee. The facts in the present case that need be stressed in this behalf are that it was as far back as 1937 that the Commissioner of Income-tax had granted recognition to the Provident Fund maintained by the assessee under the relevant rules under 1922 Act, that such recognition had been granted after the true nature of the commission payable by the assessee to its salesmen under their contracts of employment had been brought to t he notice of the Commissioner and that said recognition had continued to remain in operation during the relevant assessment years in question; the last fact in particular clearly implied that the Provident Fund of the assessee did satisfy all the conditions laid down in Rule 4 of Part A of the Fourth Schedule to the Act even during the relevant assessment years. In that situation we do not think that it was open to the taxing authorities to question the recognition in any of the relevant years on t he ground that the assessees Provident Fund did not satisfy any particular condition mentioned in Rule 4. It would be conducive to judicial discipline and the maintaining of certainty and uniformity in administering the law that the taxing authorities should proceed on the basis that the recognition granted and available for any particular assessment year implies that the Provident Fund satisfies all the conditions under Rule 4 of Part A of the Fourth Schedule to the Act and not sit in judgment over it. There is ample power conferred upon the Commissioner under Rule 3 of Part A of the Fourth Schedule to withdraw at any time the recognition already granted if, in his opinion, the Provident Fund contravenes any of the condition s required to be satisfied for its recognition and if during assessment proceedings for any particular assessment year the taxing authority finds that the Provident Fund maintained by an assessee has contravened any of the conditions of recognition he may refer the question of withdrawal of recognition to the Commissioner but until the Commissioner acting under the powers reserved to him withdraws such recognition the taxing authority must proceed on the basis that the Provident Fun d has satisfied all the requisite conditions for its recognition for that year; any other course is bound to result in chaos and uncertainty which has to be avoided.
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Sita Saran Singh Vs. Kedar Prasad Singh and Others | in Schedule 3 of the plaint shall be sold to satisfy the decretal dues.4. Under the two mortgages mentioned above, the mortgagor had mortgaged his preparatory right in the properties mentioned in the Schedule annexed to those mortgages. We were told at the bar that the second mortgage was in respect of the very properties that had been mortgaged under the first mortgage. According to the defendants all the properties mortgaged under the two deeds mentioned earlier had vested in the Government in view of the provisions of the Act and therefore the mortgagor could have proceeded only under Section 14 of that Act. The defendants contended that the present suit was barred by the provisions of the Act. It was claimed on behalf of the plaintiffs that the properties mentioned in Schedule 3 of the plaint are Zirat, Bakasht and Giarmazrua lands. The contention of the plaintiffs was that the properties that fall within the scope of Section 6 of the Act have not vested in the Government under Section 4.In support of that proposition, the plaintiffs relied on the Full Bench decision of the Patna High Court in Sidheshwar Prasad Singh v. Ram Saroop Singh. (AIR 1963 Pat 412 : 1963 BLJR 802.) The High Court accepted that contention and decreed the suit as mentioned earlier.5. As mentioned earlier the very question that we are now called upon to decide had been considered and decided by this Court in Shivashankar Prasads case (supra). Therein this Court ruled that the properties mentioned in Section 6 of the Act have also vested in the Government under Section 4. Dealing with that question this Court observed :"The consequences of the vesting of an Estate is set out in Section 4. Section 4(a) provides that once an Estate vests in the State the various rights in respect of that Estate enumerated therein shall also vest in the State, absolutely, free from all encumbrances. Among the rights enumerated therein undoubtedly includes the right of possession. In view of Section 4(a) there is hardly any doubt that the proprietor loses all his rights in the Estate in question. After setting out the various interests lost by the proprietor that section proceeds to say "such proprietor or tenure-holder shall cease to have any interests in such Estate or tenure other than the interests expressly saved by or under the provisions of this Act". In order to find out the implication of the clause extracted above we have to go to Section 6 which provides that on and from the date of vesting all lands used for agriculture or horticultural purposes which were in Khas possession of an intermediary on the date of vesting (including certain classes of land specified in that section) shall subject to the provisions of Sections 7-A and 7-B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a rayat under the State having occupancy rights in respect of such lands, subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner.Reading Sections 3, 4 and 6 together, it follows that all Estates notified under Section 3 vest in the State free of all encumbrances. The quondam proprietors and tenure-holders of those Estates lose all interests in those Estates. As proprietors, they retain no interest in respect of them whatsoever. But in respect of the lands enumerated in Section 6, the State settled on them rights of Rayats. Though in fact the vesting of the Estates and the deemed settlement of the Rayats rights in respect of certain classes of lands included in the Estates took place simultaneously, in law the two must be treated as different transactions; first there was a vesting of the Estates in the State absolutely, and free from all encumbrances. Then followed the deemed settlement by the State of Rayats rights on the quondam proprietors. Therefore in law it would not be correct to say that what vested in the State are only those interests not coming within Section 6."6. Even according to the mortgagors, the properties mentioned in Schedule 3 of the plaint are properties coming within Section 6. Hence it must be held that these properties had vested in the Government in view of the notification, dated May 20, 1952, issued by the State under sub-section (1) of Section 3 of the Act. In the aforementioned decision this Court further ruled that after the vesting of the Estate, the mortgagee can only have recourse to Section 14 of the Act for realising the amount due to him under the mortgage. As, Section 4(d) of the Act provides that :"No suit shall lie in any Civil Court for the recovery of any money due from such proprietor (proprietor whose Estate has vested in the State) or tenure-holder the payment of which is secured by mortgage of, or is a charge on, such Estate or tenure and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped."In that decision this Court overruled the decision of the Patna High Court in Sidheshwar Prasad Singhs case (supra).7. Mr. D. P. Singh, learned for the respondents contended that the decision in Shivshankars case (supra), is in conflict with the decision of this Court in Ram Kishan Nahton and Other v. Chhotten Lal and Others. (AIR 1963 Pat 412 : 1963 BLJR 802.) We do not think that there is any substance in this contention. Therein the question that arose for decision by this Court was whether a mortgagor who has trespassed on the mortgaged property which was in the possession of the mortgagee can resist the claim of the mortgagee to be in possession. The question that arose for decision in that case does not bear on the question of law that we are called upon to decide in the present case. | 1[ds]We do not think that there is any substance in this contention. Therein the question that arose for decision by this Court was whether a mortgagor who has trespassed on the mortgaged property which was in the possession of the mortgagee can resist the claim of the mortgagee to be in possession. The question that arose for decision in that case does not bear on the question of law that we are called upon to decide in the present case.Even according to the mortgagors, the properties mentioned in Schedule 3 of the plaint are properties coming within Section 6. Hence it must be held that these properties had vested in the Government in view of the notification, dated May 20, 1952, issued by the State under(1) of Section 3 of the Act. In the aforementioned decision this Court further ruled that after the vesting of the Estate, the mortgagee can only have recourse to Section 14 of the Act for realising the amount due to him under the mortgage. As, Section 4(d) of the Act provides that :"No suit shall lie in any Civil Court for the recovery of any money due from such proprietor (proprietor whose Estate has vested in the State) orthe payment of which is secured by mortgage of, or is a charge on, such Estate or tenure and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped."In that decision this Court overruled the decision of the Patna High Court in Sidheshwar Prasad Singhs case (supra). | 1 | 1,433 | 296 | ### 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 Schedule 3 of the plaint shall be sold to satisfy the decretal dues.4. Under the two mortgages mentioned above, the mortgagor had mortgaged his preparatory right in the properties mentioned in the Schedule annexed to those mortgages. We were told at the bar that the second mortgage was in respect of the very properties that had been mortgaged under the first mortgage. According to the defendants all the properties mortgaged under the two deeds mentioned earlier had vested in the Government in view of the provisions of the Act and therefore the mortgagor could have proceeded only under Section 14 of that Act. The defendants contended that the present suit was barred by the provisions of the Act. It was claimed on behalf of the plaintiffs that the properties mentioned in Schedule 3 of the plaint are Zirat, Bakasht and Giarmazrua lands. The contention of the plaintiffs was that the properties that fall within the scope of Section 6 of the Act have not vested in the Government under Section 4.In support of that proposition, the plaintiffs relied on the Full Bench decision of the Patna High Court in Sidheshwar Prasad Singh v. Ram Saroop Singh. (AIR 1963 Pat 412 : 1963 BLJR 802.) The High Court accepted that contention and decreed the suit as mentioned earlier.5. As mentioned earlier the very question that we are now called upon to decide had been considered and decided by this Court in Shivashankar Prasads case (supra). Therein this Court ruled that the properties mentioned in Section 6 of the Act have also vested in the Government under Section 4. Dealing with that question this Court observed :"The consequences of the vesting of an Estate is set out in Section 4. Section 4(a) provides that once an Estate vests in the State the various rights in respect of that Estate enumerated therein shall also vest in the State, absolutely, free from all encumbrances. Among the rights enumerated therein undoubtedly includes the right of possession. In view of Section 4(a) there is hardly any doubt that the proprietor loses all his rights in the Estate in question. After setting out the various interests lost by the proprietor that section proceeds to say "such proprietor or tenure-holder shall cease to have any interests in such Estate or tenure other than the interests expressly saved by or under the provisions of this Act". In order to find out the implication of the clause extracted above we have to go to Section 6 which provides that on and from the date of vesting all lands used for agriculture or horticultural purposes which were in Khas possession of an intermediary on the date of vesting (including certain classes of land specified in that section) shall subject to the provisions of Sections 7-A and 7-B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a rayat under the State having occupancy rights in respect of such lands, subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner.Reading Sections 3, 4 and 6 together, it follows that all Estates notified under Section 3 vest in the State free of all encumbrances. The quondam proprietors and tenure-holders of those Estates lose all interests in those Estates. As proprietors, they retain no interest in respect of them whatsoever. But in respect of the lands enumerated in Section 6, the State settled on them rights of Rayats. Though in fact the vesting of the Estates and the deemed settlement of the Rayats rights in respect of certain classes of lands included in the Estates took place simultaneously, in law the two must be treated as different transactions; first there was a vesting of the Estates in the State absolutely, and free from all encumbrances. Then followed the deemed settlement by the State of Rayats rights on the quondam proprietors. Therefore in law it would not be correct to say that what vested in the State are only those interests not coming within Section 6."6. Even according to the mortgagors, the properties mentioned in Schedule 3 of the plaint are properties coming within Section 6. Hence it must be held that these properties had vested in the Government in view of the notification, dated May 20, 1952, issued by the State under sub-section (1) of Section 3 of the Act. In the aforementioned decision this Court further ruled that after the vesting of the Estate, the mortgagee can only have recourse to Section 14 of the Act for realising the amount due to him under the mortgage. As, Section 4(d) of the Act provides that :"No suit shall lie in any Civil Court for the recovery of any money due from such proprietor (proprietor whose Estate has vested in the State) or tenure-holder the payment of which is secured by mortgage of, or is a charge on, such Estate or tenure and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped."In that decision this Court overruled the decision of the Patna High Court in Sidheshwar Prasad Singhs case (supra).7. Mr. D. P. Singh, learned for the respondents contended that the decision in Shivshankars case (supra), is in conflict with the decision of this Court in Ram Kishan Nahton and Other v. Chhotten Lal and Others. (AIR 1963 Pat 412 : 1963 BLJR 802.) We do not think that there is any substance in this contention. Therein the question that arose for decision by this Court was whether a mortgagor who has trespassed on the mortgaged property which was in the possession of the mortgagee can resist the claim of the mortgagee to be in possession. The question that arose for decision in that case does not bear on the question of law that we are called upon to decide in the present case.
### Response:
1
### Explanation:
We do not think that there is any substance in this contention. Therein the question that arose for decision by this Court was whether a mortgagor who has trespassed on the mortgaged property which was in the possession of the mortgagee can resist the claim of the mortgagee to be in possession. The question that arose for decision in that case does not bear on the question of law that we are called upon to decide in the present case.Even according to the mortgagors, the properties mentioned in Schedule 3 of the plaint are properties coming within Section 6. Hence it must be held that these properties had vested in the Government in view of the notification, dated May 20, 1952, issued by the State under(1) of Section 3 of the Act. In the aforementioned decision this Court further ruled that after the vesting of the Estate, the mortgagee can only have recourse to Section 14 of the Act for realising the amount due to him under the mortgage. As, Section 4(d) of the Act provides that :"No suit shall lie in any Civil Court for the recovery of any money due from such proprietor (proprietor whose Estate has vested in the State) orthe payment of which is secured by mortgage of, or is a charge on, such Estate or tenure and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped."In that decision this Court overruled the decision of the Patna High Court in Sidheshwar Prasad Singhs case (supra).
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In Re: United India Insurance Co. Ltd. and Ors Vs. | in the year 2000, the 4 state-run, general insurance companies namely National Insurance Company Ltd, New India Assurance company limited, Oriental Insurance Company Ltd, and United India Insurance Company Ltd, started functioning independently. 4 That the said insurance companies formed an informal association known as the General Insurers (Public Sector) Association of India, with headquarters at Delhi. 5. GIPSA was set up simply as a forum for facilitating consultations and deliberations amongst its member companies on matters of common interest mandated to it by them without having any administrative, supervisory, controlling or statutory authority over the public sector insurance companies. 6. That the GIPSA is not a public authority and neither is the same statutory authority/body.? 12. The High Court in its judgment has noticed three schedules of fee issued by GIPSA, they are: (i) Circular dated 21.02.2005 noticing that GIPSA had approved the revised fees schedule of advocates/investigators w.e.f. 01.11.2004; (ii) Circular dated 09.01.2009 issued in pursuance of approved and revised fees schedule by GIPSA w.e.f. 01.01.2009; and (iii) Circular dated 18.03.2014 issued by GIPSA approving the advocates/investigators fee w.e.f. 01.04.2014. The High Court itself has noticed that there are no issues with regard to Circulars issued with regard to fee structure enforced from 2009 and 2014. The High Court noticed that the only issue is with regard to Circular dated 21.02.2005 of GIPSA regarding the revised fees schedule of advocates/investigators w.e.f. 01.11.2004. It has come on the record that w.e.f. 01.11.2004, the fee was fixed as Rs.7,500/-, which was not adopted in toto by the companies and based on Inter Company Coordination Committee meeting dated 16.03.2005 of the Chandigarh Regional Officers, fee was revised reducing from Rs.7,500/- to Rs.5,000/- for appeals filed by claimants against the MACT awards and Rs. 6,000/- for appeals filed on behalf of companies against MACT, which was to be enforced w.e.f. 01.04.2005. The High Court has noticed the said fact in Page 15 of the judgment. The High Court itself at Page 16 noticed following:- ?The dispute, therefore, that now survives is with respect to the first Circular that was issued and according to the advocates, they are liable to be paid Rs.7500/- for each case irrespective of the fact whether the appeal had been filed by the claimants or by the companies; besides, there is no concept of half fee being paid at the time of filing the appeal and the balance fee at the time of disposal of the appeal even as per the Schedule of the Insurance Companies. Moreover, fee is also liable to be paid to the advocates who put in appearances before the Lok Adalats/Mediation Centers as also in cases where notices are accepted on the asking of the Court.? 13. From the above, it is clear that in so far as the payment of fee as per Circular issued of 2009 and 2014 is concerned, there was no issue raised. The companies themselves in the reply had stated that they are adhering to the said circulars and there was no complaint on behalf of the empanelled advocates regarding non-adherence of Circulars of 2009 and 2014. The Public Interest Litigation was registered suo moto by the High Court in 2015. At the time of registration of the Public Interest Litigation or when the order passed by the learned Single Judge on 12.09.2014, the fees schedule as enforced from circulars of 2009 and 2014 was very much in vogue and being adhered to. At that point of time, there was no occasion for the High Court to entertain the dispute as to whether the fee structure as enforced by GIPSA w.e.f. 01.11.2004 should have been followed and advocates should have been paid accordingly or advocates were rightly paid the fee as per the modified decision dated 16.03.2005, which decision was taken in the meeting of all the four insurance companies at regional level. The issue relating to non-payment of fee of empanelled advocates as per Circular dated 01.11.2004 could not have been undertaken in the Public Interest Litigation, more so, when the same was replaced by subsequent circulars of 2009 and 2014, which circulars were adhered to by the insurance companies. Adjudicating the said issue by the High Court was wholly uncalled for in the suo moto Public Interest Litigation, which cannot be in any manner held to be affecting the case of the ?poor litigants?, which was the main reason for the learned Single Judge to direct for suo moto registration of Public Interest Litigation. 14. We, thus, are of the view that entertainment of the issue regarding payment of fee as per circular dated 21.02.2005 by GIPSA or subsequently modified by proceeding dated 16.03.2005 w.e.f. 01.04.2005 ought not to have been gone in the writ petition and directions by the learned Single Judge in the above regard deserves to be set aside. 15. We may notice that although various issues relating to entertainability of the suo moto Public Interest Litigation by the High Court, enforceable by circulars issued by GIPSA, the issue of payment of fee to the empanelled advocates, has been raised before us. Learned counsel for the parties have also in support of their submissions relied on various judgments of this Court, but for the purpose of this case, we need not go into the above issues and we leave the said questions open to be considered in appropriate case. As we have observed above that the writ petition, which was entertained as a Public Interest Litigation, the stand taken by the insurance companies that they are adhering with the fee structure enforced from 2009 and 2014, which was not even objected by the learned counsel, who was appearing on behalf of the advocates, was sufficient enough to close the writ petition without entering into the issue pertaining to the earlier circular issued regarding fee structure w.e.f. 01.11.2004. We have decided these appeals on its own facts, which may not be referred to and relied as a precedent since, we have expressly left questions open. | 1[ds]8. A perusal of the order passed by the learned Single Judge of the High Court dated 12.09.2014 as extracted above indicates that learned Single Judge directed for suo moto registration of a Public Interest Litigation to look into the matter so that much relief could come about to the poor litigants, the reason, which mainly impelled the learned Single Judge to direct for registration of a Public Interest Litigation was a factum ofe of empanelled lawyers of the insurance companies when hearing of FAO No. 2604 of 2013 was fixed. The counsel representing the four insurance companies before the learned Single Judge brought their plight to the notice of learned Single JudgeThe High Court exercises its extraordinary jurisdiction under Article 226 when an element of public law exists. When learned Single Judge found that empanelled advocates are not appearing in the court, the learned Single Judge found that the said issue involved a public element, which ultimately affects the administration of justice and hence the learned Single Judge directed for registration of the Public Interest Litigation for the reasons as noticed by the learned Single Judge in his order dated 12.09.2014. We, at this stage, are not inclined to enter into the correctness or otherwise of the order directing for registration of Public Interest Litigation. The judgment challenged before us is the Division Bench judgment of Punjab & Haryana High Court dated 09.12.2016, which was passed in the Public Interest Litigation disposing of the writ petition. We, thus, confine our discussions only to the said order, leaving the question of registration of Public Interest Litigation open, in facts of the present case12. The High Court in its judgment has noticed three schedules of fee issued by GIPSA, they are: (i) Circular dated 21.02.2005 noticing that GIPSA had approved the revised fees schedule of advocates/investigators w.e.f. 01.11.2004; (ii) Circular dated 09.01.2009 issued in pursuance of approved and revised fees schedule by GIPSA w.e.f. 01.01.2009; and (iii) Circular dated 18.03.2014 issued by GIPSA approving the advocates/investigators fee w.e.f. 01.04.2014. The High Court itself has noticed that there are no issues with regard to Circulars issued with regard to fee structure enforced from 2009 and 2014. The High Court noticed that the only issue is with regard to Circular dated 21.02.2005 of GIPSA regarding the revised fees schedule of advocates/investigators w.e.f. 01.11.2004. It has come on the record that w.e.f. 01.11.2004, the fee was fixed as, which was not adopted in toto by the companies and based on Inter Company Coordination Committee meeting dated 16.03.2005 of the Chandigarh Regional Officers, fee was revised reducing from Rs.7,500/tofor appeals filed by claimants against the MACT awards and Rs. 6,000/for appeals filed on behalf of companies against MACT, which wastobe enforced w.e.f. 01.04.2005. The High Court has noticed the said fact in Page 15 of the judgment. The High Court itself at Page 16 noticed following:?The dispute, therefore, that now survives is with respecttothe first Circular that was issued and accordingtothe advocates, they are liabletobe paid Rs.7500/for each case irrespective of the fact whether the appeal had been filed by the claimants or by the companies; besides, there is no concept of half fee being paid at the time of filing the appeal and the balance fee at the time of disposal of the appeal even as per the Schedule of the Insurance Companies. Moreover, fee is also liabletobe paidtothe advocates who put in appearances before the Lok Adalats/Mediation Centers as also in cases where notices are accepted on the asking of the Court.?13. From the above, it is clear that in so far as the payment of fee as per Circular issued of 2009 and 2014 is concerned, there was no issue raised. The companies themselves in the reply had stated that they are adheringtothe said circulars and there was no complaint on behalf of the empanelled advocates regardinge of Circulars of 2009 and 2014. The Public Interest Litigation was registered suoby the High Court in 2015. At the time of registration of the Public Interest Litigation or when the order passed by the learned Single Judge on 12.09.2014, the fees schedule as enforced from circulars of 2009 and 2014 was very much in vogue and being adhered. At that point of time, there was no occasion for the High Courttoentertain the dispute astowhether the fee structure as enforced by GIPSA w.e.f. 01.11.2004 should have been followed and advocates should have been paid accordingly or advocates were rightly paid the fee as per the modified decision dated 16.03.2005, which decision was taken in the meeting of all the four insurance companies at regional level. The issue relatingtot of fee of empanelled advocates as per Circular dated 01.11.2004 could not have been undertaken in the Public Interest Litigation, more so, when the same was replaced by subsequent circulars of 2009 and 2014, which circulars were adheredtoby the insurance companies. Adjudicating the said issue by the High Court was wholly uncalled for in the suoPublic Interest Litigation, which cannot be in any manner heldtobe affecting the case of the ?poor litigants?, which was the main reason for the learned Single Judgetodirect for suoregistration of Public Interest Litigation14. We, thus, are of the view that entertainment of the issue regarding payment of fee as per circular dated21.02.2005 by GIPSA or subsequently modified by proceeding dated 16.03.2005 w.e.f. 01.04.2005 ought nottohave been gone in the writ petition and directions by the learned Single Judge in the above regard deservestobe set aside15. We may notice that although various issues relatingtoentertainability of the suoPublic Interest Litigation by the High Court, enforceable by circulars issued by GIPSA, the issue of payment of feetothe empanelled advocates, has been raised before us. Learned counsel for the parties have also in support of their submissions relied on various judgments of this Court, but for the purpose of this case, we need not gothe above issues and we leave the said questions opentobe considered in appropriate case. As we have observed above that the writ petition, which was entertained as a Public Interest Litigation, the stand taken by the insurance companies that they are adhering with the fee structure enforced from 2009 and 2014, which was not even objected by the learned counsel, who was appearing on behalf of the advocates, was sufficient enoughtoclose the writ petition without enteringthe issue pertainingtothe earlier circular issued regarding fee structure w.e.f. 01.11.2004. We have decided these appeals on its own facts, which may not be referredtoand relied as a precedent since, we have expressly left questions open. | 1 | 3,826 | 1,193 | ### 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:
in the year 2000, the 4 state-run, general insurance companies namely National Insurance Company Ltd, New India Assurance company limited, Oriental Insurance Company Ltd, and United India Insurance Company Ltd, started functioning independently. 4 That the said insurance companies formed an informal association known as the General Insurers (Public Sector) Association of India, with headquarters at Delhi. 5. GIPSA was set up simply as a forum for facilitating consultations and deliberations amongst its member companies on matters of common interest mandated to it by them without having any administrative, supervisory, controlling or statutory authority over the public sector insurance companies. 6. That the GIPSA is not a public authority and neither is the same statutory authority/body.? 12. The High Court in its judgment has noticed three schedules of fee issued by GIPSA, they are: (i) Circular dated 21.02.2005 noticing that GIPSA had approved the revised fees schedule of advocates/investigators w.e.f. 01.11.2004; (ii) Circular dated 09.01.2009 issued in pursuance of approved and revised fees schedule by GIPSA w.e.f. 01.01.2009; and (iii) Circular dated 18.03.2014 issued by GIPSA approving the advocates/investigators fee w.e.f. 01.04.2014. The High Court itself has noticed that there are no issues with regard to Circulars issued with regard to fee structure enforced from 2009 and 2014. The High Court noticed that the only issue is with regard to Circular dated 21.02.2005 of GIPSA regarding the revised fees schedule of advocates/investigators w.e.f. 01.11.2004. It has come on the record that w.e.f. 01.11.2004, the fee was fixed as Rs.7,500/-, which was not adopted in toto by the companies and based on Inter Company Coordination Committee meeting dated 16.03.2005 of the Chandigarh Regional Officers, fee was revised reducing from Rs.7,500/- to Rs.5,000/- for appeals filed by claimants against the MACT awards and Rs. 6,000/- for appeals filed on behalf of companies against MACT, which was to be enforced w.e.f. 01.04.2005. The High Court has noticed the said fact in Page 15 of the judgment. The High Court itself at Page 16 noticed following:- ?The dispute, therefore, that now survives is with respect to the first Circular that was issued and according to the advocates, they are liable to be paid Rs.7500/- for each case irrespective of the fact whether the appeal had been filed by the claimants or by the companies; besides, there is no concept of half fee being paid at the time of filing the appeal and the balance fee at the time of disposal of the appeal even as per the Schedule of the Insurance Companies. Moreover, fee is also liable to be paid to the advocates who put in appearances before the Lok Adalats/Mediation Centers as also in cases where notices are accepted on the asking of the Court.? 13. From the above, it is clear that in so far as the payment of fee as per Circular issued of 2009 and 2014 is concerned, there was no issue raised. The companies themselves in the reply had stated that they are adhering to the said circulars and there was no complaint on behalf of the empanelled advocates regarding non-adherence of Circulars of 2009 and 2014. The Public Interest Litigation was registered suo moto by the High Court in 2015. At the time of registration of the Public Interest Litigation or when the order passed by the learned Single Judge on 12.09.2014, the fees schedule as enforced from circulars of 2009 and 2014 was very much in vogue and being adhered to. At that point of time, there was no occasion for the High Court to entertain the dispute as to whether the fee structure as enforced by GIPSA w.e.f. 01.11.2004 should have been followed and advocates should have been paid accordingly or advocates were rightly paid the fee as per the modified decision dated 16.03.2005, which decision was taken in the meeting of all the four insurance companies at regional level. The issue relating to non-payment of fee of empanelled advocates as per Circular dated 01.11.2004 could not have been undertaken in the Public Interest Litigation, more so, when the same was replaced by subsequent circulars of 2009 and 2014, which circulars were adhered to by the insurance companies. Adjudicating the said issue by the High Court was wholly uncalled for in the suo moto Public Interest Litigation, which cannot be in any manner held to be affecting the case of the ?poor litigants?, which was the main reason for the learned Single Judge to direct for suo moto registration of Public Interest Litigation. 14. We, thus, are of the view that entertainment of the issue regarding payment of fee as per circular dated 21.02.2005 by GIPSA or subsequently modified by proceeding dated 16.03.2005 w.e.f. 01.04.2005 ought not to have been gone in the writ petition and directions by the learned Single Judge in the above regard deserves to be set aside. 15. We may notice that although various issues relating to entertainability of the suo moto Public Interest Litigation by the High Court, enforceable by circulars issued by GIPSA, the issue of payment of fee to the empanelled advocates, has been raised before us. Learned counsel for the parties have also in support of their submissions relied on various judgments of this Court, but for the purpose of this case, we need not go into the above issues and we leave the said questions open to be considered in appropriate case. As we have observed above that the writ petition, which was entertained as a Public Interest Litigation, the stand taken by the insurance companies that they are adhering with the fee structure enforced from 2009 and 2014, which was not even objected by the learned counsel, who was appearing on behalf of the advocates, was sufficient enough to close the writ petition without entering into the issue pertaining to the earlier circular issued regarding fee structure w.e.f. 01.11.2004. We have decided these appeals on its own facts, which may not be referred to and relied as a precedent since, we have expressly left questions open.
### Response:
1
### Explanation:
was fixed. The counsel representing the four insurance companies before the learned Single Judge brought their plight to the notice of learned Single JudgeThe High Court exercises its extraordinary jurisdiction under Article 226 when an element of public law exists. When learned Single Judge found that empanelled advocates are not appearing in the court, the learned Single Judge found that the said issue involved a public element, which ultimately affects the administration of justice and hence the learned Single Judge directed for registration of the Public Interest Litigation for the reasons as noticed by the learned Single Judge in his order dated 12.09.2014. We, at this stage, are not inclined to enter into the correctness or otherwise of the order directing for registration of Public Interest Litigation. The judgment challenged before us is the Division Bench judgment of Punjab & Haryana High Court dated 09.12.2016, which was passed in the Public Interest Litigation disposing of the writ petition. We, thus, confine our discussions only to the said order, leaving the question of registration of Public Interest Litigation open, in facts of the present case12. The High Court in its judgment has noticed three schedules of fee issued by GIPSA, they are: (i) Circular dated 21.02.2005 noticing that GIPSA had approved the revised fees schedule of advocates/investigators w.e.f. 01.11.2004; (ii) Circular dated 09.01.2009 issued in pursuance of approved and revised fees schedule by GIPSA w.e.f. 01.01.2009; and (iii) Circular dated 18.03.2014 issued by GIPSA approving the advocates/investigators fee w.e.f. 01.04.2014. The High Court itself has noticed that there are no issues with regard to Circulars issued with regard to fee structure enforced from 2009 and 2014. The High Court noticed that the only issue is with regard to Circular dated 21.02.2005 of GIPSA regarding the revised fees schedule of advocates/investigators w.e.f. 01.11.2004. It has come on the record that w.e.f. 01.11.2004, the fee was fixed as, which was not adopted in toto by the companies and based on Inter Company Coordination Committee meeting dated 16.03.2005 of the Chandigarh Regional Officers, fee was revised reducing from Rs.7,500/tofor appeals filed by claimants against the MACT awards and Rs. 6,000/for appeals filed on behalf of companies against MACT, which wastobe enforced w.e.f. 01.04.2005. The High Court has noticed the said fact in Page 15 of the judgment. The High Court itself at Page 16 noticed following:?The dispute, therefore, that now survives is with respecttothe first Circular that was issued and accordingtothe advocates, they are liabletobe paid Rs.7500/for each case irrespective of the fact whether the appeal had been filed by the claimants or by the companies; besides, there is no concept of half fee being paid at the time of filing the appeal and the balance fee at the time of disposal of the appeal even as per the Schedule of the Insurance Companies. Moreover, fee is also liabletobe paidtothe advocates who put in appearances before the Lok Adalats/Mediation Centers as also in cases where notices are accepted on the asking of the Court.?13. From the above, it is clear that in so far as the payment of fee as per Circular issued of 2009 and 2014 is concerned, there was no issue raised. The companies themselves in the reply had stated that they are adheringtothe said circulars and there was no complaint on behalf of the empanelled advocates regardinge of Circulars of 2009 and 2014. The Public Interest Litigation was registered suoby the High Court in 2015. At the time of registration of the Public Interest Litigation or when the order passed by the learned Single Judge on 12.09.2014, the fees schedule as enforced from circulars of 2009 and 2014 was very much in vogue and being adhered. At that point of time, there was no occasion for the High Courttoentertain the dispute astowhether the fee structure as enforced by GIPSA w.e.f. 01.11.2004 should have been followed and advocates should have been paid accordingly or advocates were rightly paid the fee as per the modified decision dated 16.03.2005, which decision was taken in the meeting of all the four insurance companies at regional level. The issue relatingtot of fee of empanelled advocates as per Circular dated 01.11.2004 could not have been undertaken in the Public Interest Litigation, more so, when the same was replaced by subsequent circulars of 2009 and 2014, which circulars were adheredtoby the insurance companies. Adjudicating the said issue by the High Court was wholly uncalled for in the suoPublic Interest Litigation, which cannot be in any manner heldtobe affecting the case of the ?poor litigants?, which was the main reason for the learned Single Judgetodirect for suoregistration of Public Interest Litigation14. We, thus, are of the view that entertainment of the issue regarding payment of fee as per circular dated21.02.2005 by GIPSA or subsequently modified by proceeding dated 16.03.2005 w.e.f. 01.04.2005 ought nottohave been gone in the writ petition and directions by the learned Single Judge in the above regard deservestobe set aside15. We may notice that although various issues relatingtoentertainability of the suoPublic Interest Litigation by the High Court, enforceable by circulars issued by GIPSA, the issue of payment of feetothe empanelled advocates, has been raised before us. Learned counsel for the parties have also in support of their submissions relied on various judgments of this Court, but for the purpose of this case, we need not gothe above issues and we leave the said questions opentobe considered in appropriate case. As we have observed above that the writ petition, which was entertained as a Public Interest Litigation, the stand taken by the insurance companies that they are adhering with the fee structure enforced from 2009 and 2014, which was not even objected by the learned counsel, who was appearing on behalf of the advocates, was sufficient enoughtoclose the writ petition without enteringthe issue pertainingtothe earlier circular issued regarding fee structure w.e.f. 01.11.2004. We have decided these appeals on its own facts, which may not be referredtoand relied as a precedent since, we have expressly left questions open.
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Sonia Bahera Vs. State of Orissa | then after going to the place where the dead body was lying, he went to the police station and lodged the information at about 4 p. m. PW 3 stated before the police that he suspected the appellant as the person who was responsible for the unnatural death of the deceased as the appellant, who was a washerman had stated twice before that he was suffering because the deceased who was also a washerman, was washing the cloth of the villagers of Kanji Pani village which was his village. Curiously even though he had no idea of the weapon that was used for killing the deceased, he stated in the first information that an axe which belongs to him was missing from his house for about four days. It may be stated here that the case of prosecution is that the axe (MO 1) which was used in the commission of the offence belonged to PW 3. After the receipt of the first information police went to the place of occurrence and examined some persons in the course of investigation. PWs 1 and 2 were no doubt amongst the persons who were examined by the police. PW 1 who stated before the court that he had seen the appellant attacking the deceased with an axe in the morning of January 31, 1969 did not disclose that such an incident had taken place to anybody on that day. He further stated that he disclosed the fact relating to the occurrence to Baneswar Pradhan and Kandunia Pradhan in the morning of February 1, 1969. Baneswar Pradhan and Kandunia Pradhan have not been examined in the case. PW 2, Rosani is the wife of PW 3. Markanda who gave information to the police. She no doubt stated before the Court that she was present at the time of occurrence and saw the appellant attacking the deceased. She too did not disclose that such an incident had taken place to anybody in the village. Her husband, according to her, returned to the village on next day from the place called Gonasika to which he had gone earlier. She did not tell him that such an incident had taken place after his return on the next day, and according to her she did not mention the fact to him out of fear. She further stated that about four days prior to the occurrence of the incidence the appellant had taken the axe (MO 1) from her house and had not returned it. PW 3 Markanda, as mentioned earlier, came to know about the death of the appellant from his son. He admitted that the axe (MO 1) belonged to him and that it was missing from his house for about 4 days prior to the date of occurrence. He also says that he asked both Jatia (PW 5) who had accompanied him to the police station when he gave the information about the incident and also the appellant and that both of them had denied having taken the axe from his house. The reference to an axe belonging to PW 3 in the first information assumes importance in this case in assessing the evidence of the PWs and in particular of PWs 2 and 3 because that was a weapon belonging to them. Ordinarily, one would expect that the person who is the owner of the weapon that is used in committing a crime would be suspected or would be associated with the crime. Before the police when he gave the first information specifically referred to the missing of MO 1 from his house even though he had no idea of the particular weapon that had been used for killing the deceased. If PW 3 Markanda was really upset on account of the missing of the MO 1 he would normally first enquire the member of his household including his wife. PW 2 as to what had happened to it. While PW 2 stated that the appellant had taken it from her house and not returned it, PW 3 stated that he had no idea about the whereabouts of the axe. Introduction of the story about the missing axe into the first information creates a good deal of suspicion about the truth of the prosecution case. The prosecution further relied upon the extra-judicial confession stated to have been made by the accused to PW 3 Markanda and PW 5 Jatia. This extra-judicial confession is stated to have been made by the appellant after their return from the police station. The police do not appear to have examined PW 5 after the alleged extra-judicial confession was made. This appears to be so, although the High Court has taken a contrary view on this question, from the deposition of PW 5 in which he stated in answer to a question put by the court that he was not examined by the police in the village after he returned from the police station. We are of the opinion that the extra-judicial confession stated to have been made by the appellant in the circumstances of this case, right in relying upon it as a circumstance against the appellant. In view of what has been stated earlier, the recovery of MO 1 pursuant to a statement made by the appellant loses all importance in this case when it is admitted that MO 1 belonged to PWs 2 and 3 and not to the appellant. The evidence of the so-called eye-witnesses PW 1 and PW 2 is discrepant as pointed out by the Sessions Judge. Their conduct in not telling anybody about the incident on the date of the incident also makes their evidence not worthy of acceptance. The other material before the court is not sufficient to hold the appellant guilty. This was not a case in which it could be said that the appreciation of evidence by the Sessions Judge was either perverse or that only one opinion, namely, that the appellant was guilty of the offence was possible. | 1[ds]While PW 2 stated that the appellant had taken it from her house and not returned it, PW 3 stated that he had no idea about the whereabouts of the axe. Introduction of the story about the missing axe into the first information creates a good deal of suspicion about the truth of the prosecution case. The prosecution further relied upon theconfession stated to have been made by the accused to PW 3 Markanda and PW 5 Jatia. Thisconfession is stated to have been made by the appellant after their return from the police station. The police do not appear to have examined PW 5 after the allegedconfession was made. This appears to be so, although the High Court has taken a contrary view on this question, from the deposition of PW 5 in which he stated in answer to a question put by the court that he was not examined by the police in the village after he returned from the police station. We are of the opinion that theconfession stated to have been made by the appellant in the circumstances of this case, right in relying upon it as a circumstance against the appellant. In view of what has been stated earlier, the recovery of MO 1 pursuant to a statement made by the appellant loses all importance in this case when it is admitted that MO 1 belonged to PWs 2 and 3 and not to the appellant. The evidence of thes PW 1 and PW 2 is discrepant as pointed out by the Sessions Judge. Their conduct in not telling anybody about the incident on the date of the incident also makes their evidence not worthy of acceptance. The other material before the court is not sufficient to hold the appellant guilty. This was not a case in which it could be said that the appreciation of evidence by the Sessions Judge was either perverse or that only one opinion, namely, that the appellant was guilty of the offence was possible. In these circumstances, the High Court was in error in reversing the judgment of acquittal recorded by the Trial Court. | 1 | 1,495 | 380 | ### 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:
then after going to the place where the dead body was lying, he went to the police station and lodged the information at about 4 p. m. PW 3 stated before the police that he suspected the appellant as the person who was responsible for the unnatural death of the deceased as the appellant, who was a washerman had stated twice before that he was suffering because the deceased who was also a washerman, was washing the cloth of the villagers of Kanji Pani village which was his village. Curiously even though he had no idea of the weapon that was used for killing the deceased, he stated in the first information that an axe which belongs to him was missing from his house for about four days. It may be stated here that the case of prosecution is that the axe (MO 1) which was used in the commission of the offence belonged to PW 3. After the receipt of the first information police went to the place of occurrence and examined some persons in the course of investigation. PWs 1 and 2 were no doubt amongst the persons who were examined by the police. PW 1 who stated before the court that he had seen the appellant attacking the deceased with an axe in the morning of January 31, 1969 did not disclose that such an incident had taken place to anybody on that day. He further stated that he disclosed the fact relating to the occurrence to Baneswar Pradhan and Kandunia Pradhan in the morning of February 1, 1969. Baneswar Pradhan and Kandunia Pradhan have not been examined in the case. PW 2, Rosani is the wife of PW 3. Markanda who gave information to the police. She no doubt stated before the Court that she was present at the time of occurrence and saw the appellant attacking the deceased. She too did not disclose that such an incident had taken place to anybody in the village. Her husband, according to her, returned to the village on next day from the place called Gonasika to which he had gone earlier. She did not tell him that such an incident had taken place after his return on the next day, and according to her she did not mention the fact to him out of fear. She further stated that about four days prior to the occurrence of the incidence the appellant had taken the axe (MO 1) from her house and had not returned it. PW 3 Markanda, as mentioned earlier, came to know about the death of the appellant from his son. He admitted that the axe (MO 1) belonged to him and that it was missing from his house for about 4 days prior to the date of occurrence. He also says that he asked both Jatia (PW 5) who had accompanied him to the police station when he gave the information about the incident and also the appellant and that both of them had denied having taken the axe from his house. The reference to an axe belonging to PW 3 in the first information assumes importance in this case in assessing the evidence of the PWs and in particular of PWs 2 and 3 because that was a weapon belonging to them. Ordinarily, one would expect that the person who is the owner of the weapon that is used in committing a crime would be suspected or would be associated with the crime. Before the police when he gave the first information specifically referred to the missing of MO 1 from his house even though he had no idea of the particular weapon that had been used for killing the deceased. If PW 3 Markanda was really upset on account of the missing of the MO 1 he would normally first enquire the member of his household including his wife. PW 2 as to what had happened to it. While PW 2 stated that the appellant had taken it from her house and not returned it, PW 3 stated that he had no idea about the whereabouts of the axe. Introduction of the story about the missing axe into the first information creates a good deal of suspicion about the truth of the prosecution case. The prosecution further relied upon the extra-judicial confession stated to have been made by the accused to PW 3 Markanda and PW 5 Jatia. This extra-judicial confession is stated to have been made by the appellant after their return from the police station. The police do not appear to have examined PW 5 after the alleged extra-judicial confession was made. This appears to be so, although the High Court has taken a contrary view on this question, from the deposition of PW 5 in which he stated in answer to a question put by the court that he was not examined by the police in the village after he returned from the police station. We are of the opinion that the extra-judicial confession stated to have been made by the appellant in the circumstances of this case, right in relying upon it as a circumstance against the appellant. In view of what has been stated earlier, the recovery of MO 1 pursuant to a statement made by the appellant loses all importance in this case when it is admitted that MO 1 belonged to PWs 2 and 3 and not to the appellant. The evidence of the so-called eye-witnesses PW 1 and PW 2 is discrepant as pointed out by the Sessions Judge. Their conduct in not telling anybody about the incident on the date of the incident also makes their evidence not worthy of acceptance. The other material before the court is not sufficient to hold the appellant guilty. This was not a case in which it could be said that the appreciation of evidence by the Sessions Judge was either perverse or that only one opinion, namely, that the appellant was guilty of the offence was possible.
### Response:
1
### Explanation:
While PW 2 stated that the appellant had taken it from her house and not returned it, PW 3 stated that he had no idea about the whereabouts of the axe. Introduction of the story about the missing axe into the first information creates a good deal of suspicion about the truth of the prosecution case. The prosecution further relied upon theconfession stated to have been made by the accused to PW 3 Markanda and PW 5 Jatia. Thisconfession is stated to have been made by the appellant after their return from the police station. The police do not appear to have examined PW 5 after the allegedconfession was made. This appears to be so, although the High Court has taken a contrary view on this question, from the deposition of PW 5 in which he stated in answer to a question put by the court that he was not examined by the police in the village after he returned from the police station. We are of the opinion that theconfession stated to have been made by the appellant in the circumstances of this case, right in relying upon it as a circumstance against the appellant. In view of what has been stated earlier, the recovery of MO 1 pursuant to a statement made by the appellant loses all importance in this case when it is admitted that MO 1 belonged to PWs 2 and 3 and not to the appellant. The evidence of thes PW 1 and PW 2 is discrepant as pointed out by the Sessions Judge. Their conduct in not telling anybody about the incident on the date of the incident also makes their evidence not worthy of acceptance. The other material before the court is not sufficient to hold the appellant guilty. This was not a case in which it could be said that the appreciation of evidence by the Sessions Judge was either perverse or that only one opinion, namely, that the appellant was guilty of the offence was possible. In these circumstances, the High Court was in error in reversing the judgment of acquittal recorded by the Trial Court.
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T.C. Gupta and Anr Vs. Hari Om Prakash and Ors | You are, therefore, directed to supply this information in following format in respect of those who had filed objections under Section 5-A……..? 12. A reading of the above extract would seem to indicate that on the very day of the order i.e. 17.01.2011 the first appellant understood the said order to be requiring him to lay before the High Court information as to whether the land owners in favour of whom land has been released had filed objections under Section 5A of the Act or not. This is how the first appellant understood the order of the High Court. At that point of time the order of the Court was not available to the first appellant. On such understanding of the order dated 17.01.2011 the first appellant directed the concerned subordinate official to furnish information in the prescribed format in respect of the land owners who had filed their objections under Section 5A of the Act so that the same could be placed before the Court on the date fixed. While it may be correct that the first appellant ought to have sought information not only in respect of land owners who had filed their objections but also as regards the land owners who had not filed their objections, the question that arises is whether the said lapse, by itself, will make the first appellant liable in contempt? 13. The e-mail dated 17.01.2011, extracted above, partially bears out the stand taken by the first appellant that he understood the order of the Court as requiring him to furnish information in respect of land owners who had filed their objections. Admittedly, a copy of the order of the court dated 17.01.2011 became available to the first appellant only at 6.00 p.m. on 18.01.2011. In his affidavit the first appellant had also stated that it would have been better if, on 19.01.2011, he had sought more time to furnish the requisite information against query No.1. However, he did not do so as the information in respect of other queries were available. The circumstances in which the events have unfolded, in our considered view, does not lead to the sole conclusion that there was a deliberate or willful attempt on the part of the first appellant not to furnish the requisite information or to furnish wrong information to the Court. Rather, it appears probable that the failure to furnish the requisite information to the Court may have been occasioned by a momentary error of judgment on the part of the first appellant. For the said lapse he had tendered his unqualified apology in the affidavit dated 28.01.2011 along with which he had also furnished the requisite information i.e. name and particulars of the land owners who had not filed their objections under Section 5A of the Act. The above situation, in our considered view, called for a broad and magnanimous view of the matter and the acceptance of the unconditional apology tendered. Such a course of action, according to us, would have better served the dignity and majesty of the institution. In fact, under Section 12(1) of the Contempt of Courts Act read with Explanation thereto an apology ought not to be rejected merely on the ground that it is accompanied by an explanation for the lapse that had occurred. 14. Before parting, we consider it apt to quote hereunder certain observations of this Court in its opinion rendered in the Special Reference No. 1 of 1964 [AIR 1965 SC 745 ] (under Article 143(1) of the Constitution) made to this Court in the matter arising out of notice of breach of privilege of the State Legislature issued to two Hon?ble Judges of the Allahabad High Court as, according to us it is in the aforesaid spirit that the contempt jurisdiction ought to be viewed and exercised. ?142. Before we part with this topic, we would like to refer to one aspect of the question relating to the exercise of power to punish for contempt. So far as the courts are concerned, Judges always keep in mind the warning addressed to them by Lord Atkin in Andre Paul v. Attorney-General of Trinidad, AIR 1936 PC 141. Said Lord Atkin, ?Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though out- spoken comments of ordinary men.? We ought never to forget that the power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct. ……….? 15. That the power to punish for contempt is a rare specie of judicial power which by the very nature calls for exercise with great care and caution had been reiterated by this Court in Perspective Publications (P) Ltd. & Anr. Vs. The State of Maharashtra [AIR 1971 SC 221 ] whereas in In Re: S. Mulgaokar [(1978) 3 SCC 339] , Justice V.R. Krishna Iyer while noticing the principles of the exercise of power of contempt had outlined the first of such principles to be ?wise economy of the use of the contempt power by the court?. Reiteration of the aforesaid principle has been made in several subsequent pronouncements of this Court, reference to which would not be necessary in view of the unanimity of opinion on the issue that the power to punish for contempt ought to be exercised only where ?silence is no longer an option.? 16. For the aforesaid reasons we are unable to sustain the conclusion reached by the High Court in its order dated 31.01.2011. | 1[ds]The material facts indicating the unfolding of the relevant events leading to the eventual decision of the High Court has been narrated in seriatim in the preceding paragraphs. The information sought for by the High Court; the response of the appellants and their explanation with regard to the answers provided in the first instance and the reasons which had occasioned the errors therein have all been set out in detail. Notwithstanding the above, the High Court has come to the conclusion that the explanation provided by the appellants is a mere eyewash and wrong information was deliberately furnished and correct information was withheld by the appellants which make them liable in contempt. The basis for the above conclusion reached by the High Court is the contents of annexure A2 and A3 to the affidavit dated 28.01.2011 filed by the first appellant, namely, the email dated 17.01.2011 alongwith attachment sent by the first appellant to his subordinate officialsThat the power to punish for contempt is a rare specie of judicial power which by the very nature calls for exercise with great care and caution had been reiterated by this Court in Perspective Publications (P) Ltd. & Anr. Vs. The State of Maharashtra [AIR 1971 SC 221 ] whereas in In Re: S. Mulgaokar [(1978) 3 SCC 339] , Justice V.R. Krishna Iyer while noticing the principles of the exercise of power of contempt had outlined the first of such principles to be ?wise economy of the use of the contempt power by the court?. Reiteration of the aforesaid principle has been made in several subsequent pronouncements of this Court, reference to which would not be necessary in view of the unanimity of opinion on the issue that the power to punish for contempt ought to be exercised only where ?silence is no longer an option.?we are unable to sustain the conclusion reached by the High Court in its order dated 31.01.2011. | 1 | 2,817 | 351 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
You are, therefore, directed to supply this information in following format in respect of those who had filed objections under Section 5-A……..? 12. A reading of the above extract would seem to indicate that on the very day of the order i.e. 17.01.2011 the first appellant understood the said order to be requiring him to lay before the High Court information as to whether the land owners in favour of whom land has been released had filed objections under Section 5A of the Act or not. This is how the first appellant understood the order of the High Court. At that point of time the order of the Court was not available to the first appellant. On such understanding of the order dated 17.01.2011 the first appellant directed the concerned subordinate official to furnish information in the prescribed format in respect of the land owners who had filed their objections under Section 5A of the Act so that the same could be placed before the Court on the date fixed. While it may be correct that the first appellant ought to have sought information not only in respect of land owners who had filed their objections but also as regards the land owners who had not filed their objections, the question that arises is whether the said lapse, by itself, will make the first appellant liable in contempt? 13. The e-mail dated 17.01.2011, extracted above, partially bears out the stand taken by the first appellant that he understood the order of the Court as requiring him to furnish information in respect of land owners who had filed their objections. Admittedly, a copy of the order of the court dated 17.01.2011 became available to the first appellant only at 6.00 p.m. on 18.01.2011. In his affidavit the first appellant had also stated that it would have been better if, on 19.01.2011, he had sought more time to furnish the requisite information against query No.1. However, he did not do so as the information in respect of other queries were available. The circumstances in which the events have unfolded, in our considered view, does not lead to the sole conclusion that there was a deliberate or willful attempt on the part of the first appellant not to furnish the requisite information or to furnish wrong information to the Court. Rather, it appears probable that the failure to furnish the requisite information to the Court may have been occasioned by a momentary error of judgment on the part of the first appellant. For the said lapse he had tendered his unqualified apology in the affidavit dated 28.01.2011 along with which he had also furnished the requisite information i.e. name and particulars of the land owners who had not filed their objections under Section 5A of the Act. The above situation, in our considered view, called for a broad and magnanimous view of the matter and the acceptance of the unconditional apology tendered. Such a course of action, according to us, would have better served the dignity and majesty of the institution. In fact, under Section 12(1) of the Contempt of Courts Act read with Explanation thereto an apology ought not to be rejected merely on the ground that it is accompanied by an explanation for the lapse that had occurred. 14. Before parting, we consider it apt to quote hereunder certain observations of this Court in its opinion rendered in the Special Reference No. 1 of 1964 [AIR 1965 SC 745 ] (under Article 143(1) of the Constitution) made to this Court in the matter arising out of notice of breach of privilege of the State Legislature issued to two Hon?ble Judges of the Allahabad High Court as, according to us it is in the aforesaid spirit that the contempt jurisdiction ought to be viewed and exercised. ?142. Before we part with this topic, we would like to refer to one aspect of the question relating to the exercise of power to punish for contempt. So far as the courts are concerned, Judges always keep in mind the warning addressed to them by Lord Atkin in Andre Paul v. Attorney-General of Trinidad, AIR 1936 PC 141. Said Lord Atkin, ?Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though out- spoken comments of ordinary men.? We ought never to forget that the power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct. ……….? 15. That the power to punish for contempt is a rare specie of judicial power which by the very nature calls for exercise with great care and caution had been reiterated by this Court in Perspective Publications (P) Ltd. & Anr. Vs. The State of Maharashtra [AIR 1971 SC 221 ] whereas in In Re: S. Mulgaokar [(1978) 3 SCC 339] , Justice V.R. Krishna Iyer while noticing the principles of the exercise of power of contempt had outlined the first of such principles to be ?wise economy of the use of the contempt power by the court?. Reiteration of the aforesaid principle has been made in several subsequent pronouncements of this Court, reference to which would not be necessary in view of the unanimity of opinion on the issue that the power to punish for contempt ought to be exercised only where ?silence is no longer an option.? 16. For the aforesaid reasons we are unable to sustain the conclusion reached by the High Court in its order dated 31.01.2011.
### Response:
1
### Explanation:
The material facts indicating the unfolding of the relevant events leading to the eventual decision of the High Court has been narrated in seriatim in the preceding paragraphs. The information sought for by the High Court; the response of the appellants and their explanation with regard to the answers provided in the first instance and the reasons which had occasioned the errors therein have all been set out in detail. Notwithstanding the above, the High Court has come to the conclusion that the explanation provided by the appellants is a mere eyewash and wrong information was deliberately furnished and correct information was withheld by the appellants which make them liable in contempt. The basis for the above conclusion reached by the High Court is the contents of annexure A2 and A3 to the affidavit dated 28.01.2011 filed by the first appellant, namely, the email dated 17.01.2011 alongwith attachment sent by the first appellant to his subordinate officialsThat the power to punish for contempt is a rare specie of judicial power which by the very nature calls for exercise with great care and caution had been reiterated by this Court in Perspective Publications (P) Ltd. & Anr. Vs. The State of Maharashtra [AIR 1971 SC 221 ] whereas in In Re: S. Mulgaokar [(1978) 3 SCC 339] , Justice V.R. Krishna Iyer while noticing the principles of the exercise of power of contempt had outlined the first of such principles to be ?wise economy of the use of the contempt power by the court?. Reiteration of the aforesaid principle has been made in several subsequent pronouncements of this Court, reference to which would not be necessary in view of the unanimity of opinion on the issue that the power to punish for contempt ought to be exercised only where ?silence is no longer an option.?we are unable to sustain the conclusion reached by the High Court in its order dated 31.01.2011.
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Mohd.Arif @ Ashfaq Vs. State Of Nct Of Delhi | Sandhu [2005 (11) SCC 600 ]. The Court expressed its anguish in the following words. In the instant case, there can be no doubt that the most appropriate punishment is death sentence. That is what has been awarded by the trial Court and the High Court. The present case, which has no parallel in the history of Indian Republic, presents us in crystal clear terms, a spectacle of rarest of rare cases. The very idea of attacking and overpowering a sovereign democratic institution by using powerful arms and explosives and imperiling the safety of a multitude of peoples representatives, constitutional functionaries and officials of Government of India and engaging into a combat with security forces is a terrorist act of gravest severity. It is a classic example of rarest of rare cases. This question of attack on the army and the killing of three soldiers sent shock waves of indignation throughout the country. We have no doubt that the collective conscience of the society can be satisfied by capital punishment alone. We agree with the sentiments expressed in Navjot Singh Sandhus case (cited supra): The challenge to the unity, integrity and sovereignty of India by these acts of terrorists and conspirators, can only be compensated by giving the maximum punishment to the person who is proved to be the conspirator in this treacherous act. 84. A conspiracy to attack the Indian Army unit stationed in Red Fort and the consequent un-provoked attack cannot be described excepting as waging war against India and there can be no question of compromising on this issue. The trial Court has relied on number of other cases including the case of Navjot Singh Sandhu (cited supra) as also the case of State of Tamil Nadu v. Nalini [AIR 1999 SC 2640 ]. We do not want to burden the judgment by quoting from all these cases. However, we must point out that in Machhi Singh v. State of Punjabs case [1983 (3) SCC 470 ] a principle was culled out that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, same can be awarded. The fourth test includes the crime of enormous 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. Applying both the tests here we feel that this is a case where the conscience of the community would get shocked and it would definitely expect the death penalty for the appellant. Three persons who had nothing to do with the conspirators were killed in this case. Therefore, even Machhi Singhs case (cited supra) would aptly apply. Even in Bachan Singh v. State of Punjab [AIR 1980 SC 898 ] case, this Court referred to the penal statutes of States in USA framed after Furman v. Georgia (1972) 33 L Ed 2d 346: 408 US 238) in general and Clause 2(a),(b), (c) and (d) of the Indian Penal Code (Amendment) Bill duly passed in 1978 by Rajya Sabha. Following aggravating circumstances were suggested by the Court in that case as aggravating circumstances:- (a) If the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed- (i) while such member or public servant was on duty; or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member of public servant; or (d) if the murder is of a person who had acted in the lawful discharge of his duty under S.43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under S.37 and S.129 of the said Code. 85. The Court then observed that there could be no objection to the acceptance of these indicators. The Court, however, preferred not to fetter the judicial conscience by attempting to make an exhausting enumeration one way or the other. The circumstance at (c) would be fully covering the present case since the three soldiers who lost their lives were the members of the armed forces and Abdullah one of them was actually doing his Sentry duty though there is no evidence available about as to what duty the other two were doing. But there is no reason to hold that their murder was in any manner prompted by any provocation or action on their part. This would be an additional circumstance according to us which would justify the death sentence. During the whole debate the learned defence counsel did not attempt to bring any mitigating circumstance. In fact, this is a unique case where there is one most aggravating circumstance that it was a direct attack on the unity, integrity and sovereignty of India by foreigners. Thus, it was an attack on Mother India. This is apart from the fact that as many as three persons had lost their lives. The conspirators had no place in India. Appellant was a foreign national and had entered India without any authorization or even justification. This is apart from the fact that the appellant built up a conspiracy by practicing deceit and committing various other offences in furtherance of the conspiracy to wage war against India as also to commit murders by launching an unprovoked attack on the soldiers of Indian Army. | 0[ds]18. From the clear evidence of Capt. S.P. Patwardhan (PW-189), Major Manish Nagpal (PW-126), Retd. Subedar D.N. Singh (PW-131), Hawaldar Dalbir Singh (PW-134) and Major D.K. Singh (PW-144), we are of the clear opinion that what took place on the said night on 22.12.2000 could not be just set aside as an internal brawl between the Army men themselves. The suggestion is absolutely wild. We find from the evidence that none of these witnesses who have been named above and who were the direct witnesses to the firing incident have been given this suggestion in their cross-examination that it was merely a brawl between the Army men. That apart, there are some circumstances which completely belie the theory of internal brawl. It would have to be remembered that a civilian Sentry Abdullah Thakur was the first to lose his life. There is nothing to suggest that the said Sentry Abdullah Thakur or the second casualty Rifleman (Barber) Uma Shankar, as also Naik Ashok Kumar had developed any enmity with anybody in the battalion. Further, if this was a brawl between the Army men, there was no reason why Abdullah Thakur was shot at and killed. We also do not find any reason to suspect the version of Major Manish Nagpal (PW-126) who himself claimed to have fired six rounds in the direction of Ring Road after taking a self loading rifle from Hawaldar Dalbir Singh (PW-134). In fact, there is no contradiction in his version and the version of Hawaldar Dalbir Singh (PW-134). The version of Major Manish Nagpal (PW-126) is in fact corroborated by the evidence of Major D.K. Singh (PW-144) as also the evidence of Retd. Subedar D.N. Singh (PW-131). Even Major D.K. Singh (PW-144) had fired alongwith Major Manish Nagpal (PW-126) and they had fired, in all, 11 rounds, the empties of which were given by these two officers to Retd. Subedar D.N. Singh (PW-131). Ultimately, these empties were produced before the civil police officers and were taken into possession vide Exhibit PW-131/A. This version is also corroborated by Hawaldar Dalbir Singh (PW-134). We have carefully seen the evidence of all these witnesses mentioned above and found it trustworthy. It must be mentioned that at 9.23 pm, a call was made to the Police Control Room (PCR) by Major Manish Nagpal (PW- 126) suggesting that some persons had run away after firing inside the Red Fort and that they had gone towards the Ring Road. This was proved by the lady Constable Harvir Kaur, PCR (PW-77) and the concerned document is Exhibit PW-77/A which lends full support to the version and suggests that there was an incident of shooting in the Red Fort. DD Entry No. 19A dated 22.12.2000 made at Police Station Kotwali supports this version of lady Constable Harvir Kaur (PW-77), which suggests that she had flashed a wireless message about some persons having fled towards the Ring Road after resorting to firing inside the Red Fort. The evidence of Head Constable Virender Kumar (PW-15) is also there to prove the report in this regard vide Exhibit PW-15/B. It must be remembered that Police Control Room had received the calls of similar nature at 9.47 pm and two calls at 9.50 pm vide Exhibits PW-42/A, PW-95/A and PW-43/A, which support the version of the prosecution about the incident. The evidence of Constable Indu Bala, PCR (PW-43) about having received a telephone call from one Karan Mohan, the evidence of Col. A. Mohan (PW-51) that he was informed by the Commanding Officer, 7th Rajputana, Delhi that some civilians had entered Red Fort and the evidence of Constable Harvir Kaur, PCR (PW-77) that she received information from Major Manish Nagpal (PW-126) from telephone No. 3278234 about some persons having fled, as also the evidence of Head Constable Harbans, PCR (PW-95) that he had received a telephone call from Col. Mohan (PW-51) by telephone No. 5693227 stating that his Jawan posted at Red Fort was attacked, supports the version that there was incident of shoot out and it could not be merely dismissed as an internal brawl. This is apart from the evidence of other police witnesses like SHO Roop Lal (PW-234) who had reached the spot almost immediately after receiving the wireless message and who confirmed the presence of S.I. Rajinder Singh (PW-137) and Capt. S.P. Patwardhan (PW-189) on the spot. The senior officers of the police had also reached the spot and their evidence only confirms the dastardly incident of shoot out. There is enormous documentary evidence in shape of DD Entry No. 9A (Exhibit PW-156/C), DD Entry No. 73 B, Exhibit PW- 152/B, Exhibit PW-152/F and DD No. 22A, which confirms that such incident had happened. There is other piece of voluminous documentary evidence about seizure of blood sample (Exhibit PW-123/B), seizure from the spots (Exhibit PW-122/B), seizure of blood stained clothes (Exhibit PW-114/A), Exhibit PW-123/A, Exhibit PW-122/A, seizure of magazine, live cartridges and empties (Exhibit PW-189/C), Exhibit PW-115/A to 37 (37 empty cartridges), Exhibit PW-115/38 (1 live cartridge), seizure of rope and cap (Exhibit PW-183/D), seizure of various articles from Red Fort (Exhibit PW-196/A) and Exhibits PW-230/A & 230/B etc. to suggest that the incident as, suggested by prosecution, did take place. It is also to be seen that the post mortem was conducted on the three bodies by Shri K. L. Sharma (PW-187). This witness has opined that all the deceased had bullet injuries by sophisticated fire arms and the shots were filed at them from a distant range. It is significant that the doctor was not cross- examined to the effect that the injury could have been caused by any weapon which was available with the Army and not with the AK 56 rifles. We are, therefore, not at all impressed by the argument that such incident was nothing but a white wash given by Army to hide the incident of internal brawl. We must reject the whole argument as too ambitious. We, therefore, hold that the incident of shoot out did take place in which three persons lost their livesThe argument is clearly incorrect. Merely because all these witnesses have admitted that there was search going on for the whole night, it does not mean that the incident did not take place. We have already pointed out that number of incriminating articles were found, the most important of the same being the empties of the bullets fired by the intruders. It is very significant that the prosecution has been able to connect the bullets with the arms seized by themThe report of the ballistic experts was proved as Exhibit PW-202/C. He duly proved and identified the cartridges which were test fired in the laboratory. He also proved and identified the rifles examined by him and the magazines along with the other live cartridges found in the same. There was hardly any cross-examination worth the name of this witness and, therefore, it is clearly established that the cartridges cases found inside the Red Fort were fired from the two rifles which were found outside the Red Fort. This witness had also examined 11 empties of the self-loading rifles used by the army men firing towards intruders and had clearly opined that those empties could not have been loaded in AK-56 rifles examined by him. We must note that one of these rifles i.e. Exhibit PW-62/1 was recovered on the discovery made by the appellant. We shall come to the merits of that discovery in the latter part of our judgment. However, at this stage, it is sufficient to note that the prosecution had thoroughly proved the nexus between the cartridge cases which were found inside the Red Fort and the incident. This nexus is extremely important as while the guns were found outside the Red Fort the fire empties were found inside. This clearly suggests that the incident of firing took place inside the Red Fort while guns were abandoned by the intruders outside the Red Fort. This witness also examined the contents of parcel No.34, namely, one rifle two magazines, live cartridge, knife and a Bandolier. This was again an assault rifle of 7.62 mm which we have already considered earlier. However, along with the same, as per the discovery memorandum a bandolier (Exhibit PW-202/3) was also found. The contents of the Bandolier were in parcel No.35. It contained four hand grenades and four detonators they being Exhibit PW-50/1 to 4 and Exhibit PW-50/5 to 8. Very significantly four detonators had a slip affixed with the help of a tag and it was written in Urdu Khabardar. Grenade firing ke liye tyrar he. Safety pin sirf hamle kye waqt nikale.(beware grenade is ready for firing. Pin should be taken out only when it is to be thrown). The existence of these bandoliers and the grenades and their recovery goes a long way to prove that the theory propounded by the defence that the incident never took place inside the Red Fort at the instance of the intruders and it was an internal affair of the Army men inside has to be rejected. In order to complete the narration, we must also refer to the evidence of Shri A. Dey who had examined the rifle found at Batla House during the encounter in which one Abu Shamal was killed. That recovery is not seriously disputed by Ms. JaiswalAll this supports the prosecution theory that the ghastly incident of firing did take place at the instance of some outsiders inside the Red FortWe have examined the evidence of all the three witnesses particularly in this behalf and we find the evidence to be thoroughly reliable. Ms. Jaiswal could not bring to our notice any material in the cross examination of these witnesses so as to render the evidence uncreditworthy. Some efforts were also made by relying on the evidence of S.K.Chadha (PW-125) that though he was a member of the team, he reached the spot from where the recovery was made at 10 a.m. on 23.12.2000. We fail to follow the significance of this admission. It is not as if all the officers must remain at one and the same place if they are the members of a particular investigation team. It may be that S. K. Chadha might have reached the spot at 10 Oclock but that does not mean recovery team consisting of other members did not effect recovery of the polythene bag containing currency and the slip. Ms. Jaiswal also urged that the premises were being searched thoroughly with the help of dog squad and the search light and that it was not possible that the search team would miss to notice the polythene bag and the currency and the slip lying in it. The argument is only mentioned for being rejected. What the investigating team would be looking for are not the polythene bag and the small paper but the weapons and the men who handled those weapons. A small transparent polythene bag could have easily been missed earlier or may not have attracted the attention of the investigating agency. We do not find anything to suspect the claim that the recovery was made at about 5-6 a.m. We must note that this was the longest night when the sun rise would also be late. Under such circumstances, in that dark night if the investigating team, after the microscopic search, took a few ours in recovering the small apparently insignificant polythene bag, it is not unnatural. They could not be expected to find polythene bag instantaneously or immediately. Much time must have been taken in first searching inside the Red Fort. Therefore, if the polythene bag was found at about 5-6 a.m. as per the claim of the prosecution agency, and not earlier, there is nothing uncreditworthy in the claim. We are, therefore, convinced that the polythene bag and the slip mentioning the cell phone number were actually found at the spot. Ms. Jaiswal tried to find some chinks in the armour by suggesting that S.I. Sanjay Kumars statement was contrary to the statement of S.I. Naresh Kumar (PW-217). We do not find any discrepancy between the two statements. Ms. Jaiswal also referred to the evidence of Inspector Mohan Chand Sharma (PW-229) who stated that recovery was made by him at about 9 a.m. in the morning. What the witness meant was that it was he who came in the possession of the items at 9 a.m. There is nothing very significant in that assertion. The evidence of SHO Roop Lal (PW-234) was also referred to who claimed that after the polythene bag was produced before him which contained currency and paper slip, he sealed currency in the same polythene with the help of cloth and sealed under parcel given Exhibit No.24. There is nothing to dis- believe this claim after all SHO Roop Lal (PW-234) was the senior most investigating officer and there is nothing insignificant if S.I. Sanjay Kumar (PW-183) finding the polythene bag handed over the same to SHO Roop Lal (PW-234). A specific step has been taken by S.I. Sanjay Kumar (PW- 183) by getting the said bag photographed. We have seen the photographs also. It is true that no photograph was taken of the polythene bag containing currency note and the slip mentioning the telephone number. They appear to be in separate photographs and it is quite understandable as immediately after the finding of the polythene bag it must have been handled by S.I. Sanjay Kumar (PW-183). It is only after finding the slip and the telephone number mentioned thereon that by way of abundant caution the photographs were taken. Anxiety was to show the slip and the fact that there was a telephone number written on the slip. Ms. Jaiswal then argued that Hawa Singh (PW-228) had stated that he was told about the slip only in the evening though he joined the investigation at 10.30 a.m. We do not find anything substantial in this argument. Ms. Jaiswal further argued that there is contradiction in S.I. Sanjay Kumar (PW-183) and Inspector Mohan Chand Sharmas (PW-229) statement as to who had recovered the currency and slip and that there was material contradiction in the evidence of S.I. Sanjay Kumar (PW-183), S.K. Chadha (PW-125) and Inspector Mohan Chand Sharma (PW-229). Further, she tried to say that there was contradiction in the statement of S.I. Sanjay Kumar, SHO Roop Lal (PW-234) and S.I. Naresh Kumar (PW- 217) on the question as to whether currency and slip was taken inside the Red Fort to be handed over to SHO Roop Lal (PW-234) or whether he was called on the spot of recovery. She also raised objections about the photographs that they were not taken in `as is where is position. We have already applied our mind to this aspect and we are of the clear opinion that the objections raised by the defence are absolutely insignificant. What is material is the polythene bag being found. The police could not have created this polythene bag containing currency and slip with a number mentioned on it. There was no question of any false evidence being created at that point of time which was hardly a few hours after the shootout. It is true that the photographs of the polythene bag are not and could be on `as is where is basis. We have already given the reason thereof. We have no doubts in our mind and we confirm the finding of the trial Court and the appellate Court that the said polythene bag containing the currency notes and the slip on which the cell phone number was mentioned, was actually found on the spot which spot was abutting the backside wall of the Red Fort. It has to be borne in mind that a major incident of shootout had occurred wherein three lives were lost. The attack was on the Red Fort which has emotional and historical importance in the Indian minds. Large investigation team was busy investigating the whole affair and, therefore, the police could not have produced out of the thin air a small polythene bag containing currency and the slip. The spot where it was found is well described and was on the escape route of the intruders. That wall from inside the Red Fort has hardly any height though it is of about 15 to 20 feet from the ground on the other side. We have seen the proved photograph which suggests that from that spot one can easily land on the extended pipe and from that pipe to the small platform and from there to the ground. The polythene bag was found near this spot. Therefore, we accept the finding by the trial Court and the appellate Court that this polythene bag must have slipped from a person who scaled down to the ground. At the beginning of the debate it was made out as if the said wall was insurmountable and that nobody could have jumped from the height of about 50-60 feet. Further on the close look at the evidence, the photographs the hollowness of the claim of the defence was writ large23. There is one more significant circumstance to suggest that the polythene bag must have been found where it was claimed to have been found by the investigating agency i.e. the finding of AK-56 rifle from a nearby spot in the bushes. We will consider the merits of that discovery which was at the instance of the appellant in the latter part of our judgment. Suffice it to say at this stage that the polythene bag was found in the reasonable proximity of the spot from where AK-56 rifle was recoveredThe whole recovery is proved by the prosecution25. However, even before that the investigating agency started investigation about the cell number which was found written in the slip which was found in the morning at about 5-6 a.m. this cell number was to provide a ray of light to the investigating agency which had no clue whatsoever till then about the perpetrators of the crime. Ultimately, the investigating agency on the basis of that number being 9811278510 not only unearthed the conspiracy but also reached the main players including the present appellantTherefore, through a cell ID the location of the active mobile instrument can be approximatedSignificantly enough, the `Knowledge Plus computer centre remained closed for two days after the incident at Red Fort. The investigating agency came to know about the ownership of the `Knowledge Plus computer center and it was established that the accused Mohd. Arif @ Ashfaq who was a resident of Ghazipur, owned this centre. All this evidence by Inspector Mohan Chand Sharma (PW-229) went unchallenged.All this goes to suggest the definite connection between two IMEI numbers and the two mobile numbers named above. It is needless to mention that this analysis painstakingly made by Inspector Mohan Chand Sharma (PW-229) led the investigating team to zero on the accused appellant in the night of 25.12.2000We have absolutely no reason to dis-believe this evidence of apprehension of the accused by the police team which is also supported by documentary evidence. We have also no doubt that the apprehension of the accused was possible only because of the scientific investigation done by PW-229, Inspector MC SharmaIt is to be noted that the defence has not refuted the claim of the prosecution that telephone No. 2720223 which was in the name of appellants Sister-in-law Farzana Farukhi, was installed at Flat No. 308-A, Ghazipur, where he was residing alongwith his wife Rehmana Yusuf Farukhi and his mother-in-law Qamar Farukhi (examined as DW-1). It is also not the claim of the defence that telephone No. 6315904 was not installed at the computer centre `Knowledge Plus which the appellant was running alongwith other person Faizal Mohd. Khan (PW056). We, therefore, reject the argument of Ms. Jaiswal, learned counsel that on the basis of the chit, the investigating agency could not and did not reach the appellant on the night of 25.12.2000From this the learned Solicitor General argued and, in our opinion, rightly, that the appellant used to have a mobile phone with himWe have no reason to disbelieve the above three witnesses and, therefore, we hold that it was established by the prosecution that the appellant used to have a mobile phoneIn our opinion, this explanation is quite satisfactory to reject the argument raised by learned defence counsel. We have, therefore, no hesitation to hold that after the appellant was apprehended on the night of 25.12.2000, the investigating agency recovered not only the pistol, but a mobile phone bearing number 9811278510 which was with the appellantThere is considerable force in the submission made by the learned Solicitor General. The depositions of the prosecution witnesses mentioned above, in our opinion, leave no doubt whatsoever in our minds that mobile number 9811278510 was used in the instrument having IMEI No.449173405451240 immediately after the attackThis evidence is also corroborated by the evidence of Mohan Chand Sharma (PW-229) who located the two IMEI numbers mentioned above and he also confirmed that as per the information collected by him two calls were made to BBC offices one in Srinagar and one in Delhi. There is absolutely nothing to dis-believe this version and, therefore, it is clear that telephone No.9811278510 was used on the relevant date on 22.12.2000 for claiming the responsibility of the attack in Red Fort. When call was made the IMEI number was 449173405451240. This situation almost clinches the issueThe prosecution, therefore, is successful in establishing that the cell phone No.9811278510 was used for making the calls to Srinagar, BBC correspondent as also to the BBC correspondent in Delhi.We are not impressed by this argument firstly because there is nothing to show that this is an authenticated document and though Ms. Jaiswal claimed that this document was supplied to the accused by the prosecution, there is nothing to support such a claim. We, have, therefore, no hesitation in rejecting Exhibit PW-198/DA. Ms. Jaiswal then pointed out that in Exhibit PW-198/E, there were certain discrepanciesWe have gone through the whole cross examination very carefully but we do not find any reason to reject Exhibit PW-198/E. In our opinion, the insignificant irregularities brought in the cross examination would not call for rejection of the document and the evidence. We, therefore, accept that cell phone No.9811278510 was used at a very crucial point of time i.e. between 9 to 9.30 p.m. at night on the day when the attack took place at or about the same time on Red Fort wherein three innocent persons were killed. We also confirm the finding by the trial Court and the appellate Court that it was this mobile number which was found with the appellant when he was arrested. We have already held that the theory that this mobile number belonged to the prosecution and it was planted on the appellant is not only farfetched but totally un- believable. We have also explained the delay in recovery of this mobile number from the accused on the basis of its IMEI number. The other corroborating evidence connecting the two mobile numbers namely, 9811278510 and 9811242154 the IMEI Nos.44519944090240 and 449173405451240 their interconnection with phone No.011 3355751 of BBC, Delhi, 2452918 (BBC, Srinagar), 2720223 of Farzana Farukhi and phone No.6315904 at computer centre is to be found in the evidence of Rajiv Pandit (PW-198), Inspector Mohan Chand Sharma (PW-229) and Inspector S.K.Sand (PW-230). The attempt of the investigating agency in analyzing the call details of these two numbers succeeded in establishing the connection of these two numbers with the number of BBC correspondent at Srinagar, the number of BBC correspondent at Delhi, the number at Farzana Farukhis residence and the number at the computer centre in the name of Danish Mohd. Khan. But for this careful and meticulous analysis which was of very high standards, it would not have been possible to apprehend the appellant and to de-code the intricate and complicated maze of the conspiracy. The timing of the calls made from this number to BBC Srinagar bearing number 0194452918 and BBC, Delhi bearing No.011 3355751 are significant. It will be seen that the calls made to Srinagar were at 7.41 p.m., 7.42 p.m. and 9.27 p.m. while the calls made to BBC, Delhi were at 9.25 p.m., 9.33 p.m. and again 9.33-45p.m. Again, while the calls to Srinagar were made from the front side of the Red Fort, the other calls were made from the back side of the Red Fort which establishes the presence of this mobile phone in close proximity to Red Fort when the calls were made. That is a very significant aspect38. All this evidence would leave no option for us except to accept the prosecutions contention that this cell phone No.9811278510 and the other phone No. 9811242154 as also the two IMEI numbers were extremely significant aspectsWe do not see any reason to dis-believe this witness. The calls to Pakistan from the concerned numbers is a very significant circumstance particularly because the appellant is admittedly a Pakistani national and was staying in India unauthorizedlyThere were some other documents proved by this witness. The cross examination of this witness is also lackluster. Therefore, this evidence is also extremely significant to support the role played by the appellant in the conspiracy43. Even at the cost of repetition, we may mention that immediately after the appellant was apprehended with a pistol and the live rounds he spilled the beans and gave information about his other associate Abu Shamal on the basis of which information the investigating team reached G-73, Batla House at about 3.15 a.m. This is deposed to by Inspector Mohan Chand Sharma. The house was locked. The investigating team lay there and waited and at about 5.10 a.m. a man resembling the description given by the appellant entered the house. The house was knocked at and the police disclosed their identity but the same was not opened and therefore, it had to be opened by the use of force. As per the evidence of Inspector Mohan Chand Sharma (PW-229) the firing started from inside and the same was returned eventually leading to the death of Abu Shamal @ Faisal. It is very significant to note that from this house, one AK-56 rifle, two magazines, 32 live and 67 fired cartridges were recovered. Two live hand grenades, bullet proof jackets and khakhi uniform were also recovered. It is significant that there is virtually no cross examination on this aspect. The evidence of Inspector Mohan Chand Sharma (PW-229) suggests that immediately after his apprehension, the appellant had owned up the involvement in the Red Fort attack incident and that he showed his residence to recover the arms and ammunitions and also disclosed about his associate. There is absolutely no cross examination about the incident at G-73, Batla House, Muradi Road, Okhla which place the police party was led by and discovered by the appellant. There is nothing to challenge the finding of the weapons & ammunition which were recovered at the instance of and as a result of information given by the appellant. All this has gone unchallenged in cross examination of Inspector Mohan Chand Sharma (PW-229). All this is supported by documentary evidence like DD entry bearing No.20 at Police Station New Friends Colony which mentioned about the firing going in Gali N.8, Batla House. Ram Singh, ASI (PW-92) proved this entry. Similarly, the receipt of information is entered as DD entry No. 28A at the same police station on 26.12.2000 at 6.40 a.m. Lastly, on the same day there is another entry DD No.22A at the same police station on the basis of information by Inspector Mohan Chand Sharma and FIR No.630 of 2000 was also registered. The other significant witnesses are Constable Ranbir Singh (PW-177) and ASI Ran Singh (PW- 92). We need not go into the contents of these entries excepting to suggest that the information given by the appellant about Abu Shamal is reflected therein. This brings us to a very important discovery statement made by the appellant as also to the seizure in pursuance of the said discovery statementWe have already explained in the earlier part of the judgment that this evidence could not be rejected on the mere plea that the mobile number was not found or was not immediately taken in possession by the investigating agency though they apprehended him on the night of 25.12.2000. We have also pointed out as to how it would have been disastrous to waste time in writing the Panchnama instead of immediately acting on the information given by the appellant. We, therefore, see nothing unnatural or unusual in the recovery of the mobile phone 9811278510. After all, the subsequent results which followed discovery statement by the appellant i.e. the knowledge about G-73, Batla House and the encounter of Abu Shamal and the finding of his fire weapon and the ammunition etc. do justify the quick action on the part of the investigating agency. We, therefore, cannot view with suspicion the formal arrest of the appellant and the recoveries effected thereafter or the seizure memos executedInsofar as the discovery of hand grenades at Jamia Milia Islamia University is concerned, we have no doubts about its genuineness and we accept the same. Merely because the appellant was in custody for 4-5 days and decided to disclose the information only on 01.01.2001, would not be a reason by itself to doubt the same or to have any suspicion on the same.If the evidence is found to be genuine and creditworthy, there is nothing wrong in accepting such a discovery statement. We do not see any reason to accept the argument that the police must have already known about the weapon. Considering the fact that this attack was on a dark night in the winters and the guns were thrown in the thick bushes then existing behind the Red Fort wall, it is quite possible that they were missed by the investigating agency. At any rate, the recovery of these guns from the spot near which the whole horrible drama took place and the appellant having knowledge about the same and further the proved use of these weapons and their fire-power, would persuade us to accept this discovery. Again, we cannot ignore the fact that the factum of discovery has been accepted by both the Courts below50. On his arrest on 25.12.2000, a ration card was recovered and seized from the very house at 308A, DDA flats, Ghazipur, Delhi. This card bore the number 258754. This was in the name of Ashfaq Ahmed, S/o Akram Khanat, R/o F-12/12, Batla House, Okhla, New Delhi. S.R. Raghav, retired Food and Supply Officer, Delhi (PW-7) entered the witness box to suggest that this card was not issued by his department i.e. Circle 6, Okhla. Other witness is Ms. Anju Goel, UDC (PW-164), who deposed that the appellants ration card did not bear her signature. She also pointed out that the signature appearing in Exhibit PW-164/A (ration card) was not her signature. There is no effective cross-examination of both these witnesses. Dharamvir Sharma, FSO, Circle 3, Bijwasan, Delhi (PW-165) also referred to the aforementioned ration card proved by Ms. Anju Goel (PW-164) and asserted that the signature and the handwriting on the said card was not that of Ms. Anju Goel. Manohar Lal, UDC, Department of Education (PW-172) deposed that the appellants ration card was not issued from Circle 6 of the Ration office. Kushal Kumar (PW-174) deposed that he had made entry of ration card of the appellant in his register at his fair price shop. Ms. Sunita, LDC, Food & Supply Office, Circle 7 (PW-191) gave specimen of two rubber stamps and they did not tally with the rubber stamps on the ration card of the appellant. There is absolutely no cross-examination. There is a report proved by Yashpal Singh, Supply Inspector, Department of Food and Supply, Ghaziabad (PW-2), being Exhibit PW-2/A, to the effect that no ration card in the name of Mohd. Arif @ Ashfaq (appellant) was ever issued by their office. Thus, it is obvious that the appellant got prepared a fake ration card, where name of his wife was mentioned as Bano and residence as 102, Kela Bhatta, Ghaziabad, where he had never resided. This ration card, significantly enough, was recovered from his house at 308A, DDA flats, Ghazipur, Delhi. Yashpal Singh (PW-2) and Rajbir Singh, Area Rationing Officer, Food and Civil Supply Department, Ghaziabad (PW-3) proved that the ration card was in the name of Azad Khalid (PW-1) and there was no ration card in the name of Ashfaq Ahmed S/o Akram Khanat. Azad Khalid Siddique, Correspondent, Sahara TV (PW-1) himself stepped into the witness box and deposed that there was one ration card in his name and other in his fathers name, which were issued at the address of 102, Kela Bhatti, Ghaziabad, which address was falsely given by the appellant because the appellant had never stayed at the said address. Thus, it is obvious that the ration card was fake and fabricated. The factual information on the ration card also does not tally at allIt is obvious that the said driving license was sought for on the basis of the ration card in the name of the appellant, which was obviously fake, as we have already shown above for the simple reason that the address given on this driving license was not the genuine address of the appellant, whereas it was in fact the address of Azad Khalid Siddique (PW-1) who had nothing to do with the appellant. In this driving license also, the address given by the appellant was B-17, Jangpura, Bhogal and it was issued by Sarai Kale Khan Authority. He obviously did not reside on this address which is clear from the evidence of Narayan Singh (PW-6). Thus, not only did the appellant got himself a fake and forged ration card, but on this basis, also got prepared a fake learning license, in which also, he gave a false residential address. All this was obviously with an idea to screen himself and to carry on his nefarious activities in the Indian cities. Nothing much has come in the cross- examinations of these witnesses. We have, therefore, no hesitation to hold that the appellant used a forged ration card and got a driving license giving a false addressWe have already referred to his assertion that the appellant had a mobile phone. In his cross-examination, nothing much has come about the contribution given by the appellant of Rs.1,70,000/-. He also asserted that it was the appellant who managed to take the premises of computer centre on lease. Shahvez Akhtar (PW-113) and Shahnawaz Ahmad (PW-163) have supported this57. All this would go to suggest that Nain Singh (PW-20) had a very vital part to play in his (appellant) being brought to India and being established thereWe have considered the evidence of all these witnesses, namely, Nain Singh (PW-20), Adam Malik (PW-31), Aamir Irfan (PW-37), Yunus Khan (PW-4) and Ved Prakash (PW-173), but the same do not persuade us to accept the defence theory. It is obvious that the appellant was staying with Nain Singh (PW-20) for some time and then used to interact with the other tenants like Rashid Ali (PW-232) and Adam Malik (PW-31) and at that time, he claimed to be belonging to Jammu and claimed to be in the business of selling shawls. It is during that period alone that he got married to Rehmana Yusuf Farukhi barely a fortnight prior to the incident at the Red Fort. We, therefore, reject the argument of Ms. Kamini Jaiswal on this aspect. Therefore, it cannot be disputed that the appellant had some connection with Sher Zaman @ Shabbir (A-13) who was then established to be an Afghan national and who remained absconding till date.Therefore, on the basis of his driving license, when he got his HDFC Bank account opened, it is obvious that he had given false information, much less regarding his residential address which was also mentioned on his driving license and which was not trueWe may point out that there is absolutely no explanation by the appellant either by way of cross-examination of the witnesses or by way of his statement under Section 313 Cr.P.C. as to where all these amounts had come from and why did he deposit huge amounts in the three accounts mentioned above. Rs.29,50,000/- is not an ordinary sum. Also, there is no evidence that in his account in HDFC Bank, the appellant has Rs.6 lakhs. Further very sizeable amount is shown to have been paid to Rehmana Yusuf Farukhi in her account in the State Bank of IndiaHowever, that does not absolve the appellant completely since he had to explain as to where he was receiving money from for putting in the accounts of Qasid. This circumstance of the appellant in failing to explain the huge amount and its source would be of immense importance and would go a long way to show that the accused was receiving huge amounts from undisclosed sourcesWe, therefore, view this circumstance as an incriminating circumstance. We entirely agree with the High Court as well as the trial Court for the inferences drawn in respect of these deposits made by the accusedThis itself signifies that immediately after he was apprehended, the accused was in effective custody of the investigating agencyWe do not, therefore, find any thing wrong with the discovery even if it is assumed that the information was not recorded and hold that immediately after his apprehension, the accused did give the information which was known to him alone in pursuance of which a very material discovery was made.The learned counsel pointed out that if the sniffer dogs were taken there for searching, it would be impossible that the investigating agency would not find the AK-56 rifle which was lying quite near to the spot from where the chit and the currency notes were picked up by the investigating agency. In the first place, there is definite evidence on record that the sniffer dogs were not taken to the spot from where the polythene packet containing chit and currency notes was recovered. Inspector Hawa Singh (PW-228) is the witness who specifically spoke about the dog squad not having been taken to that spot. We are not impressed by this argument that the investigating agency had already seen the said rifle but had chosen to plant it against the appellant. Even the evidence of SHO Roop Lal (PW-234) is to the effect that dog squad was not taken to the back of the Red Fort. SHO Roop Lal (PW-234) also stated that the Sunday Bazar was also not allowed to be held on 22.12.2000. We have no reason to discard this evidence. That apart, we do not see any reason why the investigating agency would plant the aforementioned AK- 56 rifle, bandolier and hand grenades therein, without any rhyme or reason. True, they were interested in the investigation, but that does not mean that they were out to falsely implicate the appellant. This is apart from the fact that police officers could not have procured a foreign made AK-56 rifle and the foreign made grenades on their own to be foisted against the appellant. No such cross-examination appears to have been done on those police officers. It is also difficult to accept the argument that anybody could have found the rifle which was lying in the thick bushes. There is evidence on record that the backside of the Red Fort had substantially thick bushes. Once the police officers had found the chit and the currency notes which gave them a definite direction to proceed in their investigation, it was not likely that the police officers would visit that spot again and that is what had happened.We are also of the opinion that this discovery was fully proved, in that, the appellant had given the information that it was Abu Shamal @ Faisal who had thrown that rifle in his bid to escape from the spot where the bloody drama was performed, resulting in death of three persons. Even earlier to this discovery, Abu Shamal @ Faisal was eliminated in encounter and he was found with substantial quantity of firearm and ammunition. We, therefore, see no reason to accept the defence contention that this discovery was a fake discoveryThere is nothing to support this version. Thus, the discovery statements attributed to the appellant and the material discovered in pursuance thereof would fully show the truth that the appellant was involved in the whole affair. The discovery of hand grenades behind the computer centre near Jamia Millia Islamia University was very significant. So also the discovery of the shop of Sher Zaman @ Shabbir (A-13), the Hawala dealer, as also the documents discovered therefrom, show the involvement of the appellant in the whole affair. In this behalf, we fully endorse the finding of the High Court. About these discoveries, one another complaint by the learned defence counsel was that no public witnesses were associated. In fact, there is ample evidence on record to suggest that though the investigating agency made the effort, nobody came forward. This was all the more so, particularly in case of the recovery of pistol from the appellant as also the discoveries vide Exhibit PW-148/E72. We have seen the evidence as also the so-called explanations given by the appellant in his statement under Section 313 Cr.P.C. We are of the clear opinion that the detailed statement which he gave at the end of the examination was a myth and remained totally unsubstantiated. We have also considered the defence evidence of Ms. Qamar Farukhi (DW-1) and we are of the clear opinion that even that evidence has no legs to stand.It is really strange that inspite of this, the appellant should have got married to Rehmana. Very strangely, the lady completely denied that she even knew that the appellant was a resident of Pakistan. Much importance, therefore, cannot be given to this defence witness.74. We are in complete agreement with the findings regarding the incriminating circumstances as recorded by the High Court. On the basis of the aforementioned circumstances, the High Court came to the conclusion that the appellant was responsible for the incident of shooting inside the Lal Quila (Red Fort) on the night of 22.12.2000, which resulted in the death of three soldiers of Army. It has also been held by the High Court that this was a result of well planned conspiracy between the appellant and some other militants including deceased Abu Shamal @ faizal who was killed in an encounter with the police at House No. G-73, Batla House, Muradi Road, Okhla, New Delhi. The High Court has also deduced that it was at the instance of the appellant that the police could reach that spot. The High Court has further come to the conclusion that it was in a systematic manner that the appellant came to India illegally and collected highly sophisticated arms and ammunition meant for mass destruction. The High Court further held that he chose to select the Red Fort for an assault alongwith his other associates, the Red Fort being a place of national importance for India. The High Court has also recorded a finding that the chosen attack was on the Army Camp which was stationed there to protect this monument of national importance. The High Court has, therefore, deduced that it was an act of waging war against the Government of India. It is further held that the associates, with whom the appellant had entered into conspiracy, had attacked the Army Camp, which suggests that there was a conspiracy to wage war against the Government of India, particularly, because in that attack, sophisticated arms like AK-47 and AK-56 rifles and hand grenades were used. The High Court also took note that this aspect regarding waging war was not even argued by the learned counsel appearing for defence. It is on this basis that the appellant was held guilty for the offences punishable under Sections 120-B, 121-A, 121, IPC, Section 120-B read with Section 302, IPC and Sections 468/471/474, IPC and also the offences under Sections 186/353/120-B, IPC. He was also held guilty for the offence under Section 14 of the Foreigners Act, since it was proved that the appellant, a foreigner, had entered the territory of India without obtaining the necessary permissions and clearance. Similarly, the appellant was also held guilty for the offences under the Arms Act as well as the Explosive Substances Act on account of his being found with a pistol and live cartridges76. There can be no dispute that in a case entirely dependent on the circumstantial evidence, the responsibility of the prosecution is more as compared to the case where the ocular testimony or the direct evidence, as the case may be, is available. The Court, before relying on the circumstantial evidence and convicting the accused thereby has to satisfy itself completely that there is no other inference consistent with the innocence of the accused possible nor is there any plausible explanation. The Court must, therefore, make up its mind about the inferences to be drawn from each proved circumstance and should also consider the cumulative effect thereof. In doing this, the Court has to satisfy its conscience that it is not proceeding on the imaginary inferences or its prejudices and that there could be no other inference possible excepting the guilt on the part of the accused. We respectfully agree with the principles drawn in the above mentioned cases and hold that the prosecution was successful in establishing the above mentioned circumstances against the appellant, individually, as well as, cumulatively. There indeed cannot be a universal test applicable commonly to all the situations for reaching an inference that the accused is guilty on the basis of the proved circumstances against him nor could there be any quantitative test made applicable. At times, there may be only a few circumstances available to reach a conclusion of the guilt on the part of the accused and at times, even if there are large numbers of circumstances proved, they may not be enough to reach the conclusion of guilt on the part of the accused. It is the quality of each individual circumstance that is material and that would essentially depend upon the quality of evidence. Fanciful imagination in such cases has no place. Clear and irrefutable logic would be an essential factor in arriving at the verdict of guilt on the basis of the proved circumstances. In our opinion, the present case is such, as would pass all the tests so far devised by this Court in the realm of criminal jurisprudenceWe must immediately note that the criticism is entirely misplaced, both against the investigating agency and the Courts below. The investigation in this case was both scientific and fair investigation. This was one of the most difficult cases to be investigated as there could have been no clue available to the investigating agencyThe records of the trial and the appellate Courts truly justify these inferences. We, therefore, reject this argument of the learned defence counselIt may be that Rehmana Yusuf Farukhi also did not have any idea and, therefore, was granted the benefit of doubt; however, that does not, in any manner, dilute the nefarious plans on the part of the appellant. He collected highly sophisticated arms and ammunition and some arms were proved to have been used in the attack on the Red Fort. The attack on the soldiers staying in the Army Camp at Red Fort was nothing but a war waged against the Government of India. It was clear that there were more than one person. Therefore, it was nothing but a well planned conspiracy, in which apart from the appellant, some others were also involvedIt is for these reasons that this place has become a place of honour for Indians. No one can ever forget the glorious moments when the Indians irrespective of their religions fought their first war of Independence and shed their blood. It was, therefore, but natural for the foreigner enemies to plan an attack on the army specially kept to guard this great monument. This was not only an attack on Red Fort or the army stationed therein, this was an arrogant assault on the self respect of this great nation. It was a well thought out insult offered to question the sovereignty of this great nation by foreign nationals. Therefore, this case becomes a rarest of rare case. This was nothing but an undeclared war by some foreign mercenaries like the present appellant and his other partner in conspiracy Abu Shamal and some others who either got killed or escaped. In conspiring to bring about such kind of attack and then carrying out their nefarious activities in systematic manner to make an attack possible was nothing but an attempt to question the sovereignty of India. Therefore, even without any reference to any other case law, we held this case to be the rarest of rare case. Similar sentiment was expressed by this Court in State v. Navjot Singh Sandhu [2005 (11) SCC 600 ].84. A conspiracy to attack the Indian Army unit stationed in Red Fort and the consequent un-provoked attack cannot be described excepting as waging war against India and there can be no question of compromising on this issue. The trial Court has relied on number of other cases including the case of Navjot Singh Sandhu (cited supra) as also the case of State of Tamil Nadu v. Nalini [AIR 1999 SC 2640 ]. We do not want to burden the judgment by quoting from all these cases. However, we must point out that in Machhi Singh v. State of Punjabs case [1983 (3) SCC 470 ] a principle was culled out that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, same can be awarded. The fourth test includes the crime of enormous proportionThe circumstance at (c) would be fully covering the present case since the three soldiers who lost their lives were the members of the armed forces and Abdullah one of them was actually doing his Sentry duty though there is no evidence available about as to what duty the other two were doing. But there is no reason to hold that their murder was in any manner prompted by any provocation or action on their part. This would be an additional circumstance according to us which would justify the death sentence. During the whole debate the learned defence counsel did not attempt to bring any mitigating circumstance. In fact, this is a unique case where there is one most aggravating circumstance that it was a direct attack on the unity, integrity and sovereignty of India by foreigners. Thus, it was an attack on Mother India. This is apart from the fact that as many as three persons had lost their lives. The conspirators had no place in India. Appellant was a foreign national and had entered India without any authorization or even justification. This is apart from the fact that the appellant built up a conspiracy by practicing deceit and committing various other offences in furtherance of the conspiracy to wage war against India as also to commit murders by launching an unprovoked attack on the soldiers of Indian Army | 0 | 44,372 | 9,507 | ### Instruction:
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Sandhu [2005 (11) SCC 600 ]. The Court expressed its anguish in the following words. In the instant case, there can be no doubt that the most appropriate punishment is death sentence. That is what has been awarded by the trial Court and the High Court. The present case, which has no parallel in the history of Indian Republic, presents us in crystal clear terms, a spectacle of rarest of rare cases. The very idea of attacking and overpowering a sovereign democratic institution by using powerful arms and explosives and imperiling the safety of a multitude of peoples representatives, constitutional functionaries and officials of Government of India and engaging into a combat with security forces is a terrorist act of gravest severity. It is a classic example of rarest of rare cases. This question of attack on the army and the killing of three soldiers sent shock waves of indignation throughout the country. We have no doubt that the collective conscience of the society can be satisfied by capital punishment alone. We agree with the sentiments expressed in Navjot Singh Sandhus case (cited supra): The challenge to the unity, integrity and sovereignty of India by these acts of terrorists and conspirators, can only be compensated by giving the maximum punishment to the person who is proved to be the conspirator in this treacherous act. 84. A conspiracy to attack the Indian Army unit stationed in Red Fort and the consequent un-provoked attack cannot be described excepting as waging war against India and there can be no question of compromising on this issue. The trial Court has relied on number of other cases including the case of Navjot Singh Sandhu (cited supra) as also the case of State of Tamil Nadu v. Nalini [AIR 1999 SC 2640 ]. We do not want to burden the judgment by quoting from all these cases. However, we must point out that in Machhi Singh v. State of Punjabs case [1983 (3) SCC 470 ] a principle was culled out that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, same can be awarded. The fourth test includes the crime of enormous 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. Applying both the tests here we feel that this is a case where the conscience of the community would get shocked and it would definitely expect the death penalty for the appellant. Three persons who had nothing to do with the conspirators were killed in this case. Therefore, even Machhi Singhs case (cited supra) would aptly apply. Even in Bachan Singh v. State of Punjab [AIR 1980 SC 898 ] case, this Court referred to the penal statutes of States in USA framed after Furman v. Georgia (1972) 33 L Ed 2d 346: 408 US 238) in general and Clause 2(a),(b), (c) and (d) of the Indian Penal Code (Amendment) Bill duly passed in 1978 by Rajya Sabha. Following aggravating circumstances were suggested by the Court in that case as aggravating circumstances:- (a) If the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed- (i) while such member or public servant was on duty; or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member of public servant; or (d) if the murder is of a person who had acted in the lawful discharge of his duty under S.43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under S.37 and S.129 of the said Code. 85. The Court then observed that there could be no objection to the acceptance of these indicators. The Court, however, preferred not to fetter the judicial conscience by attempting to make an exhausting enumeration one way or the other. The circumstance at (c) would be fully covering the present case since the three soldiers who lost their lives were the members of the armed forces and Abdullah one of them was actually doing his Sentry duty though there is no evidence available about as to what duty the other two were doing. But there is no reason to hold that their murder was in any manner prompted by any provocation or action on their part. This would be an additional circumstance according to us which would justify the death sentence. During the whole debate the learned defence counsel did not attempt to bring any mitigating circumstance. In fact, this is a unique case where there is one most aggravating circumstance that it was a direct attack on the unity, integrity and sovereignty of India by foreigners. Thus, it was an attack on Mother India. This is apart from the fact that as many as three persons had lost their lives. The conspirators had no place in India. Appellant was a foreign national and had entered India without any authorization or even justification. This is apart from the fact that the appellant built up a conspiracy by practicing deceit and committing various other offences in furtherance of the conspiracy to wage war against India as also to commit murders by launching an unprovoked attack on the soldiers of Indian Army.
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in the above mentioned cases and hold that the prosecution was successful in establishing the above mentioned circumstances against the appellant, individually, as well as, cumulatively. There indeed cannot be a universal test applicable commonly to all the situations for reaching an inference that the accused is guilty on the basis of the proved circumstances against him nor could there be any quantitative test made applicable. At times, there may be only a few circumstances available to reach a conclusion of the guilt on the part of the accused and at times, even if there are large numbers of circumstances proved, they may not be enough to reach the conclusion of guilt on the part of the accused. It is the quality of each individual circumstance that is material and that would essentially depend upon the quality of evidence. Fanciful imagination in such cases has no place. Clear and irrefutable logic would be an essential factor in arriving at the verdict of guilt on the basis of the proved circumstances. In our opinion, the present case is such, as would pass all the tests so far devised by this Court in the realm of criminal jurisprudenceWe must immediately note that the criticism is entirely misplaced, both against the investigating agency and the Courts below. The investigation in this case was both scientific and fair investigation. This was one of the most difficult cases to be investigated as there could have been no clue available to the investigating agencyThe records of the trial and the appellate Courts truly justify these inferences. We, therefore, reject this argument of the learned defence counselIt may be that Rehmana Yusuf Farukhi also did not have any idea and, therefore, was granted the benefit of doubt; however, that does not, in any manner, dilute the nefarious plans on the part of the appellant. He collected highly sophisticated arms and ammunition and some arms were proved to have been used in the attack on the Red Fort. The attack on the soldiers staying in the Army Camp at Red Fort was nothing but a war waged against the Government of India. It was clear that there were more than one person. Therefore, it was nothing but a well planned conspiracy, in which apart from the appellant, some others were also involvedIt is for these reasons that this place has become a place of honour for Indians. No one can ever forget the glorious moments when the Indians irrespective of their religions fought their first war of Independence and shed their blood. It was, therefore, but natural for the foreigner enemies to plan an attack on the army specially kept to guard this great monument. This was not only an attack on Red Fort or the army stationed therein, this was an arrogant assault on the self respect of this great nation. It was a well thought out insult offered to question the sovereignty of this great nation by foreign nationals. Therefore, this case becomes a rarest of rare case. This was nothing but an undeclared war by some foreign mercenaries like the present appellant and his other partner in conspiracy Abu Shamal and some others who either got killed or escaped. In conspiring to bring about such kind of attack and then carrying out their nefarious activities in systematic manner to make an attack possible was nothing but an attempt to question the sovereignty of India. Therefore, even without any reference to any other case law, we held this case to be the rarest of rare case. Similar sentiment was expressed by this Court in State v. Navjot Singh Sandhu [2005 (11) SCC 600 ].84. A conspiracy to attack the Indian Army unit stationed in Red Fort and the consequent un-provoked attack cannot be described excepting as waging war against India and there can be no question of compromising on this issue. The trial Court has relied on number of other cases including the case of Navjot Singh Sandhu (cited supra) as also the case of State of Tamil Nadu v. Nalini [AIR 1999 SC 2640 ]. We do not want to burden the judgment by quoting from all these cases. However, we must point out that in Machhi Singh v. State of Punjabs case [1983 (3) SCC 470 ] a principle was culled out that when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, same can be awarded. The fourth test includes the crime of enormous proportionThe circumstance at (c) would be fully covering the present case since the three soldiers who lost their lives were the members of the armed forces and Abdullah one of them was actually doing his Sentry duty though there is no evidence available about as to what duty the other two were doing. But there is no reason to hold that their murder was in any manner prompted by any provocation or action on their part. This would be an additional circumstance according to us which would justify the death sentence. During the whole debate the learned defence counsel did not attempt to bring any mitigating circumstance. In fact, this is a unique case where there is one most aggravating circumstance that it was a direct attack on the unity, integrity and sovereignty of India by foreigners. Thus, it was an attack on Mother India. This is apart from the fact that as many as three persons had lost their lives. The conspirators had no place in India. Appellant was a foreign national and had entered India without any authorization or even justification. This is apart from the fact that the appellant built up a conspiracy by practicing deceit and committing various other offences in furtherance of the conspiracy to wage war against India as also to commit murders by launching an unprovoked attack on the soldiers of Indian Army
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Jagdish Chander Gupta Vs. Kajaria Traders (India) Ltd | sub-section about proceedings and coupling other proceeding with a claim of set-off? The question is a proper one to ask but the search for the answer in the scheme of the section itself gives the clue. The section thinks in terms of (a) suits and (b) claims of set-off which are in a sense of the nature of suits and (c) of other proceedings. The section first provides for exclusion of suits in sub-ss. (1) and (2). Then it says that the same ban applies to a claim of set-off and other proceeding to enforce a right arising from a contract. Next it excludes the ban in respect of the right to sue (a) for the dissolution of a firm, (b) for accounts of a dissolved firm and (c) for the realisation of the property of a dissolved firm. The emphasis in each case is on dissolution of the firm. Then follows a general exclusion of the section. The fourth sub-section says that the section as a whole, is not to apply to firms or to partners and firms which have no place of business in the territories of India or whose places of business are situated in the territories of India but in areas to which Chapter VII is not to apply and to suits or claims of set off not exceeding Rs. 100/- in value. Here there is no insistence on the dissolution of the firm. It is significant that in the latter part of clause (b) of that section the words are "or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim and this clearly shows that the word "proceeding is not limited to a proceeding in the nature of a suit or a claim of set-off. Sub-section (4) combines suits and a claim of set-off and then speaks of "any proceeding in execution and "other proceeding incidental to or arising from any such suit or claim as being outside the ban of the main section. It would hardly have been necessary to be so explicit if the words other proceeding in the main section had a meaning as restricted as is suggested by the respondent. It is possible that the draftsman wishing to make exceptions of different kinds in respect of suits, claims of set-off and other proceedings grouped suits in sub-secs. (1) and (2), set-off and other proceeding in sub-sec. (3) made some special exceptions in respect of them in sub-s. (3) in respect of dissolved firms and then viewed them all together in sub-s. (4) providing for a complete exclusion of the section in respect of suits of particular classes. For convenience of drafting this scheme was probably followed and nothing can be spelled out from the manner in which the section is sub-divided.8. Some cases noticed by the High Court were cited to us but none of them appears to be really in point. In Hafiz Qamer Din v. Nur Din, AIR 1936 Lah 136 and Babulal Dhandhania v. M/s. Gautma and Co., AIR 1950 Cal 391 proceedings were started on an award, in one to make it a rule of the Court and in the other to get it set aside. These cases are distinguishable because they deal with awards and it is not necessary to decide whether after an award the proceeding is one to enforce a right arising from a contract. We do not refer to them. In Sreemannarayanamurthy v. Arjanadu, AIR 1939 Mad 145 a petition for adjudication of a partner as insolvent was held to be a right arising not from a contract but from statute. Here the right that is being enforced through the medium of the Arbitration Act arises from the contract between the parties and is part of it. In Jamal v. Firm Umar Haji Karim, ILR (1943) Nag 540 : (AIR 1943 Nag 175) the bar of S. 69 (3) was claimed during the execution of a consent decree and was disallowed. Grille, C. J., observed that the expression other proceeding indicated something which was sui generis of a claim of set off. If the partners of an unregistered firm go to court without either asking for a dissolution of the firm or dissolving it themselves and enter into an agreement and compose their differences it is possible to say that the enforcement of the consent decree is no more than the enforcement of a right arising from a contract and is within the ban. It is, however, not necessary to decide this point here. In Ram Lal Harnam Dass v. Bal Krishan, (S) AIR 1957 Punj 159 it was expressly pointed out that the expression other proceedings in the third sub-section applied to proceedings of the nature of a claim of set-off and nothing else. This case cannot be said to interpret the sub-section correctly. Similarly, Mahendra v. Gurdeyal, ILR 30 Pat 109 : (AIR 1951 Pat 196) which lays down that S. 69 does not bar "partner of an unregistered partnership firm from applying to the court under S. 8 of the Arbitration Act for referring the dispute between partners to arbitrator as provided in the condition of their agreement, cannot be accepted as sound. The reason given by the Divisional Bench that as S. 69 allows dissolution and accounts of unregistered partnership it cannot bar such an application appears to us to be not quite in point.9. In our judgment, the words other proceeding in sub-s. (3) must receive their full meaning untrammeled by the words a claim of set-off. The latter words neither intend nor can be construed to cut down the generality of the words other proceeding. The sub-section provides for the application of the provisions of sub-secs. (1) and (2) to claims of setoff and also to other proceedings of any kind which can properly be said to be for enforcement of any right arising from contract except those expressly mentioned as exceptions in sub-sec. (3) and sub-sec. (4). | 1[ds]7. Mr. Justice Naik asked the question that if all proceedings were to be excluded why was it not considered sufficient to speak of proceeding along with suits in sub-ss. (1) and (2) instead of framing a separate sub-section about proceedings and coupling other proceeding with a claim of set-off? The question is a proper one to ask but the search for the answer in the scheme of the section itself gives the clue. The section thinks in terms of (a) suits and (b) claims of set-off which are in a sense of the nature of suits and (c) of other proceedings. The section first provides for exclusion of suits in sub-ss. (1) and (2). Then it says that the same ban applies to a claim of set-off and other proceeding to enforce a right arising from a contract. Next it excludes the ban in respect of the right to sue (a) for the dissolution of a firm, (b) for accounts of a dissolved firm and (c) for the realisation of the property of a dissolved firm. The emphasis in each case is on dissolution of the firm. Then follows a general exclusion of the section. The fourth sub-section says that the section as a whole, is not to apply to firms or to partners and firms which have no place of business in the territories of India or whose places of business are situated in the territories of India but in areas to which Chapter VII is not to apply and to suits or claims of set off not exceeding Rs. 100/- in value. Here there is no insistence on the dissolution of the firm. It is significant that in the latter part of clause (b) of that section the words are "or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim and this clearly shows that the word "proceeding is not limited to a proceeding in the nature of a suit or a claim of set-off. Sub-section (4) combines suits and a claim of set-off and then speaks of "any proceeding in execution and "other proceeding incidental to or arising from any such suit or claim as being outside the ban of the main section. It would hardly have been necessary to be so explicit if the words other proceeding in the main section had a meaning as restricted as is suggested by the respondent. It is possible that the draftsman wishing to make exceptions of different kinds in respect of suits, claims of set-off and other proceedings grouped suits in sub-secs. (1) and (2), set-off and other proceeding in sub-sec. (3) made some special exceptions in respect of them in sub-s. (3) in respect of dissolved firms and then viewed them all together in sub-s. (4) providing for a complete exclusion of the section in respect of suits of particular classes. For convenience of drafting this scheme was probably followed and nothing can be spelled out from the manner in which the section is sub-divided.8. Some cases noticed by the High Court were cited to us but none of them appears to be really in point.point.9. In our judgment, the words other proceeding in sub-s. (3) must receive their full meaning untrammeled by the words a claim of set-off. The latter words neither intend nor can be construed to cut down the generality of the words other proceeding. The sub-section provides for the application of the provisions of sub-secs. (1) and (2) to claims of setoff and also to other proceedings of any kind which can properly be said to be for enforcement of any right arising from contract except those expressly mentioned as exceptions in sub-sec. (3) and sub-sec. (4).way to look at the matter is to give these words their full and natural meaning and the other way is to cut down that meaning in the light of the words that precedeproceeding under the eighth section of the Arbitration Act has its genesis in the arbitration clause, because without an agreement to refer the matter to arbitration that section cannot possibly be invoked. Since the arbitration clause is a part of the agreement constituting the partnership it is obvious that the proceeding which is before the court is to enforce a right, which arises from a contract. Whether we view the contract between the parties as a whole or view only the clause about arbitration, it is impossible to think that the right to proceed to arbitration is not one of the rights which are founded on the agreement of the parties. The words of S. 69(3), "a right arising from a contractare in either sense sufficient to cover the presentfollows, therefore, that interpretation ejusdem generis or noscitur a sociis need not always be made when words showing particular classes are followed by general words. Before the general words can be so interpreted there must be a genus constituted or a category disclosed with reference to which the general words can and are intended to be restricted. Here the expression "claim ofdoes not disclose a category or a genus.are of two kindslegal and equitableand both are already comprehended and it is difficult to think of any right "arising from a contract which is of the same nature as a claim ofand can be raised by a defendant in a suit. Mr. B. C. Misra, whom we invited to give us examples, admitted frankly that it was impossible for him to think of any proceeding of the nature of a claim ofother than a claim ofwhich could be raised in a suit such as it described in the secondIn respect of the firsthe could give only two examples. They are (i) a claim by a pledge of goods with an unregistered firm whose goods are attached and who lias to make an objection under O. 21 R. 58 of the Code of Civil Procedure and (ii) proving a debt before a liquidator. The latter is not raised as a defence and cannot belong to the same genus as a "claim of set off. The former can be made to fit but by a stretch of some considerable imagination. It is difficult for us to accept that the Legislature was thinking of such farfetched things when it spoke of "other proceeding ejusdem generis with a claim of | 1 | 3,396 | 1,177 | ### Instruction:
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sub-section about proceedings and coupling other proceeding with a claim of set-off? The question is a proper one to ask but the search for the answer in the scheme of the section itself gives the clue. The section thinks in terms of (a) suits and (b) claims of set-off which are in a sense of the nature of suits and (c) of other proceedings. The section first provides for exclusion of suits in sub-ss. (1) and (2). Then it says that the same ban applies to a claim of set-off and other proceeding to enforce a right arising from a contract. Next it excludes the ban in respect of the right to sue (a) for the dissolution of a firm, (b) for accounts of a dissolved firm and (c) for the realisation of the property of a dissolved firm. The emphasis in each case is on dissolution of the firm. Then follows a general exclusion of the section. The fourth sub-section says that the section as a whole, is not to apply to firms or to partners and firms which have no place of business in the territories of India or whose places of business are situated in the territories of India but in areas to which Chapter VII is not to apply and to suits or claims of set off not exceeding Rs. 100/- in value. Here there is no insistence on the dissolution of the firm. It is significant that in the latter part of clause (b) of that section the words are "or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim and this clearly shows that the word "proceeding is not limited to a proceeding in the nature of a suit or a claim of set-off. Sub-section (4) combines suits and a claim of set-off and then speaks of "any proceeding in execution and "other proceeding incidental to or arising from any such suit or claim as being outside the ban of the main section. It would hardly have been necessary to be so explicit if the words other proceeding in the main section had a meaning as restricted as is suggested by the respondent. It is possible that the draftsman wishing to make exceptions of different kinds in respect of suits, claims of set-off and other proceedings grouped suits in sub-secs. (1) and (2), set-off and other proceeding in sub-sec. (3) made some special exceptions in respect of them in sub-s. (3) in respect of dissolved firms and then viewed them all together in sub-s. (4) providing for a complete exclusion of the section in respect of suits of particular classes. For convenience of drafting this scheme was probably followed and nothing can be spelled out from the manner in which the section is sub-divided.8. Some cases noticed by the High Court were cited to us but none of them appears to be really in point. In Hafiz Qamer Din v. Nur Din, AIR 1936 Lah 136 and Babulal Dhandhania v. M/s. Gautma and Co., AIR 1950 Cal 391 proceedings were started on an award, in one to make it a rule of the Court and in the other to get it set aside. These cases are distinguishable because they deal with awards and it is not necessary to decide whether after an award the proceeding is one to enforce a right arising from a contract. We do not refer to them. In Sreemannarayanamurthy v. Arjanadu, AIR 1939 Mad 145 a petition for adjudication of a partner as insolvent was held to be a right arising not from a contract but from statute. Here the right that is being enforced through the medium of the Arbitration Act arises from the contract between the parties and is part of it. In Jamal v. Firm Umar Haji Karim, ILR (1943) Nag 540 : (AIR 1943 Nag 175) the bar of S. 69 (3) was claimed during the execution of a consent decree and was disallowed. Grille, C. J., observed that the expression other proceeding indicated something which was sui generis of a claim of set off. If the partners of an unregistered firm go to court without either asking for a dissolution of the firm or dissolving it themselves and enter into an agreement and compose their differences it is possible to say that the enforcement of the consent decree is no more than the enforcement of a right arising from a contract and is within the ban. It is, however, not necessary to decide this point here. In Ram Lal Harnam Dass v. Bal Krishan, (S) AIR 1957 Punj 159 it was expressly pointed out that the expression other proceedings in the third sub-section applied to proceedings of the nature of a claim of set-off and nothing else. This case cannot be said to interpret the sub-section correctly. Similarly, Mahendra v. Gurdeyal, ILR 30 Pat 109 : (AIR 1951 Pat 196) which lays down that S. 69 does not bar "partner of an unregistered partnership firm from applying to the court under S. 8 of the Arbitration Act for referring the dispute between partners to arbitrator as provided in the condition of their agreement, cannot be accepted as sound. The reason given by the Divisional Bench that as S. 69 allows dissolution and accounts of unregistered partnership it cannot bar such an application appears to us to be not quite in point.9. In our judgment, the words other proceeding in sub-s. (3) must receive their full meaning untrammeled by the words a claim of set-off. The latter words neither intend nor can be construed to cut down the generality of the words other proceeding. The sub-section provides for the application of the provisions of sub-secs. (1) and (2) to claims of setoff and also to other proceedings of any kind which can properly be said to be for enforcement of any right arising from contract except those expressly mentioned as exceptions in sub-sec. (3) and sub-sec. (4).
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the search for the answer in the scheme of the section itself gives the clue. The section thinks in terms of (a) suits and (b) claims of set-off which are in a sense of the nature of suits and (c) of other proceedings. The section first provides for exclusion of suits in sub-ss. (1) and (2). Then it says that the same ban applies to a claim of set-off and other proceeding to enforce a right arising from a contract. Next it excludes the ban in respect of the right to sue (a) for the dissolution of a firm, (b) for accounts of a dissolved firm and (c) for the realisation of the property of a dissolved firm. The emphasis in each case is on dissolution of the firm. Then follows a general exclusion of the section. The fourth sub-section says that the section as a whole, is not to apply to firms or to partners and firms which have no place of business in the territories of India or whose places of business are situated in the territories of India but in areas to which Chapter VII is not to apply and to suits or claims of set off not exceeding Rs. 100/- in value. Here there is no insistence on the dissolution of the firm. It is significant that in the latter part of clause (b) of that section the words are "or to any proceeding in execution or other proceeding incidental to or arising from any such suit or claim and this clearly shows that the word "proceeding is not limited to a proceeding in the nature of a suit or a claim of set-off. Sub-section (4) combines suits and a claim of set-off and then speaks of "any proceeding in execution and "other proceeding incidental to or arising from any such suit or claim as being outside the ban of the main section. It would hardly have been necessary to be so explicit if the words other proceeding in the main section had a meaning as restricted as is suggested by the respondent. It is possible that the draftsman wishing to make exceptions of different kinds in respect of suits, claims of set-off and other proceedings grouped suits in sub-secs. (1) and (2), set-off and other proceeding in sub-sec. (3) made some special exceptions in respect of them in sub-s. (3) in respect of dissolved firms and then viewed them all together in sub-s. (4) providing for a complete exclusion of the section in respect of suits of particular classes. For convenience of drafting this scheme was probably followed and nothing can be spelled out from the manner in which the section is sub-divided.8. Some cases noticed by the High Court were cited to us but none of them appears to be really in point.point.9. In our judgment, the words other proceeding in sub-s. (3) must receive their full meaning untrammeled by the words a claim of set-off. The latter words neither intend nor can be construed to cut down the generality of the words other proceeding. The sub-section provides for the application of the provisions of sub-secs. (1) and (2) to claims of setoff and also to other proceedings of any kind which can properly be said to be for enforcement of any right arising from contract except those expressly mentioned as exceptions in sub-sec. (3) and sub-sec. (4).way to look at the matter is to give these words their full and natural meaning and the other way is to cut down that meaning in the light of the words that precedeproceeding under the eighth section of the Arbitration Act has its genesis in the arbitration clause, because without an agreement to refer the matter to arbitration that section cannot possibly be invoked. Since the arbitration clause is a part of the agreement constituting the partnership it is obvious that the proceeding which is before the court is to enforce a right, which arises from a contract. Whether we view the contract between the parties as a whole or view only the clause about arbitration, it is impossible to think that the right to proceed to arbitration is not one of the rights which are founded on the agreement of the parties. The words of S. 69(3), "a right arising from a contractare in either sense sufficient to cover the presentfollows, therefore, that interpretation ejusdem generis or noscitur a sociis need not always be made when words showing particular classes are followed by general words. Before the general words can be so interpreted there must be a genus constituted or a category disclosed with reference to which the general words can and are intended to be restricted. Here the expression "claim ofdoes not disclose a category or a genus.are of two kindslegal and equitableand both are already comprehended and it is difficult to think of any right "arising from a contract which is of the same nature as a claim ofand can be raised by a defendant in a suit. Mr. B. C. Misra, whom we invited to give us examples, admitted frankly that it was impossible for him to think of any proceeding of the nature of a claim ofother than a claim ofwhich could be raised in a suit such as it described in the secondIn respect of the firsthe could give only two examples. They are (i) a claim by a pledge of goods with an unregistered firm whose goods are attached and who lias to make an objection under O. 21 R. 58 of the Code of Civil Procedure and (ii) proving a debt before a liquidator. The latter is not raised as a defence and cannot belong to the same genus as a "claim of set off. The former can be made to fit but by a stretch of some considerable imagination. It is difficult for us to accept that the Legislature was thinking of such farfetched things when it spoke of "other proceeding ejusdem generis with a claim of
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Government of Andhra Pradesh Vs. Guntur Tobaccos Ltd | regards another. We are accordingly of opinion that on the true interpretation of the expression "sale of goods" there must be an agreement between the parties for the sale of the very goods in which eventually property passes."The authority of State Legislatures, under the Constitution to enact legislation in respect of taxes on sale of goods remains the same as it was under the Government of India Act.20. In order that there should be a sale of goods which is liable to sales tax as part of a contract for work under a statute enacted by the Provincial or State Legislature, there must be a contract in which there is not merely transfer of title to goods as an incident of the contract, but there must be a contract, express or implied, for sale of the very goods which the parties intended should be sold for a money consideration, i.e., there must be in the contract for work an independent term for sale of goods by one party to the other for a money consideration.21. No useful purpose will be served by entering upon a detailed analysis of the large number of cases cited at the Bar. The cases relied upon lay down no general principle and the ultimate decision in all the cases turned upon what the Courts found were the true agreements between the parties. In Krishna and Co.s case, 1956-7 STC 26 : (AIR 1957 Andh Pra 706), the High Court of Andhra in dealing with a contract for re-drying tobacco held in the evidence in that case that packing material used by the assessee did not become an integral part of the drying process and an intention to sell the packing could be properly attributed to the assessee.22. In 1956-7 STC 486 (Andhra), it was held that gunny cloth and iron hoops used by the assessor who had undertaken a works contract for bailing and pressing palmyra fibre were intended to be transfered and that the materials had not become an integral part of the product entrusted to him for bailing and pressing, the price was liable to pay sales-tax.23. In 1960-11 STC 278 (Mad), the assessee who had entered into contracts to bleach, dye, calendar, press, and fold unbleched yarn was held not liable to sales tax in respect of kraft paper, hoop iron, hessian cloth, jute twine, palm mats, etc., which were used for packing the goods at the time of delivery, because in the view of the Court the primary contract was one for service, viz., bleaching, dyeing, etc., and as an incident of the service, the goods bleached or dyed were to be packed and delivered.24. In 1960-11 STC 321 (Mad), it was held that that where under an agreement to purchase cotton to be delivered by the seller to the buyer, it was implicit that the goods should be delivered packed, the contract to pay for and purchase the packing material may be implied and the turnover relating to the packing material would be liable to sales tax.25. In Mckenzies Ltd. v. State of Bombay, 1962-13 STC 602 (Bom), the price of motor-bus bodies supplied under a contract to construct and deliver to the Government of India several motorbus bodies fitted on to the chasis supplied by the Government was held liable to be included in the turnover. The price was a fixed sum per motor body, and the material for the body and the fitting were to be provided and the work of construction was to be done by the contractors who had undertaken to deliver to the Government the completed units. It was held that in such a case there was a contract to sell motor bodies.26. In 1963-14 STC 446 (Mad), the contractor had undertaken to instal in a building under construction a "system of air-conditioning", and for that purpose to supervise the construction of the building itself in order that the air-conditioning of the building may be efficiently designed and erected. It was held on the facts and circumstances of the case that there was no agreement between the contracting parties for the sale of any part of the machinery and the contract was a contract for execution of work.27. In Chandra Bhan Gosain v. State of Orissa, 1963-14 STC 766 (SC), this Court held that the assessee a manufacturer of bricks-to whom land was given free for the manufacture and supply of bricks was liable to pay sales tax on bricks delivered by him.28. Whether a contract for service or for execution of work, involves a taxable sale of goods must be decided on the facts and circumstances of the case. The burden in such a case lies upon the taxing authorities to show that there was a taxable sale, and that burden is not discharged by merely showing that property in goods which belonged to the party performing service or executing the contract stands transferred to the other party.29. In the present case, it must be held on the finding recorded by the High Court, that it was intended by the parties that the "packing material" should form an integral part of the process of re-drying and without the use of the "packing material" re-drying process could not be completed, and that them was no independent contract for sale of "packing material". It is only as an incident of the re-drying process and as a part thereof that the respondent Company has to seal up the package of tobacco, after it emerges from the "conditioning chamber, with a view to protect it against atmospheric action. In the absence of any evidence from which contract to sell "packing material" for a price may be inferred, the use of "packing material" by the respondent Company must be regarded as in execution of the work contract and the fact that the tobacco delivered by the constituent is taken away with the "packing material" will not justify an inference that there was an intention to sell the "packing material". | 0[ds]18. The fact that in the execution of a contract for work some materials are used and property in the goods so used passes to the other party, the contractor undertaking to do the work will not necessarily be deemed on that account to sell the materials. A contract for work in the execution of which goods are used may take one of three forms. The contract may be for work to be done for remuneration and for supply of materials used in the execution of the works for a price : it may be a contract for work in which the use of materials is accessory or incidental to the execution of the work : or it may be a contract for work and use or supply of materials though not accessory to the execution of the contract is voluntary or gratuitous. In the last class there is no sale because though property passes it does not pass for a price. Whether a contract is of the first or the second class must depend upon the circumstances : if it is of the first; it is a composite contract for work and sale of goods : where it is of the second category, it is a contract for execution of work not involving sale of goods.19. It is true that in business transactions the work contracts are frequently not recorded in writing setting out all the covenants and conditions thereof, and the terms and incidents of the contract have to be gathered from the evidence and attendant circumstances. The question in each case is one about the true agreement between the parties and the terms of the agreement must be deduced from a review of all the attendant circumstances. But one fundamental fact has to be borne in mind that from the mere passing of title to goods either as integral part of or independent of goods it cannot be inferred that the goods were agreed to be sold, and the price was liable to sales tax. In 1959 SCR 379 : (AIR 1958 SC 560 ) this Court held that the expression "sale of goods" was, at the time when the Government of India Act, 1935, was enacted, a term of well-recognised legal import in the general law relating to sale of goods and in the legislative practice relating to that topic, and must be interpreted in Entry 48 in List II in Sch. VII of the Act as having the same meaning as in the Sale of Goods Act, 1930. Therefore, under a statute enacted in exercise of power under the Government of India Act, 1935, and in pursuance of the power reserved in Entry 48, in List II, Sch. VII of the Government of India Act, 1935, a taxable sale is one which amounts to sale of goods under the Sale of Goods Act, 1930.In the present case, it must be held on the finding recorded by the High Court, that it was intended by the parties that the "packing material" should form an integral part of the process of re-drying and without the use of the "packing material" re-drying process could not be completed, and that them was no independent contract for sale of "packing material". It is only as an incident of the re-drying process and as a part thereof that the respondent Company has to seal up the package of tobacco, after it emerges from the "conditioning chamber, with a view to protect it against atmospheric action. In the absence of any evidence from which contract to sell "packing material" for a price may be inferred, the use of "packing material" by the respondent Company must be regarded as in execution of the work contract and the fact that the tobacco delivered by the constituent is taken away with the "packing material" will not justify an inference that there was an intention to sell the "packing material".1. I regret my inability to agree. Thefacts may be briefly stated. Theis a dealer carrying on the business ofin its factory raw tobacco entrusted to it by its customers. Its usual course of business may be described thus : A customer gives to the respondent raw tobacco fores it in its factory, packs it in gunny, waterproof paper, bales, etc., and delivers it to the customer. It charges the customer at a consolidated rate forand for the packing material supplied by it. The proportionate price of the packing material comes to about 25 per cent of the. For the assessment years4, the Deputy Commercial Tax Officer assessed the respondent under the Madras General Sales Tax Act, 1939, by different orders, on the sale price of the said packing material. The assessee took the question of his liability through a hierarchy of tribunals, but they all confirmed the assessments made by the Deputy Commercial Tax Officer. It preferred revisions to the High Court of Andhra at Guntur, and the said High Court allowed the revisions. Hence the present appeals.Mr. A. Rangandham Chetty, learned counsel for the Revenue, contended that then was a sale of the packing material for price by the respondent to its customers and, therefore, it was liable to pay sales tax on the said sales.3. Mr. Thyagarajan, learned counsel for the respondent, argued that packing was part of the process ofand, therefore, there was no question of any sale of the packing material by the respondent to its customers. He further argued that the necessary ingredient of a sale, namely, a contract to sell, was absent in the transactions between the respondent and its customers and, therefore there were no sales within the meaning of the definition of "sale" in the Madras General Sales Tax Act, 1939.The question raised in the appeals mainly depends upon whether packing is an integral part of theprocess. No acceptable material was placed before the High Court to show how packing becomes an integral part of theprocess. Mr. D. V. Srinivasanm in his affidavit describes the scientific process of redrying found in books, but he does not describe how it is actually done in the factory, He saysorder to keep the moisture content at the standardised level of 10 to 12 per cent throughout the process of aging or fermentation the tobacco as it emerges from themachine is packed in waterproof packing material and stored for the requisiteonly means that packing is done to keep the moisture content it a particular level. He is vague and does not commit himself on the crucial question whether after theand packing, the tobacco bales are kept in the factory for any length of time to undergo furtherprocess. The High Court in its judgment describes thehe process oftobacco brought to the assessees by their constituents is one, entire and indivisible. The object of theprocess is to standardize the moisture content at the required level of 10 to 12 per cent, and when the tobacco leaf emerges from thechamber, it must be packed in waterproof packing material and stored for the requisite period. Unless the packing is done immediately, the tobaccolosts its standardized moisture content, and without the packing, the process is not complete. It is clear that the packing oftobacco and its storage for the requisite period is on integral part of thee High Court accepted the description of redrying process given by Srinivasan, but did not find that the tobacco, after it is packed, is kept in the assessees factory for any length of time to undergo further drying process. Indeed, there is no material on the record to give such a finding. Garner in his book on the production of Tobacco describes how dry tobacco is packed in a factory thus, at p. 422the tobacco emerges from themachine the hands are promptly packed in hogsheads under hydraulic pressure while to tobacco is still warm.Encyclopaedia Britannica, Vol. 22, p. 263, under the heading " Grading, Marketing, Fermentation and Aging" it is statedis common procedure to recondition the tobacco, that is, to dry the product and then return the proper amount of moisture by "redrying" after it has been marketed and before it is packed. The purpose is to avoid damage which occurs when the leaf is packed with an excessive moisture content, and to ensure proper amount of moisture for aging. The aging period is from one to threecounsel for the respondent has supplied to us some extracts from Garners book "The Production of Tobacco" which describe the redrying process. At p. 414, it is statedpreparation for fermentation or aging, tobacco usually is pressed into standard containers orboxes or "cases" hogsheads, andit is placed in large piles or bulks in a warehouse having facilities for at least partial control of temperature andlearned author observes at p.the final packing in cases, bales or other packages, the leaf commonly undergoes furtherp. 421, it is statedthe tobacco emerges from themachine the hands are promptly packed in hogsheads under hydraulic pressure while the tobacco is still warm. The hogsheads are 48 in. in diameter, 48 or 54 in. high, and contain about 1000 pounds of tobacco...The hogshead are stacked on their sides in large open type or thoroughly ventilated closed warehouses, and are freely exposed to seasonal changes in temperature and air humidity, no artificial heat beingpassages and similar others show that afterprocess is over tobacco is stacked in costly containers like boxes, hogsheads, etc., and the aging takes place for a considerable time even after the packing.process of redryingis quite different from aging. But none of the passages extracted above established that packing is an integral part of theied tobacco is immediately packed to preserve the chemical changes obtained by theprocess and to prevent decay. So too, scents, medicines, salt, alcohol and similar commodities are bottled or packed to preserve the high quality obtained by scientific processing. It cannot be said that bottles are part of the medicine, scent, alcohol etc., as the cure may be. Further as I have indicated earlier, there is nothing on the record to show that after packing the packed tobacco is retained in the factory for the completion of theprocess. I, therefore, hold that the packing is not a part of theprocess, and that it is done only to conserve the dried tobacco.The next question is whether there is a sale of the packing material by the respondent to itscustomers. Now let us scrutinize the relevant provisions of the Madras GeneralAct, for in the ultimate analysis, the point has to be decided on the terms those provisions. Section 3(1) of that Act says that, "subject to the provisions of this Act, every dealer shall pay for each year a tax on his total turnover for such year". "Dealer" is defined to mean any person who carried on the business of buying or selling goods (vide S.2(b)) Under S.2 (c), "goods" means all kinds of movable property other than actionable claims, stocks and shares and securities and includes all materials, commodities and articles including those to be used in the construction, fitting out, improvement or repair of immovable property of in the fitting out, improvement or repair of movable property. Section 2(h) defines "sale" thuswith 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 payment or other valuable consideration, and includes also a transfer of property in goods involved in the execution of a works contract, but does not include a mortgage, hypothecation, carriage or2(i) defines "turnover" thusmeans the aggregate amount for which goods are either bought by or sold by a dealer, whether for cash or for deferred payment or other valuable consideration provided that the proceeds of the sale by a person of agricultural or horticultural produce grown by himself or grown on any land m which he has an interest whether as owner, usufructuary mortgagee, tenant or otherwise, shall be excluded from hiscombined reading of the provisions relevant to the question raised may be stated thus : Every person, who carries on the business of transferring property in any kind of movable property including materials, commodities and articles in the fitting out, improvement or repair of movable property to another for valuable consideration would be liable to tax on the turnover.It is said that the decision in State of Madras v. Ganon Dunkerley and Co. (Madras) Ltd. (1958) 9 STC 353 , at pp.: (AIR 1958 SC 560 at p. 577), has introduced another element in the definition of "sale", namely, a contract of sale, and that element is not present in the instant case. In that case this Court held that the provisions of the Madras GeneralAct were ultra vires the Legislature in so far as they sought to impose tax on the supply of material in the execution oftreating it as a sale of goods by a contractor. In the course of the judgment, Venkatarama Ayyar, J., speaking for the Court, summed up the legal position thussum up, the expression "sale of goods" in Entry 48 is a namen juris, its essential ingredients being an agreement to sell movables for a price and property passing therein pursuant to that agreement. In a building contract which is, as in the present case, one, entire and indivisibleand that is its norm, there is no sale of goods, and it is not within the competence of the Provincial Legislature under Entry 48 to impose a tax on the supply of the materials used in such a contract treating it as aavoid misconception, the learned Judge proceeded to observe.. it must be stated that the above conclusion has reference to works contracts, which are entire and indivisible, as the contracts of the respondents have been held by the learned Judges of the Court below to be. The several forms which such kinds of contracts can assume are set out in Hudson on Building Contracts, at p. 165. It is possible that the parties might enter into distinct and separate contracts, one for the transfer of materials for money consideration, and the other for payment of remuneration for services and for work done. In such a case, there are really two agreements, though there is a single instrument embodying them, and the power of the State to separate the agreement to sell from the agreement to do work and render service and to impose a tax thereon cannot be questioned and will stand untouched by the present judgment.of the main reasons given by the learned Judge why there is no sale involved in a building contract is found at p. 385if there was no such agreement and the contract was only to construct a building, then the materials used therein would become the property of the other party to the contract only on the theory of accretion.Court was dealing in that case with a contract to construct a building and it held that the contract did not involve an agreement to sell materials but was only to construct a building and that the building so constructed became the property of the owner of the land on the theory of accretion. I do not see any relevancy of this judgment to the question raised in the present case except the observation that every sale involves a contract of sale, either expressed or implied. This Court again in New India Sugar Mills Ltd. v. Commr. ofBihar, (AIR 1963 SC 1207 ), reiterated that under the Sale of Goods Act a transaction is called sale only where for money consideration property in goods is transferred under a contract of sale. As in that case the transaction of despatches of sugar by the assessee pursuant to the direction of the Controller were not the result of any contract of sale, this Court, by a majority, held that it was not a sale liable toUnder S. 4 of the Sale of Goods Act a contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in the goods to the buyer for a price; and underthereof, where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale. It is clear that in order to constitute a sale under this section there must be three ingredients, namely, (i) contract of sale, (ii) transfer of property in the goods to the buyer, and (iii) payment of price by the buyer to the seller. Therefore, under this section there cannot be a sale unless there is a contract of sale. The section does not say that the contract of sale must be express : it may also be implied.6. If so, the question is whether the facts of the present case satisfy the definition of a sale, I have already held that the packing is not part of theprocess; and that the material used for packing is extraneous marketable material used to preserve the dry tobacco from contamination or loss. Tobacco after redrying must be put in some container, such as hogsheads, boxes, gunny,waterproof paper, bales, etc.They are costly materials. In the present case; it is not disputed that the price of the packing material is about 25 per cent of thecharges. The packing material is clearly movable property within the meaning of goods in the Sale of Goods Act. The assessee had property in the said goods, for, it is conceded that it purchased the material and became its owner. It cannot also be disputed that it transferred the property in the packing material to the customers for price. The price for the material was also included in the consolidated rates charged by the assessee. The only question is whether there was an implied agreement for the sale of the said goods. In the usual course of business, the factorytobacco packs it in a costly material and delivers it to the customer, including the price of the material in the consolidated rate charged by it. The customer who goes to the factory knows that the factory supplies the packing material, transfers the property in the said material to him and he has to pay for it. With that knowledge when a customer delivers his tobacco to the factory forthere is clearly an implied agreement to purchase the said packing material for price. Once we eliminate the idea of the packing being a part of theprocess, we arrive at the position that the transaction qua the packing material involves either a contract of agency, gift or sale. The concept of agency can be eliminated, as it is nobodys case that the factory is purchasing the material on behalf of a particular constituent and passing it on to him without any profit; the concept of gift may also be excluded, as it is unthinkable that a businessman will make a gift of material costing. about 25 per cent of his charges. If so, it follows that the course of business of assessee indicates that it is part of its business to sell the material required for packing and that when a customer gives tobacco to it fora contract of sale, in regard to the packing material is necessarily implied in the transaction.7. Now, coming to the decisions cited at the Bar, it is not necessary to consider the English decisions in detail. It would be enough if a summary of the decisions is given. The said decisions recognise four categories of contracts, namely, (1) contracts for labour and work such as one for the production of a work of art, picture, statue, etc.; (2) contract primarily for labour and the materials supplied are only ancillary, i.e., paper and ink used by a painter or an artist; (3) contract of sale of the finishedor a ship of which the parts supplied become an integral part of the denture or the ship, as the case may be; and (4) contract of sale of the finished product but some of the materials supplied do not form part of the finished product but are sold separately: see Clayv. Yates (1856) 156 ERv. Griffin (1861) 121 ER716, and Robinson9. Here there is no sale of any finished product, for the assessee has no property in the tobacco and has undertaken only to perform theprocess for consideration. It is simply a contract or work and labour so far as theprocess is concerned. But it cannot be said that the costly packing material has become an integral part of theprocess like the parchment and ink of an artist : it is extraneous marketable material used for a collateral purpose and, therefore, is subject of sale.8. The Indian decisions throw considerable light on the question now raised before us. Turnover from the sale of gunny bags in which rice, which was an exempted commodity, was packed, was held to be liable toby the Assam High Court in Mohanlal Jogani Rice and Atta Mills v. State of Assam,STC 129 : (AIR 1953 Assam 42). Imposition ofon the packing material used for packing tobacco was approved by the Madras High Court in Indian Leaf Tobacco Development Co. Ltd. v. State of Madras,STC 354 (Mad).imposed on the turnover in respect of hessian and iron hoops used far packing the bales of pressed gin cotton was sanctioned by the Madhya Pradesh High Court in Nimar Cotton Press, Khandwa v.STC 428 : ((S) AIR 1956 Nag 27).on the turnover of packing materials used for packingtobacco was held to be leviable by two decisions of the Andhra High Court in Krishna and Co. Ltd. v. State of Andhra, 19567 STC 26 : (AIR 1957 Andh Pra 706), and Hanumantha Rao v. State of AndhraSTC 486 (Andh). The Madras High Court in Varasukhi and Co. v. Province of Madras,STC 1 : (AIR 1951 Mad 254 ), held that the exemption fromgiven to salt could not be extended to the gunny bags wherein the salt was preserved. The sale price of packing material employed for effecting sale of cotton was held to be liable toby the Madras High Court in Chidambara Nadar Sons and Co. v. State of Madras,STC 321 (Mad). The learned Judges in the aforesaid cases rightly held that whether the commodity conserved in the container is sold or not, the transaction involved a contract of sale of the packing material. It was argued that as the sale of the exempted goods along with the packing material was admitted in some cases the Courts have held that there was a sale of the packing materials. I cannot see any distinction on principle between the two classes of cases, namely, (i) where the goods were not sold, and (ii) where they were also sold, If the packing material became an integral part of the dried tobacco, there could not have been a sale of the material apart from the tobacco. So too, if the gunny bag was treated as an integral part of salt, the bag should have been sold as part of the salt. They were taxed because they were held to be extraneous and separate marketable material, though necessary and convenient for the preservation and delivery of tobacco or salt or cotton, as the case may be.9. I shall now consider the decisions cited by the learned counsel for the respondents. In Sri Dasarathi Mohapatra v. The State of Orissa,STC 720 : (AIR 1957 Orissa 228), the High Court of Orissa held that purchase of gunny bags for storage and transport of paddy by the assessee was part of the contract of agency and was, therefore, not the subject matter of sale. The decision in United Bleachers Ltd. v. State of Madras, | 0 | 8,069 | 4,396 | ### Instruction:
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regards another. We are accordingly of opinion that on the true interpretation of the expression "sale of goods" there must be an agreement between the parties for the sale of the very goods in which eventually property passes."The authority of State Legislatures, under the Constitution to enact legislation in respect of taxes on sale of goods remains the same as it was under the Government of India Act.20. In order that there should be a sale of goods which is liable to sales tax as part of a contract for work under a statute enacted by the Provincial or State Legislature, there must be a contract in which there is not merely transfer of title to goods as an incident of the contract, but there must be a contract, express or implied, for sale of the very goods which the parties intended should be sold for a money consideration, i.e., there must be in the contract for work an independent term for sale of goods by one party to the other for a money consideration.21. No useful purpose will be served by entering upon a detailed analysis of the large number of cases cited at the Bar. The cases relied upon lay down no general principle and the ultimate decision in all the cases turned upon what the Courts found were the true agreements between the parties. In Krishna and Co.s case, 1956-7 STC 26 : (AIR 1957 Andh Pra 706), the High Court of Andhra in dealing with a contract for re-drying tobacco held in the evidence in that case that packing material used by the assessee did not become an integral part of the drying process and an intention to sell the packing could be properly attributed to the assessee.22. In 1956-7 STC 486 (Andhra), it was held that gunny cloth and iron hoops used by the assessor who had undertaken a works contract for bailing and pressing palmyra fibre were intended to be transfered and that the materials had not become an integral part of the product entrusted to him for bailing and pressing, the price was liable to pay sales-tax.23. In 1960-11 STC 278 (Mad), the assessee who had entered into contracts to bleach, dye, calendar, press, and fold unbleched yarn was held not liable to sales tax in respect of kraft paper, hoop iron, hessian cloth, jute twine, palm mats, etc., which were used for packing the goods at the time of delivery, because in the view of the Court the primary contract was one for service, viz., bleaching, dyeing, etc., and as an incident of the service, the goods bleached or dyed were to be packed and delivered.24. In 1960-11 STC 321 (Mad), it was held that that where under an agreement to purchase cotton to be delivered by the seller to the buyer, it was implicit that the goods should be delivered packed, the contract to pay for and purchase the packing material may be implied and the turnover relating to the packing material would be liable to sales tax.25. In Mckenzies Ltd. v. State of Bombay, 1962-13 STC 602 (Bom), the price of motor-bus bodies supplied under a contract to construct and deliver to the Government of India several motorbus bodies fitted on to the chasis supplied by the Government was held liable to be included in the turnover. The price was a fixed sum per motor body, and the material for the body and the fitting were to be provided and the work of construction was to be done by the contractors who had undertaken to deliver to the Government the completed units. It was held that in such a case there was a contract to sell motor bodies.26. In 1963-14 STC 446 (Mad), the contractor had undertaken to instal in a building under construction a "system of air-conditioning", and for that purpose to supervise the construction of the building itself in order that the air-conditioning of the building may be efficiently designed and erected. It was held on the facts and circumstances of the case that there was no agreement between the contracting parties for the sale of any part of the machinery and the contract was a contract for execution of work.27. In Chandra Bhan Gosain v. State of Orissa, 1963-14 STC 766 (SC), this Court held that the assessee a manufacturer of bricks-to whom land was given free for the manufacture and supply of bricks was liable to pay sales tax on bricks delivered by him.28. Whether a contract for service or for execution of work, involves a taxable sale of goods must be decided on the facts and circumstances of the case. The burden in such a case lies upon the taxing authorities to show that there was a taxable sale, and that burden is not discharged by merely showing that property in goods which belonged to the party performing service or executing the contract stands transferred to the other party.29. In the present case, it must be held on the finding recorded by the High Court, that it was intended by the parties that the "packing material" should form an integral part of the process of re-drying and without the use of the "packing material" re-drying process could not be completed, and that them was no independent contract for sale of "packing material". It is only as an incident of the re-drying process and as a part thereof that the respondent Company has to seal up the package of tobacco, after it emerges from the "conditioning chamber, with a view to protect it against atmospheric action. In the absence of any evidence from which contract to sell "packing material" for a price may be inferred, the use of "packing material" by the respondent Company must be regarded as in execution of the work contract and the fact that the tobacco delivered by the constituent is taken away with the "packing material" will not justify an inference that there was an intention to sell the "packing material".
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rates charged by the assessee. The only question is whether there was an implied agreement for the sale of the said goods. In the usual course of business, the factorytobacco packs it in a costly material and delivers it to the customer, including the price of the material in the consolidated rate charged by it. The customer who goes to the factory knows that the factory supplies the packing material, transfers the property in the said material to him and he has to pay for it. With that knowledge when a customer delivers his tobacco to the factory forthere is clearly an implied agreement to purchase the said packing material for price. Once we eliminate the idea of the packing being a part of theprocess, we arrive at the position that the transaction qua the packing material involves either a contract of agency, gift or sale. The concept of agency can be eliminated, as it is nobodys case that the factory is purchasing the material on behalf of a particular constituent and passing it on to him without any profit; the concept of gift may also be excluded, as it is unthinkable that a businessman will make a gift of material costing. about 25 per cent of his charges. If so, it follows that the course of business of assessee indicates that it is part of its business to sell the material required for packing and that when a customer gives tobacco to it fora contract of sale, in regard to the packing material is necessarily implied in the transaction.7. Now, coming to the decisions cited at the Bar, it is not necessary to consider the English decisions in detail. It would be enough if a summary of the decisions is given. The said decisions recognise four categories of contracts, namely, (1) contracts for labour and work such as one for the production of a work of art, picture, statue, etc.; (2) contract primarily for labour and the materials supplied are only ancillary, i.e., paper and ink used by a painter or an artist; (3) contract of sale of the finishedor a ship of which the parts supplied become an integral part of the denture or the ship, as the case may be; and (4) contract of sale of the finished product but some of the materials supplied do not form part of the finished product but are sold separately: see Clayv. Yates (1856) 156 ERv. Griffin (1861) 121 ER716, and Robinson9. Here there is no sale of any finished product, for the assessee has no property in the tobacco and has undertaken only to perform theprocess for consideration. It is simply a contract or work and labour so far as theprocess is concerned. But it cannot be said that the costly packing material has become an integral part of theprocess like the parchment and ink of an artist : it is extraneous marketable material used for a collateral purpose and, therefore, is subject of sale.8. The Indian decisions throw considerable light on the question now raised before us. Turnover from the sale of gunny bags in which rice, which was an exempted commodity, was packed, was held to be liable toby the Assam High Court in Mohanlal Jogani Rice and Atta Mills v. State of Assam,STC 129 : (AIR 1953 Assam 42). Imposition ofon the packing material used for packing tobacco was approved by the Madras High Court in Indian Leaf Tobacco Development Co. Ltd. v. State of Madras,STC 354 (Mad).imposed on the turnover in respect of hessian and iron hoops used far packing the bales of pressed gin cotton was sanctioned by the Madhya Pradesh High Court in Nimar Cotton Press, Khandwa v.STC 428 : ((S) AIR 1956 Nag 27).on the turnover of packing materials used for packingtobacco was held to be leviable by two decisions of the Andhra High Court in Krishna and Co. Ltd. v. State of Andhra, 19567 STC 26 : (AIR 1957 Andh Pra 706), and Hanumantha Rao v. State of AndhraSTC 486 (Andh). The Madras High Court in Varasukhi and Co. v. Province of Madras,STC 1 : (AIR 1951 Mad 254 ), held that the exemption fromgiven to salt could not be extended to the gunny bags wherein the salt was preserved. The sale price of packing material employed for effecting sale of cotton was held to be liable toby the Madras High Court in Chidambara Nadar Sons and Co. v. State of Madras,STC 321 (Mad). The learned Judges in the aforesaid cases rightly held that whether the commodity conserved in the container is sold or not, the transaction involved a contract of sale of the packing material. It was argued that as the sale of the exempted goods along with the packing material was admitted in some cases the Courts have held that there was a sale of the packing materials. I cannot see any distinction on principle between the two classes of cases, namely, (i) where the goods were not sold, and (ii) where they were also sold, If the packing material became an integral part of the dried tobacco, there could not have been a sale of the material apart from the tobacco. So too, if the gunny bag was treated as an integral part of salt, the bag should have been sold as part of the salt. They were taxed because they were held to be extraneous and separate marketable material, though necessary and convenient for the preservation and delivery of tobacco or salt or cotton, as the case may be.9. I shall now consider the decisions cited by the learned counsel for the respondents. In Sri Dasarathi Mohapatra v. The State of Orissa,STC 720 : (AIR 1957 Orissa 228), the High Court of Orissa held that purchase of gunny bags for storage and transport of paddy by the assessee was part of the contract of agency and was, therefore, not the subject matter of sale. The decision in United Bleachers Ltd. v. State of Madras,
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State Of Kerala Vs. Cochin Chemical Refineries Ltd | advanced and delivery of goods offered by the Company will be accepted. 5. Counsel for the State contended that so long as the loan was not advanced by the State, the mortgage was not in law effective, and the Company could not enforce the contract relating to groundnut cake agreed to be purchased by the State, for the obligation undertaken was in consideration of the loan of Rs. 2,50,000 and arose only when the loan was advanced. But the assumption, that if the State did not advance the loan which it had undertaken to advance, the indenture was ineffective, cannot be accepted. There is no such express term in the deed, and none can be implied from the covenants and the surrounding circumstances.A transaction of mortgage formally executed does not become void or ineffective merely because the mortgagee fails to advance the amount of money undertaken to be advanced by him. If without advancing the amount agreed to be advanced, he sues on the title created under the deed of mortgage, the Court will not award him a decree for anything more than what he has advanced.But that is not to say that the mortgage is invalid. In Tatia v. Babaji, (1898) ILR 22 Bom 176, Farran, C. J., observed :"I am not, however, * * * prepared to assent to the train of thought which puts conveyances of lands in the mofussil perfected by possession or registration where the consideration expressed in the conveyance to have been paid has not in fact been paid in the same category as contract void for want of consideration." Similar observations were made in Rashik Lal v. Ram Narain, (1912) ILR 34 All 273 where Karamat Hussain, J., observed at p. 276......... . mortgage under the Transfer of Property Act is a transfer of an interest in the land mortgaged, and not a mere contract. It therefore follows that no sooner a valid mortgage deed is registered, an interest in the property mortgaged, in the absence of any contract to the contrary, vests in the mortgagee notwithstanding the fact that the mortgage money has not been paid by the mortgagee to the mortgagor. The mere non-payment of the mortgage money cannot have the effect of rendering the mortgage invalid." Sulaiman, J., in Dip Narain Singh v. Nageshar Prasad, ILR 52 All 338 = (AIR 1930 All 1 FB) observed that once a document transferring immovable property has been registered, the transaction passes out of the domain of a mere contract and into one of a conveyance. Such a completed transaction is governed by the provisions of the Transfer of Property Act and so much of the Contract Act as is applicable thereto. 6. The argument that became the amount was not advanced by the State to the Company, the mortgage was void or ineffective therefore cannot be accepted. Nor do the terms of the indenture justify the plea that the liability of the State to purchase 3,000 tons of groundnut cake from the Company was conditional upon the State advancing Rupees 2,50,000. The two transactions incorporated in the indenture were undoubtedly inter-related. The price payable for the supplies of groundnut was to be adjusted towards the amount advanced or to be advanced by the State. But by failing to advance the amount the State could not avoid liability to carry out the obligation to purchase the goods contracted to be purchased. Even if it be assumed that the indenture incorporated reciprocal promises - the State to advance Rs. 2,50,000 and the Company to deliver 3,000 tons of groundnut cake - in the absence of any express provision to that effect the contract could not be terminated by the default of the State. Breach of contract by one party does not automatically terminate the obligation under the contract the injured party has the option either to treat the contract as still in existence, or to regard himself as discharged. If he accepts the discharge of the contract by the other party, the contract is at an end. If he does not accept the discharge, he may insist on performance: see the judgment of the House of Lords: White and Carter (Councils) Ltd. v. McGregor, 1962 AC 413 = 1961-3 All ER 1178. The case before the House was a Scottish case, but the law of Scotland is not different on the matter under consideration from the English law, and the Indian Contract Act closely follow the English Common Law in that matter.It cannot, therefore, be said that by refusing to advance the loan which the State had undertaken to advance, the obligation to purchase groundnut cake from the Company came to an end. 7. Nor is there any substance in the second contention that the State was by its default liable to compensate the Company only for loss arising out of its failure to advance the money, and not out of its failure to purchase the goods. The State had undertaken to advance Rs. 2,50,000 to the Company. It had also undertaken to take delivery of 3,000 tons of groundnut cake offered by the Company under the terms of contract of sale.These were two independent, though inter-related transactions, and by committing a breach of its own obligation to advance the sum of Rs. 2,50,000 the State did not absolve itself from liability for the breach arising from the refusal to take delivery of the goods offered.The cause of action arising out of the refusal to take delivery of the goods offered was independent cause of action arising out of the breach committed by the State in not advancing the loan. The two causes of action were cumulative and not alternative. There is therefore no warrant for the plea that by claiming damages for loss suffered by it as a result of the failure to advance the loan. the Company elected to give up its claim for damages for breach of the contract to take delivery of 3,000 tons of groundnut cake by the State. | 0[ds]4. The indenture incorporates two transactions: (l) a mortgage in favour of the State by the Company and N. C. John charging properties belonging to the two mortgagors for repayment of Rs. 2,50,000 and (2) the Company agreeing to sell and the State agreeing to purchase 3,000 tons of groundnut cake at the rate of 600 tons per month for five months to be supplied at any of the depots in the Travancore-Cochin State as may from time to time be designated by the Director of Agriculture. The indenture expressly recited that the amount of Rs.2,50,000 was advanced to the Company, but the supplementary deed dated November 7, 1950, and the correspondence make it clear that though the money was recited to have been actually advanced, it was not in fact advanced, but it was intended by the State Government to advance it. For some reason which it is difficult to ascertain from the record, the State Government did not carry out its obligation to advance the money, after obtaining the indenture and the supplementary deed from the Company and its Director. But even as late as January 3, 1951, as is clear from Ext. M-the Assistant Director of Agriculture reiterated the promise that the money will be advanced and delivery of goods offered by the Company will be accepted7. Nor is there any substance in the second contention that the State was by its default liable to compensate the Company only for loss arising out of its failure to advance the money, and not out of its failure to purchase the goods. The State had undertaken to advance Rs. 2,50,000 to the Company. It had also undertaken to take delivery of 3,000 tons of groundnut cake offered by the Company under the terms of contract of sale.These were two independent, though inter-related transactions, and by committing a breach of its own obligation to advance the sum of Rs. 2,50,000 the State did not absolve itself from liability for the breach arising from the refusal to take delivery of the goods offered.The cause of action arising out of the refusal to take delivery of the goods offered was independent cause of action arising out of the breach committed by the State in not advancing the loan. The two causes of action were cumulative and not alternative. There is therefore no warrant for the plea that by claiming damages for loss suffered by it as a result of the failure to advance the loan. the Company elected to give up its claim for damages for breach of the contract to take delivery of 3,000 tons of groundnut cake by the State. | 0 | 2,322 | 476 | ### Instruction:
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advanced and delivery of goods offered by the Company will be accepted. 5. Counsel for the State contended that so long as the loan was not advanced by the State, the mortgage was not in law effective, and the Company could not enforce the contract relating to groundnut cake agreed to be purchased by the State, for the obligation undertaken was in consideration of the loan of Rs. 2,50,000 and arose only when the loan was advanced. But the assumption, that if the State did not advance the loan which it had undertaken to advance, the indenture was ineffective, cannot be accepted. There is no such express term in the deed, and none can be implied from the covenants and the surrounding circumstances.A transaction of mortgage formally executed does not become void or ineffective merely because the mortgagee fails to advance the amount of money undertaken to be advanced by him. If without advancing the amount agreed to be advanced, he sues on the title created under the deed of mortgage, the Court will not award him a decree for anything more than what he has advanced.But that is not to say that the mortgage is invalid. In Tatia v. Babaji, (1898) ILR 22 Bom 176, Farran, C. J., observed :"I am not, however, * * * prepared to assent to the train of thought which puts conveyances of lands in the mofussil perfected by possession or registration where the consideration expressed in the conveyance to have been paid has not in fact been paid in the same category as contract void for want of consideration." Similar observations were made in Rashik Lal v. Ram Narain, (1912) ILR 34 All 273 where Karamat Hussain, J., observed at p. 276......... . mortgage under the Transfer of Property Act is a transfer of an interest in the land mortgaged, and not a mere contract. It therefore follows that no sooner a valid mortgage deed is registered, an interest in the property mortgaged, in the absence of any contract to the contrary, vests in the mortgagee notwithstanding the fact that the mortgage money has not been paid by the mortgagee to the mortgagor. The mere non-payment of the mortgage money cannot have the effect of rendering the mortgage invalid." Sulaiman, J., in Dip Narain Singh v. Nageshar Prasad, ILR 52 All 338 = (AIR 1930 All 1 FB) observed that once a document transferring immovable property has been registered, the transaction passes out of the domain of a mere contract and into one of a conveyance. Such a completed transaction is governed by the provisions of the Transfer of Property Act and so much of the Contract Act as is applicable thereto. 6. The argument that became the amount was not advanced by the State to the Company, the mortgage was void or ineffective therefore cannot be accepted. Nor do the terms of the indenture justify the plea that the liability of the State to purchase 3,000 tons of groundnut cake from the Company was conditional upon the State advancing Rupees 2,50,000. The two transactions incorporated in the indenture were undoubtedly inter-related. The price payable for the supplies of groundnut was to be adjusted towards the amount advanced or to be advanced by the State. But by failing to advance the amount the State could not avoid liability to carry out the obligation to purchase the goods contracted to be purchased. Even if it be assumed that the indenture incorporated reciprocal promises - the State to advance Rs. 2,50,000 and the Company to deliver 3,000 tons of groundnut cake - in the absence of any express provision to that effect the contract could not be terminated by the default of the State. Breach of contract by one party does not automatically terminate the obligation under the contract the injured party has the option either to treat the contract as still in existence, or to regard himself as discharged. If he accepts the discharge of the contract by the other party, the contract is at an end. If he does not accept the discharge, he may insist on performance: see the judgment of the House of Lords: White and Carter (Councils) Ltd. v. McGregor, 1962 AC 413 = 1961-3 All ER 1178. The case before the House was a Scottish case, but the law of Scotland is not different on the matter under consideration from the English law, and the Indian Contract Act closely follow the English Common Law in that matter.It cannot, therefore, be said that by refusing to advance the loan which the State had undertaken to advance, the obligation to purchase groundnut cake from the Company came to an end. 7. Nor is there any substance in the second contention that the State was by its default liable to compensate the Company only for loss arising out of its failure to advance the money, and not out of its failure to purchase the goods. The State had undertaken to advance Rs. 2,50,000 to the Company. It had also undertaken to take delivery of 3,000 tons of groundnut cake offered by the Company under the terms of contract of sale.These were two independent, though inter-related transactions, and by committing a breach of its own obligation to advance the sum of Rs. 2,50,000 the State did not absolve itself from liability for the breach arising from the refusal to take delivery of the goods offered.The cause of action arising out of the refusal to take delivery of the goods offered was independent cause of action arising out of the breach committed by the State in not advancing the loan. The two causes of action were cumulative and not alternative. There is therefore no warrant for the plea that by claiming damages for loss suffered by it as a result of the failure to advance the loan. the Company elected to give up its claim for damages for breach of the contract to take delivery of 3,000 tons of groundnut cake by the State.
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4. The indenture incorporates two transactions: (l) a mortgage in favour of the State by the Company and N. C. John charging properties belonging to the two mortgagors for repayment of Rs. 2,50,000 and (2) the Company agreeing to sell and the State agreeing to purchase 3,000 tons of groundnut cake at the rate of 600 tons per month for five months to be supplied at any of the depots in the Travancore-Cochin State as may from time to time be designated by the Director of Agriculture. The indenture expressly recited that the amount of Rs.2,50,000 was advanced to the Company, but the supplementary deed dated November 7, 1950, and the correspondence make it clear that though the money was recited to have been actually advanced, it was not in fact advanced, but it was intended by the State Government to advance it. For some reason which it is difficult to ascertain from the record, the State Government did not carry out its obligation to advance the money, after obtaining the indenture and the supplementary deed from the Company and its Director. But even as late as January 3, 1951, as is clear from Ext. M-the Assistant Director of Agriculture reiterated the promise that the money will be advanced and delivery of goods offered by the Company will be accepted7. Nor is there any substance in the second contention that the State was by its default liable to compensate the Company only for loss arising out of its failure to advance the money, and not out of its failure to purchase the goods. The State had undertaken to advance Rs. 2,50,000 to the Company. It had also undertaken to take delivery of 3,000 tons of groundnut cake offered by the Company under the terms of contract of sale.These were two independent, though inter-related transactions, and by committing a breach of its own obligation to advance the sum of Rs. 2,50,000 the State did not absolve itself from liability for the breach arising from the refusal to take delivery of the goods offered.The cause of action arising out of the refusal to take delivery of the goods offered was independent cause of action arising out of the breach committed by the State in not advancing the loan. The two causes of action were cumulative and not alternative. There is therefore no warrant for the plea that by claiming damages for loss suffered by it as a result of the failure to advance the loan. the Company elected to give up its claim for damages for breach of the contract to take delivery of 3,000 tons of groundnut cake by the State.
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ALL INDIA COUNCIL FOR TECH. EDUCATION REP BY ITS MEMBER SECRETARY Vs. SHRI PRINCE SHIVAJI MARATHA BOARDING HOUSES COLLEGE OF ARCHITECTURE THROUGH ITS INCHARGE PRINCIPAL S | 1987 Act. That would render the 1972 enactment unworkable. 59. The third distinguishing element of the 1972 Act is that the CoA is not the ultimate decision-making authority but it is the Central Government in relation to process of recognition of degree or diploma in architectural education or withdrawal thereof. Such decision is required to be taken after consultation with the CoA. But since CoA has been conferred with power to make regulations in relation to, inter-alia, recognition norms and monitoring of institutions imparting architectural education, CoA?s role in such process is critical. The approval power of AICTE is direct. But in the event AICTE?s norms come into conflict with that of CoA, any report or representation the CoA may make to the Central Government would be dependent upon the decision of the Central Government. The Central Government?s decision, taken under the provisions of the 1972 Act in such a case would obviously prevail, the latter being an authority superior to both the Councils constituted under the two statutes. 60. AICTE is exercising its power to regulate institutions imparting architectural education on the strength of definition of technical education, which has been defined to mean programmes of education, research and training in architecture. The duty of the AICTE to regulate ?technical education? is derived from the provisions of Section 10 of the 1987 Act. It has been contended on behalf of the CoA, referring to the provisions of Section 2 of the 1987 Act, that the context of regulating architecture education requires exclusion of the expression ?architecture? from the definition of technical education. In the case of Pushpa Devi and others (supra), it has been held that it is permissible for the Court to refer to ?internal and external context? while giving meaning to a definition contained in the interpretation clause of a statue. In this decision, it was observed that a word exhaustively expressed in the definition can have different meanings in different parts of a statute. Broadly, the same principle of construction has been adopted in the cases of Printers (Mysore) Ltd. and Another (supra) and Whirlpool Corporation (supra). In the case of K.V. Muthu (supra), it has been held:-"12. Where the definition or expression, as in the instant case, is preceded by the words ?unless the context otherwise requires,? the said definition set out in the section is to be applied and given effect to but this rule, which is the normal rule may be departed from if there be something in the context to show that the definition could not be applied.?61. So far as these appeals are concerned, to altogether exclude architecture from the purview of AICTE, that expression, i.e. architecture would have to be dropped from the definition of technical education. In our opinion, if the issue is examined in the external context, which in this case would be the provisions of 1972 Act, such a course would be inevitable. In the event AICTE?s stand is to be accepted and CoA?s role is eliminated from the recognition process of architectural qualification, then a person having a degree or diploma from an AICTE approved institution only would in effect not be entitled to enrollment in the register of architects and would not be able to represent himself as an architect. Secondly, in view of the decisions of this Court in the cases of Bharatidasan University (supra) and Association of Management of Private Colleges (supra), there would be two parallel authorities regulating architectural education. CoA would regulate universities and affiliated colleges imparting such education while AICTE would supervise rest of the institutions. Moreover, the authority of Central Government to recognize qualifications in architecture education would stand obliterated by a body, AICTE and that too in respect of certain categories of technical institutions only. 62. The authorities we have referred to are for the proposition that a meaning different to what is ascribed in the definition clause can be given to a word in different parts of a statute if the context so demands. The subject-dispute involved in these appeals requires omission of the word architecture from the definition of technical education. Such a course, in our opinion, is also a permissible tool of construction to prevent absurd or unworkable results flowing from a statute. Here we reproduce the following passage from ?Bennion on Statutory Interpretation? by F A R Bennion, Fifth Edition published by Lexis Nexis (at page 972).? Strained construction We have the authority of Lord Reid for the statement that, to avoid an unworkable result, a strained construction may be justified even where the enactment is not grammatically ambiguous. Lord Reid said that cases where it has properly been held that one word can be struck out of a statute and another substituted include the case where without such substitution the provision would be unworkable.?63. We are of the opinion that in respect of the provisions of Section 2 (g) of the 1987 Act, the definition of ?technical education? would have to be given such a construction and the word ?architecture? should be treated to have been inapplicable in cases where the AICTE imports its regulatory framework for institutions undertaking technical education. There would however be no substitution because the context would not demand it. This construction of the definition clause is necessary as the external context requires it to prevent an unworkable outcome in implementation of the 1987 Act. The principle of implied repeal cannot apply so far as the provisions relating to architecture education is concerned, on the basis of the 1987 Act having become operational. One of the dominant purposes of the 1972 Act is recognition of qualifications on architecture. The registration of an architect is dependent upon acquisition of such recognised qualification. The said Act cannot be held to have been repealed by implication for the sole reason of inclusion of the word ?architecture? in the definition of technical education. AICTE has failed to discharge its onus to establish the said provisions of the 1972 Act was repealed by implication. | 1[ds]25. We find that both the statutes have provisions for approval and monitoring of architecture courses run by institutions. So far as the 1972 Act is concerned, the expression employed is recognition of qualification and the ultimate authority for granting or withdrawing recognition to degree or diploma courses in architectural education by different academic institutions is the Central Government. The CoA under the statutory scheme however has significant role in such decision making process. AICTE has also been empowered under the 1987 Act to lay down standards and norms for courses on architecture along with other subjects coming within the term ?technical education?. We have extracted relevant parts of Section 10 of the 1987 Act earlier in this judgment. Both the Councils also appear to have had proceeded with this understanding. In the decision of the Bombay High Court delivered in the case of Shri Prince Shivaji Maratha Boarding House?s Council of Architecture , (supra), it is recorded in the judgment under appeal that joint inspection was held in respect of the institution involved in that proceeding by AICTE and CoA. Moreover, under Section 3(3)(b), of the 1972 Act, the CoA is required to have two persons nominated by the AICTE. On the other hand, Section 3 (4) (m) of the 1987 Act stipulates that AICTE is to consist of representatives of various bodies, including a member to be appointed by the Central Government to represent the CoA. Section 10(k) of the 1987 Act requires AICTE to grant approval in consultation with the agencies concerned.From the nature of the dispute giving rise to these seven appeals, it is apparent that the shortcomings pointed out by the two regulatory bodies relate primarily to infrastructural facilities of the respective institutions. The power of the CoA to examine such infrastructural facilities at the time of considering the application for recognition or monitoring the quality of an institution recognized by the Council stems from Sections 18, 19, 20 and 21 of the 1972 Act.So far as the two Regulations of 1994 under the 1987 Act produced before us on behalf of AICTE, the Regulations dated 20 th May, 1994 contemplates fixing approval norms and intake capacity to professional colleges. Clause 2 of this Regulation however exempts universities, university departments or colleges, government colleges, aided colleges and certain other institutions from its application. The next one has been made applicable to all new technical institutions including universities and subsisting technical institutions and lays down a detailed approval process through multi-tier decision making structure. The AICTE appears to have made subsequent Regulations time to time superseding the earlier ones in respect of the approval process, but barring the Regulations made in 2016, no other regulations has been produced before us. None of the Regulations produced before us however specify the actual norms but refer to standards and norms to be laid down for approval of technical institutions, which include institutions imparting architectural education.Similar provision is there under Section 43 of the 1972 Act. But no case has been made out that the memorandum to which reference has been made, has been published in the official gazette. This memorandum does not meet the requirement of valid exercise of power under the aforesaid two provisions by the Central Government so as to make it binding. This memorandum, at best, can be treated to be an advisory of the Ministry not having enforceable effect. Moreover, the aforesaid memorandum has been issued beyond the timeframe laid down under the provisions of the statutes reproduced in the said two sections of the respective Acts. The memorandum also cannot be treated to be an executive order under Article 77 of the Constitution of India.Learned counsel appearing for different institutions in this set of appeals have broadly supported the arguments advanced on behalf of CoA. Learned counsel for the Muslim Educational Association [the appellant in SLP(C) No.28121 of 2018] has assailed the decision of the Calicut University refusing to give affiliation to the said institution. Reference has been made to regulation 15(3) of the Minimum Standards of Architectural Education Regulation, 2015, which gives 3 years to provide the building for different infrastructural facilities for a college coming within the ambit of the said Act. In fact, it has been argued on behalf of the said institution that the University could not demand AICTE approval and within the State of Kerala, there were many institutions imparting architectural education solely on the basis of recognition granted under the 1972 Act.In the case of Bharathidasan University (supra), this Court found that in the 1987 Act, there is a distinction made by the legislature between a technical institution per se and certain other kinds of institutions over which some other kind of monitoring or supervision is there by properly constituted universities. That would be apparent from the definition of technical institution under the 1987 Act. Sections 10 (k) and (m) of the 1987 Act also specifically deal with technical institution. Thus the 1987 Act recognises the distinguishing feature of a technical institution not being a university. The Council constituted under it has supervisory and monitoring power over technical institutions not being a university imparting courses in technical education. This was one of the main reasoning as to why it was found by this Court in the case of Bharathidasan University (supra) that the said university would remain out of the regulatory ambit of the AICTE. Broadly the same logic was followed in the other authority, Association of Management of Private Colleges (supra). The case of Adhiyaman Educational and Research Institute and Others (supra), was distinguished in this decision and the relevant paragraphs in that regard have been referred to earlier in this judgment. None of the authorities cited on behalf of the AICTE, however, deals with a situation where there is a pre-existing Central legislation dealing with overlapping power on the same subject coming within the definition of ?technical education?.CoA in these appeals wants to establish its pre- dominance on the ground that the 1972 Act is a special Act and AICTE?s stand on the other hand is that the 1987 Act having come to the statue book on a later date, the provisions thereof ought to prevail when the same are in conflict with an earlier statute. As a proposition of law, we accept AICTE?s stand that there need not be complete identity in the subject-matters of the two rival statutes being tested in the yardstick of point of time of their commencement of operation. Again, as a proposition of law, the principle of law canvassed by the rival bodies are accepted tools of construction. But they require application having regard to the specific circumstances of a given case. It is not an absolute proposition of law that a later Act would always prevail over the former in the event there are clashing provisions even if there is no express provision ofspecial law implies a statute covering a particular subject specifically. The subject of conflict in the present proceedings is architectural education. The 1972 Act however does not solely deal with architectural education. The Act intends to control or regulate the profession of architects. It has two main features, one part dealing with regulating the profession of architect and the other part regulating architectural education. Significant portion of the statute deals with formation of the CoA but the function of that body is essentially to regulate and monitor the other two areas of this statue.Under both the statutes there are overlapping areas under which the respective Councils could make Regulations. Though these Acts, by themselves, do not come into direct conflict the inconsistencies have surfaced in implementing the power given to the Councils constituted under the respective enactments. AICTE contends that the later statute ought to prevail and as a corollary the regulations framed under the later statute should prevail. CoA wants its power to eclipse AICTE?s dominant role as a regulator in relation to architectural education on the strength of the 1972 Act being a special Act. The three regulations under the 1987 Act which have been brought to our notice do not directly lay down any specific norm or standard which ought to be followed. Such norms appear to have been set by the AICTE in pursuance of the aforesaid regulations. The two Regulations of 1994 do not lay down specifically such norms. The 2016 regulations has provision for Approval Process Hand Book which may be published from time to time laying down the manner in which approval shall be given.The case of Orissa Lift Irrigation Corporation Limited (supra) also gives primacy to the AICTE on the question of necessity for an engineering college to obtain approval from the AICTE. In this case, question arose on the point as to whether engineering degree courses operated by colleges could be conducted by open universities through distance learning mode in absence of approval by the AICTE. This case and the case of Parshvnath Charitable Trust and Others (supra) have been discussed in the preceding paragraphs. These authorities cited on behalf of the AICTE however do not deal with conflict arising from two Regulations framed under two Central statutes, both conferring regulatory powers over a particular subject in the field of technical education on two different statutory bodies. The ratio of the decision in the case of Bharathidasan University (supra), expanded by the two Judge Bench judgment in the case of Association of Management of Private Colleges (supra) have been cited in support of CoA?s contention that the 1972 Act should be treated as a special statute and Regulations framed thereunder should override those framed under the 1987 Act.For the sole reason of there being overlapping subjects, Courts straightaway may not get into an exercise to find out if one statute intends to eclipse the other. But in the present set of appeals, intention of the legislature to override one by the other can be examined by analyzing the provisions of the two statutes. The duty of the regulatory bodies in a situation of this nature would be to come out with a unified regime, which this Court expected in the case of Municipal Council, Palia (supra). The two regulatory bodies in the field of architectural education however have not taken this approach and on the other hand have engaged themselves in a dispute over turf-control. In such a situation, under normal circumstances attempt should be made first at reconciliation of the competing statutory instruments. If that exercise fails, then the aim would be to find out what is the dominant purpose or principal subject-matter of a particular statute and then construe the conflicting provisions of the respective Regulations to match the dominant statutory purpose.Having regard to the disputes involved in each of these appeals, proper course for us would be to find out the decision of which of these two regulatory bodies ought to prevail. For this purpose, it is necessary to ascertain the dominant purpose of the two legislations covering the field of architectural education. Section 10 of the 1987 Act mandates the AICTE to undertake the duties on the subjects specified therein. But it has already been held by two Benches of this Court comprising of two Judges each in the cases of Bharathidasan University (supra) and Association of Management of Private Colleges (supra) that a university or its affiliate colleges could run courses in technical education without approval of the AICTE.The process of recognition and effect thereof are more expansive under the 1972 Act. All ?authorities? require recognition by the Central Government to conduct any degree or diploma course in architecture education to qualify for being recognised qualification. The CoA under the said Act plays a key role in the process of recognition. There is no exclusion or exemption of any institution from undergoing such recognition process except the subsisting ones at the time the Act became operational. The CoA has also wide monitoring power under Section 18 and 19 of the Act of every authority which grants recognized qualification under the said Act.Moreover, Section 17 of the said Act is armed with a non-obstante clause. The implication of the said clause in Section 17 of the 1972 Act is that to be on the register of architects in India, recognized qualification would be sufficient. There is no provision under the 1972 Act or in any Rule thereunder which would entitle a person trained from an AICTE approved technical institution in architecture to describe himself as an architect or get himself registered as such without recognised qualification under the 1972(2) of the said provision is not of much relevance for adjudication of the subject dispute. The scheme of the Act thus demonstrates that lack of recognized qualification under the 1972 Act would in substance disentitle a person from being registered as an architect. He would not be able to legally represent himself as an architect in India. This being the statutory mandate, CoA?s role in the process of recognition of qualification of an architect cannot be said to have been obliterated by the 1987 Act. It is a fact that 1987 Act is primarily concerned with setting-up and running of a technical institution and not with regulating the professions of individuals qualifying from such institutions. But under the 1972 Act, conducting a course on architectural education and regulating the profession of architect are statutorily interwoven. Recognition of degrees or diplomas in architecture cannot be amputated from the said Act and held to have been replaced by the 1987 Act. That would render the 1972 enactment unworkable.The third distinguishing element of the 1972 Act is that the CoA is not the ultimate decision-making authority but it is the Central Government in relation to process of recognition of degree or diploma in architectural education or withdrawal thereof. Such decision is required to be taken after consultation with the CoA. But since CoA has been conferred with power to make regulations in relation to, inter-alia, recognition norms and monitoring of institutions imparting architectural education, CoA?s role in such process is critical. The approval power of AICTE is direct. But in the event AICTE?s norms come into conflict with that of CoA, any report or representation the CoA may make to the Central Government would be dependent upon the decision of the Central Government. The Central Government?s decision, taken under the provisions of the 1972 Act in such a case would obviously prevail, the latter being an authority superior to both the Councils constituted under the two statutes.AICTE is exercising its power to regulate institutions imparting architectural education on the strength of definition of technical education, which has been defined to mean programmes of education, research and training in architecture. The duty of the AICTE to regulate ?technical education? is derived from the provisions of Section 10 of the 1987 Act. It has been contended on behalf of the CoA, referring to the provisions of Section 2 of the 1987 Act, that the context of regulating architecture education requires exclusion of the expression ?architecture? from the definition of technical education. In the case of Pushpa Devi and others (supra), it has been held that it is permissible for the Court to refer to ?internal and external context? while giving meaning to a definition contained in the interpretation clause of a statue. In this decision, it was observed that a word exhaustively expressed in the definition can have different meanings in different parts of a statute. Broadly, the same principle of construction has been adopted in the cases of Printers (Mysore) Ltd. and Another (supra) and Whirlpool Corporation (supra). In the case of K.V. Muthu (supra), it has beenWhere the definition or expression, as in the instant case, is preceded by the words ?unless the context otherwise requires,? the said definition set out in the section is to be applied and given effect to but this rule, which is the normal rule may be departed from if there be something in the context to show that the definition could not be applied.So far as these appeals are concerned, to altogether exclude architecture from the purview of AICTE, that expression, i.e. architecture would have to be dropped from the definition of technical education. In our opinion, if the issue is examined in the external context, which in this case would be the provisions of 1972 Act, such a course would be inevitable. In the event AICTE?s stand is to be accepted and CoA?s role is eliminated from the recognition process of architectural qualification, then a person having a degree or diploma from an AICTE approved institution only would in effect not be entitled to enrollment in the register of architects and would not be able to represent himself as an architect. Secondly, in view of the decisions of this Court in the cases of Bharatidasan University (supra) and Association of Management of Private Colleges (supra), there would be two parallel authorities regulating architectural education. CoA would regulate universities and affiliated colleges imparting such education while AICTE would supervise rest of the institutions. Moreover, the authority of Central Government to recognize qualifications in architecture education would stand obliterated by a body, AICTE and that too in respect of certain categories of technical institutions only.The authorities we have referred to are for the proposition that a meaning different to what is ascribed in the definition clause can be given to a word in different parts of a statute if the context so demands. The subject-dispute involved in these appeals requires omission of the word architecture from the definition of technical education. Such a course, in our opinion, is also a permissible tool of construction to prevent absurd or unworkable results flowing from a statute. Here we reproduce the following passage from ?Bennion on Statutory Interpretation? by F A R Bennion, Fifth Edition published by Lexis Nexis (at pageStrained construction We have the authority of Lord Reid for the statement that, to avoid an unworkable result, a strained construction may be justified even where the enactment is not grammatically ambiguous. Lord Reid said that cases where it has properly been held that one word can be struck out of a statute and another substituted include the case where without such substitution the provision would be unworkable.We are of the opinion that in respect of the provisions of Section 2 (g) of the 1987 Act, the definition of ?technical education? would have to be given such a construction and the word ?architecture? should be treated to have been inapplicable in cases where the AICTE imports its regulatory framework for institutions undertaking technical education. There would however be no substitution because the context would not demand it. This construction of the definition clause is necessary as the external context requires it to prevent an unworkable outcome in implementation of the 1987 Act. The principle of implied repeal cannot apply so far as the provisions relating to architecture education is concerned, on the basis of the 1987 Act having become operational. One of the dominant purposes of the 1972 Act is recognition of qualifications on architecture. The registration of an architect is dependent upon acquisition of such recognised qualification. The said Act cannot be held to have been repealed by implication for the sole reason of inclusion of the word ?architecture? in the definition of technical education. AICTE has failed to discharge its onus to establish the said provisions of the 1972 Act was repealed by implication. | 1 | 17,841 | 3,547 | ### Instruction:
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1987 Act. That would render the 1972 enactment unworkable. 59. The third distinguishing element of the 1972 Act is that the CoA is not the ultimate decision-making authority but it is the Central Government in relation to process of recognition of degree or diploma in architectural education or withdrawal thereof. Such decision is required to be taken after consultation with the CoA. But since CoA has been conferred with power to make regulations in relation to, inter-alia, recognition norms and monitoring of institutions imparting architectural education, CoA?s role in such process is critical. The approval power of AICTE is direct. But in the event AICTE?s norms come into conflict with that of CoA, any report or representation the CoA may make to the Central Government would be dependent upon the decision of the Central Government. The Central Government?s decision, taken under the provisions of the 1972 Act in such a case would obviously prevail, the latter being an authority superior to both the Councils constituted under the two statutes. 60. AICTE is exercising its power to regulate institutions imparting architectural education on the strength of definition of technical education, which has been defined to mean programmes of education, research and training in architecture. The duty of the AICTE to regulate ?technical education? is derived from the provisions of Section 10 of the 1987 Act. It has been contended on behalf of the CoA, referring to the provisions of Section 2 of the 1987 Act, that the context of regulating architecture education requires exclusion of the expression ?architecture? from the definition of technical education. In the case of Pushpa Devi and others (supra), it has been held that it is permissible for the Court to refer to ?internal and external context? while giving meaning to a definition contained in the interpretation clause of a statue. In this decision, it was observed that a word exhaustively expressed in the definition can have different meanings in different parts of a statute. Broadly, the same principle of construction has been adopted in the cases of Printers (Mysore) Ltd. and Another (supra) and Whirlpool Corporation (supra). In the case of K.V. Muthu (supra), it has been held:-"12. Where the definition or expression, as in the instant case, is preceded by the words ?unless the context otherwise requires,? the said definition set out in the section is to be applied and given effect to but this rule, which is the normal rule may be departed from if there be something in the context to show that the definition could not be applied.?61. So far as these appeals are concerned, to altogether exclude architecture from the purview of AICTE, that expression, i.e. architecture would have to be dropped from the definition of technical education. In our opinion, if the issue is examined in the external context, which in this case would be the provisions of 1972 Act, such a course would be inevitable. In the event AICTE?s stand is to be accepted and CoA?s role is eliminated from the recognition process of architectural qualification, then a person having a degree or diploma from an AICTE approved institution only would in effect not be entitled to enrollment in the register of architects and would not be able to represent himself as an architect. Secondly, in view of the decisions of this Court in the cases of Bharatidasan University (supra) and Association of Management of Private Colleges (supra), there would be two parallel authorities regulating architectural education. CoA would regulate universities and affiliated colleges imparting such education while AICTE would supervise rest of the institutions. Moreover, the authority of Central Government to recognize qualifications in architecture education would stand obliterated by a body, AICTE and that too in respect of certain categories of technical institutions only. 62. The authorities we have referred to are for the proposition that a meaning different to what is ascribed in the definition clause can be given to a word in different parts of a statute if the context so demands. The subject-dispute involved in these appeals requires omission of the word architecture from the definition of technical education. Such a course, in our opinion, is also a permissible tool of construction to prevent absurd or unworkable results flowing from a statute. Here we reproduce the following passage from ?Bennion on Statutory Interpretation? by F A R Bennion, Fifth Edition published by Lexis Nexis (at page 972).? Strained construction We have the authority of Lord Reid for the statement that, to avoid an unworkable result, a strained construction may be justified even where the enactment is not grammatically ambiguous. Lord Reid said that cases where it has properly been held that one word can be struck out of a statute and another substituted include the case where without such substitution the provision would be unworkable.?63. We are of the opinion that in respect of the provisions of Section 2 (g) of the 1987 Act, the definition of ?technical education? would have to be given such a construction and the word ?architecture? should be treated to have been inapplicable in cases where the AICTE imports its regulatory framework for institutions undertaking technical education. There would however be no substitution because the context would not demand it. This construction of the definition clause is necessary as the external context requires it to prevent an unworkable outcome in implementation of the 1987 Act. The principle of implied repeal cannot apply so far as the provisions relating to architecture education is concerned, on the basis of the 1987 Act having become operational. One of the dominant purposes of the 1972 Act is recognition of qualifications on architecture. The registration of an architect is dependent upon acquisition of such recognised qualification. The said Act cannot be held to have been repealed by implication for the sole reason of inclusion of the word ?architecture? in the definition of technical education. AICTE has failed to discharge its onus to establish the said provisions of the 1972 Act was repealed by implication.
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from the said Act and held to have been replaced by the 1987 Act. That would render the 1972 enactment unworkable.The third distinguishing element of the 1972 Act is that the CoA is not the ultimate decision-making authority but it is the Central Government in relation to process of recognition of degree or diploma in architectural education or withdrawal thereof. Such decision is required to be taken after consultation with the CoA. But since CoA has been conferred with power to make regulations in relation to, inter-alia, recognition norms and monitoring of institutions imparting architectural education, CoA?s role in such process is critical. The approval power of AICTE is direct. But in the event AICTE?s norms come into conflict with that of CoA, any report or representation the CoA may make to the Central Government would be dependent upon the decision of the Central Government. The Central Government?s decision, taken under the provisions of the 1972 Act in such a case would obviously prevail, the latter being an authority superior to both the Councils constituted under the two statutes.AICTE is exercising its power to regulate institutions imparting architectural education on the strength of definition of technical education, which has been defined to mean programmes of education, research and training in architecture. The duty of the AICTE to regulate ?technical education? is derived from the provisions of Section 10 of the 1987 Act. It has been contended on behalf of the CoA, referring to the provisions of Section 2 of the 1987 Act, that the context of regulating architecture education requires exclusion of the expression ?architecture? from the definition of technical education. In the case of Pushpa Devi and others (supra), it has been held that it is permissible for the Court to refer to ?internal and external context? while giving meaning to a definition contained in the interpretation clause of a statue. In this decision, it was observed that a word exhaustively expressed in the definition can have different meanings in different parts of a statute. Broadly, the same principle of construction has been adopted in the cases of Printers (Mysore) Ltd. and Another (supra) and Whirlpool Corporation (supra). In the case of K.V. Muthu (supra), it has beenWhere the definition or expression, as in the instant case, is preceded by the words ?unless the context otherwise requires,? the said definition set out in the section is to be applied and given effect to but this rule, which is the normal rule may be departed from if there be something in the context to show that the definition could not be applied.So far as these appeals are concerned, to altogether exclude architecture from the purview of AICTE, that expression, i.e. architecture would have to be dropped from the definition of technical education. In our opinion, if the issue is examined in the external context, which in this case would be the provisions of 1972 Act, such a course would be inevitable. In the event AICTE?s stand is to be accepted and CoA?s role is eliminated from the recognition process of architectural qualification, then a person having a degree or diploma from an AICTE approved institution only would in effect not be entitled to enrollment in the register of architects and would not be able to represent himself as an architect. Secondly, in view of the decisions of this Court in the cases of Bharatidasan University (supra) and Association of Management of Private Colleges (supra), there would be two parallel authorities regulating architectural education. CoA would regulate universities and affiliated colleges imparting such education while AICTE would supervise rest of the institutions. Moreover, the authority of Central Government to recognize qualifications in architecture education would stand obliterated by a body, AICTE and that too in respect of certain categories of technical institutions only.The authorities we have referred to are for the proposition that a meaning different to what is ascribed in the definition clause can be given to a word in different parts of a statute if the context so demands. The subject-dispute involved in these appeals requires omission of the word architecture from the definition of technical education. Such a course, in our opinion, is also a permissible tool of construction to prevent absurd or unworkable results flowing from a statute. Here we reproduce the following passage from ?Bennion on Statutory Interpretation? by F A R Bennion, Fifth Edition published by Lexis Nexis (at pageStrained construction We have the authority of Lord Reid for the statement that, to avoid an unworkable result, a strained construction may be justified even where the enactment is not grammatically ambiguous. Lord Reid said that cases where it has properly been held that one word can be struck out of a statute and another substituted include the case where without such substitution the provision would be unworkable.We are of the opinion that in respect of the provisions of Section 2 (g) of the 1987 Act, the definition of ?technical education? would have to be given such a construction and the word ?architecture? should be treated to have been inapplicable in cases where the AICTE imports its regulatory framework for institutions undertaking technical education. There would however be no substitution because the context would not demand it. This construction of the definition clause is necessary as the external context requires it to prevent an unworkable outcome in implementation of the 1987 Act. The principle of implied repeal cannot apply so far as the provisions relating to architecture education is concerned, on the basis of the 1987 Act having become operational. One of the dominant purposes of the 1972 Act is recognition of qualifications on architecture. The registration of an architect is dependent upon acquisition of such recognised qualification. The said Act cannot be held to have been repealed by implication for the sole reason of inclusion of the word ?architecture? in the definition of technical education. AICTE has failed to discharge its onus to establish the said provisions of the 1972 Act was repealed by implication.
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State Bank of India and Anr Vs. New India Assurance Company Limited | of the State Consumer Disputes Redressal Commission, Andhra Pradesh (SCDRC). 3. On 14 November 2005, a loan agreement was entered into between the first appellant - State Bank of India (Bank) and the second respondent (Borrower). Under the terms of the agreement, all the assets which were charged to the Bank were to be insured by the borrower. In pursuance of the loan agreement, an insurance cover was obtained by the Bank on behalf of the borrower in pursuance of an arrangement which it had with the insurer. A fire took place on the premises of the borrower on 15 February 2007. The insurer not having accepted the claim, the second respondent filed a consumer complaint before the SCDRC. By an order dated 17 November 2014, the SCDRC allowed the complaint in the following terms: In the result, the complaint is allowed. The opposite party no.1 and 2 are directed to forward the claim of the complainant to the opposite party no.3 and the opposite party no.3 to process the claim in accordance with law. The opposite party no.3 shall pay a sum of Rs.50,000/- towards compensation together with costs of Rs.7,000/-. Time for compliance four weeks. Thus, by the above order of the SCDRC, the Bank was directed to forward the claim of the insured to the insurer. The insurer was, in turn, directed to process the claim in accordance with law. No liability to pay compensation was fastened on the Bank. 4. This order of the SCDRC was not challenged either by the borrower or by the Bank. The first appeal before the NCDRC was filed by the insurer who is the first respondent to the present proceedings. By an order dated 6 February 2019, the NCDRC allowed the appeal by making the Bank liable to pay the claim of the borrower, together with interest at the rate of 9% per annum. That has given rise to the present appeal. 5. Mr Ramesh P Bhatt, learned senior counsel appearing on behalf of the appellants, submits that against the order passed by the SCDRC, no appeal was filed by the borrower. The only direction of the SCDRC was for the Bank to forward the claim to the insurer so that it could be in accordance with law. Yet, it has been submitted, that in the appeal which was filed by the insurer against the above direction of the SCDRC, the NCDRC has held the Bank liable. Mr Bhatt submitted that this is contrary to law since the borrower had accepted the order of the SCDRC. Moreover, it has been submitted that in the course of the proceedings which arose from the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002, a settlement was arrived at between the Bank and the borrower in terms of which a No Dues Certificate was issued by the Bank on 12 June 2017. The borrower, it has been submitted, had, on affidavit, agreed to withdraw all claims as against the Bank. Hence, it has been submitted that as between the borrower and the Bank, there could be no valid basis in law to direct the Bank to pay the amount of the claim to the borrower. 6. On the other hand, it has been urged on behalf of the insurer by Mr Varinder Kumar Sharma, learned counsel that the claim which was submitted by the borrower was belated. The NCDRC has found that the claim was submitted nearly six and a half years after the incident of the fire which took place on 15 February 2007. Hence, it has been submitted that the NCDRC was justified in coming to the conclusion that the claim was time barred. Insofar as the borrower is concerned, the fact that there has been a one time settlement with the Bank is not in dispute. However, Mr Seshatalpa Sai Bandaru, learned counsel for the borrower disputed that the borrower had filed an affidavit withdrawing all claims. 7. Having heard the learned counsel appearing on behalf of the contesting parties, it has emerged from the record that the order of the SCDRC was accepted by the borrower. The only direction of the SCDRC was for the Bank to forward the insurance claim to the insurer. As between the Bank and the borrower, there has been a one time settlement. The Bank had issued a communication on 10 February 2017 to the borrower in pursuance of which an affidavit was filed by the borrower on 31 May 2017 in the following terms: ...I am accepting OTS Terms & Conditions and oblige the same. I further undertake to agree for consent order to be passed in the Tribunal/Court for which I /We will co-operate to pass the consent order and in case of failure to attend for passing the consent order your bank is at liberty to present the said affidavit in the concerned Tribunal/Court for passing the consent order. I/Co-borrowers/Directors/Partners/Guarantors will withdraw all the cases filed by me/us in DRT/High Court/Any other courts against your bank. If I/we failed to withdraw the same your bank is at liberty to file the present affidavit for dismissal/withdrawal of the pending cases. If I/we failed to comply with any Terms & Conditions of the OTS, your bank can continue the SARFAESI Proceedings. Pursuant thereto, on 12 June 2017, the Bank recorded that it had closed the loan account on receipt of the amount in terms of the compromise settlement. 8. In this background, we see no reason or justification for the NCDRC, in an appeal by the insurer, to foist the liability on the Bank. The fundamental point is that the borrower not having challenged the order of the SCDRC, such a liability could not have been foisted on the Bank by the NCDRC. The only issue in controversy was the liability of the insurer. The NCDRC held that the insurer was not liable since the claim was submitted nearly six and a half years after the incident of fire. | 1[ds]7. Having heard the learned counsel appearing on behalf of the contesting parties, it has emerged from the record that the order of the SCDRC was accepted by the borrower. The only direction of the SCDRC was for the Bank to forward the insurance claim to the insurer. As between the Bank and the borrower, there has been a one time settlement. The Bank had issued a communication on 10 February 2017 to the borrower in pursuance of which an affidavit was filed by the borrower on 31 May 20178. In this background, we see no reason or justification for the NCDRC, in an appeal by the insurer, to foist the liability on the Bank. The fundamental point is that the borrower not having challenged the order of the SCDRC, such a liability could not have been foisted on the Bank by the NCDRC. The only issue in controversy was the liability of the insurer. The NCDRC held that the insurer was not liable since the claim was submitted nearly six and a half years after the incident of fire. | 1 | 1,141 | 199 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
of the State Consumer Disputes Redressal Commission, Andhra Pradesh (SCDRC). 3. On 14 November 2005, a loan agreement was entered into between the first appellant - State Bank of India (Bank) and the second respondent (Borrower). Under the terms of the agreement, all the assets which were charged to the Bank were to be insured by the borrower. In pursuance of the loan agreement, an insurance cover was obtained by the Bank on behalf of the borrower in pursuance of an arrangement which it had with the insurer. A fire took place on the premises of the borrower on 15 February 2007. The insurer not having accepted the claim, the second respondent filed a consumer complaint before the SCDRC. By an order dated 17 November 2014, the SCDRC allowed the complaint in the following terms: In the result, the complaint is allowed. The opposite party no.1 and 2 are directed to forward the claim of the complainant to the opposite party no.3 and the opposite party no.3 to process the claim in accordance with law. The opposite party no.3 shall pay a sum of Rs.50,000/- towards compensation together with costs of Rs.7,000/-. Time for compliance four weeks. Thus, by the above order of the SCDRC, the Bank was directed to forward the claim of the insured to the insurer. The insurer was, in turn, directed to process the claim in accordance with law. No liability to pay compensation was fastened on the Bank. 4. This order of the SCDRC was not challenged either by the borrower or by the Bank. The first appeal before the NCDRC was filed by the insurer who is the first respondent to the present proceedings. By an order dated 6 February 2019, the NCDRC allowed the appeal by making the Bank liable to pay the claim of the borrower, together with interest at the rate of 9% per annum. That has given rise to the present appeal. 5. Mr Ramesh P Bhatt, learned senior counsel appearing on behalf of the appellants, submits that against the order passed by the SCDRC, no appeal was filed by the borrower. The only direction of the SCDRC was for the Bank to forward the claim to the insurer so that it could be in accordance with law. Yet, it has been submitted, that in the appeal which was filed by the insurer against the above direction of the SCDRC, the NCDRC has held the Bank liable. Mr Bhatt submitted that this is contrary to law since the borrower had accepted the order of the SCDRC. Moreover, it has been submitted that in the course of the proceedings which arose from the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002, a settlement was arrived at between the Bank and the borrower in terms of which a No Dues Certificate was issued by the Bank on 12 June 2017. The borrower, it has been submitted, had, on affidavit, agreed to withdraw all claims as against the Bank. Hence, it has been submitted that as between the borrower and the Bank, there could be no valid basis in law to direct the Bank to pay the amount of the claim to the borrower. 6. On the other hand, it has been urged on behalf of the insurer by Mr Varinder Kumar Sharma, learned counsel that the claim which was submitted by the borrower was belated. The NCDRC has found that the claim was submitted nearly six and a half years after the incident of the fire which took place on 15 February 2007. Hence, it has been submitted that the NCDRC was justified in coming to the conclusion that the claim was time barred. Insofar as the borrower is concerned, the fact that there has been a one time settlement with the Bank is not in dispute. However, Mr Seshatalpa Sai Bandaru, learned counsel for the borrower disputed that the borrower had filed an affidavit withdrawing all claims. 7. Having heard the learned counsel appearing on behalf of the contesting parties, it has emerged from the record that the order of the SCDRC was accepted by the borrower. The only direction of the SCDRC was for the Bank to forward the insurance claim to the insurer. As between the Bank and the borrower, there has been a one time settlement. The Bank had issued a communication on 10 February 2017 to the borrower in pursuance of which an affidavit was filed by the borrower on 31 May 2017 in the following terms: ...I am accepting OTS Terms & Conditions and oblige the same. I further undertake to agree for consent order to be passed in the Tribunal/Court for which I /We will co-operate to pass the consent order and in case of failure to attend for passing the consent order your bank is at liberty to present the said affidavit in the concerned Tribunal/Court for passing the consent order. I/Co-borrowers/Directors/Partners/Guarantors will withdraw all the cases filed by me/us in DRT/High Court/Any other courts against your bank. If I/we failed to withdraw the same your bank is at liberty to file the present affidavit for dismissal/withdrawal of the pending cases. If I/we failed to comply with any Terms & Conditions of the OTS, your bank can continue the SARFAESI Proceedings. Pursuant thereto, on 12 June 2017, the Bank recorded that it had closed the loan account on receipt of the amount in terms of the compromise settlement. 8. In this background, we see no reason or justification for the NCDRC, in an appeal by the insurer, to foist the liability on the Bank. The fundamental point is that the borrower not having challenged the order of the SCDRC, such a liability could not have been foisted on the Bank by the NCDRC. The only issue in controversy was the liability of the insurer. The NCDRC held that the insurer was not liable since the claim was submitted nearly six and a half years after the incident of fire.
### Response:
1
### Explanation:
7. Having heard the learned counsel appearing on behalf of the contesting parties, it has emerged from the record that the order of the SCDRC was accepted by the borrower. The only direction of the SCDRC was for the Bank to forward the insurance claim to the insurer. As between the Bank and the borrower, there has been a one time settlement. The Bank had issued a communication on 10 February 2017 to the borrower in pursuance of which an affidavit was filed by the borrower on 31 May 20178. In this background, we see no reason or justification for the NCDRC, in an appeal by the insurer, to foist the liability on the Bank. The fundamental point is that the borrower not having challenged the order of the SCDRC, such a liability could not have been foisted on the Bank by the NCDRC. The only issue in controversy was the liability of the insurer. The NCDRC held that the insurer was not liable since the claim was submitted nearly six and a half years after the incident of fire.
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Oxford University Press Vs. Commr. Of Income Tax | this to happen was, he contended, manifestly unreasonable and absurd and could never have been intended. It was, therefore, necessary to read cause (22) as applying only to Universities and educational institutions which existed in India or, at least, imparted education in India. Our attention was drawn by learned counsel for the Revenue to the judgments of this Court in K.P. Varghese v. Income Tax Officer, Ernakulam and another., [1981(4) SCC 173] and Commissioner in Income Tax Bangalore v. J.H. Gotla, Yadagiri, [1985(4) SCC 343] in support of the contention.10. In Vargheses case, the assesses owned a house which he had purchased in 1958 for the price of Rs. 15,500. In 1965 he sold the house for the same price of Rs. 16,500 to his daughter-in-law and five children. It was not disputed that this sale was an honest and bona fide transaction and that the consideration was in fact Rs. 16,500. However, after completion of the assessment for the year 1966-67 in the normal course in this manner, the I.T.O. issued a notice to re-open the assessment on the basis that Section 52(2) of the 1962 Act was attracted because the fair market value of the property as on the date of the transfer exceeded the consideration of Rs. 16,500 by not less than 15%. The I.T.O. proposed, accordingly, to fix the fair market value of the house at Rs. 65,000 and assess the difference of Rs. 48,500 as capital gains in the hands of the assessee. The assessee filed a writ petition. It was allowed, but, in appeal, the Full Bench of the Kerala High Court accepted as correct the ITOs view. This Court reversed the Full Bench decision, and it said that if sub-section (2) of Section 52 was literally construed, as applying to cases where the consideration in respect of the transfer was correctly declared and there was no understatement of consideration, it would result in amounts being taxed which had neither accrued to the assessee nor were received by him and "which from no view point can be rationally construed as capital gains or any type of income. It is a well settled rule of construction that the Court should as far as possible avoid that construction which attributes irrationality to the legislature." It was also found that, so construed, sub-section (2) was violative of the Constitution and the Court "must obviously prefer a construction which renders the statutory provision constitutionally valid rather than that makes it void." The Court said in the course of the judgment, "It is now a well settled rule of construction that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result which could never have been intended by the legislature, the Court may modify the language used by the legislature or even "do some violence to it, so as to achieve the obvious intention of the legislature and produce a rational construction". Accordingly, the Court read into Section 52(2) the condition that it would apply only where the consideration for transfer was understated and it would have no application in the case of a bona fide transaction when the full value of the consideration was correctly declared by the assessee.11. In Gotlas case, a strict and literal construction of Section 16(3) read with Section 24(2) of the 1962 Act led to the conclusion that where the wife or minor child were carrying on a business, while the right to carry forward the loss in the business would be available to the wife of the minor child if they themselves were assessed, the right would be lost if the individual in which total income the loss was to be included was not permitted to carry forward the loss under Section 24(2). The Court held that this could not have been the intention of Parliament. If a strict literal construction led to an absurd result, i.e., a result not intended to be subserved by the object of the legislation, and if another construction was possible apart from the strict literal construction, then that construction should be preferred to the strict literal construction. The Court, therefore, held, on a consideration of the scheme of the Act and the relevant provisions, that the income of the wife and the minor children included in the assessees total income under Section 16(3) should be regarded as business income derived from business carried on by the assessee and, in that view, the assessee was entitled to set off his loss carried forward from the previous years.Now, learned counsels submission is that Parliament could never have intended to forego tax revenue for the purpose of educating, people outside India; this was manifestly unreasonable and absurd and, therefore, clause (22) should be so read as applying to Universities established in India, or at last providing educational facilities in India. I find no unjustness. Unreasonableness, irrationality or absurdity in the provisions of clause (22). It does not strike me as being beyond the bounds of possibility that Parliament should be willing to forego a very small percentage of tax revenue for the purposes of education, even though it might mean the education of people outside India, if that education was being provided education and not at all to make a profit. If do not think Parliament could not possibly have meant what clause (22) so plainly says. I see, therefore, no reason to read clause (22) in a fashion that is not literal.12. It should be noted that clause (22A), which also gives an exemption without any limitation as to location, was introduced into Section 10 in 1970. It cannot be that Parliament yet again failed to express its true intendment. If Parliament had meant to provide an exemption with a locational limitation in clause (22A) it would have made it clear, and it would have amended clause (22).The judgment and order under challenge cannot stand, and the question quoted above must be answered in the affirmative and in favour of the assessee. | 1[ds]30. I am of the view that the expression `existing solely for the educational purpose and not for the purpose of profit qualifies a `university or other educational institution. In a case where a dispute is raised whether the claim of exemption from the tax by the assessee is admissible or not it is necessary for the assessee to establish that it is a part of a university which is engaged solely or at least primarily for educational purposes and not for purposes of profit and the income in respect of which the exemption is claimed is a part of the income of the university. This question assumes importance in a case like the one in hand where the assessee is nothing more than a commercial establishment/business enterprise engaged in the business of printing, publishing and selling of books in this country. The label "university press" is not sufficient to establish that it is engaged in any educational activity. The purpose of the existence of the assessee in this country as appears from the material on record, is possibly to earn profit. If the interpretation of the provision in section 10(22) of the Act as urged on behalf of the assessee is accepted the provision will be exposed to challenge on the ground of being irrational and therefore arbitrary. Then the question will arise for what purpose is this exemption from tax extended to the assessee? How is it different from the large number of such establishment engaged in the business of printing, publishing and selling of books.31. In State ofNadu v. Kodaikanal Motor Union (P) Ltd., 1986(3) SCC91 this Court referring to K.P. Varghese v. I.T.O., 1981(4) SCC 173 and Luke v. Inland Revenue Commissioners, 1964(54) ITR 692 (IIL)courts must always seek to find out the intention of the legislature. Though the courts must find out the intention of the statute from the language used, but language more often that not is an imperfect instrument of expression of human thought. As Lord Denning said it would be idle to expect every statutory provision to be drafted with divine prescience and perfect clarity. As Judge out of dictionary but remember that statutes must have some purpose or object, whose imaginative discovery is judicial craftsmanship. We need not always cling to literalness and should seek to endeavour to avoid an unjust or absurd result. We should not make a mockery of legislation. To make sense out of an unhappily worded provision, where the purpose is apparent to the judicial eye `some violence to language is permissible.vij and co. and others v. Commissioner of Income Tax, 1990(2) SCC 231 this Court held that in a taxation statute where literal interpretation leads to a result not intended to subserve the object of the legislation another construction in consonance with the object should be adopted. Therein referring to the words of Thomas M. Cooley in Law of Taxation Vol.2, this Court observed: (at p.243)"Artificial and unduly latitudinarian rules of construction which, with their general tendency to "give the tax payer the breaks", are out of place where the legislation has a fiscal mission. Indeed, taxation has ceased to be regarded as an "impertinent intrusion into the sacred right of private property" and it is now increasingly regarded as a potent fiscal took of State policy to strike the required balance required in a context of the felt needs of the times-between citizens claim to enjoyment of his property on the one hand and the need for an equitable distribution of the burdens of the community to sustain social services and purposes on the other. these words of Thomas M. Cooley in Law of taxation vol.2 are worth mentioningrules of construction has probably found more favour with the courts than they have ever deserved. their application in legal controversies has oftentimes been pushed to an extreme which has defeated the plain and manifest purpose in enacting the laws. Penal laws have sometimes had all their meaning constructed away and in remedial laws, remedies have been found which the legislature never intended to give. Something akin to this has befallen the revenue laws....Income of the public exchequer and expenditure from it is a matter of considerable public importance. Citizens of this country, particularly the tax payers, are entitled to know the rational basis for granting exemption from income-tax to an assessee. In extending the exemption to Universities which exist solely for educational purposes and not for the purposes of profit, there is a rational basis and a valid reason. If establishment/institutions which are engaged solely in commercial activities are included in the expression `University and are treated at par for the purpose of granting exemption from the tax then it will amount to treating unequals as equals and, therefore, discriminatory. A provision of exemption from tax in a fiscal statute is to be strictly construed. Interpretation of such a statutory provision which does not stand the lest of rationality and will lead to absurd results cannot be accepted.34. Giving a purposeful interpretation of the provision it will be reasonable to hold that in order to be eligible to claim exemption from tax under Section 10(22) of the Act the assessee has to establish that it is engaged in some educational activity in India and its existence in this country is not for profit only. This interpretation of section 10(22) neither causes violence to the language of the provision nor does it amount to re-writing the same. On the other hand it only gives a harmonious construction of the provision which subserves the object and purpose for which the provision is intended to serve. | 1 | 3,216 | 1,037 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
this to happen was, he contended, manifestly unreasonable and absurd and could never have been intended. It was, therefore, necessary to read cause (22) as applying only to Universities and educational institutions which existed in India or, at least, imparted education in India. Our attention was drawn by learned counsel for the Revenue to the judgments of this Court in K.P. Varghese v. Income Tax Officer, Ernakulam and another., [1981(4) SCC 173] and Commissioner in Income Tax Bangalore v. J.H. Gotla, Yadagiri, [1985(4) SCC 343] in support of the contention.10. In Vargheses case, the assesses owned a house which he had purchased in 1958 for the price of Rs. 15,500. In 1965 he sold the house for the same price of Rs. 16,500 to his daughter-in-law and five children. It was not disputed that this sale was an honest and bona fide transaction and that the consideration was in fact Rs. 16,500. However, after completion of the assessment for the year 1966-67 in the normal course in this manner, the I.T.O. issued a notice to re-open the assessment on the basis that Section 52(2) of the 1962 Act was attracted because the fair market value of the property as on the date of the transfer exceeded the consideration of Rs. 16,500 by not less than 15%. The I.T.O. proposed, accordingly, to fix the fair market value of the house at Rs. 65,000 and assess the difference of Rs. 48,500 as capital gains in the hands of the assessee. The assessee filed a writ petition. It was allowed, but, in appeal, the Full Bench of the Kerala High Court accepted as correct the ITOs view. This Court reversed the Full Bench decision, and it said that if sub-section (2) of Section 52 was literally construed, as applying to cases where the consideration in respect of the transfer was correctly declared and there was no understatement of consideration, it would result in amounts being taxed which had neither accrued to the assessee nor were received by him and "which from no view point can be rationally construed as capital gains or any type of income. It is a well settled rule of construction that the Court should as far as possible avoid that construction which attributes irrationality to the legislature." It was also found that, so construed, sub-section (2) was violative of the Constitution and the Court "must obviously prefer a construction which renders the statutory provision constitutionally valid rather than that makes it void." The Court said in the course of the judgment, "It is now a well settled rule of construction that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result which could never have been intended by the legislature, the Court may modify the language used by the legislature or even "do some violence to it, so as to achieve the obvious intention of the legislature and produce a rational construction". Accordingly, the Court read into Section 52(2) the condition that it would apply only where the consideration for transfer was understated and it would have no application in the case of a bona fide transaction when the full value of the consideration was correctly declared by the assessee.11. In Gotlas case, a strict and literal construction of Section 16(3) read with Section 24(2) of the 1962 Act led to the conclusion that where the wife or minor child were carrying on a business, while the right to carry forward the loss in the business would be available to the wife of the minor child if they themselves were assessed, the right would be lost if the individual in which total income the loss was to be included was not permitted to carry forward the loss under Section 24(2). The Court held that this could not have been the intention of Parliament. If a strict literal construction led to an absurd result, i.e., a result not intended to be subserved by the object of the legislation, and if another construction was possible apart from the strict literal construction, then that construction should be preferred to the strict literal construction. The Court, therefore, held, on a consideration of the scheme of the Act and the relevant provisions, that the income of the wife and the minor children included in the assessees total income under Section 16(3) should be regarded as business income derived from business carried on by the assessee and, in that view, the assessee was entitled to set off his loss carried forward from the previous years.Now, learned counsels submission is that Parliament could never have intended to forego tax revenue for the purpose of educating, people outside India; this was manifestly unreasonable and absurd and, therefore, clause (22) should be so read as applying to Universities established in India, or at last providing educational facilities in India. I find no unjustness. Unreasonableness, irrationality or absurdity in the provisions of clause (22). It does not strike me as being beyond the bounds of possibility that Parliament should be willing to forego a very small percentage of tax revenue for the purposes of education, even though it might mean the education of people outside India, if that education was being provided education and not at all to make a profit. If do not think Parliament could not possibly have meant what clause (22) so plainly says. I see, therefore, no reason to read clause (22) in a fashion that is not literal.12. It should be noted that clause (22A), which also gives an exemption without any limitation as to location, was introduced into Section 10 in 1970. It cannot be that Parliament yet again failed to express its true intendment. If Parliament had meant to provide an exemption with a locational limitation in clause (22A) it would have made it clear, and it would have amended clause (22).The judgment and order under challenge cannot stand, and the question quoted above must be answered in the affirmative and in favour of the assessee.
### Response:
1
### Explanation:
30. I am of the view that the expression `existing solely for the educational purpose and not for the purpose of profit qualifies a `university or other educational institution. In a case where a dispute is raised whether the claim of exemption from the tax by the assessee is admissible or not it is necessary for the assessee to establish that it is a part of a university which is engaged solely or at least primarily for educational purposes and not for purposes of profit and the income in respect of which the exemption is claimed is a part of the income of the university. This question assumes importance in a case like the one in hand where the assessee is nothing more than a commercial establishment/business enterprise engaged in the business of printing, publishing and selling of books in this country. The label "university press" is not sufficient to establish that it is engaged in any educational activity. The purpose of the existence of the assessee in this country as appears from the material on record, is possibly to earn profit. If the interpretation of the provision in section 10(22) of the Act as urged on behalf of the assessee is accepted the provision will be exposed to challenge on the ground of being irrational and therefore arbitrary. Then the question will arise for what purpose is this exemption from tax extended to the assessee? How is it different from the large number of such establishment engaged in the business of printing, publishing and selling of books.31. In State ofNadu v. Kodaikanal Motor Union (P) Ltd., 1986(3) SCC91 this Court referring to K.P. Varghese v. I.T.O., 1981(4) SCC 173 and Luke v. Inland Revenue Commissioners, 1964(54) ITR 692 (IIL)courts must always seek to find out the intention of the legislature. Though the courts must find out the intention of the statute from the language used, but language more often that not is an imperfect instrument of expression of human thought. As Lord Denning said it would be idle to expect every statutory provision to be drafted with divine prescience and perfect clarity. As Judge out of dictionary but remember that statutes must have some purpose or object, whose imaginative discovery is judicial craftsmanship. We need not always cling to literalness and should seek to endeavour to avoid an unjust or absurd result. We should not make a mockery of legislation. To make sense out of an unhappily worded provision, where the purpose is apparent to the judicial eye `some violence to language is permissible.vij and co. and others v. Commissioner of Income Tax, 1990(2) SCC 231 this Court held that in a taxation statute where literal interpretation leads to a result not intended to subserve the object of the legislation another construction in consonance with the object should be adopted. Therein referring to the words of Thomas M. Cooley in Law of Taxation Vol.2, this Court observed: (at p.243)"Artificial and unduly latitudinarian rules of construction which, with their general tendency to "give the tax payer the breaks", are out of place where the legislation has a fiscal mission. Indeed, taxation has ceased to be regarded as an "impertinent intrusion into the sacred right of private property" and it is now increasingly regarded as a potent fiscal took of State policy to strike the required balance required in a context of the felt needs of the times-between citizens claim to enjoyment of his property on the one hand and the need for an equitable distribution of the burdens of the community to sustain social services and purposes on the other. these words of Thomas M. Cooley in Law of taxation vol.2 are worth mentioningrules of construction has probably found more favour with the courts than they have ever deserved. their application in legal controversies has oftentimes been pushed to an extreme which has defeated the plain and manifest purpose in enacting the laws. Penal laws have sometimes had all their meaning constructed away and in remedial laws, remedies have been found which the legislature never intended to give. Something akin to this has befallen the revenue laws....Income of the public exchequer and expenditure from it is a matter of considerable public importance. Citizens of this country, particularly the tax payers, are entitled to know the rational basis for granting exemption from income-tax to an assessee. In extending the exemption to Universities which exist solely for educational purposes and not for the purposes of profit, there is a rational basis and a valid reason. If establishment/institutions which are engaged solely in commercial activities are included in the expression `University and are treated at par for the purpose of granting exemption from the tax then it will amount to treating unequals as equals and, therefore, discriminatory. A provision of exemption from tax in a fiscal statute is to be strictly construed. Interpretation of such a statutory provision which does not stand the lest of rationality and will lead to absurd results cannot be accepted.34. Giving a purposeful interpretation of the provision it will be reasonable to hold that in order to be eligible to claim exemption from tax under Section 10(22) of the Act the assessee has to establish that it is engaged in some educational activity in India and its existence in this country is not for profit only. This interpretation of section 10(22) neither causes violence to the language of the provision nor does it amount to re-writing the same. On the other hand it only gives a harmonious construction of the provision which subserves the object and purpose for which the provision is intended to serve.
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Elkachenu Kistamma & Another Vs. United India Insurance Co. Ltd. & Another | 1. Delay condoned. 2. Leave granted. 3. The husband of Appellant No.1 was working as a driver with Respondent No.2 in a rice mill. Some electrical problem arose in the rice mill due to the burning of a fuse in the transformer. It appears that the husband of Appellant No.1 was asked by the employer to look into the matter and see if the fuse could be replaced. While the husband of Appellant No.1 was obeying the orders of his employer, he suffered an electric shock, fell down from the transformer and died on the spot. 4. In view of the death of the husband of Appellant No.1, a claim was made to the Commissioner for Workmens Compensation and Assistant Commissioner of Labour - I, Hyderabad. The Commissioner, by an order dated 16th July, 2009, awarded total compensation of Rs. 4,17,586/- to the appellants. 5. Feeling aggrieved by this award, the Insurance Company (Respondent No.1) preferred an appeal before the Andhra Pradesh High Court being Civil Misc. Appeal No.1130 of 2009. By an order dated 29th November, 2010, the High Court took the view that it was not part of the duties of the husband of Appellant No.1 to repair the electrical fault. Therefore, as per the Rules the appellants were not entitled to any compensation. We have looked into the case papers and find that the husband of Appellant No.1 being an employee of Respondent No.2 had no option but to obey the orders passed by his employer and since the electrical fuse had got burnt and the rice mill appeared to have come to a stand-still, he was asked to replace the fuse. 6. It is pointed out by learned counsel for the appellants that this is not the first time the fuse had got burnt and there were earlier instances also and usually the employees including the husband of Appellant No.1 were asked to replace the fuse, particularly since the linesman whose duty was to change the fuse was located several kilometers away. It is under these circumstances that the husband of Appellant No.1 obeyed the orders given by his employer (Respondent No.2) and attempted to change the fuse in the transformer. 7. Unfortunately, some mishap occurred as a result of which the husband of Appellant No.1 received an electric shock and died on the spot. 8. Looking to the facts and circumstances of the case including the fact that the husband of Appellant No.1 was asked to replace the fuse only by his employer, we are of the opinion that the High Court ought not to have gone into strict technicalities of the matter and ought to have looked at the claim of the appellants a little more sympathetically Under the circumstances, we set aside the order passed by the High Court and restore the award made by the Commissioner for Workmens Compensation and Assistant Commissioner of Labour - I, Hyderabad. 9. Learned counsel for Respondent No.1 states that the awarded amount has been deposited with the Commissioner. The appellants are at liberty to withdraw the amount deposited with the Commissioner. If any interest has accrued on the amount, that interest should also be paid to the appellants. 10. We make it clear that the awarded amount will be in addition to any other amount that has been received by the appellants from the employer or from any other source as a result of the accident. 11. | 1[ds]Under the circumstances, we set aside the order passed by the High Court and restore the award made by the Commissioner for Workmens Compensation and Assistant Commissioner of Labour. We make it clear that the awarded amount will be in addition to any other amount that has been received by the appellants from the employer or from any other source as a result of the accident. | 1 | 626 | 73 | ### 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:
1. Delay condoned. 2. Leave granted. 3. The husband of Appellant No.1 was working as a driver with Respondent No.2 in a rice mill. Some electrical problem arose in the rice mill due to the burning of a fuse in the transformer. It appears that the husband of Appellant No.1 was asked by the employer to look into the matter and see if the fuse could be replaced. While the husband of Appellant No.1 was obeying the orders of his employer, he suffered an electric shock, fell down from the transformer and died on the spot. 4. In view of the death of the husband of Appellant No.1, a claim was made to the Commissioner for Workmens Compensation and Assistant Commissioner of Labour - I, Hyderabad. The Commissioner, by an order dated 16th July, 2009, awarded total compensation of Rs. 4,17,586/- to the appellants. 5. Feeling aggrieved by this award, the Insurance Company (Respondent No.1) preferred an appeal before the Andhra Pradesh High Court being Civil Misc. Appeal No.1130 of 2009. By an order dated 29th November, 2010, the High Court took the view that it was not part of the duties of the husband of Appellant No.1 to repair the electrical fault. Therefore, as per the Rules the appellants were not entitled to any compensation. We have looked into the case papers and find that the husband of Appellant No.1 being an employee of Respondent No.2 had no option but to obey the orders passed by his employer and since the electrical fuse had got burnt and the rice mill appeared to have come to a stand-still, he was asked to replace the fuse. 6. It is pointed out by learned counsel for the appellants that this is not the first time the fuse had got burnt and there were earlier instances also and usually the employees including the husband of Appellant No.1 were asked to replace the fuse, particularly since the linesman whose duty was to change the fuse was located several kilometers away. It is under these circumstances that the husband of Appellant No.1 obeyed the orders given by his employer (Respondent No.2) and attempted to change the fuse in the transformer. 7. Unfortunately, some mishap occurred as a result of which the husband of Appellant No.1 received an electric shock and died on the spot. 8. Looking to the facts and circumstances of the case including the fact that the husband of Appellant No.1 was asked to replace the fuse only by his employer, we are of the opinion that the High Court ought not to have gone into strict technicalities of the matter and ought to have looked at the claim of the appellants a little more sympathetically Under the circumstances, we set aside the order passed by the High Court and restore the award made by the Commissioner for Workmens Compensation and Assistant Commissioner of Labour - I, Hyderabad. 9. Learned counsel for Respondent No.1 states that the awarded amount has been deposited with the Commissioner. The appellants are at liberty to withdraw the amount deposited with the Commissioner. If any interest has accrued on the amount, that interest should also be paid to the appellants. 10. We make it clear that the awarded amount will be in addition to any other amount that has been received by the appellants from the employer or from any other source as a result of the accident. 11.
### Response:
1
### Explanation:
Under the circumstances, we set aside the order passed by the High Court and restore the award made by the Commissioner for Workmens Compensation and Assistant Commissioner of Labour. We make it clear that the awarded amount will be in addition to any other amount that has been received by the appellants from the employer or from any other source as a result of the accident.
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K.N. NAGARAJAPPA & ORS Vs. H. NARASIMHA REDDY | Court or Courts reason of a decision on such question of law as is referred to in section 100. 16. In the judgment reported as Municipal Committee, Hoshiarpur v. Punjab State Electricity Board (2010) 13 SCC 216 , this court held as follows: 26. Thus, it is evident that Section 103 CPC is not an exception to Section 100 CPC nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 CPC in service, the High Court has to record a finding that it had to exercise such power, because it found that finding (s) of fact recorded by the court (s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below. 27. There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647] ; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan [(1999) 6 SCC 343] and Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740] .) 28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483] 17. In a recent judgment of this court, Narayan Sitaramji Badwaik (Dead) Through Lrs. v Bisaram & Ors 2021 SCC OnLine SC 319 this court observed as follows, in the context of High Courts jurisdiction to appreciate factual issues under Section 103 IPC: 11. A bare perusal of this section clearly indicates that it provides for the High Court to decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue necessary for the disposal of the appeal has not been determined by the lower Appellate Court or by both the Courts below. And second, when an issue of fact has been wrongly determined by the Court(s) below by virtue of the decision on the question of law under Section 100 of the Code of Civil Procedure. 18. In the opinion of this court, in the present case, the High Court recorded sound and convincing reasons why the first appellate courts judgment required interference. These were entirely based upon the evidence led by the parties on the record. The appreciation of evidence by the first appellate court was on the basis of it having overlooked material facts, such as appreciation of documentary and oral evidence led before the trial court, that the execution of Ex.D-3 was denied. In these circumstances, the burden was upon the appellants to establish that the registered sale deed was a nominal document. The findings of the trial court –as was duly noticed by the High Court recorded five cogent reasons why the appellants pleas could not be accepted. The deposition with respect to repayment of ? 9000/- apart from being bereft of particulars, was also contrary to the provisions inasmuch as there was no averment with respect to payment of interest @ 15%. Furthermore, the appellants application for occupancy rights made after the sale deed and the alleged agreement to sell were executed claimed that the appellants were tenants under the respondent. Eventually, the order of the Land Tribunal was set aside; upon remand the Land Tribunal was of the opinion that it did not have the jurisdiction to decide the issue and left it to the trial court to do so. These important aspects appeared to have been not appreciated – and their import were overlooked. As a consequence, the first appellate court fell into error in overlooking important evidence and appreciating the record in its true perspective and reversed the decree of the trial court. Moreover, the High Court, in second appeal proceeded to examine the documents in light of the evidence led and corrected the findings as it were under Section 103. If the appellants arguments were to prevail, the findings of fact based upon an entirely erroneous appreciation of facts and by overlooking material evidence would necessarily have to remain and bind the parties, thereby causing injustice. It is precisely for such reasons that the High Courts are empowered to exercise limited factual review under Section 103 CPC. However, that such power could be exercised cannot be doubted. The impugned judgment does not expressly refer to that provision. In the circumstances of the case, it is evident that the High Court exercised the power in the light of that provision. Furthermore, we are also of the opinion that having regard to the overall circumstances, the impugned judgment does not call for interference in exercise of special leave jurisdiction (which is available to this Court – even at the stage of final hearing). | 0[ds]11. It is evident from the above discussion that the respondent, in the first suit, claimed possession on the basis of the registered sale deed, Ex.P-1. That document is not denied. The rival case set-up in defence by the appellants as well as the claim in the second suit was that Ex.P-1 was nominal and in fact meant as a security; the appellants also contended that the suit land were to be re-conveyed after receiving full payment of ?9000, which was in effect made over to the respondent. It is a matter of record that the appellants had applied for and were granted occupancy rights under the Karnataka Land Reforms Act. On the order of the Land Tribunal, the respondent was dispossessed. The Tribunals order was set aside by the High Court which remanded the application for reconsideration afresh. In the second round, the Tribunal relegated the parties to the Civil Court. In these circumstances, the two suits were filed.12. The trial court rejected the appellants defence and decreed the suit, disbelieving the agreement to sell (Ex.D-3). Its conclusions were based upon several reasons. As noted previously, Ex.D-3 neither spelled out the details of the suit lands, nor did it state any payment of interest, as was the position too by the appellants. Furthermore, the trial court also examined the documentary evidence in the form of the application for occupancy rights which clearly disclosed the respondents as owners and claimed that the appellants were tenants under them. Lastly, it was held that the writings on Ex.D-3 which was allegedly executed on the same day as Ex.P-1 (the admitted sale deed) were not the same. The respondent had denied Ex.D-3. The first appellate court faulted the trial court for not believing Ex.D-3 and proceeded to hold that it was genuine. The substantial question of law framed by the High Court was with respect to the interpretation of Ex.D-3 by the first appellate court.13. The impugned judgment has recounted the reasons which persuaded the trial court to reject Ex.D-3 and approved them. At the same time, the High Court found fault with the first appellant court in ignoring the important reasons, which were rooted in the facts of the case, based upon the record which had resulted in rejection of Ex.D-3 and the decree for possession. The appellants theme song is that in second appeal, the High Court could not have interfered with what are termed as pure findings of fact. It is submitted that an examination of Ex.D-3 cannot be termed as substantial question of law, but rather amounts to pure appreciation of facts.16. In the judgment reported as Municipal Committee, Hoshiarpur v. Punjab State Electricity Board (2010) 13 SCC 216 , this court held as follows:26. Thus, it is evident that Section 103 CPC is not an exception to Section 100 CPC nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 CPC in service, the High Court has to record a finding that it had to exercise such power, because it found that finding (s) of fact recorded by the court (s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below.27. There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647] ; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan [(1999) 6 SCC 343] and Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740] .)28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483] 17. In a recent judgment of this court, Narayan Sitaramji Badwaik (Dead) Through Lrs. v Bisaram & Ors 2021 SCC OnLine SC 319 this court observed as follows, in the context of High Courts jurisdiction to appreciate factual issues under Section 103 IPC:11. A bare perusal of this section clearly indicates that it provides for the High Court to decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue necessary for the disposal of the appeal has not been determined by the lower Appellate Court or by both the Courts below. And second, when an issue of fact has been wrongly determined by the Court(s) below by virtue of the decision on the question of law under Section 100 of the Code of Civil Procedure.18. In the opinion of this court, in the present case, the High Court recorded sound and convincing reasons why the first appellate courts judgment required interference. These were entirely based upon the evidence led by the parties on the record. The appreciation of evidence by the first appellate court was on the basis of it having overlooked material facts, such as appreciation of documentary and oral evidence led before the trial court, that the execution of Ex.D-3 was denied. In these circumstances, the burden was upon the appellants to establish that the registered sale deed was a nominal document. The findings of the trial court –as was duly noticed by the High Court recorded five cogent reasons why the appellants pleas could not be accepted. The deposition with respect to repayment of ? 9000/- apart from being bereft of particulars, was also contrary to the provisions inasmuch as there was no averment with respect to payment of interest @ 15%. Furthermore, the appellants application for occupancy rights made after the sale deed and the alleged agreement to sell were executed claimed that the appellants were tenants under the respondent. Eventually, the order of the Land Tribunal was set aside; upon remand the Land Tribunal was of the opinion that it did not have the jurisdiction to decide the issue and left it to the trial court to do so. These important aspects appeared to have been not appreciated – and their import were overlooked. As a consequence, the first appellate court fell into error in overlooking important evidence and appreciating the record in its true perspective and reversed the decree of the trial court. Moreover, the High Court, in second appeal proceeded to examine the documents in light of the evidence led and corrected the findings as it were under Section 103. If the appellants arguments were to prevail, the findings of fact based upon an entirely erroneous appreciation of facts and by overlooking material evidence would necessarily have to remain and bind the parties, thereby causing injustice. It is precisely for such reasons that the High Courts are empowered to exercise limited factual review under Section 103 CPC. However, that such power could be exercised cannot be doubted. The impugned judgment does not expressly refer to that provision. In the circumstances of the case, it is evident that the High Court exercised the power in the light of that provision. Furthermore, we are also of the opinion that having regard to the overall circumstances, the impugned judgment does not call for interference in exercise of special leave jurisdiction (which is available to this Court – even at the stage of final hearing). | 0 | 3,750 | 1,566 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
Court or Courts reason of a decision on such question of law as is referred to in section 100. 16. In the judgment reported as Municipal Committee, Hoshiarpur v. Punjab State Electricity Board (2010) 13 SCC 216 , this court held as follows: 26. Thus, it is evident that Section 103 CPC is not an exception to Section 100 CPC nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 CPC in service, the High Court has to record a finding that it had to exercise such power, because it found that finding (s) of fact recorded by the court (s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below. 27. There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647] ; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan [(1999) 6 SCC 343] and Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740] .) 28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483] 17. In a recent judgment of this court, Narayan Sitaramji Badwaik (Dead) Through Lrs. v Bisaram & Ors 2021 SCC OnLine SC 319 this court observed as follows, in the context of High Courts jurisdiction to appreciate factual issues under Section 103 IPC: 11. A bare perusal of this section clearly indicates that it provides for the High Court to decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue necessary for the disposal of the appeal has not been determined by the lower Appellate Court or by both the Courts below. And second, when an issue of fact has been wrongly determined by the Court(s) below by virtue of the decision on the question of law under Section 100 of the Code of Civil Procedure. 18. In the opinion of this court, in the present case, the High Court recorded sound and convincing reasons why the first appellate courts judgment required interference. These were entirely based upon the evidence led by the parties on the record. The appreciation of evidence by the first appellate court was on the basis of it having overlooked material facts, such as appreciation of documentary and oral evidence led before the trial court, that the execution of Ex.D-3 was denied. In these circumstances, the burden was upon the appellants to establish that the registered sale deed was a nominal document. The findings of the trial court –as was duly noticed by the High Court recorded five cogent reasons why the appellants pleas could not be accepted. The deposition with respect to repayment of ? 9000/- apart from being bereft of particulars, was also contrary to the provisions inasmuch as there was no averment with respect to payment of interest @ 15%. Furthermore, the appellants application for occupancy rights made after the sale deed and the alleged agreement to sell were executed claimed that the appellants were tenants under the respondent. Eventually, the order of the Land Tribunal was set aside; upon remand the Land Tribunal was of the opinion that it did not have the jurisdiction to decide the issue and left it to the trial court to do so. These important aspects appeared to have been not appreciated – and their import were overlooked. As a consequence, the first appellate court fell into error in overlooking important evidence and appreciating the record in its true perspective and reversed the decree of the trial court. Moreover, the High Court, in second appeal proceeded to examine the documents in light of the evidence led and corrected the findings as it were under Section 103. If the appellants arguments were to prevail, the findings of fact based upon an entirely erroneous appreciation of facts and by overlooking material evidence would necessarily have to remain and bind the parties, thereby causing injustice. It is precisely for such reasons that the High Courts are empowered to exercise limited factual review under Section 103 CPC. However, that such power could be exercised cannot be doubted. The impugned judgment does not expressly refer to that provision. In the circumstances of the case, it is evident that the High Court exercised the power in the light of that provision. Furthermore, we are also of the opinion that having regard to the overall circumstances, the impugned judgment does not call for interference in exercise of special leave jurisdiction (which is available to this Court – even at the stage of final hearing).
### Response:
0
### Explanation:
is submitted that an examination of Ex.D-3 cannot be termed as substantial question of law, but rather amounts to pure appreciation of facts.16. In the judgment reported as Municipal Committee, Hoshiarpur v. Punjab State Electricity Board (2010) 13 SCC 216 , this court held as follows:26. Thus, it is evident that Section 103 CPC is not an exception to Section 100 CPC nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 CPC in service, the High Court has to record a finding that it had to exercise such power, because it found that finding (s) of fact recorded by the court (s) below stood vitiated because of perversity. More so, such power can be exercised only in exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below.27. There is no prohibition on entertaining a second appeal even on a question of fact provided the court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide Jagdish Singh v. Natthu Singh [(1992) 1 SCC 647] ; Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan [(1999) 6 SCC 343] and Dinesh Kumar v. Yusuf Ali [(2010) 12 SCC 740] .)28. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide Bharatha Matha v. R. Vijaya Renganathan [(2010) 11 SCC 483] 17. In a recent judgment of this court, Narayan Sitaramji Badwaik (Dead) Through Lrs. v Bisaram & Ors 2021 SCC OnLine SC 319 this court observed as follows, in the context of High Courts jurisdiction to appreciate factual issues under Section 103 IPC:11. A bare perusal of this section clearly indicates that it provides for the High Court to decide an issue of fact, provided there is sufficient evidence on record before it, in two circumstances. First, when an issue necessary for the disposal of the appeal has not been determined by the lower Appellate Court or by both the Courts below. And second, when an issue of fact has been wrongly determined by the Court(s) below by virtue of the decision on the question of law under Section 100 of the Code of Civil Procedure.18. In the opinion of this court, in the present case, the High Court recorded sound and convincing reasons why the first appellate courts judgment required interference. These were entirely based upon the evidence led by the parties on the record. The appreciation of evidence by the first appellate court was on the basis of it having overlooked material facts, such as appreciation of documentary and oral evidence led before the trial court, that the execution of Ex.D-3 was denied. In these circumstances, the burden was upon the appellants to establish that the registered sale deed was a nominal document. The findings of the trial court –as was duly noticed by the High Court recorded five cogent reasons why the appellants pleas could not be accepted. The deposition with respect to repayment of ? 9000/- apart from being bereft of particulars, was also contrary to the provisions inasmuch as there was no averment with respect to payment of interest @ 15%. Furthermore, the appellants application for occupancy rights made after the sale deed and the alleged agreement to sell were executed claimed that the appellants were tenants under the respondent. Eventually, the order of the Land Tribunal was set aside; upon remand the Land Tribunal was of the opinion that it did not have the jurisdiction to decide the issue and left it to the trial court to do so. These important aspects appeared to have been not appreciated – and their import were overlooked. As a consequence, the first appellate court fell into error in overlooking important evidence and appreciating the record in its true perspective and reversed the decree of the trial court. Moreover, the High Court, in second appeal proceeded to examine the documents in light of the evidence led and corrected the findings as it were under Section 103. If the appellants arguments were to prevail, the findings of fact based upon an entirely erroneous appreciation of facts and by overlooking material evidence would necessarily have to remain and bind the parties, thereby causing injustice. It is precisely for such reasons that the High Courts are empowered to exercise limited factual review under Section 103 CPC. However, that such power could be exercised cannot be doubted. The impugned judgment does not expressly refer to that provision. In the circumstances of the case, it is evident that the High Court exercised the power in the light of that provision. Furthermore, we are also of the opinion that having regard to the overall circumstances, the impugned judgment does not call for interference in exercise of special leave jurisdiction (which is available to this Court – even at the stage of final hearing).
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Ram Singh & Sons Eng. Works Vs. Commissioner Of Sales Tax, U.P | publication of the Indian Standards Institution which lays down the Code of Practice for Design of Overhead Travelling Cranes and Gantry Cranes clearly shows that a 3-motion electrical overhead travelling crane consists of 44 main component parts and it is only when they are put together and assembled at the site that they assume the shape of a crane. It is not as if a 3-motion electrical overhead travelling crane is fabricated by the manufacturer and then sold and delivered to the customer as a chattel. One single 3-motion electrical overhead travelling crane covers an area of 10, 549 Square Feat at the site. When an order for fabrication and erection of 3-month electrical overhead travelling crane is received by the manufacturer from the customer alongwith the specifications of the size and the materials, the manufacturer designis the machine according to the specifications and prepares the necessary drawings for its fabrication and manufacture and two copies of the drawings are sent to the customer for preparing the foundation at the site for erection of the columns which are ten in n umber along with four supporting columns. Each column has to be placed on a grouted foundation which is 7 feet deep and is securely bolted with foundation bolts, 5 on each side. which are grouted so as to be able to support the weight of the column s. The columns thus become permanent fixtures on the land of the customer and they constitute a permanent foundation for the 3-motion electrical overhead travelling crane. The detailed specifications of the foundation bolts and the columns are given in the publication of the Indian Standards Institution. It may be noted that even so far as the columns are concerned, they are not fabricatetd by the manufacturer in his factory and then taken to the site. Each column has a height of about 40 feet and it is made in three or four pieces and these pieces are joined together with bolts and welded at the time of erection at the site. Thereafter a 120 feet long gantry is assembled by the manufacturer in eight pieces and each piece is placed on two columns and the erection of the gantry on both sides is completed after bolting and svelaing the gantry with the columns. Then about 60 pieces are fixed on to the gantry on both sides to form a platform to facilitate the operation and maintenance of the crane and the component parts of the railings are assembled at the site with bolts and welded to the gantry. Two distance pieces assembled out of diverse component parts are then fixed between both ends of the gantry to ensure stability. The manufacturer has to examine and ensure the levelling and alignment of the gantry and then the component parts of the rails are assembled and fixed on both sides of the gantry by means of M.S. cleats and bolts. The bridge which is fabricated out of numerous component parts at the site, is then put on the rails so that it can run on the gantry and travel about 180 feet from one end Or the gantry to another. Then rails are fixed on the bridge and the trolley is put on the rails. The trolley consists of several component parts which are brought and assembled at the site. There is also a platform erected on the bridge for maintenance of the bridge and trolley and lastly, there is a lifting grab which is made of 3 6 pieces assembled at the site and this grab is fitted on to the trolley. It would thus be seen that the fabrication and erection of a 3-motion electrical overhead travelling crane is a highly skilled and specialised job and the component par ts have to be taken to the site and they are assembled and erected there and it is only when this process is complete then a 3-motion electrical overhead travelling crane comes into being. The process of assembling and erection, requires a high degree of skill and it is not possible to say that the erection of a 3-motion electrical overhead travelling crane at the site is merely incidental to its manufacture and supply. The fabrication and erection is one single indivisible process and a 3-motion electrical overhead travelling crane comes into existence only when the erection is complete. The erection is thus a fundamental and integral part of the contract, because without it the 3-motion electrical overhead travelling crane does not come into being. The manufacturer would undoubtedly be the owner of the components parts when he fabricated them but at no stage does he become the owner of the 3-motion electrical overhead travelling crane as a unit so as to transfer the property in it to the customer. The 3-motion electrical overhead travelling crane comes into existence as a unit only when the component parts are fixed in position and erected at the site, but at that stage it becomes the property of the customer because it is permanently embedded in the land belonging to the customer. The result is that as soon as 3-motion electrical overhead travelling crane comes into being it is the property of the customer and there is, therefore, no transfer of property in it by the manufacturer to the customer as a chattel. It is essentially a transaction for fabricating component parts and putting them together and erecting them at the site so as to constitute a 3 motion electrical overhead travelling crane. The transaction is no different than one for fabrication and erection of an open godown or shed with asbestos or tin sheets fixed on columns. There can, therefore, be no doubt that the contract in the present case was a contract for work and labour and not a contract for sale. This view which we are taking is completely supported by the decision of this Court in the Sentinel Rolling Shutters & Engineering Co. (P) Ltd. v. Commissioner of Sales Tax, Maharashtra (supra).10. | 1[ds]This was the test applied by this Court in the State of Rajasthan v. Man Industrial Corporation for holding that a contract for providing and fixing four different types of windows of certain sizes according to "specifications, designs, drawings and instructions" set out in the con tract was a contract for work and labour and not a contract for sale Shah, J., speaking on behalf of the Court, analysed the nature of the contract and pointed out that"The window-leaves did not pass to the Union of India under the terms of the contract as window-leaves. Only on the fixing of the windows as stipulated, the contract could be fully executed and the property in the windows passed on the completion of the work and not before".The contract was not for transfer of property in the window leaves as window leaves. It was a contract for providing and fixing windows and windows could come into existence only when the window-leaves were fixed to the building by bestowing labour and skill and it was for this reason that it was held to be a works contract.The same test reasoning was applied by this Court in Sentinel Rolling Shutters &Engineering Co. (P) Ltd. v. Commissioner of Sales Tax, Maharashtra (supra). There the question was whether a contract for fabrication, supply and erection of certain types of rolling shutters was a contract of sale or a contract for work and labour. This Court analysed the nature of the contract and pointed out that "not only are the Rolling Shutters to be manufactured according to the specifications, designs, drawings and instructions provided in the contract, but they are also to be erected and installed at the premises of the company. The price stipulated in the contract is inclusive of erection an d installation charges and the contract does not recognise any dichotomy between fabrication and supply of the Rolling Shutters and their erection and installation so far as the price is concerned. The erection and installation of the Rolling Shutters is as much an essential part of the contract as the fabrication and supply and it is only on the erection and installation of the Rolling Shutters that the contract would be fully executed." This Court then proceeded to examine what is a rolling shutter and how it is erected and installed in the premises and observed that a rolling shutter consists of several component parts and the component parts do not constitute a rolling shutter until they are fixed and erected on the premises. It is only when the component parts are fixed on the premises and fitted into one another that they constitute a rolling shutter as a commercial article and till then they are merely component parts and cannot be said to constitute a rolling shutter. The erection and installation of the rolling shutter cannot, therefore, be said to be incidental to its manufacture and supply. It is a fundamental and integral part of the contract, because without it the rolling shutter does not come into being. The manufacturer would undoubtedly be the owner of the component parts when he fabricates them, but at no stage does he become the owner of the rolling shutter as a unit so as to transfer the property in it to the customer. The rolling shutter comes into existence as a unit when the components parts are fixed in position on the premises and it, therefore, becomes the property of the customer as soon as it comes into being. There is no transfer of property in the rolling shutter by the manufacturer to the customer as a chattel. It is essentially a transaction for fabricating component parts and fixing them on the premises so as to constitute a rolling shutter." The contract for fabrication, supply and erection o f the rolling shutters was, on this reasoning, held by the Court to be a contract for work and labour and not a contract for sale.If we consider what is a 3-motion electrical overhead travelling crane and how it is fabricated, erected an d installed, it will become immediately clear that the analogy of the decision in Sentinel Rolling Shutters &Engineering Co. (P) Ltd.s case (supra) to the present case is striking and it must lead us to the conclusion that each of the two contracts with which we are concerned here is not a contract for sale but a contract for work and labour. The publication of the Indian Standards Institution which lays down the Code of Practice for Design of Overhead Travelling Cranes and Gantry Cranes clearly shows that a 3-motion electrical overhead travelling crane consists of 44 main component parts and it is only when they are put together and assembled at the site that they assume the shape of a crane. It is not as if a 3-motion electrical overhead travelling crane is fabricated by the manufacturer and then sold and delivered to the customer as a chattel. One single 3-motion electrical overhead travelling crane covers an area of 10, 549 Square Feat at the site. When an order for fabrication and erection of 3-month electrical overhead travelling crane is received by the manufacturer from the customer alongwith the specifications of the size and the materials, the manufacturer designis the machine according to the specifications and prepares the necessary drawings for its fabrication and manufacture and two copies of the drawings are sent to the customer for preparing the foundation at the site for erection of the columns which are ten in n umber along with four supporting columns. Each column has to be placed on a grouted foundation which is 7 feet deep and is securely bolted with foundation bolts, 5 on each side. which are grouted so as to be able to support the weight of the column s. The columns thus become permanent fixtures on the land of the customer and they constitute a permanent foundation for the 3-motion electrical overhead travelling crane. The detailed specifications of the foundation bolts and the columns are given in the publication of the Indian Standards Institution. It may be noted that even so far as the columns are concerned, they are not fabricatetd by the manufacturer in his factory and then taken to the site. Each column has a height of about 40 feet and it is made in three or four pieces and these pieces are joined together with bolts and welded at the time of erection at the site. Thereafter a 120 feet long gantry is assembled by the manufacturer in eight pieces and each piece is placed on two columns and the erection of the gantry on both sides is completed after bolting and svelaing the gantry with the columns. Then about 60 pieces are fixed on to the gantry on both sides to form a platform to facilitate the operation and maintenance of the crane and the component parts of the railings are assembled at the site with bolts and welded to the gantry. Two distance pieces assembled out of diverse component parts are then fixed between both ends of the gantry to ensure stability. The manufacturer has to examine and ensure the levelling and alignment of the gantry and then the component parts of the rails are assembled and fixed on both sides of the gantry by means of M.S. cleats and bolts. The bridge which is fabricated out of numerous component parts at the site, is then put on the rails so that it can run on the gantry and travel about 180 feet from one end Or the gantry to another. Then rails are fixed on the bridge and the trolley is put on the rails. The trolley consists of several component parts which are brought and assembled at the site. There is also a platform erected on the bridge for maintenance of the bridge and trolley and lastly, there is a lifting grab which is made of 3 6 pieces assembled at the site and this grab is fitted on to the trolley. It would thus be seen that the fabrication and erection of a 3-motion electrical overhead travelling crane is a highly skilled and specialised job and the component par ts have to be taken to the site and they are assembled and erected there and it is only when this process is complete then a 3-motion electrical overhead travelling crane comes into being. The process of assembling and erection, requires a high degree of skill and it is not possible to say that the erection of a 3-motion electrical overhead travelling crane at the site is merely incidental to its manufacture and supply. The fabrication and erection is one single indivisible process and a 3-motion electrical overhead travelling crane comes into existence only when the erection is complete. The erection is thus a fundamental and integral part of the contract, because without it the 3-motion electrical overhead travelling crane does not come into being. The manufacturer would undoubtedly be the owner of the components parts when he fabricated them but at no stage does he become the owner of the 3-motion electrical overhead travelling crane as a unit so as to transfer the property in it to the customer. The 3-motion electrical overhead travelling crane comes into existence as a unit only when the component parts are fixed in position and erected at the site, but at that stage it becomes the property of the customer because it is permanently embedded in the land belonging to the customer. The result is that as soon as 3-motion electrical overhead travelling crane comes into being it is the property of the customer and there is, therefore, no transfer of property in it by the manufacturer to the customer as a chattel. It is essentially a transaction for fabricating component parts and putting them together and erecting them at the site so as to constitute a 3 motion electrical overhead travelling crane. The transaction is no different than one for fabrication and erection of an open godown or shed with asbestos or tin sheets fixed on columns. There can, therefore, be no doubt that the contract in the present case was a contract for work and labour and not a contract for sale. This view which we are taking is completely supported by the decision of this Court in the Sentinel Rolling Shutters & Engineering Co. (P) Ltd. v. Commissioner of Sales Tax, Maharashtrathe distinction between a contract of sale and a contract for work and labour has been pointed out in Halsburys Laws of England, 3 ed., volume 34, para 3 at page 6 in the followingcontract of sale is a contract whose main object is the transfer of the property in, and the delivery of the possession of, a chattel as a chattel to the buyer. Where the main object of work undertaken by the payee of the price is not the transfer of a chattel qua chattel, the contract is one for work and labour. The test is whether or not the work and labour bestowed and in anything that can properly become the subject of sale; neither the ownership of the materials, nor the value of the skill and labour as compared with the value of the materials, is conclusive, although such matters may be taken into consideration in determinating, in the circumstances of a particular case, whether the contract is in substance one for work and labour or one for the sale of a chattel."The primary test is whether the contract is one whose main object is transfer of property in a chattel as a chattel to the buyer, though some work may be required to be done under the contract as ancillary or incidental to the sale or it is carrying out of work by bestowal of labour and service and materials are used in execution of such work. This test has been recognised and approved in a number of decisions of this Court and it may now be regarded as beyond controversy, but the real difficulty arises in its application as there are a large number of cases which are on the border line and fall within what may be called grey area. To resolve this difficulty, the courts have evolved some subsidiary tests and one of such tests is that formulated by this Court in Commissioner of Sales Tax, Madhya Pradesh v. Purshottam Premji where it has been said:The primary difference between a contract for work or service and a contract for sale o f goods is that in the former there is in the person performing work or rendering service no property in the thing produced as a whole. . . In the case of a contract for sale, the thing produced as a whole has individual existence as the sole property of the party who produced it, at some time before delivery, and the property therein passes only under the contract relating thereto to the other party for price." | 1 | 4,126 | 2,300 | ### 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:
publication of the Indian Standards Institution which lays down the Code of Practice for Design of Overhead Travelling Cranes and Gantry Cranes clearly shows that a 3-motion electrical overhead travelling crane consists of 44 main component parts and it is only when they are put together and assembled at the site that they assume the shape of a crane. It is not as if a 3-motion electrical overhead travelling crane is fabricated by the manufacturer and then sold and delivered to the customer as a chattel. One single 3-motion electrical overhead travelling crane covers an area of 10, 549 Square Feat at the site. When an order for fabrication and erection of 3-month electrical overhead travelling crane is received by the manufacturer from the customer alongwith the specifications of the size and the materials, the manufacturer designis the machine according to the specifications and prepares the necessary drawings for its fabrication and manufacture and two copies of the drawings are sent to the customer for preparing the foundation at the site for erection of the columns which are ten in n umber along with four supporting columns. Each column has to be placed on a grouted foundation which is 7 feet deep and is securely bolted with foundation bolts, 5 on each side. which are grouted so as to be able to support the weight of the column s. The columns thus become permanent fixtures on the land of the customer and they constitute a permanent foundation for the 3-motion electrical overhead travelling crane. The detailed specifications of the foundation bolts and the columns are given in the publication of the Indian Standards Institution. It may be noted that even so far as the columns are concerned, they are not fabricatetd by the manufacturer in his factory and then taken to the site. Each column has a height of about 40 feet and it is made in three or four pieces and these pieces are joined together with bolts and welded at the time of erection at the site. Thereafter a 120 feet long gantry is assembled by the manufacturer in eight pieces and each piece is placed on two columns and the erection of the gantry on both sides is completed after bolting and svelaing the gantry with the columns. Then about 60 pieces are fixed on to the gantry on both sides to form a platform to facilitate the operation and maintenance of the crane and the component parts of the railings are assembled at the site with bolts and welded to the gantry. Two distance pieces assembled out of diverse component parts are then fixed between both ends of the gantry to ensure stability. The manufacturer has to examine and ensure the levelling and alignment of the gantry and then the component parts of the rails are assembled and fixed on both sides of the gantry by means of M.S. cleats and bolts. The bridge which is fabricated out of numerous component parts at the site, is then put on the rails so that it can run on the gantry and travel about 180 feet from one end Or the gantry to another. Then rails are fixed on the bridge and the trolley is put on the rails. The trolley consists of several component parts which are brought and assembled at the site. There is also a platform erected on the bridge for maintenance of the bridge and trolley and lastly, there is a lifting grab which is made of 3 6 pieces assembled at the site and this grab is fitted on to the trolley. It would thus be seen that the fabrication and erection of a 3-motion electrical overhead travelling crane is a highly skilled and specialised job and the component par ts have to be taken to the site and they are assembled and erected there and it is only when this process is complete then a 3-motion electrical overhead travelling crane comes into being. The process of assembling and erection, requires a high degree of skill and it is not possible to say that the erection of a 3-motion electrical overhead travelling crane at the site is merely incidental to its manufacture and supply. The fabrication and erection is one single indivisible process and a 3-motion electrical overhead travelling crane comes into existence only when the erection is complete. The erection is thus a fundamental and integral part of the contract, because without it the 3-motion electrical overhead travelling crane does not come into being. The manufacturer would undoubtedly be the owner of the components parts when he fabricated them but at no stage does he become the owner of the 3-motion electrical overhead travelling crane as a unit so as to transfer the property in it to the customer. The 3-motion electrical overhead travelling crane comes into existence as a unit only when the component parts are fixed in position and erected at the site, but at that stage it becomes the property of the customer because it is permanently embedded in the land belonging to the customer. The result is that as soon as 3-motion electrical overhead travelling crane comes into being it is the property of the customer and there is, therefore, no transfer of property in it by the manufacturer to the customer as a chattel. It is essentially a transaction for fabricating component parts and putting them together and erecting them at the site so as to constitute a 3 motion electrical overhead travelling crane. The transaction is no different than one for fabrication and erection of an open godown or shed with asbestos or tin sheets fixed on columns. There can, therefore, be no doubt that the contract in the present case was a contract for work and labour and not a contract for sale. This view which we are taking is completely supported by the decision of this Court in the Sentinel Rolling Shutters & Engineering Co. (P) Ltd. v. Commissioner of Sales Tax, Maharashtra (supra).10.
### Response:
1
### Explanation:
the gantry. Two distance pieces assembled out of diverse component parts are then fixed between both ends of the gantry to ensure stability. The manufacturer has to examine and ensure the levelling and alignment of the gantry and then the component parts of the rails are assembled and fixed on both sides of the gantry by means of M.S. cleats and bolts. The bridge which is fabricated out of numerous component parts at the site, is then put on the rails so that it can run on the gantry and travel about 180 feet from one end Or the gantry to another. Then rails are fixed on the bridge and the trolley is put on the rails. The trolley consists of several component parts which are brought and assembled at the site. There is also a platform erected on the bridge for maintenance of the bridge and trolley and lastly, there is a lifting grab which is made of 3 6 pieces assembled at the site and this grab is fitted on to the trolley. It would thus be seen that the fabrication and erection of a 3-motion electrical overhead travelling crane is a highly skilled and specialised job and the component par ts have to be taken to the site and they are assembled and erected there and it is only when this process is complete then a 3-motion electrical overhead travelling crane comes into being. The process of assembling and erection, requires a high degree of skill and it is not possible to say that the erection of a 3-motion electrical overhead travelling crane at the site is merely incidental to its manufacture and supply. The fabrication and erection is one single indivisible process and a 3-motion electrical overhead travelling crane comes into existence only when the erection is complete. The erection is thus a fundamental and integral part of the contract, because without it the 3-motion electrical overhead travelling crane does not come into being. The manufacturer would undoubtedly be the owner of the components parts when he fabricated them but at no stage does he become the owner of the 3-motion electrical overhead travelling crane as a unit so as to transfer the property in it to the customer. The 3-motion electrical overhead travelling crane comes into existence as a unit only when the component parts are fixed in position and erected at the site, but at that stage it becomes the property of the customer because it is permanently embedded in the land belonging to the customer. The result is that as soon as 3-motion electrical overhead travelling crane comes into being it is the property of the customer and there is, therefore, no transfer of property in it by the manufacturer to the customer as a chattel. It is essentially a transaction for fabricating component parts and putting them together and erecting them at the site so as to constitute a 3 motion electrical overhead travelling crane. The transaction is no different than one for fabrication and erection of an open godown or shed with asbestos or tin sheets fixed on columns. There can, therefore, be no doubt that the contract in the present case was a contract for work and labour and not a contract for sale. This view which we are taking is completely supported by the decision of this Court in the Sentinel Rolling Shutters & Engineering Co. (P) Ltd. v. Commissioner of Sales Tax, Maharashtrathe distinction between a contract of sale and a contract for work and labour has been pointed out in Halsburys Laws of England, 3 ed., volume 34, para 3 at page 6 in the followingcontract of sale is a contract whose main object is the transfer of the property in, and the delivery of the possession of, a chattel as a chattel to the buyer. Where the main object of work undertaken by the payee of the price is not the transfer of a chattel qua chattel, the contract is one for work and labour. The test is whether or not the work and labour bestowed and in anything that can properly become the subject of sale; neither the ownership of the materials, nor the value of the skill and labour as compared with the value of the materials, is conclusive, although such matters may be taken into consideration in determinating, in the circumstances of a particular case, whether the contract is in substance one for work and labour or one for the sale of a chattel."The primary test is whether the contract is one whose main object is transfer of property in a chattel as a chattel to the buyer, though some work may be required to be done under the contract as ancillary or incidental to the sale or it is carrying out of work by bestowal of labour and service and materials are used in execution of such work. This test has been recognised and approved in a number of decisions of this Court and it may now be regarded as beyond controversy, but the real difficulty arises in its application as there are a large number of cases which are on the border line and fall within what may be called grey area. To resolve this difficulty, the courts have evolved some subsidiary tests and one of such tests is that formulated by this Court in Commissioner of Sales Tax, Madhya Pradesh v. Purshottam Premji where it has been said:The primary difference between a contract for work or service and a contract for sale o f goods is that in the former there is in the person performing work or rendering service no property in the thing produced as a whole. . . In the case of a contract for sale, the thing produced as a whole has individual existence as the sole property of the party who produced it, at some time before delivery, and the property therein passes only under the contract relating thereto to the other party for price."
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Western Coalfields Limited Vs. Special Area Development Authority, Korba and Another | and 79 of the Madras District Boards Act had nothing to do with the de velopment of mines and minerals or their regulation. The proceeds of the land cess were required to be credited to the District fund which had to be used for everything necessary for or conducive to the safety, health, convenience or education of the inhabitants or the amenities of local area concerned. It was further held by the Court that the land cess was not a tax on mineral rights but was in truth and substance a "tax on lands" within the meaning of Entry 49 of the State L ist. The reasoning adopted in this decision shows that it is not correct to say that the property tax provided for in the Act of 1973 is beyond the legislative competence of the State Legislature; that tax has nothing to do with the developme nt of mines. The power conferred by the State Legislature on Special Area Development Authorities to impose the property tax on lands and buildings is therefore not in conflict with the power conferred by the Coal Mines Nationalisation Act on the Union Government to regulate and develop the Coal mines so as to ensure rational and scientific utilisation of coal resources. The paramount purpose behind the declaration contained in section 2 of the Mines and Minerals (Regulation a nd Development) Act, 1957 is not in any manner defeated by the legitimate exercise of taxing power under section 69(d) of the Act of 1973.The decision of this Court in Baijnath Kedia v. State of Bihar &Ors., on which the learned Attorney General relies, is distinguishable. In that case, the Bihar Government demanded dead rent, royalty and surface rent from the appellant contrary to the terms of his lease on the strength of the amended section 10(2) of the Biha r Land Reforms Act, 1950, and the amended Rule 20 of the Bihar Rules. This Court held that the pith and substance of the amended section 10(2) fell within Entry 23 although it incidentally touched land and that, therefore, the amendment was subject to the overriding power of Parliament as declared in section 15 of the Mines and Minerals (Regulation and Development) Act, 1957. By the aforesaid declaration and the enactment of section 15, the whole of the field relating to minor minera ls had come within the jurisdiction of Parliament and no scope was left for the enactment of the second proviso to section 10 of the Bihar Land Reforms Act. The second sub-rule added to Rule 20 was held to be without jurisdiction for the same reason. 20. That the declaration in section 2 of the Mines and Minerals (Regulation and Development) Act, 1957 does not result in invalidation of every State legislation relating to mines and minerals is demonstrated effectively by the decisi on in State of Haryana &Anr. v. Chanan Mal. The Haryana State Legislature passed the Haryana Minerals (Vesting of Rights) Act, 1973, under which two notifications were issued for acquisition of right to saltpeter, a minor mineral, and for a uctioning certain saltpeter bearing areas. It was held by this Court that the Haryana Act was not in any way repugnant to the provisions of the Act of 1957 made by Parliament and that the ownership rights could be validly acquired by the State Governme nt under the State Act.The decision of a Constitution Bench of this Court in The Ishwari Khetan Sugar Mills (P) Ltd. v. The State of Uttar Pradesh &Ors., is even more to the point. In that case, 12 sugar undertakings stood transferred to and were vested in a Government undertaking under the U.P. Sugar Undertakings (Acquisition) Ordinance, 1971, which later became an Act. It was contended on behalf of the sugar undertakings that since sugar is a declared industry unde r the Industries (Development and Regulation) Act, 1951, Parliament alone was competent to pass a law on the subject and the State Legislature had no competence to pass the impugned Act by reason of Entry 52, List I read with Entry 24, List II. The majority, speaking through one of us, Desai J., held that the legislative power of the State under Entry 24, List II, was eroded only to the extent to which control was assumed by the Union Government pursuant to the declaration made by the Parliament in respect of a declared industry and that the field occupied by such enactment was the measure of the erosion of the legislative competence of the State legislature. Since the Central Act was primarily concerned with the deve lopment and regulation of declared industries and not with the ownership of industrial undertakings, it was held that the State legislature had the competence to enact the impugned law. Justice Pathak and Justice Koshal, who gave a separate judgment concurring with the conclusion of the majority, preferred to rest their decision on the circumstance that the impugned legislation fell within Entry 42, List III- Acquisition and requisition of property- and was therefore within the competence of the State Legislature. 21. These are the main points argued by the learned Attorney General on behalf of the appellant Companies. In the High Court, an additional point was taken, based upon the agreement dated June 24, 1976, which was entered into between the appellant Companies and respondent 1. It was contended in the High Court that respondent 1 had waived its power of taxation by that agreement and, therefore, the imposition of property tax was invalid. The Hig h Court has given weighty reasons for rejecting that argument and we endorse those reasons. We adopt, particularly, the reasoning of the High Court that in the meeting of January 29, 1976, respondent 1 had decided to give up its right to impose the Octroi tax only. The Chairman of respondent 1, therefore, acted beyond the scope of his authority in entering into the agreement with the appellant Companies, under which respondent 1 bound itself not to impose any tax whatsoever. | 0[ds]It is well-settled that if an earlier legislation is incorporated into a later legislation, the provisions of earlier law which are incorporated into the later law become a part and parcel of the later law. Therefore, amendments made in the earlier law after the date of incorporation cannot, by their own force, be read into the later law. That is because the legislatu re, which adopts by incorporation the existing provisions of another law, cannot be assumed to intend to bind itself to all future amendments or modifications which may be made in the earlier law. In other words, the incorporating Act does nothing more than borrow certain provisions of an existing Act and instead of setting out, verbatim, those provisions in its own creation, refers to them as a matter of convenience in the mode of draftingFinally, in State of Madhya Pr adesh v. M. V. Narasimhan this Court held, after an examination of the relevant decisions, that the broad principle that where a subsequent Act incorporates provisions of a previous Act then the borrowed provisions become an int egral and independent part of the subsequent Act and are totally unaffected by any repeal or amendment in the previous Act, is subject to four exceptions, one of which is that the principle will not apply to cases "where the subsequent Act and th e previous Act are supplemental to each other".Applying these principles, we are of the opinion that in the instant case, subsequent amendments made to the Municipal Corporation Act and the Municipalities Act will also apply to the power of taxation provided for in section 69(d) of the Act of 1973. The Act of 1973 did not, by section 69(d), incorporate in its true signification any particular provision of the two earlier Acts. It provides that, for the purpose of taxati on, the Special Area Development Authority shall have the powers which a Municipal Corporation or a Municipal Council has under the Madhya Pradesh Municipal Corporation Act, 1956 or the Madhya Pradesh Municipalities Act, 1961. The case there fore is not one of incorporation but of mere reference to the powers conferred by the earlier Acts. As observed in Nathella Sampathu Chetty, there is a distinction between a mere reference to or a citation of one statute in another and an incorporation which in effect means the bodily lifting of the provisions of one enactment and making them part of another, so much so that the repeal of the former leaves the latter wholly untouchedApart from this the position is put beyond doubt by the language of sections 129 and 133 of two Acts. Section 129 of the Madhya Pradesh Municipalities Act pr escribes the procedure for "the imposition of any tax under section 127". Similarly section 133 of the Madhya Pradesh Municipal Corporation Act prescribes the procedure for "the imposition of any tax under section 132". The property tax is impose d by respondent 1 under section 127A of the Municipalities Act and section 135 of the Municipal Corporation Act. It is not imposed under section 127 of the former Act or section 132 of the latter Act. It is therefore not necessary to follow the proced ure prescribed by sections 129 and 133 of the respective Acts. This position is made clear, out of abundant caution, by clause (4) of section 133 of the Municipal Corporation Act, which provides that nothing contained in section 1 33 shall apply to the tax mentioned in clause (a) of sub-section (1) of section 132, which shall be charged and levied in accordance with section 135. Section 132(1)(a) refers to property taxIt is not possible to accept this submission because sections 127A and 135 of the two Acts in question leave no such choice open to the taxing authority. The obligation which the statute places upon it is to impose tax on lands where there are lands only and they can be taxed, on buildings where buildings alone can be brought to tax and on both lands and buildings where lands are built upon and both can be brought to tax. This is not, as said by the Attorney General rationalising the taxing power. What we have said is the plain meaning of the taxing provisionThe s hort answer to this contention is that even though the entire share capital of the appellant companies has been subscribed by the Government of India, it cannot be predicated that the companies themselves are owned by the Government of India. The companies, which are incorporated under the Companies Act, have a corporate personality of their own, distinct from that of the Government of India. The lands and buildings are vested in and owned by the companies: the Governmen t of India only owns the share capitalApart from the fact that there is no data before us showing that the property tax constitutes an impediment in the achievement of the goals of the Coal Mi nes Nationalisation Act, the provisions of the M.P. Act of 1973, under which Special Areas and Special Area Development Authorities are constituted afford an effective answer to the Attorney Generals contention. Entry 23 of List II relates to "Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union". Entry 54 of List I relates to "Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest". It is true that on account of the declaration contained in section 2 of the Mines and Minerals (Development and Regulation) Act, 1957, the legislative field covered by Entry 23 of List II will pass on to Parliament by virtue of Entry 54, List I. But in order to judge whether, on that account, the State l egislature loses its competence to pass the Act of 1973, it is necessary to have regard to the object and purpose of that Act and to the relevant provisions thereof, under which Special Area Development Authorities are given the power to tax lands and buildings within their jurisdiction. We have set out the objects of the Act at the commencement of this judgment. one of which is to provide for the development and administration of Special Areas through Special Area Develop ment Authorities, Section 64 of the Act of 1973, which provides for the constitution of the special areas, lays down by sub-section (4) that: Notwithstanding anything contained in the Madhya Pradesh Municipal Corporation Act, 1956, the Madhya P radesh Municipalities Act, 1961, or the Madhya Pradesh Panchayats Act, 1962, the Municipal Corporation, Municipal Council, Notified Area Committee or a Panchayat, as the case may be, shall, in relation to the special area and as from the date the Special Area Development Authority undertakes the functions under clause (v) or clause (vi) of section 68 cease to exercise the powers and perform the function and duties which the Special Area Development Authority is competent to exercise and perform under the Act of 1973. Section 68 defines the functions of the Special Area Development Authority, one of which, as prescribed by clause (v), is to provide the municipal services as specified in sections 123 and 1 24 of the Madhya Pradesh Municipalities Act, 1961. Section 69, which defines the powers of the Authority, shows that those powers are conferred, inter alia, for the purpose of municipal administration. Surely, the functions, powers and duties of Municipalities do not become an occupied field by reason of the declaration contained in section 2 of the Mines and Minerals (Development and Regulation) Act, 1957. Though, therefore, on account of that declaration, the legislative field covered by Entry 23, List II may pass on to the Parliament by virtue of Entry 54, List I, the competence of the State Government to enact laws for municipal administration will remain unaffected by that declaration.Entry 5 of List II relates to "Local Government, that is to say, the constitution and powers of municipal corporations and other local authorities for the purpose of local self-Government". It is in pursuance of this power that the State Legislature enacted the Act of 1973. The power to impose tax on lands and buildings is derived by the State Legislature from Entry 49 of List II: "Taxes on lands and buildings". The power of the municipalities to levy tax on lands and buildings has been confer red by the State Legislature on the Special Area Development Authorities. Those authorities have the power to levy that tax in order effectively to discharge the municipal functions which are passed on to them. Entry 54 of List I doe s not contemplate the taking over of municipal functionsThat the declaration in section 2 of the Mines and Minerals (Regulation and Development) Act, 1957 does not result in invalidation of every State legislation relating to mines and minerals is demonstrated effectively by the decisi on in State of Haryana &Anr. v. Chanan Mal. The Haryana State Legislature passedthe Haryana Minerals (Vesting of Rights) Act, 1973, under which two notifications were issued for acquisition of right to saltpeter, a minor mineral, and for a uctioning certain saltpeter bearing areas. It was held by this Court that the Haryana Act was not in any way repugnant to the provisions of the Act of 1957 made by Parliament and that the ownership rights could be validly acquired by the State Governme nt under the State Act.The decision of a Constitution Bench of this Court in The Ishwari Khetan Sugar Mills (P) Ltd. v. The State of Uttar Pradesh &Ors., is even more to the point. In that case, 12 sugar undertakings stood transferred to and were vested in a Government undertaking under the U.P. Sugar Undertakings (Acquisition) Ordinance, 1971, which later became an Act. It was contended on behalf of the sugar undertakings that since sugar is a declared industry unde rthe Industries (Development and Regulation) Act, 1951, Parliament alone was competent to pass a law on the subject and the State Legislature had no competence to pass the impugned Act by reason of Entry 52, List I read with Entry 24, List II. The majority, speaking through one of us, Desai J., held that the legislative power of the State under Entry 24, List II, was eroded only to the extent to which control was assumed by the Union Government pursuant to the declaration made by the Parliament in respect of a declared industry and that the field occupied by such enactment was the measure of the erosion of the legislative competence of the State legislature. Since the Central Act was primarily concerned with the deve lopment and regulation of declared industries and not with the ownership of industrial undertakings, it was held that the State legislature had the competence to enact the impugned law. Justice Pathak and Justice Koshal, who gave a separate judgment concurring with the conclusion of the majority, preferred to rest their decision on the circumstance that the impugned legislation fell within Entry 42, List III- Acquisition and requisition of property- and was therefore within the competence of the State LegislatureIn the High Court, an additional point was taken, based upon the agreement dated June 24, 1976, which was entered into between the appellant Companies and respondent 1. It was contended in the High Court that respondent 1 had waived its power of taxation by that agreement and, therefore, the imposition of property tax was invalid. The Hig h Court has given weighty reasons for rejecting that argument and we endorse those reasons. We adopt, particularly, the reasoning of the High Court that in the meeting of January 29, 1976, respondent 1 had decided to give up its right to impose the Octroi tax only. The Chairman of respondent 1, therefore, acted beyond the scope of his authority in entering into the agreement with the appellant Companies, under which respondent 1 bound itself not to impose any tax whatsoever | 0 | 8,175 | 2,233 | ### Instruction:
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and 79 of the Madras District Boards Act had nothing to do with the de velopment of mines and minerals or their regulation. The proceeds of the land cess were required to be credited to the District fund which had to be used for everything necessary for or conducive to the safety, health, convenience or education of the inhabitants or the amenities of local area concerned. It was further held by the Court that the land cess was not a tax on mineral rights but was in truth and substance a "tax on lands" within the meaning of Entry 49 of the State L ist. The reasoning adopted in this decision shows that it is not correct to say that the property tax provided for in the Act of 1973 is beyond the legislative competence of the State Legislature; that tax has nothing to do with the developme nt of mines. The power conferred by the State Legislature on Special Area Development Authorities to impose the property tax on lands and buildings is therefore not in conflict with the power conferred by the Coal Mines Nationalisation Act on the Union Government to regulate and develop the Coal mines so as to ensure rational and scientific utilisation of coal resources. The paramount purpose behind the declaration contained in section 2 of the Mines and Minerals (Regulation a nd Development) Act, 1957 is not in any manner defeated by the legitimate exercise of taxing power under section 69(d) of the Act of 1973.The decision of this Court in Baijnath Kedia v. State of Bihar &Ors., on which the learned Attorney General relies, is distinguishable. In that case, the Bihar Government demanded dead rent, royalty and surface rent from the appellant contrary to the terms of his lease on the strength of the amended section 10(2) of the Biha r Land Reforms Act, 1950, and the amended Rule 20 of the Bihar Rules. This Court held that the pith and substance of the amended section 10(2) fell within Entry 23 although it incidentally touched land and that, therefore, the amendment was subject to the overriding power of Parliament as declared in section 15 of the Mines and Minerals (Regulation and Development) Act, 1957. By the aforesaid declaration and the enactment of section 15, the whole of the field relating to minor minera ls had come within the jurisdiction of Parliament and no scope was left for the enactment of the second proviso to section 10 of the Bihar Land Reforms Act. The second sub-rule added to Rule 20 was held to be without jurisdiction for the same reason. 20. That the declaration in section 2 of the Mines and Minerals (Regulation and Development) Act, 1957 does not result in invalidation of every State legislation relating to mines and minerals is demonstrated effectively by the decisi on in State of Haryana &Anr. v. Chanan Mal. The Haryana State Legislature passed the Haryana Minerals (Vesting of Rights) Act, 1973, under which two notifications were issued for acquisition of right to saltpeter, a minor mineral, and for a uctioning certain saltpeter bearing areas. It was held by this Court that the Haryana Act was not in any way repugnant to the provisions of the Act of 1957 made by Parliament and that the ownership rights could be validly acquired by the State Governme nt under the State Act.The decision of a Constitution Bench of this Court in The Ishwari Khetan Sugar Mills (P) Ltd. v. The State of Uttar Pradesh &Ors., is even more to the point. In that case, 12 sugar undertakings stood transferred to and were vested in a Government undertaking under the U.P. Sugar Undertakings (Acquisition) Ordinance, 1971, which later became an Act. It was contended on behalf of the sugar undertakings that since sugar is a declared industry unde r the Industries (Development and Regulation) Act, 1951, Parliament alone was competent to pass a law on the subject and the State Legislature had no competence to pass the impugned Act by reason of Entry 52, List I read with Entry 24, List II. The majority, speaking through one of us, Desai J., held that the legislative power of the State under Entry 24, List II, was eroded only to the extent to which control was assumed by the Union Government pursuant to the declaration made by the Parliament in respect of a declared industry and that the field occupied by such enactment was the measure of the erosion of the legislative competence of the State legislature. Since the Central Act was primarily concerned with the deve lopment and regulation of declared industries and not with the ownership of industrial undertakings, it was held that the State legislature had the competence to enact the impugned law. Justice Pathak and Justice Koshal, who gave a separate judgment concurring with the conclusion of the majority, preferred to rest their decision on the circumstance that the impugned legislation fell within Entry 42, List III- Acquisition and requisition of property- and was therefore within the competence of the State Legislature. 21. These are the main points argued by the learned Attorney General on behalf of the appellant Companies. In the High Court, an additional point was taken, based upon the agreement dated June 24, 1976, which was entered into between the appellant Companies and respondent 1. It was contended in the High Court that respondent 1 had waived its power of taxation by that agreement and, therefore, the imposition of property tax was invalid. The Hig h Court has given weighty reasons for rejecting that argument and we endorse those reasons. We adopt, particularly, the reasoning of the High Court that in the meeting of January 29, 1976, respondent 1 had decided to give up its right to impose the Octroi tax only. The Chairman of respondent 1, therefore, acted beyond the scope of his authority in entering into the agreement with the appellant Companies, under which respondent 1 bound itself not to impose any tax whatsoever.
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Act and to the relevant provisions thereof, under which Special Area Development Authorities are given the power to tax lands and buildings within their jurisdiction. We have set out the objects of the Act at the commencement of this judgment. one of which is to provide for the development and administration of Special Areas through Special Area Develop ment Authorities, Section 64 of the Act of 1973, which provides for the constitution of the special areas, lays down by sub-section (4) that: Notwithstanding anything contained in the Madhya Pradesh Municipal Corporation Act, 1956, the Madhya P radesh Municipalities Act, 1961, or the Madhya Pradesh Panchayats Act, 1962, the Municipal Corporation, Municipal Council, Notified Area Committee or a Panchayat, as the case may be, shall, in relation to the special area and as from the date the Special Area Development Authority undertakes the functions under clause (v) or clause (vi) of section 68 cease to exercise the powers and perform the function and duties which the Special Area Development Authority is competent to exercise and perform under the Act of 1973. Section 68 defines the functions of the Special Area Development Authority, one of which, as prescribed by clause (v), is to provide the municipal services as specified in sections 123 and 1 24 of the Madhya Pradesh Municipalities Act, 1961. Section 69, which defines the powers of the Authority, shows that those powers are conferred, inter alia, for the purpose of municipal administration. Surely, the functions, powers and duties of Municipalities do not become an occupied field by reason of the declaration contained in section 2 of the Mines and Minerals (Development and Regulation) Act, 1957. Though, therefore, on account of that declaration, the legislative field covered by Entry 23, List II may pass on to the Parliament by virtue of Entry 54, List I, the competence of the State Government to enact laws for municipal administration will remain unaffected by that declaration.Entry 5 of List II relates to "Local Government, that is to say, the constitution and powers of municipal corporations and other local authorities for the purpose of local self-Government". It is in pursuance of this power that the State Legislature enacted the Act of 1973. The power to impose tax on lands and buildings is derived by the State Legislature from Entry 49 of List II: "Taxes on lands and buildings". The power of the municipalities to levy tax on lands and buildings has been confer red by the State Legislature on the Special Area Development Authorities. Those authorities have the power to levy that tax in order effectively to discharge the municipal functions which are passed on to them. Entry 54 of List I doe s not contemplate the taking over of municipal functionsThat the declaration in section 2 of the Mines and Minerals (Regulation and Development) Act, 1957 does not result in invalidation of every State legislation relating to mines and minerals is demonstrated effectively by the decisi on in State of Haryana &Anr. v. Chanan Mal. The Haryana State Legislature passedthe Haryana Minerals (Vesting of Rights) Act, 1973, under which two notifications were issued for acquisition of right to saltpeter, a minor mineral, and for a uctioning certain saltpeter bearing areas. It was held by this Court that the Haryana Act was not in any way repugnant to the provisions of the Act of 1957 made by Parliament and that the ownership rights could be validly acquired by the State Governme nt under the State Act.The decision of a Constitution Bench of this Court in The Ishwari Khetan Sugar Mills (P) Ltd. v. The State of Uttar Pradesh &Ors., is even more to the point. In that case, 12 sugar undertakings stood transferred to and were vested in a Government undertaking under the U.P. Sugar Undertakings (Acquisition) Ordinance, 1971, which later became an Act. It was contended on behalf of the sugar undertakings that since sugar is a declared industry unde rthe Industries (Development and Regulation) Act, 1951, Parliament alone was competent to pass a law on the subject and the State Legislature had no competence to pass the impugned Act by reason of Entry 52, List I read with Entry 24, List II. The majority, speaking through one of us, Desai J., held that the legislative power of the State under Entry 24, List II, was eroded only to the extent to which control was assumed by the Union Government pursuant to the declaration made by the Parliament in respect of a declared industry and that the field occupied by such enactment was the measure of the erosion of the legislative competence of the State legislature. Since the Central Act was primarily concerned with the deve lopment and regulation of declared industries and not with the ownership of industrial undertakings, it was held that the State legislature had the competence to enact the impugned law. Justice Pathak and Justice Koshal, who gave a separate judgment concurring with the conclusion of the majority, preferred to rest their decision on the circumstance that the impugned legislation fell within Entry 42, List III- Acquisition and requisition of property- and was therefore within the competence of the State LegislatureIn the High Court, an additional point was taken, based upon the agreement dated June 24, 1976, which was entered into between the appellant Companies and respondent 1. It was contended in the High Court that respondent 1 had waived its power of taxation by that agreement and, therefore, the imposition of property tax was invalid. The Hig h Court has given weighty reasons for rejecting that argument and we endorse those reasons. We adopt, particularly, the reasoning of the High Court that in the meeting of January 29, 1976, respondent 1 had decided to give up its right to impose the Octroi tax only. The Chairman of respondent 1, therefore, acted beyond the scope of his authority in entering into the agreement with the appellant Companies, under which respondent 1 bound itself not to impose any tax whatsoever
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Ashok Lenka Vs. Rishi Dikshit | 66. Before us the Hindi version of the notification has been read wherefrom it appeared that the requirement of providing the certificate as regards the alleged criminal background of the family members of the licensees had inadvertently appeared in the English version of the notification, but were absent in the Hindi version. 67. It is true that this Court had delivered the judgment in Ashok Lanka - I (supra) on 11th May, 2005. A clarificatory notification was issued on 5.7.2005 by deleting the words "as well as his family members" from the notification dated 15.3.2005. The relevant portion of the said notification reads as under: "In the said rules, - (1) In sub rule 3 of clause (d) of rule 9 the words "as well as his family members" shall be omitted." The said notification was given a retrospective effect. Ordinarily a subordinate legislation cannot be given a retrospective effect. The Notification dated 15.3.2005, however, is said to be clarificatory in nature. A clarificatory Notification can be given retrospective effect. Such a clarification, according to the State, was necessary to be issued as there was an apparent conflict between the Hindi version and the English version of the Notification. 68. It may be true that before the High Court such a contention has not been raised but we are satisfied about the bona fide of the State in this behalf. In that view of the matter, it was not necessary for the District Level Committee or the State to verify the criminal background of the family members of the applicants.69. Presumably, character certificates were required to be issued by the respective Superintendents of Police in respect of the candidates concerned. Of course, if they had been residing at different places at different points of time, such character certificates were required to be issued by the Superintendent of Police of each such place. But the same would not mean that character certificates were required to be produced by the candidates in respect of their family members also particularly when it was not certain as to who would come within the purview of the said term. It was in that sense the Notification dated 15.3.2005 was a clarificatory one, and, therefore, could be given a retrospective effect. CHARACTER CERTIFICATES 70. In view of the directions contained in sub-paragraph (xi) of Paragraph 90, we do not accept the contention of Mr. Desai that only certificate issued by the Superintendent of Police of the place of his permanent residence is to be filed. It, however, appears that the Commissioner of Excise had issued letters to the concerned Superintendents of Police as regard requirement to comply with the provisions of Rule 9 of the Rules. The reason why we say so is that if a person is resident of any district for a year, the certificate which may be issued by the Superintendent of Police of that place may remain valid only for that year. He would not be in a position to vouchsafe about the conduct of the person concerned or as to whether he has any criminal antecedents prior or subsequent thereto.71. It may, therefore, be necessary that the applicant should state the details of the places where he had stayed or carried on business and produce a certificate from the concerned authorities from each such place. ADDRESS OF THE APPLICANT 72. No case, however, has been pointed out before us where such certificates had been given by the Superintendent of Police other than from the place wherein the applicant is a permanent resident. Terms and conditions of the advertisement did not mandate that a person residing outside the State of Chhattisgarh would be ineligible for filing an application. If that be so, then those who were residents of places other than the State of Chhattisgarh would also be eligible therefore. They may have a temporary address in Chhattisgarh or they may not have a permanent address within the said State but by way of temporary address, they cannot give an address which is not their residence even for temporary purpose. Even in paragraph 71 of the judgment in Ashok Lanka - I (supra), this Court pointed out the said fact. No serious dispute has been raised that the said contention of the writ petitioners was not correct. But, even if they had no temporary address but they had been able to file their character certificates and proof of permanent address, they cannot be held to be ineligible for the grant of licences. Furthermore, there is nothing to indicate that the District Level Committees had information as to whether the applicants were defaulters in respect of some other State. Such mechanism of scrutiny is not available in the statutory scheme and in our opinion should be provided.73. We hope and trust that in future, i.e., for the following excise year, appropriate steps shall be taken to make the position clear that if the applicants are not residents of the State of Jharkhand either on a temporary or permanent basis, they would not be shown to be residents of such places wherefrom their antecedents cannot be verified. Such applicants, therefore, should not be allowed to furnish an address only for the purpose of communication and if so, the same should clearly be stated in the application.74. In the Act or the Rules, again no particular authority had been mentioned as having been authorized to issue certificate. No particular method of verification of proof of address and identity had also been shown to exist. It will be appropriate if a clarification is issued in this behalf.75. The Scrutiny Committee appears to have relied upon certificates issued by Tahsildars, Municipal Counsellors, etc. which had not been objected to by the writ petitioners. It is stated that most of the applicants are income tax payees. They have been granted a PAN Card. In future, however, the authorities should insist that the applicants must enclose Xeroxed copies of their PAN Cards along with their applications. CONCLUSION 76. Th | 1[ds]The period for which licences had been granted is over. For all practical purposes, the State and the licensees have succeeded in their attempts to defeat the purpose for which the writ petitions were filed by the writ petitioners - Respondents. We must express our dismay that despite our directions, the applications filed by the Appellants had not been scrutinized minutely which should have been done. The State of Chhattisgarh, we are not very sure, whether was aware of its constitutional duties and functions. It seems to have been more concerned with raising of revenue. To that extent it had succeeded, as the High Court in the first round of litigation despite directing a fresh scrutiny of the applications did not direct refund of the huge amount collected by it by way of application fees. We would, however, expect the State and its officers to scrupulously follow the constitutional mandate in future. It was with this intention we have dealt with these matters at some detail.We hope and trust that the State of Chhattisgarh and its authorities would not commit the same mistakes in the coming years keeping in mind the mandate of Article 47 of the Constitution of India and scrupulously observe the rules or disposal of liquor shops.In the writ petition, the writ petitioners have not disclosed as to how each one of the licensees who had appeared as respondents therein were ineligible or otherwise disqualified and/ or did not fulfil the conditions therefor. Had such opportunities been given, the State as also the said respondents could have met the said allegations. Such allegations were made only in the rejoinder. No new plea ordinarily could have been permitted in the rejoinder without the leave of the court. We would not have commented upon this as the High Court does not appear to have placed reliance upon the additional affidavit filed by the State inter alia on the ground that the same being a sur-rejoinder could not have been filed. The High Courts attention was evidently not drawn to the fact that writ petitioners brought on record new facts for the first time in the rejoinder and, thus, the State was entitled to file a sur-rejoinder controverting the allegations made therein.We are, therefore, of the opinion that the High Court committed an error in directing cancellation of licences of all the private respondents of the writ petition without arriving at a finding as to how and in what manner licence granted to each one of them was either in violation of the provisions of the statute or the directions of this Court.49. To put it shortly, the inadequacies or otherwise of fulfillment of eligibility criteria or the violation of the statute should have been decided by taking up individual matters and upon proper scrutiny of the case. To the aforementioned extent, the judgment of the High Court cannot be sustained.From the aforementioned chart, it would appear that although various instances have been cited in respect of the persons against whom findings have been recorded in the impugned judgment, their licences remained valid whereas licences have been directed to be annulled in respect of Satyendra Singh, Abhay Singh, Arvind Singh, Anil Pal, Pradeep Gupta and Anil Kumar Gupta. We have hereinbefore dealt with the consequences of not impleading some successful licensees in the writ petition.The learned counsel for the Appellant has placed before us a chart, as noticed hereinbefore, showing the mode and manner in which the directions of this Court had been purportedly complied with. From the said chart, it would appear that there are several cases where only residence certificate of some incompetent person was produced in support of residence and certificate by a doctor in support of age were produced as proof without producing any other document to prove those two facts. Thus, there was no proper proof of residence or age produced by these applicants. The record of scrutiny produced by the State shows that, those applicants who had submitted aforesaid improper documents were not even asked by the State at the scrutiny, to submit proper documents such as residence certificate by Revenue Authority, etc. or proper proof of age such as School Certificate or Birth Certificate, etc.61. We may in this connection notice some findings of the High Court. Before the High Court, it had been conceded that the residential certificates issued by the Councillors of Municipal Council or Sapranches or other persons who had no legal authority and/ or otherwise incompetent to issue the same, had been taken into consideration. It may be true that residence certificates granted in favor of the applicants who are not ordinarily inhabitants of the State of Chhattisgarh, cannot be procured from the Revenue Department of the State. The applicants, however, could procure such certificates from the competent authorities of the respective States where the applicant was a resident and who hold similar status in their State, particularly, when it is one of the eligible criteria. The High Court in paragraph 21 of its judgment has noticed the example of residence certificate of Abhay Singh, which does not even bear the revenue case number or seal of the office of the Tehsildar which are mandatory requirements. The High Court has also noticed that the certificates relating to age had been issued by Dental Surgeons and Orthopaedic Surgeons. The High Court furthermore noticed the report of the Station House Officer, Chirmiri to S.P. Koria mentioning about one licensee Pradeep Gupta that he is an employee of liquor contractor Amolak Singh Bhatia and financial condition of Pradeep Gupta is not such that he could take the financial burden of liquor trade. In spite of it, liquor licence was granted to him.62. Furthermore, the High Court in paragraph 22 of its judgment found that the Official Respondents have failed to carry out the directions issued by this Court in the manner expected of them and in conformity with the mandatory rule 9 and 11 of the Rules. The High Court in paragraph 23 also found that the burden was wrongly shifted on objectors to prove the negative facts by evidence which was a serious flaw in enquiry. In paragraph 24, it also took notice of a chart and found that vague and incomplete address such as resident of Raipur and resident of Saja which is an assembly constituency, has been accepted by the authorities.63. The aforesaid findings of the High Court establish that the licences might have been issued in fake names and to the ineligible applicants. Our attention has furthermore been drawn to the fact that some of the applicants are facing criminal trials, veracity whereof is not established.64. The contention of the learned counsel appearing on behalf of the Appellant that this Court has placed burden of proof on the objector may not be entirely correct. The initial burden was on the applicants themselves for grant of licences to satisfy the members of the District Level Committees that they fulfill the eligibility and other criteria. This Court merely opined that even in such matters, the satisfaction was required to be arrived at by the competent authority upon considering the objections raised by the writ petitioners. This Court, thereby, did not mean that whenever an objection was raised, the burden thereof would be upon the objector to prove the same. Sub para (iv) of Paragraph 90 of the judgment in Ashok Lanka I (supra) merely gave the objectors an additional opportunity to place materials before the District Level Committees to show that some of the applicants might be ineligible.65. Our attention has further been drawn to the fact that certificates issued by the doctors or dental surgeons, orthpaedics as regards proof of age of the applicants had been taken into consideration. The same was wholly illegal. But, it does not appear that such a contention had been raised before the High Court. It is expected that in future the competent authority shall consider the desirability of verification of age for arriving at the satisfaction that a person below the age of 21 years is not granted a licence.It may be true that before the High Court such a contention has not been raised but we are satisfied about the bona fide of the State in this behalf. In that view of the matter, it was not necessary for the District Level Committee or the State to verify the criminal background of the family members of the applicants.69. Presumably, character certificates were required to be issued by the respective Superintendents of Police in respect of the candidates concerned. Of course, if they had been residing at different places at different points of time, such character certificates were required to be issued by the Superintendent of Police of each such place. But the same would not mean that character certificates were required to be produced by the candidates in respect of their family members also particularly when it was not certain as to who would come within the purview of the said term. It was in that sense the Notification dated 15.3.2005 was a clarificatory one, and, therefore, could be given a retrospective effect.In view of the directions contained in sub-paragraph (xi) of Paragraph 90, we do not accept the contention of Mr. Desai that only certificate issued by the Superintendent of Police of the place of his permanent residence is to be filed. It, however, appears that the Commissioner of Excise had issued letters to the concerned Superintendents of Police as regard requirement to comply with the provisions of Rule 9 of the Rules. The reason why we say so is that if a person is resident of any district for a year, the certificate which may be issued by the Superintendent of Police of that place may remain valid only for that year. He would not be in a position to vouchsafe about the conduct of the person concerned or as to whether he has any criminal antecedents prior or subsequent thereto.71. It may, therefore, be necessary that the applicant should state the details of the places where he had stayed or carried on business and produce a certificate from the concerned authorities from each such place.No case, however, has been pointed out before us where such certificates had been given by the Superintendent of Police other than from the place wherein the applicant is a permanent resident. Terms and conditions of the advertisement did not mandate that a person residing outside the State of Chhattisgarh would be ineligible for filing an application. If that be so, then those who were residents of places other than the State of Chhattisgarh would also be eligible therefore. They may have a temporary address in Chhattisgarh or they may not have a permanent address within the said State but by way of temporary address, they cannot give an address which is not their residence even for temporary purpose. Even in paragraph 71 of the judgment in Ashok Lanka - I (supra), this Court pointed out the said fact. No serious dispute has been raised that the said contention of the writ petitioners was not correct. But, even if they had no temporary address but they had been able to file their character certificates and proof of permanent address, they cannot be held to be ineligible for the grant of licences. Furthermore, there is nothing to indicate that the District Level Committees had information as to whether the applicants were defaulters in respect of some other State. Such mechanism of scrutiny is not available in the statutory scheme and in our opinion should be provided.73. We hope and trust that in future, i.e., for the following excise year, appropriate steps shall be taken to make the position clear that if the applicants are not residents of the State of Jharkhand either on a temporary or permanent basis, they would not be shown to be residents of such places wherefrom their antecedents cannot be verified. Such applicants, therefore, should not be allowed to furnish an address only for the purpose of communication and if so, the same should clearly be stated in the application.74. In the Act or the Rules, again no particular authority had been mentioned as having been authorized to issue certificate. No particular method of verification of proof of address and identity had also been shown to exist. It will be appropriate if a clarification is issued in this behalf.75. The Scrutiny Committee appears to have relied upon certificates issued by Tahsildars, Municipal Counsellors, etc. which had not been objected to by the writ petitioners. It is stated that most of the applicants are income tax payees. They have been granted a PAN Card. In future, however, the authorities should insist that the applicants must enclose Xeroxed copies of their PAN Cards along with their applications. | 1 | 12,284 | 2,302 | ### 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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66. Before us the Hindi version of the notification has been read wherefrom it appeared that the requirement of providing the certificate as regards the alleged criminal background of the family members of the licensees had inadvertently appeared in the English version of the notification, but were absent in the Hindi version. 67. It is true that this Court had delivered the judgment in Ashok Lanka - I (supra) on 11th May, 2005. A clarificatory notification was issued on 5.7.2005 by deleting the words "as well as his family members" from the notification dated 15.3.2005. The relevant portion of the said notification reads as under: "In the said rules, - (1) In sub rule 3 of clause (d) of rule 9 the words "as well as his family members" shall be omitted." The said notification was given a retrospective effect. Ordinarily a subordinate legislation cannot be given a retrospective effect. The Notification dated 15.3.2005, however, is said to be clarificatory in nature. A clarificatory Notification can be given retrospective effect. Such a clarification, according to the State, was necessary to be issued as there was an apparent conflict between the Hindi version and the English version of the Notification. 68. It may be true that before the High Court such a contention has not been raised but we are satisfied about the bona fide of the State in this behalf. In that view of the matter, it was not necessary for the District Level Committee or the State to verify the criminal background of the family members of the applicants.69. Presumably, character certificates were required to be issued by the respective Superintendents of Police in respect of the candidates concerned. Of course, if they had been residing at different places at different points of time, such character certificates were required to be issued by the Superintendent of Police of each such place. But the same would not mean that character certificates were required to be produced by the candidates in respect of their family members also particularly when it was not certain as to who would come within the purview of the said term. It was in that sense the Notification dated 15.3.2005 was a clarificatory one, and, therefore, could be given a retrospective effect. CHARACTER CERTIFICATES 70. In view of the directions contained in sub-paragraph (xi) of Paragraph 90, we do not accept the contention of Mr. Desai that only certificate issued by the Superintendent of Police of the place of his permanent residence is to be filed. It, however, appears that the Commissioner of Excise had issued letters to the concerned Superintendents of Police as regard requirement to comply with the provisions of Rule 9 of the Rules. The reason why we say so is that if a person is resident of any district for a year, the certificate which may be issued by the Superintendent of Police of that place may remain valid only for that year. He would not be in a position to vouchsafe about the conduct of the person concerned or as to whether he has any criminal antecedents prior or subsequent thereto.71. It may, therefore, be necessary that the applicant should state the details of the places where he had stayed or carried on business and produce a certificate from the concerned authorities from each such place. ADDRESS OF THE APPLICANT 72. No case, however, has been pointed out before us where such certificates had been given by the Superintendent of Police other than from the place wherein the applicant is a permanent resident. Terms and conditions of the advertisement did not mandate that a person residing outside the State of Chhattisgarh would be ineligible for filing an application. If that be so, then those who were residents of places other than the State of Chhattisgarh would also be eligible therefore. They may have a temporary address in Chhattisgarh or they may not have a permanent address within the said State but by way of temporary address, they cannot give an address which is not their residence even for temporary purpose. Even in paragraph 71 of the judgment in Ashok Lanka - I (supra), this Court pointed out the said fact. No serious dispute has been raised that the said contention of the writ petitioners was not correct. But, even if they had no temporary address but they had been able to file their character certificates and proof of permanent address, they cannot be held to be ineligible for the grant of licences. Furthermore, there is nothing to indicate that the District Level Committees had information as to whether the applicants were defaulters in respect of some other State. Such mechanism of scrutiny is not available in the statutory scheme and in our opinion should be provided.73. We hope and trust that in future, i.e., for the following excise year, appropriate steps shall be taken to make the position clear that if the applicants are not residents of the State of Jharkhand either on a temporary or permanent basis, they would not be shown to be residents of such places wherefrom their antecedents cannot be verified. Such applicants, therefore, should not be allowed to furnish an address only for the purpose of communication and if so, the same should clearly be stated in the application.74. In the Act or the Rules, again no particular authority had been mentioned as having been authorized to issue certificate. No particular method of verification of proof of address and identity had also been shown to exist. It will be appropriate if a clarification is issued in this behalf.75. The Scrutiny Committee appears to have relied upon certificates issued by Tahsildars, Municipal Counsellors, etc. which had not been objected to by the writ petitioners. It is stated that most of the applicants are income tax payees. They have been granted a PAN Card. In future, however, the authorities should insist that the applicants must enclose Xeroxed copies of their PAN Cards along with their applications. CONCLUSION 76. Th
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be entirely correct. The initial burden was on the applicants themselves for grant of licences to satisfy the members of the District Level Committees that they fulfill the eligibility and other criteria. This Court merely opined that even in such matters, the satisfaction was required to be arrived at by the competent authority upon considering the objections raised by the writ petitioners. This Court, thereby, did not mean that whenever an objection was raised, the burden thereof would be upon the objector to prove the same. Sub para (iv) of Paragraph 90 of the judgment in Ashok Lanka I (supra) merely gave the objectors an additional opportunity to place materials before the District Level Committees to show that some of the applicants might be ineligible.65. Our attention has further been drawn to the fact that certificates issued by the doctors or dental surgeons, orthpaedics as regards proof of age of the applicants had been taken into consideration. The same was wholly illegal. But, it does not appear that such a contention had been raised before the High Court. It is expected that in future the competent authority shall consider the desirability of verification of age for arriving at the satisfaction that a person below the age of 21 years is not granted a licence.It may be true that before the High Court such a contention has not been raised but we are satisfied about the bona fide of the State in this behalf. In that view of the matter, it was not necessary for the District Level Committee or the State to verify the criminal background of the family members of the applicants.69. Presumably, character certificates were required to be issued by the respective Superintendents of Police in respect of the candidates concerned. Of course, if they had been residing at different places at different points of time, such character certificates were required to be issued by the Superintendent of Police of each such place. But the same would not mean that character certificates were required to be produced by the candidates in respect of their family members also particularly when it was not certain as to who would come within the purview of the said term. It was in that sense the Notification dated 15.3.2005 was a clarificatory one, and, therefore, could be given a retrospective effect.In view of the directions contained in sub-paragraph (xi) of Paragraph 90, we do not accept the contention of Mr. Desai that only certificate issued by the Superintendent of Police of the place of his permanent residence is to be filed. It, however, appears that the Commissioner of Excise had issued letters to the concerned Superintendents of Police as regard requirement to comply with the provisions of Rule 9 of the Rules. The reason why we say so is that if a person is resident of any district for a year, the certificate which may be issued by the Superintendent of Police of that place may remain valid only for that year. He would not be in a position to vouchsafe about the conduct of the person concerned or as to whether he has any criminal antecedents prior or subsequent thereto.71. It may, therefore, be necessary that the applicant should state the details of the places where he had stayed or carried on business and produce a certificate from the concerned authorities from each such place.No case, however, has been pointed out before us where such certificates had been given by the Superintendent of Police other than from the place wherein the applicant is a permanent resident. Terms and conditions of the advertisement did not mandate that a person residing outside the State of Chhattisgarh would be ineligible for filing an application. If that be so, then those who were residents of places other than the State of Chhattisgarh would also be eligible therefore. They may have a temporary address in Chhattisgarh or they may not have a permanent address within the said State but by way of temporary address, they cannot give an address which is not their residence even for temporary purpose. Even in paragraph 71 of the judgment in Ashok Lanka - I (supra), this Court pointed out the said fact. No serious dispute has been raised that the said contention of the writ petitioners was not correct. But, even if they had no temporary address but they had been able to file their character certificates and proof of permanent address, they cannot be held to be ineligible for the grant of licences. Furthermore, there is nothing to indicate that the District Level Committees had information as to whether the applicants were defaulters in respect of some other State. Such mechanism of scrutiny is not available in the statutory scheme and in our opinion should be provided.73. We hope and trust that in future, i.e., for the following excise year, appropriate steps shall be taken to make the position clear that if the applicants are not residents of the State of Jharkhand either on a temporary or permanent basis, they would not be shown to be residents of such places wherefrom their antecedents cannot be verified. Such applicants, therefore, should not be allowed to furnish an address only for the purpose of communication and if so, the same should clearly be stated in the application.74. In the Act or the Rules, again no particular authority had been mentioned as having been authorized to issue certificate. No particular method of verification of proof of address and identity had also been shown to exist. It will be appropriate if a clarification is issued in this behalf.75. The Scrutiny Committee appears to have relied upon certificates issued by Tahsildars, Municipal Counsellors, etc. which had not been objected to by the writ petitioners. It is stated that most of the applicants are income tax payees. They have been granted a PAN Card. In future, however, the authorities should insist that the applicants must enclose Xeroxed copies of their PAN Cards along with their applications.
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Collector of Central Excise, Patna Vs. Tata Engineering and Locomotive Company | manner as an arrear of land revenue. (4) The Central Government may handover the proceeds of the cess collected under this section in respect of the goods manufactured or produced by any scheduled industry or group of scheduled industries to the Development council established for that industry or group of industries, and where it does so, the Development Council shall utilise the said proceeds :-(a) to promote scientific and industrial research with reference to the scheduled industry or group of scheduled industries in respect of which the Development Council is established; (b) to promote improvements in design and quality with reference to the products of such industry or group of industries; (c) to provide for the training of technicians and labour in such industry or group of industries; (d) to meet such expenses in the exercise of its functions and its administrative expenses as may be prescribed." Notification No. S.O. 932 (E), dated 28-12-1983 "In exercise of the powers conferred by sub-section (1) of Section 9 of the Industries (Development and Regulation) Act, 1951 (65 of 1951), the Central Government hereby specifies the classes of goods manufactured or produced in the schedule industry of transportation as mentioned in column (1) of the Table below on which a duty of excise shall be levied and collected as a cess for the purpose of the said Act, with effect from 1st January, 1984 at the rate specified in the corresponding entry in column (2) of the said Table. TABLE Description of class of goods Rate of duty of excise (1) (2) Motor cars, buses, trucks, jeep-type 1/8 per cent valorem vehicles, vans, scooters, Motor-cycles, mopeds and all other automobiles." The Automobile Cess Rules, 1984 "R. 2 - Definitions. - In these rules, unless the context otherwise requires, - (c) "Cess" means the cess levied and collected in terms of Notification No. S.O. 932(E), dated 28-12-1983 of Department of Heavy Industry issued under sub-section (1) of Section 9 of the Act; (f) Words and expression used herein and not defined but defined in the Central Excises and Salt Act, 1944 (1 of 1944) or the rules made thereunder, shall have the meaning respectively assigned to them in the Act or the Rules.R. 3. - Application of Central Excises and Salt Act and the Rules made thereunder. - Save as otherwise provided in these Rules, the provisions of Central Excises and Salt Act, 1944 (1 of 1944) and the rules made thereunder including those relating to refund of duty, shall, so far as may, apply in relation to the levy and collection of the cess as they apply in relation to the levy and collection of the duty of excise on manufacture of automobiles under the Act and the Rules." 2. It is contended by learned counsel for the Revenue that the cess must be levied at 1/8 per cent of the value of the motor vehicle, the value being computed as explained in Section 9(1). In other words, the value of the motor vehicle for this purpose must be deemed to be the wholesale cash price for which it is or is capable of being sold for delivery at the place of its manufacture and at the time of its removal therefrom "without any abatement or deduction whatever except trade discount and the amount of duty then payable". 3. Learned counsel for the assessee submits that the value of the motor vehicle for the purposes of the levy of the cess has to be calculated in the manner laid down in the Central Excises and Salt Act, 1944, for which purpose he places reliance upon Rule 3 of the Automobile Cess Rules. 4. The Tribunal in the order under appeal accepted the contention of the assessee and we are inclined to agree. 5. Section 9(1) of the Industries (Development & Regulation) Act, 1951, empowers the levy and collection of a cess on goods manufactured or produced in a scheduled industry at such rate as may be specified by the Central Government, different rates being permissible for different goods or different classes of goods. The provision contemplates the exercise by the Central Government of the function of fixing the rate of the cess. The legislature, by the proviso to Section 9(1), has laid down the limits of the Central Government discretion in fixing such rate, namely, that such rate shall not exceed two annas per cent of the value of the goods. It is for this purpose that the Explanation in Section 9(1) defines the expression "value" and states that it shall be deemed to be the wholesale cash price for which such goods of the like kind and quality are sold or are capable of being sold for delivery at the place of manufacture and at the time of their removal therefrom without any abatement or deduction whatever, except trade discount and the amount of duty then payable. The opening words of the Explanation make it clear that it defines the expression "value" thus only for the purposes of Section 9(1). 6. The definition of the expression "value" for the specific purpose of Section 9(1) does not, therefore, apply to the valuation of goods to be made for the purposes of computation of the cess under the said notification. In other words, in calculating 1/8 per cent ad valorem, the value of the goods is not to be determined as set out in the Explanation to Section 9(1). For this purpose, what is relevant is Rule 3 of the Automobile Cess Rules, 1984, which states that the provisions of the Central Excises and Salt Act shall apply so far as may be in relation to the levy and collection of the cess. The calculation of 1/8 per cent ad valorem of the motor vehicle for the purposes of the levy and collection of the cess must, therefore, be made as if it was excise duty that was being calculated and applying the provisions of the Central Excises and Salt Act for the purpose. | 0[ds]5. Section 9(1) of the Industries (Development & Regulation) Act, 1951, empowers the levy and collection of a cess on goods manufactured or produced in a scheduled industry at such rate as may be specified by the Central Government, different rates being permissible for different goods or different classes of goods. The provision contemplates the exercise by the Central Government of the function of fixing the rate of the cess. The legislature, by the proviso to Section 9(1), has laid down the limits of the Central Government discretion in fixing such rate, namely, that such rate shall not exceed two annas per cent of the value of the goods. It is for this purpose that the Explanation in Section 9(1) defines the expression "value" and states that it shall be deemed to be the wholesale cash price for which such goods of the like kind and quality are sold or are capable of being sold for delivery at the place of manufacture and at the time of their removal therefrom without any abatement or deduction whatever, except trade discount and the amount of duty then payable. The opening words of the Explanation make it clear that it defines the expression "value" thus only for the purposes of Section 9(1)6. The definition of the expression "value" for the specific purpose of Section 9(1) does not, therefore, apply to the valuation of goods to be made for the purposes of computation of the cess under the said notification. In other words, in calculating 1/8 per cent ad valorem, the value of the goods is not to be determined as set out in the Explanation to Section 9(1). For this purpose, what is relevant is Rule 3 of the Automobile Cess Rules, 1984, which states that the provisions of the Central Excises and Salt Act shall apply so far as may be in relation to the levy and collection of the cess. The calculation of 1/8 per cent ad valorem of the motor vehicle for the purposes of the levy and collection of the cess must, therefore, be made as if it was excise duty that was being calculated and applying the provisions of the Central Excises and Salt Act for the purpose. | 0 | 1,502 | 428 | ### 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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manner as an arrear of land revenue. (4) The Central Government may handover the proceeds of the cess collected under this section in respect of the goods manufactured or produced by any scheduled industry or group of scheduled industries to the Development council established for that industry or group of industries, and where it does so, the Development Council shall utilise the said proceeds :-(a) to promote scientific and industrial research with reference to the scheduled industry or group of scheduled industries in respect of which the Development Council is established; (b) to promote improvements in design and quality with reference to the products of such industry or group of industries; (c) to provide for the training of technicians and labour in such industry or group of industries; (d) to meet such expenses in the exercise of its functions and its administrative expenses as may be prescribed." Notification No. S.O. 932 (E), dated 28-12-1983 "In exercise of the powers conferred by sub-section (1) of Section 9 of the Industries (Development and Regulation) Act, 1951 (65 of 1951), the Central Government hereby specifies the classes of goods manufactured or produced in the schedule industry of transportation as mentioned in column (1) of the Table below on which a duty of excise shall be levied and collected as a cess for the purpose of the said Act, with effect from 1st January, 1984 at the rate specified in the corresponding entry in column (2) of the said Table. TABLE Description of class of goods Rate of duty of excise (1) (2) Motor cars, buses, trucks, jeep-type 1/8 per cent valorem vehicles, vans, scooters, Motor-cycles, mopeds and all other automobiles." The Automobile Cess Rules, 1984 "R. 2 - Definitions. - In these rules, unless the context otherwise requires, - (c) "Cess" means the cess levied and collected in terms of Notification No. S.O. 932(E), dated 28-12-1983 of Department of Heavy Industry issued under sub-section (1) of Section 9 of the Act; (f) Words and expression used herein and not defined but defined in the Central Excises and Salt Act, 1944 (1 of 1944) or the rules made thereunder, shall have the meaning respectively assigned to them in the Act or the Rules.R. 3. - Application of Central Excises and Salt Act and the Rules made thereunder. - Save as otherwise provided in these Rules, the provisions of Central Excises and Salt Act, 1944 (1 of 1944) and the rules made thereunder including those relating to refund of duty, shall, so far as may, apply in relation to the levy and collection of the cess as they apply in relation to the levy and collection of the duty of excise on manufacture of automobiles under the Act and the Rules." 2. It is contended by learned counsel for the Revenue that the cess must be levied at 1/8 per cent of the value of the motor vehicle, the value being computed as explained in Section 9(1). In other words, the value of the motor vehicle for this purpose must be deemed to be the wholesale cash price for which it is or is capable of being sold for delivery at the place of its manufacture and at the time of its removal therefrom "without any abatement or deduction whatever except trade discount and the amount of duty then payable". 3. Learned counsel for the assessee submits that the value of the motor vehicle for the purposes of the levy of the cess has to be calculated in the manner laid down in the Central Excises and Salt Act, 1944, for which purpose he places reliance upon Rule 3 of the Automobile Cess Rules. 4. The Tribunal in the order under appeal accepted the contention of the assessee and we are inclined to agree. 5. Section 9(1) of the Industries (Development & Regulation) Act, 1951, empowers the levy and collection of a cess on goods manufactured or produced in a scheduled industry at such rate as may be specified by the Central Government, different rates being permissible for different goods or different classes of goods. The provision contemplates the exercise by the Central Government of the function of fixing the rate of the cess. The legislature, by the proviso to Section 9(1), has laid down the limits of the Central Government discretion in fixing such rate, namely, that such rate shall not exceed two annas per cent of the value of the goods. It is for this purpose that the Explanation in Section 9(1) defines the expression "value" and states that it shall be deemed to be the wholesale cash price for which such goods of the like kind and quality are sold or are capable of being sold for delivery at the place of manufacture and at the time of their removal therefrom without any abatement or deduction whatever, except trade discount and the amount of duty then payable. The opening words of the Explanation make it clear that it defines the expression "value" thus only for the purposes of Section 9(1). 6. The definition of the expression "value" for the specific purpose of Section 9(1) does not, therefore, apply to the valuation of goods to be made for the purposes of computation of the cess under the said notification. In other words, in calculating 1/8 per cent ad valorem, the value of the goods is not to be determined as set out in the Explanation to Section 9(1). For this purpose, what is relevant is Rule 3 of the Automobile Cess Rules, 1984, which states that the provisions of the Central Excises and Salt Act shall apply so far as may be in relation to the levy and collection of the cess. The calculation of 1/8 per cent ad valorem of the motor vehicle for the purposes of the levy and collection of the cess must, therefore, be made as if it was excise duty that was being calculated and applying the provisions of the Central Excises and Salt Act for the purpose.
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5. Section 9(1) of the Industries (Development & Regulation) Act, 1951, empowers the levy and collection of a cess on goods manufactured or produced in a scheduled industry at such rate as may be specified by the Central Government, different rates being permissible for different goods or different classes of goods. The provision contemplates the exercise by the Central Government of the function of fixing the rate of the cess. The legislature, by the proviso to Section 9(1), has laid down the limits of the Central Government discretion in fixing such rate, namely, that such rate shall not exceed two annas per cent of the value of the goods. It is for this purpose that the Explanation in Section 9(1) defines the expression "value" and states that it shall be deemed to be the wholesale cash price for which such goods of the like kind and quality are sold or are capable of being sold for delivery at the place of manufacture and at the time of their removal therefrom without any abatement or deduction whatever, except trade discount and the amount of duty then payable. The opening words of the Explanation make it clear that it defines the expression "value" thus only for the purposes of Section 9(1)6. The definition of the expression "value" for the specific purpose of Section 9(1) does not, therefore, apply to the valuation of goods to be made for the purposes of computation of the cess under the said notification. In other words, in calculating 1/8 per cent ad valorem, the value of the goods is not to be determined as set out in the Explanation to Section 9(1). For this purpose, what is relevant is Rule 3 of the Automobile Cess Rules, 1984, which states that the provisions of the Central Excises and Salt Act shall apply so far as may be in relation to the levy and collection of the cess. The calculation of 1/8 per cent ad valorem of the motor vehicle for the purposes of the levy and collection of the cess must, therefore, be made as if it was excise duty that was being calculated and applying the provisions of the Central Excises and Salt Act for the purpose.
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Roche Products Limited Vs. Collector of Customs and Another | the penalty was imposed in the exercise of his power under Section 130(2) of the Act, that would not be fatal and vitiate the order. 25. The decision of the Delhi High Court in Addl. CIT v. J. K. DCosta ((1982) 133 ITR 7 (Del HC)), strongly relied upon by the appellant, does not apply to the facts and circumstances of the instant case. In that case, the Addl. Commissioner of Income Tax came to the conclusion, inter alia, that the failure of the Income Tax Officer to initiate penalty proceedings for both the assessment years, namely, 1964-65 and 1965-66 under Section 271(1)(a) and for the assessment year 1965-66 under Section 273(b) of the Income Tax Act, 1961, was erroneous and prejudicial to the interest of the revenue. In that view of the matter, he passed orders setting aside the assessment orders and directed the Income Tax Officer to make fresh assessments in accordance with law. It has been observed by the Delhi High Court that there is no identity between the assessment proceedings and the penalty proceedings; the latter are separate proceedings, that may, in some cases, follow as a consequence of the assessment proceeding. Further, it has been observed that the penalty proceedings do not form part of the assessment proceedings and that the failure of the Income Tax Officer to record in the assessment order, his satisfaction or the lack of it in regard to the leviability of penalty cannot be said to be a factor vitiating the assessment order in any respect. In that case, as the Income Tax Officer did not impose a penalty, the Additional Commissioner set aside the assessment order. The omission to initiate penalty proceedings by the Income Tax Officer will not vitiate an assessment order which is otherwise valid and it has been rightly observed by the Delhi High Court that the Additional Commissioner was not justified in setting aside the assessment order on that ground. 26. In the instant case, the facts are completely different. The Collector of Customs set aside the order of the Customs Officer allowing the appellant to clear the goods on a false declaration and also confiscated the goods and imposed penalty. The Collector of Customs had, as noticed above, the power to confiscate the goods and impose penalty and he did the same after issuing a show cause notice and hearing the appellant. In DCosta case ((1982) 133 ITR 7 (Del HC)) the Additional Commissioner of Income Tax had no power to initiate penalty proceedings under Section 271(1)(a) or Section 273(b) of the Income Tax Act, 1961. Be that as it may, that decision has no manner of application to the facts and circumstances of the instant case. 27. The appellant has complained that as the goods have been confiscated and the penalty has been imposed by the Collector of Customs in exercise of his revisional jurisdiction, the appellant has been deprived of his right to prefer an appeal before the Central Board of Excise and Customs under Section 128(a) of the Act. When the Collector of Customs could confiscate the goods and impose penalties only in exercise of his original jurisdiction under Section 122 read with Section 124 of the Act, surely, the appellant had a right of appeal against such confiscation and imposition of penalty. At this stage, we may notice a very significant fact that the impugned order of the Collector dated November 14, 1979, it has been specifically stated at the very outset that an appeal against the order lies to the Central Board of Excise and Customs, New Delhi, within three months from the date of its dispatch. It cannot, therefore, be said that the appellant was misled, as the order was purported to have been passed by the Collector of Customs in exercise of his revisional jurisdiction. The appellant, however, did not avail itself of its right of appeal under Section 128(1)(a) of the Act and, accordingly, its complaint in that regard is not justified. 28. Before we part with this appeal, we may dispose of two other minor contentions of the appellant. Counsel for the appellant submits that as the appellant has been found not entitled to use the imported material in the production of SMX, it is curious that by the impugned order the appellant has been given an option to pay in lieu of the confiscation of the imported materials a fine of Rs. 19, 00, 000 and clear the goods into the town. Counsel submits that this shows that the appellant is entitled to use the imported material for the production of SMX. This contention is devoid of merit and is fit to be rejected on the face of it. The appellant may have been allowed to clear the goods on payment of a fine in lieu of confiscation, but that does not mean that the appellant would be entitled to use the goods for the manufacture of SMX in violation of the industrial licence. The appellant may sell the goods to some other person but, surely, it cannot use it in its factory for the manufacture of SMX. 29. The other contention of the appellant is that as the capacity of the appellant to manufacture SMX has been raised from 18 tonnes to 45 tonnes per annum, there is not sense is confiscating the imported goods. This contention is equally devoid of merit. It may be that the manufacturing capacity of the appellant has been increased, but there is nothing to show that the Central Government has permitted the appellant to manufacture SMX with imported isoxamine. The appellant may go on manufacturing SMX from indigenous materials and the manufacturing capacity of the appellant may have been increased from 18 tonnes to 45 tonnes for the manufacture of SMX from indigenous materials, but these facts are quite irrelevant and have no bearing on the question with which we are concerned. The contention is rejected. No other points have been urged on behalf of the appellant. | 0[ds]16. It is not disputed that the industrial licence granted to the appellant clearly stipulated that after the expiry of two years the appellant would not be entitled to manufacture SMX with the imported material, isoxamine. Such manufacture of SMX could be made by the appellant from indigenous materials. It has been strenuously urged by Mr. Anil Divan, learned counsel appearing on behalf of the appellant, that the goods, namely, isoxamine, having been imported under a valid Open General Licence (OGL), the customs authorities have no jurisdiction to confiscate the same. It is submitted that the only thing that can be looked into by the Customs authorities is whether the particular goods have been imported under a valid licence or not. As soon it is found that it has been so imported under a valid licence, the customs authorities will have no other alternative than to clear the goods17. We are unable to accept this contention of the appellant. It is true that the goods have been imported under OGL. If that had been the only condition for clearance of the goods then, of course, the customs authorities could not confiscate the goods. But, that was not the only condition to be fulfilled by the appellant. Another condition that has to be fulfilled by the appellant is that contained in paragraph (6) of Appendix 10 of the Import Policy 1978-79 which is as) All Actual Users, at the time of clearance of goods shall furnish to the customs authorities a declaration giving particulars of their registration as an Actual User with the concerned authorities and affirming that such registration has not been cancelled or with drawn or otherwise made inoperative. In case, where separate registration number is not allotted by the sponsoring authority concerned, the importers shall produced other evidence to the satisfaction of the customs authorities that they are registered as industrial Actual Users (non-Industrial) shall, at the time of clearance of the goods furnish to the customs authorities the original or a photostat copy of the (currently valid) Registration Certificate held by them under the Shops and Establishments Act, Cinematographic Act, or concerned local statute."18. Thus, under paragraph (6), the Actual User has to furnish a declaration affirming that the registration as an Actual User has not been cancelled or withdrawn or otherwise made inoperative. If there be no separate registration number, as in the case of the appellant, importers shall produce evidence to the satisfaction of the customs authorities that they are registered as industrial units. The appellant has, admittedly, been registered as an industrial unit which is evidenced by the grant of the industrial licence. As stated already, the appellant furnished a declaration that its registration had not been cancelled or withdrawn or otherwise made inoperative. The appellant also claimed that it was an Actual User. It is urged on behalf of the appellant that as soon as it is proved that it is an Actual User, and that its registration has not been cancelled, the declaration that has been furnished by the appellant must be held to be a correct one and the customs authorities had rightly allowed the appellant to clear the goods19. Clauses (1) and (3) of paragraph 5 of Chapter 2 of Import Policy 1978-79 "Actual User" and "Actual User (Industrial) "respectively, as follows"(1) "Actual User" means a person who applies for/secures a licence for the import of any item or an allotment of a canalised item required for his own use, and not for business or trade in it. Thus, in the case of an industrial undertaking, the item concerned shall be utilised for the manufacturing processes or operations conducted within its authorised premises (or made available to jobbing units outside only as part of such production effort). In the non-industrial category, such as hospitals, research and development or any other institutions, commercial establishments and individuals, the concerned item shall be utilised for its/his own use i.e. for the purpose for which the item was sought for import(3) "Actual User (Industrial)" shall mean an industrial undertaking, be it in the large scale, small scale or cottage industries sector, engaged in the manufacture of any goods for which it holds a licence or Registration Certificate from the appropriate government authority, wherever applicable."24. We may first consider whether the Collector of Customs had exceeded his jurisdiction in confiscating the goods and imposing penalty for the first time in exercise of his revisional jurisdiction under Section 130(2) of the Act. In view of the provisions of Section 122 read with Section 124 of the Act, the Collector of Customs has the jurisdiction to confiscate goods or impose penalty after issuing show cause notice on the person concerned. He has, therefore, both the original jurisdiction as also revisional jurisdiction. In exercise of his revisional jurisdiction under Section 130(2) of the Act, he set aside the order of the Customs Officer allowing the goods to be cleared by the appellant and, thereafter, in exercise of his original jurisdiction under Section 122 read with Section 124 of the Act, he issued a show cause notice on the appellant and, after hearing the appellant, confiscated the goods and imposed penalty on the appellant. It, however, appears from the impugned order dated November 14, 1979 that the confiscation was made and the penalties imposed by the Collector of Customs in exercise of his revisional power under Section 130(2) of the Act. This, in our opinion, is a mere irregularity not affecting the order. Admittedly, the Collector of Customs had the power to confiscate the goods and impose penalty under Section 122 read with Section 124 of the Act. When an authority has the power to do a certain act and in exercise of such power he does the same, but refers to a wrong provision of the law, that would be a mere irregularity and would not vitiate such act. In the instant case also, the Collector of Customs had admittedly the power to confiscate goods and impose penalty and even though in the impugned order it is stated that the confiscation of the goods was made and the penalty was imposed in the exercise of his power under Section 130(2) of the Act, that would not be fatal and vitiate the order25. The decision of the Delhi High Court in Addl. CIT v. J. K. DCosta ((1982) 133 ITR 7 (Del HC)), strongly relied upon by the appellant, does not apply to the facts and circumstances of the instant case. In that case, the Addl. Commissioner of Income Tax came to the conclusion, inter alia, that the failure of the Income Tax Officer to initiate penalty proceedings for both the assessment years, namely, 1964-65 and 1965-66 under Section 271(1)(a) and for the assessment year 1965-66 under Section 273(b) ofthe Income Tax Act, 1961, was erroneous and prejudicial to the interest of the revenue. In that view of the matter, he passed orders setting aside the assessment orders and directed the Income Tax Officer to make fresh assessments in accordance with law. It has been observed by the Delhi High Court that there is no identity between the assessment proceedings and the penalty proceedings; the latter are separate proceedings, that may, in some cases, follow as a consequence of the assessment proceeding. Further, it has been observed that the penalty proceedings do not form part of the assessment proceedings and that the failure of the Income Tax Officer to record in the assessment order, his satisfaction or the lack of it in regard to the leviability of penalty cannot be said to be a factor vitiating the assessment order in any respect. In that case, as the Income Tax Officer did not impose a penalty, the Additional Commissioner set aside the assessment order. The omission to initiate penalty proceedings by the Income Tax Officer will not vitiate an assessment order which is otherwise valid and it has been rightly observed by the Delhi High Court that the Additional Commissioner was not justified in setting aside the assessment order on that ground26. In the instant case, the facts are completely different. The Collector of Customs set aside the order of the Customs Officer allowing the appellant to clear the goods on a false declaration and also confiscated the goods and imposed penalty. The Collector of Customs had, as noticed above, the power to confiscate the goods and impose penalty and he did the same after issuing a show cause notice and hearing the appellant. In DCosta case ((1982) 133 ITR 7 (Del HC)) the Additional Commissioner of Income Tax had no power to initiate penalty proceedings under Section 271(1)(a) or Section 273(b) ofthe Income Tax Act, 1961. Be that as it may, that decision has no manner of application to the facts and circumstances of the instant case27. The appellant has complained that as the goods have been confiscated and the penalty has been imposed by the Collector of Customs in exercise of his revisional jurisdiction, the appellant has been deprived of his right to prefer an appeal before the Central Board of Excise and Customs under Section 128(a) of the Act. When the Collector of Customs could confiscate the goods and impose penalties only in exercise of his original jurisdiction under Section 122 read with Section 124 of the Act, surely, the appellant had a right of appeal against such confiscation and imposition of penalty. At this stage, we may notice a very significant fact that the impugned order of the Collector dated November 14, 1979, it has been specifically stated at the very outset that an appeal against the order lies to the Central Board of Excise and Customs, New Delhi, within three months from the date of its dispatch. It cannot, therefore, be said that the appellant was misled, as the order was purported to have been passed by the Collector of Customs in exercise of his revisional jurisdiction. The appellant, however, did not avail itself of its right of appeal under Section 128(1)(a) of the Act and, accordingly, its complaint in that regard is not justified28. Before we part with this appeal, we may dispose of two other minor contentions of the appellant. Counsel for the appellant submits that as the appellant has been found not entitled to use the imported material in the production of SMX, it is curious that by the impugned order the appellant has been given an option to pay in lieu of the confiscation of the imported materials a fine of Rs. 19, 00, 000 and clear the goods into the town. Counsel submits that this shows that the appellant is entitled to use the imported material for the production of SMX. This contention is devoid of merit and is fit to be rejected on the face of it. The appellant may have been allowed to clear the goods on payment of a fine in lieu of confiscation, but that does not mean that the appellant would be entitled to use the goods for the manufacture of SMX in violation of the industrial licence. The appellant may sell the goods to some other person but, surely, it cannot use it in its factory for the manufacture of SMX29. The other contention of the appellant is that as the capacity of the appellant to manufacture SMX has been raised from 18 tonnes to 45 tonnes per annum, there is not sense is confiscating the imported goods. This contention is equally devoid of merit. It may be that the manufacturing capacity of the appellant has been increased, but there is nothing to show that the Central Government has permitted the appellant to manufacture SMX with imported isoxamine. The appellant may go on manufacturing SMX from indigenous materials and the manufacturing capacity of the appellant may have been increased from 18 tonnes to 45 tonnes for the manufacture of SMX from indigenous materials, but these facts are quite irrelevant and have no bearing on the question with which we are concerned. The contention is rejected. No other points have been urged on behalf of the appellant | 0 | 5,308 | 2,277 | ### 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 penalty was imposed in the exercise of his power under Section 130(2) of the Act, that would not be fatal and vitiate the order. 25. The decision of the Delhi High Court in Addl. CIT v. J. K. DCosta ((1982) 133 ITR 7 (Del HC)), strongly relied upon by the appellant, does not apply to the facts and circumstances of the instant case. In that case, the Addl. Commissioner of Income Tax came to the conclusion, inter alia, that the failure of the Income Tax Officer to initiate penalty proceedings for both the assessment years, namely, 1964-65 and 1965-66 under Section 271(1)(a) and for the assessment year 1965-66 under Section 273(b) of the Income Tax Act, 1961, was erroneous and prejudicial to the interest of the revenue. In that view of the matter, he passed orders setting aside the assessment orders and directed the Income Tax Officer to make fresh assessments in accordance with law. It has been observed by the Delhi High Court that there is no identity between the assessment proceedings and the penalty proceedings; the latter are separate proceedings, that may, in some cases, follow as a consequence of the assessment proceeding. Further, it has been observed that the penalty proceedings do not form part of the assessment proceedings and that the failure of the Income Tax Officer to record in the assessment order, his satisfaction or the lack of it in regard to the leviability of penalty cannot be said to be a factor vitiating the assessment order in any respect. In that case, as the Income Tax Officer did not impose a penalty, the Additional Commissioner set aside the assessment order. The omission to initiate penalty proceedings by the Income Tax Officer will not vitiate an assessment order which is otherwise valid and it has been rightly observed by the Delhi High Court that the Additional Commissioner was not justified in setting aside the assessment order on that ground. 26. In the instant case, the facts are completely different. The Collector of Customs set aside the order of the Customs Officer allowing the appellant to clear the goods on a false declaration and also confiscated the goods and imposed penalty. The Collector of Customs had, as noticed above, the power to confiscate the goods and impose penalty and he did the same after issuing a show cause notice and hearing the appellant. In DCosta case ((1982) 133 ITR 7 (Del HC)) the Additional Commissioner of Income Tax had no power to initiate penalty proceedings under Section 271(1)(a) or Section 273(b) of the Income Tax Act, 1961. Be that as it may, that decision has no manner of application to the facts and circumstances of the instant case. 27. The appellant has complained that as the goods have been confiscated and the penalty has been imposed by the Collector of Customs in exercise of his revisional jurisdiction, the appellant has been deprived of his right to prefer an appeal before the Central Board of Excise and Customs under Section 128(a) of the Act. When the Collector of Customs could confiscate the goods and impose penalties only in exercise of his original jurisdiction under Section 122 read with Section 124 of the Act, surely, the appellant had a right of appeal against such confiscation and imposition of penalty. At this stage, we may notice a very significant fact that the impugned order of the Collector dated November 14, 1979, it has been specifically stated at the very outset that an appeal against the order lies to the Central Board of Excise and Customs, New Delhi, within three months from the date of its dispatch. It cannot, therefore, be said that the appellant was misled, as the order was purported to have been passed by the Collector of Customs in exercise of his revisional jurisdiction. The appellant, however, did not avail itself of its right of appeal under Section 128(1)(a) of the Act and, accordingly, its complaint in that regard is not justified. 28. Before we part with this appeal, we may dispose of two other minor contentions of the appellant. Counsel for the appellant submits that as the appellant has been found not entitled to use the imported material in the production of SMX, it is curious that by the impugned order the appellant has been given an option to pay in lieu of the confiscation of the imported materials a fine of Rs. 19, 00, 000 and clear the goods into the town. Counsel submits that this shows that the appellant is entitled to use the imported material for the production of SMX. This contention is devoid of merit and is fit to be rejected on the face of it. The appellant may have been allowed to clear the goods on payment of a fine in lieu of confiscation, but that does not mean that the appellant would be entitled to use the goods for the manufacture of SMX in violation of the industrial licence. The appellant may sell the goods to some other person but, surely, it cannot use it in its factory for the manufacture of SMX. 29. The other contention of the appellant is that as the capacity of the appellant to manufacture SMX has been raised from 18 tonnes to 45 tonnes per annum, there is not sense is confiscating the imported goods. This contention is equally devoid of merit. It may be that the manufacturing capacity of the appellant has been increased, but there is nothing to show that the Central Government has permitted the appellant to manufacture SMX with imported isoxamine. The appellant may go on manufacturing SMX from indigenous materials and the manufacturing capacity of the appellant may have been increased from 18 tonnes to 45 tonnes for the manufacture of SMX from indigenous materials, but these facts are quite irrelevant and have no bearing on the question with which we are concerned. The contention is rejected. No other points have been urged on behalf of the appellant.
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the goods was made and the penalty was imposed in the exercise of his power under Section 130(2) of the Act, that would not be fatal and vitiate the order25. The decision of the Delhi High Court in Addl. CIT v. J. K. DCosta ((1982) 133 ITR 7 (Del HC)), strongly relied upon by the appellant, does not apply to the facts and circumstances of the instant case. In that case, the Addl. Commissioner of Income Tax came to the conclusion, inter alia, that the failure of the Income Tax Officer to initiate penalty proceedings for both the assessment years, namely, 1964-65 and 1965-66 under Section 271(1)(a) and for the assessment year 1965-66 under Section 273(b) ofthe Income Tax Act, 1961, was erroneous and prejudicial to the interest of the revenue. In that view of the matter, he passed orders setting aside the assessment orders and directed the Income Tax Officer to make fresh assessments in accordance with law. It has been observed by the Delhi High Court that there is no identity between the assessment proceedings and the penalty proceedings; the latter are separate proceedings, that may, in some cases, follow as a consequence of the assessment proceeding. Further, it has been observed that the penalty proceedings do not form part of the assessment proceedings and that the failure of the Income Tax Officer to record in the assessment order, his satisfaction or the lack of it in regard to the leviability of penalty cannot be said to be a factor vitiating the assessment order in any respect. In that case, as the Income Tax Officer did not impose a penalty, the Additional Commissioner set aside the assessment order. The omission to initiate penalty proceedings by the Income Tax Officer will not vitiate an assessment order which is otherwise valid and it has been rightly observed by the Delhi High Court that the Additional Commissioner was not justified in setting aside the assessment order on that ground26. In the instant case, the facts are completely different. The Collector of Customs set aside the order of the Customs Officer allowing the appellant to clear the goods on a false declaration and also confiscated the goods and imposed penalty. The Collector of Customs had, as noticed above, the power to confiscate the goods and impose penalty and he did the same after issuing a show cause notice and hearing the appellant. In DCosta case ((1982) 133 ITR 7 (Del HC)) the Additional Commissioner of Income Tax had no power to initiate penalty proceedings under Section 271(1)(a) or Section 273(b) ofthe Income Tax Act, 1961. Be that as it may, that decision has no manner of application to the facts and circumstances of the instant case27. The appellant has complained that as the goods have been confiscated and the penalty has been imposed by the Collector of Customs in exercise of his revisional jurisdiction, the appellant has been deprived of his right to prefer an appeal before the Central Board of Excise and Customs under Section 128(a) of the Act. When the Collector of Customs could confiscate the goods and impose penalties only in exercise of his original jurisdiction under Section 122 read with Section 124 of the Act, surely, the appellant had a right of appeal against such confiscation and imposition of penalty. At this stage, we may notice a very significant fact that the impugned order of the Collector dated November 14, 1979, it has been specifically stated at the very outset that an appeal against the order lies to the Central Board of Excise and Customs, New Delhi, within three months from the date of its dispatch. It cannot, therefore, be said that the appellant was misled, as the order was purported to have been passed by the Collector of Customs in exercise of his revisional jurisdiction. The appellant, however, did not avail itself of its right of appeal under Section 128(1)(a) of the Act and, accordingly, its complaint in that regard is not justified28. Before we part with this appeal, we may dispose of two other minor contentions of the appellant. Counsel for the appellant submits that as the appellant has been found not entitled to use the imported material in the production of SMX, it is curious that by the impugned order the appellant has been given an option to pay in lieu of the confiscation of the imported materials a fine of Rs. 19, 00, 000 and clear the goods into the town. Counsel submits that this shows that the appellant is entitled to use the imported material for the production of SMX. This contention is devoid of merit and is fit to be rejected on the face of it. The appellant may have been allowed to clear the goods on payment of a fine in lieu of confiscation, but that does not mean that the appellant would be entitled to use the goods for the manufacture of SMX in violation of the industrial licence. The appellant may sell the goods to some other person but, surely, it cannot use it in its factory for the manufacture of SMX29. The other contention of the appellant is that as the capacity of the appellant to manufacture SMX has been raised from 18 tonnes to 45 tonnes per annum, there is not sense is confiscating the imported goods. This contention is equally devoid of merit. It may be that the manufacturing capacity of the appellant has been increased, but there is nothing to show that the Central Government has permitted the appellant to manufacture SMX with imported isoxamine. The appellant may go on manufacturing SMX from indigenous materials and the manufacturing capacity of the appellant may have been increased from 18 tonnes to 45 tonnes for the manufacture of SMX from indigenous materials, but these facts are quite irrelevant and have no bearing on the question with which we are concerned. The contention is rejected. No other points have been urged on behalf of the appellant
|
Manager, National Insurance Co.Ltd Vs. Saju P.Paul | observed as under: 13. The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the Executing Court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the Regional Transport Authority concerned. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case, considering the quantum involved, we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured. 22. In National Insurance Company Limited v. Kaushalaya Devi and Others, I (2009) ACC 52 (SC)=(2008) 8 SCC 246. In paragraph 15 of the Report (pg. 250), the Court observed as follows: 15. For the reasons aforementioned, civil appeal arising out of SLP (C) No. 10694 is allowed and civil appeal arising out of SLP (C) No. 9910 of 2006 is dismissed. If the amount deposited by the Insurance Company has since been withdrawn by the first respondent, it would be open to the Insurance Company to recover the same in the manner specified by the High Court. But if the same has not been withdrawn the deposited amount may be refunded to the Insurance Company and the proceedings for realisation of the amount may be initiated against the owner of the vehicle. In the facts and circumstances of the case, however, there shall be no order as to costs. 23. We are informed that by an order dated 19.1.2007 in National Insurance Co. v. Roshan Lal and Another, SLP (C) No. 5699/2006 in light of the argument raised before a two-Judge Bench that the direction ought not to be issued to the insurance company to discharge the liability under the award first and then recover the same from the owner, the matter has been referred to the larger Bench by the following order: Having regard to the submissions urged before us, we are of the view that this petition may be placed for consideration before a Larger Bench. We notice that in some of the decisions such a direction was made in cases where the compensation had already been paid by the insurer, but there are observations therein which support the view that such a direction can be made in all cases where the owner has insured his vehicle against third party risks. In Baljit Kaurs case (supra) which is a judgment rendered by three Honble Judges, such a direction was made in the special circumstances noticed by the Court in paragraph 21 of the report. There are observations in Oriental Insurance Co. Ltd. v. Ranjit Saikia and Ors., (2002) 9 SCC 390 which may support the contention of the petitioners before us. 24. In National Insurance Company Ltd. v. Parvathneni & Another, SLP(C)….CC No. 10993 of 2009, the following two questions have been referred to the larger Bench for consideration: (1) If an Insurance Company can prove that it does not have any liability to pay any amount in law to the claimants under the Motor Vehicles Act or any other enactment, can the Court yet compel it to pay the amount in question giving it liberty to later on recover the same from the owner of the vehicle. (2) Can such a direction be given under Article 142 of the Constitution, and what is the scope of Article 142? Does Article 142 permit the Court to create a liability where there is none? 25. The pendency of consideration of the above questions by a Larger Bench does not mean that the course that was followed in Baljit Kaur (supra) and Challa Bharathamma (supra) should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The insurance company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1.8.2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent No. 1) may be allowed to withdraw the amount deposited by the insurance company before this Court along with accrued interest. The insurance company (appellant) thereafter may recover the amount so paid from the owner (Respondent No. 2 herein). The recovery of the amount by the insurance company from the owner shall be made by following the procedure as laid down by this Court in the case of Challa Bharathamma (supra). | 1[ds]16. In the present case, Section 147 as originally existed in 1988 Act is applicable and, accordingly, the judgment of this Court in Asha Rani (supra) is fully attracted. The High Court was clearly in error in reviewing its judgment and order delivered on 9.11.2010 in review petition filed by the claimant by applying Section 147(1)(b)(i). The High Court committed grave error in holding that Section 147(1)(b)(i) takes within its fold any liability which may be incurred by the insurer in respect of the death or bodily injury to any person. The High Court also erred in holding that the claimant was travelling in the vehicle in the course of his employment since he was a spare driver in the vehicle although he was not driving the vehicle at the relevant time but he was directed to go to the worksite by his employer. The High Court erroneously assumed that the claimant died in the course of employment and overlooked the fact that the claimant was not in any manner engaged on the vehicle that met with an accident but he was employed as a driver in another vehicle owned by M/s. P.L. Construction Company. The insured (owner of the vehicle) got insurance cover in respect of the subject goods vehicle for driver and cleaner only and not for any other employee. There is no insurance cover for the spare driver in the policy. As a matter of law, the claimant did not cease to be a gratuitous passenger though he claimed that he was a spare driver. The insured had paid premium for one driver and one cleaner and, therefore, second driver or for that purpose spare driver was not covered under the policy17. The High Court misconstrued the proviso following Sub-section (1) of Section 147 of the 1988 Act. What is contemplated by proviso to Section 147(1) is that the policy shall not be required to cover liability in respect of death or bodily injury sustained by an employee arising out of and in the course of his employment other than a liability arising under the Workmens Compensation Act, 1923. The claimant was admittedly not driving the vehicle nor he was engaged in driving the said vehicle. Merely because he was travelling in a cabin would not make his case different from any other gratuitous passenger18. The impugned judgment is founded on misconstruction of Section 147. The High Court was wrong in holding that the insurance company shall be liable to indemnify the owner of the vehicle and pay the compensation to the claimant as directed in the award by the Tribunal25. The pendency of consideration of the above questions by a Larger Bench does not mean that the course that was followed in Baljit Kaur (supra) and Challa Bharathamma (supra) should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The insurance company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1.8.2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent No. 1) may be allowed to withdraw the amount deposited by the insurance company before this Court along with accrued interest. The insurance company (appellant) thereafter may recover the amount so paid from the owner (Respondent No. 2 herein). The recovery of the amount by the insurance company from the owner shall be made by following the procedure as laid down by this Court in the case of Challa Bharathamma (supra). | 1 | 6,344 | 756 | ### 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:
observed as under: 13. The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the Executing Court concerned as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the Regional Transport Authority concerned. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realisation by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case, considering the quantum involved, we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured. 22. In National Insurance Company Limited v. Kaushalaya Devi and Others, I (2009) ACC 52 (SC)=(2008) 8 SCC 246. In paragraph 15 of the Report (pg. 250), the Court observed as follows: 15. For the reasons aforementioned, civil appeal arising out of SLP (C) No. 10694 is allowed and civil appeal arising out of SLP (C) No. 9910 of 2006 is dismissed. If the amount deposited by the Insurance Company has since been withdrawn by the first respondent, it would be open to the Insurance Company to recover the same in the manner specified by the High Court. But if the same has not been withdrawn the deposited amount may be refunded to the Insurance Company and the proceedings for realisation of the amount may be initiated against the owner of the vehicle. In the facts and circumstances of the case, however, there shall be no order as to costs. 23. We are informed that by an order dated 19.1.2007 in National Insurance Co. v. Roshan Lal and Another, SLP (C) No. 5699/2006 in light of the argument raised before a two-Judge Bench that the direction ought not to be issued to the insurance company to discharge the liability under the award first and then recover the same from the owner, the matter has been referred to the larger Bench by the following order: Having regard to the submissions urged before us, we are of the view that this petition may be placed for consideration before a Larger Bench. We notice that in some of the decisions such a direction was made in cases where the compensation had already been paid by the insurer, but there are observations therein which support the view that such a direction can be made in all cases where the owner has insured his vehicle against third party risks. In Baljit Kaurs case (supra) which is a judgment rendered by three Honble Judges, such a direction was made in the special circumstances noticed by the Court in paragraph 21 of the report. There are observations in Oriental Insurance Co. Ltd. v. Ranjit Saikia and Ors., (2002) 9 SCC 390 which may support the contention of the petitioners before us. 24. In National Insurance Company Ltd. v. Parvathneni & Another, SLP(C)….CC No. 10993 of 2009, the following two questions have been referred to the larger Bench for consideration: (1) If an Insurance Company can prove that it does not have any liability to pay any amount in law to the claimants under the Motor Vehicles Act or any other enactment, can the Court yet compel it to pay the amount in question giving it liberty to later on recover the same from the owner of the vehicle. (2) Can such a direction be given under Article 142 of the Constitution, and what is the scope of Article 142? Does Article 142 permit the Court to create a liability where there is none? 25. The pendency of consideration of the above questions by a Larger Bench does not mean that the course that was followed in Baljit Kaur (supra) and Challa Bharathamma (supra) should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The insurance company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1.8.2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent No. 1) may be allowed to withdraw the amount deposited by the insurance company before this Court along with accrued interest. The insurance company (appellant) thereafter may recover the amount so paid from the owner (Respondent No. 2 herein). The recovery of the amount by the insurance company from the owner shall be made by following the procedure as laid down by this Court in the case of Challa Bharathamma (supra).
### Response:
1
### Explanation:
16. In the present case, Section 147 as originally existed in 1988 Act is applicable and, accordingly, the judgment of this Court in Asha Rani (supra) is fully attracted. The High Court was clearly in error in reviewing its judgment and order delivered on 9.11.2010 in review petition filed by the claimant by applying Section 147(1)(b)(i). The High Court committed grave error in holding that Section 147(1)(b)(i) takes within its fold any liability which may be incurred by the insurer in respect of the death or bodily injury to any person. The High Court also erred in holding that the claimant was travelling in the vehicle in the course of his employment since he was a spare driver in the vehicle although he was not driving the vehicle at the relevant time but he was directed to go to the worksite by his employer. The High Court erroneously assumed that the claimant died in the course of employment and overlooked the fact that the claimant was not in any manner engaged on the vehicle that met with an accident but he was employed as a driver in another vehicle owned by M/s. P.L. Construction Company. The insured (owner of the vehicle) got insurance cover in respect of the subject goods vehicle for driver and cleaner only and not for any other employee. There is no insurance cover for the spare driver in the policy. As a matter of law, the claimant did not cease to be a gratuitous passenger though he claimed that he was a spare driver. The insured had paid premium for one driver and one cleaner and, therefore, second driver or for that purpose spare driver was not covered under the policy17. The High Court misconstrued the proviso following Sub-section (1) of Section 147 of the 1988 Act. What is contemplated by proviso to Section 147(1) is that the policy shall not be required to cover liability in respect of death or bodily injury sustained by an employee arising out of and in the course of his employment other than a liability arising under the Workmens Compensation Act, 1923. The claimant was admittedly not driving the vehicle nor he was engaged in driving the said vehicle. Merely because he was travelling in a cabin would not make his case different from any other gratuitous passenger18. The impugned judgment is founded on misconstruction of Section 147. The High Court was wrong in holding that the insurance company shall be liable to indemnify the owner of the vehicle and pay the compensation to the claimant as directed in the award by the Tribunal25. The pendency of consideration of the above questions by a Larger Bench does not mean that the course that was followed in Baljit Kaur (supra) and Challa Bharathamma (supra) should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The insurance company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1.8.2011 and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent No. 1) may be allowed to withdraw the amount deposited by the insurance company before this Court along with accrued interest. The insurance company (appellant) thereafter may recover the amount so paid from the owner (Respondent No. 2 herein). The recovery of the amount by the insurance company from the owner shall be made by following the procedure as laid down by this Court in the case of Challa Bharathamma (supra).
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Desmond Anthony D'Souza Vs. Sbi Mutual Fund | management activities.10. As regards the decision to merge the One India Fund with the Magnum Equity Fund, it has been stated that this was intended to improve the performance of the scheme which was below expectation. The Magnum Equity Fund is a large cap diversified equity fund and considering the growth potential and the capacity of the fund to deliver consistent long term performance, it has been stated that the merger would be in the interests of investors. The allotment of units was to take place on the basis of the NAV on 10 August 2012 which is the date of merger. The units allotted in the Magnum Equity Fund were based on an amount equal to the value of the units in the SBI One India Fund, on the date of merger. Investors holding units in the growth option were allotted units in the growth option in the transferee fund. Similarly, investors holding units in the dividend option were allotted units of the dividend option in the transferee fund. The swap ratio has been computed as the proportion between the NAV of the SBI One India Fund Scheme and the NAV of the SBI Magnum Equity Fund as of 10 August 2012. The NAV of the SBI One India Fund on the date of merger was Rs.10.43. The NAV of the SBI Magnum Equity Fund (Growth Option) on the date of merger was Rs.42.97 resulting in a swap ratio of 0.243 units. The NAV of the dividend option in the SBI Magnum Equity Fund on the date of merger was Rs.28.87 resulting in a swap ratio of 0.361 units.11. We have carefully considered the disclosures which have been made on affidavit both by SEBI and by the First Respondent. We have made a reference to those disclosures in a considerable degree of detail since the Petitioner, who appears in person, has articulated his line of enquiry in these proceedings bona fide and with a considerable amount of painstaking research. The issue raised related to the well being of investors and accountability towards their needs and concerns. Regulatory mechanisms must provide for accountability, responsiveness and transparency. SEBI has put into place Regulations which regulate the activities of mutual funds. The Regulations contain specific provisions that are designed to ensure that trustees and AMCs conduct their activities in a manner which would not be detrimental to and would protect the interests of investors. In the present case, there is nothing on the record whatsoever that would lead to the inference that there was lapse on the part of SEBI in ensuring that its regulatory regime is duly complied with. In so far as the First Respondent is concerned, it is evident that the One India Fund Scheme was an open ended diversified scheme. By its very nature, a Mutual Fund scheme whose object is the investment of funds in the equity market is subject to market risks that are associated with equity investments. The highlights of the scheme as disclosed in the scheme information document in fact indicated that between 70 to 100% of the net assets would be in the form of equity and equity related investments including derivatives with a high risk profile. The table which has been extracted earlier would indicate that the NAV of the One India Fund Scheme varied between Rs.5.47 on 31 March 2009 and Rs.10.84 on 31 March 2011. The returns of an investor would, therefore, of necessity depend upon the timing of the investment. For instance, investors when the NAV had fallen to a level as low as Rs.5.47 on 31 March 2009would stand to sustain a fair rate of appreciation of the investment as compared to investors who invested at the relatively higher NAV of Rs.10.84 on 31 March 2011.12. On this state of the record, it would not be appropriate for this Court to issue directions of the nature that are sought in these proceedings. The scheme for the merger of the One India Fund with the Magnum Equity Fund has received the approval of SEBI. The approval which has been granted by SEBI is not demonstrated to be based on extraneous considerations or without due application of mind to the relevant statutory requirements. A meeting of all the investors of the One India Fund Scheme is not mandated. The decision has been explained to be in the interests of depositors. In any event, consistent with the regulations any investor who did not desire the conversion of his investment to the Magnum Equity Fund was at liberty to exit from the scheme on the prevailing NAV without an exit load. In these circumstances, we find no reason or justification to order an independent outside audit. The requirements of audit are already in place under the regulations which have been made by SEBI. Finally, it will not be permissible for the Court to direct that the investment made by the Petitioner in the amount of Rs.2 lakhs should be returned with interest as payable on a fixed deposit of a nationalized bank. Fixed deposits of nationalized banks do not bear the risks associated with an investment in an equity based mutual fund scheme. But that is the very reason why the returns on fixed deposits, though stable, offer a much lower return than what an equity based mutual fund investment may provide. An investor in an equity based mutual fund scheme is conscious of the fact that the returns are liable to vary and that in a given case where the market has underperformed, as during the period here, returns may not be forthcoming. We, therefore, do not consider that the prayer for relief would be maintainable.13. In the view which we have taken, it is not necessary to render a conclusive finding on whether the First Respondent is state for the purposes of Article 12.14. For these reasons and having considered the matter in all its perspectives, we do not find any case for interference under Article 226 of the Constitution. | 0[ds]11. We have carefully considered the disclosures which have been made on affidavit both by SEBI and by the First Respondent. We have made a reference to those disclosures in a considerable degree of detail since the Petitioner, who appears in person, has articulated his line of enquiry in these proceedings bona fide and with a considerable amount of painstaking research. The issue raised related to the well being of investors and accountability towards their needs and concerns. Regulatory mechanisms must provide for accountability, responsiveness and transparency. SEBI has put into place Regulations which regulate the activities of mutual funds. The Regulations contain specific provisions that are designed to ensure that trustees and AMCs conduct their activities in a manner which would not be detrimental to and would protect the interests of investors. In the present case, there is nothing on the record whatsoever that would lead to the inference that there was lapse on the part of SEBI in ensuring that its regulatory regime is duly complied with. In so far as the First Respondent is concerned, it is evident that the One India Fund Scheme was an open ended diversified scheme. By its very nature, a Mutual Fund scheme whose object is the investment of funds in the equity market is subject to market risks that are associated with equity investments. The highlights of the scheme as disclosed in the scheme information document in fact indicated that between 70 to 100% of the net assets would be in the form of equity and equity related investments including derivatives with a high risk profile. The table which has been extracted earlier would indicate that the NAV of the One India Fund Scheme varied between Rs.5.47 on 31 March 2009 and Rs.10.84 on 31 March 2011. The returns of an investor would, therefore, of necessity depend upon the timing of the investment. For instance, investors when the NAV had fallen to a level as low as Rs.5.47 on 31 March 2009would stand to sustain a fair rate of appreciation of the investment as compared to investors who invested at the relatively higher NAV of Rs.10.84 on 31 March 2011.12. On this state of the record, it would not be appropriate for this Court to issue directions of the nature that are sought in these proceedings. The scheme for the merger of the One India Fund with the Magnum Equity Fund has received the approval of SEBI. The approval which has been granted by SEBI is not demonstrated to be based on extraneous considerations or without due application of mind to the relevant statutory requirements. A meeting of all the investors of the One India Fund Scheme is not mandated. The decision has been explained to be in the interests of depositors. In any event, consistent with the regulations any investor who did not desire the conversion of his investment to the Magnum Equity Fund was at liberty to exit from the scheme on the prevailing NAV without an exit load. In these circumstances, we find no reason or justification to order an independent outside audit. The requirements of audit are already in place under the regulations which have been made by SEBI. Finally, it will not be permissible for the Court to direct that the investment made by the Petitioner in the amount of Rs.2 lakhs should be returned with interest as payable on a fixed deposit of a nationalized bank. Fixed deposits of nationalized banks do not bear the risks associated with an investment in an equity based mutual fund scheme. But that is the very reason why the returns on fixed deposits, though stable, offer a much lower return than what an equity based mutual fund investment may provide. An investor in an equity based mutual fund scheme is conscious of the fact that the returns are liable to vary and that in a given case where the market has underperformed, as during the period here, returns may not be forthcoming. We, therefore, do not consider that the prayer for relief would be maintainable.13. In the view which we have taken, it is not necessary to render a conclusive finding on whether the First Respondent is state for the purposes of Article 12.14. For these reasons and having considered the matter in all its perspectives, we do not find any case for interference under Article 226 of the Constitution. | 0 | 3,738 | 786 | ### 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:
management activities.10. As regards the decision to merge the One India Fund with the Magnum Equity Fund, it has been stated that this was intended to improve the performance of the scheme which was below expectation. The Magnum Equity Fund is a large cap diversified equity fund and considering the growth potential and the capacity of the fund to deliver consistent long term performance, it has been stated that the merger would be in the interests of investors. The allotment of units was to take place on the basis of the NAV on 10 August 2012 which is the date of merger. The units allotted in the Magnum Equity Fund were based on an amount equal to the value of the units in the SBI One India Fund, on the date of merger. Investors holding units in the growth option were allotted units in the growth option in the transferee fund. Similarly, investors holding units in the dividend option were allotted units of the dividend option in the transferee fund. The swap ratio has been computed as the proportion between the NAV of the SBI One India Fund Scheme and the NAV of the SBI Magnum Equity Fund as of 10 August 2012. The NAV of the SBI One India Fund on the date of merger was Rs.10.43. The NAV of the SBI Magnum Equity Fund (Growth Option) on the date of merger was Rs.42.97 resulting in a swap ratio of 0.243 units. The NAV of the dividend option in the SBI Magnum Equity Fund on the date of merger was Rs.28.87 resulting in a swap ratio of 0.361 units.11. We have carefully considered the disclosures which have been made on affidavit both by SEBI and by the First Respondent. We have made a reference to those disclosures in a considerable degree of detail since the Petitioner, who appears in person, has articulated his line of enquiry in these proceedings bona fide and with a considerable amount of painstaking research. The issue raised related to the well being of investors and accountability towards their needs and concerns. Regulatory mechanisms must provide for accountability, responsiveness and transparency. SEBI has put into place Regulations which regulate the activities of mutual funds. The Regulations contain specific provisions that are designed to ensure that trustees and AMCs conduct their activities in a manner which would not be detrimental to and would protect the interests of investors. In the present case, there is nothing on the record whatsoever that would lead to the inference that there was lapse on the part of SEBI in ensuring that its regulatory regime is duly complied with. In so far as the First Respondent is concerned, it is evident that the One India Fund Scheme was an open ended diversified scheme. By its very nature, a Mutual Fund scheme whose object is the investment of funds in the equity market is subject to market risks that are associated with equity investments. The highlights of the scheme as disclosed in the scheme information document in fact indicated that between 70 to 100% of the net assets would be in the form of equity and equity related investments including derivatives with a high risk profile. The table which has been extracted earlier would indicate that the NAV of the One India Fund Scheme varied between Rs.5.47 on 31 March 2009 and Rs.10.84 on 31 March 2011. The returns of an investor would, therefore, of necessity depend upon the timing of the investment. For instance, investors when the NAV had fallen to a level as low as Rs.5.47 on 31 March 2009would stand to sustain a fair rate of appreciation of the investment as compared to investors who invested at the relatively higher NAV of Rs.10.84 on 31 March 2011.12. On this state of the record, it would not be appropriate for this Court to issue directions of the nature that are sought in these proceedings. The scheme for the merger of the One India Fund with the Magnum Equity Fund has received the approval of SEBI. The approval which has been granted by SEBI is not demonstrated to be based on extraneous considerations or without due application of mind to the relevant statutory requirements. A meeting of all the investors of the One India Fund Scheme is not mandated. The decision has been explained to be in the interests of depositors. In any event, consistent with the regulations any investor who did not desire the conversion of his investment to the Magnum Equity Fund was at liberty to exit from the scheme on the prevailing NAV without an exit load. In these circumstances, we find no reason or justification to order an independent outside audit. The requirements of audit are already in place under the regulations which have been made by SEBI. Finally, it will not be permissible for the Court to direct that the investment made by the Petitioner in the amount of Rs.2 lakhs should be returned with interest as payable on a fixed deposit of a nationalized bank. Fixed deposits of nationalized banks do not bear the risks associated with an investment in an equity based mutual fund scheme. But that is the very reason why the returns on fixed deposits, though stable, offer a much lower return than what an equity based mutual fund investment may provide. An investor in an equity based mutual fund scheme is conscious of the fact that the returns are liable to vary and that in a given case where the market has underperformed, as during the period here, returns may not be forthcoming. We, therefore, do not consider that the prayer for relief would be maintainable.13. In the view which we have taken, it is not necessary to render a conclusive finding on whether the First Respondent is state for the purposes of Article 12.14. For these reasons and having considered the matter in all its perspectives, we do not find any case for interference under Article 226 of the Constitution.
### Response:
0
### Explanation:
11. We have carefully considered the disclosures which have been made on affidavit both by SEBI and by the First Respondent. We have made a reference to those disclosures in a considerable degree of detail since the Petitioner, who appears in person, has articulated his line of enquiry in these proceedings bona fide and with a considerable amount of painstaking research. The issue raised related to the well being of investors and accountability towards their needs and concerns. Regulatory mechanisms must provide for accountability, responsiveness and transparency. SEBI has put into place Regulations which regulate the activities of mutual funds. The Regulations contain specific provisions that are designed to ensure that trustees and AMCs conduct their activities in a manner which would not be detrimental to and would protect the interests of investors. In the present case, there is nothing on the record whatsoever that would lead to the inference that there was lapse on the part of SEBI in ensuring that its regulatory regime is duly complied with. In so far as the First Respondent is concerned, it is evident that the One India Fund Scheme was an open ended diversified scheme. By its very nature, a Mutual Fund scheme whose object is the investment of funds in the equity market is subject to market risks that are associated with equity investments. The highlights of the scheme as disclosed in the scheme information document in fact indicated that between 70 to 100% of the net assets would be in the form of equity and equity related investments including derivatives with a high risk profile. The table which has been extracted earlier would indicate that the NAV of the One India Fund Scheme varied between Rs.5.47 on 31 March 2009 and Rs.10.84 on 31 March 2011. The returns of an investor would, therefore, of necessity depend upon the timing of the investment. For instance, investors when the NAV had fallen to a level as low as Rs.5.47 on 31 March 2009would stand to sustain a fair rate of appreciation of the investment as compared to investors who invested at the relatively higher NAV of Rs.10.84 on 31 March 2011.12. On this state of the record, it would not be appropriate for this Court to issue directions of the nature that are sought in these proceedings. The scheme for the merger of the One India Fund with the Magnum Equity Fund has received the approval of SEBI. The approval which has been granted by SEBI is not demonstrated to be based on extraneous considerations or without due application of mind to the relevant statutory requirements. A meeting of all the investors of the One India Fund Scheme is not mandated. The decision has been explained to be in the interests of depositors. In any event, consistent with the regulations any investor who did not desire the conversion of his investment to the Magnum Equity Fund was at liberty to exit from the scheme on the prevailing NAV without an exit load. In these circumstances, we find no reason or justification to order an independent outside audit. The requirements of audit are already in place under the regulations which have been made by SEBI. Finally, it will not be permissible for the Court to direct that the investment made by the Petitioner in the amount of Rs.2 lakhs should be returned with interest as payable on a fixed deposit of a nationalized bank. Fixed deposits of nationalized banks do not bear the risks associated with an investment in an equity based mutual fund scheme. But that is the very reason why the returns on fixed deposits, though stable, offer a much lower return than what an equity based mutual fund investment may provide. An investor in an equity based mutual fund scheme is conscious of the fact that the returns are liable to vary and that in a given case where the market has underperformed, as during the period here, returns may not be forthcoming. We, therefore, do not consider that the prayer for relief would be maintainable.13. In the view which we have taken, it is not necessary to render a conclusive finding on whether the First Respondent is state for the purposes of Article 12.14. For these reasons and having considered the matter in all its perspectives, we do not find any case for interference under Article 226 of the Constitution.
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SMT. SANGITA ARYA & ORS Vs. ORIENTAL INSURANCE CO. LTD. & ORS | The Claimants submitted that the deceased owned two taxis from which he earned approximately Rs. 1,00,000 p.a. after deduction of all expenses. The road accident was proved by the oral testimony of the eye-witness Shri Govind Lal Arya (PW-2), who was accompanying the deceased, and had lodged the F.I.R. With respect to payment of compensation, the Claimants submitted that the deceased owned two taxis, which generated an income of Rs. 1,00,000 p.a. The R.T.O., Motor Vehicles Department, Haldwani produced certificates of both the vehicles bearing No. UP-02D-5111 and UP-04D-0111 before the MACT, which showed that the vehicles were purchased by the deceased Harish Singh Arya, and were registered in his name. The Claimants filed four Income Tax Returns (ITRs) of the deceased for the years 2002-03, 2003-04, 2004-05, and 2006-07. The ITR for the year 2006-07 was Rs. 98,500 p.a. A photocopy of the ITR bearing the stamp of receipt from the Income Tax Department, was placed on record. 4. The MACT vide Award dated 22.12.2009 held that on the date of the accident, the deceased was 35 years of age, and his income was Rs. 1,00,000 p.a. The deceased had left behind five dependents i.e. his wife, parents and two minor daughters. The MACT deducted 1/4 th of his income towards personal expenses, and adopted the multiplier of 16. Accordingly, the loss of dependency was computed at Rs. 12,20,000. The MACT further awarded Rs. 20,000 to the widow towards loss of consortium, Rs. 10,000 to the minor daughters towards loss of love and affection, and Rs. 5,000 towards funeral expenses. The total compensation awarded to the Claimants worked out to Rs. 12,55,000 with Interest @6% p.a. The Respondent No. 1 – Insurance Company was held liable for payment of compensation to the Claimants. 5. Aggrieved by the aforesaid Award, the Insurance Company filed Appeal from Order No. 117 of 2010 before the High Court of Uttarakhand at Nainital. The learned Single Judge of the High Court vide the impugned judgment dated 22.07.2016 erroneously assumed that the deceased was a Government servant, and observed that he was running a parallel business by plying taxis. There is no basis for finding that the deceased was a Government employee. We do not know as to on what basis the learned Single Judge has arrived at this factually incorrect conclusion, and made it the basis for awarding compensation. The High Court further held that the ITRs for the years 2002-03, 2003-04 and 2004-05 showed that the average income of the deceased for these three years was Rs. 52,635 p.a. The ITR for the year 2006-07 revealed an income of Rs. 98,500 p.a., which was almost double the income of the preceding three years. The High Court held that the ITR for the year 2006-07 could not be taken into consideration. The learned Single Judge further held that the income which may have been generated from the two taxis, could not be taken into consideration for determining the income of the deceased. Accordingly, the High Court took the average of the ITRs for years 2002-03, 2003-04 and 2004-05, for determining the income of the deceased at Rs. 52,635 p.a. The Court deducted 1/3 rd of the income towards personal expenses, and applied the multiplier of 16. The loss of dependency was assessed at Rs. 5,61,440. 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. The total compensation awarded to the Claimants was reduced from Rs. 12,55,000 to Rs. 5,81,440. 6. Aggrieved by the impugned judgment dated 22.07.2016 passed by the High Court, the Claimants have filed the present civil appeal. This Court while issuing notice to the Respondents on 23.10.2018, recorded the submission made on behalf of the Claimants that the deceased was not a Government employee. 7. We have heard the learned counsel for the parties and perused the material on record. We find that the impugned order passed by the High Court bristles with serious factual inaccuracies :– first, the learned Single Judge wrongly assumed that the deceased Harish Singh Arya was a Government employee. This has nowhere been averred by the Claimants in any of their pleadings. The entire basis of the judgment is hence misconceived. On the basis of the aforesaid erroneous assumption, the High Court has erroneously observed that the deceased was running a parallel business by plying two taxis, and held that the income derived from the same could not be taken into consideration for assessing the compensation. These findings being based on a completely erroneous assumption, are liable to be set aside. Second, the High Court determined the income of the deceased by taking the average of the ITRs filed for the years 2002-03 at Rs. 54,000 p.a., 2003-04 at Rs. 52,405 p.a., and 2004-05 at Rs. 51,500 p.a. The learned Single Judge disregarded the ITR for the year 2006-07, wherein the income of the deceased was shown as Rs. 98,500 p.a. on the ground that it was allegedly filed almost one year after the death of the deceased. This finding also is factually incorrect. A photocopy of the original ITR for the year 2006-07 was filed before this Court, bearing the rubber stamp of the Income Tax Department. It shows that the date of filing the ITR was 20.04.2007, which is prior to the death of the deceased which occurred on 18.06.2007. Hence, the High Court was not justified in disregarding the ITR for the year 2006-07 while assessing the income of the deceased. The Appellants have also placed on record a copy of the ITR for the year 2005-06, which bears the rubber stamp of the Income Tax Department, and reveals the income of the deceased at Rs. 98,100 p.a. during the previous assessment year. | 1[ds]7. We have heard the learned counsel for the parties and perused the material on record. We find that the impugned order passed by the High Court bristles with serious factual inaccuracies :– first, the learned Single Judge wrongly assumed that the deceased Harish Singh Arya was a Government employee. This has nowhere been averred by the Claimants in any of their pleadings. The entire basis of the judgment is hence misconceived.On the basis of the aforesaid erroneous assumption, the High Court has erroneously observed that the deceased was running a parallel business by plying two taxis, and held that the income derived from the same could not be taken into consideration for assessing the compensation. These findings being based on a completely erroneous assumption, are liable to be set aside.Second, the High Court determined the income of the deceased by taking the average of the ITRs filed for the years 2002-03 at Rs. 54,000 p.a., 2003-04 at Rs. 52,405 p.a., and 2004-05 at Rs. 51,500 p.a. The learned Single Judge disregarded the ITR for the year 2006-07, wherein the income of the deceased was shown as Rs. 98,500 p.a. on the ground that it was allegedly filed almost one year after the death of the deceased. This finding also is factually incorrect.A photocopy of the original ITR for the year 2006-07 was filed before this Court, bearing the rubber stamp of the Income Tax Department. It shows that the date of filing the ITR was 20.04.2007, which is prior to the death of the deceased which occurred on 18.06.2007. Hence, the High Court was not justified in disregarding the ITR for the year 2006-07 while assessing the income of the deceased.The Appellants have also placed on record a copy of the ITR for the year 2005-06, which bears the rubber stamp of the Income Tax Department, and reveals the income of the deceased at Rs. 98,100 p.a. during the previous assessment year. | 1 | 1,412 | 358 | ### 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:
The Claimants submitted that the deceased owned two taxis from which he earned approximately Rs. 1,00,000 p.a. after deduction of all expenses. The road accident was proved by the oral testimony of the eye-witness Shri Govind Lal Arya (PW-2), who was accompanying the deceased, and had lodged the F.I.R. With respect to payment of compensation, the Claimants submitted that the deceased owned two taxis, which generated an income of Rs. 1,00,000 p.a. The R.T.O., Motor Vehicles Department, Haldwani produced certificates of both the vehicles bearing No. UP-02D-5111 and UP-04D-0111 before the MACT, which showed that the vehicles were purchased by the deceased Harish Singh Arya, and were registered in his name. The Claimants filed four Income Tax Returns (ITRs) of the deceased for the years 2002-03, 2003-04, 2004-05, and 2006-07. The ITR for the year 2006-07 was Rs. 98,500 p.a. A photocopy of the ITR bearing the stamp of receipt from the Income Tax Department, was placed on record. 4. The MACT vide Award dated 22.12.2009 held that on the date of the accident, the deceased was 35 years of age, and his income was Rs. 1,00,000 p.a. The deceased had left behind five dependents i.e. his wife, parents and two minor daughters. The MACT deducted 1/4 th of his income towards personal expenses, and adopted the multiplier of 16. Accordingly, the loss of dependency was computed at Rs. 12,20,000. The MACT further awarded Rs. 20,000 to the widow towards loss of consortium, Rs. 10,000 to the minor daughters towards loss of love and affection, and Rs. 5,000 towards funeral expenses. The total compensation awarded to the Claimants worked out to Rs. 12,55,000 with Interest @6% p.a. The Respondent No. 1 – Insurance Company was held liable for payment of compensation to the Claimants. 5. Aggrieved by the aforesaid Award, the Insurance Company filed Appeal from Order No. 117 of 2010 before the High Court of Uttarakhand at Nainital. The learned Single Judge of the High Court vide the impugned judgment dated 22.07.2016 erroneously assumed that the deceased was a Government servant, and observed that he was running a parallel business by plying taxis. There is no basis for finding that the deceased was a Government employee. We do not know as to on what basis the learned Single Judge has arrived at this factually incorrect conclusion, and made it the basis for awarding compensation. The High Court further held that the ITRs for the years 2002-03, 2003-04 and 2004-05 showed that the average income of the deceased for these three years was Rs. 52,635 p.a. The ITR for the year 2006-07 revealed an income of Rs. 98,500 p.a., which was almost double the income of the preceding three years. The High Court held that the ITR for the year 2006-07 could not be taken into consideration. The learned Single Judge further held that the income which may have been generated from the two taxis, could not be taken into consideration for determining the income of the deceased. Accordingly, the High Court took the average of the ITRs for years 2002-03, 2003-04 and 2004-05, for determining the income of the deceased at Rs. 52,635 p.a. The Court deducted 1/3 rd of the income towards personal expenses, and applied the multiplier of 16. The loss of dependency was assessed at Rs. 5,61,440. 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. The total compensation awarded to the Claimants was reduced from Rs. 12,55,000 to Rs. 5,81,440. 6. Aggrieved by the impugned judgment dated 22.07.2016 passed by the High Court, the Claimants have filed the present civil appeal. This Court while issuing notice to the Respondents on 23.10.2018, recorded the submission made on behalf of the Claimants that the deceased was not a Government employee. 7. We have heard the learned counsel for the parties and perused the material on record. We find that the impugned order passed by the High Court bristles with serious factual inaccuracies :– first, the learned Single Judge wrongly assumed that the deceased Harish Singh Arya was a Government employee. This has nowhere been averred by the Claimants in any of their pleadings. The entire basis of the judgment is hence misconceived. On the basis of the aforesaid erroneous assumption, the High Court has erroneously observed that the deceased was running a parallel business by plying two taxis, and held that the income derived from the same could not be taken into consideration for assessing the compensation. These findings being based on a completely erroneous assumption, are liable to be set aside. Second, the High Court determined the income of the deceased by taking the average of the ITRs filed for the years 2002-03 at Rs. 54,000 p.a., 2003-04 at Rs. 52,405 p.a., and 2004-05 at Rs. 51,500 p.a. The learned Single Judge disregarded the ITR for the year 2006-07, wherein the income of the deceased was shown as Rs. 98,500 p.a. on the ground that it was allegedly filed almost one year after the death of the deceased. This finding also is factually incorrect. A photocopy of the original ITR for the year 2006-07 was filed before this Court, bearing the rubber stamp of the Income Tax Department. It shows that the date of filing the ITR was 20.04.2007, which is prior to the death of the deceased which occurred on 18.06.2007. Hence, the High Court was not justified in disregarding the ITR for the year 2006-07 while assessing the income of the deceased. The Appellants have also placed on record a copy of the ITR for the year 2005-06, which bears the rubber stamp of the Income Tax Department, and reveals the income of the deceased at Rs. 98,100 p.a. during the previous assessment year.
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### Explanation:
7. We have heard the learned counsel for the parties and perused the material on record. We find that the impugned order passed by the High Court bristles with serious factual inaccuracies :– first, the learned Single Judge wrongly assumed that the deceased Harish Singh Arya was a Government employee. This has nowhere been averred by the Claimants in any of their pleadings. The entire basis of the judgment is hence misconceived.On the basis of the aforesaid erroneous assumption, the High Court has erroneously observed that the deceased was running a parallel business by plying two taxis, and held that the income derived from the same could not be taken into consideration for assessing the compensation. These findings being based on a completely erroneous assumption, are liable to be set aside.Second, the High Court determined the income of the deceased by taking the average of the ITRs filed for the years 2002-03 at Rs. 54,000 p.a., 2003-04 at Rs. 52,405 p.a., and 2004-05 at Rs. 51,500 p.a. The learned Single Judge disregarded the ITR for the year 2006-07, wherein the income of the deceased was shown as Rs. 98,500 p.a. on the ground that it was allegedly filed almost one year after the death of the deceased. This finding also is factually incorrect.A photocopy of the original ITR for the year 2006-07 was filed before this Court, bearing the rubber stamp of the Income Tax Department. It shows that the date of filing the ITR was 20.04.2007, which is prior to the death of the deceased which occurred on 18.06.2007. Hence, the High Court was not justified in disregarding the ITR for the year 2006-07 while assessing the income of the deceased.The Appellants have also placed on record a copy of the ITR for the year 2005-06, which bears the rubber stamp of the Income Tax Department, and reveals the income of the deceased at Rs. 98,100 p.a. during the previous assessment year.
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Indian Hard Metals (P) Ltd Vs. Union Of India | magnetic separation and other similar and necessary process, it becomes a concentrate but does not cease to be ore." (emphasis added)There is ample authority fo r the view that the tungsten content in the wolfram ore of marketable quality may vary from 60 to 79 per cent, and a concentration within these limits, of the metal in the ore can be attained simply by a process of a "selective mining", that i s, by physical process not involving any chemical change in the metal. The following passage (vide Annexure "I in the record) culled out from the Introduction to the treatise on "Tungsten" by C.J. Smithells Chapman-Hall, fully bears out this conclusion: "Mining.-Tungsten ores, although so widely distributed rarely occur in massive form. The ores are usually found in narrow veins, but in some of the rich deposits the veins may in places be several metres wide. Castrate is the commonest metallic mineral associated with tungsten, but minerals containing bismuth, molybdenum, lead and copper are frequently found; pyrite and arsenopyrite are objection able minerals, which may be present in appreciable amounts, and other common minerals are quartz and fluorite. There are several kinds of ore deposits classified as segregates, pegmatites replacement deposits, veins and placers. The tungsten content of the ore as it is mined is usually from 0.5 to 2 per cent, although it amounts to 6 per cent in rare instances. The concentration of tungsten ores depends chiefly on gravity methods, taking advantage of the high density of the metal, , although flotation methods are also used. the concentrates, which contain 60-70 per cent W03, to or the better qualities 75-79 per cent should be virtually free from S.P, As, sb, Bi, Cu, Sn, Ti, and M o. Magnetic are employed to separate the tin and tungsten in the concentrates. Scheelite, however, is non-magnetic, but when it occurs with garnet, as it does in Tasmania, the garnet may be removed magnetically. The concentration of Wolframite ores is difficult on account of their mica-like formation. Excessive crushing leads to high losses in tabling and as far as possible the ore should be separated when coarsely crushed " (Emphasis supplied ) 5. There is on the record another Certificate in the form of a letter, dated February 3, 1965, from the Director, National Metallurgical Laboratory, Jamshedpur, addressed to the Controller of Customs, Calcutta, in which it is opined:"The wolfram ore is always selectively mined in the technical terminology ....such "selective mining" does not constitute a manufacturing process. Unless selective mining is done, the tungsten ore cannot be exported or even sold in the country of its origin. In view of the above, the import of selectively mined tungsten ore containing 65 % W03 or more should not be regarded as the import of a product which has been manufactured overseas and has passed through the manufacturing process. By the expression selectively mined, we mean that the wolfram ore is detached and taken out from the rock in which it is embedded and this is done by crushing the rock and sorting out piece of wolfram ore therefrom either by hand or by washing or- magnetic separation." 6. Then, there is another Certificate from R. V. Briggs &Co. Pvt. Ltd., who claim to have been analysing various ores and minerals including wolf ramite for over 60 years. According to these experts, wolframite is always concentrated as part of the mining operation. The normal method is by washing the crushed ore, thereby freeing the mineral from the gangue. These experts have further certified that the wolfram ore, which they have analysed for M/s. India Hard Metals, is processed except for physical concentration by washing. It may be observed that in the Minerals &Metal Trading Corporation (ibid), also, this Court had relied upon a similar Certificate from R. V. Briggs &Co. 7. Still, another Certificate, dated January 13, 1965, which is more or less to the same effect as the Certificate of the National Metallurgical Laboratory, was brought in evidence. A similar Certificate from this Laboratory was relied upon as authentic expert opinion in the earlier case, also, decided by this Court.No authority or expert opinion has been cited before us that a concentration of 75 per cent tungsten in wolframite ore of commercial quality, cannot be achieved merely by selective mining, i.e. the physical process of crushing, washing, gravitation, magnetic separation or the like. Nor is there any evidence on the record to show that the mined ore was subjected to any chemical process which caused a change in the chemical structure of the ore. The finding of the Appellate Collector of Customs that such a high degree (75%) of tungsten metal virtually free from impurities in the material, could be attained only by some chemical manufacturing process and not merely by crushing, washing or magnetic separation, is not based on any evidence whatever. It is contrary to the opinions of expects and authorities on the subject, which were brought on the record. It is evident from the passage extracted from Smithells treatise, and the other Certificates of experts, mentioned above, that in order to bring mined wolframite ore to a marketable quality, it has to be concentrated by physical methods, such as, crushing, washing, gravitation, magnetic separation etc. And by such physical process only, a concentration of WO3 varying from 60 per cent to 79 per cent in the ore can be achieved. Wolframite (WO3) of ordinary merchantable quality contains 60 to 70 per cent of tungsten, while wolframite ore of better commercial quality contains 75 to 79 per cent of the metal 8. In the light of the above discussion, there is no manner of doubt that the goods imported by the appellants had to be classified as imported ore, falling either under item 26 or item 70(7) of the Import Tariff, and as such, no duty was leviable on them. The appellants are, therefore, entitled to the refund of the duty paid by them on the goods in question. | 1[ds]In Minerals &Metals Trading Corporation of India Ltd. (supra), the appellant had imported 200 metric tons of wolfram concentrate from Russia, under a contract which prescribed minimum contents of 65 % of W03 in the concentrate. The Customs authorities levied duty at the rate of 60% ad valorem under item 87 of the First Schedule The appellant claimed refund on the ground that no duty was leviable as the goods imported was an "ore" and fell, under item 27 or 7 0(7) of the Import Tariff. The Assistant Collector of Customs held that the appellant was not entitled to refund because the term "ore" mentioned in the text of item 26 is confined to articles which are in form and condition in which the y are mined and not as wolfram ore concentrate in powder form as in that case. On appeal by the importer, the Appellate Collector head that the goods in question were in the manufactured form made by special specifications by dressing and were thus not "ores". The Central Government rejected the revision application filed by the appellant, holding that the examination by the Chemists showed that the uniform granules of the material were not only separated from rock but also fro m various impurities and had been subjected to such processing as would take them out of the category of metallic ore mentioned in Intern 26. This Court, speaking through Grover J., allowed the importers appeal, with these apposite observations:"There is a good deal of force in the argument of Mr. Setalvad for the appellant that the normally acceptable merchantable quality of wolfram or tungsten contains a minimum 65 % WO33. This is the usable ore and it is in that sense that it is commercially understood. Wolfram ore when , mined contains only 0.5 to 2 per cent W03 and in order to make it usable and merchantable ore with minimum 65% W03, concentration is necessary. If item 2 6 of the Import Tariff is to be restricted to wolfram being material containing 0.5 to 2 per cent W03, it would be mainly rock which can neither be imported in large quantity and which will have no market. The separating of wolfram ore from the rock to make it usable ore is a process of selective mining. It is not a manufacturing process. The important test is that the chemical structure of the ore should remain the same. Whether the ore im ported is in powder or granule form is wholly immaterial. What has to be seen is what is meant in international trade and in the market by wolfram ore containing 60% or more W03. On that there is a preponderant weight of authority bath of experts and books and of writings on the subject which show that wolfram ore when detached and taken out from the rock in which it is embedded, either by crushing the rock and sorting out pieces of w olfram ore by washing or magnetic separation and other similar and necessary process, it becomes a concentrate but does not cease to be ore." (emphasis added)There is ample authority fo r the view that the tungsten content in the wolfram ore of marketable quality may vary from 60 to 79 per cent, and a concentration within these limits, of the metal in the ore can be attained simply by a process of a "selective mining", that i s, by physical process not involving any chemical change in the metal. The following passage (vide Annexure "I in the record) culled out from the Introduction to the treatise on "Tungsten" by C.J. Smithells, fully bears out this conclusion:ores, although so widely distributed rarely occur in massive form. The ores are usually found in narrow veins, but in some of the rich deposits the veins may in places be several metres wide. Castrate is the commonest metallic mineral associated with tungsten, but minerals containing bismuth, molybdenum, lead and copper are frequently found; pyrite and arsenopyrite are objection able minerals, which may be present in appreciable amounts, and other common minerals are quartz and fluorite. There are several kinds of ore deposits classified as segregates, pegmatites replacement deposits, veins and placers. The tungsten content of the ore as it is mined is usually from 0.5 to 2 per cent, although it amounts to 6 per cent in rare instances. The concentration of tungsten ores depends chiefly on gravity methods, taking advantage of the high density of the metal, , although flotation methods are also used. the concentrates, which contain0 per cent W03, to or the better qualities9 per cent should be virtually free from S.P, As, sb, Bi, Cu, Sn, Ti, and M o. Magnetic are employed to separate the tin and tungsten in the concentrates. Scheelite, however, is, but when it occurs with garnet, as it does in Tasmania, the garnet may be removed magnetically. The concentration of Wolframite ores is difficult on account of theire formation. Excessive crushing leads to high losses in tabling and as far as possible the ore should be separated when coarsely crushed " (Emphasis supplied )There is on the record another Certificate in the form of a letter, dated February 3, 1965, from the Director, National Metallurgical Laboratory, Jamshedpur, addressed to the Controller of Customs, Calcutta, in which it is opined:"The wolfram ore is always selectively mined in the technical terminology ....such "selective mining" does not constitute a manufacturing process. Unless selective mining is done, the tungsten ore cannot be exported or even sold in the country of its origin. In view of the above, the import of selectively mined tungsten ore containing 65 % W03 or more should not be regarded as the import of a product which has been manufactured overseas and has passed through the manufacturing process. By the expression selectively mined, we mean that the wolfram ore is detached and taken out from the rock in which it is embedded and this is done by crushing the rock and sorting out piece of wolfram ore therefrom either by hand or by washing ormagnetic separation."Then, there is anotherCertificate from R. V. Briggs &Co.Pvt. Ltd., who claim to have been analysing various ores and minerals including wolf ramite for over 60 years. According to these experts, wolframite is always concentrated as part of the mining operation. The normal method is by washing the crushed ore, thereby freeing the mineral from the gangue. These experts have further certified that the wolfram ore, which they have analysed for M/s. India Hard Metals, is processed except for physical concentration by washing. It may be observed that in the Minerals &Metal Trading Corporation (ibid), also, this Court had relied upon a similarCertificate from R. V. Briggs &CoStill, another Certificate, dated January 13, 1965, which is more or less to the same effect as the Certificate of the National Metallurgical Laboratory, was brought in evidence. A similar Certificate from this Laboratory was relied upon as authentic expert opinion in the earlier case, also, decided by this Court.No authority or expert opinion has been cited before us that a concentration of 75 per cent tungsten in wolframite ore of commercial quality, cannot be achieved merely by selective mining, i.e. the physical process of crushing, washing, gravitation, magnetic separation or the like. Nor is there any evidence on the record to show that the mined ore was subjected to any chemical process which caused a change in the chemical structure of the ore. The finding of the Appellate Collector of Customs that such a high degree (75%) of tungsten metal virtually free from impurities in the material, could be attained only by some chemical manufacturing process and not merely by crushing, washing or magnetic separation, is not based on any evidence whatever. It is contrary to the opinions of expects and authorities on the subject, which were brought on the record. It is evident from the passage extracted from Smithells treatise, and the other Certificates of experts, mentioned above, that in order to bring mined wolframite ore to a marketable quality, it has to be concentrated by physical methods, such as, crushing, washing, gravitation, magnetic separation etc. And by such physical process only, a concentration of WO3 varying from 60 per cent to 79 per cent in the ore can be achieved. Wolframite (WO3) of ordinary merchantable quality contains 60 to 70 per cent of tungsten, while wolframite ore of better commercial quality contains 75 to 79 per cent of the metalIn the light of the above discussion, there is no manner of doubt that the goods imported by the appellants had to be classified as imported ore, falling either under item 26 or item 70(7) of the Import Tariff, and as such, no duty was leviable on them. | 1 | 2,585 | 1,656 | ### 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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magnetic separation and other similar and necessary process, it becomes a concentrate but does not cease to be ore." (emphasis added)There is ample authority fo r the view that the tungsten content in the wolfram ore of marketable quality may vary from 60 to 79 per cent, and a concentration within these limits, of the metal in the ore can be attained simply by a process of a "selective mining", that i s, by physical process not involving any chemical change in the metal. The following passage (vide Annexure "I in the record) culled out from the Introduction to the treatise on "Tungsten" by C.J. Smithells Chapman-Hall, fully bears out this conclusion: "Mining.-Tungsten ores, although so widely distributed rarely occur in massive form. The ores are usually found in narrow veins, but in some of the rich deposits the veins may in places be several metres wide. Castrate is the commonest metallic mineral associated with tungsten, but minerals containing bismuth, molybdenum, lead and copper are frequently found; pyrite and arsenopyrite are objection able minerals, which may be present in appreciable amounts, and other common minerals are quartz and fluorite. There are several kinds of ore deposits classified as segregates, pegmatites replacement deposits, veins and placers. The tungsten content of the ore as it is mined is usually from 0.5 to 2 per cent, although it amounts to 6 per cent in rare instances. The concentration of tungsten ores depends chiefly on gravity methods, taking advantage of the high density of the metal, , although flotation methods are also used. the concentrates, which contain 60-70 per cent W03, to or the better qualities 75-79 per cent should be virtually free from S.P, As, sb, Bi, Cu, Sn, Ti, and M o. Magnetic are employed to separate the tin and tungsten in the concentrates. Scheelite, however, is non-magnetic, but when it occurs with garnet, as it does in Tasmania, the garnet may be removed magnetically. The concentration of Wolframite ores is difficult on account of their mica-like formation. Excessive crushing leads to high losses in tabling and as far as possible the ore should be separated when coarsely crushed " (Emphasis supplied ) 5. There is on the record another Certificate in the form of a letter, dated February 3, 1965, from the Director, National Metallurgical Laboratory, Jamshedpur, addressed to the Controller of Customs, Calcutta, in which it is opined:"The wolfram ore is always selectively mined in the technical terminology ....such "selective mining" does not constitute a manufacturing process. Unless selective mining is done, the tungsten ore cannot be exported or even sold in the country of its origin. In view of the above, the import of selectively mined tungsten ore containing 65 % W03 or more should not be regarded as the import of a product which has been manufactured overseas and has passed through the manufacturing process. By the expression selectively mined, we mean that the wolfram ore is detached and taken out from the rock in which it is embedded and this is done by crushing the rock and sorting out piece of wolfram ore therefrom either by hand or by washing or- magnetic separation." 6. Then, there is another Certificate from R. V. Briggs &Co. Pvt. Ltd., who claim to have been analysing various ores and minerals including wolf ramite for over 60 years. According to these experts, wolframite is always concentrated as part of the mining operation. The normal method is by washing the crushed ore, thereby freeing the mineral from the gangue. These experts have further certified that the wolfram ore, which they have analysed for M/s. India Hard Metals, is processed except for physical concentration by washing. It may be observed that in the Minerals &Metal Trading Corporation (ibid), also, this Court had relied upon a similar Certificate from R. V. Briggs &Co. 7. Still, another Certificate, dated January 13, 1965, which is more or less to the same effect as the Certificate of the National Metallurgical Laboratory, was brought in evidence. A similar Certificate from this Laboratory was relied upon as authentic expert opinion in the earlier case, also, decided by this Court.No authority or expert opinion has been cited before us that a concentration of 75 per cent tungsten in wolframite ore of commercial quality, cannot be achieved merely by selective mining, i.e. the physical process of crushing, washing, gravitation, magnetic separation or the like. Nor is there any evidence on the record to show that the mined ore was subjected to any chemical process which caused a change in the chemical structure of the ore. The finding of the Appellate Collector of Customs that such a high degree (75%) of tungsten metal virtually free from impurities in the material, could be attained only by some chemical manufacturing process and not merely by crushing, washing or magnetic separation, is not based on any evidence whatever. It is contrary to the opinions of expects and authorities on the subject, which were brought on the record. It is evident from the passage extracted from Smithells treatise, and the other Certificates of experts, mentioned above, that in order to bring mined wolframite ore to a marketable quality, it has to be concentrated by physical methods, such as, crushing, washing, gravitation, magnetic separation etc. And by such physical process only, a concentration of WO3 varying from 60 per cent to 79 per cent in the ore can be achieved. Wolframite (WO3) of ordinary merchantable quality contains 60 to 70 per cent of tungsten, while wolframite ore of better commercial quality contains 75 to 79 per cent of the metal 8. In the light of the above discussion, there is no manner of doubt that the goods imported by the appellants had to be classified as imported ore, falling either under item 26 or item 70(7) of the Import Tariff, and as such, no duty was leviable on them. The appellants are, therefore, entitled to the refund of the duty paid by them on the goods in question.
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writings on the subject which show that wolfram ore when detached and taken out from the rock in which it is embedded, either by crushing the rock and sorting out pieces of w olfram ore by washing or magnetic separation and other similar and necessary process, it becomes a concentrate but does not cease to be ore." (emphasis added)There is ample authority fo r the view that the tungsten content in the wolfram ore of marketable quality may vary from 60 to 79 per cent, and a concentration within these limits, of the metal in the ore can be attained simply by a process of a "selective mining", that i s, by physical process not involving any chemical change in the metal. The following passage (vide Annexure "I in the record) culled out from the Introduction to the treatise on "Tungsten" by C.J. Smithells, fully bears out this conclusion:ores, although so widely distributed rarely occur in massive form. The ores are usually found in narrow veins, but in some of the rich deposits the veins may in places be several metres wide. Castrate is the commonest metallic mineral associated with tungsten, but minerals containing bismuth, molybdenum, lead and copper are frequently found; pyrite and arsenopyrite are objection able minerals, which may be present in appreciable amounts, and other common minerals are quartz and fluorite. There are several kinds of ore deposits classified as segregates, pegmatites replacement deposits, veins and placers. The tungsten content of the ore as it is mined is usually from 0.5 to 2 per cent, although it amounts to 6 per cent in rare instances. The concentration of tungsten ores depends chiefly on gravity methods, taking advantage of the high density of the metal, , although flotation methods are also used. the concentrates, which contain0 per cent W03, to or the better qualities9 per cent should be virtually free from S.P, As, sb, Bi, Cu, Sn, Ti, and M o. Magnetic are employed to separate the tin and tungsten in the concentrates. Scheelite, however, is, but when it occurs with garnet, as it does in Tasmania, the garnet may be removed magnetically. The concentration of Wolframite ores is difficult on account of theire formation. Excessive crushing leads to high losses in tabling and as far as possible the ore should be separated when coarsely crushed " (Emphasis supplied )There is on the record another Certificate in the form of a letter, dated February 3, 1965, from the Director, National Metallurgical Laboratory, Jamshedpur, addressed to the Controller of Customs, Calcutta, in which it is opined:"The wolfram ore is always selectively mined in the technical terminology ....such "selective mining" does not constitute a manufacturing process. Unless selective mining is done, the tungsten ore cannot be exported or even sold in the country of its origin. In view of the above, the import of selectively mined tungsten ore containing 65 % W03 or more should not be regarded as the import of a product which has been manufactured overseas and has passed through the manufacturing process. By the expression selectively mined, we mean that the wolfram ore is detached and taken out from the rock in which it is embedded and this is done by crushing the rock and sorting out piece of wolfram ore therefrom either by hand or by washing ormagnetic separation."Then, there is anotherCertificate from R. V. Briggs &Co.Pvt. Ltd., who claim to have been analysing various ores and minerals including wolf ramite for over 60 years. According to these experts, wolframite is always concentrated as part of the mining operation. The normal method is by washing the crushed ore, thereby freeing the mineral from the gangue. These experts have further certified that the wolfram ore, which they have analysed for M/s. India Hard Metals, is processed except for physical concentration by washing. It may be observed that in the Minerals &Metal Trading Corporation (ibid), also, this Court had relied upon a similarCertificate from R. V. Briggs &CoStill, another Certificate, dated January 13, 1965, which is more or less to the same effect as the Certificate of the National Metallurgical Laboratory, was brought in evidence. A similar Certificate from this Laboratory was relied upon as authentic expert opinion in the earlier case, also, decided by this Court.No authority or expert opinion has been cited before us that a concentration of 75 per cent tungsten in wolframite ore of commercial quality, cannot be achieved merely by selective mining, i.e. the physical process of crushing, washing, gravitation, magnetic separation or the like. Nor is there any evidence on the record to show that the mined ore was subjected to any chemical process which caused a change in the chemical structure of the ore. The finding of the Appellate Collector of Customs that such a high degree (75%) of tungsten metal virtually free from impurities in the material, could be attained only by some chemical manufacturing process and not merely by crushing, washing or magnetic separation, is not based on any evidence whatever. It is contrary to the opinions of expects and authorities on the subject, which were brought on the record. It is evident from the passage extracted from Smithells treatise, and the other Certificates of experts, mentioned above, that in order to bring mined wolframite ore to a marketable quality, it has to be concentrated by physical methods, such as, crushing, washing, gravitation, magnetic separation etc. And by such physical process only, a concentration of WO3 varying from 60 per cent to 79 per cent in the ore can be achieved. Wolframite (WO3) of ordinary merchantable quality contains 60 to 70 per cent of tungsten, while wolframite ore of better commercial quality contains 75 to 79 per cent of the metalIn the light of the above discussion, there is no manner of doubt that the goods imported by the appellants had to be classified as imported ore, falling either under item 26 or item 70(7) of the Import Tariff, and as such, no duty was leviable on them.
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The Commissioner of Customs (General), Mumbai Custom Zone-I, New Customs House, Ballard Estate, Mumbai-400 001 Vs. M/S. Gannon Dunkerley & Company Limited | director or employee who has passed the examination referred to in Regulation 8 in accordance with sub-regulation (8) of regulation 8.Provided that if there is no such person in the firm or Company, then such firm or Company, as the case may be, may authorize any other partner, director or employee who is a "G" card holder, to pass the examination referred to in regulation 8 within a period of two years from the date of the demise or retirement of such person, and the firm or Company may be permitted to carry on the business of a Customs House Agent with the approval of the Commissioner of Customs till such time such partner, director or employee passes the said examination."A perusal of Regulation 15(2) would indicate that the license would cease to be in force on the death or retirement of a person as referred to therein. The proviso permits in the event there is no qualified person for replacement in the firm or Company, the firm or Company authorise any other partner, director or employee who is a "G" card holder, to pass the relevant examination within a period of two years from the date of demise or retirement of the person and in such a case there is discretion in the Commissioner notwithstanding that if there be no qualified person to permit such authorised person to carry on the business of a Customs House Agent with the approval of the Commissioner of Customs till such time such partner, director or employee passes the said examination. In other words a reading of Regulation 15(2) and the proviso makes it abundantly clear that this Regulation provides for a situation when the license ceases to be in force on happening of the event set out therein which is not the case of the license being cancelled. While considering the difficulties that a business house may suffer the proviso permits the Commissioner of Customs in the circumstances set out therein to permit the company or firm to carry on the business of a Customs House Agent inspite of the fact that no qualified person is available as long as a "G" card holder is available.6. We may now peruse Regulation 20, which reads as under:-"20. Suspension or revocation of licence--(1) The Commissioner of Customs may, subject to the provisions of regulation 2, revoke the license of a Customs House Agent and order for forfeiture of part or whole of security, or only order forfeiture of part of whole of security, on any of the following grounds namely -(a) failure of the Customs House Agent to comply with any of the conditions of the bond executed by him under regulation 10;(b) failure of the Customs House Agent to comply with any of the provisions of these regulations, within the jurisdiction of the said Commissioner of Customs or anywhere else;(c) any misconduct on his part, whether within the jurisdiction of the said Commissioner of Customs or any where else which in the opinion of the Commissioner renders him unfit to transact any business in the Customs Station.(2) Notwithstanding anything contained in sub-regulation (1) the Commissioner of Customs may in appropriate cases where immediate action is necessary, suspend the licence of a Customs House Agent where an enquiry against such agent is pending or contemplated."The licence once validly issued can only be revoked or forfeited in the circumstances set out therein. In the instant case it is not the case of the Appellants that they have cancelled or forfeited the licence. Therefore, the case is not covered by the Regulation 20. Yet another provision which would be relevant would be Regulation 11, which reads as under:-11. Period of validity of a licence - (1) A licence granted under regulation 9 shall be valid for a period of ten years from the date of issue and shall be renewed from time to time in accordance with the procedure provided in sub-regulation (2).(2) The Commissioner of Customs may, on application made by the licensee before the expiry of the validity of the licence under sub-regulation (1), renew the licence for a further period of ten years from the date of expiration of the original licence granted under regulation 9 or of the last renewal of such licence, as the case may be, if the performance of the licensee is found to be satisfactory with reference, inter alia, to the following:-(a) quantity or value of cargo cleared by such licensee conforming to norms as may be specified by the Commissioner;(b) absence of instances of any complaints of misconduct including non-compliance of any of the obligations specified in regulation 13.(3) The fees for renewal of a licence sub-regulation (2) shall be Rs.5,000/-."The regulation, therefore, sets out, that the license would be valid for a period of 10 years from the date of issue and shall be renewed from time to time in accordance with the procedure provided in sub-regulation (2).7. A reading, therefore, of all these regulations would lead to the conclusion that the license so issued would continue to be in force for the period of its term, unless it is cancelled or revoked in terms of Regulation 20. On failure to have a qualified person at the highest, it merely becomes inoperative for the time being, but the moment a qualified person is available, then it is open to the holder of the licence to operate the license. The license being personnel to the person on his death it cannot be operated. The expression ceasing to be in force must be so read. In our opinion once the petitioner had communicated to the Appellants by letter that a qualified license holder was being appointed from 1st week of October, 2006 the Appellants were bound to permit the respondents to operate the license.8. In our opinion, therefore, though the Tribunal addressed itself to the wrong question which really would not be relevant, the question of law as framed considering the discussions as now discussed would not arise. | 0[ds]There is no dispute that in the present case the respondents had a valid license which would have expired on 31st December,perusal of Regulation 15(2) would indicate that the license would cease to be in force on the death or retirement of a person as referred to therein. The proviso permits in the event there is no qualified person for replacement in the firm or Company, the firm or Company authorise any other partner, director or employee who is a "G" card holder, to pass the relevant examination within a period of two years from the date of demise or retirement of the person and in such a case there is discretion in the Commissioner notwithstanding that if there be no qualified person to permit such authorised person to carry on the business of a Customs House Agent with the approval of the Commissioner of Customs till such time such partner, director or employee passes the said examination. In other words a reading of Regulation 15(2) and the proviso makes it abundantly clear that this Regulation provides for a situation when the license ceases to be in force on happening of the event set out therein which is not the case of the license being cancelled. While considering the difficulties that a business house may suffer the proviso permits the Commissioner of Customs in the circumstances set out therein to permit the company or firm to carry on the business of a Customs House Agent inspite of the fact that no qualified person is available as long as a "G" card holder is available.A reading, therefore, of all these regulations would lead to the conclusion that the license so issued would continue to be in force for the period of its term, unless it is cancelled or revoked in terms of Regulation 20. On failure to have a qualified person at the highest, it merely becomes inoperative for the time being, but the moment a qualified person is available, then it is open to the holder of the licence to operate the license. The license being personnel to the person on his death it cannot be operated. The expression ceasing to be in force must be so read. In our opinion once the petitioner had communicated to the Appellants by letter that a qualified license holder was being appointed from 1st week of October, 2006 the Appellants were bound to permit the respondents to operate the license.8. In our opinion, therefore, though the Tribunal addressed itself to the wrong question which really would not be relevant, the question of law as framed considering the discussions as now discussed would not arise. | 0 | 2,236 | 481 | ### Instruction:
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director or employee who has passed the examination referred to in Regulation 8 in accordance with sub-regulation (8) of regulation 8.Provided that if there is no such person in the firm or Company, then such firm or Company, as the case may be, may authorize any other partner, director or employee who is a "G" card holder, to pass the examination referred to in regulation 8 within a period of two years from the date of the demise or retirement of such person, and the firm or Company may be permitted to carry on the business of a Customs House Agent with the approval of the Commissioner of Customs till such time such partner, director or employee passes the said examination."A perusal of Regulation 15(2) would indicate that the license would cease to be in force on the death or retirement of a person as referred to therein. The proviso permits in the event there is no qualified person for replacement in the firm or Company, the firm or Company authorise any other partner, director or employee who is a "G" card holder, to pass the relevant examination within a period of two years from the date of demise or retirement of the person and in such a case there is discretion in the Commissioner notwithstanding that if there be no qualified person to permit such authorised person to carry on the business of a Customs House Agent with the approval of the Commissioner of Customs till such time such partner, director or employee passes the said examination. In other words a reading of Regulation 15(2) and the proviso makes it abundantly clear that this Regulation provides for a situation when the license ceases to be in force on happening of the event set out therein which is not the case of the license being cancelled. While considering the difficulties that a business house may suffer the proviso permits the Commissioner of Customs in the circumstances set out therein to permit the company or firm to carry on the business of a Customs House Agent inspite of the fact that no qualified person is available as long as a "G" card holder is available.6. We may now peruse Regulation 20, which reads as under:-"20. Suspension or revocation of licence--(1) The Commissioner of Customs may, subject to the provisions of regulation 2, revoke the license of a Customs House Agent and order for forfeiture of part or whole of security, or only order forfeiture of part of whole of security, on any of the following grounds namely -(a) failure of the Customs House Agent to comply with any of the conditions of the bond executed by him under regulation 10;(b) failure of the Customs House Agent to comply with any of the provisions of these regulations, within the jurisdiction of the said Commissioner of Customs or anywhere else;(c) any misconduct on his part, whether within the jurisdiction of the said Commissioner of Customs or any where else which in the opinion of the Commissioner renders him unfit to transact any business in the Customs Station.(2) Notwithstanding anything contained in sub-regulation (1) the Commissioner of Customs may in appropriate cases where immediate action is necessary, suspend the licence of a Customs House Agent where an enquiry against such agent is pending or contemplated."The licence once validly issued can only be revoked or forfeited in the circumstances set out therein. In the instant case it is not the case of the Appellants that they have cancelled or forfeited the licence. Therefore, the case is not covered by the Regulation 20. Yet another provision which would be relevant would be Regulation 11, which reads as under:-11. Period of validity of a licence - (1) A licence granted under regulation 9 shall be valid for a period of ten years from the date of issue and shall be renewed from time to time in accordance with the procedure provided in sub-regulation (2).(2) The Commissioner of Customs may, on application made by the licensee before the expiry of the validity of the licence under sub-regulation (1), renew the licence for a further period of ten years from the date of expiration of the original licence granted under regulation 9 or of the last renewal of such licence, as the case may be, if the performance of the licensee is found to be satisfactory with reference, inter alia, to the following:-(a) quantity or value of cargo cleared by such licensee conforming to norms as may be specified by the Commissioner;(b) absence of instances of any complaints of misconduct including non-compliance of any of the obligations specified in regulation 13.(3) The fees for renewal of a licence sub-regulation (2) shall be Rs.5,000/-."The regulation, therefore, sets out, that the license would be valid for a period of 10 years from the date of issue and shall be renewed from time to time in accordance with the procedure provided in sub-regulation (2).7. A reading, therefore, of all these regulations would lead to the conclusion that the license so issued would continue to be in force for the period of its term, unless it is cancelled or revoked in terms of Regulation 20. On failure to have a qualified person at the highest, it merely becomes inoperative for the time being, but the moment a qualified person is available, then it is open to the holder of the licence to operate the license. The license being personnel to the person on his death it cannot be operated. The expression ceasing to be in force must be so read. In our opinion once the petitioner had communicated to the Appellants by letter that a qualified license holder was being appointed from 1st week of October, 2006 the Appellants were bound to permit the respondents to operate the license.8. In our opinion, therefore, though the Tribunal addressed itself to the wrong question which really would not be relevant, the question of law as framed considering the discussions as now discussed would not arise.
### Response:
0
### Explanation:
There is no dispute that in the present case the respondents had a valid license which would have expired on 31st December,perusal of Regulation 15(2) would indicate that the license would cease to be in force on the death or retirement of a person as referred to therein. The proviso permits in the event there is no qualified person for replacement in the firm or Company, the firm or Company authorise any other partner, director or employee who is a "G" card holder, to pass the relevant examination within a period of two years from the date of demise or retirement of the person and in such a case there is discretion in the Commissioner notwithstanding that if there be no qualified person to permit such authorised person to carry on the business of a Customs House Agent with the approval of the Commissioner of Customs till such time such partner, director or employee passes the said examination. In other words a reading of Regulation 15(2) and the proviso makes it abundantly clear that this Regulation provides for a situation when the license ceases to be in force on happening of the event set out therein which is not the case of the license being cancelled. While considering the difficulties that a business house may suffer the proviso permits the Commissioner of Customs in the circumstances set out therein to permit the company or firm to carry on the business of a Customs House Agent inspite of the fact that no qualified person is available as long as a "G" card holder is available.A reading, therefore, of all these regulations would lead to the conclusion that the license so issued would continue to be in force for the period of its term, unless it is cancelled or revoked in terms of Regulation 20. On failure to have a qualified person at the highest, it merely becomes inoperative for the time being, but the moment a qualified person is available, then it is open to the holder of the licence to operate the license. The license being personnel to the person on his death it cannot be operated. The expression ceasing to be in force must be so read. In our opinion once the petitioner had communicated to the Appellants by letter that a qualified license holder was being appointed from 1st week of October, 2006 the Appellants were bound to permit the respondents to operate the license.8. In our opinion, therefore, though the Tribunal addressed itself to the wrong question which really would not be relevant, the question of law as framed considering the discussions as now discussed would not arise.
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VIKRAMJIT KAKATI Vs. THE STATE OF ASSAM | would be empowered to discharge the accused. 17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution. 17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court. 17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial. 17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion. 17.6. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons. 17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true. 17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused. 11. Taking into consideration the aforesaid legal principles, if we consider the facts of the present case, it reveals from the perusal of charge-sheet and other material available on record that the investigating officer has not brought even prima facie material in the charge-sheet as to what was the motive on the part of the appellant to commit the alleged offence. The deceased, in the instant case, was a colleague/friend of the appellant working in the same organization. On the fateful morning, the appellant learnt about burn injuries of the deceased through accused no.1 i.e. the wife of the deceased on telephone at about 5.30 a.m. on 22nd April, 2009. Without any loss of time, the appellant along with his colleague Tariqul Rafique @ Maju went to the house of the deceased by his car and took the deceased along with his wife (A-1) to the nearby nursing home at Sivasagar. Since the said nursing home was not having the burn ward, after giving the initial treatment, deceased was referred to the Dibrugarh hospital. The deceased along with his wife and colleague of the appellant went to the Dibrugarh hospital on an ambulance, but unfortunately, the deceased succumbed to the burn injuries in the hospital. 12. The only eye-witness in the present case is Hosna Begum, domestic servant present in the house of the deceased. She neither in her statement under Section 161 Cr.P.C. nor under Section 164 Cr.P.C. stated anything about the involvement of the appellant in the commission of the alleged offence, rather she categorically stated in the statement that at the instance of the deceased, the wife of the deceased called the appellant for help and further stated that the appellant took the deceased to the hospital in his car. She is the best witness of the case. Rest of the witnesses whose statements were recorded by the police nowhere implicated the appellant, except the complainant who was not even an eye-witness to the incident. 13. Regarding the allegation of destruction of evidence by the appellant along with the wife of the deceased (A-1), no material, oral/documentary, has been placed by the police in the chargesheet, which, in any manner, connect the appellant with the destruction of evidence. To the contrary, as per the statement of the witnesses which are recorded, the fact that reveals is that the appellant accompanied the deceased to the hospital at Sivasagar and from there to Dibrugarh, where the deceased succumbed to the injuries and based on the information given by the appellant, the deceaseds relatives, including the complainant, came to the hospital and from there his body was taken to his native place Tezpur for performing the last rites. Here, no other witnesses, whose statements were recorded, stated anything about the appellant visiting the house of the deceased either before or after the alleged destruction of evidence has taken place, except the complainant, who even in the FIR did not make any statement against the appellant, but later made a bald statement of her strong suspicion in her statement under Section 161 Cr.P.C. 14. So far as the conspiracy, as alleged, is concerned, some evidence ought to have emerged or the prosecution could have brought on record some prima facie material whereby the appellant along with the accused persons had prior meeting of mind to execute the alleged offence and in the given facts and circumstances, there is no justification for the appellant to undergo the agony of facing trial, to which the appellant is not even prima facie connected. Still the prosecution filed chargesheet on 30th August, 2011 for offence implicating the appellant under Sections 302/120-B/201 IPC along with the wife of deceased (A-1) and mother of wife of the deceased (A-3). 15. There is no iota of evidence which, in any manner, connect the present appellant with the commission of crime and neither the trial Court nor the High Court has even taken pains to look into the record as to whether there is any oral/documentary evidence which in any manner connect the appellant with the alleged incident of crime and, in our considered view, in the absence of even a prima facie material, oral/documentary, being placed by the prosecution in the charge-sheet, the trial Court as well as the High Court have committed serious error in framing charge against the appellant. Even the complainant also in the complaint has not named the appellant as the perpetrator of the offence, rather she stated that she suspects foul play. | 1[ds]10. Before we proceed to examine the matter on merits any further, it will be apposite to take note of the legal principles applicable seeking discharge, for which we may refer to a judgment of this Court in P. Vijayan v. State of Kerala & Another (2010) 2 SCC 398 , which has been further reiterated by this Court in the recent judgment in M.E. Shivalingamurthy v. Central Bureau of Investigation, Bengaluru (2020) 2 SCC 768 and discerned the following principles:17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused.17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution.17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial.17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion.17.6. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons.17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.11. Taking into consideration the aforesaid legal principles, if we consider the facts of the present case, it reveals from the perusal of charge-sheet and other material available on record that the investigating officer has not brought even prima facie material in the charge-sheet as to what was the motive on the part of the appellant to commit the alleged offence. The deceased, in the instant case, was a colleague/friend of the appellant working in the same organization. On the fateful morning, the appellant learnt about burn injuries of the deceased through accused no.1 i.e. the wife of the deceased on telephone at about 5.30 a.m. on 22nd April, 2009. Without any loss of time, the appellant along with his colleague Tariqul Rafique @ Maju went to the house of the deceased by his car and took the deceased along with his wife (A-1) to the nearby nursing home at Sivasagar. Since the said nursing home was not having the burn ward, after giving the initial treatment, deceased was referred to the Dibrugarh hospital. The deceased along with his wife and colleague of the appellant went to the Dibrugarh hospital on an ambulance, but unfortunately, the deceased succumbed to the burn injuries in the hospital.12. The only eye-witness in the present case is Hosna Begum, domestic servant present in the house of the deceased. She neither in her statement under Section 161 Cr.P.C. nor under Section 164 Cr.P.C. stated anything about the involvement of the appellant in the commission of the alleged offence, rather she categorically stated in the statement that at the instance of the deceased, the wife of the deceased called the appellant for help and further stated that the appellant took the deceased to the hospital in his car. She is the best witness of the case. Rest of the witnesses whose statements were recorded by the police nowhere implicated the appellant, except the complainant who was not even an eye-witness to the incident.13. Regarding the allegation of destruction of evidence by the appellant along with the wife of the deceased (A-1), no material, oral/documentary, has been placed by the police in the chargesheet, which, in any manner, connect the appellant with the destruction of evidence. To the contrary, as per the statement of the witnesses which are recorded, the fact that reveals is that the appellant accompanied the deceased to the hospital at Sivasagar and from there to Dibrugarh, where the deceased succumbed to the injuries and based on the information given by the appellant, the deceaseds relatives, including the complainant, came to the hospital and from there his body was taken to his native place Tezpur for performing the last rites. Here, no other witnesses, whose statements were recorded, stated anything about the appellant visiting the house of the deceased either before or after the alleged destruction of evidence has taken place, except the complainant, who even in the FIR did not make any statement against the appellant, but later made a bald statement of her strong suspicion in her statement under Section 161 Cr.P.C.14. So far as the conspiracy, as alleged, is concerned, some evidence ought to have emerged or the prosecution could have brought on record some prima facie material whereby the appellant along with the accused persons had prior meeting of mind to execute the alleged offence and in the given facts and circumstances, there is no justification for the appellant to undergo the agony of facing trial, to which the appellant is not even prima facie connected. Still the prosecution filed chargesheet on 30th August, 2011 for offence implicating the appellant under Sections 302/120-B/201 IPC along with the wife of deceased (A-1) and mother of wife of the deceased (A-3).15. There is no iota of evidence which, in any manner, connect the present appellant with the commission of crime and neither the trial Court nor the High Court has even taken pains to look into the record as to whether there is any oral/documentary evidence which in any manner connect the appellant with the alleged incident of crime and, in our considered view, in the absence of even a prima facie material, oral/documentary, being placed by the prosecution in the charge-sheet, the trial Court as well as the High Court have committed serious error in framing charge against the appellant. Even the complainant also in the complaint has not named the appellant as the perpetrator of the offence, rather she stated that she suspects foul play. | 1 | 2,080 | 1,207 | ### Instruction:
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would be empowered to discharge the accused. 17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution. 17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court. 17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial. 17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion. 17.6. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons. 17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true. 17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused. 11. Taking into consideration the aforesaid legal principles, if we consider the facts of the present case, it reveals from the perusal of charge-sheet and other material available on record that the investigating officer has not brought even prima facie material in the charge-sheet as to what was the motive on the part of the appellant to commit the alleged offence. The deceased, in the instant case, was a colleague/friend of the appellant working in the same organization. On the fateful morning, the appellant learnt about burn injuries of the deceased through accused no.1 i.e. the wife of the deceased on telephone at about 5.30 a.m. on 22nd April, 2009. Without any loss of time, the appellant along with his colleague Tariqul Rafique @ Maju went to the house of the deceased by his car and took the deceased along with his wife (A-1) to the nearby nursing home at Sivasagar. Since the said nursing home was not having the burn ward, after giving the initial treatment, deceased was referred to the Dibrugarh hospital. The deceased along with his wife and colleague of the appellant went to the Dibrugarh hospital on an ambulance, but unfortunately, the deceased succumbed to the burn injuries in the hospital. 12. The only eye-witness in the present case is Hosna Begum, domestic servant present in the house of the deceased. She neither in her statement under Section 161 Cr.P.C. nor under Section 164 Cr.P.C. stated anything about the involvement of the appellant in the commission of the alleged offence, rather she categorically stated in the statement that at the instance of the deceased, the wife of the deceased called the appellant for help and further stated that the appellant took the deceased to the hospital in his car. She is the best witness of the case. Rest of the witnesses whose statements were recorded by the police nowhere implicated the appellant, except the complainant who was not even an eye-witness to the incident. 13. Regarding the allegation of destruction of evidence by the appellant along with the wife of the deceased (A-1), no material, oral/documentary, has been placed by the police in the chargesheet, which, in any manner, connect the appellant with the destruction of evidence. To the contrary, as per the statement of the witnesses which are recorded, the fact that reveals is that the appellant accompanied the deceased to the hospital at Sivasagar and from there to Dibrugarh, where the deceased succumbed to the injuries and based on the information given by the appellant, the deceaseds relatives, including the complainant, came to the hospital and from there his body was taken to his native place Tezpur for performing the last rites. Here, no other witnesses, whose statements were recorded, stated anything about the appellant visiting the house of the deceased either before or after the alleged destruction of evidence has taken place, except the complainant, who even in the FIR did not make any statement against the appellant, but later made a bald statement of her strong suspicion in her statement under Section 161 Cr.P.C. 14. So far as the conspiracy, as alleged, is concerned, some evidence ought to have emerged or the prosecution could have brought on record some prima facie material whereby the appellant along with the accused persons had prior meeting of mind to execute the alleged offence and in the given facts and circumstances, there is no justification for the appellant to undergo the agony of facing trial, to which the appellant is not even prima facie connected. Still the prosecution filed chargesheet on 30th August, 2011 for offence implicating the appellant under Sections 302/120-B/201 IPC along with the wife of deceased (A-1) and mother of wife of the deceased (A-3). 15. There is no iota of evidence which, in any manner, connect the present appellant with the commission of crime and neither the trial Court nor the High Court has even taken pains to look into the record as to whether there is any oral/documentary evidence which in any manner connect the appellant with the alleged incident of crime and, in our considered view, in the absence of even a prima facie material, oral/documentary, being placed by the prosecution in the charge-sheet, the trial Court as well as the High Court have committed serious error in framing charge against the appellant. Even the complainant also in the complaint has not named the appellant as the perpetrator of the offence, rather she stated that she suspects foul play.
### Response:
1
### Explanation:
rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused.17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution.17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial.17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion.17.6. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons.17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.11. Taking into consideration the aforesaid legal principles, if we consider the facts of the present case, it reveals from the perusal of charge-sheet and other material available on record that the investigating officer has not brought even prima facie material in the charge-sheet as to what was the motive on the part of the appellant to commit the alleged offence. The deceased, in the instant case, was a colleague/friend of the appellant working in the same organization. On the fateful morning, the appellant learnt about burn injuries of the deceased through accused no.1 i.e. the wife of the deceased on telephone at about 5.30 a.m. on 22nd April, 2009. Without any loss of time, the appellant along with his colleague Tariqul Rafique @ Maju went to the house of the deceased by his car and took the deceased along with his wife (A-1) to the nearby nursing home at Sivasagar. Since the said nursing home was not having the burn ward, after giving the initial treatment, deceased was referred to the Dibrugarh hospital. The deceased along with his wife and colleague of the appellant went to the Dibrugarh hospital on an ambulance, but unfortunately, the deceased succumbed to the burn injuries in the hospital.12. The only eye-witness in the present case is Hosna Begum, domestic servant present in the house of the deceased. She neither in her statement under Section 161 Cr.P.C. nor under Section 164 Cr.P.C. stated anything about the involvement of the appellant in the commission of the alleged offence, rather she categorically stated in the statement that at the instance of the deceased, the wife of the deceased called the appellant for help and further stated that the appellant took the deceased to the hospital in his car. She is the best witness of the case. Rest of the witnesses whose statements were recorded by the police nowhere implicated the appellant, except the complainant who was not even an eye-witness to the incident.13. Regarding the allegation of destruction of evidence by the appellant along with the wife of the deceased (A-1), no material, oral/documentary, has been placed by the police in the chargesheet, which, in any manner, connect the appellant with the destruction of evidence. To the contrary, as per the statement of the witnesses which are recorded, the fact that reveals is that the appellant accompanied the deceased to the hospital at Sivasagar and from there to Dibrugarh, where the deceased succumbed to the injuries and based on the information given by the appellant, the deceaseds relatives, including the complainant, came to the hospital and from there his body was taken to his native place Tezpur for performing the last rites. Here, no other witnesses, whose statements were recorded, stated anything about the appellant visiting the house of the deceased either before or after the alleged destruction of evidence has taken place, except the complainant, who even in the FIR did not make any statement against the appellant, but later made a bald statement of her strong suspicion in her statement under Section 161 Cr.P.C.14. So far as the conspiracy, as alleged, is concerned, some evidence ought to have emerged or the prosecution could have brought on record some prima facie material whereby the appellant along with the accused persons had prior meeting of mind to execute the alleged offence and in the given facts and circumstances, there is no justification for the appellant to undergo the agony of facing trial, to which the appellant is not even prima facie connected. Still the prosecution filed chargesheet on 30th August, 2011 for offence implicating the appellant under Sections 302/120-B/201 IPC along with the wife of deceased (A-1) and mother of wife of the deceased (A-3).15. There is no iota of evidence which, in any manner, connect the present appellant with the commission of crime and neither the trial Court nor the High Court has even taken pains to look into the record as to whether there is any oral/documentary evidence which in any manner connect the appellant with the alleged incident of crime and, in our considered view, in the absence of even a prima facie material, oral/documentary, being placed by the prosecution in the charge-sheet, the trial Court as well as the High Court have committed serious error in framing charge against the appellant. Even the complainant also in the complaint has not named the appellant as the perpetrator of the offence, rather she stated that she suspects foul play.
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State of Uttar Pradesh and Others Vs. Modi Industries Limited | no option except to give effect to it in its c, order passed under section 11(6)." The High Court further made the following observation, -- "We however, express no opinion as to the course. which the department should. adopt in a situation like this, but we have no doubt in our mind that the amendment brought about by section 31 of the Act does not make the JUDGMENT of the High Court a nullity and the Judge (Revisions) was not free to ignore it for any reason whatsoever." 5. The question is whether lifts view of the High Court is correct ? The answer to the question depends on the answer to the further question whether the proceedings for the assessment of the sales tax had become final after the High Courts judgment dated July 24, 1961 or whether, after that judgment, something remained to be done by the Additional Judge (Revisions) ?Sub-section (6) of section 11 of the Act provides that the High Court, upon hearing the reference, shall decide the questions of law and shall deliver its judgment thereon and shall send its copy to the Revising Authority and the Commissioner of Sales Tax, "and the Revising Authority shall thereupon pass such orders as are necessary to dispose of the case in conformity with such judgment." So while the Additional, Judge (Revisions) was in seisin of the case for the Limited purpose for passing such orders as were neces sary to dispose it of in conformity with the judgment of the High Court, it cannot be gain said that he was in such seisin and was required, in the facts and circumstances of this case, to make an order which would make the assessment order final and binding in all respects. It was at that stage that section 31, which was inserted by section 7 of the Amending Act, was sought to be applied to the controver sy. According to sub-section (2) of that section, the assessments mad e at the enhanced rates, in accordance with the notification dated April 9, 1948, were to be deemed to be good and valid as if they had been duly made, and as if the amendment made by the insertion of section 31 had been in force on all material dates. It was expressly provided by the sub-section that that was to be so notwithstanding any judgment, decree or order of any court. The order of the Additional Judge (Revisions) dated Dec ember 28, 1968 had therefore the effect of recognising the restoration of the orders of assessment which were made by the Sales Tax Officer at the enhanced rates, and sub-section (2) of section 31 had the effect of making them "good and valid in law". It cannot be said that the Additional Judge (Revisions) erred in taking that view, and in not passing an order for giving effect to the judgment of the High Court dated July 24, 1961 which had become unenforceable by the aforesaid section 31. It has to be appreciated that even if the Additional Judge (Revisions) had passed an order under sub- section C(6) of section 11 of the Act as directed b y the High Court, that would have been of no consequence and would have been inoperative because of the specific provisions of subsection (2) of section 31, so that the position would have been the same as if no such order had been passed at all.The High Court has expressed the view that if its judgment (dated July 24, 1961) was considered by the department to be erroneous, it could have filed an appeal against it to this Court. under article 136 of the Constitution to have it set aside or modified. It is not clear to us how that would have been possible when the Amending Act had not been passed till then, and was enacted some 1 1/2 years thereafter. The other suggestion of the High Court that it may have been open to the department to ask for a fresh reference to it against the order of the Revising Authority under section 11 (6) on the ground that by the amendment a fresh question of law had arisen, is also untenable because that order (dated December 28, 1968) was in favour of the department. In fact any suggestion or observation of the High Court for seeking any other mode of redress is beside the point for the State felt aggrieved against the impugned judgment of the High Court dated February 11, 1970 and has come up in appeal against it. And now that this Court is in seisin of the case, it would be a work of supererogation to require the parties, or any of them, to go back to the Additional Judge (Revisions) or the High Court for an order. 6. It has next been argued that the amendment made in the Act by insertion of section 31 can not possibly be implemented as no machinery has been provided to give effect to it and that it should therefore have been ignored altogether. This argument has been made with reference to this Courts decision in Modi Sugar Mills case (supra), but it is futile because no question regarding any such machinery could possibly be said to arise for the purpose of giving effect to section 31 of the Act in the facts and circumstances of this case. 7. So when section 31 of the Act is dearly valid and is retoractive, and the Legislature has shown the intention of restoring the assessments and orders made under the provisions of sub-section (1) of section 7 (as it stood prior to its amendment by section 7 of U.P. Act XIX of 1956) as good and valid assessments in law, as if they had been duly made, that was enough to set the controversy at rest and there is nothing wrong with the view which has been taken by the Additional Judge (Revisions) in his order dated December 28, 1968. 8. | 1[ds]It was observed that in taking that view this Court was seeking to apply a legislative provision which was, by express enactment, in force at the time when the liability arose, for section 31 incorporated by the Amending Act was to be deemed to have been in operation at all material times in supersession of the previous rule declared by this Court. It was held further that this would be the position even if the laws were amended with retroactive operation during the pendency of a reference to the High Court. It was accordingly held that "if the law which the Tribunal seeks to apply to the dispute is amended, so as to make the law applicable to the transaction in dispute, it would be bound t o decide the question in the light of the law so amended." The validity and the retroactive operation of section 31 have therefore been placed beyond challenge by the aforesaid decision in Bijli Cotton Mills case and have in fact not been challenged by counsel for the dealer. It may be mentioned that in its judgment in Bijli Cotton Mills case this Court took notice of its earlier decision in the Modi Sugar Mills case (supra) so that it is well settled that the amendment made by section 31 is retroactive and applies to assessments pending or closed as if the Amending Act had been in force at material timesSub-section (6) of section 11 of the Act provides that the High Court, upon hearing the reference, shall decide the questions of law and shall deliver its judgment thereon and shall send its copy to the Revising Authority and the Commissioner of Sales Tax, "and the Revising Authority shall thereupon pass such orders as are necessary to dispose of the case in conformity with such judgment." So while the Additional, Judge (Revisions) was in seisin of the case for the Limited purpose for passing such orders as were neces sary to dispose it of in conformity with the judgment of the High Court, it cannot be gain said that he was in such seisin and was required, in the facts and circumstances of this case, to make an order which would make the assessment order final and binding in all respects. It was at that stage that section 31, which was inserted by section 7 of the Amending Act, was sought to be applied to the controver sy. According to sub-section (2) of that section, the assessments mad e at the enhanced rates, in accordance with the notification dated April 9, 1948, were to be deemed to be good and valid as if they had been duly made, and as if the amendment made by the insertion of section 31 had been in force on all material dates. It was expressly provided by the sub-section that that was to be so notwithstanding any judgment, decree or order of any court. The order of the Additional Judge (Revisions) dated Dec ember 28, 1968 had therefore the effect of recognising the restoration of the orders of assessment which were made by the Sales Tax Officer at the enhanced rates, and sub-section (2) of section 31 had the effect of making them "good and valid in law". It cannot be said that the Additional Judge (Revisions) erred in taking that view, and in not passing an order for giving effect to the judgment of the High Court dated July 24, 1961 which had become unenforceable by the aforesaid section 31. It has to be appreciated that even if the Additional Judge (Revisions) had passed an order under sub- section C(6) of section 11 of the Act as directed b y the High Court, that would have been of no consequence and would have been inoperative because of the specific provisions of subsection (2) of section 31, so that the position would have been the same as if no such order had been passed at all.The High Court has expressed the view that if its judgment (dated July 24, 1961) was considered by the department to be erroneous, it could have filed an appeal against it to this Court. under article 136 of the Constitution to have it set aside or modified. It is not clear to us how that would have been possible when the Amending Act had not been passed till then, and was enacted some 1 1/2 years thereafter. The other suggestion of the High Court that it may have been open to the department to ask for a fresh reference to it against the order of the Revising Authority under section 11 (6) on the ground that by the amendment a fresh question of law had arisen, is also untenable because that order (dated December 28, 1968) was in favour of the department. In fact any suggestion or observation of the High Court for seeking any other mode of redress is beside the point for the State felt aggrieved against the impugned judgment of the High Court dated February 11, 1970 and has come up in appeal against it. And now that this Court is in seisin of the case, it would be a work of supererogation to require the parties, or any of them, to go back to the Additional Judge (Revisions) or the High Court for an orderSo when section 31 of the Act is dearly valid and is retoractive, and the Legislature has shown the intention of restoring the assessments and orders made under the provisions of sub-section (1) of section 7 (as it stood prior to its amendment by section 7 of U.P. Act XIX of 1956) as good and valid assessments in law, as if they had been duly made, that was enough to set the controversy at rest and there is nothing wrong with the view which has been taken by the Additional Judge (Revisions) in his order dated December 28, 1968The answer to the question depends on the answer to the further questionwhether the proceedings for the assessment of the sales tax had become final after the High Courts judgment dated July 24, 1961 or whether, after that judgment, something remained to be done by the Additional Judge (Revisions)n (6) of section 11 of the Act provides that the High Court, upon hearing the reference, shall decide the questions of law and shall deliver its judgment thereon and shall send its copy to the Revising Authority and the Commissioner of Sales Tax, "and the Revising Authority shall thereupon pass such orders as are necessary to dispose of the case in conformity with such judgment." So while the Additional, Judge (Revisions) was in seisin of the case for the Limited purpose for passing such orders as were neces sary to dispose it of in conformity with the judgment of the High Court, it cannot be gain said that he was in such seisin and was required, in the facts and circumstances of this case, to make an order which would make the assessment order final and binding in all respects. It was at that stage that section 31, which was inserted by section 7 of the Amending Act, was sought to be applied to the controver sy. According tosubsection (2) ofthat section, the assessments mad e at the enhanced rates, in accordance with the notification dated April 9, 1948, were to be deemed to be good and valid as if they had been duly made, and as if the amendment made by the insertion of section 31 had been in force on all material dates. It was expressly provided by thesubsectionthat that was to be so notwithstanding any judgment, decree or order of any court. The order of the Additional Judge (Revisions) dated Dec ember 28, 1968 had therefore the effect of recognising the restoration of the orders of assessment which were made by the Sales Tax Officer at the enhanced rates, andsubsection(2) of section 31 had the effect of making them "good and valid in law". It cannot be said that the Additional Judge (Revisions) erred in taking that view, and in not passing an order for giving effect to the judgment of the High Court dated July 24, 1961 which had become unenforceable by the aforesaid section 31. It has to be appreciated that even if the Additional Judge (Revisions) had passed an order under subsection C(6) of section 11 of the Act as directed b y the High Court, that would have been of no consequence and would have been inoperative because of the specific provisions ofsubsection(2) of section31, so that the position would have been the same as if no such order had been passed at all.The High Court has expressed the view that if its judgment (dated July 24, 1961) was considered by the department to be erroneous, it could have filed an appeal against it to this Court. under article 136 of the Constitution to have it set aside or modified. It is not clear to us how that would have been possible when the Amending Act had not been passed till then, and was enacted some 1 1/2 years thereafter. The other suggestion of the High Court that it may have been open to the department to ask for a fresh reference to it against the order of the Revising Authority under section 11 (6) on the ground that by the amendment a fresh question of law had arisen, is also untenable because that order (dated December 28, 1968) was in favour of the department. In fact any suggestion or observation of the High Court for seeking any other mode of redress is beside the point for the State felt aggrieved against the impugned judgment of the High Court dated February 11, 1970 and has come up in appeal against it. And now that this Court is in seisin of the case, it would be a work of supererogation to require the parties, or any of them, to go back to the Additional Judge (Revisions) or the High Court for an orderThis argument has been made with reference to this Courts decision in Modi Sugar Mills case (supra), but it is futile because no question regarding any such machinery could possibly be said to arise for the purpose of giving effect to section 31 of the Act in the facts and circumstances of this case. | 1 | 3,328 | 1,914 | ### Instruction:
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no option except to give effect to it in its c, order passed under section 11(6)." The High Court further made the following observation, -- "We however, express no opinion as to the course. which the department should. adopt in a situation like this, but we have no doubt in our mind that the amendment brought about by section 31 of the Act does not make the JUDGMENT of the High Court a nullity and the Judge (Revisions) was not free to ignore it for any reason whatsoever." 5. The question is whether lifts view of the High Court is correct ? The answer to the question depends on the answer to the further question whether the proceedings for the assessment of the sales tax had become final after the High Courts judgment dated July 24, 1961 or whether, after that judgment, something remained to be done by the Additional Judge (Revisions) ?Sub-section (6) of section 11 of the Act provides that the High Court, upon hearing the reference, shall decide the questions of law and shall deliver its judgment thereon and shall send its copy to the Revising Authority and the Commissioner of Sales Tax, "and the Revising Authority shall thereupon pass such orders as are necessary to dispose of the case in conformity with such judgment." So while the Additional, Judge (Revisions) was in seisin of the case for the Limited purpose for passing such orders as were neces sary to dispose it of in conformity with the judgment of the High Court, it cannot be gain said that he was in such seisin and was required, in the facts and circumstances of this case, to make an order which would make the assessment order final and binding in all respects. It was at that stage that section 31, which was inserted by section 7 of the Amending Act, was sought to be applied to the controver sy. According to sub-section (2) of that section, the assessments mad e at the enhanced rates, in accordance with the notification dated April 9, 1948, were to be deemed to be good and valid as if they had been duly made, and as if the amendment made by the insertion of section 31 had been in force on all material dates. It was expressly provided by the sub-section that that was to be so notwithstanding any judgment, decree or order of any court. The order of the Additional Judge (Revisions) dated Dec ember 28, 1968 had therefore the effect of recognising the restoration of the orders of assessment which were made by the Sales Tax Officer at the enhanced rates, and sub-section (2) of section 31 had the effect of making them "good and valid in law". It cannot be said that the Additional Judge (Revisions) erred in taking that view, and in not passing an order for giving effect to the judgment of the High Court dated July 24, 1961 which had become unenforceable by the aforesaid section 31. It has to be appreciated that even if the Additional Judge (Revisions) had passed an order under sub- section C(6) of section 11 of the Act as directed b y the High Court, that would have been of no consequence and would have been inoperative because of the specific provisions of subsection (2) of section 31, so that the position would have been the same as if no such order had been passed at all.The High Court has expressed the view that if its judgment (dated July 24, 1961) was considered by the department to be erroneous, it could have filed an appeal against it to this Court. under article 136 of the Constitution to have it set aside or modified. It is not clear to us how that would have been possible when the Amending Act had not been passed till then, and was enacted some 1 1/2 years thereafter. The other suggestion of the High Court that it may have been open to the department to ask for a fresh reference to it against the order of the Revising Authority under section 11 (6) on the ground that by the amendment a fresh question of law had arisen, is also untenable because that order (dated December 28, 1968) was in favour of the department. In fact any suggestion or observation of the High Court for seeking any other mode of redress is beside the point for the State felt aggrieved against the impugned judgment of the High Court dated February 11, 1970 and has come up in appeal against it. And now that this Court is in seisin of the case, it would be a work of supererogation to require the parties, or any of them, to go back to the Additional Judge (Revisions) or the High Court for an order. 6. It has next been argued that the amendment made in the Act by insertion of section 31 can not possibly be implemented as no machinery has been provided to give effect to it and that it should therefore have been ignored altogether. This argument has been made with reference to this Courts decision in Modi Sugar Mills case (supra), but it is futile because no question regarding any such machinery could possibly be said to arise for the purpose of giving effect to section 31 of the Act in the facts and circumstances of this case. 7. So when section 31 of the Act is dearly valid and is retoractive, and the Legislature has shown the intention of restoring the assessments and orders made under the provisions of sub-section (1) of section 7 (as it stood prior to its amendment by section 7 of U.P. Act XIX of 1956) as good and valid assessments in law, as if they had been duly made, that was enough to set the controversy at rest and there is nothing wrong with the view which has been taken by the Additional Judge (Revisions) in his order dated December 28, 1968. 8.
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till then, and was enacted some 1 1/2 years thereafter. The other suggestion of the High Court that it may have been open to the department to ask for a fresh reference to it against the order of the Revising Authority under section 11 (6) on the ground that by the amendment a fresh question of law had arisen, is also untenable because that order (dated December 28, 1968) was in favour of the department. In fact any suggestion or observation of the High Court for seeking any other mode of redress is beside the point for the State felt aggrieved against the impugned judgment of the High Court dated February 11, 1970 and has come up in appeal against it. And now that this Court is in seisin of the case, it would be a work of supererogation to require the parties, or any of them, to go back to the Additional Judge (Revisions) or the High Court for an orderSo when section 31 of the Act is dearly valid and is retoractive, and the Legislature has shown the intention of restoring the assessments and orders made under the provisions of sub-section (1) of section 7 (as it stood prior to its amendment by section 7 of U.P. Act XIX of 1956) as good and valid assessments in law, as if they had been duly made, that was enough to set the controversy at rest and there is nothing wrong with the view which has been taken by the Additional Judge (Revisions) in his order dated December 28, 1968The answer to the question depends on the answer to the further questionwhether the proceedings for the assessment of the sales tax had become final after the High Courts judgment dated July 24, 1961 or whether, after that judgment, something remained to be done by the Additional Judge (Revisions)n (6) of section 11 of the Act provides that the High Court, upon hearing the reference, shall decide the questions of law and shall deliver its judgment thereon and shall send its copy to the Revising Authority and the Commissioner of Sales Tax, "and the Revising Authority shall thereupon pass such orders as are necessary to dispose of the case in conformity with such judgment." So while the Additional, Judge (Revisions) was in seisin of the case for the Limited purpose for passing such orders as were neces sary to dispose it of in conformity with the judgment of the High Court, it cannot be gain said that he was in such seisin and was required, in the facts and circumstances of this case, to make an order which would make the assessment order final and binding in all respects. It was at that stage that section 31, which was inserted by section 7 of the Amending Act, was sought to be applied to the controver sy. According tosubsection (2) ofthat section, the assessments mad e at the enhanced rates, in accordance with the notification dated April 9, 1948, were to be deemed to be good and valid as if they had been duly made, and as if the amendment made by the insertion of section 31 had been in force on all material dates. It was expressly provided by thesubsectionthat that was to be so notwithstanding any judgment, decree or order of any court. The order of the Additional Judge (Revisions) dated Dec ember 28, 1968 had therefore the effect of recognising the restoration of the orders of assessment which were made by the Sales Tax Officer at the enhanced rates, andsubsection(2) of section 31 had the effect of making them "good and valid in law". It cannot be said that the Additional Judge (Revisions) erred in taking that view, and in not passing an order for giving effect to the judgment of the High Court dated July 24, 1961 which had become unenforceable by the aforesaid section 31. It has to be appreciated that even if the Additional Judge (Revisions) had passed an order under subsection C(6) of section 11 of the Act as directed b y the High Court, that would have been of no consequence and would have been inoperative because of the specific provisions ofsubsection(2) of section31, so that the position would have been the same as if no such order had been passed at all.The High Court has expressed the view that if its judgment (dated July 24, 1961) was considered by the department to be erroneous, it could have filed an appeal against it to this Court. under article 136 of the Constitution to have it set aside or modified. It is not clear to us how that would have been possible when the Amending Act had not been passed till then, and was enacted some 1 1/2 years thereafter. The other suggestion of the High Court that it may have been open to the department to ask for a fresh reference to it against the order of the Revising Authority under section 11 (6) on the ground that by the amendment a fresh question of law had arisen, is also untenable because that order (dated December 28, 1968) was in favour of the department. In fact any suggestion or observation of the High Court for seeking any other mode of redress is beside the point for the State felt aggrieved against the impugned judgment of the High Court dated February 11, 1970 and has come up in appeal against it. And now that this Court is in seisin of the case, it would be a work of supererogation to require the parties, or any of them, to go back to the Additional Judge (Revisions) or the High Court for an orderThis argument has been made with reference to this Courts decision in Modi Sugar Mills case (supra), but it is futile because no question regarding any such machinery could possibly be said to arise for the purpose of giving effect to section 31 of the Act in the facts and circumstances of this case.
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Rasila S Mehta Vs. Custodian, Nariman Bhavan, Mumbai | unable to accept any of the contentions raised by counsel for the appellants. 56) Claims for maintenance, repair charges, interest and penalty for belated payment (Civil Appeal Nos. 3377 of 2009 and 4764 of 2010) With regard to the above appeals filed against the orders of the Special Court approving their report of the Custodian for realization of certain amounts payable to the Society towards repairs and maintenance charges, interest and penalty for belated payment, learned counsel for the appellants again raised various objections, inasmuch as the claim of the Custodian depends upon the outcome of the other appeals i.e. Civil Appeal Nos. 2924 of 2008 and 2915 of 2008 and in view of our conclusion on these appeals, we are not inclined to go into all those details once again. Since we agree with the claim of the Custodian and various steps taken by him and the ultimate order of the Special Court in the normal circumstance, present appeals are also to be dismissed. We have already noted that Smt. Jyoti H. Mehta and six other family members of late Harshad S. Mehta were notified under the Act. Upon enforcement of the aforesaid Act, all the properties of late Harshad S. Mehta and his family members, including the six appellants in Civil Appeal No. 3377 of 2009 apart from other corporate entities stood attached by the Custodian. As a consequence thereof, all eight residential properties/flats of the appellants, namely, residential flat Nos. of 32A, 32B, 33, 34A, 34B, 44A, 44B and 45 in the Madhuli Cooperative Housing Society Limited at Dr. Anne Besant Road, Worli, Mumbai continue to remain attached under the Act by the Custodian. Since the aforesaid eight residential properties remain attached with the Custodian their upkeep/repair is essential so that the market value of the said attached properties does not get depreciated and that they may fetch best market value as and when the same are permitted to be sold by the Special Court so as to pay the liabilities of the Government, Banks, Financial Institutions as well as other decree holders under the provisions of Section 11(2) of the Act. 57) It was highlighted by the Custodian that as per the rules and bye-laws of the Cooperative Housing Societies in Mumbai, which are incorporated under the provisions of the Maharashtra Cooperative Societies Act, all the owners of the residential properties/flats, as the members of the Housing Society are liable to pay such amount as may be determined by the Society towards the upkeep, maintenance and repairs of the flats as well as common areas and amenities in the housing complex. In view of the same, the Cooperative Housing Societies are entitled to recover all the arrears and charges from the members who have not paid the society in time. 58) The appellants herein are notified parties who are the owners of the attached properties and have failed to pay to the Madhuli Cooperative Housing Society Limited their contribution towards the maintenance charges, interest thereon and the charges incurred towards the repair of the attached property by the Society. The total dues demanded by Madhuli Cooperative Housing Society Limited vide its letter dated 12.03.2009 relating to the eight attached properties in question is Rs.1,87,97,011/-. The Custodian has furnished break-up of the same as follows: "i. Maintenance Charges & Rs. 1,62,80,811-00 Interest thereon.ii. Repairs of 8 Flats. Rs. 25,16,200-00" 59) Learned counsel for the Custodian submitted that as per the scheme of the repair and upkeep of the attached properties, the maintenance charges including the interest for the delayed payment is to be borne by the notified parties/entities occupying the attached property, whereas the charges incurred by the society towards the repair of the attached properties is to be paid by the Custodian from the attached account of the notified parties. Regarding payment of maintenance and repair charges, there cannot be any doubt that the Custodian is liable to pay the same to the society. However, the Custodian has claimed interest for arrears of maintenance charges as claimed by the Housing Society. 60) In the same way, in Civil Appeal No. 4764 of 2010, the appellant, namely, Rasila S. Mehta, a notified party who is the owner of the attached property failed to pay to the Madhuli Cooperative Housing Society Limited her contribution towards maintenance charges, interest thereon and also the charges incurred by the Society towards repair of the attached property. The total dues demanded by the Madhuli Cooperative Housing Society Limited, vide its letter dated 21.06.2010 qua the attached property is Rs.21,06,230/- and breakup of the same is as follows: "i. Maintenance Charges Rs. 2,59,759-00 ii. Repairs Rs. 9,57,501-00 iii. Interest Rs. 8,88,970-00" 61) As discussed earlier, unless the attached properties are properly maintained and as per the scheme, the repair and upkeep of the attached properties are to be followed by the Custodian and on the orders of the Special Court. 62) It is also brought to our notice that during the course of hearing, either before the Special Court or in this Court, certain amounts have been paid/deposited by the appellant. Considering the fact that the appellants are agitating the matter at the hands of the Custodian, the Special Court and before this Court, we feel that the appellants need not be burdened with interest and penal charges for non-payment of maintenance and repair charges to the society. Accordingly, while sustaining the claim of the Custodian as approved by the Special Court in view of the reasons mentioned above, we clarify that the Custodian is not permitted to collect interest and penalty charges from the arrears of maintenance and repair charges. This position is also clear from the decision of this Court in Harshad Shantilal Mehta vs. Custodian & Ors, (1998) 5 SCC 1. The Custodian is free to adjust the amounts deposited by the appellants on the orders of this Court or the Special Court. With the above direction, the impugned order in both the appeals is modified to the limited extent. | 0[ds]12) It is settled law that the objects and reasons of the Act are to be taken into consideration in interpreting the provisions of the statute. It is incumbent on the court to strive and interpret the statute as to protect and advance the object and purpose of the enactment. Any narrow or technical interpretation of the provisions would defeat the legislative policy. The Court must, therefore, keep the legislative policy in mind while applying the provisions of the Act to the facts of the case. It is a cardinal principle of construction of statute or the statutory rule that efforts should be made in construing the different provisions, so that each provision may have effective meaning and implementation and in the event of any conflict a harmonious construction should be given. It is also settled law that literal meaning of the statute must be adhered to when there is no absurdity in ascertaining the legislative intendment and for that purpose the broad features of the Act can be looked into. The main function of the Court is to merely interpret the section and in doing so it cannot re-write or re-design the3(2) of theSpecial Courts Actconfer power to Custodian to notify a person in the Official Gazette on being satisfied on information received that such person was involved in any offence relating to transactions in securities during the statutory period 01.04.1991 to 06.06.1992. Though Mr. Syed contended that the appellants are entitled to hearing even at the stage of Section 3(2), we are unable to accept his claim. Section 3(2) does not give any right of personal hearing to the person being notified. In the absence of any such right there is no pre-decisional hearing The provisions of the Act do not provide for a pre-decisional hearing before notification but contains an impeccable milieu for a fair and just post decisional hearing. The fact that it does not provide for a pre-decisional hearing is not contrary to the rules of Natural Justice because the decision of the Custodian to notify does not ipso facto takes away any right of the person thus notified or imposes any duty onAttachment of property is a natural consequence of notification and not sale of the property. The power to order a sale of the property lies only withthe Special Courtunder Section 11 and at this instance where the notified person can be adversely affected, Section 4(2) provides that any person aggrieved by the notification can file a petition objecting the same within 30 days of the date of the issuance of the notification. The Special Court is presided over by a sitting Judge of the High Court. All material before the Custodian is placed beforethe Special Courtwhich independently analyses all the material while deciding the application filed by the notified party challenging the notification. This amounts to post decisional hearing satisfying the principles of natural justice. Also a pre-decisional hearing wouldre purpose of the Act. If there is time given to Show Cause why a person should not be notified, that time could practically be utilized to further divert the funds, if any, so that it becomes even more difficult to traceA perusal of the above letter shows that there was no proper maintenance of accounts and there was no cooperation at all. Even, late Harshad Mehta in his letter and declarations to the Income Tax Authorities in which the appellant Rasila Mehta is a signatory had admitted that the family is a joint Hindu family where all are living together and that the business is such that it requires very close control at the operationalperusing the Report of M/s Vyas & Vyas,the Special Courtcame to a conclusion that the appellants are only fronts of late Harshad S. Mehta. It further concluded that the appellants are only housewives and were given loan by the brokerage firms for purchase of shares. The Special Court, therefore, rightly held that the money and assets were diverted to the appellants by the brokerage firms who were notified parties. Mr. Syed objected to the order ofthe Special Courtfor fully relying on the Auditors report. We reject his objection for the following reasons. First of all, the issue relates to accounting of several persons. Several volumes of accounts relating to various members of late Harshad Mehtas family have to be scrutinized. The Court and members of the bar are not conversant with the accounting procedures and in such event assistance from an established Chartered Accountant Firm is needed. In fact, even during the course of arguments in respect of questions by the Court, Mr. Syed himself sought the assistance of persons who are conversant with accountancy. In view of complicity in the matter, there is nothing wrong on the part ofthe Special Courtgetting report from M/s Vyas and Vyas who are recognized Chartered Accountants. The order ofthe Special Courtdoes not suffer from any infirmity and there was sufficient material before the Custodian to arrive at a satisfaction that monies had been diverted by late Harshad S. Mehta to thecontention of the appellants that since they have not been charged for any offence, they cannot be notified under the Act. According to the appellants, the phrase "involved in the offence" could only mean "accused of the offence" and since they are not charged with any offence they can not be notified. In construing the above mentioned words which are used in association with each other, the rule of construction noscitur a sociis may be applied. It is a legitimate rule of construction to construe words in an Act of Parliament with reference to words found in immediate connection with them. The actual order of these three words in juxtaposition indicates that meaning of one takes colour from the other. The rule is explained differently: that meaning of doubtful words may be ascertained by reference to the meaning of words associated with it. (vide Ahmedabad Teachers Association vs. Administrative Officer, AIR 2004 SC 1426 ).48) Therefore, in the present case the nature of "offence", in which the appellants are allegedly involved, is to be taken into consideration. The Act does not create an offence for which a particular person has to be charged or held guilty. Thus the phrase "involved in the offence" would not mean "accused of the offence". Also, the appellants could have been reasonably suspected to have been involved in the offence after consideration of the various reports of the Janakiraman Committee, Joint Parliamentary Committee and the Inter Disciplinary Group (IDG); and also the fact that 28 members of the M/s Harshad S. Mehta group including his family members/entities were notified under the Special Act Ordinance itself. The above factual matrix was sufficient for the satisfaction of the Custodian to notify the Appellants. The object of the Act is not merely to bring the offender to book but also to recover what are ultimately public funds. Even if there is a nexus between a third party, an offender and/or property the third party can also becomplaint has been received from Canfina which is a 100% subsidiary of Canara Bank, a nationalized bank. The term financial institution has not been defined under the Act. It became necessary to enactthe Special CourtAct because of the large scale irregularities which came to light as a result of the investigations by the Reserve Bank of India into the affairs of various banks and financial institutions whose monies were siphoned out. Thus the Statement of Objects and Reasons makes it clear that the purpose and the object of the Act was to recover and return monies to those banks and financial institutions from whom the monies were siphoned out. It is thus clear that the bodies which were sought to be covered were the banks and financial institutions whose affairs were investigated into by the Reserve Bank of India. The investigation was conducted by the Reserve Bank of India through Janakiraman Committee; the Joint Parliamentary Committee, and the Inter Disciplinary Group. The affairs of Canfina were also investigated by the various committees as a financial institution. It has come to light that there were large scale siphoning out of monies from Canfina also as held bythe Special Courtin its order dated 25.06.1997 in the matter of Fairgrowth Financial Services Vs. Andhra Bank in Misc. Petition No. 222 ofThus, at the very inception of this Act are the investigations by the Reserve Bank of India and these investigations were carried on by the Janakiraman Committee. The Act was intended to be applied to the workings of the banks and financial institutions (though not covered by the strict definition of the term but involved in the securities scam of 1992) into whose affairs the Janakiraman Committee had investigated. Canfina, was one such non-banking financial institution that Janakiraman Committee had investigated and thus it was meant to be covered under theFurther, Rule 3 illustrates situations whereby the Custodian may reject a certain complaint which is not accompanied by copies of documents referred to in the information or complaint, or is vague or does not contain the name and address of the sender. This rule also does not make it mandatory on the Custodian to reject a complaint if it does not accompany the above details. If the material information or the documents received by the Custodian are sufficient in his opinion, to reveal that a person is involved in an offence referred to in sub-section (2) of section 3 of the Act, he may proceed to notify the name of the person under that sub- section. Thus the satisfaction of the Custodian is of a subjective nature and is not violative of Natural Justice. The power to deal with the property ultimately lies with5) In view of the same, we are in entire agreement with the conclusion arrived at bythe Special Courtand unable to accept any of the contentions raised by counsel for theAs discussed earlier, unless the attached properties are properly maintained and as per the scheme, the repair and upkeep of the attached properties are to be followed by the Custodian and on the orders of2) It is also brought to our notice that during the course of hearing, either beforethe Special Courtor in this Court, certain amounts have beenConsidering the fact that the appellants are agitating the matter at the hands of the Custodian,the Special Courtand before this Court, we feel that the appellants need not be burdened with interest and penal charges fornon-payment of maintenance and repair charges to thesociety. Accordingly, while sustaining the claim of the Custodian as approved bythe Special Courtin view of the reasons mentioned above, we clarify that the Custodian is not permitted to collect interest and penalty charges from the arrears of maintenance and repair charges. This position is also clear from the decision of this Court in Harshad Shantilal Mehta vs. Custodian & Ors, (1998) 5 SCC 1. The Custodian is free to adjust the amountss on the orders of this Court orith the above direction, the impugned order in both the appeals is modified to the limited extent. | 0 | 17,152 | 1,995 | ### Instruction:
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unable to accept any of the contentions raised by counsel for the appellants. 56) Claims for maintenance, repair charges, interest and penalty for belated payment (Civil Appeal Nos. 3377 of 2009 and 4764 of 2010) With regard to the above appeals filed against the orders of the Special Court approving their report of the Custodian for realization of certain amounts payable to the Society towards repairs and maintenance charges, interest and penalty for belated payment, learned counsel for the appellants again raised various objections, inasmuch as the claim of the Custodian depends upon the outcome of the other appeals i.e. Civil Appeal Nos. 2924 of 2008 and 2915 of 2008 and in view of our conclusion on these appeals, we are not inclined to go into all those details once again. Since we agree with the claim of the Custodian and various steps taken by him and the ultimate order of the Special Court in the normal circumstance, present appeals are also to be dismissed. We have already noted that Smt. Jyoti H. Mehta and six other family members of late Harshad S. Mehta were notified under the Act. Upon enforcement of the aforesaid Act, all the properties of late Harshad S. Mehta and his family members, including the six appellants in Civil Appeal No. 3377 of 2009 apart from other corporate entities stood attached by the Custodian. As a consequence thereof, all eight residential properties/flats of the appellants, namely, residential flat Nos. of 32A, 32B, 33, 34A, 34B, 44A, 44B and 45 in the Madhuli Cooperative Housing Society Limited at Dr. Anne Besant Road, Worli, Mumbai continue to remain attached under the Act by the Custodian. Since the aforesaid eight residential properties remain attached with the Custodian their upkeep/repair is essential so that the market value of the said attached properties does not get depreciated and that they may fetch best market value as and when the same are permitted to be sold by the Special Court so as to pay the liabilities of the Government, Banks, Financial Institutions as well as other decree holders under the provisions of Section 11(2) of the Act. 57) It was highlighted by the Custodian that as per the rules and bye-laws of the Cooperative Housing Societies in Mumbai, which are incorporated under the provisions of the Maharashtra Cooperative Societies Act, all the owners of the residential properties/flats, as the members of the Housing Society are liable to pay such amount as may be determined by the Society towards the upkeep, maintenance and repairs of the flats as well as common areas and amenities in the housing complex. In view of the same, the Cooperative Housing Societies are entitled to recover all the arrears and charges from the members who have not paid the society in time. 58) The appellants herein are notified parties who are the owners of the attached properties and have failed to pay to the Madhuli Cooperative Housing Society Limited their contribution towards the maintenance charges, interest thereon and the charges incurred towards the repair of the attached property by the Society. The total dues demanded by Madhuli Cooperative Housing Society Limited vide its letter dated 12.03.2009 relating to the eight attached properties in question is Rs.1,87,97,011/-. The Custodian has furnished break-up of the same as follows: "i. Maintenance Charges & Rs. 1,62,80,811-00 Interest thereon.ii. Repairs of 8 Flats. Rs. 25,16,200-00" 59) Learned counsel for the Custodian submitted that as per the scheme of the repair and upkeep of the attached properties, the maintenance charges including the interest for the delayed payment is to be borne by the notified parties/entities occupying the attached property, whereas the charges incurred by the society towards the repair of the attached properties is to be paid by the Custodian from the attached account of the notified parties. Regarding payment of maintenance and repair charges, there cannot be any doubt that the Custodian is liable to pay the same to the society. However, the Custodian has claimed interest for arrears of maintenance charges as claimed by the Housing Society. 60) In the same way, in Civil Appeal No. 4764 of 2010, the appellant, namely, Rasila S. Mehta, a notified party who is the owner of the attached property failed to pay to the Madhuli Cooperative Housing Society Limited her contribution towards maintenance charges, interest thereon and also the charges incurred by the Society towards repair of the attached property. The total dues demanded by the Madhuli Cooperative Housing Society Limited, vide its letter dated 21.06.2010 qua the attached property is Rs.21,06,230/- and breakup of the same is as follows: "i. Maintenance Charges Rs. 2,59,759-00 ii. Repairs Rs. 9,57,501-00 iii. Interest Rs. 8,88,970-00" 61) As discussed earlier, unless the attached properties are properly maintained and as per the scheme, the repair and upkeep of the attached properties are to be followed by the Custodian and on the orders of the Special Court. 62) It is also brought to our notice that during the course of hearing, either before the Special Court or in this Court, certain amounts have been paid/deposited by the appellant. Considering the fact that the appellants are agitating the matter at the hands of the Custodian, the Special Court and before this Court, we feel that the appellants need not be burdened with interest and penal charges for non-payment of maintenance and repair charges to the society. Accordingly, while sustaining the claim of the Custodian as approved by the Special Court in view of the reasons mentioned above, we clarify that the Custodian is not permitted to collect interest and penalty charges from the arrears of maintenance and repair charges. This position is also clear from the decision of this Court in Harshad Shantilal Mehta vs. Custodian & Ors, (1998) 5 SCC 1. The Custodian is free to adjust the amounts deposited by the appellants on the orders of this Court or the Special Court. With the above direction, the impugned order in both the appeals is modified to the limited extent.
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that since they have not been charged for any offence, they cannot be notified under the Act. According to the appellants, the phrase "involved in the offence" could only mean "accused of the offence" and since they are not charged with any offence they can not be notified. In construing the above mentioned words which are used in association with each other, the rule of construction noscitur a sociis may be applied. It is a legitimate rule of construction to construe words in an Act of Parliament with reference to words found in immediate connection with them. The actual order of these three words in juxtaposition indicates that meaning of one takes colour from the other. The rule is explained differently: that meaning of doubtful words may be ascertained by reference to the meaning of words associated with it. (vide Ahmedabad Teachers Association vs. Administrative Officer, AIR 2004 SC 1426 ).48) Therefore, in the present case the nature of "offence", in which the appellants are allegedly involved, is to be taken into consideration. The Act does not create an offence for which a particular person has to be charged or held guilty. Thus the phrase "involved in the offence" would not mean "accused of the offence". Also, the appellants could have been reasonably suspected to have been involved in the offence after consideration of the various reports of the Janakiraman Committee, Joint Parliamentary Committee and the Inter Disciplinary Group (IDG); and also the fact that 28 members of the M/s Harshad S. Mehta group including his family members/entities were notified under the Special Act Ordinance itself. The above factual matrix was sufficient for the satisfaction of the Custodian to notify the Appellants. The object of the Act is not merely to bring the offender to book but also to recover what are ultimately public funds. Even if there is a nexus between a third party, an offender and/or property the third party can also becomplaint has been received from Canfina which is a 100% subsidiary of Canara Bank, a nationalized bank. The term financial institution has not been defined under the Act. It became necessary to enactthe Special CourtAct because of the large scale irregularities which came to light as a result of the investigations by the Reserve Bank of India into the affairs of various banks and financial institutions whose monies were siphoned out. Thus the Statement of Objects and Reasons makes it clear that the purpose and the object of the Act was to recover and return monies to those banks and financial institutions from whom the monies were siphoned out. It is thus clear that the bodies which were sought to be covered were the banks and financial institutions whose affairs were investigated into by the Reserve Bank of India. The investigation was conducted by the Reserve Bank of India through Janakiraman Committee; the Joint Parliamentary Committee, and the Inter Disciplinary Group. The affairs of Canfina were also investigated by the various committees as a financial institution. It has come to light that there were large scale siphoning out of monies from Canfina also as held bythe Special Courtin its order dated 25.06.1997 in the matter of Fairgrowth Financial Services Vs. Andhra Bank in Misc. Petition No. 222 ofThus, at the very inception of this Act are the investigations by the Reserve Bank of India and these investigations were carried on by the Janakiraman Committee. The Act was intended to be applied to the workings of the banks and financial institutions (though not covered by the strict definition of the term but involved in the securities scam of 1992) into whose affairs the Janakiraman Committee had investigated. Canfina, was one such non-banking financial institution that Janakiraman Committee had investigated and thus it was meant to be covered under theFurther, Rule 3 illustrates situations whereby the Custodian may reject a certain complaint which is not accompanied by copies of documents referred to in the information or complaint, or is vague or does not contain the name and address of the sender. This rule also does not make it mandatory on the Custodian to reject a complaint if it does not accompany the above details. If the material information or the documents received by the Custodian are sufficient in his opinion, to reveal that a person is involved in an offence referred to in sub-section (2) of section 3 of the Act, he may proceed to notify the name of the person under that sub- section. Thus the satisfaction of the Custodian is of a subjective nature and is not violative of Natural Justice. The power to deal with the property ultimately lies with5) In view of the same, we are in entire agreement with the conclusion arrived at bythe Special Courtand unable to accept any of the contentions raised by counsel for theAs discussed earlier, unless the attached properties are properly maintained and as per the scheme, the repair and upkeep of the attached properties are to be followed by the Custodian and on the orders of2) It is also brought to our notice that during the course of hearing, either beforethe Special Courtor in this Court, certain amounts have beenConsidering the fact that the appellants are agitating the matter at the hands of the Custodian,the Special Courtand before this Court, we feel that the appellants need not be burdened with interest and penal charges fornon-payment of maintenance and repair charges to thesociety. Accordingly, while sustaining the claim of the Custodian as approved bythe Special Courtin view of the reasons mentioned above, we clarify that the Custodian is not permitted to collect interest and penalty charges from the arrears of maintenance and repair charges. This position is also clear from the decision of this Court in Harshad Shantilal Mehta vs. Custodian & Ors, (1998) 5 SCC 1. The Custodian is free to adjust the amountss on the orders of this Court orith the above direction, the impugned order in both the appeals is modified to the limited extent.
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State of Madhya Pradesh and Ors Vs. M.V. Vyavsaya and Company | 14. Leave granted. 15. It has been repeatedly held by this Court that the power of the High Court under Article 226 of the Constitution is not akin to appellate power. It is a supervisory power. While exercising this power, the court does not go into the merits of the decision taken by the authorities concerned but only ensures that the decision is arrived at in accordance with the procedure prescribed by law and in accordance with the principles of natural justice wherever applicable. Further, where there are disputed questions of fact, the High Court does not normally go into or adjudicate upon the disputed questions of fact. Yet another principle which has been repeatedly affirmed by this Court is that a person who solemnly enters into a contract cannot be allowed to wriggle out of it by resorting to Article 226 of the Constitution. This Court has also repeatedly emphasised the inadvisability of making interim orders which have the effect of depriving the State (the people of the State) of the revenues legitimately due to it. The court should not take upon itself the responsibility of staying the recovery of amounts due to the State unless a clear case of illegality is made out and the balance of convenience is duly considered. Otherwise, the odium of unlawfully depriving the State/the people of the monies lawfully due to it/them would lie upon the court. Particularly in the case of excise contracts, generally speaking, it is wellnigh impossible to recover any arrears after the event. It is for this reason that the rules of all the States insist upon adequate deposits and securities beforehand to be adjusted towards the last months of the year. These provisions and the spirit underlying them cannot be ignored or violated. Now, in the case of this contract, the loss to the State is the whopping sum of Rs. 2, 88, 54, 431. How much of this loss is attributable to the impugned orders is difficult to assess but it can be said with certainly that but for these orders, the State would have conducted the re-auction in the month of May 1995 in which event the loss to the State would have been far less. The respondent-firm carried on till December 1995 without properly and fully paying the amounts due under the orders of the court. A very, very sad tale. 16. In Chief Constable of the North Wales Police v. Evans [ 1982 (3) ALLER 141, HL] the House of Lords has observed that. "The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment; reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court." * This principle has been referred to with approval in innumerable decisions of this Court. This decision clearly sets out the limits of the supervisory power under Article 226 of the Constitution and emphasises that the jurisdiction under the said article is neither unlimited nor unrestrained, much less unguided. 17. A Constitution Bench of this Court held in Har Shankar v. Dy. Excise and Taxation Commr. [ 1975 (1) SCC 737 ] that : (SCC p. 748, para 22) "The writ jurisdiction of High Courts under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntary incurred." Of course, where there is a statutory violation, interference would be permissible even in the case of a contractor but not where the relevant facts are disputed and which dispute calls for an elaborate enquiry which cannot be conveniently done by the High Court in a writ petition. 18. A perusal of the orders extracted hereinabove show that the learned Single Judge - it appears that almost all the orders are made by the same learned Judge (T. S. Doabia, J.) - has not kept in view of the norms governing the exercise of writ jurisdiction of the High Court. The relevant facts were seriously disputed before him, each party alleging that the other has violated the terms and conditions of licence and the rules. The repeated interim orders passed permitting the supply of liquor to the writ petitioner, sale of liquor by the petitioner under the supervision of the authorities, partial deposits of the amounts with the authorities and release of the balance of the amounts to the writ petitioner, appointment of an Advocate Commissioner to act as a "conduit" between the State and the writ petitioner and appointing a "commission" comprising two advocates to look into and decide the daily disputes arising between the parties - are all the outcome of a total disregard of the norms governing the writ jurisdiction. We are surprised that such orders could ever have been passed by the High Court - at any rate, without safeguarding the interests of the State. The proper course for the High Court was to dismiss the writ petition at the very inception when it was brought to their notice that it involved disputed questions of fact. It is equally relevant to notice that in none of the orders mentioned hereinabove has the learned Judge recorded any finding that the State or its authorities have acted in contravention of the law or that they have failed to perform any of their duties enjoined by any of the relevant statutory provisions. Similarly, no finding is recorded that the licensee (respondent herein) has done what all it had to do under the terms of the contract and the law. Indeed, at one stage, the respondent-firm admitted that it is in arrears of excise revenue but it blamed it on the alleged wrongful acts of the authorities. Yet the learned Judge went on supervising the case on an almost day-to-day basis. This was certainly no part of the High Courts function. It has also resulted in substantial loss of revenue to the State - to the people. | 1[ds]15. It has been repeatedly held by this Court that the power of the High Court under Article 226 of the Constitution is not akin to appellate power. It is a supervisory power. While exercising this power, the court does not go into the merits of the decision taken by the authorities concerned but only ensures that the decision is arrived at in accordance with the procedure prescribed by law and in accordance with the principles of natural justice wherever applicable. Further, where there are disputed questions of fact, the High Court does not normally go into or adjudicate upon the disputed questions of fact. Yet another principle which has been repeatedly affirmed by this Court is that a person who solemnly enters into a contract cannot be allowed to wriggle out of it by resorting to Article 226 of the Constitution. This Court has also repeatedly emphasised the inadvisability of making interim orders which have the effect of depriving the State (the people of the State) of the revenues legitimately due to it. The court should not take upon itself the responsibility of staying the recovery of amounts due to the State unless a clear case of illegality is made out and the balance of convenience is duly considered. Otherwise, the odium of unlawfully depriving the State/the people of the monies lawfully due to it/them would lie upon the court. Particularly in the case of excise contracts, generally speaking, it is wellnigh impossible to recover any arrears after the event. It is for this reason that the rules of all the States insist upon adequate deposits and securities beforehand to be adjusted towards the last months of the year. These provisions and the spirit underlying them cannot be ignored or violated. Now, in the case of this contract, the loss to the State is the whopping sum of Rs. 2, 88, 54, 431. How much of this loss is attributable to the impugned orders is difficult to assess but it can be said with certainly that but for these orders, the State would have conducted the re-auction in the month of May 1995 in which event the loss to the State would have been far less. The respondent-firm carried on till December 1995 without properly and fully paying the amounts due under the orders of the court. A very, very sad tale.A perusal of the orders extracted hereinabove show that the learned Single Judge - it appears that almost all the orders are made by the same learned Judge (T. S. Doabia, J.) - has not kept in view of the norms governing the exercise of writ jurisdiction of the High Court. The relevant facts were seriously disputed before him, each party alleging that the other has violated the terms and conditions of licence and the rules. The repeated interim orders passed permitting the supply of liquor to the writ petitioner, sale of liquor by the petitioner under the supervision of the authorities, partial deposits of the amounts with the authorities and release of the balance of the amounts to the writ petitioner, appointment of an Advocate Commissioner to act as a "conduit" between the State and the writ petitioner and appointing a "commission" comprising two advocates to look into and decide the daily disputes arising between the parties - are all the outcome of a total disregard of the norms governing the writ jurisdiction. We are surprised that such orders could ever have been passed by the High Court - at any rate, without safeguarding the interests of the State. The proper course for the High Court was to dismiss the writ petition at the very inception when it was brought to their notice that it involved disputed questions of fact. It is equally relevant to notice that in none of the orders mentioned hereinabove has the learned Judge recorded any finding that the State or its authorities have acted in contravention of the law or that they have failed to perform any of their duties enjoined by any of the relevant statutory provisions. Similarly, no finding is recorded that the licensee (respondent herein) has done what all it had to do under the terms of the contract and the law. Indeed, at one stage, the respondent-firm admitted that it is in arrears of excise revenue but it blamed it on the alleged wrongful acts of the authorities. Yet the learned Judge went on supervising the case on an almost day-to-day basis. This was certainly no part of the High Courts function. It has also resulted in substantial loss of revenue to the State - to theorder dated 22-5-1995 records an "undertaking" given by the licensee-firm to the High Court to the effect that "all financial commitments to which he may ultimately be found liable would be met by him". The writ petitions filed by the respondent-firm have been dismissed. His licences have cancelled, re-auction conducted and loss due to the State - to the people - has been ascertained. The High Court ought to enforce the undertaking now by proceeding against the respondent-firm (licensee) and all its partners. The violation of the undertaking, it needs to be mentioned, amounts to contempt of court. It is the duty of the court to try to repair the damage to the extent possible. No one should be allowed to suffer on account of the act(s) of the court. | 1 | 3,536 | 982 | ### Instruction:
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14. Leave granted. 15. It has been repeatedly held by this Court that the power of the High Court under Article 226 of the Constitution is not akin to appellate power. It is a supervisory power. While exercising this power, the court does not go into the merits of the decision taken by the authorities concerned but only ensures that the decision is arrived at in accordance with the procedure prescribed by law and in accordance with the principles of natural justice wherever applicable. Further, where there are disputed questions of fact, the High Court does not normally go into or adjudicate upon the disputed questions of fact. Yet another principle which has been repeatedly affirmed by this Court is that a person who solemnly enters into a contract cannot be allowed to wriggle out of it by resorting to Article 226 of the Constitution. This Court has also repeatedly emphasised the inadvisability of making interim orders which have the effect of depriving the State (the people of the State) of the revenues legitimately due to it. The court should not take upon itself the responsibility of staying the recovery of amounts due to the State unless a clear case of illegality is made out and the balance of convenience is duly considered. Otherwise, the odium of unlawfully depriving the State/the people of the monies lawfully due to it/them would lie upon the court. Particularly in the case of excise contracts, generally speaking, it is wellnigh impossible to recover any arrears after the event. It is for this reason that the rules of all the States insist upon adequate deposits and securities beforehand to be adjusted towards the last months of the year. These provisions and the spirit underlying them cannot be ignored or violated. Now, in the case of this contract, the loss to the State is the whopping sum of Rs. 2, 88, 54, 431. How much of this loss is attributable to the impugned orders is difficult to assess but it can be said with certainly that but for these orders, the State would have conducted the re-auction in the month of May 1995 in which event the loss to the State would have been far less. The respondent-firm carried on till December 1995 without properly and fully paying the amounts due under the orders of the court. A very, very sad tale. 16. In Chief Constable of the North Wales Police v. Evans [ 1982 (3) ALLER 141, HL] the House of Lords has observed that. "The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment; reaches on a matter which it is authorised or enjoined by law to decide for itself a conclusion which is correct in the eyes of the court." * This principle has been referred to with approval in innumerable decisions of this Court. This decision clearly sets out the limits of the supervisory power under Article 226 of the Constitution and emphasises that the jurisdiction under the said article is neither unlimited nor unrestrained, much less unguided. 17. A Constitution Bench of this Court held in Har Shankar v. Dy. Excise and Taxation Commr. [ 1975 (1) SCC 737 ] that : (SCC p. 748, para 22) "The writ jurisdiction of High Courts under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntary incurred." Of course, where there is a statutory violation, interference would be permissible even in the case of a contractor but not where the relevant facts are disputed and which dispute calls for an elaborate enquiry which cannot be conveniently done by the High Court in a writ petition. 18. A perusal of the orders extracted hereinabove show that the learned Single Judge - it appears that almost all the orders are made by the same learned Judge (T. S. Doabia, J.) - has not kept in view of the norms governing the exercise of writ jurisdiction of the High Court. The relevant facts were seriously disputed before him, each party alleging that the other has violated the terms and conditions of licence and the rules. The repeated interim orders passed permitting the supply of liquor to the writ petitioner, sale of liquor by the petitioner under the supervision of the authorities, partial deposits of the amounts with the authorities and release of the balance of the amounts to the writ petitioner, appointment of an Advocate Commissioner to act as a "conduit" between the State and the writ petitioner and appointing a "commission" comprising two advocates to look into and decide the daily disputes arising between the parties - are all the outcome of a total disregard of the norms governing the writ jurisdiction. We are surprised that such orders could ever have been passed by the High Court - at any rate, without safeguarding the interests of the State. The proper course for the High Court was to dismiss the writ petition at the very inception when it was brought to their notice that it involved disputed questions of fact. It is equally relevant to notice that in none of the orders mentioned hereinabove has the learned Judge recorded any finding that the State or its authorities have acted in contravention of the law or that they have failed to perform any of their duties enjoined by any of the relevant statutory provisions. Similarly, no finding is recorded that the licensee (respondent herein) has done what all it had to do under the terms of the contract and the law. Indeed, at one stage, the respondent-firm admitted that it is in arrears of excise revenue but it blamed it on the alleged wrongful acts of the authorities. Yet the learned Judge went on supervising the case on an almost day-to-day basis. This was certainly no part of the High Courts function. It has also resulted in substantial loss of revenue to the State - to the people.
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15. It has been repeatedly held by this Court that the power of the High Court under Article 226 of the Constitution is not akin to appellate power. It is a supervisory power. While exercising this power, the court does not go into the merits of the decision taken by the authorities concerned but only ensures that the decision is arrived at in accordance with the procedure prescribed by law and in accordance with the principles of natural justice wherever applicable. Further, where there are disputed questions of fact, the High Court does not normally go into or adjudicate upon the disputed questions of fact. Yet another principle which has been repeatedly affirmed by this Court is that a person who solemnly enters into a contract cannot be allowed to wriggle out of it by resorting to Article 226 of the Constitution. This Court has also repeatedly emphasised the inadvisability of making interim orders which have the effect of depriving the State (the people of the State) of the revenues legitimately due to it. The court should not take upon itself the responsibility of staying the recovery of amounts due to the State unless a clear case of illegality is made out and the balance of convenience is duly considered. Otherwise, the odium of unlawfully depriving the State/the people of the monies lawfully due to it/them would lie upon the court. Particularly in the case of excise contracts, generally speaking, it is wellnigh impossible to recover any arrears after the event. It is for this reason that the rules of all the States insist upon adequate deposits and securities beforehand to be adjusted towards the last months of the year. These provisions and the spirit underlying them cannot be ignored or violated. Now, in the case of this contract, the loss to the State is the whopping sum of Rs. 2, 88, 54, 431. How much of this loss is attributable to the impugned orders is difficult to assess but it can be said with certainly that but for these orders, the State would have conducted the re-auction in the month of May 1995 in which event the loss to the State would have been far less. The respondent-firm carried on till December 1995 without properly and fully paying the amounts due under the orders of the court. A very, very sad tale.A perusal of the orders extracted hereinabove show that the learned Single Judge - it appears that almost all the orders are made by the same learned Judge (T. S. Doabia, J.) - has not kept in view of the norms governing the exercise of writ jurisdiction of the High Court. The relevant facts were seriously disputed before him, each party alleging that the other has violated the terms and conditions of licence and the rules. The repeated interim orders passed permitting the supply of liquor to the writ petitioner, sale of liquor by the petitioner under the supervision of the authorities, partial deposits of the amounts with the authorities and release of the balance of the amounts to the writ petitioner, appointment of an Advocate Commissioner to act as a "conduit" between the State and the writ petitioner and appointing a "commission" comprising two advocates to look into and decide the daily disputes arising between the parties - are all the outcome of a total disregard of the norms governing the writ jurisdiction. We are surprised that such orders could ever have been passed by the High Court - at any rate, without safeguarding the interests of the State. The proper course for the High Court was to dismiss the writ petition at the very inception when it was brought to their notice that it involved disputed questions of fact. It is equally relevant to notice that in none of the orders mentioned hereinabove has the learned Judge recorded any finding that the State or its authorities have acted in contravention of the law or that they have failed to perform any of their duties enjoined by any of the relevant statutory provisions. Similarly, no finding is recorded that the licensee (respondent herein) has done what all it had to do under the terms of the contract and the law. Indeed, at one stage, the respondent-firm admitted that it is in arrears of excise revenue but it blamed it on the alleged wrongful acts of the authorities. Yet the learned Judge went on supervising the case on an almost day-to-day basis. This was certainly no part of the High Courts function. It has also resulted in substantial loss of revenue to the State - to theorder dated 22-5-1995 records an "undertaking" given by the licensee-firm to the High Court to the effect that "all financial commitments to which he may ultimately be found liable would be met by him". The writ petitions filed by the respondent-firm have been dismissed. His licences have cancelled, re-auction conducted and loss due to the State - to the people - has been ascertained. The High Court ought to enforce the undertaking now by proceeding against the respondent-firm (licensee) and all its partners. The violation of the undertaking, it needs to be mentioned, amounts to contempt of court. It is the duty of the court to try to repair the damage to the extent possible. No one should be allowed to suffer on account of the act(s) of the court.
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Pioneer Embroideries Limited Vs. Prithvi Singh & Others | admitted to be, entitled to receive such benefit. The appellants construction would necessarily introduce the addition of the words admittedly, or admitted to be in that clause, and that clearly is not permissible. Besides, it seems to us that if the appellants construction is accepted, it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of the remedy provided by sub-s. (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workmans application. The claim under Section 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-sec. (2). As Maxwell has observed where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. We must accordingly hold that S. 33C(2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers. Incidentally, it may be relevant to add that it would be somewhat odd that under sub-s.(3), the Labour Court should have been authorized to delegate the work of computing the money value of the benefit to the Commissioner if the determination of the said question was the only task assigned to the Labour Court under sub-s. (2). On the other hand, sub-s. (3) becomes intelligible if it is held that what can be assigned to the Commissioner includes only a part of the assignment of the Labour Court under sub-s.(2). 17. It is, however, urged that in dealing with the question about the existence of a right set up by the workman, the Labour Court would necessarily have to interpret the award or settlement on which the right is based, and that cannot be within its jurisdiction under S. 33C(2), because interpretation of awards or settlements has been specifically and expressly provided for by S.36A. We have already noticed that Section 36A has also been added by the Amending Act No.36 of 1956 along with S. 33C, and the appellants argument is that the legislature introduced the two sections together and thereby indicated that questions of interpretation fall within S. 36A and, therefore, outside S. 33C(2). There is no force in this contention. Section 36A merely provides for the interpretation of any provision of an award or settlement, and the appropriate Government is satisfied that a defect or doubt has arisen in regard to any provision in the award or settlement. Sometimes, cases may arise where the awards or settlements are obscure, ambiguous or otherwise present difficulty in construction. It is in such cases that S. 36A can be invoked by the parties by moving the appropriate Government to make the necessary reference under it. Experience showed that where awards or settlements were defective in the manner just indicated, there was no remedy available to the parties to have their doubts or difficulties resolved and that remedy is now provided by S. 36A. But the scope of S. 36A is different from the scope of S. 33C(2), because S. 36A is not concerned with the implementation or execution of the award at all, whereas that is the sole purpose of S. 33C(2). Whereas S.33C(2) deals with cases of implementation of individual rights of workmen falling under its provisions, S. 36A deals merely with a question of interpretation of the award where a dispute arises in that behalf between the workmen and the employer and the appropriate Government is satisfied that the dispute deserves to be resolved by reference under S.36A. 7. As is evident from the above stated principles that the jurisdiction of the Labour Court is not so limited or narrow so as to dismiss the application filed by the workmen at the threshold itself. Besides, if some ancillary questions are to be dealt with and/or decided by the Labour Court, determination or adjudication of a right itself may not squarely fall within the scope of these provisions. But, certainly, like in the present case, where the workmen, while relying upon the provisions of the Factories Act and even partial admission of the Company that the workmen were working 8 hours as per law and the Labour Court leaving the questions open till the parties have been given opportunity to lead evidence and prove their case and deferring the findings can hardly be faulted with. We must notice that it is not in dispute that the workmen would be entitled to receive overtime wages provided they show that they have worked in excess of 8 hours. So in other words, the right to claim overtime can hardly be a subject matter of dispute in the facts and circumstances of the present case provided the workmen establish their claim. This is not a case where the Court should accept preliminary objection to the extent of declining to exercise its jurisdiction and reject the application under Section 33-C(2) of the Act at the very threshold thus shutting the doors of justice for the workmen. We are in agreement with the learned Counsel appearing for the Appellant that the learned Single Judge could not have recorded finding as regards to the maintainability of the application particularly when the Labour Court has kept the questions open and required them to lead evidence. We are of the view that the order of the Labour Court does not suffer from error of law and is in consonance with the settled principles of Industrial Jurisprudence. | 0[ds]7. As is evident from the above stated principles that the jurisdiction of the Labour Court is not so limited or narrow so as to dismiss the application filed by the workmen at the threshold itself. Besides, if some ancillary questions are to be dealt with and/or decided by the Labour Court, determination or adjudication of a right itself may not squarely fall within the scope of these provisions. But, certainly, like in the present case, where the workmen, while relying upon the provisions of the Factories Act and even partial admission of the Company that the workmen were working 8 hours as per law and the Labour Court leaving the questions open till the parties have been given opportunity to lead evidence and prove their case and deferring the findings can hardly be faulted with. We must notice that it is not in dispute that the workmen would be entitled to receive overtime wages provided they show that they have worked in excess of 8 hours. So in other words, the right to claim overtime can hardly be a subject matter of dispute in the facts and circumstances of the present case provided the workmen establish their claim. This is not a case where the Court should accept preliminary objection to the extent of declining to exercise its jurisdiction and reject the application under Sectionof the Act at the very threshold thus shutting the doors of justice for the workmen. We are in agreement with the learned Counsel appearing for the Appellant that the learned Single Judge could not have recorded finding as regards to the maintainability of the application particularly when the Labour Court has kept the questions open and required them to lead evidence. We are of the view that the order of the Labour Court does not suffer from error of law and is in consonance with the settled principles of Industrial Jurisprudence. | 0 | 3,532 | 337 | ### Instruction:
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admitted to be, entitled to receive such benefit. The appellants construction would necessarily introduce the addition of the words admittedly, or admitted to be in that clause, and that clearly is not permissible. Besides, it seems to us that if the appellants construction is accepted, it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of the remedy provided by sub-s. (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workmans application. The claim under Section 33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-sec. (2). As Maxwell has observed where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution. We must accordingly hold that S. 33C(2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers. Incidentally, it may be relevant to add that it would be somewhat odd that under sub-s.(3), the Labour Court should have been authorized to delegate the work of computing the money value of the benefit to the Commissioner if the determination of the said question was the only task assigned to the Labour Court under sub-s. (2). On the other hand, sub-s. (3) becomes intelligible if it is held that what can be assigned to the Commissioner includes only a part of the assignment of the Labour Court under sub-s.(2). 17. It is, however, urged that in dealing with the question about the existence of a right set up by the workman, the Labour Court would necessarily have to interpret the award or settlement on which the right is based, and that cannot be within its jurisdiction under S. 33C(2), because interpretation of awards or settlements has been specifically and expressly provided for by S.36A. We have already noticed that Section 36A has also been added by the Amending Act No.36 of 1956 along with S. 33C, and the appellants argument is that the legislature introduced the two sections together and thereby indicated that questions of interpretation fall within S. 36A and, therefore, outside S. 33C(2). There is no force in this contention. Section 36A merely provides for the interpretation of any provision of an award or settlement, and the appropriate Government is satisfied that a defect or doubt has arisen in regard to any provision in the award or settlement. Sometimes, cases may arise where the awards or settlements are obscure, ambiguous or otherwise present difficulty in construction. It is in such cases that S. 36A can be invoked by the parties by moving the appropriate Government to make the necessary reference under it. Experience showed that where awards or settlements were defective in the manner just indicated, there was no remedy available to the parties to have their doubts or difficulties resolved and that remedy is now provided by S. 36A. But the scope of S. 36A is different from the scope of S. 33C(2), because S. 36A is not concerned with the implementation or execution of the award at all, whereas that is the sole purpose of S. 33C(2). Whereas S.33C(2) deals with cases of implementation of individual rights of workmen falling under its provisions, S. 36A deals merely with a question of interpretation of the award where a dispute arises in that behalf between the workmen and the employer and the appropriate Government is satisfied that the dispute deserves to be resolved by reference under S.36A. 7. As is evident from the above stated principles that the jurisdiction of the Labour Court is not so limited or narrow so as to dismiss the application filed by the workmen at the threshold itself. Besides, if some ancillary questions are to be dealt with and/or decided by the Labour Court, determination or adjudication of a right itself may not squarely fall within the scope of these provisions. But, certainly, like in the present case, where the workmen, while relying upon the provisions of the Factories Act and even partial admission of the Company that the workmen were working 8 hours as per law and the Labour Court leaving the questions open till the parties have been given opportunity to lead evidence and prove their case and deferring the findings can hardly be faulted with. We must notice that it is not in dispute that the workmen would be entitled to receive overtime wages provided they show that they have worked in excess of 8 hours. So in other words, the right to claim overtime can hardly be a subject matter of dispute in the facts and circumstances of the present case provided the workmen establish their claim. This is not a case where the Court should accept preliminary objection to the extent of declining to exercise its jurisdiction and reject the application under Section 33-C(2) of the Act at the very threshold thus shutting the doors of justice for the workmen. We are in agreement with the learned Counsel appearing for the Appellant that the learned Single Judge could not have recorded finding as regards to the maintainability of the application particularly when the Labour Court has kept the questions open and required them to lead evidence. We are of the view that the order of the Labour Court does not suffer from error of law and is in consonance with the settled principles of Industrial Jurisprudence.
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7. As is evident from the above stated principles that the jurisdiction of the Labour Court is not so limited or narrow so as to dismiss the application filed by the workmen at the threshold itself. Besides, if some ancillary questions are to be dealt with and/or decided by the Labour Court, determination or adjudication of a right itself may not squarely fall within the scope of these provisions. But, certainly, like in the present case, where the workmen, while relying upon the provisions of the Factories Act and even partial admission of the Company that the workmen were working 8 hours as per law and the Labour Court leaving the questions open till the parties have been given opportunity to lead evidence and prove their case and deferring the findings can hardly be faulted with. We must notice that it is not in dispute that the workmen would be entitled to receive overtime wages provided they show that they have worked in excess of 8 hours. So in other words, the right to claim overtime can hardly be a subject matter of dispute in the facts and circumstances of the present case provided the workmen establish their claim. This is not a case where the Court should accept preliminary objection to the extent of declining to exercise its jurisdiction and reject the application under Sectionof the Act at the very threshold thus shutting the doors of justice for the workmen. We are in agreement with the learned Counsel appearing for the Appellant that the learned Single Judge could not have recorded finding as regards to the maintainability of the application particularly when the Labour Court has kept the questions open and required them to lead evidence. We are of the view that the order of the Labour Court does not suffer from error of law and is in consonance with the settled principles of Industrial Jurisprudence.
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SEVOKE PROPERTIES PVT. LTD Vs. WEST BENGAL STATE ELETRICTIY DISTRIBUTION COMPANY LIMITED | absence of such a notice, the suit, it was held, would not be maintainable. 15. Mr Sundaram has sought to distinguish this decision, since in that case this Court found that the defendant was a tenant holding over within the meaning of Section 116. We find merit in the submission which has been urged by Mr Sundaram. In the case before this Court noted above, the defendants had not admitted that the term of the lease was for a period of nine years. This was noted by the Court, as we have extracted earlier. On the contrary, we find that in the present case, there is an express admission on the part of the defendants that they were in occupation under the lease agreement for a period of fifteen years with effect from 1981 and that the period of lease expired on 24 May 1996. Such a specific admission on the part of the defendants is contained in paragraph 22 of the written statement. Under Section 111(a), a lease of immovable property determines by efflux of time limited thereby. Once this be the position, there can be no manner of doubt that the position of the respondent on the expiration of the lease was of a tenant at sufferance. In the circumstances, there was no necessity of a notice for the termination of the lease under the provisions of Section 106. The respondent having squarely admitted in its written statement that it was in occupation for a term of fifteen years, that term having expired, the lease stood determined by efflux of time. Once the lease stood determined by efflux of time, there was no necessity for a notice of termination under Section 106. 16. In coming to this conclusion, we are fortified by the decision of this Court in R V Bhupal Prasad v State of A P (1995) 5 SCC 698 , where this Court held: 8.Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mullas Transfer of Property Act (7th Edn.) at page 633, the position of tenancy at sufferance has been stated thus: A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus: The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remains in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression holding over is used in the sense of retaining possession... In Park Street Properties Private Limited v Dipak Kumar Singh (2016) 9 SCC 268 , the appellant to whom premises had been let out with a right to sub-let them entered into a sub-tenancy in favour of the respondent. The agreement by which the sub-tenancy was created was unregistered. The appellant issued a notice under Section 106 of the TP Act terminating the monthly sub-tenancy and then instituted a suit for recovery of possession. The trial court held that since the sub-lease was unregistered, it was inadmissible in evidence and none of its terms, including clause 6 which empowered the landlord to serve a notice upon default in the payment of rent could be looked into. Hence the notice under Section 106 was held to be valid. The High Court allowed the appeal and remanded the proceedings to the trial court. In appeal, this Court held that clause 6 of the agreement was contrary to Section 106. While Section 106 contains the phrase in the absence of a contract to the contrary, this must refer to a valid contract. This Court held that in the absence of a registered agreement, the court is not precluded from determining the factum of tenancy from other evidence on the record including the conduct of parties. However, in the absence of registration, Section 106 created a fiction of tenancy from month to month, the termination of which was governed by Section 106. Consequently, the judgment of the High Court was set aside and the judgment of the trial court was restored. The above judgment is clearly distinguishable. Since the agreement of sub- lease in Park Street Properties (supra) was unregistered, clause 6 which governed the sub-lease could not be looked into. In the present case, the indenture of lease being unregistered, the contents of the instrument are inadmissible in evidence. However, it is evident from the clear admission in the written statement that the appellant accepted and proceeded on the basis that the period of lease expired on 24 May 1996. Thereafter, the position of the appellant is of a tenant at sufferance. In Nopany Investments (P) Ltd v Santokh Singh (HUF) (2008) 2 SCC 728 , a two judge Bench of this Court has held : 22…In any view of the matter, it is well settled that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant. | 1[ds]13. In terms of the provisions of Section 107, a lease of immovable property for a term exceeding one year can only be made by a registered instrument. Admittedly, in the present case, the indenture of lease has not been registered. In consequence, the contents of the indenture would be inadmissible in evidence for the purpose of determining the terms of the contract between the parties. This is the plain consequence of the provisions of Sections 17 and 49 of the Registration Act 1908 6 . The only purpose for which the lease can be looked at is for assessing the nature and character of the possession of the respondentIn the judgment of this Court in Satish Chand Makhan (supra), the father of the plaintiff had leased open land to the defendant for a period of five years under a registered deed of lease. After the expiry of the initial term, there was a draft agreement for renewal for a further period of nine years, which, however, was not registered under Section 17(1)(d) of the Registration Act 1908. The plaintiff served a notice for the determination of the tenancy on the ground of forfeiture under Section 111(g) and brought a suit for ejectment. The High Court held that the lease had been determined by efflux of time under Section 111(a) upon the expiry of the term of nine years and hence, no notice under Section 106 was required for the determination of the lease. While determining the correctness of the judgment of the High Court, this Court observed that the defendants have nowhere admitted that the lease was for a specific term of nine years . On the contrary, the defendants had pleaded that they were tenants holding over under Section 116 of the TP Act. This Court held that the unregistered draft lease agreement was inadmissible in evidence under Section 49 of the Registration Act except for a collateral purpose of proving the nature and character of the possession of the defendants. The terms of the lease did not constitute a collateral purpose. Consequently, the unregistered draft lease was held to be inadmissible to create a valid lease for a renewed term of nine years. In this background, this Court held that the defendants were tenants holding over under Section 116 in which event it was necessary for the plaintiff to serve a notice under Section 106. In the absence of such a notice, the suit, it was held, would not be maintainable15. Mr Sundaram has sought to distinguish this decision, since in that case this Court found that the defendant was a tenant holding over within the meaning of Section 116. We find merit in the submission which has been urged by Mr Sundaram. In the case before this Court noted above, the defendants had not admitted that the term of the lease was for a period of nine years. This was noted by the Court, as we have extracted earlier. On the contrary, we find that in the present case, there is an express admission on the part of the defendants that they were in occupation under the lease agreement for a period of fifteen years with effect from 1981 and that the period of lease expired on 24 May 1996. Such a specific admission on the part of the defendants is contained in paragraph 22 of the written statement. Under Section 111(a), a lease of immovable property determines by efflux of time limited thereby. Once this be the position, there can be no manner of doubt that the position of the respondent on the expiration of the lease was of a tenant at sufferance. In the circumstances, there was no necessity of a notice for the termination of the lease under the provisions of Section 106. The respondent having squarely admitted in its written statement that it was in occupation for a term of fifteen years, that term having expired, the lease stood determined by efflux of time. Once the lease stood determined by efflux of time, there was no necessity for a notice of termination under Section 106The above judgment is clearly distinguishable. Since the agreement of sub-lease in Park Street Properties (supra) was unregistered, clause 6 which governed the sub-lease could not be looked into. In the present case, the indenture of lease being unregistered, the contents of the instrument are inadmissible in evidence. However, it is evident from the clear admission in the written statement that the appellant accepted and proceeded on the basis that the period of lease expired on 24 May 1996. Thereafter, the position of the appellant is of a tenant at sufferance. | 1 | 2,998 | 858 | ### Instruction:
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absence of such a notice, the suit, it was held, would not be maintainable. 15. Mr Sundaram has sought to distinguish this decision, since in that case this Court found that the defendant was a tenant holding over within the meaning of Section 116. We find merit in the submission which has been urged by Mr Sundaram. In the case before this Court noted above, the defendants had not admitted that the term of the lease was for a period of nine years. This was noted by the Court, as we have extracted earlier. On the contrary, we find that in the present case, there is an express admission on the part of the defendants that they were in occupation under the lease agreement for a period of fifteen years with effect from 1981 and that the period of lease expired on 24 May 1996. Such a specific admission on the part of the defendants is contained in paragraph 22 of the written statement. Under Section 111(a), a lease of immovable property determines by efflux of time limited thereby. Once this be the position, there can be no manner of doubt that the position of the respondent on the expiration of the lease was of a tenant at sufferance. In the circumstances, there was no necessity of a notice for the termination of the lease under the provisions of Section 106. The respondent having squarely admitted in its written statement that it was in occupation for a term of fifteen years, that term having expired, the lease stood determined by efflux of time. Once the lease stood determined by efflux of time, there was no necessity for a notice of termination under Section 106. 16. In coming to this conclusion, we are fortified by the decision of this Court in R V Bhupal Prasad v State of A P (1995) 5 SCC 698 , where this Court held: 8.Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mullas Transfer of Property Act (7th Edn.) at page 633, the position of tenancy at sufferance has been stated thus: A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus: The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remains in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression holding over is used in the sense of retaining possession... In Park Street Properties Private Limited v Dipak Kumar Singh (2016) 9 SCC 268 , the appellant to whom premises had been let out with a right to sub-let them entered into a sub-tenancy in favour of the respondent. The agreement by which the sub-tenancy was created was unregistered. The appellant issued a notice under Section 106 of the TP Act terminating the monthly sub-tenancy and then instituted a suit for recovery of possession. The trial court held that since the sub-lease was unregistered, it was inadmissible in evidence and none of its terms, including clause 6 which empowered the landlord to serve a notice upon default in the payment of rent could be looked into. Hence the notice under Section 106 was held to be valid. The High Court allowed the appeal and remanded the proceedings to the trial court. In appeal, this Court held that clause 6 of the agreement was contrary to Section 106. While Section 106 contains the phrase in the absence of a contract to the contrary, this must refer to a valid contract. This Court held that in the absence of a registered agreement, the court is not precluded from determining the factum of tenancy from other evidence on the record including the conduct of parties. However, in the absence of registration, Section 106 created a fiction of tenancy from month to month, the termination of which was governed by Section 106. Consequently, the judgment of the High Court was set aside and the judgment of the trial court was restored. The above judgment is clearly distinguishable. Since the agreement of sub- lease in Park Street Properties (supra) was unregistered, clause 6 which governed the sub-lease could not be looked into. In the present case, the indenture of lease being unregistered, the contents of the instrument are inadmissible in evidence. However, it is evident from the clear admission in the written statement that the appellant accepted and proceeded on the basis that the period of lease expired on 24 May 1996. Thereafter, the position of the appellant is of a tenant at sufferance. In Nopany Investments (P) Ltd v Santokh Singh (HUF) (2008) 2 SCC 728 , a two judge Bench of this Court has held : 22…In any view of the matter, it is well settled that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant.
### Response:
1
### Explanation:
13. In terms of the provisions of Section 107, a lease of immovable property for a term exceeding one year can only be made by a registered instrument. Admittedly, in the present case, the indenture of lease has not been registered. In consequence, the contents of the indenture would be inadmissible in evidence for the purpose of determining the terms of the contract between the parties. This is the plain consequence of the provisions of Sections 17 and 49 of the Registration Act 1908 6 . The only purpose for which the lease can be looked at is for assessing the nature and character of the possession of the respondentIn the judgment of this Court in Satish Chand Makhan (supra), the father of the plaintiff had leased open land to the defendant for a period of five years under a registered deed of lease. After the expiry of the initial term, there was a draft agreement for renewal for a further period of nine years, which, however, was not registered under Section 17(1)(d) of the Registration Act 1908. The plaintiff served a notice for the determination of the tenancy on the ground of forfeiture under Section 111(g) and brought a suit for ejectment. The High Court held that the lease had been determined by efflux of time under Section 111(a) upon the expiry of the term of nine years and hence, no notice under Section 106 was required for the determination of the lease. While determining the correctness of the judgment of the High Court, this Court observed that the defendants have nowhere admitted that the lease was for a specific term of nine years . On the contrary, the defendants had pleaded that they were tenants holding over under Section 116 of the TP Act. This Court held that the unregistered draft lease agreement was inadmissible in evidence under Section 49 of the Registration Act except for a collateral purpose of proving the nature and character of the possession of the defendants. The terms of the lease did not constitute a collateral purpose. Consequently, the unregistered draft lease was held to be inadmissible to create a valid lease for a renewed term of nine years. In this background, this Court held that the defendants were tenants holding over under Section 116 in which event it was necessary for the plaintiff to serve a notice under Section 106. In the absence of such a notice, the suit, it was held, would not be maintainable15. Mr Sundaram has sought to distinguish this decision, since in that case this Court found that the defendant was a tenant holding over within the meaning of Section 116. We find merit in the submission which has been urged by Mr Sundaram. In the case before this Court noted above, the defendants had not admitted that the term of the lease was for a period of nine years. This was noted by the Court, as we have extracted earlier. On the contrary, we find that in the present case, there is an express admission on the part of the defendants that they were in occupation under the lease agreement for a period of fifteen years with effect from 1981 and that the period of lease expired on 24 May 1996. Such a specific admission on the part of the defendants is contained in paragraph 22 of the written statement. Under Section 111(a), a lease of immovable property determines by efflux of time limited thereby. Once this be the position, there can be no manner of doubt that the position of the respondent on the expiration of the lease was of a tenant at sufferance. In the circumstances, there was no necessity of a notice for the termination of the lease under the provisions of Section 106. The respondent having squarely admitted in its written statement that it was in occupation for a term of fifteen years, that term having expired, the lease stood determined by efflux of time. Once the lease stood determined by efflux of time, there was no necessity for a notice of termination under Section 106The above judgment is clearly distinguishable. Since the agreement of sub-lease in Park Street Properties (supra) was unregistered, clause 6 which governed the sub-lease could not be looked into. In the present case, the indenture of lease being unregistered, the contents of the instrument are inadmissible in evidence. However, it is evident from the clear admission in the written statement that the appellant accepted and proceeded on the basis that the period of lease expired on 24 May 1996. Thereafter, the position of the appellant is of a tenant at sufferance.
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Gita Devi Aggarwal Vs. Commissioner of Income Tax, West Bengal and Others | the Act was not defective in law. This appeal is brought by certificate from the judgment of the High Court dated May 24, 1965 The first question that arises in this appeal is whether the appellant is entitled to invoke the special jurisdiction of the High Court under article 226 of the Constitution. Under section 33B, sub-section (3), of the Act, a right of appeal was available to the appellant and would have been more appropriate, because questions of fact regarding the service of the notice were involved and such questions could have been properly decided in the proceeding of the appeal. It is well-settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court for issue of a prerogative writ. It is true that the existence of an alternative remedy does not affect the jurisdiction of the court to issue a writ ; but, as observed by this court in Rashid Ahmed v. Municipal Board Kairana, the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a remedy exists, it will be a sound exercise of discretion for the High Court to refuse to entertain a petition under article 226 unless there are good grounds thereforThe legal position has been clearly stated by Shah J., speaking for the court, in Shivram Poddar v. Income-tax Officer:" It is, however, necessary once more to observe, as we did in C. A. Abrahams case, that the Income-tax Act provides a complete machinery for assessment of tax, and for relief in respect of improper or erroneous orders made by the revenue authorities. It is for the revenue authorities to ascertain in the facts applicable to a particular situation, and to grant appropriate relief in the matter of assessment of tax. Resort to the High Court in exercise of its extraordinary jurisdiction conferred or recognised by the Constitution in matters relating to assessment, levy and collection of income-tax may be permitted only when questions of infringement of fundamental rights arise, or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess. In attempting to bypass the provisions of the Income-tax Act by inviting the High Court to decide questions which are primarily within the jurisdiction of the revenue authorities, the party approaching the court has often to ask the court to make assumptions of facts which remain to be investigated by the revenue authorities."2. In the present case no explanation has been given by the appellant in the writ petition for not preferring an appeal under the Act and justifying her recourse to the special jurisdiction of the High Court under article 226 of the Constitution. In our opinion the High Court would have been justified in the circumstances of this case in dismissing the writ petition of the appellant in limine3. Turning to the merits of the case also we arc satisfied that the appellant is not entitled to any relief. The High Court has found after examination of the evidence that an opportunity was given to the appellant to be heard before respondent No. 1 made the order under section 33B of the Act. The appellant had declared No. 28, J. N Mukherjee Road, Howrah, to be her address. She had admitted that she had received all notices of demand under section 29 of the Act at the same address. It apppears that the order made under section 33B of the Act was served on the appellant at the same address by affixation. The case of the appellant is that the did not know that the notice was affixed by the inspector, D. N. Datta, on February 28, 1963, at the same address. D. N. Datta stated in his report that he attempted to contact the assessee at No. 28, J. N. Mukherjee Road, for personal service on February 25, 1963, and again on February 27, 1963, and having failed in these attempts he served the notice by affixing it on February 28, 1963, at that address. The High Court disbelieved the allegation of the appellant that she was not aware of the notice of February 28, 1963, in the face of her admission that she had received all notices of demand under section 29 of the Act at the same address. There is also evidence that copies of notice under section 33B of the Act were sent by post to the address to the appellant at No. 28, J. N. Mukherjee Road, Howrah. The notice was presented for delivery on February 28, 1963, March 2, 1963, March 4, 1963, March 5, 1963, and finally on March 7, 1963, when the notice not having been claimed by the appellant or on her behalf was returned to the sender. The High Court drew the inference that the appellant had refused to accept the notice when it was attempted to be served upon her by post. In this state of facts the High Court has taken the view that in opportunity was given to the appellant as required by section 33B of the Act. It was argued on behalf of the appellant that the requirements of Order V, rule 17, of the Code of Civil Procedure, as amended by the Calcutta Amendment, were not strictly satisfied in this case and service of the notice on the appellant at the address by affixing was not a valid service. But it is necessary to point out that section 33B of the Act does not in express terms require a notice to be served as in the case of section 34 of the Act. Section 33B merely requires that an opportunity of being heard should be given to the assessee and the stringent requirement of service of notice under section 34 cannot, therefore, be applied to a proceeding under section 33B of the Act. | 0[ds]In the present case no explanation has been given by the appellant in the writ petition for not preferring an appeal under the Act and justifying her recourse to the special jurisdiction of the High Court under article 226 of the Constitution. In our opinion the High Court would have been justified in the circumstances of this case in dismissing the writ petition of the appellant in limineit is necessary to point out that section 33B of the Act does not in express terms require a notice to be served as in the case of section 34 of the Act. Section 33B merely requires that an opportunity of being heard should be given to the assessee and the stringent requirement of service of notice under section 34 cannot, therefore, be applied to a proceeding under section 33B of thesection 33B, sub-section (3), of the Act, a right of appeal was available to the appellant and would have been more appropriate, because questions of fact regarding the service of the notice were involved and such questions could have been properly decided in the proceeding of theappeal. It is well-settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court for issue of a prerogative writ. It is true that the existence of an alternative remedy does not affect the jurisdiction of the court to issue a writ ; but, as observed by this court in Rashid Ahmed v. Municipal Board Kairana, the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a remedy exists, it will be a sound exercise of discretion for the High Court to refuse to entertain a petition under article 226 unless there are good grounds thereforThe legal position has been clearly stated by Shah J., speaking for the court, in Shivram Poddar v. Income-taxto the merits of the case also we arc satisfied that the appellant is not entitled to any relief. The High Court has found after examination of the evidence that an opportunity was given to the appellant to be heard before respondent No. 1 made the order under section 33B of the Act. The appellant had declared No. 28, J. N Mukherjee Road, Howrah, to be her address. She had admitted that she had received all notices of demand under section 29 of the Act at the same address. It apppears that the order made under section 33B of the Act was served on the appellant at the same address byt is necessary to point out that section 33B of the Act does not in express terms require a notice to be served as in the case of section 34 of the Act. Section 33B merely requires that an opportunity of being heard should be given to the assessee and the stringent requirement of service of notice under section 34 cannot, therefore, be applied to a proceeding under section 33B of the | 0 | 1,459 | 550 | ### 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:
the Act was not defective in law. This appeal is brought by certificate from the judgment of the High Court dated May 24, 1965 The first question that arises in this appeal is whether the appellant is entitled to invoke the special jurisdiction of the High Court under article 226 of the Constitution. Under section 33B, sub-section (3), of the Act, a right of appeal was available to the appellant and would have been more appropriate, because questions of fact regarding the service of the notice were involved and such questions could have been properly decided in the proceeding of the appeal. It is well-settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court for issue of a prerogative writ. It is true that the existence of an alternative remedy does not affect the jurisdiction of the court to issue a writ ; but, as observed by this court in Rashid Ahmed v. Municipal Board Kairana, the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a remedy exists, it will be a sound exercise of discretion for the High Court to refuse to entertain a petition under article 226 unless there are good grounds thereforThe legal position has been clearly stated by Shah J., speaking for the court, in Shivram Poddar v. Income-tax Officer:" It is, however, necessary once more to observe, as we did in C. A. Abrahams case, that the Income-tax Act provides a complete machinery for assessment of tax, and for relief in respect of improper or erroneous orders made by the revenue authorities. It is for the revenue authorities to ascertain in the facts applicable to a particular situation, and to grant appropriate relief in the matter of assessment of tax. Resort to the High Court in exercise of its extraordinary jurisdiction conferred or recognised by the Constitution in matters relating to assessment, levy and collection of income-tax may be permitted only when questions of infringement of fundamental rights arise, or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess. In attempting to bypass the provisions of the Income-tax Act by inviting the High Court to decide questions which are primarily within the jurisdiction of the revenue authorities, the party approaching the court has often to ask the court to make assumptions of facts which remain to be investigated by the revenue authorities."2. In the present case no explanation has been given by the appellant in the writ petition for not preferring an appeal under the Act and justifying her recourse to the special jurisdiction of the High Court under article 226 of the Constitution. In our opinion the High Court would have been justified in the circumstances of this case in dismissing the writ petition of the appellant in limine3. Turning to the merits of the case also we arc satisfied that the appellant is not entitled to any relief. The High Court has found after examination of the evidence that an opportunity was given to the appellant to be heard before respondent No. 1 made the order under section 33B of the Act. The appellant had declared No. 28, J. N Mukherjee Road, Howrah, to be her address. She had admitted that she had received all notices of demand under section 29 of the Act at the same address. It apppears that the order made under section 33B of the Act was served on the appellant at the same address by affixation. The case of the appellant is that the did not know that the notice was affixed by the inspector, D. N. Datta, on February 28, 1963, at the same address. D. N. Datta stated in his report that he attempted to contact the assessee at No. 28, J. N. Mukherjee Road, for personal service on February 25, 1963, and again on February 27, 1963, and having failed in these attempts he served the notice by affixing it on February 28, 1963, at that address. The High Court disbelieved the allegation of the appellant that she was not aware of the notice of February 28, 1963, in the face of her admission that she had received all notices of demand under section 29 of the Act at the same address. There is also evidence that copies of notice under section 33B of the Act were sent by post to the address to the appellant at No. 28, J. N. Mukherjee Road, Howrah. The notice was presented for delivery on February 28, 1963, March 2, 1963, March 4, 1963, March 5, 1963, and finally on March 7, 1963, when the notice not having been claimed by the appellant or on her behalf was returned to the sender. The High Court drew the inference that the appellant had refused to accept the notice when it was attempted to be served upon her by post. In this state of facts the High Court has taken the view that in opportunity was given to the appellant as required by section 33B of the Act. It was argued on behalf of the appellant that the requirements of Order V, rule 17, of the Code of Civil Procedure, as amended by the Calcutta Amendment, were not strictly satisfied in this case and service of the notice on the appellant at the address by affixing was not a valid service. But it is necessary to point out that section 33B of the Act does not in express terms require a notice to be served as in the case of section 34 of the Act. Section 33B merely requires that an opportunity of being heard should be given to the assessee and the stringent requirement of service of notice under section 34 cannot, therefore, be applied to a proceeding under section 33B of the Act.
### Response:
0
### Explanation:
In the present case no explanation has been given by the appellant in the writ petition for not preferring an appeal under the Act and justifying her recourse to the special jurisdiction of the High Court under article 226 of the Constitution. In our opinion the High Court would have been justified in the circumstances of this case in dismissing the writ petition of the appellant in limineit is necessary to point out that section 33B of the Act does not in express terms require a notice to be served as in the case of section 34 of the Act. Section 33B merely requires that an opportunity of being heard should be given to the assessee and the stringent requirement of service of notice under section 34 cannot, therefore, be applied to a proceeding under section 33B of thesection 33B, sub-section (3), of the Act, a right of appeal was available to the appellant and would have been more appropriate, because questions of fact regarding the service of the notice were involved and such questions could have been properly decided in the proceeding of theappeal. It is well-settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court for issue of a prerogative writ. It is true that the existence of an alternative remedy does not affect the jurisdiction of the court to issue a writ ; but, as observed by this court in Rashid Ahmed v. Municipal Board Kairana, the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs and where such a remedy exists, it will be a sound exercise of discretion for the High Court to refuse to entertain a petition under article 226 unless there are good grounds thereforThe legal position has been clearly stated by Shah J., speaking for the court, in Shivram Poddar v. Income-taxto the merits of the case also we arc satisfied that the appellant is not entitled to any relief. The High Court has found after examination of the evidence that an opportunity was given to the appellant to be heard before respondent No. 1 made the order under section 33B of the Act. The appellant had declared No. 28, J. N Mukherjee Road, Howrah, to be her address. She had admitted that she had received all notices of demand under section 29 of the Act at the same address. It apppears that the order made under section 33B of the Act was served on the appellant at the same address byt is necessary to point out that section 33B of the Act does not in express terms require a notice to be served as in the case of section 34 of the Act. Section 33B merely requires that an opportunity of being heard should be given to the assessee and the stringent requirement of service of notice under section 34 cannot, therefore, be applied to a proceeding under section 33B of the
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